Citation: England v R; Phanith v R [2009] NSWCCA 274
Court: New South Wales Court of Criminal Appeal
Date: 11 November 2009
Judge(s): McClellan CJ at CL, Howie J, Fullerton J
Background
Two applicants, a woman and her then-partner, were sentenced in the District Court for robbery in company arising from a home invasion at Rosemeadow on 10 November 2006. The offending involved a sustained and violent attack on a family in their home: victims were assaulted, bound with tape, threatened with a knife, and had significant property stolen over approximately forty minutes. Both applicants played active roles throughout the incident, despite being present and aware of the escalating violence.
The female applicant (England) was sentenced by Sides DCJ on 19 May 2008 across multiple offences, including a second robbery in company committed one week later, two aggravated break-and-enter matters, and Form 1 offences. She received a total term of 8 years 6 months with a non-parole period of 4 years 6 months. Her co-offender and former partner (Phanith) was sentenced separately by King DCJ on 24 October 2008 for the November 10 robbery, with seven matters on his Form 1, including four offences of unlawfully detaining the victims. He received a non-parole period of 4 years 6 months with a parole period of 18 months.
Both applicants sought leave to appeal their sentences in the Court of Criminal Appeal, raising questions of factual error, parity between co-offenders, and whether the sentences imposed were excessive.
Legal Issues
- Whether King DCJ erred in his fact-finding when sentencing Phanith
- Whether Phanith's sentence was excessive having regard to his subjective circumstances
- Whether there was an unjustified disparity between the sentences imposed on Phanith and England, such that the parity principle required intervention
- Whether England's sentence was excessive, including in the context of any disparity with Phanith's sentence
- Whether the accumulation of England's sentences for the two separate robbery offences was appropriate
Decision
The Court dismissed both appeals, granting leave to appeal in England's case and an extension of time in Phanith's case, but finding no error warranting intervention in either sentence.
On Phanith's appeal, Howie J concluded that any factual errors in the sentencing judge's findings were not material to the outcome. The Form 1 offences were particularly weighty: four counts of unlawful detention each carried a maximum of 20 years, requiring a significant upward adjustment to the sentence for the principal robbery. Given Phanith's criminal history, his commission of the offence while on parole, his breach of reporting conditions, and his limited prospects of rehabilitation, the sentence was not excessive.
On the parity question, Howie J noted that King DCJ was aware of England's sentence when sentencing Phanith and expressly applied the parity principle. The Court emphasised that some disparity between co-offenders is inevitable, and appellate courts should respect the sentencing discretion of trial judges unless the disparity is manifest, glaring, or gross. No such disparity was established here, given that both applicants had materially comparable circumstances: both were drug-dependent, both had Form 1 offences of a similar character, and both had offended while on conditional liberty.
On England's appeal, the Court found that even if her sentence for the first robbery were reduced, it would make no practical difference to the overall effective sentence because the accumulation ordered between the two robbery sentences was already very lenient. The non-parole period could not, in the Court's view, have been reduced in any event.
Orders Made
- Applicant England: leave to appeal granted; appeal dismissed
- Applicant Phanith: extension of time to apply for leave to appeal granted; appeal dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that parity between co-offenders does not require identical sentences; some disparity is inevitable and must be tolerated out of respect for each sentencing judge's discretion.
- Intervention on parity grounds is warranted only where the disparity is manifest, glaring, or gross. The Court expressly cautioned against appellate courts intervening to address disparities that do not meet that threshold.
- Where a sentencing judge is aware of a co-offender's sentence and expressly applies the parity principle, the appellate court will give significant weight to that exercise of discretion.
- Form 1 offences carrying maximum penalties comparable to the principal offence require meaningful upward adjustment to the sentence for that principal offence, particularly where the Form 1 matters are numerous or involve distinct criminality.
- A sentence reduction on one component of a total sentence will not result in a successful appeal if it would make no practical difference to the overall effective sentence or the non-parole period.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 86(2)(a), 97(1)
- Criminal Procedure Act 1986 (NSW), s 166
Cases:
- R v Henry (1999) 46 NSWLR 346
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v Taudevin [1996] 2 VR 402