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Court of Criminal Appeal 28 November 2014

Corda v R

[2014] NSWCCA 281

Theft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL LEAVE TO APPEAL SENTENCE OFFENDERS

Citation: Corda v R [2014] NSWCCA 281
Court: NSW Court of Criminal Appeal
Date: 28 November 2014
Judges: Hoeben CJ at CL, R A Hulme J, Schmidt J (with whom the other judges agreed)

Background

The applicant paid two young co-offenders, aged 17 and 18, to break into his neighbour's home and set it on fire during an ongoing neighbourhood dispute. He supplied the petrol, told them the victim would be away, and paid each co-offender $500 after the event. The resulting fire destroyed the house and nearly all its contents, with an insurance estimate exceeding $380,000.

The applicant pleaded guilty in the Local Court to being an accessory before the fact to aggravated break and enter and committing a serious indictable offence under s 112(2) of the Crimes Act 1900 (NSW), and to a separate drug offence. He received a 25% discount for his plea and was sentenced to a total term of 5 years and 6 months, with a non-parole period of 3 years and 6 months, for the accessory offence. The maximum penalty for that offence was 20 years imprisonment, with a standard non-parole period of 5 years.

By contrast, the younger co-offender who physically attended the scene received an intensive correction order of 1 year and 11 months (after a 35% discount for plea and assistance), and a control order was imposed on the juvenile co-offender and then suspended. The applicant sought leave to appeal his sentence on two grounds.

  • Whether the sentencing judge failed to give proper consideration to the parity principle by not adequately accounting for the much lighter sentences imposed on the co-offenders.
  • Whether the sentencing judge erred in characterising the offence as "well and truly above the middle range of objective seriousness."

Decision

On objective seriousness (Ground 2): The Court found no error in the sentencing judge's assessment. The agreed facts established that the applicant recruited two young people while knowing the victim was away, supplied the petrol, and paid them for the offence. The victim was also protected by an AVO at the time, and the applicant was already on a bond for a prior breach of that AVO. The sentencing judge was entitled to find the offence fell well and truly above the mid-range of seriousness, given these circumstances.

On parity (Ground 1): The Court confirmed the applicable principle: a co-offender who receives a lesser sentence is not automatically entitled to the same leniency. A disparity in sentences is justified where the offenders' culpability genuinely differs. Here, the Court found the applicant's criminality was objectively considerably greater than that of his co-offenders. He instigated the offence for personal revenge, was approximately 30 years older than both co-offenders, exploited their antipathy toward the victim, supplied the means, and paid for the crime to be carried out while distancing himself from it.

Additional aggravating factors applied specifically to the applicant that did not apply to the co-offenders, including the AVO breach and the prior bond for the same type of breach. These factors justified the disparity, and the Court held there was no appearance of injustice in the sentencing outcome.

The Court also noted that even if a justifiable sense of grievance had been established, it would have declined to exercise its discretion to intervene, given the gravity of the applicant's offending and the already lenient sentence he received. Reducing the sentence further would have produced a result entirely inadequate for the offending.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle does not require equal sentences for co-offenders where their culpability differs materially. A disparity in sentencing is justified when objective differences in criminality explain it.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an accessory before the fact who instigates, funds, and equips an offence may bear considerably greater culpability than the principal offenders who carry it out.
  • Aggravating factors personal to one offender, such as an AVO breach and an existing bond for the same type of breach, can legitimately produce a much longer sentence than that imposed on co-offenders to whom those factors do not apply.
  • Even where a justifiable sense of grievance might theoretically be established, the Court retains a discretion to decline intervention where the existing sentence is already lenient relative to the gravity of the offending (following Green v The Queen [2011] HCA 49).
  • A sentencing court's characterisation of objective seriousness will not be disturbed on appeal where the agreed facts plainly support that characterisation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 112(2)
- Crimes (Sentencing and Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(1)(a)

Cases:
- Green v The Queen; The Queen v Green [2011] HCA 49; 244 CLR 462
- Elias v The Queen [2013] HCA 31; 248 CLR 483
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Wong v R [2001] HCA 64; (2001) 207 CLR 584
- Lowe v The Queen (1984) 154 CLR 606
- Markarian v R [2005] HCA 25; 228 CLR 357
- Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
- England v R; Phanith v R [2009] NSWCCA 274
- McLaren v Regina [2012] NSWCCA 284
- Shaw v R [2008] NSWCCA 58
- Porter v R [2008] NSWCCA 145
- R v Wong [2003] NSWCCA 247
- R v Norman; R v Oliveri [2007] NSWSC