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Court of Criminal Appeal 16 September 2010

CALIMBAS & VERGILLA v R

[2010] NSWCCA 245

Assault & violenceTheft & propertyFirearms & weapons

Citation: Calimbas & Vergilla v R [2010] NSWCCA 245
Court: New South Wales Court of Criminal Appeal
Date: 16 September 2010
Judge(s): McColl JA, RS Hulme J, Latham J

Background

Four offenders robbed the Rhodes Branch of the Bank of Queensland on 23 November 2007. Two were armed with shotguns and two with crowbars. During the robbery, police arrived while it was still in progress. The offenders fled to an ATM bunker, fired shotguns through glass panels in an attempt to escape, and pellets struck nearby pedestrians. All four offenders were on parole at the time.

The four men, Oscar Vegilla, Curt Calimbas, Toka Makira, and Terry Taniela, pleaded guilty to six offences in common, including armed robbery and discharging a loaded firearm with intent to prevent lawful apprehension. Vegilla faced an additional charge of attempted aggravated car-jacking. All were sentenced by Ellis DCJ in the District Court, though at different times: Calimbas in December 2008, Vegilla in April 2009, and Makira and Taniela in October 2009.

Calimbas and Vegilla applied to the Court of Criminal Appeal, arguing that the sentences imposed on Makira and Taniela were significantly lighter and that parity required their own sentences to be reduced. The Crown, for its part, argued that the sentences on Makira and Taniela were manifestly inadequate.

  • Whether the sentences imposed on Calimbas and Vegilla were rendered excessive by reason of the more lenient sentences subsequently imposed on Makira and Taniela, thereby engaging the parity principle.
  • Whether the disparity in sentences arose from a properly reasoned sentencing process or from appellable error in the later sentencing of Makira and Taniela.
  • Whether the sentences imposed on Makira and Taniela were manifestly inadequate.

Decision

The Court granted leave to appeal but dismissed the appeal. Hulme J, with whom McColl JA and Latham J agreed, found that a comparison of the sentences did reveal significant disparity, particularly in the degree of accumulation applied to the firearm offences. The sentences for counts 2 and 3 commenced much later in the sequence for Calimbas and Vegilla than they did for Makira and Taniela, producing a materially different overall result despite the stated intention to achieve parity.

The Court found that this disparity arose not from a considered sentencing judgment but from error in the sentencing of Makira and Taniela, most likely a failure to comply with the approach required by the standard non-parole period regime as discussed in the authorities. Latham J specifically noted that the sentences for the firearm offences on Makira and Taniela were wholly inadequate to reflect the objective criminality involved.

Hulme J applied the established principle that the parity principle does not require a court to correct one wrong by making another. Where a sentencing disparity results from the later sentence being too lenient rather than the earlier sentence being too harsh, reducing the earlier sentence to match the erroneous one would compound the error and undermine public confidence in the administration of justice. The Court therefore declined to intervene in the sentences of Calimbas and Vegilla.

Hulme J added pointed criticism of the Office of the Director of Public Prosecutions for failing to appeal the sentences imposed on Makira and Taniela, describing the sentences as not merely manifestly but "grossly" inadequate, and expressing that it was beyond comprehension that no appeal had been brought.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle does not operate to reduce a correctly imposed sentence merely because a co-offender was later sentenced more leniently through error. Correcting one wrong by making another is not a proper exercise of the sentencing discretion.
  • Where sentencing disparity between co-offenders arises from identifiable error in the later, more lenient sentence, the appropriate remedy is a Crown appeal against the inadequate sentence, not a reduction of the earlier, correctly imposed one.
  • Discharging shotguns in a public area during an armed robbery, injuring bystanders, warranted sentences significantly above those imposed on Makira and Taniela. The Court of Criminal Appeal described those sentences as grossly inadequate given the offenders' records and the objective seriousness of the offending.
  • A sentencing judge who uses a mathematical formula to work backwards from one set of sentences to achieve parity with another must still ensure the resulting structure of accumulation and concurrency is consistent with the applicable statutory regime, including standard non-parole period requirements.
  • In dismissing the appeal, the Court made plain that failure by the Director of Public Prosecutions to appeal a manifestly inadequate sentence can leave the criminal justice system unable to correct gross sentencing errors, with consequences for public confidence in the administration of justice.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33A(2), 93G(1)(b), 97(2), 154A, 154C(2), 344A
- Firearms Act 1996 (NSW), ss 7(1), 62(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A et seq (standard non-parole period provisions)

Cases Referenced:
- Pierce (referred to in relation to the standard non-parole period regime, full citation not provided in the judgment extract)