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Court of Criminal Appeal 13 December 2017

Lloyd v R

[2017] NSWCCA 303

Assault & violence
CRIME SENTENCE APPEAL AFFRAY ON FORM 1 WHETHER SENTENCE MANIFESTLY EXCESSIVE YOUTH ASSERTED ERRORS QUESTIONS OF WEIGHT

Citation: Lloyd v R [2017] NSWCCA 303
Court: Court of Criminal Appeal, NSW
Date: 13 December 2017
Judges: Payne JA at [1]; R A Hulme J at [2]; Garling J at [99]

Background

Three brothers pleaded guilty in the District Court at Parramatta to two counts each of wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years' imprisonment and a standard non-parole period of seven years. The offending arose from a planned group attack at a shopping centre in October 2014, during which two members of another family were stabbed multiple times and suffered critical injuries requiring emergency surgery.

The present applicant, a juvenile referred to by the pseudonym "Barry Lloyd," was the youngest of the three brothers. His role in the attack included striking one of the victims, cheering while his brothers stabbed the victims, and running at the front of a group toward the victims. He did not himself wield a knife. His two older brothers, referred to as "Jake Lloyd" and "Gary Lloyd," played more direct roles: Gary Lloyd stabbed both adult victims in the stomach and chest, and Jake Lloyd pointed and swung a knife at one of them.

The sentencing judge imposed an overall sentence on the applicant of four years' imprisonment with a non-parole period of two years and three months, after a ten per cent discount for late guilty pleas. His brothers received substantially longer sentences: Gary Lloyd received six years and seven months, and Jake Lloyd received eight years and four months. The applicant sought leave to appeal, arguing his sentences were manifestly excessive and that he had a justifiable sense of grievance compared to his co-offenders' sentences.

  • Whether the individual sentences and effective total sentence imposed on the applicant were manifestly excessive, having particular regard to his youth, his role under joint criminal enterprise principles, and the weight given to general and personal deterrence.
  • Whether the applicant had a justifiable sense of grievance about parity, given the sentences imposed on his co-offending brothers were not sufficiently more lenient relative to his own sentence.

Decision

Manifest excess. The Court found no error in the sentencing judge's approach. Submissions that the judge gave too much weight to general and personal deterrence, or too little weight to the applicant's youth, were characterised as questions of weight rather than established errors. The Court noted that statistical comparisons and reference to comparable cases did not demonstrate that the sentences were unreasonable or plainly unjust.

The applicant's youth and the principles from Bugmy v The Queen (2013) 249 CLR 571, which address the relevance of background deprivation to sentence, were each considered by the sentencing judge. The Court found no indication that the judge failed to apply relevant principles or gave them insufficient weight. The sentences were not outside the range available to the primary judge.

Parity. The Court rejected the parity ground. The sentencing judge had specifically addressed the question of parity between the three brothers. The applicant's overall sentence represented 60 per cent of Gary Lloyd's sentence and 48 per cent of Jake Lloyd's sentence, a difference the Court described as "very obvious and marked." Those differences were justified by the applicant's younger age, his level of maturity, and his different role in the offending, particularly the fact that he did not use a knife.

The Court emphasised that differentiation between co-offenders sentenced in the same exercise is itself a discretionary assessment. Citing Markarian v The Queen (2005) 228 CLR 357 and Lowndes v The Queen (1999) 195 CLR 665, the Court confirmed that the appellate task is not to substitute its own view but to assess whether the differentiation was open to the primary judge. The Court held that it plainly was.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that arguments about the weight given to youth and deterrence in sentencing will generally not establish appellate error unless they reveal a wrong application of legal principle, not merely a disagreement about emphasis.
  • A justifiable sense of grievance on parity grounds is not established merely because greater disparity between co-offenders was theoretically possible; the question is whether the differentiation actually made was open to the sentencing judge as a matter of discretion.
  • Where co-offenders are sentenced together and differences in age, maturity, and role are apparent, a sentencing judge may legitimately arrive at quite different overall terms, even when all offenders are liable under joint criminal enterprise principles.
  • Under the appellate review framework articulated in Markarian and Lowndes, there is no single correct sentence, and courts of appeal afford primary judges flexibility in how they calibrate differences between co-offenders sentenced in the same exercise.
  • The suppression provisions of the Children (Criminal Proceedings) Act 1987 (NSW) applied to the applicant as a juvenile offender, requiring pseudonyms not only for him but also for juvenile witnesses connected to the proceedings.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A, Pt 3
- Crimes Act 1900 (NSW), ss 33(1), 93C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 12, 21A(2), 44(2)

Cases:
- Afu v R [2017] NSWCCA 246
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Bugmy v The Queen (2013) 249 CLR 571
- Gore v R; Hunter v R [2010] NSWCCA 330
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Lam v R; Lam v R [2015] NSWCCA 87
- Lowe v The Queen (1984) 154 CLR 606
- Lowndes v The Queen (1999) 195 CLR 665
- Markarian v The Queen (2005) 228 CLR 357
- Postiglione v The Queen (1997) 189 CLR 295
- Stuart v R [2016] NSWCCA 72
- Tatana v R [2006] NSWCCA 398