Citation: R v Reid [2000] NSWCCA 166
Court: Court of Criminal Appeal, New South Wales
Date: 5 May 2000
Judge(s): Hulme J; Carruthers AJ
Background
The applicant pleaded guilty in the District Court to two offences arising from events on 1 March 1999: being an accessory after the fact to stealing from a person, and larceny of a motor vehicle. The applicant and a co-offender broke into a car parked at Beecroft Railway Station and drove it away. During the drive, the co-offender reached from the passenger window and snatched a handbag from a pedestrian. The applicant was at the wheel. After a short police pursuit, both offenders fled on foot. The applicant was found hiding in a nearby backyard later that day.
Judge Shadbolt in the District Court sentenced the applicant to a full term of three and a half years imprisonment (with a minimum term of 18 months commencing 1 March 1999) for the accessory charge, and a minimum term of 18 months (with a six-month additional term) for the motor vehicle larceny, running concurrently. His Honour found special circumstances, citing the applicant's need for an extended period of supervised parole to address a serious heroin addiction. The applicant had a lengthy criminal history and connections to the Stolen Generation, having been removed from his Aboriginal family at age two.
The applicant sought leave to appeal against those sentences on three grounds.
Legal Issues
- Whether the sentencing judge erred by failing to apply the parity principle, given that the co-offender received a substantially lighter sentence
- Whether the sentencing judge erroneously sentenced the applicant as though the offence were robbery rather than the accessory charge actually before the court
- Whether the sentences were manifestly excessive, having regard to the applicant's personal circumstances and comparable sentencing statistics
Decision
On the second ground, the Court of Criminal Appeal found no error. Although the sentencing judge used the word "robbery" in passing during his remarks, he expressly identified the correct maximum penalty of five years under the relevant provision and sentenced accordingly. The Court noted that Judge Shadbolt was a very experienced criminal judge and that the reference to "robbery" was plainly a loose use of language rather than a misdirection.
On the parity ground, the Court acknowledged that the applicant's sentence for the accessory charge was more than double that imposed on the principal co-offender, who received only nine months. However, the Court drew on the principles in Regina v Lowe (1984) 154 CLR 606 and Regina v Steele, confirming that a disparity in sentences does not automatically entitle a more heavily sentenced co-offender to a reduction. The sentencing court is not bound by an earlier sentence if it concludes that the earlier sentence was manifestly inadequate. The Court found it apparent that Judge Shadbolt regarded the co-offender's sentence as inadequate, which justified the different outcome for the applicant.
On manifest excess, the Court was not persuaded that the sentences fell outside the available range. The Judicial Commission statistics relied upon by the applicant were of limited assistance because they disclosed nothing about the comparative circumstances of the offenders involved. Taking all relevant matters into account, including the applicant's criminal history, drug addiction, and personal background, the Court found no basis to interfere.
Hulme J added three observations of note. First, the revocation of the applicant's existing parole meant that the practical effect of the minimum term imposed was an increase of only 15 days beyond what the Parole Board had already directed. Second, his Honour expressed the view that previous sentencing courts had given insufficient weight to the principles of community protection and retribution. Third, his Honour warned that unless the applicant addressed his drug addiction and offending, he faced the prospect of a sentence of preventative detention under the Habitual Criminals Act of between five and fourteen years.
Orders Made
- The application for leave to appeal was refused.
Key Takeaways
- The Court of Criminal Appeal confirmed that the parity principle, as established in Regina v Lowe, does not compel a reduction of a sentence simply because a co-offender received a lesser one. The appellate court retains a discretion and will consider whether the co-offender's sentence was itself inadequate.
- A sentencing judge is not bound to follow the sentence imposed on a principal offender when sentencing an accessory, particularly where the earlier sentence appears manifestly inadequate.
- Loose language in sentencing remarks will not constitute a ground of appeal if the formal sentence and the statutory framework applied clearly reflect the correct charge.
- Judicial Commission statistics carry limited weight in a manifest excess argument where they provide no information about the circumstances of the cases from which the statistics are drawn.
- In dismissing the application, Hulme J observed that a pattern of lenient sentences in a repeat offender's history may, if continued, ultimately expose that offender to the more severe regime of preventative detention under the habitual criminals legislation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 94 (stealing from a person; maximum 14 years for principal offender)
- Crimes Act 1900 (NSW), s 350 (accessory after the fact; maximum five years)
- Habitual Criminals Act (NSW) (preventative detention provisions; five to fourteen years)
Cases:
- Regina v Lowe (1984) 154 CLR 606 (High Court; leading authority on the parity principle)
- Regina v Steele (unreported, NSW Court of Criminal Appeal, 17 April 1997)
- Regina v Reardon (1996) 89 A Crim R 180
- Regina v Veen (High Court; sentencing principles including community protection and retribution)