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Court of Criminal Appeal 13 August 2014

Wilson v R; Barrie v R

[2014] NSWCCA 150

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW LEAVE TO APPEAL AGAINST SENTENCE OFFENDER OFFENDER WHETHER SENTENCES MANIFESTLY EXCESSIVE

Citation: Wilson v R; Barrie v R [2014] NSWCCA 150
Court: Court of Criminal Appeal, NSW
Date: 13 August 2014
Judges: Leeming JA, Button J, RS Hulme AJ (Hulme AJ delivering the principal judgment)

Background

Two applicants, Wilson and Barrie, sought leave to appeal against sentences imposed by Charteris DCJ in the District Court on 11 October 2012. Both had been convicted of armed robbery while in company at the Petersham Inn Hotel on 14 September 2010, an offence under s 97(2) of the Crimes Act 1900 (NSW) carrying a maximum of 25 years imprisonment. The robbery involved assembling patrons and staff at gunpoint, forcing the manager to his office, and kicking a patron down a flight of stairs.

Charteris DCJ sentenced Wilson to 8 years and 3 months (non-parole period of 5 years and 3 months) and Barrie to 9 years (non-parole period of 4 years and 9 months). Barrie was also sentenced for a separate armed robbery at the Newington Inn, producing an effective total sentence of 12 years with a non-parole period of 7 years and 9 months.

A co-offender, Crisp, had been sentenced by a different judge to only 5 years with a non-parole period of 3 years for the same Petersham Inn offence. Crucially, when Crisp was sentenced, the Office of the Director of Public Prosecutions had failed to inform that sentencing judge of the sentences already imposed on Wilson and Barrie. The disparity that resulted formed the central complaint in both appeals.

  • Whether each applicant had a justifiable sense of grievance arising from the disparity between their sentences and the sentence imposed on co-offender Crisp.
  • Whether Charteris DCJ erred in failing to take into account the restrictive nature of Barrie's bail conditions (time spent in residential rehabilitation facilities) when imposing sentence.
  • Whether Charteris DCJ gave appropriate weight to Barrie's subjective circumstances.
  • Whether Charteris DCJ failed to apply the totality principle correctly when accumulating Barrie's sentences.
  • Whether the sentences imposed on Wilson and Barrie were manifestly excessive.

Decision

The Court acknowledged, in frank terms, that Crisp's sentence was "manifestly and obviously inadequate" and that the disparity had arisen directly from the prosecution's failure to inform the sentencing judge of the co-offenders' earlier sentences. Nevertheless, the Court confirmed the well-established principle that an unjustifiably lenient co-offender sentence does not automatically reduce an otherwise appropriate sentence. The disparity had to be weighed against the differing subjective and objective features of each offender.

The Court found that significant differences justified the gap between the applicants and Crisp. Crisp had only a stolen motor vehicle on his Form 1, received a 25% plea discount, and had less serious objective involvement. Wilson received only a 10% plea discount and carried a more serious criminal history and additional Form 1 offences. Barrie's Form 1 included an earlier armed robbery and a break-and-enter, and he was the offender who had personally kicked the patron down the stairs and struck the hotel manager. These differences meant neither applicant could fully close the gap with Crisp's sentence.

On Barrie's grounds relating to his bail period in residential rehabilitation facilities, the Court accepted that time spent in those facilities under restrictive conditions could warrant consideration under sentencing principles. However, the Court found that Barrie's non-compliance with some conditions, including being discharged from one facility for drug use, limited the weight that time could attract. The Court also found some error in the accumulation of Barrie's sentences and concluded that the extent of accumulation of both the non-parole period and the balance of term should be modestly reduced to better reflect the totality principle.

In Wilson's case, the Court held that the non-parole period of 5 years and 3 months was appropriate and should not be reduced, but the balance of term (the period served after parole eligibility) was reduced to bring the overall sentence to 7 years and 6 months. For Barrie, the Court reduced the effective non-parole period to 6 years and 6 months and the effective full term to 9 years and 9 months, achieved by adjusting the degree of accumulation between his two sentences.

Orders Made

Wilson:
- Leave to appeal granted; appeal allowed; original sentence quashed.
- Re-sentenced to a non-parole period of 5 years and 3 months commencing 1 April 2011, with a balance of term of 2 years and 3 months commencing 1 July 2016.
- Parole eligibility date recorded as 1 July 2016.

Barrie:
- Leave to appeal granted; appeal allowed; original sentences quashed.
- For the Newington Inn offence: non-parole period of 4 years and 6 months commencing 18 December 2010, with a further term of 3 years commencing 18 June 2015.
- For the Petersham Inn offence: non-parole period of 4 years and 9 months commencing 18 September 2012, with a further term of 3 years and 3 months commencing 18 June 2017.
- Parole eligibility date recorded as 18 June 2017.

Key Takeaways

  • A co-offender's manifestly inadequate sentence does not automatically entitle other co-offenders to a reduction in their own appropriate sentences. The Court of Criminal Appeal reaffirmed that disparity arguments require close examination of the individual circumstances of each offender before any adjustment is warranted.
  • Where significant differences exist in Form 1 offences, plea discounts, criminal histories, and roles in the offending, those differences can justify substantial sentencing gaps between co-offenders even where some grievance may otherwise be acknowledged.
  • Time spent in residential rehabilitation facilities under restrictive bail conditions may be a relevant sentencing consideration, but non-compliance with those conditions limits the weight that period can attract.
  • Under the totality principle, a sentencing court must give genuine consideration to whether the cumulative effect of accumulated sentences is proportionate to the overall criminality involved. In Barrie's case, the Court found the accumulation exceeded what the totality principle permitted and adjusted accordingly.
  • Failing to inform a sentencing judge of sentences already imposed on co-offenders can create disparity that leads to appellate intervention, even where the resulting lower sentence is itself found to be inadequate. The Court expressed clear criticism of the prosecution's failure in that regard.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 24

Cases:
- Bonett v R [2013] NSWCCA 234
- R v Campbell [1999] NSWCCA 76
- R v Delaney [2003] NSWCCA 342
- R v Eastway (unreported, NSWCCA, 19 May 1992)
- R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v MAK [2006] NSWCCA 381; 167 A Crim R 159
- R v Merrin [2007] NSWCCA 255; 174 A Crim R 100
- R v Spiteri [1999] NSWCCA 3
- Renshaw v R [2012] NSWCCA 91
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460