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Court of Criminal Appeal 15 February 2013

Vandeventer v R

[2013] NSWCCA 33

DrugsTheft & property
CRIMINAL LAW WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Vandeventer v R [2013] NSWCCA 33
Court: NSW Court of Criminal Appeal
Date: 15 February 2013
Judges: McClellan CJ at CL, Rothman J, Adamson J (judgment delivered by Adamson J, with whom the others agreed)

Background

The applicant, a young man aged almost 19 at the time of the offences, pleaded guilty in the District Court to five aggravated break, enter and steal or break, enter with intent offences committed across a two-week spree in September 2010 in the Albury region. The targets were commercial premises closed for business, and no persons were present during any of the break-ins. The stolen cash and property, including electronics and alcohol, were taken to fund a drug addiction.

The District Court imposed an aggregate sentence of five years and six months, with a non-parole period of three years and nine months, after applying a 30% discount for the guilty plea and an offer of assistance. The Sentencing Judge found special circumstances given the applicant's need for treatment for mental illness arising from drug use, which reduced the proportion of the non-parole period relative to the head sentence.

The applicant sought leave to appeal against sentence, arguing that the sentence was manifestly excessive, that the principle of totality had not been properly applied, and that a justifiable sense of grievance arose from the disparity between his sentence and that of a co-offender, Mr Harmer, who was sentenced separately by a different District Court judge approximately three months later.

  • Whether the Sentencing Judge failed to apply the principle of totality in accordance with Pearce v The Queen when imposing the aggregate sentence
  • Whether the disparity between the applicant's sentence and that of co-offender Mr Harmer gave rise to a justifiable sense of grievance under the parity principle
  • Whether the overall sentence was manifestly excessive

Decision

Totality and the aggregate sentence. The Court examined the structure of the aggregate sentence and observed that the Sentencing Judge had not, as required by s 54(4A) of the Crimes (Sentencing Procedure) Act 1999, indicated the non-parole period that would have been set for each of the four aggravated break enter and steal offences individually. The Court noted this omission but accepted the applicant's own concession that it did not have the effect of impermissibly inflating the sentence. No error vitiating the application of totality principles was established.

Parity with Mr Harmer. The Court set out in detail the very different circumstances that shaped Mr Harmer's sentence. Mr Harmer's offences spanned a longer period, he had a more extensive prior record, one of his matters included a 2007 offence at a university, and the applicable discounts for plea and assistance varied across each charge. Only one of the five offences charged against the applicant was committed in company with Mr Harmer. Charteris DCJ, who sentenced Mr Harmer, had not been provided with the Sentencing Judge's remarks on sentence and was working from information given from the bar table. The Court concluded that, viewed in context, the differences in outcome reflected the legitimate exercise of individual sentencing discretions applied to materially different facts and offenders. The applicant's sense of grievance was not justified by reference to any objective criteria.

Manifest excess. The Court reiterated established High Court authority that an appellate court is not entitled to substitute its own view simply because it might have exercised the discretion differently, and that statistical comparisons with other sentences are of little utility, particularly when assessing an aggregate sentence for five offences. The consistency to which sentencing law aspires is consistency in the application of legal principles, not mathematical equivalence across individual cases. No error in the Sentencing Judge's approach to parity, consistency or totality was identified, and the ground of manifest excess also failed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A disparity between the sentences of co-offenders does not automatically give rise to a justifiable sense of grievance; the parity principle requires a careful comparison of all objective and subjective factors applicable to each offender, and differences in those factors can fully account for differences in outcome.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that statistical comparisons with sentences imposed in other cases are of limited assistance, and of even less utility when the sentence under review is an aggregate sentence for multiple offences.
  • Sentencing consistency, as affirmed by reference to Hili v The Queen, means consistency in applying relevant legal principles, not numerical equivalence between sentences.
  • A Sentencing Judge's failure to comply with the s 54(4A) obligation to indicate the individual non-parole periods for offences within an aggregate sentence is a procedural irregularity, but it does not necessarily vitiate the sentence where the applicant does not demonstrate that it caused any impermissible inflation of the overall term.
  • The Court of Criminal Appeal will not intervene on grounds of manifest excess merely because other cases can be found in which offenders appear to have been treated more leniently; such comparisons will always be available to both sides and cannot determine whether a sentence falls outside the permissible range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112(2), 113(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2C), 53A(1), 54(4A), 54B(4A)

Cases
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Attorney-General's Application (No 1) R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520