Citation: R v Walton; R v Scorah [2009] NSWCCA 243
Court: NSW Court of Criminal Appeal
Date: 22 September 2009
Judge(s): Young JA, Johnson J, Latham J
Background
Two adult co-offenders sought leave to appeal against sentences imposed in the District Court following their conviction at trial for a series of offences committed on 2 December 2006 at railway stations near Wollongong. The offences involved stealing money from a 15-year-old at Bellambi station (steal from the person), throwing a milk crate at a woman on the platform (affray, applicable to Walton only), and robbing a young man of his bicycle, bag, watch and iPod at Corrimal station (robbery in company). All offences were captured at least in part on closed-circuit television.
The first applicant, Walton, received an aggregate sentence of 7 years and 5 months with a non-parole period of 4 years and 5 months. The second applicant, Scorah, received an aggregate non-parole period of 4 years with a balance of term of 2 years. A juvenile co-offender, Walton's younger brother (AW), had been dealt with in the Children's Court and received concurrent 2-year good behaviour bonds for the same steal from the person and robbery in company offences.
The applicants argued their sentences were manifestly excessive both individually and collectively, and that parity principles required some alignment with the far lighter outcome received by the juvenile co-offender.
Legal Issues
- Whether the sentences imposed on each applicant were manifestly excessive, individually and in aggregate.
- Whether parity principles applied so as to require closer alignment with the sentence imposed on the juvenile co-offender in the Children's Court.
- Whether partial accumulation of the sentences was warranted where the offences were committed against separate victims.
- Whether sufficient differentiation existed between the sentences of the two adult applicants, given their differing levels of involvement.
Decision
Manifest excess: The Court of Criminal Appeal found no error in the sentencing judge's approach. The offences were committed in public spaces on a Saturday afternoon, against multiple victims who were simply going about their business at railway stations. The CCTV footage, which the Court of Criminal Appeal itself watched during the hearing, reinforced the objective gravity of the offending. The Court agreed with the sentencing judge that commission of offences in these public settings aggravated their seriousness.
Parity with the juvenile co-offender: The Court rejected the parity argument. The sentencing framework applicable in the Children's Court differs fundamentally from that governing adult offenders, placing primary emphasis on rehabilitation rather than punishment, deterrence or community protection. A marked disparity in outcome between an adult and a juvenile sentenced under a different legislative regime does not, without more, constitute a justifiable sense of grievance of the kind that activates parity principles. The Court acknowledged prior authority to similar effect and declined to extend parity reasoning across those different frameworks.
Partial accumulation: The Court confirmed that partial accumulation of sentences was appropriate where, as here, the offences were committed against different victims. Each victim's experience was distinct, and concurrent sentences would have inadequately reflected the totality of the criminal conduct.
Differentiation between the two applicants: The Court accepted that Walton's role was more serious than Scorah's. However, it found that the sentencing judge had explicitly recognised the distinction and that a sentence of 5 years for robbery in company was well within the proper exercise of the sentencing discretion for Scorah, particularly given his commission of the offence while on conditional liberty and the absence of any utilitarian benefit from a guilty plea.
Orders Made
- Leave to appeal granted to both Carl Walton and Kevin Scorah.
- Appeals dismissed in both cases.
Key Takeaways
- Parity principles do not compel alignment between sentences imposed on adult offenders and those received by juvenile co-offenders dealt with under the Children's Court regime, because the legislative framework and sentencing objectives differ materially between the two systems.
- Partial accumulation of sentences is warranted where offences are committed against separate victims, as concurrent sentences would fail to reflect the full extent of the criminal conduct.
- A participant in a joint criminal enterprise who plays a supporting role, rather than the most active role, is not automatically entitled to a substantially lighter sentence. The combined force of co-offenders acting in concert is itself a feature that justifies significant penalties across participants.
- In dismissing Scorah's appeal, the Court of Criminal Appeal confirmed that some differentiation in sentence between co-offenders in a joint criminal enterprise may be appropriate, but the degree of differentiation remains a matter within the sentencing judge's discretion.
- Commission of offences in public places such as railway stations, where the public has a reasonable expectation of safety, is a recognised aggravating factor in assessing objective gravity.
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Ersman v R [2007] NSWCCA 161
- R v Tran [2004] NSWCCA 6
- R v Boney [2001] NSWCCA 432
- R v Palmer [2005] NSWCCA 349
- R v Cage [2006] NSWCCA 304
- R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Cahyadi v R [2007] NSWCCA 1
- Regina v Dunn [2004] NSWCCA 41
- R v KM [2004] NSWCCA 65
- R v Wilson [2005] NSWCCA 219
- R v XX [2009] NSWCCA 115
- R v Goundar [2001] NSWCCA 198; 127 A Crim R 331
- R v Mitchell & Gallagher [2007] NSWCCA 296; 177 A Crim R 94
- R v Wright [2009] NSWCCA 3