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Court of Criminal Appeal 31 March 2021

Ramos-Malo v R

[2021] NSWCCA 49

Other
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE PARITY OFFENDER

Citation: Ramos-Malo v R [2021] NSWCCA 49
Court: NSW Court of Criminal Appeal
Date: 31 March 2021
Judges: Gleeson JA, Harrison J, Bellew J

Background

The appellant pleaded guilty in the Sydney District Court to four offences: two counts of assault occasioning actual bodily harm in company, one count of wounding with intent to cause grievous bodily harm, and one count of robbery in company. The offences arose from two separate incidents in mid-2018. In the first, the appellant participated in a violent group attack at a Rooty Hill hotel, using a hammer to strike one victim repeatedly on the head and stomping on him while he lay unconscious, as well as striking the hotel manager with a chair leg. In the second, about seven weeks later, he and a co-offender robbed a man at knifepoint near Penrith, taking his phone, bank cards, clothing, and other belongings.

Judge Bennett SC sentenced the appellant in December 2019 to an aggregate term of 10 years imprisonment with a non-parole period of 6 years. The appellant subsequently sought leave to appeal that sentence, filing his notice of appeal out of time. The Crown did not oppose the grant of leave.

  • Whether the sentencing judge misapplied the principles in R v Henry when setting the starting point for the robbery in company offence, particularly regarding the treatment of an early guilty plea
  • Whether the sentencing judge failed adequately to apply parity principles when setting the indicative sentence for robbery in company
  • Whether the appellant had a legitimate sense of grievance arising from the sentence imposed on his co-offender, Jimmy Vaafusuaga
  • Whether the sentencing judge failed to properly apply the totality principle
  • Whether the aggregate sentence was manifestly excessive

Decision

The Court granted leave to appeal and allowed the appeal, reducing the aggregate sentence. The central issue that drove the result was parity: the Court found that the appellant had a justifiable sense of grievance when his sentence was compared with that imposed on the co-offender Vaafusuaga. Although the Court's reasoning on the individual grounds is not reproduced in the provided text, the outcome confirms that the disparity between the sentences was not adequately explained by any material differences between the two offenders' circumstances or culpability.

In re-sentencing, the Court adopted the sentencing judge's factual findings, including the finding of special circumstances based on the appellant's youth, his progress in custody, and the need to provide structured supervision on release. The Court also took into account fresh evidence from the appellant, which detailed an impressive suite of vocational qualifications and rehabilitation programs completed in custody, including crane operator licences, construction safety certifications, and a substance abuse program. The Court found this material consistent with the earlier finding of strong prospects for rehabilitation.

The Court agreed that an aggregate sentence remained appropriate and re-sentenced accordingly. The indicative sentence for the most serious offence, wounding with intent to cause grievous bodily harm, was reduced from 8 years (with a 5-year non-parole period) to 6 years (with a 4-year non-parole period). The indicative sentences for the remaining three counts were left unchanged from those imposed by the sentencing judge.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Aggregate sentence reduced to 8 years imprisonment commencing 8 September 2018, with a non-parole period of 4 years and 9 months expiring 7 June 2023
  • Indicative sentence for wounding with intent to cause grievous bodily harm (victim Troy Taylor): 6 years imprisonment with a non-parole period of 4 years
  • Indicative sentences for the remaining three counts: unchanged from those set by the sentencing judge

Key Takeaways

  • A co-offender's lesser sentence can give rise to a justified sense of grievance sufficient to warrant intervention on appeal, even where the sentencing judge has otherwise approached the task without identifiable error on individual counts.
  • The parity principle requires that differences in sentences between co-offenders be explicable by reference to material differences in culpability or personal circumstances; where no such differences justify the disparity, the more heavily sentenced offender may successfully appeal.
  • Fresh evidence of rehabilitation undertaken after the original sentencing, including completion of vocational training and therapeutic programs in custody, can be relevant on a sentence appeal and may support a finding of strong prospects for rehabilitation made at first instance.
  • The Court of Criminal Appeal confirmed that special circumstances can be found on the basis of an offender's youth combined with the desirability of providing structured supervision on release, resulting in a longer parole period than the statutory default.
  • Under the Henry principles, vulnerability of a robbery victim does not automatically engage the factors relevant to aggravated vulnerability; the sentencing court must be satisfied the victim's circumstances fall within the contemplated category.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1900 (NSW), ss 33(1)(a), 59(2), 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)(b)

Cases
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- DS v R [2017] NSWCCA 37
- JNM v R [2014] NSWCCA 297
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 11