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Court of Criminal Appeal 23 November 2022

Apulu v R

[2022] NSWCCA 244

Assault & violenceTheft & propertyFirearms & weapons
CRIME APPEAL AGAINST SENTENCE ROBBERY WHILST ARMED ROBBERY UPON SERVICE STATION ATTENDANT QUESTION OF M ANIFEST EXCESS

Citation: Apulu v R [2022] NSWCCA 244
Court: NSW Court of Criminal Appeal
Date: 23 November 2022
Judges: Simpson AJA, Davies J, Wilson J

Background

The appellant was 19 years old at the time of the offences and pleaded guilty in the District Court to two counts of armed robbery under s 97(1) of the Crimes Act 1900 (NSW). Both robberies were committed at the same service station in western Sydney, approximately two weeks apart, in December 2020 and January 2021. On each occasion, the appellant was accompanied by a 17-year-old co-offender; both were armed with weapons on each occasion, and projectiles were thrown at the service station attendants. The appellant also threatened to kill a victim during the second robbery.

The District Court imposed an aggregate custodial sentence. The co-offender, because of his age, was dealt with separately in the Children's Court under the Children (Criminal Proceedings) Act 1987 (NSW) and received suspended control orders without any conviction being recorded.

The appellant sought leave to appeal, arguing that the sentencing judge had failed to apply the parity principle correctly, that the sentence was manifestly excessive, and that the judge had made a series of errors in applying sentencing principles.

  • Whether the parity principle applied, or applied in a meaningful way, where the co-offender was sentenced under an entirely different statutory regime in the Children's Court
  • Whether the resulting disparity in outcomes gave the appellant a justifiable sense of grievance
  • Whether the aggregate sentence was manifestly excessive
  • Whether the sentencing judge erred in assessing the appellant's psychiatric condition, moral culpability, maturity, character, subjective circumstances, risk of reoffending, prospects of rehabilitation, remorse, and the guideline judgment in R v Henry
  • Whether the sentencing judge double-counted the use of a weapon both as an aggravating factor and in assessing objective gravity

Decision

Parity (Ground 1): The court divided on this issue. Wilson J, with whom Davies J ultimately agreed on the outcome, held that the parity principle was of limited relevance because the co-offender was sentenced under a fundamentally different statutory regime in the Children's Court. Although Davies J accepted that the sentencing disparity was significant, he concluded that the appellant did not have a justifiable sense of grievance in the circumstances. Simpson AJA dissented, finding that the disparity was significant enough to justify a sense of grievance and that the sentence should have been reduced accordingly.

Manifest Excess (Ground 2): By majority, Wilson J and Davies J held that the aggregate sentence was not manifestly excessive. The court noted that two violent armed robberies committed at night, in company, against vulnerable service station attendants, with weapons and projectiles used to menace victims, carried substantial objective gravity. The offences attracted a maximum of 20 years imprisonment, and a person convicted of two such robberies should ordinarily expect a full-time custodial sentence. Simpson AJA again dissented, considering that her conclusions on parity should have led to a reduced sentence.

Sentencing Errors (Ground 3): All three judges agreed that no error was demonstrated across the numerous specific complaints. The sentencing judge had not acted on a wrong principle or misapplied principle in assessing the appellant's psychiatric condition, culpability, maturity, character, subjective circumstances, or prospects of rehabilitation. On the guideline judgment in R v Henry, Simpson AJA (with Davies J agreeing on this point) examined whether the sentencing judge had impermissibly double-counted the use of a weapon. The court found no double-counting: the use of a weapon could properly inform the assessment of objective gravity and could also constitute a separately recognised aggravating feature without amounting to error.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The parity principle is of limited relevance where a co-offender has been sentenced in the Children's Court under a wholly different statutory regime; direct comparison of outcomes across those two jurisdictions does not straightforwardly generate a justifiable sense of grievance.
  • A significant divergence in sentences does not automatically establish a justifiable sense of grievance; the court must consider whether the disparity reflects the operation of different sentencing frameworks rather than inconsistent treatment of comparable offenders.
  • Under the guideline judgment in R v Henry, use of a weapon can properly bear on both the objective gravity of armed robbery and the assessment of aggravating circumstances without constituting impermissible double-counting.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that a person sentenced for two armed robberies should ordinarily expect a full-time custodial sentence, and that this case fell squarely within that expectation.
  • No errors were established across a wide range of sentencing factors, including the assessment of psychiatric condition, moral culpability, maturity, character, remorse, and risk of reoffending, reinforcing the high threshold required to disturb a sentencing judge's discretionary findings on subjective circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 33(1)(g), 33(1B)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- R v Henry and Ors (1999) 46 NSWLR 346; [1999] NSWCCA 111 (guideline judgment)
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Bugmy v R (2013) 249 CLR 571
- House v The King (1936) 55 CLR 499
- Lowndes v The Queen (1999) 195 CLR 665
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 19
- Belvie v R [2017] NSWCCA 36
- Govinden [1999] NSWCCA 118
- R v Colgan [1999] NSWCCA 292
- R v Boney [2001] NSWCCA 432
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- Pritchard v R [2022] NSWCCA 130
- Butters v R [2010] NSWCCA 1
- Johan v R [2015] NSWCCA 58
- Imbornone v R [2017] NSWCCA 144
- Aslan v R [2014] NSWCCA 114
- R v Crotty (Court of Criminal Appeal (NSW), 29 February 1994, unrep)
- R v Diamond (NSW Court of Criminal Appeal, 18 February 1993, unrep)