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9
Court of Criminal Appeal 25 February 2009

Charlesworth v Regina

[2009] NSWCCA 27

Also reported as (2009) 193 A Crim R 300
Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST CONVICTION AND SENTENCE JOINT CRIMINAL ENTERPRISE TO ROB AID AND ABET DETAIN FOR ADVANTAGE PARITY WITH SENTENCES FOR CO OFFENDERS.

Citation: Charlesworth v Regina [2009] NSWCCA 27
Court: NSW Court of Criminal Appeal
Date: 25 February 2009
Judge(s): Allsop P, Kirby J, Hall J

Background

The appellant pleaded guilty in the District Court to two offences arising from events on 25 and 26 March 2006 near Wyong, NSW. The first was aggravated robbery under s 95 of the Crimes Act 1900, involving the robbery of a victim (referred to as JC) with actual bodily harm. The second was aiding and abetting a co-offender, Lindsay Hearn, in the aggravated detention of JC for advantage under s 86(2) of the same Act.

The offences were committed as part of a joint criminal enterprise involving the appellant, Hearn, and a third offender, Brett Molloy. The agreed facts described the three men following JC's vehicle along the F3 Freeway, inducing him to stop, and then committing the offences. The appellant was described as the least culpable of the three.

At first instance, O'Connor DCJ sentenced the appellant to a total of seven years imprisonment with a non-parole period of five years. On appeal, the appellant challenged both the conviction and the sentence.

  • Whether the agreed facts, as admitted on the guilty plea, were capable in law of supporting the two charges as framed on the indictment.
  • Whether the appellant had a justifiable sense of grievance arising from a sentencing disparity with co-offenders Hearn and Molloy.
  • Whether the sentences imposed were manifestly excessive.

Decision

Conviction appeal: The Court dismissed the appeal against conviction. The single ground of appeal was that the admitted facts could not, as a matter of law, support the charges. The Court rejected this argument, finding that the agreed facts were capable of sustaining both the aggravated robbery charge and the charge of aiding and abetting aggravated detention for advantage.

Sentence appeal (parity): The Court granted leave to appeal against sentence and allowed the appeal. A central difficulty in the parity analysis was the significant difference between the indictments presented against each co-offender. Count 1 in Molloy's indictment was a materially less serious charge than the aggravated robbery charge faced by the appellant, making direct comparison between sentences complex. Molloy also had a Form 1 offence (destruction of the vehicle by fire to conceal evidence) taken into account at sentence, which further complicated comparison.

Resentencing: In resentencing the appellant, the Court adopted the sentencing judge's 50 per cent discount for the early guilty plea and assistance provided. It also adopted findings of good prospects of rehabilitation and the existence of special circumstances. The Court reduced the total effective sentence, noting the appellant had made productive use of his time in custody, including participation in an alcohol and drug recovery programme and completion of vocational courses.

Orders Made

  • Appeal against conviction dismissed.
  • Application for leave to appeal against sentence granted.
  • Appeal against sentence allowed.
  • Sentences imposed by O'Connor DCJ on 4 May 2007 quashed and replaced as follows:
  • Count 1: Non-parole period of 2 years commencing 6 April 2006, expiring 5 April 2008; balance of term of 2 years expiring 5 April 2010.
  • Count 2: Non-parole period of 2 years commencing 6 April 2007, expiring 5 April 2009; balance of term of 2 years expiring 5 April 2011.
  • First eligible parole date: 6 April 2009.

Key Takeaways

  • A guilty plea to charges arising from a joint criminal enterprise does not automatically foreclose a conviction appeal: the Court of Criminal Appeal will examine whether the admitted facts are legally capable of supporting the charges as framed on the indictment.
  • Where co-offenders face materially different charges, direct sentence comparison for parity purposes is inherently difficult, and sentencing courts must approach such comparisons carefully rather than treating overall culpability rankings as determinative.
  • A justifiable sense of grievance sufficient to ground a parity appeal can arise even where differences in indictments make strict comparison complex, provided the sentencing disparity is not adequately explained by those differences.
  • Post-sentence conduct, including rehabilitation efforts and productive use of time in custody, can be relevant material on resentencing by an appellate court.
  • In dismissing the conviction appeal but allowing the sentence appeal, the Court confirmed that these two grounds operate independently: a valid guilty plea may stand even while the sentence imposed upon it is set aside as infected by appealable error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(2), 95
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v O'Neill [1979] 2 NSWLR 582
- R v Sagiv (1986) 22 A Crim R 73
- Liberti (1991) 55 A Crim R 120
- Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
- Tangye (1997) 92 A Crim R 545
- Stokes and Difford (1990) 51 A Crim R 25
- Giorgianni v Regina (1985) 156 CLR 473
- Davis v Regina [2006] NSWCCA 392
- R v Reid [1973] QB 299
- R v Campbell and Brennan [1981] Qd R 516
- R v MAK; MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- SZ v Regina [2007] NSWCCA 19; (2007) 164 A Crim R 249
- MacDonald v Regina [2007] NSWCCA 105