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Court of Criminal Appeal 7 December 2010

ANDERSON v R

[2010] NSWCCA 287

Assault & violenceTheft & property

Citation: Anderson v R [2010] NSWCCA 287
Court: NSW Court of Criminal Appeal
Date: 7 December 2010
Judges: McClellan CJ at CL, RS Hulme J, Davies J

Background

The appellant was convicted, following guilty pleas, of robbery in company and knowingly allowing herself to be carried in a conveyance taken without the owner's consent. The offences arose from an incident in August 2006 in which she and a co-offender, Walsh, robbed the victim after accepting a lift back to a motel. During the robbery, Walsh produced a knife and the appellant repeatedly called out for Walsh to stab the victim. The victim was also run over by his own car as the pair fled the scene.

At sentencing in the District Court, Black DCJ imposed on the appellant a sentence of four years imprisonment (non-parole period of two years and three months) for the robbery, and a fixed term of twelve months for the conveyance offence. Walsh received equivalent sentences for the same offences, plus additional terms for a separate assault on a police officer in November 2006 and a Form 1 offence of causing bodily harm while in charge of a motor vehicle.

The appellant sought leave to appeal her sentence, arguing that the sentencing judge had failed to adequately account for the difference between her and her co-offender.

  • Whether the appellant had a justifiable sense of grievance arising from the sentencing judge's failure to differentiate between her sentence and that of Walsh, given differences in their circumstances and the additional matters taken into account against Walsh.

Decision

The Court granted leave to appeal but dismissed the appeal. The sole ground was that the appellant suffered a justifiable grievance because she and Walsh received the same effective sentence for the shared offences, even though Walsh had additional matters (the police assault conviction and a Form 1 offence) taken into account against him.

Hulme J, with whom McClellan CJ at CL and Davies J agreed, found that the sentencing judge's approach to Walsh's Form 1 offence and the additional police assault conviction did not produce an unjust outcome for the appellant. The judge had treated all offences on 11 August 2006 as part of the one incident and made the sentences concurrent, an approach characterised as arguably generous to both offenders. It was not open to the appellant to rely on that generosity in her own favour while simultaneously complaining that it had not been extended differently to Walsh.

The Court also noted that, when assessing the respective culpability of the two offenders, the appellant's conduct during the robbery was at least as serious as Walsh's. While Walsh had produced the knife, the appellant's repeated urging that Walsh use it invited a far more serious outcome than actually occurred. That factor, combined with an arguably generous allowance for time the appellant had spent in custody on an unrelated charge, meant there was no demonstrated error in imposing the same sentence for the robbery on both offenders.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A co-offender's receipt of additional sentences for unrelated offences does not, without more, give rise to a justifiable sense of grievance in the other offender where their effective sentences for the shared offences are equal.
  • Where a sentencing judge takes a generous approach (such as making sentences concurrent) that benefits both offenders, it is not open to one offender to rely on that generosity for themselves while arguing the other should have been treated more harshly.
  • Relative culpability between co-offenders requires careful analysis of each person's actual conduct: in this case, the appellant's repeated incitement to stab the victim was found to be at least as serious as the co-offender's act of producing the knife.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that sentencing is not an exact science and that a substantial discretion exists in the sentencing task, meaning an appellate court will not intervene merely because a different approach might have been open.
  • No error was established where the sentencing judge's allowances, taken together, produced an outcome that was not demonstrably unjust, even if individual elements of the sentencing exercise were arguably generous.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 53 (causing bodily harm while in charge of a motor vehicle)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37

Cases:
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act (2002) 56 NSWLR 146
- Lowe v The Queen (1984) 154 CLR 606 (implied by reference to co-offender parity principles, cited in the omitted text)
- Mill v The Queen [1987-1988] 164 CLR 465