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Court of Criminal Appeal 24 March 2017

Burrows v R

[2017] NSWCCA 45

Assault & violenceTheft & property
SENTENCE APPEAL JOINT CRIMINAL ENTERPRISE YOUNG OFFENDER WHETHER PARITY PRINCIPLE OBSERVED NO ERROR FOUND LEAVE TO APPEAL DISMISSED

Citation: Burrows v R [2017] NSWCCA 45
Court: NSW Court of Criminal Appeal
Date: 24 March 2017
Judges: Macfarlan JA, Schmidt J, Wilson J (judgment delivered by Wilson J)

Background

The applicant, a then 18-year-old man with no prior criminal history, participated in a planned home invasion in Murwillumbah in March 2014. He was recruited by older men to join the group and make it appear more formidable, motivated by the prospect of obtaining cannabis. He knew the group was armed and had previously carried out violent home invasions.

The group forced entry into the wrong house, targeting an elderly couple in their seventies rather than the intended drug dealer. One victim sustained serious head injuries requiring nine sutures, two fractured ribs, and ongoing pain. Both victims were deeply traumatised. The applicant's own role was relatively passive: he searched a roof cavity for valuables and did not personally inflict violence, though he took no steps to stop the assault.

The applicant pleaded guilty in the District Court at Lismore to specially aggravated break, enter and commit a serious indictable offence under s 112(3) of the Crimes Act 1900 (NSW), which carries a maximum sentence of 25 years and a standard non-parole period of 7 years. He was sentenced to 6 years and 6 months imprisonment with a non-parole period of 4 years. He sought leave to appeal on the ground that the sentence was manifestly excessive, arguing the sentencing judge gave insufficient weight to his age and that the parity principle required a lesser sentence than those imposed on his co-offenders.

  • Whether the sentencing judge erred in assessing the applicant's culpability, having regard to his relatively passive role in the joint criminal enterprise
  • Whether the sentencing judge gave adequate weight to the applicant's youth, being 18 years and 2 months at the time of the offence
  • Whether the parity principle required intervention given the sentences imposed on co-offenders

Decision

The Court of Criminal Appeal found no error in the sentencing judge's assessment of culpability. The sentencing judge had expressly acknowledged the applicant's passive role and lack of personal violence, but found he had entered the venture "with his eyes wide open," knowing weapons would be used and that co-offenders had committed previous violent home invasions. Participation in a joint criminal enterprise carries shared responsibility for acts done in furtherance of that enterprise, regardless of individual passivity during its execution.

On the question of youth, the Court found the sentencing judge had adequately considered the applicant's age. The judge recognised him as a young offender and gave weight to his rehabilitation, his lack of prior record, and his improved circumstances. However, the gravity of the offence, which fell above the mid-range of seriousness, limited the extent to which youth could reduce the sentence. The Court noted that general deterrence retains significant force for offences of this nature, even where the offender is young.

On parity, the applicant had in fact received the lightest sentence of all co-offenders. The sentencing judge had carefully compared the objective and subjective circumstances of each participant and adjusted sentences to reflect differing culpability. The Court confirmed that mere disparity between co-offenders' sentences does not justify appellate intervention; the disparity must be so marked as to engender a justifiable sense of grievance. No such disparity existed here.

Leave to appeal was refused.

Orders Made

  • Leave to appeal is refused.

Key Takeaways

  • Participation in a joint criminal enterprise attracts responsibility for acts done in furtherance of that enterprise, even where an individual offender's role is relatively passive and involves no personal violence.
  • A young offender's age and rehabilitation prospects are relevant mitigating factors, but their weight is constrained where the offence is of high objective seriousness and general deterrence is an important sentencing consideration.
  • Under the parity principle, appellate intervention requires more than mere difference between co-offenders' sentences; the disparity must be "gross," "marked," or "manifest" such that the applicant has a justifiable sense of grievance (following Lowe v The Queen and Postiglione v The Queen).
  • Receiving the lowest sentence among all co-offenders is a significant obstacle to a parity-based appeal.
  • No error was established in the sentencing judge's approach, and the Court of Criminal Appeal declined to grant leave to appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- Lowe v The Queen [1984] HCA 46; (1984) CLR 606
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- England v R; Phanith v R [2009] NSWCCA 274
- R v AEM Snr & Ors [2002] NSWCCA 58
- R v JW [2010] NSWCCA 49
- R v Loveridge (2014) 243 A Crim R 31
- R v MA [2004] NSWCCA 92; (2004) 145 A Crim R 434
- R v Tangye (1997) 92 A Crim R 545
- Bland v R [2014] NSWCCA 82
- DF v R [2012] NSWCCA 171
- Yang v R [2012] NSWCCA 49
- Sheen v R [2014] NSWCCA 42
- Tatana v R [2006] NSWCCA 398
- Majid v R [2010] NSWCCA 121
- Gill v R [2010] NSWCCA 236
- Pham and Ly v R (1991) 55 A Crim R 128
- R v Fidow [2004] NSWCCA 172
- R v Wright [2009] NSWCCA 3