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Court of Criminal Appeal 13 May 2016

Humphries v R; Ponfield v R

[2016] NSWCCA 86

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE ARMED ROBBERY THREE CO OFFENDERS PARITY

Citation: Humphries v R; Ponfield v R [2016] NSWCCA 86
Court: Court of Criminal Appeal, New South Wales
Date: 13 May 2016
Judge(s): Hoeben CJ at CL; Davies and Beech-Jones JJ

Background

Three co-offenders, referred to here as Humphries, Ponfield and Wilson, were convicted by a jury on two counts each of robbery whilst armed with a dangerous weapon (a real pistol) contrary to s 97(2) of the Crimes Act 1900 (NSW). The offending arose from a single planned armed robbery of a hotel in Port Kembla in April 2013, during which approximately $37,000 was stolen. Humphries carried the pistol, Ponfield carried a knife and stood guard, and all three wore balaclavas to conceal their identities.

Sentencing was complicated because each offender was on conditional liberty at the time of the offences. Humphries was on bail for an earlier break and enter matter. Ponfield and Wilson were both on parole, which was subsequently revoked. The District Court judge backdated the commencement of each sentence to account for time already served and the operation of the earlier sentences.

Humphries and Ponfield each sought leave to appeal to the Court of Criminal Appeal. Humphries raised two grounds: first, a parity complaint that his net sentence was approximately one year longer than Wilson's contrary to the sentencing judge's stated intention; and second, that the sentencing judge wrongly treated being "in company" as an aggravating factor when it was already an element of the offence. Ponfield raised a parity complaint concerning the disparity between his non-parole period and those of his co-offenders.

  • Whether Humphries had a justifiable sense of grievance because his effective sentence was longer than Wilson's, contrary to the sentencing judge's expressed aim of equality between them.
  • Whether Ponfield had a justifiable sense of grievance arising from the disparity between his non-parole period and those imposed on Humphries and Wilson.
  • Whether Humphries was improperly sentenced on the basis that being "in company" was an aggravating factor, when that fact was already an element of the charged offence under s 97(2).
  • How the principle of totality and the adjustment of sentence commencement dates should operate where co-offenders were each serving pre-existing sentences.

Decision

The "in company" ground (Humphries). The Court noted that the indictment charged each offender with robbery whilst armed with a dangerous weapon under s 97(2), not robbery in company. Being in company was not pleaded as an element of the offence charged. Accordingly, the sentencing judge was entitled to treat it as an aggravating circumstance, and no error arose on this ground.

Parity for Ponfield. The Court found no error in the structure of Ponfield's sentence. His effective non-parole period, once the backdating and the operation of his revoked parole were accounted for, was broadly comparable to that of his co-offenders. The Court dismissed his appeal on this ground.

Parity for Humphries. The Court accepted that Humphries had a justifiable sense of grievance. Although the sentencing judge had expressed an intention to achieve parity with Wilson, the mechanics of backdating the sentences produced an outcome where Humphries' effective sentence was materially longer than Wilson's. The Court found this was an error warranting intervention.

Resentencing Humphries. To achieve genuine parity, the Court restructured Humphries' sentence by adjusting its commencement date rather than altering the headline term. The Court adopted the approach in Mill v The Queen (adjusting the commencement date of an index sentence) to align Humphries' position with that of his co-offenders, noting this was warranted by parity considerations even though the Pearce approach would ordinarily be preferred. The Court noted that the restructured sentence did not alter the minimum period Humphries was expected to serve solely referable to the armed robbery offences, nor his expected release date.

Orders Made

  • Leave granted to Humphries to appeal.
  • Humphries' appeal allowed; sentences imposed in the District Court quashed.
  • In lieu, Humphries sentenced on each count to a non-parole period of three years and nine months commencing 19 January 2015 and expiring 18 October 2018, with an additional term of two years and three months expiring 18 January 2021, both counts to be served concurrently.
  • Otherwise, Humphries' appeal dismissed.
  • Leave granted to Ponfield to appeal.
  • Ponfield's appeal dismissed.

Key Takeaways

  • Where co-offenders are each subject to pre-existing sentences, the mechanics of backdating commencement dates to reflect time already served can produce unintended disparities. The Court of Criminal Appeal confirmed that such disparities can give rise to a justifiable sense of grievance sufficient to warrant resentencing on parity grounds.
  • Adjusting the commencement date of an index sentence (the Mill approach) remains available as a tool to achieve parity even where the Pearce approach (cumulative or concurrent orders expressed at the time of sentencing) would ordinarily be preferred, provided the parity objective justifies it.
  • Under s 97(2) of the Crimes Act 1900, robbery whilst armed with a dangerous weapon does not automatically incorporate being "in company" as an element. Where the indictment charges only the dangerous weapon limb, being in company remains available as a separate aggravating circumstance.
  • In dismissing Ponfield's appeal, the Court confirmed that parity analysis requires a careful examination of the effective sentence each offender will actually serve, not merely the headline figures stated in the sentencing remarks.
  • A sentencing judge's stated intention to achieve parity between co-offenders does not, by itself, guarantee a lawful outcome. The Court scrutinises the practical effect of the sentence structure to assess whether parity has in fact been achieved.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(2) (robbery whilst armed with a dangerous weapon, maximum 25 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Bugmy v R [2013] HCA 37; (2013) 249 CLR 571
- Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
- Johnson v R [2004] HCA 15; 78 ALJR 616
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Lam v R [2014] NSWCCA 50
- Loader v R; Dunn v R [2013] NSWCCA 215
- Mill v The Queen (1988) 166 CLR 59
- Ng v R [2011] NSWCCA 227; (2011) 214 A Crim R 191
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Saraya v Regina [2015] NSWCCA 63