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Court of Criminal Appeal 21 May 2012

Krotiris v R

[2012] NSWCCA 28

Theft & property
CRIMINAL LAW SENTENCE OFFENDERS SENTENCED BY DIFFERENT JUDGES PARITY PRINCIPLE ROLES OF OFFENDERS

Citation: Krotiris v R [2012] NSWCCA 28
Court: NSW Court of Criminal Appeal
Date: 21 May 2012
Judges: Macfarlan JA, Rothman J, Davies J

Background

The appellant was sentenced in the District Court in May 2011 for stealing from a dwelling house, an offence he committed alongside a co-offender in the early hours of December 2008 in Sydney's eastern suburbs. The pair climbed a security gate and later used a makeshift ladder to access a unit's balcony, where the co-offender entered the bedroom, took items, and fled when a sleeping occupant awoke and raised the alarm. The appellant was found nearby and denied involvement.

The appellant's path to sentencing was lengthy. Originally charged with more serious offences, he pleaded not guilty when the matter came on for hearing in January 2011. After a voir dire on the admissibility of certain evidence resulted in a ruling against him, he pleaded guilty the following day to the reduced charge of stealing from a dwelling house. The sentencing judge allowed just over 5 percent as a discount for that plea, treating it as entered at a very late stage.

Judge Cogswell SC imposed a head sentence of 2 years and 10 months with a non-parole period of 18 months. The co-offender, Mr Schoultz, had been sentenced almost 18 months earlier by a different District Court judge to 2 years imprisonment with a non-parole period of 1 year, with two offences taken into account on a Form 1.

  • Whether the appellant's sentence was marked by an unjustifiable disparity when compared with the shorter sentence received by his co-offender, engaging the parity principle.
  • Whether the sentencing judge erred in allowing only a 5 percent discount for the utilitarian value of the guilty plea.

Decision

Parity ground: The Court confirmed that the relevant test for a parity ground is objective: a reasonable and impartial observer must be able to conclude that a genuine sense of grievance is justified, not merely that the appellant feels aggrieved. The disparity must be gross, marked, glaring or manifestly unjustifiable. The Court found that the difference between the two sentences, with a starting point of approximately four months on a base of three years, fell well short of that threshold.

The Court also identified meaningful differences between the two offenders. The co-offender had actually entered the unit and taken property; the appellant remained outside. However, the appellant carried a significantly worse criminal record, including prior sentences for stealing, possessing break-in implements, and drug offences. He was also on conditional liberty at the time of the offences. Those factors, taken together, sufficiently explained the disparity and confirmed that no justifiable grievance arose.

Guilty plea discount ground: The Court noted that evidence about the circumstances leading to the plea was incomplete. There was no evidence of whether plea negotiations had occurred before January 2011, nor any explanation of how the Crown came to accept the reduced charge. That absence of evidence placed the Court in an unsatisfactory position when assessing the utilitarian value of the plea. Rothman J expressed personal reservations about whether 5 percent was adequate, but was not persuaded that the discount was wrong in principle, and was satisfied that no lesser sentence than that imposed was warranted under s 6(3) of the Criminal Appeal Act 1912. The ground was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A parity ground will only succeed where the disparity between co-offender sentences is gross, marked, glaring or manifestly unjustifiable when assessed by a reasonable and impartial observer: a subjective sense of grievance on the appellant's part is insufficient.
  • Differences in criminal history and conditional liberty at the time of offending are relevant factors that can legitimately explain a more severe sentence for one co-offender, even where that person had a lesser role in the primary offence.
  • A guilty plea entered the day after an adverse voir dire ruling attracts only a modest discount, and a figure of just over 5 percent was upheld on these facts despite one judge's reservations about its adequacy.
  • Incomplete evidence about the circumstances of a plea, including whether negotiations occurred and on what terms, can leave an appellate court in an unsatisfactory position when reviewing the discount applied, potentially undermining an appeal on that ground.
  • Under s 6(3) of the Criminal Appeal Act 1912, even where some doubt exists about the precise adequacy of a sentencing discount, the Court of Criminal Appeal will not intervene unless it is satisfied that a lesser sentence was warranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 148 (stealing from a dwelling house)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Dwayhi v R; Bechara v R [2011] NSWCCA 67
- R v Dib [2003] NSWCCA 117
- R v Sukkar [2011] NSWCCA 140
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- Rae v R [2011] NSWCCA 211
- Sullivan v R; Skillin v R [2008] NSWCCA 296