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Court of Criminal Appeal 16 September 2009

Lau v R

[2009] NSWCCA 237

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE ROBBERY IN COMPANY GUILTY PLEA WHETHER PARITY OF SENTENCE WITH CO

Citation: Lau v R [2009] NSWCCA 237
Court: NSW Court of Criminal Appeal
Date: 16 September 2009
Judges: Young JA; Johnson J; Latham J

Background

The applicant pleaded guilty to robbery in company under s 97 of the Crimes Act 1900 and was sentenced in the Parramatta District Court. The offence occurred in broad daylight, near the Campsie Police Station, where the applicant and a co-offender robbed a victim of his wallet and a gold chain. The applicant removed the wallet while the co-offender physically restrained the struggling victim.

The co-offender contested the charge, was convicted by a jury, and was subsequently sentenced by a different District Court judge. The applicant was sentenced first, receiving a non-parole period of two and a half years with a total term of four years and six months. The co-offender received a non-parole period of two and a half years with a total term of four years and nine months.

The applicant sought leave to appeal, arguing that he had a justifiable sense of grievance because the disparity between the two sentences effectively denied him any credit for his early guilty plea.

  • Whether the applicant's sentence was infected by impermissible disparity when compared with the sentence imposed on his co-offender, who was convicted after a not-guilty plea
  • Whether the applicant's early guilty plea had been given proper weight in the sentencing exercise
  • Whether a reasonable mind, looking at the overall circumstances, would regard the applicant's sense of grievance as justified

Decision

The Court granted leave to appeal but unanimously dismissed the appeal. Young JA found that, absent any parity concern, the sentence imposed on the applicant was entirely within the accepted range for the offence and disclosed no error. The maximum penalty for robbery in company is 20 years imprisonment, and the sentencing judge had appropriately discounted the starting point of six years by 25 percent to reflect the early guilty plea.

On the parity argument, the Court applied the objective test from R v Pan: the question is not whether the applicant subjectively feels aggrieved, but whether a reasonable mind, surveying the overall position, would regard that grievance as justified. The Court found it would not. While the applicant had entered an early guilty plea, his criminal history was significantly more serious than the co-offender's, including a 2001 conviction for assault, and this offence was committed within eight months of a good behaviour bond being imposed.

Johnson and Latham JJ added that reducing the applicant's sentence would produce a result disproportionate to the objective and subjective criminality involved. They also noted that some of the favourable findings made by the sentencing judge at first instance had been generous to the applicant, particularly the characterisation of his role as lesser than the co-offender's, given that the co-offender's physical restraint of the victim was necessary to enable the applicant to steal the wallet.

The Court further observed that appellate courts are reluctant to reduce a sentence that is proper in itself merely because of a potentially inadequate sentence passed on a co-offender. The sentencing judge for the co-offender had expressly acknowledged the parity issue and adjusted that sentence upward accordingly, which narrowed any meaningful disparity.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The parity principle requires an objective assessment: a sense of grievance must be one that a reasonable mind, looking at all the circumstances, would regard as justified, not merely one felt by the offender.
  • A guilty plea is one factor in the sentencing mix, but a more serious prior criminal history can legitimately offset the discount that a plea would otherwise generate relative to a co-offender's sentence.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed its reluctance to reduce a sentence that is proper in itself simply because a co-offender may have received an inadequate sentence.
  • Different starting points for co-offenders are permissible where the offenders have materially different criminal histories, even where both participated in the same offence.
  • Where a sentencing judge for a co-offender expressly adjusts that co-offender's sentence upward to address parity concerns, this reduces the scope for a successful parity argument by the first-sentenced offender.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97 (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bonds)

Cases
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Jones v The Queen (1993) 67 ALJR 376
- R v Pan [2005] NSWCCA 114
- Charlesworth v R [2009] NSWCCA 27
- DGM v R [2006] NSWCCA 296
- Postiglione v The Queen (1997) 189 CLR 295