Citation: Anthony John Priest v R [2009] NSWCCA 33
Court: NSW Court of Criminal Appeal
Date: 19 February 2009
Judges: McClellan CJ at CL, James J, Buddin J
Background
The applicant pleaded guilty in the District Court to one count of aggravated robbery involving the infliction of actual bodily harm, an offence carrying a maximum penalty of 20 years imprisonment. The offence arose from a planned attack on a victim in bushland near Kempsey, during which the applicant and his co-offender assaulted the victim, stole his wallet containing $800, and demanded his bank PIN. The victim suffered a fractured rib, facial abrasions, and bruising.
The applicant was sentenced to a non-parole period of 2 years with a total term of 4 years. His co-offender, sentenced earlier by a different judge for the same offences, had received a non-parole period of 18 months with a total term of 3 years, including a substantial discount for agreeing to assist authorities.
The sentencing judge, when considering parity between the two offenders, worked from an assumption about the co-offender's sentence structure that was inaccurate. This assumption had been provided by the Crown and went uncorrected at the time of sentencing.
Legal Issues
- Whether the applicant had a legitimate sense of grievance arising from a disparity between his sentence and that of his co-offender in circumstances where both played equivalent roles in the offending
- Whether the sentencing judge's reliance on inaccurate Crown information about the co-offender's sentence constituted an error warranting appellate intervention and resentencing
Decision
The sentencing judge had intended to impose a sentence on the same basis as the co-offender's, adjusting only for the absence of the assistance discount. To achieve that, his Honour assumed the co-offender's starting point had been 5 years imprisonment before a 20% discount was applied, producing a sentence of 4 years. That assumption was wrong.
In fact, the co-offender's starting point was 4 years imprisonment, to which an overall 25% discount was applied, yielding the 3-year total sentence. The Crown conceded in the appeal that the information it had provided to the sentencing judge was inaccurate and that resentencing was the appropriate course.
The Court of Criminal Appeal accepted that the sentencing judge's reasoning was infected by this error, even though the error was not of his Honour's making. Consistent with the sentencing judge's stated intention, the Court applied a starting point of 4 years and applied a discount for the applicant's guilty plea at the lower end of the accepted range (10 to 25%), resulting in a total sentence of 3 years and 4 months, with a non-parole period of 1 year and 8 months.
The Court also noted, in the course of resentencing, affidavit evidence indicating the applicant had been spending his time in custody productively and taking steps towards rehabilitation, lending some optimism to his prospects.
Orders Made
- Leave to appeal granted
- Appeal allowed
- Sentence imposed in the District Court quashed
- Applicant resentenced to a non-parole period of 1 year 8 months, with a total term of imprisonment of 3 years 4 months, both terms commencing 14 November 2007
- Total term to expire 13 March 2011; applicant eligible for parole on 13 July 2009
Key Takeaways
- A sentencing court's parity assessment is infected by error where it is premised on materially inaccurate information about a co-offender's sentence, even when that information was provided by the Crown without challenge at the time.
- The Court of Criminal Appeal confirmed that where a sentencing judge's intentions are clear but the outcome was distorted by factual error, the appellate court can give effect to those intentions when resentencing.
- Parity principles require that co-offenders who played equivalent roles in a joint enterprise receive sentences that do not produce an unjustified sense of grievance, absent objective differences in criminality or subjective circumstances warranting differentiation.
- In applying a guilty plea discount, the Court treated the timing of the plea (indicated some weeks before trial) as placing the discount towards the lower end of the 10 to 25% range established in the guideline judgment of R v Thomson and Houlton.
- Where the Crown concedes on appeal that it provided inaccurate sentencing information below, and that resentencing is appropriate, the Court of Criminal Appeal will ordinarily act on that concession where it is properly made.
Legislation and Cases Referenced
Legislation:
- No specific legislation cited in the decision text (the offence of aggravated robbery with actual bodily harm carries a maximum of 20 years imprisonment under the relevant Crimes Act provision)
Cases:
- R v Thomson and Houlton (guideline judgment on guilty plea discounts, referenced by the sentencing judge and the Court of Criminal Appeal)