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Court of Criminal Appeal 12 November 2013

Houri v R

[2013] NSWCCA 279

Theft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL AGGRAVATED ARMED ROBBERY OFFENCES PAROLE COMPONENT NO ERROR ASSERTED LACK OF PARITY WITH CO

Citation: Houri v R [2013] NSWCCA 279
Court: Court of Criminal Appeal, NSW
Date: 12 November 2013
Judges: Emmett JA, R A Hulme J, Bellew J

Background

The appellant was a 19-year-old who participated in a series of armed robberies at three Sydney hotels in 2011. The offences involved balaclavas, firearms and knives, detailed planning using apparent insider knowledge of security procedures, and were carried out in the early hours of the morning. He pleaded guilty to four offences of aggravated armed robbery under s 97(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years imprisonment.

In December 2012, the District Court sentenced the appellant to a total effective term of 7 years and 3 months, with a minimum custodial component (non-parole period) of 5 years and 6 months. The sentencing judge found special circumstances warranting an adjustment to the standard statutory ratio between head sentence and non-parole period, noting the appellant's age, his first time in custody, and his rehabilitation needs.

The appellant sought leave to appeal to the Court of Criminal Appeal, arguing the sentencing judge failed to adequately reflect the special circumstances finding in the overall non-parole period, and that he had a justifiable sense of grievance arising from disparity with a co-offender.

  • Whether the sentencing judge erred by failing to adequately reflect the finding of special circumstances in the overall non-parole period imposed across all sentences.
  • Whether the appellant had a justifiable sense of grievance arising from a disparity between his sentence and that of a co-offender, where special circumstances were found to have been reflected more clearly in the co-offender's sentence.

Decision

On the first ground, the Court found no error in the sentencing judge's approach. Although special circumstances were found in relation to the individual offences and the statutory ratio was adjusted for each, her Honour expressly noted that the total non-parole period remained close to the statutory ratio when viewed in light of the total sentence. The Court confirmed that a finding of special circumstances does not compel any particular reduction in the non-parole period: the sentencing discretion requires weighing all relevant factors, and the proportions in the overall sentence reflected the judge's stated reasoning.

On the second ground, the Court rejected the parity argument. The appellant and his co-offender were sentenced for substantially different offences on substantially different factual bases, and their subjective circumstances also differed. Only one offence was common to both. There was therefore no equality of "all relevant facts and circumstances" sufficient to ground a justifiable sense of grievance.

The Court drew on R v Do [2005] NSWCCA 209, where Howie J held that disparity does not generally arise simply because special circumstances were found for one co-offender and not another. The exception recognised in that case and confirmed in Lau v R [2010] NSWCCA 43, where personal circumstances are "indistinguishable," had no application on the present facts.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) does not compel a reduction in the non-parole component; the sentencing judge retains a discretion to weigh that finding against all other relevant considerations.
  • Where a sentencing judge expressly acknowledges a special circumstances finding and explains how the overall sentence proportions reflect that reasoning, no appealable error arises merely because the non-parole period remains close to the statutory ratio.
  • Parity between co-offenders does not arise from the mere fact that special circumstances were found for one and not the other; a justifiable sense of grievance requires substantial equality across all relevant facts and circumstances, including the nature of the offences and the subjective cases.
  • In dismissing the parity argument, the Court of Criminal Appeal confirmed that where co-offenders are sentenced for largely distinct offences on different factual bases, there is no legitimate foundation for a grievance based on differential treatment of special circumstances findings.
  • The R v Henry guideline for armed robbery continues to inform sentencing for aggravated armed robbery under s 97(2), but the higher maximum penalty and aggravating features such as planning, firearms, and multiple offenders may place individual cases well above the guideline range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(2) (aggravated armed robbery)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Cases
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Do [2005] NSWCCA 209
- Lau v R [2010] NSWCCA 43
- Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
- Henderson v R [2012] NSWCCA 65
- Caristo v R [2011] NSWCCA 7