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Court of Criminal Appeal 11 February 2009

COLEMAN v REGINA

[2009] NSWCCA 7

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE GROUNDS FOR INTERFERENCE WHETHER DISPARITY IN SENTENCES BETWEEN CO OFFENDERS

Citation: Coleman v Regina [2009] NSWCCA 7
Court: NSW Court of Criminal Appeal
Date: 11 February 2009
Judges: Tobias JA, Kirby J, Hall J

Background

The appellant was sentenced in the District Court in May 2007 for two counts of maliciously damaging property by fire, committed in August 1998 and October 1999 when he was aged 19 and 20 respectively. His role across both offences was peripheral: he drove his father to the scene of the first fire and assisted him onto the roof of the building, and acted as a lookout for the second fire and a related matter taken into account on a Form 1. He played no part in planning or organising any of the offences. The total effective sentence imposed was five years' imprisonment with a non-parole period of two and a half years.

The appellant's father, who had actually set both fires, was sentenced separately by a different District Court judge in September 2007. The father faced four counts of malicious damage by fire in total, two of which overlapped with the appellant's offences. His overall effective sentence was five and a half years with a non-parole period of three and a half years.

The appellant contended that, when comparing the sentences for the overlapping offences, the gap between his sentence and his father's was unjustifiably small, giving rise to a justifiable sense of grievance. He sought leave to appeal on the ground that the disparity produced an appearance that justice had not been done.

  • Whether the disparity between the appellant's sentence and that of his co-offender father was sufficient to give rise to a justifiable sense of grievance, thereby engaging the parity principle.
  • Whether the overall sentencing outcome was appropriate, having regard to the different roles and circumstances of each offender.
  • Whether, even if a ground of appeal were established, intervention by the appellate court was warranted given the gravity and repeated nature of the offences.

Decision

The Court of Criminal Appeal found that the parity principle was not engaged in a manner warranting intervention. The parity principle requires that like be treated alike, but that relevant differences between co-offenders be given due weight. Those differences include the part each played in the offences and their respective subjective circumstances.

Hall J, with whom Tobias JA and Kirby J agreed, emphasised that the father's objective criminality was of a significantly higher order. The father was the principal offender who planned and executed the fires across multiple premises over an extended period, accumulating four counts compared to the appellant's two. When sentences for the overlapping counts were compared on a notional basis, the difference in non-parole periods was only six months, a margin the Court found was justifiable given the disparity in culpability.

The Court also applied the principle of appellate restraint, noting that sentencing cannot be reduced to a precise mathematical exercise and that room must be left for individual assessment by the sentencing judge. The test for a justifiable sense of grievance is objective: a reasonable person looking at all the circumstances must regard the grievance as justified. The Court was not satisfied that test was met.

Hall J added that even had the ground of appeal been established, the gravity and repeated nature of the offences would have meant no lesser sentence was warranted under s 6(3) of the Criminal Appeal Act 1912.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle requires equal treatment of like cases, but mandates that relevant differences between co-offenders, including their respective roles, culpability, and subjective circumstances, be given appropriate weight before any disparity is found to be unjustifiable.
  • A justifiable sense of grievance is assessed objectively: the question is whether a reasonable person, looking at all the circumstances, would regard the offender's grievance as justified, not simply whether some arguable discrepancy exists between sentences.
  • Where a co-offender's objective criminality is of a higher order, a comparatively smaller difference in sentence may be entirely appropriate rather than indicative of error.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that appellate courts retain a discretion to decline intervention even where a disparity is demonstrated, particularly where intervention would produce a sentence that fails to reflect the seriousness of the offending.
  • Under s 6(3) of the Criminal Appeal Act 1912, even a successfully established ground of appeal does not compel a reduction in sentence if the gravity and repeated nature of the offences indicate that no lesser sentence was warranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 195(b) (maliciously damaging property by fire)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Kollas & Mitchell [2002] NSWCCA 491
- Lowe v The Queen (cited via quotation of principle from Gibbs CJ and Mason J)
- Postiglione v The Queen (cited via quotation of principle from Dawson, Gaudron, and Kirby JJ)
- R v Ilbay [2000] NSWCCA 251