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Court of Criminal Appeal 7 December 2018

Er v R

[2018] NSWCCA 286

Theft & propertyTraffic & driving
CRIMINAL LAW SENTENCE APPEAL PAROLE PERIOD OF 3 YEARS OFFENDER WHETHER PARITY PRINCIPLE BREACHED NEED TO RE

Citation: Er v R [2018] NSWCCA 286
Court: NSW Court of Criminal Appeal
Date: 7 December 2018
Judges: Hoeben CJ at CL; Bellew J; Campbell J

Background

The appellant pleaded guilty in the District Court to one count of break, enter and steal under s 112(1)(a) of the Crimes Act 1900 (NSW), as well as one offence of driving while disqualified under s 54(1)(a) of the Road Transport Act 2013 (NSW). The offending arose from a residential burglary at Wakeley on 23 March 2016, in which the appellant acted as a lookout and driver, while two co-offenders entered and ransacked the premises. Items stolen included $100,000 in cash, significant quantities of jewellery, foreign currency, and two passports.

The District Court sentenced the appellant to five years' imprisonment with a non-parole period of three years: five years for the break, enter and steal (after a ten per cent plea discount), with a partially accumulated 18-month term for the driving offence. At the time of sentence, the appellant was already serving other custodial terms.

The appellant sought leave to appeal against sentence on multiple grounds, contending that the sentencing judge made several errors in the sentencing process.

  • Whether the sentencing judge misapprehended the sentence imposed on a co-offender (Aslett), thereby distorting the parity analysis
  • Whether the sentence for break, enter and steal, when compared with those imposed on the co-offenders, breached the parity principle by engendering a justifiable sense of grievance
  • Whether the sentencing judge failed to apply the totality principle in respect of an earlier sentence the appellant was already serving
  • Whether the sentencing judge applied an erroneous maximum penalty for the driving while disqualified offence
  • Whether the overall sentence was manifestly excessive

Decision

The Court of Criminal Appeal found error in the sentencing process and allowed the appeal. The primary source of error was the sentencing judge's misapprehension of the sentence imposed on co-offender Aslett. This misapprehension distorted the parity comparison between the appellant and his co-offenders, producing a sentence inconsistent with the parity principle. Given the appellant's role as driver and lookout (rather than as one who entered the premises), and his relative youth, the court found his sentence should be less than Aslett's but greater than Huynh's.

The court also identified error in the application of the maximum penalty for the driving while disqualified offence. At the time of the offending, the applicable maximum was two years' imprisonment for a second or subsequent offence. The sentencing judge had treated the offence as falling within the range of a worst case scenario and imposed 18 months (after a 25 per cent discount), but the Court of Criminal Appeal found this assessment was infected by the broader errors in the sentencing exercise.

On the totality principle, the court considered the appellant's existing custodial obligations and the need to ensure that the aggregate of sentences was proportionate to the overall criminality. Having found appellable error, the court proceeded to re-sentence the appellant. On re-sentence, the court had regard to the appellant's subjective circumstances, including his youth and relative role, though it noted mixed evidence regarding his behaviour in custody, and declined to make a positive finding in either direction on that material.

The court imposed a substantially reduced sentence, reducing the total term from five years and six months to three years and four months, with a non-parole period of two years.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed; the sentence imposed by Judge Bennett SC on 17 November 2017 quashed.
  • In respect of the driving while disqualified offence (23 March 2016): imprisonment for 9 months, commencing 1 October 2017 and expiring 30 June 2018.
  • In respect of the break, enter and steal offence (23 March 2016): imprisonment with a non-parole period of 1 year and 8 months, commencing 1 February 2018 and expiring 30 September 2019; balance of term of 1 year and 4 months expiring 31 January 2021.
  • Disqualification from holding a driver's licence for 12 months, commencing 30 September 2019 and expiring 29 September 2020.

Key Takeaways

  • A sentencing judge's misapprehension of a co-offender's sentence constitutes error in the sentencing process capable of vitiating the resulting sentence on appeal, particularly where the parity principle is central to the sentencing exercise.
  • Where multiple errors are identified in a sentencing exercise, the Court of Criminal Appeal will re-sentence the offender rather than merely adjust the existing orders.
  • The parity principle requires that co-offenders who are relevantly comparable not receive sentences that produce a justifiable sense of grievance; differences in role, culpability, and subjective circumstances are legitimate bases for differential outcomes.
  • Applying an incorrect maximum penalty to an offence is a discrete sentencing error, even where the sentence actually imposed falls below the wrong maximum that was used as the reference point.
  • In re-sentencing, the Court of Criminal Appeal declined to resolve contested questions about the appellant's in-custody conduct where insufficient evidence existed to make a finding safely in either direction, illustrating the importance of properly adduced evidence on subjective matters at first instance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 19(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166
- Road Transport Act 2013 (NSW), ss 9, 54(1)(a), 205A
- Road Transport (Driver Licence Disqualification) Act 2017 (NSW)

Cases
- Andreata v R [2015] NSWCCA 239
- Estephan v R [2015] NSWCCA 100
- Kandemir v R [2018] NSWCCA 154