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Court of Criminal Appeal 21 June 2019

Johan v R

[2019] NSWCCA 126

Theft & property
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE PAROLE PERIOD ASSESSMENT OF SUBJECTIVE CASE LEAVE TO APPEAL OUT OF TIME GRANTED

Citation: Johan v R [2019] NSWCCA 126
Court: Court of Criminal Appeal, NSW
Date: 21 June 2019
Judge(s): Payne JA (principal judgment), Davies J and Button J agreeing

Background

The applicant was sentenced in June 2017 in the District Court alongside three co-offenders for their roles in a coordinated series of residential break-ins committed over roughly one week in September 2015. The group operated as a team: some members entered premises while others acted as lookouts, communicating by mobile phone. They pleaded guilty at the first available opportunity to four charges of aggravated break, enter and commit a serious indictable offence (larceny) under s 112(2) of the Crimes Act 1900 (NSW), with a further four charges taken into account on a Form 1.

The sentencing judge imposed an aggregate sentence of 6 years and 9 months' imprisonment on the applicant, with a non-parole period of 5 years. The three co-offenders appealed their sentences separately. In August 2018, the Court of Criminal Appeal upheld those appeals and resentenced each co-offender to non-parole periods ranging from 4 years to 4 years and 1 month. The applicant had filed a notice of intention to appeal at that time but did not participate in the co-offenders' appeal.

The applicant subsequently sought leave to appeal out of time against his own sentence, arguing that his non-parole period was excessive. The Crown did not oppose that leave being granted.

  • Whether the sentencing judge erred by failing to give practical effect to his stated intention to take the delay in proceedings into account when fixing the non-parole period
  • Whether parity principles required the applicant's sentence to be brought broadly into line with those imposed on his co-offenders after their successful appeal
  • (Abandoned on appeal) Whether the sentencing judge erred by failing to nominate individual non-parole periods for each offence as required by s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

The Crown conceded the first ground of appeal: the sentencing judge found he would take delay into account when setting the non-parole period but failed to translate that finding into the actual sentence imposed. That concession was sufficient to allow the appeal, requiring the Court of Criminal Appeal to resentence the applicant.

In resentencing, the Court adopted the sentencing judge's unchallenged findings of fact, consistent with the approach endorsed by the High Court in DL v The Queen [2018] HCA 32. The Court also accepted that lesser indicative sentences and a lesser aggregate were warranted in law, pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW).

The Court considered parity carefully. Although one judge in the earlier co-offenders' appeal had observed that the applicant's sentences should have been higher than those of his co-offenders due to differences in subjective circumstances (notably the absence of evidence of hardship, deprived background, drug abuse or mental health issues in the applicant's case), Payne JA noted that this observation was not explicitly joined by the other two judges in that appeal. The Court concluded that while the applicant's subjective circumstances did differ, the differences did not justify a significantly greater sentence than those imposed on the co-offenders.

The applicant received a 25% discount for his early guilty plea. The Court resentenced him to an aggregate term of 5 years and 8 months with an aggregate non-parole period of 4 years and 3 months, broadly consistent with the outcomes for his co-offenders.

Orders Made

  • Leave granted to appeal out of time
  • Leave to appeal granted
  • Appeal allowed
  • Original sentence imposed by Blackmore SC DCJ on 23 June 2017 set aside
  • Applicant resentenced to an aggregate term of 5 years and 8 months' imprisonment commencing 17 September 2015 and expiring 16 May 2021, with an aggregate non-parole period of 4 years and 3 months commencing 17 September 2015 and ending 17 December 2019
  • Release to parole on 17 December 2019 recommended

Key Takeaways

  • A sentencing judge's stated intention to discount for delay must be given practical effect in the sentence actually imposed; stating the intention without reflecting it in the non-parole period is a legal error.
  • Parity principles require that like cases be treated alike and different cases be treated differently. The Court of Criminal Appeal confirmed that where co-offenders have had their sentences reduced on appeal, a remaining offender is entitled to have parity considered when their own appeal is heard, even if they did not participate in the earlier appeal.
  • Differences in subjective circumstances between co-offenders may justify some variation in sentences, but the disparity must be proportionate to those differences. Minor distinctions in subjective circumstances do not automatically warrant a substantially heavier sentence.
  • In resentencing an offender on appeal, where neither party challenges the sentencing judge's factual findings, the appellate court will generally adopt those findings rather than making fresh ones, following DL v The Queen [2018] HCA 32.
  • An early guilty plea discount of 25% applied on resentencing, confirming the availability of that reduction even where the original sentence is set aside on other grounds.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 113(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B(4)

Cases:
- DL v The Queen [2018] HCA 32; 92 ALJR 764
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- JM v R [2014] NSWCCA 297
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Quintero v R; Carvajal v R; Salazar v R [2018] NSWCCA 190
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36