Citation: Siddiqi v Regina (Commonwealth) [2015] NSWCCA 169
Court: NSW Court of Criminal Appeal
Date: 3 July 2015
Judges: Simpson J, Rothman J, Wilson J
Background
The applicant was sentenced in the District Court following a finding of guilt on a Commonwealth criminal offence. Two co-offenders, Lee and Ngo, had pleaded guilty to the same offending and were sentenced by the same judge. The applicant contested his sentence on appeal.
In sentencing the applicant, the sentencing judge took into account a criminal record that included offences dealt with in 2006. Critically, those 2006 matters had not resulted in a recorded conviction. The applicant argued this was a sentencing error, and that the resulting sentence was also disproportionate compared to those of his co-offenders.
The Court of Criminal Appeal granted leave to appeal on two grounds: first, the improper use of the non-conviction record; and second, a parity argument based on the sentences imposed on Lee and Ngo.
Legal Issues
- Whether the sentencing judge erred by taking into account a criminal record that included matters that had not resulted in a recorded conviction.
- Whether the parity principle required the Court to intervene, given the sentences imposed on co-offenders following pleas of guilty.
- On resentencing, whether a lesser sentence was warranted having regard to the objective and subjective circumstances of the applicant and his co-offenders.
- As a subsidiary question, whether the relevant "measuring rod" for a parity comparison is the starting point of a co-offender's sentence (before any reduction for a guilty plea) or the sentence actually imposed after that reduction.
Decision
The Court unanimously upheld Ground 1. Taking into account offences from 2006 that had not resulted in a recorded conviction was an error. Because that error warranted resentencing from scratch, the Court was required to re-exercise the sentencing discretion afresh without using the original sentence as a starting point, consistent with the approach confirmed in Davis v R [2015] NSWCCA 90.
On the parity question, the Court noted that Lee and Ngo had received discounts on their sentences for guilty pleas. Simpson J identified an unexplored question: where parity is raised and co-offenders' sentences have been reduced for guilty pleas, does the court compare starting points or the sentences as actually imposed? Simpson J concluded that, at least in this case, the starting points of the co-offenders' sentences were the appropriate guide.
The majority (Simpson J and Wilson J) concluded that, after resentencing, the applicant should be sentenced similarly to Ngo, whose role was equivalent. That produced a sentence of 7 years and 6 months imprisonment with a non-parole period of 3 years and 9 months, which coincidentally matched the sentence originally imposed by the District Court. The appeal was therefore dismissed.
Rothman J dissented on the resentencing exercise. His Honour agreed that Ground 1 was established but took the view that the applicant, who had no relevant criminal history, was in a more favourable position than his co-offenders. Rothman J considered that the sentences imposed on the co-offenders were themselves erroneously lenient, and that any reduction in the applicant's sentence would be inadequate to reflect the seriousness of the offending and the purposes of sentencing including deterrence, denunciation, and adequate punishment.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- An error in having regard to offences that did not result in a recorded conviction is a sentencing error that triggers a full resentencing exercise on appeal, not merely a correction to the original sentence.
- Where parity is raised on appeal and co-offenders were sentenced after pleading guilty, the Court of Criminal Appeal (per Simpson J) indicated that the starting point of those co-offenders' sentences, before reduction for the guilty plea, is the appropriate comparator, at least in the circumstances of this case.
- The parity principle operates in conjunction with equal justice: sentences should differ between co-offenders only to the extent that relevant differences in objective or subjective circumstances rationally justify the disparity.
- Establishing a sentencing error does not automatically produce a lesser sentence. Under s 6(3) of the Criminal Appeal Act 1912 (NSW), an appellate court will only substitute a sentence if it is satisfied a lesser sentence is warranted in law.
- Rothman J's dissent illustrates that where co-offenders received sentences that may themselves be inadequate, an appellate court resentencing a third co-offender is not required to match those sentences, particularly where reducing the sentence would fail to reflect the serious criminality involved.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1914 (Cth)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Code Act 1995 (Cth)
Cases:
- Bugmy v The Queen (1990) 169 CLR 525
- Davis v R [2015] NSWCCA 90
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Kentwell v The Queen [2014] HCA 37; 313 ALR 451
- Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- Saraya v R [2015] NSWCCA 63
- Various other authorities cited in the judgment