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Court of Criminal Appeal 2 July 2012

Perez v R

[2012] NSWCCA 167

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL SENTENCE ROBBERY IN COMPANY SERIOUSNESS OF INVOLVEMENT IN OFFENCE WHETHER CO

Citation: Perez v R [2012] NSWCCA 167
Court: Court of Criminal Appeal, New South Wales
Date: 2 July 2012
Judge(s): Basten JA; Harrison J; Beech-Jones J

Background

The appellant pleaded guilty to one count of robbery in company under s 97(1) of the Crimes Act 1900 (NSW), arising from an incident on 3 February 2010 at Pitt Town. The offence involved a scheme in which the co-offender lured the victim into a vehicle under the pretence of selling a campervan, knowing the victim would bring $3,200 in cash. The co-offender then struck the victim in the face and snatched the money, while the appellant, seated in the back seat, used a homemade taser device on the victim and later brandished it to drive him away from the car.

The appellant was sentenced in the District Court to four years' imprisonment with a non-parole period of two years, a sentence identical to that imposed on his co-offender at the same hearing. The appellant sought leave to appeal on two grounds.

  • Whether the sentencing judge failed to adequately assess the appellant's role in the offending and, consequently, the seriousness of the offence
  • Whether the imposition of identical sentences on the appellant and his co-offender gave rise to a justifiable sense of grievance, having regard to their allegedly different roles and personal antecedents

Decision

On the first ground, the appellant argued that the co-offender had conceived and planned the robbery from as early as 10 January 2010, and that the appellant had no involvement until the day of the offence, by which time the robbery was already underway. The Court of Criminal Appeal rejected the factual premise of this argument. It found no basis for inferring the co-offender had planned the robbery from the initial social gathering, noting that it was the victim who reinitiated contact the day before the offence. More significantly, the appellant's own account to the probation and parole officer indicated that the plan was conceived at the co-offender's home on the afternoon of the offence, placing the appellant at the planning stage. The sentencing judge's finding that both offenders were involved in planning the offence was therefore not in error.

On the second ground, the Court found that the disparity in the number of discrete acts performed by each offender did not translate into a meaningful difference in culpability. The co-offender handled the initial contact, drove the vehicle, and delivered the punch, but the appellant came armed with a weapon and deployed it. Harrison J added that counting individual acts attributed to each participant is rarely a reliable method for assessing relative culpability, and it was particularly unhelpful here given the nature of the appellant's specific conduct. The Court found that the common purpose nature of the offence, and the overall weight of each participant's contribution, justified equal sentences. No manifestly disproportionate sentencing was established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge does not err by finding both co-offenders involved in planning a robbery, where the evidence supports a shared plan even if one participant became formally involved closer to the time of the offence.
  • A simple comparison of the number of discrete acts performed by each participant in a joint criminal enterprise is not a reliable or generally sufficient method for determining relative culpability, particularly where one participant's conduct included coming armed and using a weapon.
  • Where an offence is carried out as a common purpose and each offender makes a significant contribution, equal sentences for co-offenders will not necessarily give rise to a justifiable sense of grievance within the meaning of Lowe v The Queen (1984) 154 CLR 606.
  • The R v Henry [1999] NSWCCA 111 benchmarks for robbery offences (a custodial sentence, with a reference range of four to five years) remained the relevant framework, and the sentence imposed fell within that range.
  • No error of principle was established merely because the co-offender had initiated contact with the victim and personally took the money, given that the appellant independently armed himself and actively used his weapon during the commission of the offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)

Cases:
- Lowe v The Queen [1984] HCA 46; 154 CLR 606 (parity principle in sentencing)
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (sentencing guideline for robbery offences)