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Court of Criminal Appeal 14 December 2017

TL v R

[2017] NSWCCA 308

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING PARITY WITH CO OFFENDER NO JUSTIFIABLE SENSE OF GRIEVANCE NEED TO RE

Citation: TL v R [2017] NSWCCA 308
Court: NSW Court of Criminal Appeal
Date: 14 December 2017
Judges: Hoeben CJ at CL, Davies J, Adamson J

Background

The appellant was convicted across three separate jury trials of three counts of aggravated break and enter (with larceny) and one count of wounding with intent to cause grievous bodily harm, contrary to the Crimes Act 1900 (NSW). The offences were committed in late 2012 and involved the appellant acting in company with co-offenders to break into residential properties and steal valuables. One offence involved a victim who was home alone and was wounded during the break-in.

At sentencing in the District Court in December 2015, Judge Culver imposed an aggregate sentence of 13 years and six months imprisonment, with a non-parole period of eight years and six months. The appellant had been on parole at the time of the offending.

The appellant sought leave to appeal on three grounds: that the sentencing judge improperly took his parole status into account when assessing the objective seriousness of the offences; that there was an unjustifiable sentencing disparity with a co-offender; and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by treating the appellant's status as a parolee as a factor bearing on the objective seriousness of the offences, rather than as a purely subjective (personal culpability) matter.
  • Whether the appellant had a justifiable sense of grievance arising from the disparity between his sentence and that of co-offender Andy Le, who was dealt with under the Children (Criminal Proceedings) Act 1987 (NSW).
  • Whether the aggregate sentence was manifestly excessive, including in light of significant assistance the appellant had provided to authorities in an unrelated matter.

Decision

Ground 1: Parole status and objective seriousness

Davies J (with Hoeben CJ at CL agreeing) found that the sentencing judge had erroneously treated the appellant's breach of parole as a factor enhancing the objective seriousness of the offences. Objective seriousness is assessed by reference to the nature and circumstances of the offending itself, not the personal circumstances of the offender. Being on parole at the time of offending is a matter that goes to subjective culpability or the assessment of moral culpability, not to objective seriousness. This error was sufficient to require resentencing.

Adamson J dissented on Ground 1. Her Honour read the sentencing remarks as a whole and concluded that, although the parole status was mentioned in the section of the judgment dealing with objective seriousness, the sentencing judge had correctly categorised it as going to moral culpability. Her Honour considered it would be wrong to infer error merely because a subjective matter appeared near a discussion of objective seriousness. Nonetheless, Adamson J agreed that resentencing was required given the majority's conclusion on Ground 1, and she agreed with the resentence proposed by Davies J.

Ground 2: Parity with co-offender

The Court found no justifiable sense of grievance arising from the disparity with co-offender Andy Le's sentence. Andy Le was a juvenile offender dealt with under the Children (Criminal Proceedings) Act 1987 (NSW), which provides a distinct sentencing regime. The different treatment reflected the co-offender's status as a child, not any error in the sentence imposed on the appellant.

Ground 3: Manifest excess and assistance to authorities

On resentencing, Davies J took into account the appellant's significant assistance to police in an unrelated matter. This was treated as a weighty mitigating factor warranting a meaningful reduction in the sentence. The aggregate sentence was reduced to ten years imprisonment with a non-parole period of six years and three months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Judge Culver on 17 December 2015 quashed.
  • In lieu, the appellant sentenced to an aggregate term of ten years imprisonment commencing 7 February 2015 and expiring 6 February 2025, with a non-parole period of six years and three months expiring 6 May 2021.

Key Takeaways

  • A majority of the Court of Criminal Appeal confirmed that being on parole at the time of offending is a matter of subjective culpability and cannot properly be used to elevate the objective seriousness of the offences.
  • Adamson J's dissenting view on Ground 1 serves as a reminder that the characterisation of such errors depends on a fair reading of the sentencing remarks as a whole, rather than on the structural placement of a comment within the judgment.
  • Where a co-offender was sentenced under the Children (Criminal Proceedings) Act 1987 (NSW), a disparity in sentences does not automatically give rise to a justifiable sense of grievance, because the distinct legislative regime applicable to children provides an objective explanation for the difference.
  • Significant assistance to authorities in an unrelated criminal matter remained a substantial mitigating factor on resentencing, capable of producing a material reduction in the overall sentence.
  • The decision illustrates that sentencing error in the assessment of objective seriousness, even where other grounds fail, will ordinarily require the appellate court to conduct a resentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33(1)(a), 112(1)(a), 112(2), 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- Boney v R [2015] NSWCCA 291
- Dickinson v R [2016] NSWCCA 301
- Elsaj v R [2017] NSWCCA 124
- Ersman v R [2007] NSWCCA 161
- Gill v R [2010] NSWCCA 236
- Kaddour v R [2017] NSWCCA 294
- Lam v R [2014] NSWCCA 50
- Loader v R; Dunn v R [2013] NSWCCA 215
- Mapp v R [2010] NSWCCA 269; 206 A Crim R 497
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- PG v R [2017] NSWCCA 179
- R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435
- Sharma v R [2017] NSWCCA 85
- Wan v R [2017] NSWCCA 261