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Court of Criminal Appeal 9 April 2013

Matthew Rose v R

[2013] NSWCCA 71

Assault & violenceTheft & property
CRIMINAL LAW NO ERROR IN APPLICATION OF GUIDELINE PAROLE PERIOD IMPOSED UPON CO OFFENDER DIFFERENTIATING FACTORS PRESENT NO BREACH OF PARITY PRINCIPLE

Citation: Matthew Rose v R [2013] NSWCCA 71
Court: Court of Criminal Appeal, New South Wales
Date: 9 April 2013
Judge(s): Hoeben CJ at CL, Slattery J, Bellew J (unanimous)

Background

The applicant pleaded guilty in the District Court to two offences under s 97(1) of the Crimes Act 1900: assault with intent to rob in company, and robbery in company. Both offences involved coordinated attacks on taxi drivers in the early hours of the morning, in which the applicant and a co-offender named Hawly used physical violence and threats to attempt to take money. A larceny offence was also taken into account on a Form 1.

For the first offence, the applicant received a non-parole period of 2 years with an additional term of 1 year and 4 months. For the second offence, he received a non-parole period of 2 years commencing 3 months after the first, with the same additional term. The total non-parole period was 2 years and 3 months. Hawly was sentenced 8 days later and received a shorter non-parole period.

The applicant sought leave to appeal, arguing that the sentencing judge misapplied the guideline judgment in R v Henry and that the different non-parole period imposed on Hawly gave the applicant a justifiable sense of grievance under the parity principle.

  • Whether the sentencing judge properly considered and applied the guideline judgment in R v Henry (1999) 46 NSWLR 346 when sentencing the applicant for robbery in company offences.
  • Whether factual errors made by the sentencing judge, including incorrectly characterising a separate co-offender (Hausia) as having committed offences in company with the applicant, were material to the sentence imposed.
  • Whether the applicant had a justifiable sense of grievance under the parity principle, given that Hawly received a shorter non-parole period despite being sentenced for broadly similar offending.

Decision

Ground 1: Application of the guideline judgment

The Court found no error in the sentencing judge's application of R v Henry. His Honour had expressly referenced the guideline, acknowledged that it assumed a late plea of guilty, and then applied a 25 per cent discount to reflect the applicant's early plea. The Court noted that the sentencing judgment was delivered ex-tempore immediately following submissions, a factor relevant to how the reasons should be read. Minor factual errors made by the sentencing judge, including the incorrect description of Hausia as a co-offender alongside the applicant and Hawly, were not material to the outcome.

Ground 2: Parity

The Court rejected the parity argument. Bellew J identified several differentiating factors between the applicant and Hawly, found not only in a comparison of their respective offending but also in the findings made about special circumstances for each. Critically, the Court confirmed the principle from Gill v R [2010] NSWCCA 236: different non-parole periods imposed as a result of different findings about the existence and extent of special circumstances cannot, without more, constitute a breach of the parity principle.

Overall outcome

Even had the Court found error in either ground, it would not have concluded that some other sentence was warranted under s 6(3) of the Criminal Appeal Act 1912. The Court described the sentences imposed as falling towards the lower end of the scale, given the seriousness of the offending.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an ex-tempore sentencing judgment must be read with that context in mind: minor imprecision or factual error will not necessarily constitute appellable error if the errors are not material to the sentence.
  • A sentencing judge's failure to correctly identify which offenders were co-offenders does not automatically vitiate a sentence where that mischaracterisation had no material bearing on the result.
  • Under the parity principle, a co-offender receiving a shorter non-parole period does not automatically give rise to a justifiable sense of grievance: differentiating factors between offenders, including differences in the basis for finding special circumstances, can justify different outcomes.
  • The Court reaffirmed the Gill v R principle that different non-parole periods flowing from different findings on special circumstances do not, of themselves, constitute a breach of parity.
  • No separate sentence was warranted even where arguable error existed, where the sentences imposed were at the lower end of the available range for serious offending of this kind.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 117
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for robbery)
- R v Thomson and Houlton (2000) 49 NSWLR 383 (guideline judgments and plea discounts)
- Gill v R [2010] NSWCCA 236 (parity and special circumstances)
- Gommesen v R [2012] NSWCCA 226
- Green v R (2011) 244 CLR 462
- R v Kelly [2010] NSWCCA 259
- Tatana v Regina [2006] NSWCCA 398
- Warner (aka Jeremy Pachenko) v R [2013] NSWCCA 10