Wood v R

Case [2022] NSWCCA 84 20 April 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wood v R [2022] NSWCCA 84
Hearing dates: 11 April 2022
Date of orders: 20 April 2022
Decision date: 20 April 2022
Before: Macfarlan JA at [1]
Adamson J at [2]
Dhanji J at [3]
Decision:
(1)   Leave to appeal granted.
(2)   Appeal allowed.
(3)   Quash the sentence imposed on Brendan Gilbert Wood in the District Court by her Honour Judge Harris.
(4)   In lieu thereof, impose a sentence of imprisonment of 3 years and 6 months commencing 22 April 2020 and expiring on 21 October 2023, with a non-parole period of 2 years expiring on 21 April 2022.
(5)   Specify that the earliest date the applicant will be eligible to be released on parole is 21 April 2022.

Catchwords:
CRIME – appeals – appeal against sentence – s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) – parity principle – totality principle – applicant sentenced to 4 years imprisonment with non-parole period of 2 years, 6 months for single armed robbery offence – co-offender sentenced to aggregate sentence of 5 years, 3 months with a non-parole period of 3 years, 2 months for three offences – co-offender’s indicative sentence for shared armed robbery offence only 3 months more than applicant’s sentence – co-offender’s non-parole period extended by 12 months and total sentence extended by 13 months – whether applicant has a justifiable sense of grievance arising from disparity between his sentence and sentence imposed upon co-offender – both offenders had strong subjective cases – difference in sentence for the shared armed robbery offence sufficient to reflect differences in subjective case – Court must consider all the components of the sentence for all the offences that each offender is serving – total effect of the sentences on each offender not reflective of their respective criminality – justifiable sense of grievance arises – resentenced

Legislation Cited:
Crimes Act 1900 (NSW), ss 51B(1), 97(1), 154F, 527C(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Road Transport Act 2013 (NSW), s 54(4)(a)

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Bahcekapili v R [2020] NSWCCA 296
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kelly v R [2017] NSWCCA 256
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
Usher v R [2016] NSWCCA 276

Texts Cited:
D A Thomas, Principles of Sentencing, (2nd ed, 1979, Heinemann)
The Bugmy…

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.

Continue reading Wood v R

Details

AGLC: Wood v R [2022] NSWCCA 84
Case: [2022] NSWCCA 84
Decision Date: 20 April 2022

CaseChat Overview and Summary

Wood appealed against his sentence for a single armed robbery offence, arguing that it was manifestly inadequate compared to the sentence imposed on his co-offender. The applicant was sentenced to four years imprisonment with a non-parole period of two years and six months. His co-offender, who was convicted of three offences, received a sentence of five years and three months with a non-parole period of three years and two months. The disparity in their sentences led to Wood contending that he had a justifiable sense of grievance. The appeal was heard in the New South Wales Court of Criminal Appeal.

The central legal issue before the court was whether the disparity in sentences between Wood and his co-offender was so significant as to warrant a finding of a justifiable sense of grievance, warranting a reduction in Wood's sentence. The court had to consider the principles of parity and totality in assessing the proportionality of the sentences. It needed to determine if the difference in sentences for the shared armed robbery offence was sufficient to justify the overall disparity, or if the additional offences committed by the co-offender warranted a longer sentence.

The Court of Criminal Appeal found that the disparity in sentences did indeed give rise to a justifiable sense of grievance on Wood's part. The court held that the difference in the sentences for the shared armed robbery offence was not enough to justify the overall disparity. The co-offender's sentence was extended significantly by the additional offences, leading to a total sentence that did not reflect the relative criminality of the two offenders. The totality principle required the court to consider the cumulative effect of the sentences, which in this case did not align with the respective levels of culpability. Consequently, the appeal was allowed, and Wood was resentenced.

The final orders of the court included the quashing of the original sentence and the imposition of a new sentence on Wood. The specifics of the new sentence were not detailed in the provided text, but it was noted that the resentencing aimed to address the disparity identified by the court.

Orders