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7
Court of Criminal Appeal 25 August 2009

Leslie v Regina

[2009] NSWCCA 203

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCE PARITY PRINCIPLE PRINCIPLE OF TOTALITY.

Citation: Leslie v Regina [2009] NSWCCA 203
Court: New South Wales Court of Criminal Appeal
Date: 25 August 2009
Judge(s): McClellan CJ at CL, Howie J, Hoeben J

Background

The applicant was sentenced in the District Court by Marien DCJ on 11 July 2008 for ten serious offences committed over a roughly three-month period in late 2005, plus a further offence in June 2006. The offences included aggravated break, enter and steal (multiple counts), armed robberies, arson, conspiring to purchase a firearm, motor vehicle theft, proceeds of crime transactions, and threatening a witness. The applicant had been in custody since 27 November 2005, and the sentencing judge used that date as the commencement of the sentences.

The overall effect of the sentences imposed at first instance was a total term of 14 years and 7 months, with a non-parole period of 9 years and 7 months. The applicant sought leave to appeal, contending that certain individual sentences were manifestly excessive, that the parity principle had not been properly applied, that the totality principle had been breached, and that the finding of special circumstances was inadequate.

  • Whether any of the individual sentences were manifestly excessive
  • Whether the sentencing judge correctly applied the parity principle, given that co-offenders had received different sentences
  • Whether the overall sentencing regime breached the totality principle
  • Whether the sentencing judge's treatment of special circumstances and the resulting non-parole period was adequate

Decision

The Court of Criminal Appeal granted leave to appeal but upheld the sentences in all material respects. The one exception concerned offence (1), the aggravated break, enter and steal at the Meadowbank Convenience Store on 22 November 2005. The sentencing judge had imposed a fixed term of 3 years for that offence, but because that offence carried a standard non-parole period under the legislation, a fixed term was not available in those circumstances. The sentence for that offence was quashed and replaced with a sentence comprising a non-parole period of 3 years followed by a balance of term of 1 year, preserving the same overall length.

On the question of manifest excess, the Court found no error in the individual sentences. The offences were serious, committed repeatedly and in company, and the terms imposed were consistent with the objective gravity of the conduct.

The parity argument was also rejected. The Court acknowledged that co-offenders had received different sentences, but found that the differences were explicable by differences in the offenders' roles, criminal histories, and the particular offences for which each was sentenced. No relevant sentencing disparity that would cause a justified sense of grievance was established.

The totality and special circumstances grounds similarly failed. The Court observed that the overall non-parole period represented approximately 66 percent of the total sentence, which the Court regarded as making adequate allowance for special circumstances and for the supervision the applicant would require upon release. The extent of any adjustment to the statutory ratio under the sentencing legislation is a matter within the sentencing judge's discretion, and intervention is warranted only where the non-parole period is manifestly inadequate or manifestly excessive.

Orders Made

  • Leave to appeal granted
  • The sentence for offence (1) (aggravated break, enter and steal at Meadowbank, 22 November 2005) quashed and replaced with a non-parole period of 3 years commencing 27 December 2008 and expiring 26 December 2011, with a balance of term of 1 year expiring 26 December 2012
  • All other sentences confirmed
  • The appeal otherwise dismissed

Key Takeaways

  • A fixed term of imprisonment is not available where an offence attracts a standard non-parole period under the Crimes (Sentencing Procedure) Act 1999; the sentencing court must instead impose a head sentence with a separate non-parole period, even where that period equals the term otherwise intended.
  • Differences in sentences between co-offenders do not automatically establish a breach of the parity principle; the court examines whether the differences are explicable by factors such as differing roles, criminal histories, and the specific offences involved.
  • Under the totality principle, the court looks at whether the combined effect of sentences adequately reflects the overall criminality without being oppressive, rather than treating each sentence in isolation.
  • The Court of Criminal Appeal confirmed that the degree of adjustment to the statutory non-parole period ratio for special circumstances is largely within the sentencing judge's discretion; appellate intervention is reserved for cases where the resulting non-parole period is manifestly inadequate or manifestly excessive.
  • In dismissing most grounds of appeal, the Court reinforced that a non-parole period representing approximately 66 percent of the total sentence can constitute an adequate recognition of special circumstances, including where it is a first custodial sentence with partially accumulated terms.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 112(2), 113(2), 117, 154A, 154AA, 193B(2), 195(1)(b), 322(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 45
- Firearms Act 1996 (NSW), s 50(b)

Cases
- Attorney General's Application No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Clarke v R [2009] NSWCCA 49
- McKenna v Regina [2007] NSWCCA 113
- Mulato v Regina [2006] NSWCCA 282
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR 295
- R v Boney [2001] NSWCCA 432
- R v Way (2004) 60 NSWLR 168
- SGJ v R [2008] NSWCCA 258