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Court of Criminal Appeal 10 November 2014

Ortiz v R

[2014] NSWCCA 260

Assault & violenceTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE FORM 1 PROCEDURE TOTALITY NOT APPLICABLE CRIMINAL HISTORY OF CO

Citation: Ortiz v R [2014] NSWCCA 260
Court: NSW Court of Criminal Appeal
Date: 10 November 2014
Judge(s): Hoeben CJ at CL, R A Hulme J, Davies J

Background

The appellant was sentenced in the District Court for two offences of being an accessory before the fact to robbery in company, committed in May and June 2012. His role in each offence was to conduct surveillance on jewellery wholesalers at shopping centres and relay information about their movements to the principal offenders, who then carried out violent robberies. The total value of property taken across both offences exceeded $960,000.

The appellant received a total effective sentence of 6 years and 9 months, with a minimum custodial term of 4 years. A co-offender who participated in the same May 2012 offence, and whose role was relevantly indistinguishable from the appellant's, was sentenced four months later by the same judge to a total of 5 years and 9 months with a non-parole period of 2 years and 9 months.

On its face, the appellant's total sentence was longer than the co-offender's, which prompted the sole ground of appeal: that the appellant had a justified sense of grievance arising from a lack of due proportionality between the two sentences.

  • Whether the difference in sentences between the appellant and a co-offender gave rise to a justifiable sense of grievance sufficient to warrant appellate intervention.
  • Whether the sentencing judge correctly applied the Form 1 procedure when sentencing the co-offender, and what effect that procedure had on the comparison between sentences.
  • Whether the co-offender's criminal history warranted a greater degree of disparity in sentence than was achieved.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, with R A Hulme J delivering the principal judgment and Hoeben CJ at CL and Davies J both agreeing.

The central explanation for the difference in sentence lengths was the operation of the totality principle. The appellant was convicted of two separate charges, which required the sentencing judge to accumulate the sentences and apply totality to ensure the combined sentence was proportionate overall. The co-offender, by contrast, had only one charge but asked for a further, earlier offence to be taken into account on a Form 1 document. Under the Form 1 procedure (governed by the Crimes (Sentencing Procedure) Act 1999 (NSW)), the additional offence is not the subject of a separate conviction and sentence; it merely increases the penalty on the principal charge. Critically, the totality principle does not apply to Form 1 offences. This structural difference between the two sentencing exercises, rather than any error of principle, explained the disparity.

The Court found that the sentencing judge had applied the Form 1 principles correctly and was plainly aware that the procedure would result in a lower effective sentence than prosecuting the offence separately would have produced. The judge treated the Form 1 offence as a basis for imposing a higher sentence on the co-offender than the appellant received for a single offence, which was an orthodox and available approach.

On the question of the co-offender's prior criminal record, the Court held that the submissions for the appellant overstated its significance. The judge had not treated the record as demonstrating a continuing attitude of disobedience of the law warranting enhanced retribution and deterrence, as described in Veen v The Queen (No 2). Instead, the judge took the more modest view that the record meant the co-offender was entitled to "less leniency." That was a finding well within the sentencing judge's discretion. The Court concluded that the appellant could not establish a justifiable sense of grievance by objective criteria, as required by the High Court's formulation in Green v The Queen; Quinn v The Queen.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A convicted person claiming sentencing disparity with a co-offender must establish a justifiable sense of grievance by objective criteria, not merely a subjective perception of unfairness (Green v The Queen; Quinn v The Queen [2011] HCA 49).
  • The totality principle applies when multiple sentences are accumulated against a single offender, but it does not apply to offences taken into account under the Form 1 procedure. This structural difference can legitimately produce apparent sentencing disparities between co-offenders whose roles were otherwise comparable.
  • Under the Form 1 procedure, an offender who asks for additional offences to be taken into account can expect a lower effective sentence than would result from separate charges and convictions, but the sentencing court may still impose a higher base sentence than it would have imposed on an offender sentenced only for the principal charge.
  • Where a co-offender's prior criminal record does not demonstrate a continuing attitude of disobedience of the law within the meaning of Veen v The Queen (No 2), a sentencing court may treat the record more modestly as reducing the leniency otherwise available, without that warranting any further increase in the sentencing differential.
  • In dismissing the appeal, the Court confirmed that apparent disparity in sentences between co-offenders is not self-evidently erroneous where different sentencing procedures or principles have legitimately been applied to each.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 346
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 37, 44(2)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v AEM [2002] NSWCCA 58
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Lemene [2001] NSWCCA 5; 118 A Crim R 131
- Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
- Wong v The Queen [2001] HCA 64; 207 CLR 584