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Court of Criminal Appeal 11 February 2009

PMW v R

[2009] NSWCCA 34

Assault & violenceTheft & property
CRIMINAL LAW ROBBERY IN COMPANY WITH WOUNDING PARITY OF SENTENCE

Citation: PMW v R [2009] NSWCCA 34
Court: Court of Criminal Appeal
Date: 11 February 2009
Judge(s): Grove J, Blanch J, Kirby J

Background

The applicant, a young Aboriginal man who was sixteen at the time of the offence and seventeen at sentencing, pleaded guilty in the Dubbo District Court to robbery in company with wounding under s 98 of the Crimes Act 1900. The offence involved a staged pizza delivery, a violent attack on a sixty-three-year-old driver using a metal bar, a stabbing by the co-offender, and the theft of the victim's mobile phone. The victim required surgery to repair three severed arteries and later suffered depression and anxiety.

The applicant was sentenced to a non-parole period of three years and six months, with a balance of term of three years and six months, commencing 8 June 2006. His co-offender, sentenced by the same judge some months later, received a total sentence eight months shorter and a non-parole period four months shorter.

The applicant sought leave to appeal, arguing that the disparity between his sentence and his co-offender's left him with a legitimate sense of grievance, and separately that his sentence was manifestly excessive.

Legal Issues

  • Whether the difference in sentence between the applicant and his co-offender gave rise to a parity ground warranting appellate intervention
  • Whether the original sentence was manifestly excessive, having regard to the applicant's age, background, and mental health
  • Whether a formal direction to serve the sentence in a Juvenile Justice institution should have been made

Decision

Ground 1: Parity

The Court accepted that a legitimate sense of grievance arose from the sentencing disparity. Several factors favoured the applicant over the co-offender: he was six months younger, he made full admissions upon arrest and nominated his co-offender, he offered to give evidence, he expressed remorse, and he pleaded guilty at the earliest opportunity. The co-offender, by contrast, initially denied involvement and did not plead guilty until after committal to the District Court.

Blanch J also noted that it was the co-offender who inflicted the stabbing that constituted the wounding element of the offence. The Court found no justification for treating the co-offender more leniently and concluded the disparity required correction. A psychiatric report placed before the Court of Criminal Appeal, diagnosing probable schizophrenia at the time of the offence, was noted but did not, in the Court's view, warrant a sentence more lenient than that imposed on the co-offender.

Ground 2: Manifest Excess

The Court rejected this ground. Given the standard non-parole period of seven years and the sentencing judge's correct categorisation of the offence as falling in the upper range of seriousness, a total term of seven years with a three-and-a-half-year non-parole period was within the appropriate range, even for a juvenile. The victim's vulnerability was a properly identified aggravating factor.

Juvenile Justice Direction

The Court found that the sentencing judge should have made a formal direction under the Children (Criminal Proceedings) Act 1987 for the sentence to be served in a Juvenile Justice institution, rather than merely recommending it. This error, together with the parity finding, required the Court to re-sentence.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • Applicant re-sentenced to a non-parole period of 2 years and 9 months, dating from 8 June 2006, with a balance of term of 2 years and 9 months
  • Direction made that the sentence be served in a Juvenile Justice institution
  • Applicant eligible for release to parole on 7 March 2009

Key Takeaways

  • A difference in sentence between co-offenders accused of the same offence can constitute a parity ground for appeal where the more heavily sentenced offender has stronger mitigating factors, including an early guilty plea, full cooperation with police, and a lesser role in the violence.
  • Where a sentencing judge intended a juvenile offender to serve their sentence in a Juvenile Justice institution, a formal statutory direction is required under the Children (Criminal Proceedings) Act 1987; a mere recommendation is insufficient.
  • The Court of Criminal Appeal confirmed that a total sentence of seven years for robbery in company with wounding under s 98 of the Crimes Act 1900 was not manifestly excessive for a juvenile offender, where the offence fell in the upper range of seriousness and the victim's vulnerability was properly treated as an aggravating factor.
  • Psychiatric evidence placed before an appellate court on re-sentencing did not automatically justify a reduction below the sentence imposed on a co-offender, particularly where the offender's own account denied that mental health symptoms affected his conduct at the time of the offence.
  • Under s 28 of the Children (Detention Centres) Act 1987 (as amended in July 2008), a direction to serve a sentence in a juvenile institution may be overridden by the Director General of the Department of Juvenile Services once a detainee reaches or exceeds the age of sixteen.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated