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Court of Criminal Appeal 23 April 2012

Newman v R

[2012] NSWCCA 69

Assault & violenceFraud & dishonesty
CRIMINAL LAW SENTENCING DISPARITY OF SENTENCE WITH CO OFFENDER SENTENCING WHETHER SENTENCE EXCESSIVE

Citation: Newman v R [2012] NSWCCA 69
Court: Court of Criminal Appeal, NSW
Date: 23 April 2012
Judges: Basten JA, Blanch J, Beech-Jones J

Background

In the early hours of 23 January 2010, the appellant and a co-offender, Chatfield, were involved in a violent confrontation at a residential property in Gilgandra. The incident began on the front lawn, where the appellant punched one occupant, who then retreated inside the house, followed by both offenders.

Inside the house, the two men committed further offences against two different occupants. The appellant was charged with assault with intent to rob using corporal violence (s 95(1), Crimes Act 1900), while Chatfield faced the more specific charge of robbery while armed with an offensive weapon, namely a glass bottle (s 97(1)). Both offences carried the same maximum penalty of 20 years imprisonment. Both offenders were also jointly charged with two counts of demanding money with menaces, and the appellant faced an additional charge of common assault arising from the front-lawn incident.

The appellant appealed against his sentence on two grounds: first, that there was an unjustifiable disparity between his sentence and Chatfield's; and second, that the overall sentence was excessive, particularly because of the degree to which individual sentences were accumulated (that is, ordered to run consecutively rather than concurrently).

  • Whether the parity principle (the principle that co-offenders should not receive sentences so different as to cause a justifiable sense of grievance) applies where co-offenders have been charged with different offences rather than the same offence.
  • Whether the individual sentences imposed were manifestly excessive.
  • Whether the degree of accumulation of sentences resulted in an overall sentence that was excessive, having regard to the totality principle (the principle that a combined sentence must reflect the overall criminality of all the offences, not just add each sentence mechanically).

Decision

On the question of parity, the Court confirmed that the principle is not limited to offenders charged with identical offences. Citing the High Court's recent decision in Green v The Queen; Quinn v The Queen [2011] HCA 49, the Court affirmed that the foundation of the parity principle lies in equality before the law, and that formal identity of charges is not a necessary condition for its application. Practical difficulties increase as the differences between offences grow, but those difficulties do not exclude the principle altogether.

Despite accepting that parity can apply across different charges, the Court declined to intervene on this ground. The sentencing judge had been fully conscious of the equality norm, had imposed identical sentences for the jointly charged offences, and had imposed equal sentences for each offender's most serious charge. The appellant was also identified as the instigator of the incident and faced an additional charge. Chatfield's more serious criminal record and the appellant's personal circumstances did not, in the Court's view, rise to the level of justifiable grievance required to warrant intervention.

On the second and related grounds, the Court found that the individual sentences were not in themselves manifestly excessive. However, the accumulation of sentences was found to be excessive. All offences arose from a single drunken episode, and the sentencing judge's decision to make the front-lawn assault wholly concurrent with the first inside-the-house offence indicated he had treated the conduct as one episode of criminality. Applying that logic consistently, a degree of accumulation for the conduct inside the house was appropriate, but an accumulation of 12 months was not, given the overall non-parole period.

Beech-Jones J added that the basis for intervention on accumulation was the sentencing judge's failure to give proper weight to the totality principle when fixing the commencement date for the s 95 sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in part: the sentence on count 2 (non-parole period of two years and nine months with a balance of term of one year and nine months) was ordered to commence on 28 July 2010.
  • As a consequence, the appellant became eligible for parole on 27 April 2013, with the total sentence expiring on 27 January 2015.

Key Takeaways

  • The Court of Criminal Appeal confirmed, consistent with the High Court's ruling in Green v The Queen, that the parity principle is not confined to co-offenders charged with the same offence. Its foundation in equality before the law means substance governs over form, though practical difficulties in comparison increase as the charges diverge.
  • A justifiable sense of grievance is still required before a court will intervene on disparity grounds. Equal sentences for the joint charges, equal sentences for the respective most serious charges, and the sentencing judge's awareness of the equality norm together defeated this ground of appeal.
  • Where a sentencing judge treats a series of offences as forming part of a single episode of criminality, that approach should be applied consistently when deciding how much, if at all, sentences should be accumulated.
  • Accumulation of sentences can produce an excessive total sentence even where each individual sentence is not in itself manifestly excessive. The totality principle requires that the combined effect of accumulated sentences reflect overall criminality appropriately.
  • Beech-Jones J identified the specific error as a failure to give proper weight to the totality principle when fixing the commencement date of the most serious sentence, citing Pearce v The Queen (1998) 194 CLR 610.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 95(1), 97(1)

Cases:
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 86 ALJR 36
- Jimmy v Regina [2010] NSWCCA 60; 77 NSWLR 540
- Jones v The Queen (1993) 67 ALJR 376
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- OM v R [2009] NSWCCA 267
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1996-1997) 189 CLR 295
- R v Armstrong [2001] NSWCCA 77
- R v Kairouz [2005] NSWCCA 247
- R v Taudevin (1996) 2 VR 402
- Stanton v Regina [2008] NSWCCA 326