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Court of Criminal Appeal 19 February 2013

SEN, Akin v R

[2013] NSWCCA 30

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL PARITY WITH CO OFFENDER JUSTIFIABLE SENSE OF GRIEVANCE APPEAL ALLOWED

Citation: SEN, Akin v R [2013] NSWCCA 30
Court: NSW Court of Criminal Appeal
Date: 19 February 2013
Judges: McClellan CJ at CL, Rothman J, Bellew J

Background

The appellant was convicted of robbery in company and detaining a person in company with intent to obtain advantage, arising from a planned home robbery at Bidwill on 23 January 2008. The appellant and three others, including his co-offender, travelled to the victim's premises, entered the house, physically restrained the victim, and stole cash, a wallet, a watch, and other items. A knife was used during the robbery by another participant; the sentencing judge found no evidence the appellant knew a knife would be involved.

The appellant was sentenced in the District Court on 20 May 2011 to 5 years, 4 months and 24 days imprisonment, with a non-parole period of 4 years and 18 days. His co-offender was sentenced by the same judge to 4 years, 2 months and 30 days, with a non-parole period of 2 years, 1 month and 14 days.

The sole ground of appeal was sentencing disparity. The sentencing judge had himself observed that the appellant and his co-offender played "similar roles" in the offending, and the Crown conceded on appeal that their respective criminality was "essentially the same."

  • Whether the disparity between the appellant's sentence and his co-offender's sentence gave rise to a justifiable sense of grievance, triggering the parity principle.
  • Whether any differences in the subjective circumstances of the two offenders sufficiently explained the sentencing differential.
  • Whether special circumstances existed justifying a longer-than-standard balance of term on the re-sentence.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal. Rothman J, with whom McClellan CJ at CL and Bellew J agreed, applied the parity principle, which derives from the fundamental norm of equal justice: like cases should be treated alike, and differences in treatment must be proportionate to genuine differences in circumstances.

The Court noted a striking anomaly in the charging: the co-offender was charged with more serious offences carrying a maximum of 25 years and a standard non-parole period, while the appellant faced offences carrying a maximum of 20 years with no standard non-parole period. Despite this, the appellant received a substantially heavier sentence. The Crown properly conceded the criminality was essentially the same, and the sentencing judge himself had identified no meaningful difference in their respective roles.

Rothman J accepted that some disparity could be justified by the differing subjective circumstances of the two offenders. Accounting for those differences, the Court assessed that an appropriate differential would be approximately six months in the head sentence. The resulting sentence of 4 years and 9 months replaced the original term of over 5 years.

The Court also found special circumstances warranting a longer balance of term. The appellant had commenced drug rehabilitation in prison and needed an extended period of community supervision to consolidate that rehabilitation and to manage his diagnosed bipolar disorder with appropriate treatment and medication. The Court also took the opportunity to note that sentencing judges should not express sentences in days, and should instead use commencement dates and rounded figures.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence quashed.
  • The appellant re-sentenced on each count to a non-parole period of 3 years' imprisonment, commencing 1 March 2011 and concluding 28 February 2014, with a balance of term of 1 year and 9 months, concluding 30 November 2015.
  • First eligible for release on parole: 28 February 2014.

Key Takeaways

  • The parity principle requires that co-offenders with essentially the same criminality receive sentences that do not differ to a degree that would produce a justifiable sense of grievance, even where the offenders were charged with different offences carrying different maximum penalties.
  • A sentencing court's own finding that two co-offenders played "similar roles" is a significant factor weighing in favour of parity, and the Crown's concession of essentially equal criminality further reinforced that position in this case.
  • Differences in subjective circumstances between co-offenders can justify some sentencing differential, but the differential must be proportionate to those differences; a gap far exceeding what the circumstances explained was held to be an error.
  • Special circumstances justifying an extended balance of term can be established where an offender requires a substantial period of community supervision to complete rehabilitation programmes commenced in custody and to maintain ongoing treatment for a diagnosed mental health condition.
  • The Court of Criminal Appeal reiterated that sentences should not be expressed in days; commencement dates and rounded terms are the appropriate mechanism for accommodating discounts and time already served.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (sentencing purposes)

Cases:
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 86 ALJR 36
- Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
- Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
- Jimmy v R [2010] NSWCCA 60
- Carruthers v R [2007] NSWCCA 276
- Andrews v Law Society of British Columbia [1989] 1 SCR 143
- R v Tiddy [1969] SASR 575
- Wong v R [2001] HCA 64; (2001) 207 CLR 584