Citation: Regina v Dukino, Regina v Moshref [2003] NSWSC 1188
Court: Court of Criminal Appeal, New South Wales
Date: 12 December 2003
Judge(s): Barr J; Newman AJ
Background
Two co-accused, referred to here as the first and second applicants, pleaded guilty in the District Court to offences arising from two separate robberies at Guildford Railway Station in February 2002. Both robberies were committed with at least two others, including a third co-offender who was sentenced on the same day.
The first applicant faced three counts of robbery in company on his indictment. The second applicant faced only one count on the indictment, with the remaining offences dealt with on a Form 1 document (a mechanism that allows a court to take additional offences into account during sentencing without recording separate convictions). Despite the structural differences in their respective indictments, both applicants, along with the third co-offender, received identical sentences of five years imprisonment with a non-parole period of two years and nine months.
Both applicants sought leave to appeal to the Court of Criminal Appeal, arguing the sentences were excessive. The offending involved violence against members of the public and a railway station employee, with victims suffering physical injuries and loss of property.
Legal Issues
- Whether the sentencing judge erred in applying the parity principle, given that the second applicant initially pleaded not guilty before later changing his plea, whereas the first applicant pleaded guilty at an earlier opportunity
- Whether the sentencing judge's reliance on the second applicant's criminal record was erroneous, in circumstances where that record arose from a different jurisdiction
- Whether the principle of totality was correctly applied when structuring the sentences across multiple counts
- Whether, even if errors were established, the sentences were nonetheless "warranted in law" under section 5(1) of the Criminal Appeal Act 1912
Decision
The Court of Criminal Appeal granted leave to appeal in both matters, given the importance of the issues to the applicants, but dismissed both appeals.
On the question of parity, the court examined whether it was appropriate to sentence the two applicants identically when the second applicant had initially entered a not-guilty plea. The sentencing judge had found that the second applicant did not plead guilty at the first available opportunity, a factor that influenced credit for the plea. The court was satisfied that the sentencing judge's approach was not in error, having regard to the circumstances in which the later plea was entered.
On the use of criminal record, the court addressed the argument that the sentencing judge had wrongly relied on a prior record obtained in another jurisdiction. The court found no appealable error in how the record was used. It also considered the totality argument and found no misapplication of principle in the structuring of the sentence across the different counts.
Importantly, the court emphasised that for robbery in company, where participants jointly embark on a criminal enterprise, it is generally inappropriate to attempt precise differentiation of individual roles. The court cited authority for the proposition that all participants in a joint criminal enterprise should bear equal responsibility, and confirmed that the identical sentences imposed on the applicants and the third co-offender were appropriate. Even where a sentencing judge might have erred in some respect, the court noted that it may still uphold a sentence if it is satisfied the outcome was "warranted in law" within the meaning of section 5(1) of the Criminal Appeal Act 1912.
Orders Made
- Leave granted to appeal in both matters
- Both appeals dismissed
Key Takeaways
- In dismissing both appeals, the Court of Criminal Appeal confirmed that identical sentences for co-offenders engaged in a joint criminal enterprise of robbery in company will generally satisfy the parity principle, even where the indictments are structured differently.
- Where participants in a joint criminal enterprise agree to commit robbery together, courts will ordinarily treat them as bearing equal objective responsibility, making precise role differentiation inappropriate.
- A delayed guilty plea, including one entered after an initial not-guilty plea, may legitimately affect the degree of sentencing discount available to an applicant, and a sentencing judge may reasonably decline to extend full credit in such circumstances.
- Under section 5(1) of the Criminal Appeal Act 1912, an appeal court may uphold a sentence as "warranted in law" even where the sentencing judge is found to have made an error, provided the overall outcome is not excessive.
- No error was established in the sentencing judge's reliance on a criminal record from another jurisdiction in determining the appropriate penalty.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company, maximum 20 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)
Cases
- R v Thompson and Houlton (2000) 49 NSWLR 383
- Lowe v The Queen (1984) 154 CLR 606
- The Queen v Henry (1999) 46 NSWLR 346
- R v Hoschke [2001] NSWCCA 317
- R v Astill (No 2) (1992) 64 A Crim R 289
- Oastler (unreported, Court of Criminal Appeal, NSW, 7 October 1992)