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Court of Criminal Appeal 25 August 2009

Johnson v Regina

[2009] NSWCCA 204

Theft & property
CRIMINAL LAW SENTENCE WHETHER SENTENCES MANIFESTLY EXCESSIVE PRINCIPLE OF PARITY WHETHER ACCUMULATION WAS APPROPRIATE.

Citation: Johnson v Regina [2009] NSWCCA 204
Court: NSW Court of Criminal Appeal
Date: 25 August 2009
Judge(s): McClellan CJ at CL, Howie J, Hoeben J (Hoeben J delivered the principal judgment; the others agreed)

Background

The applicant was sentenced in the District Court in July 2008 for his role in a series of serious property offences committed in late 2005, when he was 19 years old. The offences included an armed robbery at a convenience store, and three aggravated break, enter and steal offences targeting an ATM at a convenience store, a vehicle storage facility at P&O Ports in Balmain, and an ATM at Meadowbank TAFE. The TAFE offence alone caused more than $75,000 in damage and netted approximately $78,000 from the ATM.

The applicant had been in custody since his arrest on 17 January 2006. District Court Judge Marien SC sentenced him to a total of 11.5 years imprisonment with a non-parole period of 7.5 years. The applicant sought leave to appeal, contending the sentences were manifestly excessive, that the degree of accumulation was inappropriate, and that a co-offender sentenced in the Children's Court had received a significantly lighter sentence.

  • Whether the sentences imposed were manifestly excessive having regard to the objective seriousness of the offences and the applicant's subjective circumstances.
  • Whether the extent to which the sentences were accumulated was appropriate, or whether it produced a total sentence that was disproportionate.
  • Whether the applicant had a justifiable sense of grievance under the parity principle, given that a co-offender (Obierzinski) received a shorter sentence in the Children's Court.
  • Whether the sentencing judge erred by imposing fixed terms of imprisonment for offences (2) and (3) without setting non-parole periods, as required by s 45 of the Crimes (Sentencing Procedure) Act 1999.

Decision

Manifest excess: The Court of Criminal Appeal did not find the individual sentences manifestly excessive when considered on their own terms. The objective seriousness of the offences, particularly the organised and planned nature of the ATM raids and the significant financial and property damage involved, supported the sentences at the level imposed.

Accumulation: The Court accepted this ground of appeal. Having regard to the totality principle, the degree of accumulation produced a total sentence that was disproportionate to the overall criminality involved. The Court adjusted the accumulation of sentences, reducing the total term to 10.5 years with a non-parole period of 6.5 years.

Parity with Obierzinski: The Court dismissed this ground. It acknowledged that comparing sentences across different jurisdictions requires considerable caution, as the Children's Court operates under a different sentencing regime. Beyond that, the Court identified meaningful differences between the two offenders: Obierzinski did not have additional charges on Form 1 documents, and he had suffered a brain injury from a motor vehicle accident that constituted significant ongoing mental impairment, an important mitigating factor in his case. The Court was not satisfied the applicant had a justifiable sense of grievance.

Procedural error under s 45: The sentencing judge had imposed fixed terms for offences (2) and (3) without setting non-parole periods. The Court found this was an error. Those sentences were quashed and replaced with sentences that included both a non-parole period and a balance of term, as required by the legislation.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence for offence (1) (armed robbery) confirmed.
  • Sentence for offence (2) (aggravated break enter and steal, Meadowbank convenience store) quashed and replaced: non-parole period of 3 years commencing 17 January 2007, expiring 16 January 2010; balance of term of 1 year expiring 16 January 2011.
  • Sentence for offence (3) (aggravated break enter and steal, P&O Ports, Balmain) quashed and replaced: non-parole period of 3 years and 6 months commencing 17 July 2008, expiring 16 January 2012; balance of term of 1 year and 6 months expiring 16 July 2013.
  • Sentence for offence (4) (aggravated break enter and steal, Meadowbank TAFE) quashed and replaced: non-parole period of 4 years commencing 17 July 2008, expiring 16 July 2012; balance of term of 4 years expiring 16 July 2016.

Key Takeaways

  • The totality principle requires that accumulated sentences be proportionate to the offender's overall criminality. Even where individual sentences are not themselves excessive, the aggregate may be, and a court on appeal may intervene to adjust the extent of accumulation accordingly.
  • Parity arguments based on a co-offender's sentence in the Children's Court face a high threshold. The Court of Criminal Appeal confirmed that the Children's Court operates under a distinct sentencing regime, and comparisons with adult sentences must be made with considerable caution.
  • Differences in subjective circumstances between co-offenders, such as the presence of a serious ongoing cognitive impairment, can justify a marked disparity in sentences without generating a justifiable sense of grievance in the co-offender sentenced more heavily.
  • Under s 45 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court imposing a term of imprisonment must set a non-parole period. Imposing a fixed term without doing so is a legal error requiring resentencing.
  • Form 1 charges (additional matters taken into account without conviction) are a relevant distinction when comparing sentences between co-offenders on a parity argument.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45

Cases:
- Attorney General's Application Number 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Marshall v R [2007] NSWCCA 24
- Mulato v Regina [2006] NSWCCA 282
- Pearce v The Queen (1998) 194 CLR 610
- R v Colgan [1999] NSWCCA 292
- R v Govinden [1999] NSWCCA 118
- R v Way (2004) 60 NSWLR 168