Citation: Johnson v R, Moody v R [2010] NSWCCA 124
Court: NSW Court of Criminal Appeal
Date: 25 June 2010
Judge(s): James J, Simpson J, Barr AJ
Background
Two applicants, Johnson and Moody, were sentenced in the District Court by Frearson DCJ following convictions for multiple offences of armed robbery. Both participated in the same series of offences as part of a joint criminal enterprise. Johnson received an effective head sentence of 9 years and 10 months, while Moody received an effective head sentence of 11 years and 6 months.
The sentencing judge distinguished between the two offenders on several bases. Moody was on parole at the time of the offences, faced a greater number of offences, and had played a more active role inside the premises during the robberies, levelling a firearm and threatening victims directly. Johnson's role had been to wait outside as the driver.
Both applicants sought leave to appeal their sentences to the Court of Criminal Appeal, each arguing that the sentences imposed were manifestly excessive.
Legal Issues
- Whether the sentences imposed on Johnson and Moody were manifestly excessive
- Whether the sentencing judge erred in giving weight to the different roles played by co-offenders in a joint criminal enterprise when assessing objective criminality
- Whether the disparity between the sentences imposed on Moody and Johnson was justified, or whether it gave rise to a legitimate sense of grievance on Moody's part
Decision
The Court of Criminal Appeal granted leave to appeal in both applications but dismissed both appeals. The Court found that neither sentence fell outside the proper range of sentencing discretion.
On the disparity ground raised by Moody, the Court held that there were several legitimate bases on which Moody's sentence could be heavier than Johnson's. These included Moody's parole status at the time of the offences, the greater number of offences for which he was sentenced, and the more active role he played inside the premises. Barr AJ expressed the view that it was more serious to enter premises, repeatedly level a firearm, and directly threaten victims than to wait outside in a vehicle. The fact that the parole related to a minor matter did not diminish its significance as an aggravating factor: the conditions of parole imposed an independent obligation not to re-offend.
The Court addressed a point of some nuance regarding the role-differentiation analysis in joint criminal enterprise cases. Simpson J, with James J agreeing, expressed some reservation about placing too much weight on distinctions between what co-offenders physically did during a joint enterprise. The starting point, she confirmed, is that each participant intended the crime and set out to carry it into effect. Differentiation on the basis of role may be appropriate in some circumstances, but courts should exercise caution before treating one participant more leniently simply because their assigned role involved less active participation in the actual offending.
James J agreed that the sentencing judge was not wrong to give some limited weight to role differentiation in this case, but emphasised that this did not mean a getaway driver should necessarily receive a lesser sentence than an offender who entered the premises. Each case requires examination on its own facts.
Orders Made
- In the application of Paul Robert Johnson: leave to appeal granted, appeal dismissed.
- In the application of Michael Ronald Moody: leave to appeal granted, appeal dismissed.
Key Takeaways
- When sentencing co-offenders in a joint criminal enterprise, the correct starting point is that each participant intended the crime and set out to carry it into effect. Objective criminality is not automatically identical, but differentiation requires a sound basis on the particular facts.
- Simpson J confirmed that courts should exercise caution before drawing fine distinctions between the roles of co-offenders in a joint enterprise, because each participant bears responsibility for the acts of all others carried out in furtherance of the common purpose.
- A sentencing judge may legitimately take into account that one co-offender was on parole at the time of the offences, regardless of whether the offence that triggered the parole was minor: the conditions of parole impose an independent obligation not to offend.
- No error was established in the sentencing judge's approach to the disparity between the two sentences, given the combination of aggravating factors applicable to Moody that did not apply, or did not apply equally, to Johnson.
- The decision reaffirms that a greater number of offences to be sentenced, active participation in direct threats of violence using a firearm, and parole status can each justify a heavier sentence for one co-offender over another, even where the two offenders share many common personal circumstances.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 95, 97(1), 97(2)
- Firearms Act 1996 (NSW), s 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 37, Pt 3 Div 3
Cases
- R v Goundar [2001] NSWCCA 198; 127 A Crim R 331
- R v JW [2010] NSWCCA 49
- R v Breedon (NSWCCA, 3 December 1992, unreported)
- R v Hoschke [2001] NSWCCA 317
- R v Wright [2009] NSWCCA 3
- GAS v The Queen [2004] HCA 22; 217 CLR 198
- The Queen v Pearce [1998] HCA 57; 194 CLR 610
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518
- R v McNaughton (2006) 66 NSWLR 566
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Wickham [2004] NSWCCA 193
- Hillier v Director of Public Prosecutions [2009] NSWCCA 312
- Weininger v The Queen (2003) 212 CLR 629
- R v Baleiovalau [2009] NSWCCA 153
- R v Ta [2009] NSWCCA 196
- R v George (2004) 149 A Crim R 38
- R v Henry (1999) 36 NSWLR 346