AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 2 May 2013

Hillsley v R

[2013] NSWCCA 78

Theft & property
CRIMINAL LAW SENTENCE APPEAL APPLICANT AND CO APPLICANT PLEADS NOT GUILTY OFFENDERS AND UPON HIM WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: Hillsley v R [2013] NSWCCA 78
Court: Court of Criminal Appeal, NSW
Date: 2 May 2013
Judge(s): Hoeben CJ at CL; Slattery J (principal judgment); Bellew J

Background

The applicant was convicted after a jury trial of one count of aggravated break, enter and steal under s 112(2) of the Crimes Act 1900, following an incident at a Wagga Wagga commercial tyre business on the night of 24 to 25 July 2010. The trial judge found that the applicant had solicited two associates, and then organised and directed their participation in two separate incursions into the premises to steal tyres. Police intercepted the group during the second trip, and the stolen goods were recovered and returned.

His two co-offenders pleaded guilty, gave evidence against the applicant at his trial, and were sentenced by a different judge to suspended terms of imprisonment. The applicant, who pleaded not guilty and maintained that he had been at a social function elsewhere at the time, was sentenced to 46 months imprisonment (3 years and 10 months) with a non-parole period of 26 months (2 years and 2 months).

The applicant sought leave to appeal that sentence in the Court of Criminal Appeal, arguing that the disparity between his sentence and those of his co-offenders gave rise to a justifiable sense of grievance, and that his sentence was in any event manifestly excessive.

  • Whether the difference in sentences between the applicant and his co-offenders, who received suspended sentences, created a justifiable sense of grievance warranting intervention.
  • Whether the sentence of 46 months imprisonment with a 26-month non-parole period was manifestly excessive in all the circumstances.

Decision

On disparity: The Court acknowledged the established principle from Lowe v R and Postiglione v R that co-offenders should not, without good reason, receive sentences so different as to give a reasonable onlooker a sense of injustice. However, the Court found that several legitimate factors explained the difference here. The co-offenders pleaded guilty, giving them the benefit of the utilitarian discount for that plea. They also gave evidence for the Crown against the applicant, which was a separate mitigating factor. The applicant, by contrast, contested the charge and was found guilty after a trial, meaning he was entitled to no such discount.

The Court also pointed to the applicant's role as organiser and instigator of the offence. The sentencing judge was entitled to treat him as more culpable than the co-offenders. The Court confirmed, drawing on Green v The Queen and Jimmy v R, that equal culpability is not the same as equal sentences, and that a plea of guilty and co-operation with authorities are well-recognised distinctions that can justify divergent outcomes.

On manifest excess: The Court rejected the contention that the sentence was unreasonable or plainly unjust within the meaning of Markarian and Carroll. Against a maximum of 20 years and a standard non-parole period of 5 years under the Crimes (Sentencing Procedure) Act 1995, the sentence imposed was relatively modest. The applicant had a prior criminal history that included similar break-and-enter offences, and was on parole at the time of the offending, which elevated the significance of personal deterrence and community protection. The Court noted that the sentencing judge had already taken into account the applicant's youth, his significantly below-average intellectual functioning (as reported by a psychologist), and the risk of institutionalisation, findings that led to a reduction of the non-parole period to 57 percent of the head sentence rather than the usual 75 percent.

Orders Made

  • Application for leave to appeal under Criminal Appeal Act 1912 s 5(1)(c): granted.
  • Appeal dismissed.

Key Takeaways

  • A plea of guilty and co-operation with the Crown by giving evidence against a co-accused are recognised mitigating factors that can legitimately explain substantial differences in sentences between co-offenders, even where the underlying offence is the same.
  • In dismissing the appeal, the Court confirmed that sentencing disparity does not produce a justifiable sense of grievance where the differences between co-offenders are legally meaningful, including relative culpability, plea history, and assistance to authorities.
  • Where an offender is found to be the organiser and instigator of a joint criminal enterprise, greater culpability can support a heavier sentence than that received by participants who were recruited by that offender.
  • Under the Crimes (Sentencing Procedure) Act 1995, a finding of special circumstances (here, based on intellectual limitations and risk of institutionalisation) can reduce the non-parole period below the default proportion of 75 percent of the head sentence.
  • Offending while on parole is an aggravating factor that increases the relevance of personal deterrence and community protection in the sentencing calculus.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1995 (NSW), ss 44(2), 54A

Cases:
- Carroll v The Queen [2009] HCA 13
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- House v R [1936] HCA 40; 55 CLR 499
- Jimmy v R (2010) 77 NSWLR 540
- Leeth v Commonwealth [1992] HCA 29; 174 CLR 955
- Lowe v R [1984] HCA 46; 154 CLR 606
- Markarian v R [2005] HCA 25; 228 CLR 357
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Postiglione v R [1997] HCA 29; 189 CLR 295
- Rae v R [2011] NSWCCA 211
- Shortland v R [2013] NSWCCA 4
- Warner v Regina [2013] NSWCCA 10
- Wong v R [2001] HCA 64; 207 CLR 584