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Court of Criminal Appeal 2 December 2016

Usher v R

[2016] NSWCCA 276

Theft & property
CRIMINAL LAW OFFENDER WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Usher v R [2016] NSWCCA 276
Court: Court of Criminal Appeal, New South Wales
Date: 2 December 2016
Judge(s): Hoeben CJ at CL, Button J, N Adams J (judgment delivered by N Adams J)

Background

The applicant was sentenced in the District Court at Goulburn in February 2015 for aggravated break, enter and commit a serious indictable offence (larceny) under s 112(2) of the Crimes Act 1900 (NSW), and dealing with the proceeds of crime under s 193B(2) of the same Act. A further aggravated break and enter with intent was taken into account on a Form 1. The offences arose from two break-ins at a Woolworths store in Mittagong in October 2013, in which over $90,000 was stolen from the store's cash office. The applicant physically entered the store on both occasions alongside an unidentified man, while his co-offender (a former duty manager at the store who had supplied keys, alarm codes and safe combinations) waited in a car outside.

The applicant was sentenced to an effective non-parole period of three years and three months, with a head sentence of five years and ten months. His co-offender was sentenced at the same time by the same judge, receiving a total effective sentence of five years. The applicant sought leave to appeal, contending both that his sentence was manifestly excessive and that he had a justifiable sense of grievance arising from the disparity between his sentence and his co-offender's.

  • Whether the sentence imposed on the applicant was manifestly excessive, given his subjective circumstances and the nature of his offending.
  • Whether the applicant had a justifiable sense of grievance by reason of the disparity between his sentence and the sentence imposed on his co-offender.

Decision

On the question of manifest excess, the Court of Criminal Appeal found no error in the sentencing judge's approach. The applicant's significant criminal history, his late guilty plea (on the first day of trial, attracting only a 10% discount), the serious nature of the offending, and the relevant standard non-parole period under the Crimes Act all supported the sentences imposed. The sentencing judge had engaged in an appropriate instinctive synthesis, and the Court found no basis for concluding that the resulting sentence was outside the range reasonably available.

On the disparity ground, the Court examined the notional starting points applied by the sentencing judge to each offender. After accounting for their respective guilty plea discounts (10% for the applicant and 25% for the co-offender), the notional starting point for the applicant was 78 months and for the co-offender was 80 months. The applicant in fact received a marginally lower starting point than his co-offender, notwithstanding the applicant's contention that both should have been sentenced equally.

The Court noted that the sentencing judge was expressly aware of the equal justice principles, referred to the relevant authorities, and sentenced both offenders simultaneously, directly comparing their circumstances. Given that the applicant received a slightly lower starting point, the Court found it difficult to identify how a justifiable sense of grievance could arise. No error was established on either ground.

Orders Made

  • Leave to appeal against the sentences granted.
  • Appeal dismissed.

Key Takeaways

  • A justifiable sense of grievance cannot readily be established where, once respective plea discounts are applied, the applicant received a notional starting point marginally lower than that imposed on the co-offender.
  • The sentencing court's awareness and express application of equal justice principles, combined with simultaneous sentencing of co-offenders, strongly supports the conclusion that no impermissible disparity arose.
  • A late guilty plea entered on the first day of trial attracted only a 10% discount, contrasted with the co-offender's 25% discount for an earlier plea, illustrating how the timing of a plea directly affects the quantum of sentencing concessions available.
  • No error was established in the instinctive synthesis approach where the sentencing judge engaged with the standard non-parole period as a guidepost and took into account the applicant's subjective circumstances, including difficult personal history, drug use, and mental health issues, while also weighing the gravity of the offending.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the mere fact of different effective sentences between co-offenders does not, of itself, establish a justifiable sense of grievance where the differences are explicable by reference to legitimate sentencing factors.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 113(2), 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32

Cases:
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Muldrock v The Queen (2011) 244 CLR 120
- Markarian v The Queen (2005) 228 CLR 357
- Lowndes v The Queen (1999) 195 CLR 665
- Pearce v The Queen (1998) 194 CLR 610
- Mill v The Queen (1988) 166 CLR 59
- Barbaro v The Queen; Zirill v The Queen (2014) 253 CLR 58
- Hili v R; Jones v R (2010) 242 CLR 520
- Weininger v The Queen (2003) 212 CLR 629
- Johnson v R (2004) 78 ALJR 616
- R v Ponfield (1999) 48 NSWLR 327
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- MM v R [2016] NSWCCA 235
- Ngati v R [2013] NSWCCA 203
- Ma and Pham v R [2007] NSWCCA 240
- Marshall v R [2007] NSWCCA 24
- Mulato v R [2006] NSWCCA 282
- R v Huynh [2005] NSWCCA 220