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Court of Criminal Appeal 13 April 2010

PENFOLD v R; WARD v R

[2010] NSWCCA 61

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW AND PROCEDURE SENTENCE ROBBERY WHILST ARMED TWO VICTIMS EXTREMELY SERIOUS INJURY TO ONE VICTIM OFFENDERS

Citation: PENFOLD v R; WARD v R [2010] NSWCCA 61
Court: New South Wales Court of Criminal Appeal
Date: 13 April 2010
Judge(s): Grove J (principal judgment), Simpson J, RA Hulme J (agreeing)

Background

Two co-offenders, a former casual employee of a butcher's shop and his long-standing associate, were sentenced in the District Court following guilty pleas to offences arising from an armed robbery. The former employee had worked at the shop during the 2006 Christmas period and used that access to gather intelligence about the owner's cash-handling practices, which he passed to his associate in planning the robbery. A third offender was also involved in the joint criminal enterprise.

The robbery involved two victims and caused extremely serious injury to one of them. The two applicants played different roles in the offending: the former employee was the inside informant who planned the approach, while his associate was more directly involved in the physical execution of the robbery.

Both applicants pleaded guilty and were sentenced by Hosking DCJ in the Sydney District Court in August 2008. Each then sought leave to appeal against the severity of the sentences imposed.

  • Whether the sentencing judge erred in applying sentencing principles to each co-offender
  • Whether the assessments of sentence for each applicant fell outside the permissible range of judicial discretion
  • Whether the finding of special circumstances (which affects the ratio of non-parole period to head sentence) was correctly made for one applicant but not the other
  • Whether the difference in the non-parole period ratios between the two co-offenders gave Ward a justifiable sense of grievance

Decision

The Court of Criminal Appeal found no error in the sentencing judge's application of relevant principles to either applicant. The assessments were within the available range of discretion, and the grounds raised no particular point of principle warranting intervention.

On the question of special circumstances, the sentencing judge found such circumstances existed for Penfold but not for Ward. Penfold had been assaulted in custody by Ward and the third offender and had been placed in protective custody as a result. A psychologist's report recorded this history, and no limit was placed on the use the judge could make of that report. The Court accepted that the judge was entitled to take this into account when determining Penfold's non-parole period.

Ward argued that the different non-parole period ratios created a justifiable sense of grievance on his part. The Court rejected this, relying on authority establishing that different findings as to special circumstances between co-offenders do not of themselves give rise to a justifiable sense of grievance. Although the Court acknowledged that recent authority had moved away from automatically assuming that protective custody is more onerous than the general prison population, the central issue remained whether the judge had erred in declining to find special circumstances for Ward. No such error was found.

The Court also noted that a corrected transcript had resolved an apparent discrepancy in aggregate head sentences between the two applicants, which had been relied upon in Ward's written submissions.

Orders Made

  • In each appeal: leave to appeal against sentence granted and appeal dismissed.

Key Takeaways

  • Different findings as to special circumstances between co-offenders do not, without more, give rise to a justifiable sense of grievance sufficient to warrant appellate intervention, following Tatana v R [2006] NSWCCA 398.
  • A sentencing judge is entitled to take into account that an offender has been assaulted in custody and placed in protection, where that information appears in a psychologist's report tendered without restriction on its use.
  • Recent authority (including R v Way and R v Mostyn) has moved away from any assumption that serving a sentence on protection is automatically more onerous than serving in the general prison population.
  • Co-offenders in a joint criminal enterprise may properly receive meaningfully different sentences where their respective roles, circumstances, and personal histories differ.
  • In dismissing both appeals, the Court of Criminal Appeal confirmed that sentencing outcomes within the range of available discretion will not be disturbed on appeal merely because a co-offender received a different outcome.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146
- Fahs v R [2007] NSWCCA 26
- GAS & SJK v The Queen (2004) 217 CLR 198
- Ibbs v The Queen (1987) 163 CLR 447
- R v Cahyadi [2007] NSWCCA 1; (2007) 168 A Crim R 41
- R v Frazer & Spencer [2007] NSWSC 1449
- R v Henry (1999) 46 NSWLR 346
- R v Mostyn (2004) 145 A Crim R 304
- R v Mungomery (2004) 151 A Crim R 376
- R v Sotheren [2001] NSWCCA 425
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Way (2004) 60 NSWLR 168
- R v Wright [2009] NSWCCA 3
- Tatana v R [2006] NSWCCA 398
- The Queen v Veen (No 2) (1988) 164 CLR 485
- Vaovasa v The Queen (2007) 174 A Crim R 116