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Court of Criminal Appeal 9 August 2013

Stewart v R

[2013] NSWCCA 185

Sexual offencesAssault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE NON PAROLE PERIOD RELEVANT FACTORS PARITY BETWEEN CO

Citation: Stewart v R [2013] NSWCCA 185
Court: Court of Criminal Appeal, New South Wales
Date: 9 August 2013
Judges: Beazley P; Fullerton J; Campbell J

Background

The applicant pleaded guilty to seven counts arising from two serious home invasions committed in November 2010, including aggravated sexual assault in company, specially aggravated break and enter, specially aggravated kidnapping, and related offences. A principal co-offender participated in both invasions and pleaded guilty to the same counts. Both were sentenced in the District Court.

The sentencing judge imposed what he described at the time as a total term of 16 years with a non-parole period of 10 years. In fact, as Crown particulars filed shortly before the appeal hearing revealed, the actual total effective sentence was 14 years and 6 months with the same non-parole period of 10 years. The principal co-offender received a total effective sentence of 15 years with a non-parole period of 9 years.

This disparity meant the applicant faced a longer minimum period in custody than the principal co-offender, despite the principal co-offender being the more culpable of the two. The appeal was brought on grounds of parity and manifest excess in the non-parole period.

  • Whether the applicant's non-parole period of 10 years violated the parity principle, given the principal co-offender received a non-parole period of 9 years despite being the more serious offender.
  • Whether the non-parole period was manifestly excessive, particularly bearing in mind that the applicant was a first-time prisoner.

Decision

On parity: The Court of Criminal Appeal found that the parity principle was engaged and that the applicant had a legitimate grievance. The principal co-offender, assessed as more culpable, received a shorter non-parole period of 9 years. The applicant's non-parole period of 10 years therefore created an unjustifiable inconsistency. The Court accepted that a sentencing error had occurred, not through any criticism of the sentencing judge's careful reasoning, but as a consequence of the structural complexity of the sentences combined with the judge's mistaken belief about the total effective term.

On manifest excess: The Court did not find that the non-parole period was independently manifestly excessive in absolute terms. However, the parity ground alone was sufficient to warrant intervention.

On re-sentencing: The Court reduced the non-parole period for counts 3 and 4 (the aggravated sexual assault counts) from 7 years and 6 months to 6 years, while leaving the head sentences for those counts at 12 years. This brought the overall non-parole period down from 10 years to 8 years and 6 months. The Court preserved the structural logic of the original sentences, including the degree of accumulation and concurrency designed to avoid double punishment for overlapping elements. The reduction also reflected the rehabilitative value of giving a first-time prisoner a meaningful period on parole.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed in part.
  • Sentences for counts 1, 2, 5, 6, and 7 confirmed.
  • Sentences for counts 3 and 4 quashed and replaced: non-parole period of 6 years imprisonment commencing 24 May 2013 and expiring 23 May 2019, with a balance of term of 6 years commencing 24 May 2019 and expiring 23 May 2025; earliest release on parole 24 May 2019.

Key Takeaways

  • The parity principle requires that co-offenders not receive unjustifiably different sentences; where the less culpable offender serves a longer minimum term in custody than the more culpable co-offender, that disparity constitutes a sentencing error warranting correction.
  • A sentencing judge's mistaken belief about the arithmetic effect of the sentences imposed can give rise to appellable error even where the individual components of the sentence were each carefully reasoned.
  • Where sentences involve multiple accumulated and concurrent terms, the true total effective sentence and non-parole period must be calculated with precision, as the structural interaction between counts can produce outcomes that diverge significantly from what the sentencing judge intended or described.
  • In reducing a non-parole period to address a parity disparity, the Court of Criminal Appeal preserved the overall sentencing structure, including concurrency and accumulation arrangements designed to prevent double punishment for overlapping count elements, adjusting only the component necessary to achieve consistency.
  • An offender's status as a first-time prisoner is a relevant consideration in fixing a non-parole period, with the Court noting the rehabilitative benefit of providing a meaningful period under supervised parole rather than a period so lengthy as to operate as crushing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61JA, 61M(1), 86(2), 86(3), 112(2), 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Green v R; Quinn v R [2011] HCA 49; 244 CLR 462
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Dodd (1991) 57 A Crim R 349
- R v Geddes (1936) 36 SR (NSW) 554
- R v Hampton (1998) 44 NSWLR 729
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Rossi (1988) 142 LSJS 451