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Court of Criminal Appeal 6 July 2022

Jackson v R

[2022] NSWCCA 148

Assault & violence
CRIME A PPEALS APPEAL AGAINST SENTENCE PARITY RECKLESS WOUNDING WHERE CO

Citation: Jackson v R [2022] NSWCCA 148
Court: NSW Court of Criminal Appeal
Date: 6 July 2022
Judge(s): Basten AJA, Price J, and N Adams J (judgment by N Adams J, with whom the others agreed)

Background

The appellant pleaded guilty in the Local Court to two counts of specially aggravated take and detain in company with intent to commit a serious indictable offence occasioning actual bodily harm (contrary to s 86(3) of the Crimes Act 1900 (NSW), maximum 25 years) and one count of reckless wounding in company (contrary to s 35(3), maximum 10 years). The offences occurred over roughly 24 hours in August 2019 at her home in Griffith, during which two victims were detained, repeatedly assaulted, robbed, burned with a drug pipe, and tasered. The appellant and four co-offenders were under the influence of methamphetamine throughout.

In the District Court, the appellant received an aggregate sentence of 7 years' imprisonment with a non-parole period of 4 years and 6 months. A co-offender, her niece Skye Little, received an intensive correction order (ICO) of 3 years for the same specially aggravated detention offences.

The appellant brought a single ground of appeal: that the disparity between her custodial sentence and her co-offender Little's ICO was unjustifiable.

  • Whether the sentencing disparity between the appellant and her co-offender Little was so marked as to constitute an error warranting appellate intervention on parity grounds.
  • Whether the sentencing judge gave adequate weight to the factors favouring Little relative to the appellant, including Little's youth, rehabilitative prospects, and comparative role in the offending.
  • What sentence, if any, should be substituted on re-sentencing.

Decision

The Court of Criminal Appeal accepted that the parity principle was engaged. Under that principle, co-offenders who are equally culpable should receive sentences that do not differ to such a degree that a justified sense of grievance arises. The Court found that the sentencing judge had overstated the differences between the appellant and Little and, in doing so, created a disparity that was not justified by the evidence.

The Court acknowledged that certain factors did warrant a heavier sentence for the appellant than for Little. These included the appellant's age and maturity compared to Little, the nature and degree of each person's participation in the offences, and the appellant's position as Little's aunt and owner of the house where the offending took place. However, the Court accepted the Crown's own concession that there was not much to differentiate the two women, and found that the sentencing judge had allowed too great a gap to open between them.

On re-sentencing, the Court applied a 25% discount for the guilty pleas and found special circumstances justifying a non-parole period comprising 64% of the head sentence, consistent with the original approach. The Court reduced the aggregate sentence from 7 years to 6 years' imprisonment. The Court also noted that a greater degree of disparity between the appellant and the two male co-offenders, Rushby and Lloyd, was appropriate given their more dominant roles in the offending.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Grant DCJ on 23 June 2020 quashed.
  • In lieu thereof, aggregate sentence of 6 years' imprisonment imposed, commencing 6 August 2019 and expiring 5 August 2025.
  • Non-parole period of 3 years and 10 months, expiring 5 June 2023.

Key Takeaways

  • The parity principle requires that differences in sentences between co-offenders be explicable by genuine differences in their culpability, role, personal circumstances, or other legitimate sentencing considerations. Where the gap is not so explained, a justified sense of grievance can arise and appellate intervention is warranted.
  • A significant difference in sentence form, such as between a full-term custodial sentence and an ICO, can itself constitute a disparity capable of grounding a parity appeal, not merely differences in the length of comparable orders.
  • Where a sentencing judge overestimates the distinctions between co-offenders, the Court of Criminal Appeal will re-exercise the sentencing discretion independently rather than simply remit the matter.
  • Factors such as youth, rehabilitation prospects, and the relative degree of participation remain relevant to differentiating sentences among co-offenders, even where all parties are involved in seriously violent conduct.
  • In dismissing the original approach, the Court of Criminal Appeal confirmed that even concessions made by the Crown at the original sentencing (here, that there was little to distinguish the appellant from her co-offender) are relevant considerations on the parity analysis.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 35(3), 86(3), 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(5AA), 32, 44(2), 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Huckstadt v R [2016] NSWCCA 22
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Mandranis v R [2021] NSWCCA 97
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Tuivaga v R [2015] NSWCCA 145