Citation: Gaggioli v R [2014] NSWCCA 246
Court: NSW Court of Criminal Appeal
Date: 31 October 2014
Judges: Hoeben CJ at CL, Fullerton J, Adamson J
Background
The applicant pleaded guilty in the Local Court to three counts of aggravated robbery in company under s 97(2) of the Crimes Act 1900 (NSW), an offence carrying a maximum of 25 years imprisonment. The offences arose from a single episode in which the applicant and a co-offender entered the back seat of a car in the Star City Casino car park and robbed three victims at gunpoint, threatening them repeatedly before being arrested hours later at the same casino.
The applicant was sentenced in the District Court in July 2013 to a total term of six years imprisonment with a non-parole period of three years and six months. The three individual sentences were partially accumulated, with a 25 per cent discount applied for the early guilty pleas.
The co-offender, Zarb, was later committed to stand trial on the same charges. On the first day of trial, the Crown presented an alternative indictment under s 97(1), alleging robbery with an object that looked like a pistol rather than an actual dangerous weapon. Zarb pleaded guilty to those alternative counts and received a lighter overall sentence. The applicant then sought leave to appeal, arguing that this differential treatment by the prosecution generated a justifiable sense of grievance and that the partial accumulation of sentences was an error.
Legal Issues
- Whether the prosecution's acceptance of Zarb's pleas to lesser alternative charges, resulting in a shorter sentence, engendered a justifiable sense of grievance in the applicant sufficient to warrant intervention on parity grounds.
- Whether the sentencing judge erred by partially accumulating the sentences on Counts 2 and 3 rather than ordering them to be served concurrently.
Decision
On the first ground, the Court found no justifiable sense of grievance. The prosecution's decision to include alternative charges under s 97(1) was a legitimate exercise of discretion, explained by the real possibility that the Crown could not prove beyond reasonable doubt that the weapon was an actual firearm rather than a replica, given that neither the gun nor the stolen property were ever recovered. Acceptance of pleas to alternative counts in those circumstances attracted no criticism.
The Court also noted that the difference in sentences between the applicant and Zarb was explicable on multiple grounds: the applicant was charged and sentenced under the provision carrying the higher maximum penalty, he was on a good behaviour bond at the time of the offending, and Zarb received only a 10 per cent discount for late pleas compared to the applicant's 25 per cent discount. The disparity, measured in months, was neither marked, gross nor glaring within the meaning of the relevant authorities.
On the second ground, the Court found that the partial accumulation of sentences was a lawful exercise of the sentencing discretion. Although the three robberies arose from a single course of criminality, each of the three victims had been separately robbed under threat of violence, and each individually surrendered their property. In those circumstances, partial accumulation was open to the sentencing judge, consistent with the Court of Criminal Appeal's approach in Vaovasa v R, to which the sentencing judge had expressly referred.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A parity challenge based on differential prosecutorial treatment of co-offenders will not succeed where the prosecution's decision to accept pleas to lesser charges is explicable by legitimate evidentiary concerns, such as an inability to prove an essential element beyond reasonable doubt.
- The Court of Criminal Appeal confirmed that a disparity in sentences between co-offenders will only warrant appellate intervention where it is "marked", "gross" or "glaring"; differences of months, readily explained by distinct factual and subjective circumstances, do not meet that threshold.
- Where co-offenders are sentenced by different judges, the second sentencing court should be provided with the first court's remarks on sentence and take steps to observe parity principles, even when the applicable charges and facts differ.
- Partial accumulation of sentences for offences arising from a single criminal episode remains a legitimate sentencing tool where each count involves distinct victims who were separately subjected to threats and deprivations of property.
- Under s 97(2) of the Crimes Act 1900 (NSW), the identity of the co-offender physically holding the weapon is of little consequence where the offending occurred pursuant to a joint criminal enterprise; both participants bear equal criminal responsibility for the manner in which the enterprise was carried out.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1), s 97(2), s 4
Cases
- Baquiran v R [2014] NSWCCA 221
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Ith v R [2013] NSWCCA 280
- Ivory v R [2014] NSWCCA 181
- Magaming v The Queen [2013] HCA 40; 302 ALR 461
- R v Chandler; Chandler v R [2012] NSWCCA 135
- R v Henry (1999) 46 NSWLR 346
- R v XX [2009] NSWCCA 115; 195 A Crim R 38
- Tan v R [2014] NSWCCA 96
- Vaovasa v R [2007] NSWCCA 253; 174 A Crim R 16