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8
Court of Criminal Appeal 9 December 2015

Ramos v R

[2015] NSWCCA 313

Homicide
CRIMINAL LAW SENTENCE APPEAL MURDER COMPARISON OF SENTENCES BETWEEN CO OFFENDERS

Citation: Ramos v R [2015] NSWCCA 313
Court: NSW Court of Criminal Appeal
Date: 9 December 2015
Judges: Basten JA at [1]; Campbell J at [72]; Button J at [81]

Background

The appellant was an 18-year-old who drove a vehicle for a group calling themselves the United Brotherhood, which carried out a series of home invasions in Sydney in late June and early July 2010. He was not present inside any premises during the attacks and did not personally carry out any violence. His role throughout was as the getaway driver.

The most serious charge arose from a home invasion at Lurnea, during which the occupant of a neighbouring address was killed. The appellant was convicted of murder on the basis of extended joint criminal enterprise, a legal doctrine under which a participant in a joint criminal enterprise can be liable for an offence committed by another participant, provided the accused foresaw that offence as a possible incident of the enterprise. He pleaded guilty to murder and several other offences.

At first instance, Johnson J in the Common Law Division sentenced the appellant to an overall sentence of 17 years for murder, with a non-parole period of 12 years. The appellant sought leave to appeal, arguing that the sentencing judge had erred in assessing his objective culpability, failed to give proper effect to the parity principle when comparing his sentence with those of co-offenders, and did not adequately account for his youth and lack of prior offending when finding special circumstances.

  • Whether the sentencing judge correctly assessed the objective seriousness of the appellant's offending, having regard to his role as a driver who was not present at the scene of the murder.
  • Whether the sentence fell within the range properly available to the sentencing judge given that culpability rested on extended joint criminal enterprise.
  • Whether the parity principle was properly applied when comparing the appellant's sentence with those of his co-offenders sentenced at the same time.
  • Whether the finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) adequately reflected the appellant's youth and absence of prior offending.

Decision

Objective seriousness and culpability as a driver

Basten JA granted leave to appeal, noting that extended joint criminal enterprise cases involving a participant absent from the scene of the killing present genuine complexity in calibrating culpability. The question was whether Johnson J had correctly directed himself to the appellant's actual role and knowledge, as distinct from the more direct culpability of co-offenders who were physically present and armed. The majority found that this assessment warranted scrutiny.

Assessment of the sentence range

Despite granting leave, the Court found that the sentence imposed was not outside the range properly available to the sentencing judge. The appellant had participated in several violent home invasions over consecutive nights, was present at planning meetings where weapons were distributed, drove the group on multiple occasions knowing they were armed with machetes and meat cleavers, and heard Vergara describe chopping the victim at Ashcroft. His foresight of lethal violence was supported by the factual record. The sentencing judge's assessment of the objective gravity of the offending, while serious, was not shown to involve appellable error.

Parity

The Court considered whether the disparity between the appellant's sentence and those of his co-offenders gave rise to a justifiable sense of grievance. It noted the principle from Lowe v The Queen (1984) 154 CLR 606 that sentences for co-offenders should not differ in a way that is not explicable by relevant differences between the offenders. The Court examined the sentences of the co-offenders and the sentencing judge's reasons for distinctions drawn between them. The majority concluded that any disparity was explicable by the differences in each offender's degree of involvement, and no parity error was established.

Special circumstances

The Court considered whether the finding of special circumstances under s 44, which adjusts the ratio of non-parole period to total sentence, adequately reflected the appellant's youth and clean record. The majority was not persuaded that the sentencing judge had erred in this respect so as to warrant interference. The appeal was ultimately dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A participant in a joint criminal enterprise who plays only a logistical role, such as driving, can still be sentenced for murder, but the sentencing court must carefully calibrate culpability to reflect that the offender was absent from the scene and did not personally inflict violence.
  • Extended joint criminal enterprise liability for murder requires the offender to have foreseen the possibility that another participant might cause death; the extent of that foresight is a significant factor in assessing objective seriousness at sentencing.
  • Under the parity principle from Lowe v The Queen (1984) 154 CLR 606, a sentencing disparity between co-offenders is only appealable where it is not explicable by genuine differences in their individual culpability, background, or other relevant factors.
  • In confirming the sentence, the Court of Criminal Appeal emphasised that a lengthy sentence imposed on a young offender with no prior record does not necessarily constitute appellable error where the objective gravity of the offending is high.
  • No error in the special circumstances finding under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was established, notwithstanding the appellant's age and clean antecedents.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54A; Table, item 1
- Criminal Appeal Act 1912 (NSW), ss 5D, 6

Cases
- Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
- Carroll v The Queen [2009] HCA 13; 83 ALJR 579
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- House v The King (1936) 55 CLR 499
- Kaminic v R [2014] NSWCCA 116
- Lowe v The Queen (1984) 154 CLR 606
- McAuliffe v The Queen (1995) 183 CLR 108
- Mulato v R [2006] NSWCCA 282
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v GWM [2012] NSWCCA 240
- R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
- R v Kaliti [2001] NSWCCA 268; 34 MVR 160
- Regina v Kama [2000] NSWCCA 23; 110 A Crim R 47
- Regina v KB; Regina v JL; Regina v RJB [2011] NSWCCA 190
- Sabongi v R [2015] NSWCCA 25
- Siganto v The Queen [1998] HCA 74; 194 CLR 656
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64