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Court of Criminal Appeal 21 March 2003

Regina v Paul LANG [2003] NSWCCA 68 revised - 4

[2003] NSWCCA 68

Theft & property
CRIMINAL LAW SENTENCE APPEAL PARITY OFFENDERS SENTENCED IN CHILDREN'S COURT APPEAL DISMISSED

Citation: Regina v Paul LANG [2003] NSWCCA 68
Court: NSW Court of Criminal Appeal
Date: 21 March 2003
Judge(s): Shaw J; Studdert J

Background

The applicant was sentenced in the District Court to an overall effective sentence of four years and six months, with a non-parole period of two years and three months. The sentence covered one offence of robbery and four offences of robbery in company. The trial judge, Nield DCJ, found the applicant to have been equally criminally responsible with his co-offenders for the offences committed together.

The applicant's two co-offenders were younger (aged 15 and 16 at the time of the offences, compared to the applicant's 18 years) and were dealt with in the Children's Court. They each received control orders of 15 months with non-parole periods of nine months, significantly lighter than the sentence imposed on the applicant.

The applicant sought leave to appeal on the basis that this disparity gave rise to a justifiable sense of grievance. The Crown resisted the appeal, pointing to several material differences between the applicant and his co-offenders.

  • Whether the disparity between the applicant's sentence and those imposed on his co-offenders in the Children's Court gave rise to a justifiable sense of grievance warranting appellate intervention.
  • Whether sentences imposed in the Children's Court are a legitimate point of comparison for parity purposes when an adult co-offender is sentenced in a higher court.
  • Whether the differences in the personal circumstances and offending histories of the applicant and his co-offenders justified the sentencing disparity.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Shaw J (with whom Studdert J agreed) accepted that sentences imposed in the Children's Court are not irrelevant to a parity analysis, following R v Colgan and R v Boney. The court acknowledged that an adult offender may, in some circumstances, hold a justifiable sense of grievance when compared with a co-offender dealt with in the Children's Court.

However, the Court identified several distinguishing factors that set the applicant apart from his co-offenders. First, the applicant faced an additional offence of robbery committed the week before the joint offences, for which his co-offenders were not charged. Second, the applicant had a prior conviction (for resisting police), while the co-offenders had none. Third, the applicant was meaningfully older than both co-offenders.

The Court also emphasised the structural difference between the two sentencing regimes. In the Children's Court, the maximum available sentence was two years. In the higher courts, the maximum was 14 years for robbery under s 94 of the Crimes Act 1900 and 20 years for robbery in company under s 97(1). This qualitative difference in the courts' sentencing powers was a weighty consideration.

Drawing on R v Boney and R v Steel, the Court confirmed that even where some disparity exists, appellate intervention is not required if reducing the sentence would produce a result disproportionate to the objective and subjective criminality involved. The Court found no reason to disturb the trial judge's sentencing discretion.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Sentences imposed in the Children's Court are not automatically excluded from a parity analysis when an adult co-offender challenges their sentence in a higher court.
  • A justifiable sense of grievance does not arise simply because a co-offender received a lighter sentence in the Children's Court; the structural differences between the two sentencing regimes, including the maximum penalties available in each, are material to the comparison.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that appellate intervention is not warranted where reducing an adult offender's sentence to match a Children's Court outcome would produce a result disproportionate to the criminality involved.
  • Differences in age, criminal history, and the range of charges faced by co-offenders are relevant factors that can legitimately justify sentencing disparity, even where the trial judge found the offenders equally criminally responsible for the joint offending.
  • No error was established in the trial judge's exercise of sentencing discretion where the sentence was characterised by the Crown as unremarkable and not excessive in its own right.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94, 97(1)

Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 198 CLR 295
- R v AO [2003] NSWCCA 43
- R v Boney [2001] NSWCCA 432
- R v Colgan [1999] NSWCCA 292
- R v Rushby [1999] NSWCCA 104
- R v Steel (Unreported, NSWCCA, 17 April 1997)
- R v Tran [1999] NSWCCA 109