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Court of Criminal Appeal 3 November 2017

Hall v R

[2017] NSWCCA 260

Assault & violenceDrugsFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL OFFENDER APPLICATION OF THE PARITY PRINCIPLE

Citation: Hall v R [2017] NSWCCA 260
Court: NSW Court of Criminal Appeal
Date: 3 November 2017
Judges: Payne JA, McCallum J, Wilson J

Background

The appellant was convicted alongside a co-offender following a joint trial in the District Court at Parramatta in October 2013. Both men were found guilty of a series of serious offences arising from an incident on 5 April 2012, including detaining a complainant without consent, assault occasioning actual bodily harm in company, assault and committing an act of indecency in company, and being armed with a weapon with intent to commit an indictable offence. The appellant faced one additional charge of supplying methylamphetamine.

The background facts, as summarised by the Court, involved the complainant being detained for several hours, subjected to physical assaults, humiliation, and threats after being accused of stealing jewellery. The detention continued through the night until the following morning, when both men were arrested at a service station.

At sentencing in June 2014, both the appellant and his co-offender received identical aggregate sentences of 12 years' imprisonment with a non-parole period of 8 years. The co-offender subsequently appealed successfully, and the Court of Criminal Appeal reduced his sentence to 10 years with a 7-year non-parole period: Sorensen v R [2016] NSWCCA 54. The present application arose from that outcome, with the appellant seeking leave to appeal out of time on the basis of that earlier decision.

  • Whether the sentencing judge erred by treating the "vigilante" nature of the offending as an aggravating factor, when the intent to punish and humiliate the victim was already an element of the offence under s 86(3) of the Crimes Act 1900 (NSW).
  • Whether, in the alternative, the parity principle required the appellant to be resentenced in light of the Court of Criminal Appeal's reduction of the co-offender's sentence in Sorensen v R.
  • Whether leave to appeal out of time should be granted.

Decision

The Court granted the extension of time and leave to appeal, accepting that the same sentencing error identified in Sorensen v R applied equally to the appellant. The sentencing judge had treated the vigilante character of the offending as an aggravating feature when determining the sentence for the detention offence under s 86(3) of the Crimes Act 1900. However, the intent to obtain gratification by punishing and humiliating the complainant was itself an element of that offence. Treating it additionally as an aggravating circumstance amounted to double-counting, which constituted an error of principle.

The Court also considered the parity principle, which provides that co-offenders who are equally culpable should not receive sentences so different as to cause a justifiable sense of grievance. Wilson J found that parity supported resentencing the appellant consistently with the outcome for the co-offender, particularly given that their objective criminality for the jointly charged offences was similar.

On resentencing, Wilson J assessed the appellant's subjective circumstances, including a history of illicit drug use, mental health issues, and some indications of rehabilitation through a new relationship and employment prospects. However, the Court treated his rehabilitation prospects as guarded, noting his significant criminal history and the ongoing risk of relapse into drug use with consequent non-compliance with medication. The Court found that special circumstances existed warranting a modest adjustment to the standard non-parole period, given the need for close supervision upon release.

The Court ultimately imposed an aggregate sentence of 10 years' imprisonment, the same total term imposed on the co-offender, with a non-parole period of 7 years.

Orders Made

  • Extension of time to file the notice of appeal against sentence granted (to 23 June 2017).
  • Leave to appeal against sentence granted.
  • Appeal against sentence allowed.
  • Sentence imposed in the District Court quashed.
  • The appellant sentenced to 10 years' imprisonment commencing 16 December 2012 and expiring 15 December 2022, with a non-parole period of 7 years expiring 15 December 2019.

Key Takeaways

  • A sentencing court errs in principle when it treats a factual circumstance as an aggravating feature that is already a definitional element of the offence for which the offender is being sentenced; doing so constitutes impermissible double-counting.
  • The parity principle requires that co-offenders of comparable culpability not receive sentences divergent enough to produce a justifiable sense of grievance, and a successful sentence appeal by one co-offender may enliven that principle for another.
  • An out-of-time sentence appeal may be granted where the basis for the application flows directly from a co-offender's successful earlier appeal, particularly where the same error was made in both sentencings.
  • Untested statements made to third parties, such as reports of self-reported background to a forensic psychiatrist, are to be approached with caution as a matter of established principle.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a finding of special circumstances may support a modest extension to the non-parole period where the need for close post-release supervision is established.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(2), 61M(1), 86(3), 114(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44(2), 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Mental Health Act 2007 (NSW)

Cases:
- Sorensen v R [2016] NSWCCA 54
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- R v Imbornone [2017] NSWCCA 144
- Barlow v R (2008) 6 A Crim R
- R v Speechley (2012) 221 A Crim R