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Court of Criminal Appeal 12 September 2014

Yousif v R

[2014] NSWCCA 180

Theft & property
CRIMINAL LAW SENTENCE APPEAL OFFENDERS CHARGED WITH SAME OFFENCE DIFFERENT SENTENCES IMPOSED OFFENDERS.

Citation: Yousif v R [2014] NSWCCA 180
Court: NSW Court of Criminal Appeal
Date: 12 September 2014
Judges: Hoeben CJ at CL; Adamson J; Bellew J

Background

The appellant pleaded guilty on the first day of trial to one count of robbery in company under s 97(1) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 20 years' imprisonment. The offence involved two men approaching a lone passenger on a late-night train between Strathfield and Lidcombe, demanding his mobile phone and wallet. The co-offender, Allam, produced a knife and struck the complainant; the appellant stood beside the victim throughout the attack and accepted responsibility for the violence used.

The appellant was sentenced in the District Court to a non-parole period of approximately 2 years and 2 months with an equal balance of term, giving a total sentence of approximately 4 years and 3 months. Allam, who had been convicted after a judge-alone trial (receiving no discount for a guilty plea), received a total sentence of 5 years with a non-parole period of 2 years and 6 months.

The appellant sought leave to appeal on the sole ground that the difference between his sentence and Allam's gave rise to an unjustified sense of grievance, arguing the disparity was not adequately explained by the differences between the two offenders.

  • Whether the difference in sentences imposed on the appellant and his co-offender, Allam, constituted an unjustified disparity giving the appellant a justifiable sense of grievance.
  • Whether the sentencing judge adequately accounted for the distinctions between the two offenders when addressing parity.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal unanimously. Hoeben CJ at CL (with Adamson J and Bellew J agreeing) found that the sentencing judge had correctly identified and assessed the relevant disparities between the two offenders.

The objective seriousness of each offender's conduct was broadly comparable. Although Allam undoubtedly held the knife, the appellant stood beside the victim throughout the offending, played an important role in intimidation, and, by his plea, adopted responsibility for the violence used. The Court noted the evidence did not establish that the appellant had not punched the victim; it simply could not be proved which offender (or whether both) had done so.

The subjective cases of the two offenders differed substantially. The appellant had 14 prior convictions for serious offences including robbery in company and armed robbery, was on parole for an identical offence at the time, denied involvement until the first day of trial (receiving only a 10 per cent discount), and had accumulated 42 institutional misconduct charges while in custody, demonstrating an absence of any intention to change behaviour. His prospects of rehabilitation were characterised as almost nil. By contrast, Allam had a single prior conviction for an identical offence, completed a rehabilitation program, showed genuine remorse, and had a good employment record, even though his prospects were described as guarded.

Taking those distinctions into account, including the backdating of the appellant's sentence commencement date and the sentencing judge's generous finding of special circumstances (producing a 50 per cent ratio of non-parole period to total sentence despite poor rehabilitation prospects), the Court concluded the difference in sentences did not give the appellant a justifiable sense of grievance. The ground of appeal was not made out.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentence disparity between co-offenders does not constitute an unjustified grievance where the difference is adequately explained by substantially different subjective circumstances, even if the objective seriousness of their conduct is broadly similar.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a co-offender's significantly worse criminal history, lack of genuine remorse, late guilty plea, and poor in-custody behaviour are legitimate and weighty factors justifying a comparatively heavier sentence.
  • Where evidence cannot establish which of two co-offenders committed specific acts of violence during a joint offence, a sentencing court is not required to treat the more actively identified offender and the less-identified offender as equally culpable in all respects, but the distinction may be modest.
  • Under the parity principle, the relevant question is whether the applicant has a justifiable sense of grievance, not merely whether sentences are different; differences grounded in the offenders' subjective cases will ordinarily justify disparity.
  • A very generous finding of special circumstances in the appellant's favour, despite negligible rehabilitation prospects, was treated by the Court as a factor weighing against the parity argument.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)

Cases
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 463
- Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
- Kelso v R [2010] NSWCCA 34
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (guideline judgment for robbery)
- R v Jones (unreported, NSWCCA, 30 June 1994)
- Wong v R [2001] HCA 64; 207 CLR 584