Regina v Paul Lang

[2003] NSWCCA 68

CITATION:	Regina v Paul LANG [2003] NSWCCA 68 revised - 4/04/2003
HEARING DATE(S):	21/03/03
JUDGMENT DATE:	21 March 2003
JUDGMENT OF:	Studdert J at 16; Shaw J at 1
DECISION:	Leave to appeal granted; appeal dismissed.
CATCHWORDS:	Criminal law - sentence - appeal - parity - co-offenders sentenced in Children's Court - appeal dismissed
LEGISLATION CITED:	Crimes Act 1900 (NSW)
CASES CITED:	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
PARTIES :	REGINA v PAUL LANG
FILE NUMBER(S):	CCA No 60170 of 2002
COUNSEL:	Crown: R. Hulme, SC App: Ms A. Francis
SOLICITORS:	Crown: S.E. O'Connor App: D.J. Humpreys

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/0279; 01/21/0314
LOWER COURT JUDICIAL OFFICER :	Nield DCJ

60170 of 2002

Studdert J
Shaw J

21 March 2003

Regina v Paul LANG

Judgment

1 Shaw J: In this case, his Honour Judge Nield sentenced the applicant to a an overall effective sentence of four years and six months with a non parole period of two years and three months for an offence of robbery and four other offences of robbery in company. For the first offence the applicant was sentenced to a fixed term of one year, one month and two weeks commencing on 30 January 2002 and expiring on 14 March 2003. For each of the robbery in company charges the applicant received a head sentence of three years and nine months with a non parole period of eighteen months partly accumulated upon the first sentence. The first date the applicant is currently eligible for release on parole is 29 April 2004.

2 As the Crown submissions point out this sentence is ‘unremarkable’ and could not be seen as excessive.

3 However, the applicant submits that there is a disparity in the sentences imposed upon him in relation to more lenient sentences imposed upon his co-offenders in the Children’s Court. Those co-offenders were sentenced to control orders of 15 months with non parole periods of nine months.

4 The short question for this Court is whether the applicant could be said to suffer a justifiable sense of grievance at this disparity: Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 198 CLR 295.

5 However, the Crown points to a number of salient distinguishing features between the present applicant and the co-offenders that indicate that the offenders were not in the same position. In particular:

(a) the co-offenders were not charged with or sentenced for the robbery offence committed the week before the robbery in company offences;

(b) the applicant had a prior conviction, albeit for what was a minor offence (resist police), whereas the co-offenders had no previous convictions; and

(c) the applicant was older than the co-offenders.

6 The applicant was 18 years old at the time of the commission of the offences whereas the co-offenders were 16 years and 15 years respectively. As to the significance of age in the sentencing process see my judgment in R v AO [2003] NSWCCA 43; see also R v Rushby [1999] NSWCCA 104; R v Tran [1999] NSWCCA 109. However, the trial judge did note when sentencing the offender:

Having regard to what happened during the robberies and to what I have said about the offenders, I am unable to conclude that the offender was not the prime mover, or that he was a follower of one or other or both of his co-offenders. Frankly, I think that it is obvious that each of them is equally criminally responsible with the others for what they did.

7 The Crown points out that the appellant was on bail for the robbery offence when he committed the robbery in company offences. However, one of the co-offenders was also on bail at the time of the commission of the offences for charges of assault, custody of an offensive instrument and being armed with intent to commit an indictable offence.

8 I acknowledge the cogency of the expressions in Colgan [1999] NSWCCA 292 where the Chief Justice of this Court held that a sentence imposed in the Children’s Court is not irrelevant in the context of discussions about parity and that, his Honour said:

This is so for the reason that an individual sentenced as an adult may very well have a justifiable sense of grievance with respect to that very difference [in] the regimes…

9 I also acknowledge that as Wood CJ at CL said in R v Boney [2001] NSWCCA 432 at [14]:

There is no longer an inflexible rule that there is no utility in comparing sentences upon co-offenders who are separately dealt with: one in the Children’s Court and the other as an adult.

10 These are important points to be considered, but it seems to me that given the objective criminality involved in the offences in this case it would be wrong, in the exercise of the Court’s discretion, to intervene in this particular case so as to vary the sentence.

11 In my view there is a qualitative difference between a proceeding in the Children’s Court where the maximum penalty that may be imposed is two years and sentencing in the ordinary courts where the maximum penalty for these offences was fourteen years for the offence under s 94 of the Crimes Act 1900 (NSW) and 20 years for the offences under s 97(1) of the same Act.

12 In R v Boney [2001] NSWCCA 432 Wood CJ at CL said at [15]:

…where there is a degree of disparity as to invite a reduction in the sentence imposed, it is not necessary for this Court to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved.

13 His Honour quoted Simpson J in R v Steel (Unreported, NSWCCA, 17 April 1997) where her Honour held that the High Court authority of Lowe v The Queen (1984) 154 CLR 606 does not constitute an authority for the proposition that in any case where a disparity is shown an appellate court must reduce a co-offender’s sentence to one which is inadequate.

14 I am unable, for myself, to see any reason for overturning the sentencing discretion of the trial judge in this case.

15 In deference to the able argument of Ms Francis, counsel for the applicant, I would be prepared to grant leave but would propose that the appeal should be refused and, accordingly, the proceedings be dismissed.

16 STUDDERT J: Yes, I agree with the orders proposed for the reasons expressed by Shaw J.

17 Accordingly, the orders of the Court are: that leave to appeal be granted and the appeal is dismissed.

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Last Modified: 04/07/2003