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Court of Criminal Appeal 21 May 2012

APTHORPE v R

[2012] NSWCCA 100

Assault & violencePublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL AFFRAY APPLICANT ON BOND AT TIME OF OFFENCE SENTENCE NOT MANIFESTLY EXCESSIVE FOUR MONTH LONGER NON

Citation: Apthorpe v R [2012] NSWCCA 100
Court: Court of Criminal Appeal, NSW
Date: 21 May 2012
Judge(s): Basten JA, Johnson J, Garling J (reasons by Garling J)

Background

The applicant pleaded guilty in the District Court to one charge of affray under s 93C(1) of the Crimes Act 1900, and asked that two further charges (intentional property damage and larceny) be taken into account on a Form 1. The offences arose from a violent group assault on 7 May 2010 at a residential property in Ambarvale, in which the applicant and four associates surrounded and repeatedly kicked and stomped on a single victim until he lost consciousness. The applicant also took the victim's keys and, with his brother, damaged the victim's car.

The victim suffered a nasal fracture, damaged teeth, extensive bruising, and a ruptured blood vessel in his eye, and was hospitalised for approximately six days. The applicant was arrested within minutes and refused bail, remaining in custody from the date of the offence.

The sentencing judge, Neilson DCJ, imposed a total sentence of 3 years and 4 months with a non-parole period of 2 years. The applicant sought leave to appeal, arguing several sentencing errors and contending the sentence was manifestly excessive or involved an unjustifiable parity discrepancy with co-offenders.

  • Whether the sentencing judge erred in attributing a specific statement made during the affray to the applicant
  • Whether the judge erred in his characterisation of the circumstances of the Form 1 offences
  • Whether the sentence was manifestly excessive
  • Whether a parity disparity existed between the applicant's non-parole period and that of his brother and co-offender, Graham Apthorpe, such that it was "marked" or "clearly unjustifiable"

Decision

Attributed statement and Form 1 errors: The Court of Criminal Appeal accepted that the sentencing judge had made an error in attributing a particular statement, made during the assault, to the applicant rather than to another offender. It also found error in the judge's description of the Form 1 circumstances. However, the Court found neither error was of substance: neither affected the overall sentencing outcome or the assessment of the applicant's culpability.

Manifest excess: The Court found no basis to conclude the sentence was manifestly excessive. The applicant was on a bond at the time of the offence, had a prior criminal history, and the offending itself was serious, protracted, and group-based. The personal circumstances identified in the psychological and pre-sentence reports did not bring the sentence outside the range available to the judge.

Parity: The sentencing judge had found that the relative culpability of all five offenders was essentially identical, and that finding was not challenged on appeal. The Court noted that Graham Apthorpe received the same head sentence but a shorter non-parole period of 1 year and 8 months, compared to the applicant's 2 years. The Court held that the applicant's personal circumstances, including his criminal record, adequately explained the difference. The 4-month longer non-parole period was not "marked" or "clearly unjustifiable" within the principles established by the High Court in Lowe, Postiglione, and Green. The Court also noted that the applicant appeared in substance to be arguing that his brother's sentence should have been higher, which does not engage properly with the parity principle.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing error will not warrant appellate intervention unless it is of sufficient substance to have affected the outcome; minor factual errors that do not alter the overall assessment of culpability will not ground a successful appeal.
  • Under the parity principle, a discrepancy between co-offenders' sentences must be "marked" or "clearly unjustifiable," or must engender a justifiable sense of grievance, before an appellate court will intervene: Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Green v R; Quinn v R [2011] HCA 49.
  • Arguing that a co-offender's sentence should have been longer does not constitute a proper engagement with the parity principle.
  • Differences in non-parole periods between co-offenders of similar culpability can be justified by reference to their individual criminal histories and personal circumstances.
  • In dismissing the appeal, the Court confirmed that where a sentencing judge has correctly found substantially equal culpability among co-offenders, identical head sentences are appropriate, with individual factors properly addressed in the non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93C, 117, 195(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 32, 44
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Green v R; Quinn v R [2011] HCA 49; 86 ALJR 36
- House v The King [1936] HCA 40; 55 CLR 499
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v George [2004] NSWCCA 247
- R v Trevenna [2004] NSWCCA 43
- Stewart v R [2009] NSWCCA 152
- Vuni v Regina [2006] NSWCCA 171