Citation: Ngati v R [2013] NSWCCA 203
Court: NSW Court of Criminal Appeal
Date: 30 August 2013
Judges: Hoeben CJ at CL, McCallum J, Schmidt J
Background
The applicant pleaded guilty to break, enter and steal under s 112(1) of the Crimes Act 1900 (maximum 14 years) and a police pursuit offence under s 51B(1) of the same Act (maximum 3 years). Both offences occurred on 21 September 2011, when the applicant drove two co-offenders to a Coles supermarket in the early hours of the morning, remained in the vehicle while they broke in and stole approximately $14,000 worth of cigarettes, then fled police in a 65-minute pursuit involving dangerous driving at speeds up to 165 km/h.
Importantly, the applicant committed these offences while on bail for an assault occasioning actual bodily harm, and was already serving a sentence for that assault by the time he was sentenced in October 2012. His two co-offenders had each pleaded guilty to the more serious aggravated form of the offence under s 112(2). The applicant's plea to the lesser charge came only after the Crown, prompted by the trial judge, amended the indictment on the second day of trial.
The sentencing judge (Berman DCJ) imposed a 3-year 6-month term with an 18-month non-parole period for the break and enter offence, made partially concurrent with the driving sentence. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal.
Legal Issues
- Whether the sentencing judge gave sufficient weight to the applicant's lesser role in the offence (ground 1)
- Whether the sentencing judge gave any weight to the applicant's contrition (ground 2)
- Whether the sentencing judge gave sufficient weight to the parity principle, given that co-offenders received different sentences for the more serious aggravated offence (ground 3)
- Whether the sentence was manifestly excessive (ground 4)
Decision
The Court refused leave to appeal on grounds 1 and 2, finding no arguable basis that the sentencing judge failed to account for the applicant's role or contrition. The sentencing remarks expressly acknowledged the applicant's position as driver rather than direct participant in the break-in, and engaged with his evidence of insight and remorse gained while in custody.
On grounds 3 and 4, the Court granted leave but dismissed the appeal. The parity argument centred on the applicant receiving a sentence for the non-aggravated offence that appeared comparable to, or higher than, sentences received by co-offenders for the aggravated form. The Court acknowledged this raised a question worth examining, but found that any resulting sense of grievance had to be assessed against the full sentencing context.
The Court emphasised that the applicant had committed the offences while on bail and was already serving time for an assault, and that the sentencing judge had applied the totality principle to moderate the overall burden. Schmidt J found the applicant had already received a lenient sentence. Reducing it further to address any parity concern would produce an inadequate sentence, which the Court declined to impose even if a justified sense of grievance could technically be established.
McCallum J added a nuance: her Honour doubted the starting point for the break and enter charge reflected leniency, noting it appeared high by comparison with co-offenders' sentences for the more serious aggravated offence. However, her Honour agreed that the overall sentencing structure, informed by the bail offending and the separate driving charge, did not give rise to a justified grievance when viewed as a whole.
Orders Made
- Leave to appeal refused on grounds 1 and 2
- Leave to appeal granted on grounds 3 and 4
- Appeal dismissed
Key Takeaways
- The parity principle does not create an obligation to reduce a sentence to an inadequate level, even where some objective basis for a justified sense of grievance exists. The Court of Criminal Appeal confirmed that its discretion to address disparity does not extend to imposing a sentence that would be an affront to the proper administration of justice.
- A late plea of guilty entered after trial commenced, following amendment of the indictment, will attract only limited utilitarian discount. The sentencing court found a "relatively small" reduction was appropriate in these circumstances.
- Where an applicant has offended while on bail and is already serving a concurrent sentence for separate offending, those features are relevant to parity comparisons with co-offenders and may justify an apparently higher sentence.
- No error is established in a sentencing judge's treatment of role and contrition simply because those matters were not expressly afforded greater mitigating weight. Provided the remarks engage with the relevant considerations, the approach will ordinarily withstand challenge.
- McCallum J's separate observations highlight that the parity analysis can be complicated when co-offenders are sentenced for a more serious form of the same offence. The starting point for a lesser offence may nonetheless appear disproportionately high even before aggravating features are added.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 112(1), 112(2), 51B(1)
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Bourke v R [2010] NSWCCA 22
- Dinsdale v R [2008] HCA 54; 202 CLR 321
- Green v The Queen; Quinn v The Queen [2011] HCA 49
- Lowe v The Queen (1984) 154 CLR 606
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- R v Ahmad [2006] NSWCCA 177
- R v Borkowski [2009] NSWCCA 102
- R v Cornwall [2007] NSWCCA 359
- R v Dib [2003] NSWCCA 117
- R v Goundar [2001] NSWCCA 198
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Stambolis [2006] NSWCCA 56
- R v Giac [2008] NSWCCA 280
- R v Winchester (1992) 58 A Crim R 345
- Sutton [2004] NSWCCA 225
- Zreika v R [2012] NSWCCA 44