Citation: Tobia v R [2016] NSWCCA 99
Court: Court of Criminal Appeal, NSW
Date: 27 May 2016
Judges: R A Hulme J, Garling J, Wilson J
Background
The applicant pleaded guilty in the Local Court to aggravated break, enter and steal under s 112(2) of the Crimes Act 1900 (NSW), the aggravating circumstance being that he committed the offence in company. He and his co-offender used stolen house keys to enter a residential property in Liverpool, broke a security chain to gain access, ransacked the premises over approximately an hour, and stole items worth over $12,000. None of the property was ever recovered.
On 2 April 2015, the District Court sentenced the applicant to three years' imprisonment with a non-parole period of 15 months. The co-offender, who faced this offence along with an additional related charge, received an aggregate sentence of two years and six months, but that sentence was suspended upon his entry into the Drug Court program. The applicant had also been eligible for the Drug Court program but was unsuccessful in securing a place.
The applicant sought leave to appeal against his sentence on two grounds: first, that the disparity between his sentence and the co-offender's created a justifiable sense of grievance (the parity ground); and second, that the sentence was manifestly excessive. The Court of Criminal Appeal granted leave but dismissed the appeal.
Legal Issues
- Whether the difference in sentences between the applicant and the co-offender gave rise to a justifiable sense of grievance sufficient to warrant appellate intervention on parity grounds.
- Whether the co-offender's participation in the Drug Court program, which resulted in his sentence being suspended, was a legitimate differentiating factor capable of explaining the disparity.
- Whether the sentence of three years' imprisonment with a 15-month non-parole period was manifestly excessive having regard to the objective gravity of the offence and the applicant's personal circumstances.
Decision
Parity ground: The Court examined the parity principle, which holds that sentences for co-offenders should not be so different as to cause a reasonable bystander to perceive the disparity as unjust. The Court accepted that there was, on its face, a significant difference between the sentences imposed on the two offenders. However, it found that the co-offender's suspension of sentence was directly attributable to his participation in the Drug Court program, a statutory regime with its own distinct purposes and conditions.
The Court held that the Drug Court program represented a legitimate and well-recognised sentencing alternative, and that its availability to one offender but not the other provided a sufficient explanation for the difference in outcomes. The applicant's inability to secure a place in the program was not the result of any unfairness in the sentencing process itself. Accordingly, no justifiable sense of grievance arose from the disparity, and the parity ground was not made out.
Manifest excess ground: The sentencing judge had assessed the offence as falling between the low and mid-range of gravity for offences of its type, a characterisation the applicant did not dispute. The Court noted that the sentencing judge had given careful and favourable attention to the applicant's personal circumstances, including his remorse, his traumatic background in Iraq, his drug dependency, and symptoms consistent with post-traumatic stress disorder. Her Honour found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and varied the non-parole period markedly downward, to less than 42% of the total term.
The Court further observed that the commencement date of the sentence allowed a degree of concurrency with unrelated sentences, even though the principle of totality did not require this. Taking all factors into account, including the applicant's criminal history for dishonesty and the fact that he was on conditional liberty at the time of the offence, the Court concluded the sentence was not unreasonable or plainly unjust. Wilson J described it as "mercifully lenient."
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A disparity between sentences for co-offenders does not automatically give rise to a justifiable sense of grievance where a legitimate and distinct statutory pathway, such as the Drug Court program, explains the difference in outcomes.
- Participation in the Drug Court program under the Drug Court Act 1998 (NSW) constitutes a recognised sentencing alternative with its own conditions and purposes, and its availability to one offender but not another can be sufficient to justify an otherwise significant sentencing disparity.
- In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that a sentencing judge's decision to find special circumstances and substantially reduce the non-parole period reflects the proper exercise of sentencing discretion, not appellate error.
- A sentence may be upheld even where the non-parole period is considerably below the statutory norm of 75%, provided the departure is justified by the offender's personal circumstances and rehabilitation prospects.
- The parity principle requires focus on whether a reasonable observer would perceive the difference as unjust; it does not mandate equal outcomes where offenders are placed into materially different sentencing regimes.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 94, 112(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 32, 44(2), 53A, Division 1A of Part 4
- Drug Court Act 1998 (NSW)
- Drug Court Regulation 2015 (NSW)
Cases:
- England v R; Phanith v R [2009] NSWCCA 274
- McMullen v R [2013] NSWCCA 261
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Loh v R [2013] NSWCCA 339
- R v Dinsdale [2000] HCA 54; (2000) 202 CLR 321
- Scicluna v R [2008] NSWCCA 24; (2008) 181 A Crim R 133
- Wong v The Queen; Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584