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Court of Criminal Appeal 11 October 2002

Regina v RMK [2002] NSWCCA 414 revised - 18

[2002] NSWCCA 414

Assault & violenceTheft & property
APPEAL AGAINST SENTENCE SAME SENTENCE PASSED UPON CO OFFENDER SENTENCE REDUCED.

Citation: Regina v RMK [2002] NSWCCA 414
Court: NSW Court of Criminal Appeal
Date: 11 October 2002
Judge(s): Sperling J, Buddin J

Background

The applicant, a 15-year-old Sudanese refugee, was sentenced in the District Court for robbery whilst armed with an offensive weapon, with a further offence of robbery in company taken into account. The offences arose from a late-night confrontation in a Burwood park, during which the applicant and a co-offender approached and robbed a young couple at knifepoint. The applicant separated the female victim from the group, while his co-offender produced a knife, threatened and cut the male victim, and demanded money.

The District Court sentenced the applicant to four years' imprisonment with an 18-month non-parole period, to be served in a Juvenile Detention Centre. Critically, his co-offender received the identical sentence despite playing a more serious role in the offending.

The applicant sought leave to appeal on the ground that the identical sentence gave rise to an unjust disparity, given the meaningful differences between his circumstances and those of his co-offender.

  • Whether the imposition of the same sentence on the applicant and his co-offender was unjust, given differences in their respective conduct, culpability, and subjective circumstances
  • Whether the sentencing judge adequately accounted for the applicant's favourable subjective features, including his youth, refugee background, early plea, lack of prior convictions, and rehabilitative progress
  • Whether "special circumstances" warranting a longer parole period than the statutory default were established

Decision

The Court of Criminal Appeal accepted the applicant's submission that identical sentencing of the two co-offenders was unwarranted. Buddin J identified four material distinctions favouring the applicant: the co-offender had an additional offence of malicious wounding to be taken into account; the co-offender played the more dominant and violent role, including inflicting physical injuries with a knife; the co-offender was a year older; and reports on the co-offender's custodial behaviour were considerably less favourable, noting a pattern of violence and intimidation.

The Court applied the principle from Lowe v The Queen (1984) 154 CLR 606 that imposing comparable sentences on co-offenders whose conduct and antecedents warrant different outcomes is unjust. On that basis, the Court found that a different and lesser sentence was warranted in law for the applicant.

The Court also found special circumstances existed, by reason of the applicant's youth, his first period of custody, and his strong rehabilitative prospects. The sentence was accordingly restructured to allow a longer parole supervision period relative to the head sentence.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court set aside
  • Applicant sentenced to 3 years' imprisonment commencing 19 July 2001, expiring 18 July 2004, with a non-parole period of 15 months commencing 19 July 2001 and expiring 18 October 2002, at which time the applicant would be released on parole
  • Sentence to be served in a Juvenile Detention Centre

Key Takeaways

  • Imposing identical sentences on co-offenders whose relative culpability, criminal history, and rehabilitative prospects differ materially constitutes an unjust disparity, as confirmed by the Court of Criminal Appeal applying Lowe v The Queen
  • Where a co-offender has additional offences taken into account, played a more violent role, and has a worse custodial record, those factors must be reflected in a sentencing differential
  • A finding of "special circumstances" was available on the basis of the offender's youth, the fact that this was his first custodial sentence, and demonstrated prospects for rehabilitation, justifying a non-parole period shorter in proportion to the head sentence than the statutory default
  • The Court reduced the total sentence from four years to three years and the non-parole period from 18 months to 15 months, with the balance of the sentence to be served on parole
  • Favourable subjective features for young offenders, including refugee background, early plea, absence of prior convictions, and positive progress in custody, carry significant weight in the sentencing exercise

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Lowe v The Queen (1984) 154 CLR 606
- R v Bavadra (2000) 115 A Crim R 152
- R v GDP (1991) 53 A Crim R 112
- R v Morgan (1993) 70 A Crim R 368
- R v Tran [1999] NSWCCA 325
- R v TVC [2002] NSWCCA 325