Citation: Sheather v R [2009] NSWCCA 173
Court: New South Wales Court of Criminal Appeal
Date: 30 June 2009
Judge(s): McClellan CJ at CL, Grove J, Buddin J
Background
The applicant, an adult offender aged just days short of 19 at the time of the offence, pleaded guilty to assault with intent to rob under s 95 of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. He and three co-offenders, all juveniles, had arranged to order a taxi, lure the driver to an isolated location, and rob him. One co-offender struck the taxi driver on the head with a mallet; the applicant denied knowing the mallet was present and claimed he had panicked and withdrawn before the blow was struck.
The day after the offence, the applicant voluntarily attended Queanbeyan police station, made admissions about his role, and provided information that led to the arrest of all three co-offenders. He also gave evidence against one co-offender in the Children's Court. Despite these factors, he entered his guilty plea only on the date set for hearing.
The District Court sentenced the applicant to 3 years imprisonment with a non-parole period of 16 months. The applicant sought leave to appeal, arguing his sentence was excessive, particularly when compared to the sentence received by co-offender BW, a juvenile who received a 9-month control order that was wholly suspended.
Legal Issues
- Whether the sentence imposed on the applicant was excessive in all the circumstances, including his age, background, and significant cooperation with authorities.
- Whether the disparity between the applicant's sentence and those of his juvenile co-offenders gave rise to a justifiable sense of grievance, such that appellate intervention was warranted.
- How a direct sentencing comparison between an adult offender and a juvenile co-offender should be approached, given the different legislative frameworks that apply to each.
Decision
McClellan CJ at CL (with whom Grove J and Buddin J agreed) acknowledged upfront that a direct comparison between the applicant's sentence and those of his juvenile co-offenders was not straightforward. Juvenile co-offenders are sentenced under a different statutory framework, the Children's (Criminal Proceedings) Act 1987, which places rehabilitation at the centre of the sentencing exercise. That distinction meant a like-for-like comparison was inappropriate.
Despite that caveat, the Court found that the disparity between the applicant's sentence and BW's sentence was so pronounced that it gave rise to a legitimate sense of grievance. BW received a wholly suspended 9-month control order, while the applicant served a minimum of 16 months full-time custody. The Court accepted that the applicant had probably played a greater role in initiating the offence by making the phone calls to the taxi company, but found his conduct during the offence itself was no worse than BW's.
The Court placed considerable weight on the applicant's voluntary surrender to police, his cooperation with investigators, and his willingness to give evidence against a co-offender. These steps demonstrated genuine remorse and a reduced likelihood of reoffending. Combined with his youth, his difficult personal history, and his prospects for rehabilitation, the Court concluded a term of full-time imprisonment remained appropriate, but the length was disproportionate and required correction.
The sentence was quashed and the applicant was re-sentenced to a non-parole period of 12 months with a total term of 2 years (noting the written orders reflect a balance of term of 12 months rather than 18 months, producing an overall term of 24 months).
Orders Made
- Leave to appeal granted and the sentence imposed in the District Court quashed.
- The applicant sentenced to a non-parole period of 12 months commencing 6 June 2008 and expiring 5 June 2009, at which date the applicant was to be released to parole.
- Balance of term of 12 months, expiring 5 June 2010.
Key Takeaways
- A direct sentencing comparison between an adult offender and a juvenile co-offender is inappropriate because the two cohorts are sentenced under different legislative frameworks with different primary objectives, but significant disparity can still give rise to a justifiable sense of grievance warranting appellate intervention.
- Voluntary surrender to police, cooperation with investigators, and giving evidence against co-offenders are factors capable of materially reducing the length of a sentence, even where those factors also informed an allowance for assistance to authorities at first instance.
- Where a sentencing judge does not quantify the percentage discount applied for a guilty plea, assistance, and remorse, this does not necessarily constitute a standalone error, but the absence of that reasoning may make it harder to assess the proportionality of the overall sentence on appeal.
- In assessing whether the applicant's sentence was proportionate, the Court of Criminal Appeal examined each co-offender's role in the offence at the scene, not merely each person's role in the planning or initiation of it.
- A term of full-time imprisonment may remain appropriate for a young adult first-time offender convicted of a serious offence, while still being reduced to ensure the sentence promotes rehabilitation and remains proportionate to sentences imposed on co-offenders.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 95 (assault with intent to rob)
- Children's (Criminal Proceedings) Act 1987 (NSW), s 33(1)(b)
Cases
- Postiglione v The Queen (1997) 189 CLR 295
- R v Colgan [1999] NSWCCA 292
- R v El Hani (2004) NSWCCA 162
- SZ v R (2007) NSWCCA 19; 168 A Crim R 249
- TJ v R [2009] NSWCCA 99