1. Grant the applicant leave to appeal from the judgment on sentence of the District Court delivered on 17 November 2014.
2. Dismiss the appeal.
Catchwords:
CRIME – sentencing – parity principle – applicant’s undiscounted sentence significantly greater than co‑offender’s – whether justifiable sense of grievance – whether appropriate to compare undiscounted sentences – whether evidential differences justified disparity in initial sentences
CRIME – sentencing – application of discounts for guilty pleas under Crimes (Sentencing Procedure) Act 1999 (NSW) s 22 when imposing aggregate sentence under s 53A – whether appropriate to apply discount to aggregate sentence or putative individual sentences
Counsel: M Avenell (Applicant) E Balodis (Respondent)
Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):
2014/30181; 2014/30184
Decision under appeal
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
17 November 2014
Before:
Wells SC DCJ
File Number(s):
2014/30181; 2014/30184
Judgment
BASTEN JA: On 17 November 2014 the applicant was sentenced by Judge Wells SC in the District Court at Lismore on an indictment containing nine serious criminal charges, with a further seven offences to be taken into account with respect to count 1. The offending took place on two separate dates, namely 6 October 2013 and 16 November 2013. The applicant was sentenced to an aggregate term of 9 years imprisonment with a non-parole period of 6 years 9 months, commencing on the date of his arrest, namely 30 January 2014.
The sentencing was undertaken on the basis of pleas of guilty and a statement of agreed facts. The applicant gave…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
PG v R [2017] NSWCCA 179
Case
[2017] NSWCCA 179
Decision Date
CaseChat Overview and Summary
The case of PG v R involved the applicant, PG, appealing against the sentences imposed on him for his involvement in a crime. The applicant and his co-offender were convicted of multiple charges, including robbery and assault. The legal issues before the court included whether the disparity between the applicant's undiscounted sentence and that of his co-offender was justifiable, and whether it was appropriate to compare the undiscounted sentences. Additionally, the court had to consider whether evidential differences justified the disparity in the initial sentences imposed on the applicant and his co-offender.
The court began by examining the principle of parity in sentencing, which requires that sentences imposed on co-offenders should be comparable unless there are justifiable reasons for a disparity. The court noted that the applicant's undiscounted sentence was significantly greater than that of his co-offender. The court then considered whether it was appropriate to compare the undiscounted sentences in this context, and concluded that such a comparison was necessary to ensure parity in sentencing. The court found that the evidential differences between the applicant and his co-offender did not justify the disparity in the initial sentences. The court further examined the application of discounts for guilty pleas under the Crimes (Sentencing Procedure) Act 1999 (NSW) s 22 when imposing an aggregate sentence under s 53A. The court held that it was appropriate to apply the discount to the aggregate sentence rather than to the putative individual sentences.
The court ultimately determined that the disparity in the initial sentences was not justifiable and ordered that the applicant's sentence be reduced to align with that of his co-offender. The court further found that the discount for the guilty plea should be applied to the aggregate sentence. The final orders of the court included a reduction in the applicant's sentence and a direction that the discount for the guilty plea be applied to the aggregate sentence.