Citation: Mendoza v R [2020] NSWCCA 254
Court: NSW Court of Criminal Appeal
Date: 7 October 2020
Judge(s): Basten JA; Price J; Wright J
Background
The applicant was one of five Chilean nationals who travelled to Australia in late 2018 and participated in a joint criminal enterprise to commit residential burglaries across Sydney. He was arrested with two co-offenders at a shared residence at Olympic Park, where police also found a large volume of stolen goods. Each offender remitted money obtained from the burglaries to contacts in Chile.
On 19 December 2019, the applicant was sentenced by Norrish QC DCJ to an aggregate term of 8 years' imprisonment with a non-parole period of 4 years and 9 months. This followed guilty pleas to nine principal offences (including aggravated break and enter, proceeds of crime, and participating in a criminal group) and five further offences taken into account on Forms 1 (a procedural mechanism allowing additional offences to be considered without conviction). Two co-offenders sentenced at the same proceedings received lesser sentences: Hernandez received 5 years with a non-parole period of 2 years and 9 months, and Garcia received 7 years with a non-parole period of 4 years and 3 months.
The applicant sought leave to appeal his sentence on the basis that the disparity between his sentence and those of his two co-offenders gave him a justifiable sense of grievance, rendering his sentence unfair and manifestly excessive.
Legal Issues
- Whether the disparity between the applicant's aggregate sentence and Hernandez's lesser sentence gave the applicant a justifiable sense of grievance.
- Whether the disparity between the applicant's aggregate sentence and Garcia's lesser sentence gave the applicant a justifiable sense of grievance.
- How prosecutorial decisions to charge co-offenders differently should be treated when assessing parity in sentencing.
- Whether differences in moral culpability and subjective circumstances between co-offenders sufficiently explained the sentencing disparity.
Decision
Ground 1: Comparison with Hernandez
The Court found that the significant difference in the sentences imposed on the applicant and Hernandez was primarily the product of different prosecutorial charging decisions rather than any error in sentencing. Hernandez was charged with fewer and, in several instances, less serious offences. Several offences treated as principal offences for the applicant were placed on Forms 1 for Hernandez, meaning they attracted no additional conviction or separate sentence. The Court confirmed that where co-offenders are charged differently by the prosecution, the sentencing judge must work with the charges actually before the court, and the resulting disparity does not automatically give rise to a justifiable sense of grievance.
The judge had also found that Hernandez's role in several of the offences was as a lookout rather than as an active participant inside the premises. The applicant argued this was an error because acting as a lookout is an integral role in a joint criminal enterprise and should not attract lesser moral culpability. The Court rejected that submission, confirming that a sentencing judge is entitled to assess relative moral culpability within a joint criminal enterprise, and a lookout role can legitimately attract a lower assessment of individual culpability even where all participants are equally liable at law.
Ground 2: Comparison with Garcia
The Court found that several factors justified the one-year difference between the applicant's and Garcia's head sentences. Garcia had a background of significant personal dysfunction that the judge accepted warranted mitigation, whereas there was insufficient evidence that the other offenders' backgrounds went beyond financial disadvantage. Garcia was also six years younger than the applicant at the time of offending, which the judge found relevant to both culpability and prospects of rehabilitation. Garcia's prior criminal history was also less extensive than the applicant's. The Court held these differences in subjective circumstances were sufficient to account for the disparity and that no justifiable sense of grievance arose.
Orders Made
• Leave to appeal was refused
Key Takeaways
- The Court of Criminal Appeal confirmed that sentencing disparity arising from different prosecutorial charging decisions does not, without more, give rise to a justifiable sense of grievance in a co-offender who has been charged more extensively.
- A sentencing judge is entitled to find lesser moral culpability for a co-offender who acted as a lookout, even within a joint criminal enterprise where all participants bear equal legal liability for the substantive offences.
- Differences in subjective circumstances between co-offenders, including age, background, and prior criminal history, can legitimately explain sentencing disparities and defeat a parity ground of appeal.
- In refusing leave to appeal on both grounds, the Court applied the well-established principle from Postiglione v R (1997) 189 CLR 295 and Green v The Queen (2011) 244 CLR 462 that a "justifiable sense of grievance" requires more than a numerical difference in sentences between co-offenders.
- Charging co-offenders differently is a prosecutorial decision; the sentencing court must sentence on the charges before it, and the resulting disparity between sentences does not itself establish error in the sentence under challenge.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 93T, 112(1)(a), 112(2), 113(2), 114(1)(d), 193B(2)
- Migration Act 1958 (Cth), s 234(1)(b)
Cases
- Postiglione v R (1997) 189 CLR 295
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v Ilbay [2000] NSWCCA 251
- R v Kollas and Mitchell [2002] NSWCCA 491
- Ryan Gurney v R; Aaron Willetts v R [2011] NSWCCA 48