Citation: Ith v R [2013] NSWCCA 280
Court: NSW Court of Criminal Appeal
Date: 18 November 2013
Judges: Hoeben CJ at CL; Johnson J; Bellew J
Background
The applicant was convicted by jury of robbery in company causing grievous bodily harm, contrary to s 98 of the Crimes Act 1900 (NSW). The offence attracted a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. In March 2009, the District Court sentenced the applicant to a non-parole period of 6 years, with a balance of term of 3 years.
The offence occurred in the early hours of 1 February 2007 near a hotel in Cabramatta. The applicant and a co-offender, Dharma, followed the victim after watching him receive poker machine winnings totalling approximately $2,000. They chased the victim, during which the applicant struck him, threatened him with a knife, and kicked him with sufficient force to cause a retinal tear, a fractured orbital socket, and other facial injuries. The $2,000 was stolen.
More than four years after sentencing, the applicant sought an extension of time to apply for leave to appeal against the severity of his sentence. He relied on the High Court's 2011 decision in Muldrock v The Queen, which changed the approach to the use of standard non-parole periods in sentencing.
Legal Issues
- Whether the applicant was entitled to an extension of time to appeal against sentence, given the delay and the principle of finality
- Whether "Muldrock error" was established in the original sentencing
- Whether, even with that error established, a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912 (NSW) such that granting the extension would not be futile
- Whether the sentencing judge erred in determining the commencement date of the sentence
- Whether the parity principle applied, given that co-offender Dharma received a shorter sentence
Decision
Both parties agreed that "Muldrock error" had occurred: the original sentencing judge had incorrectly treated the standard non-parole period as a statutory benchmark or starting point, rather than as one of two matters to be considered alongside the full range of relevant factors. Ground 1 was therefore conceded as made out. The court read this judgment alongside its earlier decision in Abdul v R [2013] NSWCCA 247, which addressed the same type of error.
Despite the conceded error, the Crown maintained that no lesser sentence was warranted in law. The Court of Criminal Appeal re-exercised the sentencing discretion and examined the full circumstances. The offence was found to be a serious one: it was premeditated, involved a dangerous weapon, caused significant physical injury, and was committed while the applicant was on parole for three prior armed robberies. The applicant showed no remorse. The court found that, on a correct application of sentencing principles, the sentence imposed was not excessive.
On the commencement date ground, the applicant argued a miscarriage in how that date was calculated. The court found no error in the sentencing judge's reasoning on this point.
On parity, the applicant contended that his sentence was disproportionately harsh compared to Dharma's. The court rejected this. Dharma pleaded guilty and received a discount accordingly, played a somewhat lesser role in the physical assault, and demonstrated some remorse. By contrast, the applicant was found guilty after trial, showed no remorse, and carried a significantly more serious criminal history, including being on parole at the time of this offence. The court held that any sense of grievance the applicant felt was not "justified" in the legal sense required to engage the parity principle. Granting the extension of time would therefore be futile, as none of the grounds had sufficient prospects of success to justify the considerable delay.
Orders Made
- The application for an extension of time to apply for leave to appeal against sentence was dismissed.
Key Takeaways
- Establishing "Muldrock error" in the original sentencing is not sufficient on its own to obtain a reduced sentence on a late appeal. The Court of Criminal Appeal will re-exercise the sentencing discretion and may conclude that no lesser sentence is warranted in law.
- A considerable lapse of time between sentencing and the application for an extension of time engages the principle of finality. The court will refuse the extension where granting it would be futile.
- Under the parity principle, a co-offender's lighter sentence does not automatically give rise to a justified grievance where the two offenders differ materially in their roles, criminal histories, remorse, and plea outcomes.
- The Court of Criminal Appeal confirmed that sentencing courts are required to take a more serious view of offending committed while the offender is on parole, treating it as a factor in aggravation.
- No error was established in the commencement date of the sentence, and the grounds relating to parity and the sentence start date were each dismissed independently of the Muldrock concession.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 98 (robbery in company causing grievous bodily harm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A(2) (standard non-parole periods)
- Criminal Appeal Act 1912 (NSW), s 6(3) (power to re-sentence)
Cases
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Abdul v R [2013] NSWCCA 247
- Postiglione v R [1997] HCA 26; 189 CLR 295
- R v Chandler; Chandler v R [2012] NSWCCA 135
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Ith v R [2012] NSWCCA 70
- Duncombe v R [2013] NSWCCA 271
- Bourke v R [2010] NSWCCA 22; 199 A Crim R 38
- Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
- R v DW [2012] NSWCCA 66; 221 A Crim R 63
- R v Kitchener [2003] NSWCCA 134
- R v Kaiva (CCA, unreported, 9 November 1998)