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Court of Criminal Appeal 8 June 2018

Millard v R

[2018] NSWCCA 111

Theft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE TIME IMPRISONMENT OFFENDER ERRONEOUS DISPARITY FOUND APPEAL UPHELD

Citation: Millard v R [2018] NSWCCA 111
Court: NSW Court of Criminal Appeal
Date: 8 June 2018
Judge(s): Hoeben CJ at CL, Rothman J, Button J

Background

The applicant pleaded guilty in the Local Court to one count of breaking, entering and stealing in circumstances of aggravation (being in company), with an identical offence taken into account on a Form 1. The offending involved two separate nighttime break-ins at a music shop in Orange, in which the applicant acted as the getaway driver while his co-offender entered the premises and stole guitars worth approximately $11,695 in total. None of the stolen property was recovered.

On 23 February 2017, Judge Bennett SC in the District Court at Orange sentenced the applicant to a head sentence of three years' imprisonment with a non-parole period of one year and eight months. Several months later, the co-offender was sentenced by a different District Court judge to a head sentence of four years with a non-parole period of two years.

The applicant sought leave to appeal, arguing the sentencing judge had failed to properly account for his assistance to authorities, had provided inadequate reasons, and that the disparity between his sentence and the co-offender's gave rise to a justifiable sense of grievance.

  • Whether the sentencing judge erred by failing to take into account the applicant's assistance to authorities under the relevant statutory provisions.
  • Whether the sentencing judge gave insufficient reasons for imposing full-time imprisonment of three years.
  • Whether the difference in sentences between the applicant and the co-offender gave rise to a justifiable sense of grievance in the applicant.
  • Whether the sentence was manifestly excessive.

Decision

Button J, with whom Hoeben CJ at CL and Rothman J agreed, upheld the appeal on the ground of sentence disparity. The co-offender received a head sentence one year longer and a non-parole period four months longer than the applicant's. Although the co-offender's sentence was nominally heavier, the Court found this difference did not adequately or rationally reflect the actual differences in the subjective circumstances of the two offenders.

Rothman J expressly observed that the difference in sentences failed to reflect the difference in the subjective circumstances between the two men. The Court's conclusion was that the applicant's sentence was erroneously disproportionate when measured against what the co-offender received, and that a justifiable sense of grievance arose from that disparity.

The Court considered the applicant's subjective circumstances, which were significant: he had voluntarily attended a police station shortly after the offences, made admissions, and identified co-offenders. He was a single father with daily contact with his children, had a history of financial and employment hardship, and was assessed as a medium to low risk of reoffending. His conduct in custody since sentencing was described as quiet and constructive, with positive reports from Kirkconnell Correctional Centre.

Having identified the error, the Court exercised the sentencing discretion afresh and imposed a reduced sentence, maintaining approximately the same 56% ratio between the non-parole period and the head sentence that the original judge had adopted.

Orders Made

  • Leave to appeal granted.
  • The sentence imposed by Judge Bennett SC on 23 February 2017 is quashed.
  • The applicant is sentenced to a head sentence of two years and six months, with a non-parole period of one year and four months commencing 23 February 2017 and expiring 22 June 2018.
  • The parole period of one year and two months commences 23 June 2018 and expires 22 August 2019.
  • The applicant is to be released to parole on 22 June 2018.

Key Takeaways

  • A sentence may give rise to a justifiable sense of grievance even where the co-offender's nominal sentence is heavier, if the difference between the two sentences does not rationally reflect the difference in the offenders' subjective circumstances.
  • Rothman J confirmed that the disparity analysis is not simply a question of who received the longer sentence, but whether the gap between sentences adequately accounts for differences in culpability and personal circumstances.
  • The Court of Criminal Appeal exercised the sentencing discretion afresh after identifying error, and preserved the same proportional relationship between the non-parole period and the head sentence that the original sentencing judge had adopted.
  • Voluntary attendance at a police station, making admissions, and identifying co-offenders are mitigating factors that must be properly weighed at sentencing under the relevant statutory framework.
  • Positive post-sentence conduct in custody, while not ordinarily a basis on its own to reduce a sentence, can be considered and here presented no impediment to granting the reduction warranted by the identified error.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A, 23, 32
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
No specific cases were cited in the portions of the judgment provided.