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Court of Criminal Appeal 23 November 2012

Somba v Regina

[2012] NSWCCA 214

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE OFFENDERS ERROR NOT ESTABLISHED.

Citation: Somba v Regina [2012] NSWCCA 214
Court: Court of Criminal Appeal, NSW
Date: 23 November 2012
Judge(s): Beazley JA, Hall J, SG Campbell J (Hall J delivered the principal judgment; Beazley JA and SG Campbell J agreed)

Background

The applicant was convicted of three offences of aggravated armed robbery or aggravated assault with intent to rob under s 97(2) of the Crimes Act 1900. The offences involved armed raids on three Bank of Queensland branches in Sydney in August 2008, carried out with at least one co-offender who brandished firearms, including a shotgun and a pistol. During the third raid, at Newtown, the co-offender discharged the pistol into a door in an attempt to force entry to the staff area.

The applicant was sentenced in the District Court by Hock DCJ on 4 March 2011. He received terms of 5 years 6 months (Count 1, Kensington), 5 years (Count 2, The Rocks), and 8 years with a 5-year non-parole period (Count 3, Newtown). The total effective sentence was 11 years, with a non-parole period of 8 years commencing 1 September 2008.

The applicant sought leave to appeal to the Court of Criminal Appeal, contending that the sentences were attended by several legal errors and were excessive when compared to those imposed on his two co-offenders.

  • Whether the disparity between the applicant's sentences and those imposed on each co-offender gave rise to a justifiable sense of grievance (the parity principle, derived from Lowe v The Queen)
  • Whether the sentencing judge misapplied the principles in Pearce v The Queen [1998] HCA 57, which governs the structuring of sentences for multiple offences
  • Whether the total sentence imposed in respect of Count 3 (the Newtown offence) was excessive
  • Whether the total effective sentence of 11 years (NPP 8 years) was manifestly excessive

Decision

The Court granted leave to appeal but dismissed the appeal on all grounds. Hall J, with whom Beazley JA and SG Campbell J agreed, found that no appellable error had been established in the sentencing judge's approach or outcomes.

On the parity ground, the Court noted that the co-offenders' circumstances differed materially from the applicant's. Carlo Dizon, who had the longer total sentence, was the offender who physically brandished and discharged the weapons. John Birch was sentenced by a different judge and had a different criminal history. The Court was not satisfied that any comparison with the co-offenders' sentences produced a justifiable sense of grievance in the applicant.

On the Pearce ground, the Court accepted the Crown's submission that the sentencing judge had properly considered each offence individually and had expressly addressed totality when structuring the sentences. The difference of 6 months between the Kensington sentence and the comparable sentence imposed on Dizon was accounted for by the Form 1 offence attached to Count 1 in the applicant's case.

On manifest excess, the Court concluded that the individual sentences and the overall sentence were neither unreasonable nor unjust. The offences were planned, targeted, and objectively serious. The applicant had a history of prior convictions for similar offending, which the sentencing judge properly took into account.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in the sentencing judge's application of the parity principle where material differences existed between co-offenders' roles, criminal histories, and the judges who sentenced them.
  • The parity principle (from Lowe v The Queen) requires a demonstrated justifiable sense of grievance; differences in sentence that are explicable by legitimate sentencing factors will not satisfy that threshold.
  • In dismissing the Pearce ground, the Court of Criminal Appeal confirmed that individuated sentence-by-sentence analysis, combined with express consideration of totality, satisfies the requirements of Pearce v The Queen.
  • A total effective sentence of 11 years (NPP 8 years) for three planned armed bank raids, one involving the discharge of a firearm, was upheld as neither manifestly excessive nor unjust in light of the applicant's antecedents.
  • Form 1 offences taken into account on sentence are a legitimate basis for distinguishing an applicant's sentence from a co-offender's nominally equivalent sentence for the same principal offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93G(1)(b), 96, 97(2), 117, 154A(1)(a), 316
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 32
- Road Transport (Driver Licensing) Act 1998 (NSW), s 25A(1)

Cases:
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Johnson v R [2010] NSWCCA 124
- McIvor v Regina [2010] NSWCCA 7
- Qing An v Regina [2007] NSWCCA 53
- R v Bavadra [2000] NSWCCA; 115 A Crim R 152
- R v Hoschke [2001] NSWCCA 316
- R v JW [2010] NSWCCA 49
- R v Swan [2006] NSWCCA 47