Wood v R [2022] NSWCCA 84

Court of Criminal Appeal Supreme Court New South Wales 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 Bar Book Committee, Childhood Sexual Abuse, (November 2019) The Bugmy Bar Book Committee, Early Exposure to Alcohol and Other Drug Abuse, (November 2019) Category: Principal judgment Parties: Brendan Wood (Applicant) Regina (Respondent) Representation: Counsel: I Nash (Applicant) M Gleeson (Respondent)