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Court of Criminal Appeal 13 February 2009

HA v REGINA

[2009] NSWCCA 31

Theft & property
CRIMINAL LAW SENTENCE APPEAL BREAK, ENTER WITH INTENT TO STEAL PARITY WITH CO OFFENDER SENTENCED IN LOCAL COURT MANIFEST INADEQUACY

Citation: HA v Regina [2009] NSWCCA 31
Court: NSW Court of Criminal Appeal
Date: 13 February 2009
Judge(s): Grove J, Blanch J, Latham J (Latham J delivered the principal judgment; Grove and Blanch JJ agreed)

Background

The applicant pleaded guilty on the first day of trial to Breaking and Entering with Intent to Steal under s 113(1) of the Crimes Act 1900, having maintained a not guilty plea until that point. The offence involved breaking into a garage beneath a Marrickville unit complex at 1:30am using a crowbar, with police apprehending the applicant at the scene. His Honour Judge Nield of the District Court sentenced the applicant to a non-parole period of 15 months with a balance of term of 5 months, applying a 15% discount for the utilitarian value of the late guilty plea.

The applicant's co-offender had been dealt with separately in the Local Court, receiving a six-month sentence of imprisonment following an early guilty plea and admissions to police upon arrest. That sentence was subsequently suspended on the co-offender's severity appeal to the District Court.

The applicant sought leave to appeal on the sole ground that the disparity between his sentence and the co-offender's ultimately suspended sentence gave rise to a justifiable sense of grievance, engaging the parity principle in sentencing.

  • Whether the disparity between the applicant's sentence and the co-offender's suspended sentence gave rise to a justifiable sense of grievance warranting appellate intervention under the parity principle.
  • Whether a sentencing court, or an appellate court, may properly decline to reduce an otherwise appropriate sentence in order to achieve parity with a co-offender's sentence that is manifestly inadequate.
  • Whether the Judge's exercise of discretion in declining to give parity effect to the co-offender's outcome had miscarried.

Decision

Latham J, with whom Grove and Blanch JJ agreed, confirmed that while the magistrate's original six-month sentence fell within an appropriate range, the subsequent suspension of that sentence on appeal rendered the co-offender's ultimate penalty manifestly inadequate. The applicant himself did not contend that his own sentence was manifestly excessive or that the sentencing judge had fallen into error.

The Court applied principles drawn from R v Doan [2000] NSWCCA 317 and R v Wei Pan [2005] NSWCCA 114, which establish that any decision to reduce an otherwise appropriate sentence in the interests of parity is discretionary. Crucially, where a co-offender's sentence is so inadequate that the sense of grievance it engenders can no longer be regarded as legitimate, appellate intervention is not warranted.

Latham J identified several features distinguishing the applicant from his co-offender, including the applicant's late guilty plea (contrasted with the co-offender's early plea and admissions), his criminal history of seven Break, Enter and Steal convictions since 1993, and the fact that he committed the offence within seven months of completing a four-year sentence for a drug supply offence. The Probation and Parole report also described the applicant's account of his personal circumstances as "discrepant."

On these facts, the Court concluded that any reduction in the applicant's sentence would produce a result disproportionate to his criminality, and that the sentencing judge's exercise of discretion had not miscarried. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle in sentencing is discretionary: an appellate court is not required to reduce an appropriate sentence merely because a co-offender received a lesser, inadequate one.
  • Where a co-offender's sentence is so manifestly inadequate that the resulting sense of grievance can no longer be regarded as legitimate, that grievance does not warrant intervention by an appellate court.
  • Sufficient differences existed between the applicant and his co-offender, including the timing of the plea, the extent of relevant criminal history, and the proximity of the offence to the conclusion of a prior sentence, to justify a more substantial sentence for the applicant.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that reducing an otherwise proper sentence to match an inadequate co-offender outcome would simply compound the original sentencing error.
  • A discount for the utilitarian value of a guilty plea reflects the timing and circumstances of that plea; a plea entered only on the first day of trial may attract only limited credit, as the 15% discount here was described as generous.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 113(1) (Breaking and Entering with Intent to Steal; maximum penalty 10 years imprisonment)

Cases
- R v Doan [2000] NSWCCA 317
- R v Wei Pan [2005] NSWCCA 114
- Melikian v R [2008] NSWCCA 156
- Lowe v The Queen (1984) 154 CLR 606 (referenced in quoted passages from Doan)
- R v Diamond (Court of Criminal Appeal, 18 February 1993, unreported) (referenced in quoted passages)
- R v Boney [2001] NSWCCA 432 (referenced in quoted passages)
- R v Stroud (1977) 65 Cr App R 150 (referenced in quoted passages)