Citation: Dunn v R [2023] NSWCCA 1
Court: NSW Court of Criminal Appeal
Date: 31 January 2023
Judges: Beech-Jones CJ at CL, Price J, Lonergan J (reasons delivered by Lonergan J)
Background
The applicant pleaded guilty to one count of robbery while armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years imprisonment. The offence occurred in September 2014 at a hotel in Richmond, where the applicant and a co-offender entered the premises and robbed the bar of between $10,000 and $15,000 in cash. The co-offender produced what appeared to be a pistol and controlled staff, while the applicant moved along the bar removing cash from the tills.
The applicant was sentenced in the District Court in February 2021, receiving five years and three months imprisonment with a non-parole period of three years. His co-offender, who pleaded not guilty and was convicted after a jury trial in May 2021, was later sentenced to three years and eight months with a non-parole period of two years and two months. The co-offender's shorter sentence prompted the applicant to seek leave to appeal on the basis of the parity principle.
The notice of appeal was filed approximately one year after the notice of intention to appeal, owing to delays in obtaining documents about a custodial period and information about the co-offender's trial and sentence. The Court accepted this explanation as satisfactory and granted the extension of time.
Legal Issues
- Whether the applicant had a justifiable sense of grievance arising from a marked disparity between his sentence and the lesser sentence imposed on his co-offender
- Whether the effects of delay, totality, and concurrent sentencing for other offences adequately explained the difference in sentences
- Whether a guilty plea discount, compared to a conviction after trial, could of itself give rise to a justified grievance under the parity principle
Decision
The Court granted leave to appeal but dismissed the appeal, finding that the applicant had not established a justified sense of grievance. Lonergan J, with whom Beech-Jones CJ at CL and Price J agreed, examined the totality of each offender's sentencing circumstances rather than comparing the headline figures in isolation.
A significant feature of the applicant's case was that, at the time he was sentenced for the robbery, he was already serving sentences for other offences. There was a substantial overlap between those existing sentences and the new sentence, meaning that only approximately 18 months of his robbery non-parole period was, in practical terms, referable to the robbery itself. This was a consequence of accumulation and concurrence rather than leniency toward the applicant.
The co-offender, by contrast, was sentenced for the robbery at a time when he was also serving a sentence for a different offence committed much closer in time to the robbery. This attracted adjustment under principles derived from cases such as R v Todd and Mill v The Queen, which require consideration of the effect of delay and the relationship between offences when determining totality. The sentencing judge in the applicant's case also acknowledged that significant totality allowances would likely have been made had the applicant been charged earlier, but had to balance this against the discrete nature of the robbery offending.
The Court confirmed that a guilty plea, and the discount it attracts, does not automatically create a justified sense of grievance when a co-offender convicted after trial receives a shorter overall sentence. The proper inquiry under the parity principle remains whether an examination of all the circumstances of both offenders justifies the difference in sentences. Here, the difference was justified.
Orders Made
- Extension of time to file a notice of appeal granted until 22 February 2022
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The parity principle requires a court to examine the entirety of both offenders' sentencing circumstances, not merely to compare headline sentences or non-parole periods in isolation.
- Delay between an offence and sentencing can affect each co-offender differently, particularly where one offender has accumulated additional sentences in the intervening period, altering how totality principles operate.
- A convicted offender who received a guilty plea discount does not automatically have a justified sense of grievance if a co-offender convicted after trial received a shorter sentence; the critical question remains whether the difference is explicable on a full examination of the respective cases (citing Bond v R [2020] NSWCCA 277).
- Where sentences for other offences substantially overlap with a new sentence, the practical custodial consequence attributable to the new offence may be significantly less than the nominal term suggests, and courts treat this overlap as a relevant factor in parity analysis.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing courts are entitled to impose some accumulation where offending is discrete in nature and involves different victims, even where the offender argues that notional totality considerations would have operated in their favour had they been charged earlier.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(2)
Cases
- Bond v R [2020] NSWCCA 277
- Borg v R [2019] NSWCCA 129
- Bugmy v The Queen (2013) 249 CLR 571
- Chamon v R [2020] NSWCCA 112
- Dawson (a pseudonym) v R [2021] NSWCCA 33
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Lloyd v R [2017] NSWCCA 303
- Mill v The Queen (1988) 166 CLR 59
- Nasiri v R [2019] NSWCCA 1
- Porter v R [2019] NSWCCA 117
- Postiglione v The Queen (1996) 189 CLR 295
- R v Cattell [2019] NSWCCA 297
- R v Henry (1999) 46 NSWLR 346
- R v Jackson [2021] NSWDC 416
- R v Obbens [2022] NSWCCA 109
- R v Todd (1982) 2 NSWLR 517
- Tatana v R [2006] NSWCCA 398
- Wong v The Queen (2001) 207 CLR 584