Citation: Pham v R [2017] NSWCCA 75
Court: NSW Court of Criminal Appeal
Date: 24 April 2017
Judges: Basten JA; McCallum J; Fagan J
Background
The applicant was sentenced in August 2016 for four counts of aggravated break and enter and steal, with ten further offences taken into account, plus a robbery involving the snatching of a handbag that caused the victim actual bodily harm. The sentencing judge imposed a non-parole period of 7 years and 6 months with an additional term of 3 years and 6 months, producing a total sentence of 11 years.
The applicant and a co-offender, Mr Gordon, had been sentenced by the same judge for substantially the same principal offences. Mr Gordon received a total sentence of 6 years, with a non-parole period of 3 years and 7 months. The applicant sought leave to appeal on the grounds that his aggregate sentence was manifestly excessive and that it failed to reflect parity with Mr Gordon's sentence.
Legal Issues
- Whether the aggregate sentence was manifestly excessive given the objective seriousness of the offences and the applicant's personal circumstances.
- Whether the disparity between the applicant's sentence and his co-offender's sentence was unwarranted, thereby engaging the parity principle.
Decision
On the parity ground, the Court found that the comparison of bare aggregate sentences, without accounting for the very different discounts each offender received, was an unsound basis for a disparity argument. The applicant received a 12.5% discount for late guilty pleas, entered only after the trial was due to commence. Mr Gordon, by contrast, received a 25% discount for early guilty pleas in the Local Court and a further 25% discount for past and future assistance to law enforcement, producing an average discount of approximately 47% across his offences.
The Court demonstrated that if the applicant's aggregate starting point had been reduced by the same 47% applied to Mr Gordon, the result would have been only about 8 months more than Mr Gordon's final sentence. That remaining difference was fully accounted for by the applicant's marginally greater culpability, particularly in the robbery where he had personally grabbed the bag and dragged the victim. The sentencing judge had explicitly addressed parity and identified all relevant points of difference, including the applicant's additional Form 1 offences and the fact that he was on conditional liberty at the time of the offences.
On manifest excess, the Court noted that each of the four counts of aggravated break and enter carried a maximum of 20 years imprisonment with a standard non-parole period of 5 years, as did the robbery charge. None of the indicative starting points exceeded that standard non-parole period. Given the applicant's substantial criminal record, his commission of the offences while on conditional liberty, and the absence of any significant mitigating factors, the Court found the aggregate sentence was manifestly within the range reasonably available to the sentencing judge. Leave to appeal was refused.
Orders Made
- Leave to appeal against sentence refused.
Key Takeaways
- Comparing only the final aggregate sentences of co-offenders, without accounting for the different discounts each received for pleas and assistance, produces a misleading basis for a disparity argument.
- The parity principle requires that persons in like circumstances be dealt with in like fashion; where co-offenders are in materially different circumstances, different sentences are warranted and expected.
- A sentencing judge who explicitly identifies and reasons through the points of difference between co-offenders is unlikely to have left an unwarranted disparity open to successful challenge on appeal.
- Committing serious offences while on conditional liberty, combined with a substantial criminal history and only a modest discount for late pleas, are factors capable of producing a significantly longer sentence than that imposed on a co-offender with early plea and assistance discounts.
- In dismissing both grounds, the Court of Criminal Appeal confirmed that an aggregate sentence can sit well within the available range even where it is substantially longer than a co-offender's sentence, provided the disparity is adequately explained.
Legislation and Cases Referenced
Legislation:
- The judgment does not expressly cite specific legislative provisions by name, though reference is made to standard non-parole periods and maximum penalties applicable to aggravated break and enter and steal and aggravated robbery offences under NSW law.
Cases:
- No cases were expressly cited in the text provided. The parity principle was discussed as an established sentencing principle without citation to specific authorities.