R v Mony
[2003] NSWCCA 245
•1 September 2003
CITATION: R v MONY [2003] NSWCCA 245 HEARING DATE(S): 01/09/2003 JUDGMENT DATE:
1 September 2003JUDGMENT OF: Dunford J at 1; Greg James J at 12 DECISION: Appeal dismissed. CATCHWORDS: Criminal Law - sentencing - co-offenders - parity - applicant 3 months younger than co-offender and with 3 less matters on Form 1 - identical sentences - no disparity. LEGISLATION CITED: Childrens (Criminal Proceedings) Act 1987 s 19 CASES CITED: Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295PARTIES :
Regina (Respondent)
Roth Mony (Appellant)FILE NUMBER(S): CCA 60178/03 COUNSEL: P Miller - Respondent
J Stratton - AppellantSOLICITORS: SE O'Connor - Respondent
D J Humphreys - Appellant
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/21/3310 LOWER COURT
JUDICIAL OFFICER :Goldring DCJ
060178/03
MONDAY 1 SEPTEMBER 2003DUNFORD J
GREG JAMES J
1 DUNFORD J: On 9 October 2002 the applicant and his co-offender Thy Theth each pleaded guilty to 10 counts of robbery whilst armed on indictment before his Honour Judge Goldring in the District Court. Each offender asked the Judge to take into account a number of matters on a Form 1. The applicant asked the sentencing Judge to take into account 6 matters in that manner and the co-offender asked the sentencing Judge to take into account 9 matters in that matter. Each of the matters taken into account on the Form 1 was a count of robbery whilst armed.
2 On 21 October 2002 his Honour sentenced the applicant as follows: in relation to the counts where no matters were taken into account on the Form 1, that is all counts except count 9, his Honour imposed a sentence of imprisonment for 6 years from 26 November 2001 until 25 November 2007, with a non-parole period of 3 years from 26 November 2001 until 25 November 2004. In relation to count 9, his Honour imposed a partially concurrent head sentence of 7 ½ years from 26 November 2003 until 25 May 2011, with a non-parole period of 3 years 9 months from 26 November 2003 until 25 August 2004.
3 On the same day his Honour sentenced the co-offender as follows: in relation to the counts where no matters were taken into account on the Form 1, his Honour imposed a sentence of imprisonment for 6 years from 26 November 2001 until 25 November 2007 with a non-parole period of 3 years from 26 November 2001 until 25 November 2004 and in relation to the counts where there were matters to be taken into account on the Form 1, a partially concurrent sentence of 7 ½ years from 26 November 2003 until 25 May 2011 with a non-parole period of 3 years and 9 months from 26 November 2003 until 25 August 2007. The result was that the overall sentences imposed on each offender were the same, namely a head sentence of 9 years 6 months with a non-parole period of 5 years 6 months.
4 The only ground of appeal relied on is that in imposing identical sentences upon the applicant and the co-offender, Theth, when Theth was older and had 3 more matters being taken into account on a Form 1, his Honour erred, and that such error gives rise to a justifiable sense of grievance on the part of the applicant. It was not submitted, nor could it be, that the sentences were otherwise excessive or that any other error was shown.
5 The applicant, as I have said, was being sentenced for 10 matters on an indictment and 6 matters on a Form 1. The co-offender, Theth, was being sentenced to 10 matters on an indictment and 9 matters on the Form 1. To put it another way, the total number of matters before the Court in relation to the applicant was 16, whereas for the co-offender, Theth, the total number was 19. It was not submitted to the learned sentencing Judge, nor to us, that either offender was less culpable than the other and his Honour agreed with this assessment. His Honour also found that each offender pleaded guilty at the earliest opportunity.
6 The applicant was born on 25 February 1984 and so was seventeen during the relatively short period during which the robberies were committed, that is between 11 and 25 November 2001. The co-offender, Thef, was born on 17 November 1983 and so was eighteen years old when most of the offences were committed. There was in fact a difference of approximately three months in their respective ages and the co-offender’s eighteenth birthday was on the same day on which the first offence in his indictment was committed.
7 It was submitted that given that the offender had 3 fewer armed robbery matters being taken into account than his co-offender, and given that the applicant was a “child” at the time of the offences, the applicant should have received a shorter sentence than the co-offender, and that the failure to impose a shorter sentence gives rise to a “justifiable sense of grievance”, and Lowe v The Queen (1984) 154 CLR 606 at 610 and Postiglione v The Queen (1997) 189 CLR 295 were referred to.
8 The applicant had four matters on his criminal record, all of which were Children’s Court matters. On 14 December 2000 he had been given a 5 months Control Order for 2 counts of possess prohibited drug, one count of supply prohibited drug and one count of being carried in a stolen vehicle. There were no prior matters of this kind. Theth had only one conviction, and that was for driving whilst suspended.
9 In a careful Judgment, his Honour, took into account all relevant factors. The difference in the number of offences on the Forms 1 was of minimal significance, particularly when one considers that they were both engaged in a course of conduct in committing this series of armed robberies over a short period. Most of the offences were committed together. Moreover the differences in their ages was minimal and although of minimal significance the applicant had the worse record. For these reasons I am satisfied that there was no error in his Honour fixing the same sentences for each accused.
10 It is however erroneous to say, as suggested in the submissions, that no distinction was drawn between the 2 offenders. His Honour, recognising the applicant’s youth, directed, pursuant to the Childrens (Criminal Proceedings) Act 1987 s 19, that the term of imprisonment imposed on the applicant be served in a juvenile detention centre until he reaches the age of 21 years. This was of significant benefit to the applicant compared with his co-offender, who must serve the whole of his sentence in an adult institution. I do not doubt that if he had the power, his Honour would have made a similar order in respect to the co-accused, but he was not able to do so and did not do so.
11 As I say, I see no error in identical sentences being imposed on each of the offenders. I would therefore grant leave to appeal but dismiss the appeal.
12 GREG JAMES J: I agree. In the careful Judgment to which the presiding Judge has referred, delivered by the trial Judge, the trial Judge had regard to the principles of parity between the accused and such submissions as had been put before him at the sentencing hearing concerning how each of the offenders should be treated. In his remarks, he refers to the principle in Postiglione (1996) 189 CLR 295 and the submission as to the distinction between each of the offenders that the present applicant was a young person and considers the prior criminal record of each of the two offenders. In considering the roles of each, his Honour said, “There is no question that each is equally culpable of their participation in the joint criminal enterprise and the charges against each are roughly equal in weight and number.”
13 It is apparent that the matter went forward before his Honour on the basis that they would be treated alike except when it came to consideration of that additional three months of age which disqualified the co-offender from the prospect of such an order as the applicant obtained, enabling him to serve a substantial portion of the custodial portion of his sentence in a juvenile institution. Those matters persuade me that when the matter was dealt with before the trial Judge, all matters to which his attention was directed were taken into account and further it appears to me, that had there been put to him some submission such as is put to us, that there should have been a variation in treatment for the different number of offences taken into account, his Honour would have ruled against that upon the perfectly sensible ground that each of the two were engaged in commission of the joint criminal enterprise involving as it did numerous armed robbery offences. The detail of which was, as between the two, inconsequential to the total penalty to be imposed upon each of them.
14 I add these remarks to what have been put by the presiding Judge, lest it be thought that his Honour in anyway fell into error or failed to have regard to all relevant matters. I agree that the application should be granted and the appeal dismissed.
15 DUNFORD J: The order will be as I have indicated.
Last Modified: 09/10/2003
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