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Court of Criminal Appeal 5 August 2019

Davison v R

[2019] NSWCCA 179

Theft & propertyPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE APPLICANT PLEADED GUILTY WHEREAS CO PARITY WHETHER JUSTIFIABLE SENSE OF GRIEVANCE

Citation: Davison v R [2019] NSWCCA 179
Court: NSW Court of Criminal Appeal
Date: 5 August 2019
Judge(s): Gleeson JA, Johnson J, Price J (unanimous, Price J writing)

Background

The applicant pleaded guilty in the Local Court to stealing a motor vehicle and aggravated break and enter, receiving a 25% sentencing discount for his guilty pleas. He and a co-offender had used a stolen BMW to ram through the front windows of a shop in Wolli Creek in an attempt to access an ATM. The applicant's DNA was found at the scene, and he was sentenced in the District Court in June 2018 to an overall effective term of 3 years 3 months with a non-parole period of 2 years.

The co-offender was tried separately before a jury, convicted on the same charges, and sentenced to an aggregate term of 3 years with a non-parole period of 18 months. This meant the co-offender, who had contested the charges, received a shorter sentence than the applicant, who had pleaded guilty.

The applicant sought leave to appeal solely on the ground of parity, arguing that the disparity between his sentence and the co-offender's produced a justifiable sense of grievance.

  • Whether the disparity between the applicant's sentence and the co-offender's sentence was explained by genuine differences in their subjective circumstances.
  • Whether the disparity gave rise to a justifiable sense of grievance on the part of the applicant.
  • Whether reducing the applicant's sentence to address that grievance would result in an erroneously lenient sentence.
  • Whether the co-offender's sentence was itself manifestly inadequate, which would have undermined the parity argument.

Decision

The Court accepted that a meaningful sentencing disparity existed. The applicant, who pleaded guilty, ended up serving a longer effective sentence than his co-offender, who was found guilty after a trial. The applicant had received a 25% discount for his guilty pleas, yet the overall outcome was still heavier than the co-offender's sentence.

The Court examined whether the subjective differences between the two offenders could explain the gap. While the applicant had a more significant criminal history and had breached bail during the proceedings (including leaving the Balund-a residential rehabilitation program early and being arrested for fresh offences), the Court found these factors did not fully account for a disparity that left the applicant worse off despite his guilty pleas.

The Court also considered whether the co-offender's sentence was manifestly inadequate. If it were, parity would not be a basis for reducing the applicant's sentence. The Court declined to make that finding, treating the co-offender's sentence as the relevant comparator.

Price J acknowledged that the resulting adjustment was marginal and might be seen as "tinkering," but held that some reduction was necessary to mitigate the applicant's justifiable sense of grievance. The overall effective head sentence was reduced from 3 years 3 months to 3 years, with the non-parole period adjusted to 21 months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed in the District Court on 22 June 2018 quashed.
  • For stealing a motor vehicle (s 154F, with Form 1 larceny taken into account): fixed term of 9 months imprisonment, commencing 2 February 2018 and expiring 1 November 2018.
  • For aggravated break and enter (s 113(2)): 2 years 9 months imprisonment, comprising a non-parole period of 18 months commencing 2 May 2018 and expiring 1 November 2019, with a balance of term of 15 months expiring 1 February 2021.
  • Earliest parole eligibility date: 1 November 2019.

Key Takeaways

  • A guilty plea does not automatically insulate a sentence from a parity challenge, but a sentencing outcome that leaves a person who pleaded guilty worse off than a co-offender convicted at trial will ordinarily warrant scrutiny on appeal.
  • Differences in subjective circumstances, such as a more serious criminal history or bail breaches, can explain some degree of disparity between co-offenders, but must actually account for the full gap in order to defeat a parity ground.
  • The parity principle does not apply mechanically: before reducing one sentence to match another, the court must be satisfied the co-offender's sentence is not itself manifestly inadequate. If it is, the remedy lies in appealing the co-offender's sentence rather than importing the error into the applicant's.
  • In re-sentencing, the Court of Criminal Appeal adopted all unchallenged findings from the original sentencing proceedings, adjusting only the degree of concurrency between the individual sentences to achieve the reduced overall effective term.
  • Even a marginal sentencing adjustment can be warranted where necessary to address a justifiable sense of grievance, notwithstanding the risk of being characterised as "tinkering."

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 113(2), 154F
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 11, 22A

Cases:
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Hall [2017] NSWCCA 313
- R v Kollas and Mitchell [2002] NSWCCA 491
- R v Ilbay [2000] NSWCCA 251
- R v Reilly; R v Smith [2012] NSWCCA 166
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Saraya v R [2015] NSWCCA 63
- Youkhana v R [2011] NSWCCA 37