Citation: Regina v Ronda Prestwidge [2002] NSWCCA 439 revised 26/02/2004
Court: NSW Court of Criminal Appeal
Date: 8 November 2002
Judge(s): Dunford J, Kirby J
Background
The applicant was a 32-year-old woman who pleaded guilty in the District Court to breaking, entering and stealing from a dwelling in circumstances of aggravation, namely the malicious infliction of actual bodily harm under s 112(2) of the Crimes Act 1900. She also asked the sentencing judge to take into account a larceny and four counts of attempted break and enter on a Form 1.
The offence involved a late-night home invasion of an 86-year-old man living alone. The applicant acted in company with a co-offender, Mr Carter, who wielded a screwdriver, threatened the victim, and smothered him with a pillow. The applicant did not physically assault the victim but participated in ransacking the house and stealing his property. Both offenders were arrested the following morning.
Freeman DCJ sentenced the applicant to five years and three months with a non-parole period of three and a half years. He sentenced the co-offender Carter to six years and three months with a non-parole period of four and a half years. The applicant sought leave to appeal on two grounds: that the sentencing judge gave insufficient weight to her guilty plea, and that the disparity between her sentence and Carter's was not sufficiently justified.
Legal Issues
- Whether the sentencing judge applied an adequate discount for the utilitarian value of the applicant's guilty plea.
- Whether the difference in sentence between the applicant and her co-offender Carter was sufficient, given the differences in their roles, criminal histories, and subjective circumstances, such that the applicant was left with a justifiable sense of grievance (the parity principle).
Decision
Parity: The Court accepted that the sentencing judge had properly identified the relevant differences between the two offenders. Carter was the dominant, violent participant, described as the "bully boy," while the applicant was characterised as a follower and collector of stolen goods who did not physically handle the victim. The sentencing judge also found special circumstances in the applicant's case, recognised her superior rehabilitation prospects, and accepted evidence of genuine contrition, none of which applied to Carter.
However, the Court found that the sentencing exercise for Carter had been complicated by a separate sentence he was serving for offences committed while on bail. The interaction of those sentences with his principal sentence meant the effective disparity between the two offenders was less than the raw figures suggested. On that basis, the Court was satisfied that the parity principle had been breached, giving the applicant a justifiable sense of grievance, and that re-sentencing was warranted.
Guilty plea discount: The Court found that a discount of 20 percent for the utilitarian value of the applicant's plea of guilty was appropriate. The sentencing judge had not expressly applied a discount of this magnitude, and the Court treated this as an error justifying intervention. The Court noted some tension in earlier decisions about the appropriate level of discount in such circumstances but, having already identified error on parity grounds requiring re-sentencing, declined to resolve that tension definitively.
Re-sentencing: Taking five years and three months as a starting point (reflecting parity with Carter's sentence appropriately adjusted), the Court applied the 20 percent plea discount to arrive at a head sentence of four years and two months. Special circumstances were found, warranting a non-parole period of two years and nine months.
Orders Made
- Leave to appeal granted.
- Appeal allowed.
- The sentence imposed by Freeman DCJ set aside and replaced with a sentence of 4 years and 2 months, commencing 4 March 2001 and ending 3 May 2005, with a non-parole period of 2 years and 9 months expiring 3 December 2003.
Key Takeaways
- The parity principle requires that co-offenders not be left with a justifiable sense of grievance, but courts must look beyond the bare figures to assess the true effective difference between sentences, particularly where one offender is serving additional sentences that affect parole eligibility and release dates.
- A 20 percent discount for the utilitarian value of a guilty plea was held to be appropriate on the facts of this matter, though the Court expressly declined to resolve broader doctrinal differences between earlier decisions on the correct level of discount in home invasion cases.
- Differences in role, criminal history, rehabilitation prospects, and subjective circumstances can justify meaningful sentencing disparity between co-offenders who face the same charge and both plead guilty.
- Where a sentencing judge finds special circumstances for one co-offender but not another, that difference must be factored into any parity comparison, as it affects the ratio between the head sentence and non-parole period.
- Post-sentence progress in custody, including completion of rehabilitation programmes and addressing drug dependency, is a relevant consideration when an appellate court re-sentences an offender.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 112(1), 112(2), 117
Cases:
- Postiglione v The Queen (1996-1997) 189 CLR 295
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Sharma [2002] NSWCCA 142
- R v Stabler (1984) 6 Cr App R (S) 129
- R v Costen (1989) 11 Cr App R (S) 182
- R v Kalache (2000) 111 A Crim R 152
- R v Lo [2001] NSWCCA 271
- R v Hayes [2001] NSWCCA 358
- Veen v The Queen (No 2) (1988) 164 CLR 465