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Court of Criminal Appeal 15 December 2022

Teece v R

[2022] NSWCCA 265

Firearms & weaponsPublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS PARITY MISAPPLICATION OF PRINCIPLE

Citation: Teece v R [2022] NSWCCA 265
Court: Court of Criminal Appeal, NSW
Date: 15 December 2022
Judge(s): Garling J, Button J (primary reasons), Wilson J

Background

The applicant was sentenced in December 2020 by Judge King SC in the District Court for three offences: possessing an offensive weapon in company with intent to commit an indictable offence (intimidation), contrary to s 33B(2) of the Crimes Act 1900 (NSW), and two Commonwealth offences of using a carriage service to menace. The offences arose from an incident in July 2019 in which the applicant and a co-offender attended the home of a man the applicant believed owed him $190. The co-offender produced a loaded, shortened shotgun, pointed it at the victim's chest, and fired a round at the victim's feet.

The applicant received a total head sentence of six years' imprisonment with a non-parole period of four years six months. Approximately one year later, a different judge, Judge Wass SC, sentenced the co-offender for the shared offence and a separate firearms prohibition order offence. The co-offender received an aggregate head sentence of three years with a non-parole period of eighteen months.

The applicant sought leave to appeal out of time, arguing that the disparity between the two sentences was unjust and that his own sentence was affected by legal error.

  • Whether the applicant had a justifiable sense of grievance arising from the disparity between his sentence and that of the co-offender (the parity ground).
  • Whether the sentence imposed on the applicant was manifestly excessive.
  • Whether the sentencing judge erred by placing undue weight on the applicant's lack of remorse and its effect on rehabilitation prospects; by failing to adequately account for the applicant's long-standing diagnosis of attention deficit disorder (ADD) and substance abuse; and by finding that the applicant knew the co-offender had loaded the firearm, in the absence of evidence to support that finding.

Decision

On parity: The Court rejected the parity ground. Button J noted that it is a common occurrence in the criminal justice system for different judges to sentence different co-offenders, and that differences in fact-finding between judges are not inherently impermissible. Where one co-offender pleads guilty, fact-finding may diverge legitimately, and differing evaluative impressions formed through instinctive synthesis are not grounds for appellate interference, provided the findings were open on the evidence. The Court also held that a parity argument must be grounded in a comparison of the starting point sentences of co-offenders, not simply the final outcomes, to ensure a genuine "like for like" comparison.

Examining the particulars, the Court found that the two men were meaningfully different in their roles and circumstances: the applicant was the instigator and the older man, continued his conduct through menacing phone calls, and was assessed as unremorseful and showing poor prospects of rehabilitation. The co-offender was characterised as the "muscle," was younger, had shown genuine remorse, and presented cause for optimism. Button J considered that the difference of one year and nine months between the starting point sentences for the shared offence was well open, and that no other aspect of the comparison gave rise to erroneous disparity.

On manifest excess: The Court confirmed that the proper question on a manifest excess ground is whether the sentence, even absent an identifiable error, falls so far outside the legitimate sentencing discretion as to constitute error in itself. Comparisons between the approaches of different sentencing judges towards different co-offenders are not relevant to this inquiry. The Court found no manifest excess on the facts.

On alleged sentencing errors: The Court held that criticism of the weight assigned to the applicant's lack of remorse and rehabilitation prospects did not engage any recognised sentencing error, since questions of weight are evaluative judgments for sentencing judges. Similarly, the degree to which the applicant's ADD and substance abuse diagnoses affected the sentence was a discretionary matter for the sentencing judge, not a ground of appellate error. The Court found no error established across the three sub-grounds.

Orders Made

  • Leave to appeal, including out of time, granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that differences in fact-finding between two separately constituted sentencing courts, where each court's findings were open on the evidence, do not give rise to a justifiable sense of grievance for parity purposes.
  • A parity ground must compare the starting point sentences of co-offenders to ensure a genuine like-for-like analysis; final aggregate outcomes alone are insufficient as the basis for a disparity argument.
  • Manifest excess is assessed by reference to whether the sentence falls outside the legitimate sentencing discretion, not by comparing the approaches of different judges to different co-offenders.
  • Questions of weight accorded to remorse, rehabilitation, and mitigating diagnoses such as ADD and substance abuse are evaluative judgments within the sentencing judge's discretion, and criticism of that weighting does not, without more, establish appellate error.
  • The Court emphasised that sentencing in Australia involves instinctive synthesis by individual judges, not a mechanistic application of fixed values, and that divergent outcomes between co-offenders sentenced separately may simply reflect that evaluative process.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 166
- Criminal Code Act 1995 (Cth), s 474.17(1)
- Criminal Procedure Act 1986 (NSW)
- Firearms Act 1996 (NSW), s 74

Cases:
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Rae v R [2011] NSWCCA 211
- PG v R [2017] NSWCCA 179
- WM v R [2020] NSWCCA 96
- Tran v R (Cth) [2020] NSWCCA 310
- Patel v R [2022] NSWCCA 93