Citation: Hudson v R [2015] NSWCCA 64
Court: NSW Court of Criminal Appeal
Date: 10 April 2015
Judges: Beazley P; R A Hulme J; Adamson J
Background
The applicant sought leave to appeal against two separate sentences imposed in the District Court. The first arose from a home invasion at a Maroubra unit on 18 August 2011, in which the applicant and a co-offender assaulted two of three occupants using knives and an object resembling a gun, stole various property, and later used a stolen bank card at a nearby store. King DCJ sentenced the applicant to an aggregate term of 6 years with a non-parole period of 4 years.
The second sentence related to a separate incident on 9 August 2011, in which the applicant and two others broke into cars in a commercial garage at Brighton-le-Sands. Graham ADCJ imposed a sentence of 18 months with a non-parole period of 9 months, structured so that it extended the applicant's minimum custody by only 3 months.
Both applications for leave to appeal were opposed by the Crown.
Legal Issues
- Whether the applicant had a legitimate sense of grievance (a "parity" complaint) arising from comparison of his sentence with that of his co-offender in the home invasion matter
- Whether the sentencing judge in the home invasion matter failed to adequately account for discrete periods the applicant had spent in custody for unrelated matters between arrest and sentence
- Whether the applicant could raise arguments on appeal that differed materially from those advanced in the District Court
- Whether the sentence in the home invasion matter should attract a lesser sentence under s 6(3) of the Criminal Appeal Act 1912 (NSW)
- Whether the sentence for the garage break-in was manifestly excessive or gave rise to a justified parity complaint when compared with a co-offender's outcome in the Local Court
Decision
On the first ground in the home invasion matter, R A Hulme J found no error in the sentencing judge's comparison of the applicant and his co-offender. King DCJ had carefully assessed the subjective circumstances of each offender and found no material difference in culpability. The only differentiation the judge considered warranted was a shorter non-parole period for the applicant, reflecting his relative youth and his greater need for parole supervision. Notably, no submission had been made below that any further differentiation was required, and the Court of Criminal Appeal declined to interfere with the exercise of the judge's sentencing discretion.
On the second ground, the applicant argued the sentencing judge had not adequately accounted for three periods of unrelated pre-sentence custody. R A Hulme J rejected this ground on the basis that it involved running a different case on appeal from that advanced in the District Court. Below, the applicant's counsel had sought a backdating to 24 January 2013; the judge backdated to 8 February 2013. The applicant now sought significantly more relief, which the Court described as having "an air of unreality." The Court applied the principle from Zreika v R [2012] NSWCCA 44 that an appeal is not an opportunity to argue a materially different case. R A Hulme J also noted that, even if error had been established, no lesser sentence was warranted under s 6(3) of the Criminal Appeal Act 1912, given the seriousness of the armed home invasion and its psychological impact on the victims.
On the second application (the garage break-in), both grounds were dismissed. The submission that the sentence was manifestly excessive was found to lack merit, given that the sentencing outcome had been sought and received in the District Court. On the parity question, the Court observed that the co-offender had been sentenced in the Local Court to community service and a good behaviour bond, but that significant distinctions existed: the co-offender had a minor prior history and had never been imprisoned, whereas the applicant was already serving a substantial term of imprisonment, which rendered non-custodial options inapplicable. Graham ADCJ had been mindful of the co-offender's outcome and had structured the sentence so as not to impose a "crushing burden." The Court found no marked disparity.
Adamson J agreed with R A Hulme J's reasons and added that it was regrettable the applicant's hopes had been unjustifiably raised by the conduct of the legal profession.
Orders Made
- Leave to appeal refused in respect of both applications
Key Takeaways
- An appeal against sentence is not an occasion to advance arguments materially different from those run below, particularly where the issue concerns the exercise of a sentencing discretion. The Court of Criminal Appeal applied Zreika v R [2012] NSWCCA 44 on this point.
- A parity complaint requires demonstration of a legitimate sense of grievance arising from unjustified disparity. Where a sentencing judge has carefully weighed subjective factors and where no submission for further differentiation was made at first instance, a parity ground is unlikely to succeed on appeal.
- Differences in a co-offender's personal circumstances, criminal history, and sentencing options available at the time of their sentence can justify a markedly different outcome without creating an impermissible disparity.
- Under s 6(3) of the Criminal Appeal Act 1912 (NSW), even where error is established, the Court of Criminal Appeal will not interfere unless a lesser sentence ought to have been imposed. Here, the Court considered the original sentences relatively modest given the gravity of the home invasion.
- Both Adamson J's observation about the legal profession's role in raising unfounded expectations, and R A Hulme J's pointed remarks about the waste of legal aid, prosecution, and court resources, signal the Court's concern about applications that are entirely devoid of merit.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 114(1)(d), 148, 192E(1)(a)
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- Zreika v R [2012] NSWCCA 44