Citation: Stuart v R [2016] NSWCCA 72
Court: NSW Court of Criminal Appeal
Date: 10 May 2016
Judge(s): Hoeben CJ at CL; Harrison J; Davies J
Background
The appellant and a co-offender were convicted of their respective roles in a series of armed robberies at hotels and licensed venues across Sydney's eastern suburbs between May and September 2011. Both men were alleged to have entered the targeted premises while a third man drove the getaway vehicle. The robberies netted substantial sums, including approximately $94,550 from a single RSL club raid.
At first instance, the appellant was sentenced to an aggregate term of 16 years imprisonment with a non-parole period of 10 years. His co-offender received an aggregate term of 11 years and 6 months with a non-parole period of 7 years and 2 months. Both men had previously appealed unsuccessfully against their convictions.
The appellant's sole ground of appeal against sentence was parity: he argued that the difference between his sentence and that of his co-offender was so disproportionate as to give rise to a justifiable sense of grievance.
Legal Issues
- Whether the disparity between the appellant's aggregate sentence and that of his co-offender was so marked as to give rise to a justifiable sense of grievance warranting appellate intervention.
- Whether the sentencing judge erred in imposing materially different sentences on two offenders who participated in the same criminal enterprise.
Decision
Harrison J (with whom Hoeben CJ at CL and Davies J agreed) dismissed the appeal. The court found that the difference in sentences was directly attributable to two additional charges faced only by the appellant, and was therefore explicable and legitimate.
The head sentence difference of 4.5 years and the non-parole period difference of 2 years and 10 months were traceable to those additional offences. One of those offences, under s 112(2) of the Crimes Act 1900, carried a standard non-parole period of five years in its own right. The appellant was also on conditional liberty at the time of the offending, an aggravating factor not applicable to his co-offender.
Harrison J reaffirmed the principle that the sense of grievance warranting appellate intervention must be justifiable, not merely a general dissatisfaction arising from the fact that a co-offender received a shorter sentence. Where the sentencing disparity flows from objectively different charges and circumstances, no justifiable grievance is established. The court found no error in the approach taken at first instance.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A parity argument requires more than general dissatisfaction with a co-offender's sentence; the grievance must be demonstrably justifiable in light of the relevant circumstances of each offender.
- Where sentencing disparity arises because one offender faced additional, more serious charges, that disparity does not ordinarily give rise to a justifiable sense of grievance.
- The Court of Criminal Appeal confirmed that parity principles face particular difficulty where the offenders were charged with different crimes of varying seriousness, and the difficulties increase as those differences become more pronounced.
- In dismissing the appeal, the court reinforced that a co-offender's sentence being unjustifiably lenient cannot itself be used to reduce a properly assessed sentence for the more culpable offender.
- Conditional liberty at the time of offending, and the standard non-parole periods attached to specific charges, are legitimate sentencing factors that can produce materially different outcomes for co-participants in the same enterprise.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2)
Cases:
- Glover v R; Stuart v R [2015] NSWCCA 285
- Jimmy v Regina [2010] NSWCCA 60; (2010) 77 NSWLR 540
- Loader v R; Dunn v R [2013] NSWCCA 215
- Tatana v R [2006] NSWCCA 398