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Court of Criminal Appeal 9 May 2022

Contos v R

[2022] NSWCCA 92

Assault & violence
CRIME A PPEALS A PPEAL AGAINST SENTENCE PARITY OFFENDERS OFFENDERS ASSISTED

Citation: Contos v R [2022] NSWCCA 92
Court: NSW Court of Criminal Appeal
Date: 9 May 2022
Judge(s): Brereton JA, N Adams J, Lonergan J

Background

The applicant, a real estate agent, was sentenced in the District Court in March 2021 following his guilty plea to specially aggravated kidnapping and aggravated kidnapping under the Crimes Act 1900 (NSW). The offences arose from a planned attack on a contract cleaner and his co-worker at the applicant's apartment. The applicant had lured the cleaner to the premises on the false pretence of cleaning work, suspecting him of having stolen property. Two co-offenders, who were brothers, were recruited by the applicant to assist.

Over a period of almost five hours, the primary victim was repeatedly threatened and assaulted at multiple locations, suffering serious injuries including multiple broken ribs. The secondary victim was unknown to all three offenders and happened to be present as a co-worker. Both victims continued to experience psychological harm following the offences.

The applicant received an overall sentence of 5 years and 10 months imprisonment with a non-parole period of 3 years and 10 months. Both co-offenders had pleaded guilty earlier, in the Local Court, and were sentenced on different agreed facts. The applicant sought leave to appeal his sentence on two grounds.

  • Whether the sentencing judge erred in her assessment of the objective seriousness of the applicant's offending
  • Whether the sentences imposed on the co-offenders gave rise to a justifiable sense of grievance on the applicant's part, engaging the parity principle

Decision

Objective seriousness: The Court found no error in the sentencing judge's assessment of objective gravity. The applicant had planned, instigated, and orchestrated the entire offending, recruiting the co-offenders to assist. The Court noted that to the extent the co-offenders engaged in aggravating conduct, they did so at the applicant's direction. His claim of right, based on a belief that the victim had stolen from him, was found to carry minimal weight in mitigating the gravity of assault and kidnapping offences. The sentencing judge had found no evidence that the victim had in fact stolen anything.

Parity: The parity analysis was complicated by the fact that the applicant and his co-offenders were sentenced on different agreed facts. The facts available for sentencing the co-offenders disclosed more serious overall criminality, while the applicant's facts established him as the instigator and principal architect. Brereton JA observed that on the applicant's own facts, he was only slightly, if at all, less culpable than the co-offenders. On the co-offenders' facts, the applicant was significantly more culpable.

The Court found that the sentence imposed by the District Court reflected a considered conclusion that the applicant was somewhat, but not greatly, less culpable than the co-offenders on their respective sets of facts. Given this context, no disparity was established that would give rise to an objectively justifiable sense of grievance. Both grounds of appeal were dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A claim of right, while potentially relevant to a property offence, has only marginal relevance to the objective gravity of assault and kidnapping offences.
  • Where co-offenders are sentenced on different agreed facts, applying the parity principle requires careful attention to what each set of facts reveals about relative culpability, rather than a straightforward comparison of sentences.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge is not required to treat the instigator of an offence as substantially less culpable than co-offenders merely because the agreed facts for sentence differ between them.
  • No unjustifiable sense of grievance arises from a parity argument where the applicant organised, planned, and directed the entire criminal enterprise and the co-offenders acted at his behest.
  • The standard principles from House v The King and Lowe v The Queen governing appellate interference with sentences apply: demonstrated error is required, and a mere difference in outcome between co-offenders does not establish such error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 86(2), 86(3), 97(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 33, 54D
- 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
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Huckstadt v R [2016] NSWCCA 22
- Korovou v R [2021] NSWCCA 28
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Mulato v R [2006] NSWCCA 282
- Tuivaga v R [2015] NSWCCA 145