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Court of Criminal Appeal 19 February 2013

LANG, Dylan Craig v R

[2013] NSWCCA 29

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL MANIFESTLY EXCESSIVE WHETHER PARITY BETWEEN CO OFFENDERS

Citation: LANG, Dylan Craig v R [2013] NSWCCA 29
Court: NSW Court of Criminal Appeal
Date: 19 February 2013
Judges: McClellan CJ at CL, Rothman J, Adamson J

Background

The applicant was sentenced in the District Court at Newcastle in September 2011 for one count of robbery armed with an offensive weapon and two counts of aggravated break and enter with intent to commit a serious indictable offence. Two further offences were taken into account on a Form 1. The overall effective sentence was a head sentence of 9 years' imprisonment with a non-parole period of 5 years.

The applicant had participated in a service station robbery involving a machete and a fake pistol, and in a series of break and enter offences at commercial premises. He had a prior criminal record and was serving a sentence at the time of sentencing. His co-offender in the robbery, who shared the same charged offences on the indictment, received a significantly lighter sentence: a head sentence of 3.5 years with a non-parole period of 21 months.

The applicant sought leave to appeal, arguing that the sentence was manifestly excessive and that the disparity between his sentence and the co-offender's gave rise to a justifiable sense of grievance.

  • Whether the sentence imposed on the applicant was manifestly excessive, having regard to the guideline judgment in R v Henry and sentencing statistics for armed robbery.
  • Whether the disparity between the applicant's sentence and that of his co-offender gave rise to a justifiable sense of grievance, particularly where the sentencing judge may have misunderstood the degree of concurrency in the applicant's sentence when later sentencing the co-offender.

Decision

Manifest excess: Rothman J (with whom McClellan CJ at CL and Adamson J agreed) found no manifest excess. The Henry guideline suggested a head sentence generally falling between 4 and 5 years for armed robbery with a late plea and discount, but the court emphasised that a guideline is a check or guide, not a mandated outcome to be applied mathematically. The applicant's criminal history, his role in the offending (holding a machete), the Form 1 offences, and the need for both retribution and specific deterrence all supported a sentence well above the Henry range. Sentencing statistics were similarly treated as a guide rather than a constraint.

Parity: The co-offender's markedly lighter sentence was principally explained by the absence of any prior criminal record, his being on bail rather than in custody at sentencing, and the greater weight that leniency and rehabilitation carried in his case. The sentencing judge who sentenced the co-offender appeared to have misunderstood the degree of concurrency within the applicant's sentence, treating some of the applicant's cumulative sentences as concurrent when they were not.

The Court accepted, without deciding, that this misunderstanding may have affected the sentencing judge's comparison. However, it held that this did not automatically generate a justifiable sense of grievance. Sentencing is an intuitive process that requires synthesis of multiple, sometimes competing factors. The task for the appellate court remained whether the difference in outcome was objectively capable of producing a justifiable sense of grievance. On the facts, the significant differences between the applicant and the co-offender, particularly the applicant's prior record and the weight given to retribution and deterrence in his case, meant the disparity was sufficiently explained.

Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A guideline judgment such as R v Henry functions as a sentencing guide, not a mathematical formula. Sentencing judges may depart from the indicated range where individual features of the offending and the offender warrant it.
  • Where a sentencing court, in dealing with a co-offender, proceeds on a misunderstanding of the concurrency of the earlier sentence, that error does not automatically establish that the earlier-sentenced offender has a justifiable sense of grievance. The appellate court must still assess the disparity objectively.
  • Significant differences between co-offenders, including criminal history, the availability of rehabilitation-focused leniency, and the relative weight of retribution and deterrence, can justify substantial disparities in sentence outcomes.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the parity principle requires an objective, not merely arithmetic, assessment of whether the sentencing outcome produces a justifiable sense of grievance.
  • Sentencing statistics, like guideline judgments, provide context and assist consistency, but they do not cap the discretion available to sentencing judges in cases with aggravating features.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 112(2)

Cases
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 231
- Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Johnson [2004] NSWCCA 76
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Wong v R; Leung v R [2001] HCA 64; (2001) 207 CLR 584