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Court of Criminal Appeal 25 February 2013

DIEP, Danny v R

[2013] NSWCCA 39

Assault & violenceTheft & property
CRIMINAL LAW AGGRAVATED ROBBERY PLEA OF GUILTY PARITY

Citation: DIEP, Danny v R [2013] NSWCCA 39
Court: NSW Court of Criminal Appeal
Date: 25 February 2013
Judge(s): McClellan JA, Hidden J, Adamson J

Background

The applicant pleaded guilty in the Local Court to robbery with the intentional infliction of actual bodily harm, an offence under s 95(1) of the Crimes Act 1900 carrying a maximum of 20 years imprisonment. The offence arose from a planned attack on a victim at his home in Ashfield after the applicant and his co-offender observed him collecting over $2,000 in cash winnings from a poker machine. The victim was seized by the throat and punched repeatedly to the face and head, suffering nasal and orbital fractures that required surgery.

The applicant was 20 years old at the time, had no prior convictions, and cooperated extensively with police, making significant admissions and agreeing to give evidence against his co-offender. Bennett DCJ sentenced him in the District Court to 4 years and 9 months imprisonment with a non-parole period of 2 years and 6 months, applying a 40% discount (15% for assistance, 25% for the plea of guilty) from a starting point of 8 years.

The co-offender, Phan, was subsequently sentenced by a different District Court judge. Phan was sentenced on the basis that he had not personally participated in the violence, though he remained criminally responsible as a participant in the joint criminal enterprise. His sentence was 4 years and 3 months with a non-parole period of 2 years and 3 months, representing a discount of 25% for his guilty plea from an implied starting point of approximately 5 years and 8 months.

  • Whether the sentence imposed on the applicant was manifestly excessive, having inadequate regard to his age, remorse, plea, assistance, and rehabilitation prospects
  • Whether the disparity between the applicant's sentence and the co-offender's sentence gave rise to a justifiable sense of grievance sufficient to warrant appellate intervention on parity grounds

Decision

The Court of Criminal Appeal found that the most compelling ground of appeal was parity. Although the applicant had been sentenced on the basis that he actively participated in the violence (unlike Phan, who was sentenced on the basis that he did not), the difference in starting points was found to be excessive: 8 years for the applicant against approximately 5 years and 8 months for Phan, a gap of over 14 months.

The court acknowledged that some difference in starting points was justified, because the applicant's direct role in the assault was treated as greater than Phan's. However, even accounting for that, the court found the extent of the gap could not be sustained. Phan did not have a clear criminal history (he had prior larceny convictions) and did not provide any assistance to the authorities, yet he received a substantially lower starting point than the applicant who had both a clean record and had assisted police.

Hidden J, with whom McClellan JA and Adamson J agreed, concluded that the disparity between the two sentences produced a justifiable sense of grievance in the applicant that the court should remedy. The court also observed, more broadly, that the case illustrated the importance of co-offenders being dealt with by the same judge wherever possible. A relatively modest reduction was considered appropriate given the seriousness of the offence.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by the District Court quashed
  • The applicant re-sentenced to a non-parole period of 2 years commencing 3 May 2011 and expiring 2 May 2013, with a balance of term of 2 years commencing 3 May 2013 and expiring 2 May 2015 (total sentence of 4 years)

Key Takeaways

  • A disparity between co-offender sentences can ground a successful parity appeal where the difference produces a justifiable sense of grievance, even when the two offenders were sentenced on different factual bases.
  • The Court of Criminal Appeal confirmed that parity analysis must account for all relevant differences between co-offenders, including criminal history, the extent of participation in the offence, assistance provided to authorities, and the discount applied for a guilty plea.
  • Where a co-offender who lacks a clear criminal record and has assisted authorities ends up with a markedly higher starting point than a co-offender with prior convictions and no cooperation, the resulting disparity may not be justifiable on the basis of differing roles alone.
  • Sentencing co-offenders before different judges creates a material risk of unjustifiable sentencing disparity. The court expressly noted this case as a further example emphasising the importance of the same judge sentencing co-offenders.
  • Even where parity concerns justify intervention, the reduction awarded may be modest where the underlying offence is serious. Here, the court reduced the starting point from 8 years to 6 years and 6 months, maintaining all existing discounts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 95(1) (robbery with intentional infliction of actual bodily harm)

Cases:
- No specific cases were cited in the portions of the judgment provided.