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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: NSW Court of Criminal Appeal
Date: 11 February 2009
Judges: Grove J, Blanch J, Kirby J

Background

The applicant, a young Aboriginal man aged sixteen at the time of the offence, pleaded guilty to robbery in company with wounding under s 98 of the Crimes Act 1900. The offence occurred in Dubbo in April 2005, when he and a co-offender targeted a 63-year-old pizza delivery driver at a false delivery address. The applicant struck the victim with a metal bar and took his mobile phone; the co-offender stabbed the victim in the thigh, severing three arteries.

At sentencing in the Dubbo District Court in November 2006, the applicant received a non-parole period of three years and six months with a balance of term of three years and six months. The sentencing judge recommended but did not formally direct that the sentence be served in a Juvenile Justice institution.

The applicant appealed on two grounds: first, that his sentence was disproportionately higher than the sentence later imposed on his co-offender by the same judge, creating a parity problem; and second, that the sentence was manifestly excessive.

  • Whether the disparity between the applicant's sentence and the co-offender's sentence gave rise to a legitimate sense of grievance, warranting appellate intervention on parity grounds.
  • Whether the sentence of seven years total (three and a half years non-parole) was manifestly excessive for a juvenile offender convicted of robbery in company with wounding.
  • Whether the sentencing court erred in failing to formally direct that the sentence be served in a Juvenile Justice institution, as provided under the Children (Criminal Proceedings) Act 1987.

Decision

The Court of Criminal Appeal dismissed the manifestly excessive ground. The offence carried a standard non-parole period of seven years, and the sentencing judge had correctly categorised it as falling in the upper range of seriousness. Even for a juvenile, a total term of seven years with a non-parole period of three and a half years was within the appropriate range, particularly given the victim's vulnerability as an aggravating factor.

The Court accepted the parity argument. The co-offender, who was six months older and had a more serious criminal record including a prior robbery, received a shorter sentence overall: a non-parole period of three years and two months and a total term eight months less than the applicant's. Critically, the co-offender had stabbed the victim, denied involvement initially, and did not plead guilty until after committal. By contrast, the applicant made full admissions on arrest, named the co-offender, offered to give evidence, expressed remorse, and pleaded guilty at the earliest opportunity. The Court found those factors clearly favoured the applicant and could not justify treating the co-offender more leniently.

A psychiatric report tendered on appeal diagnosed the applicant as probably suffering from schizophrenia at the time of the offence, and disclosed a history of auditory hallucinations and paranoia from age twelve. However, the applicant himself told the psychiatrist that he had not experienced symptoms during the offence and had acted to obtain money for drugs and alcohol. The Court concluded that the psychiatric evidence did not justify a sentence more lenient than the co-offender's.

The Court also found the sentencing judge erred in failing to make a formal direction under the Children (Criminal Proceedings) Act 1987 that the sentence be served in a Juvenile Justice institution. That error, combined with the parity problem, required the Court to re-sentence the applicant.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences 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, and 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 meaningful sentencing disparity in favour of a co-offender who had a more serious criminal record, denied involvement, and pleaded guilty at a later stage can constitute a legitimate grievance sufficient to ground a successful parity appeal.
  • The Court of Criminal Appeal confirmed that, even where the total sentence is within the appropriate range, a failure to formally direct juvenile detention under the Children (Criminal Proceedings) Act 1987 is a distinct sentencing error that can independently attract appellate intervention.
  • Where a co-offender actually inflicted the more serious physical injury and demonstrated less cooperation with authorities, a heavier sentence on the other participant is difficult to justify on parity grounds.
  • Psychiatric evidence tendered on appeal, though not before the sentencing judge, may still be considered on re-sentencing, but its weight depends on the offender's own account of his mental state 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 Justice institution can be overridden by the Director General where the detainee is aged sixteen or older.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 98 (robbery in company with wounding; maximum penalty 25 years; standard non-parole period 7 years)
- Children (Criminal Proceedings) Act 1987 (NSW), s 19(1)
- Children (Detention Centres) Act 1987 (NSW), s 28 (as amended July 2008)

Cases:
No cases were cited in the portion of the judgment provided.