Citation: Regina v English [2000] NSWCCA 245
Court: NSW Court of Criminal Appeal
Date: 16 June 2000
Judge(s): Giles JA; Adams AJA
Background
The applicant pleaded guilty to robbery in company under s 97 of the Crimes Act 1900 (NSW), arising from an armed robbery at a Tamworth florist and gift shop on 9 January 1999. He committed the offence alongside a co-offender and a third participant who acted as a lookout. The robbery involved one of the two principal offenders producing a knife and threatening the victim.
A central factual dispute at sentencing concerned which of the two principal offenders had wielded the knife. The applicant's sentencing proceeded first, on the basis that he had merely been present and lending support, with no prior knowledge of the knife. The sentencing judge accepted this account and imposed a minimum term of 18 months penal servitude with an additional term of six months.
When the co-offender was later sentenced, he gave evidence claiming it was the applicant who had produced and used the knife. The sentencing judge found he could not be satisfied beyond reasonable doubt that the co-offender had wielded the knife and, applying the benefit of the doubt, sentenced the co-offender on the basis that he too had merely stood by. The applicant then sought leave to appeal, contending that this outcome was unjust.
Legal Issues
- Whether the applicant had a justifiable sense of grievance about parity of sentence, given that the co-offender was later sentenced on the same "passive presence" basis despite his own earlier claim that the applicant had used the knife
- Whether the sentencing judge erred by failing to backdate the sentence to account for pre-sentence custody, and by omitting to state reasons for not doing so
- Whether these matters, individually or together, warranted interference with the sentence
Decision
Parity ground: The Court of Criminal Appeal rejected the parity complaint. Although both offenders were ultimately sentenced on the basis that each had merely been present, this outcome arose from the co-offender's own evidence at his later sentencing creating reasonable doubt about who held the knife. Each offender received the benefit of the doubt on the same factual question. The Court held there was no justifiable sense of grievance within the principle in Postiglione v The Queen (1997) 189 CLR 295, because the applicant had himself been sentenced on the more favourable basis and the co-offender received no better outcome.
Adams AJA added that the guilty plea admitted all necessary foundational facts, including intent, and that the applicant's physical presence alone, as a large and imposing person, would have been frightening for the victim. The sentence was well within the available range regardless of the knife question.
Pre-sentence custody ground: The sentencing judge took 155 days of pre-sentence custody into account but did not backdate the sentence to reflect that period, and gave no reasons for departing from the usual practice. The Court confirmed the established practice, drawn from R v McHugh (1985) 1 NSWLR 588 and R v Deeble (unreported, 19 September 1991), that courts should either backdate a sentence to the commencement of pre-sentence custody or expressly state why they have not done so. While the failure to follow this practice was a departure from what was desirable, the Court found the sentence remained within the appropriate range and declined to interfere on that basis alone.
Minor adjustment: The Crown identified that the sentencing judge had calculated pre-sentence custody only to 19 July 1999, omitting a further seven days that elapsed before the actual sentencing date of 26 July 1999. The Court made a minor adjustment to the sentence to correct this arithmetic error.
Orders Made
- The original sentence was quashed
- The applicant was re-sentenced to imprisonment of two years less seven days, commencing 26 July 1999 and expiring 18 July 2000
- A non-parole period of 18 months less seven days was set, with the earliest parole eligibility date of 18 January 2001
- The applicant was to be released on parole at the end of the non-parole period
Key Takeaways
- A justifiable sense of grievance for sentencing parity purposes does not arise merely because two co-offenders receive the same effective characterisation of their role; where each receives the benefit of the doubt on an unresolved factual question, neither can claim they were treated less favourably than the other.
- The Court of Criminal Appeal confirmed the well-established practice that a sentencing court must either backdate a sentence to account for pre-sentence custody or provide express reasons for declining to do so, following R v McHugh and R v Deeble.
- Departure from the backdating practice is an error of form, but does not automatically warrant appellate intervention where the sentence remains within the appropriate range.
- Where a co-offender gives self-serving evidence at their own later sentencing that contradicts findings already made in an earlier sentencing, the earlier offender is not disadvantaged by the parity principle simply because the later offender also benefits from reasonable doubt arising from that evidence.
- Arithmetic errors in calculating pre-sentence custody periods are a correctable ground of appeal, even where the substantive sentence is otherwise upheld.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97 (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(1)
Cases
- Postiglione v The Queen (1997) 189 CLR 295
- R v McHugh (1985) 1 NSWLR 588
- R v Deeble, unreported, 19 September 1991