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Court of Criminal Appeal 29 May 2009

Baleiovalau v R

[2009] NSWCCA 153

Theft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING PARITY OFFENCE ON FORM 1 TOTALITY OVERALL EFFECTIVE SENTENCE

Citation: Baleiovalau v R [2009] NSWCCA 153
Court: NSW Court of Criminal Appeal
Date: 29 May 2009
Judge(s): Hodgson JA, Buddin J, Price J

Background

The appellant had pleaded guilty in the District Court to three serious offences: an aggravated armed robbery at a credit union in Hurstville in February 2005, an aggravated armed robbery of a car dealership in Arncliffe in April 2005, and a conspiracy to commit an aggravated armed robbery. All offences were committed with co-offenders and involved the use of dangerous weapons, including shortened firearms. The maximum penalty for each substantive offence was 25 years imprisonment under s 97(2) of the Crimes Act 1900.

Tupman DCJ sentenced the appellant in the District Court at Penrith on 30 August 2007, together with two co-offenders. The sentences were partially accumulated, resulting in a total effective sentence of 10 years and 6 months, with a non-parole period of 7 years and 6 months. A 20 per cent discount was applied for the utilitarian value of the guilty pleas.

The appellant sought leave to appeal, arguing that the sentencing judge had failed to apply the parity principle correctly when comparing his sentence with that of a co-offender, and that she had failed to properly apply the totality principle when accounting for a sentence he was already serving.

  • Whether the sentencing judge failed to give proper regard to the parity principle when sentencing the appellant alongside his co-offender Kinikini, whose total effective sentence was 11 years.
  • Whether the sentencing judge failed to give proper regard to the totality principle by not sufficiently accounting for the sentence the appellant was already serving, with the combined effect that he would serve almost 14 years before becoming eligible for parole.

Decision

On the parity ground, the Court of Criminal Appeal found no error in the sentencing judge's approach. The co-offender Kinikini had received a longer total sentence, primarily because an additional Form 1 offence (the Rosehill Hotel robbery, committed by Kinikini but not the appellant) had been taken into account. The difference in sentence length was explicable by that additional criminality. The Court also noted that during the Parkside robbery, the appellant had pointed a handgun directly at a victim, whereas Kinikini had remained in the vehicle due to an injury.

The Court was not persuaded that the difference between the two sentences amounted to a marked disparity giving rise to a justifiable sense of grievance. Both co-offenders were sentenced by the same judge, who had the benefit of assessing the evidence first-hand. The Court found her assessment of the just and appropriate overall length for each offender's sentence was open to her.

On the totality ground, the Court found the sentencing judge had expressly considered the sentence the appellant was serving at the time, and had backdated the new sentence to commence from 12 April 2006, partially accumulating it by approximately 18 months over the existing sentence. The Court held that this approach fell properly within the judge's sentencing discretion and that she had not failed to have proper regard to totality.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A difference in total effective sentence between co-offenders does not automatically constitute a parity error. Where the disparity is explicable by additional criminality or different roles in the offending, a justifiable sense of grievance will not arise.
  • Form 1 offences taken into account when sentencing a co-offender can legitimately explain why that co-offender receives a longer sentence, even where the appellant was not charged with those offences.
  • Where a sentencing judge expressly considers a sentence currently being served and backdates the new sentence with partial accumulation, the totality principle may be satisfied even if the combined period of incarceration is lengthy.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the sentencing judge's assessment of what was just and appropriate in light of the total criminality of each offender was an exercise of discretion that the appellate court would not disturb without demonstrated error.
  • Under the totality principle, a sentencing court must consider the total criminality across both the current offences and any sentence already being served, ensuring the aggregate is a just and appropriate measure of overall criminal conduct (applying Postiglione v The Queen).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(2) (aggravated armed robbery in circumstances of special aggravation)

Cases:
- Postiglione v The Queen (1997) 189 CLR 295
- Pearce v The Queen (1998) 194 CLR 610
- The Queen v Hoar (1981) 148 CLR 32
- Callaghan v R (2006) 160 A Crim R 145
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v Kollas and Mitchell [2002] NSWCCA 491