New South Wales Court of Criminal Appeal CITATION : Regina v Stuart [2001] NSWCCA 145 revised - 1/05/2001 FILE NUMBER(S) : CCA 60004/00 HEARING DATE(S) : 4/4/01 JUDGMENT DATE : 4 April 2001 PARTIES : Regina v Paul John Stuart JUDGMENT OF : O'Keefe J at 1;15; Smart AJ at 14 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0279 LOWER COURT JUDICIAL Job DCJ OFFICER : COUNSEL : Ms P Hock - Crown Applicant in person SOLICITORS : S E O'Connor - Crown Applicant in person CATCHWORDS : Robbery in company and inflicting bodily harm - Appeal against sentence - Parity of sentences - Principle may be inappropriate where subjective factors differ - Effect of subjective factors - Relative degrees of culpability CASES CITED: Regina v AB (2000 NSWCCA 467) DECISION : Leave to appeal refused. IN THE COURT OF CRIMINAL APPEAL No: 60004/00 O'KEEFE J SMART AJ Wednesday 4 April 2001 REGINA v PAUL JOHN STUART JUDGMENT 1 O'KEEFE J: This is an application for leave to appeal against a minimum sentence of three and a half years with an additional term of two and a half years that was imposed in the District Court on 15 December 1999 in respect of a charge of robbery in company and inflicting grievous bodily harm at the time of such robbery. The charge carried a maximum penalty of twenty five years. 2 The applicant seeks leave to appeal on the ground that he received the same sentence as a co-accused who had carried a weapon and had been violent to the victim, whereas he claimed to have played only a minor role, namely as the driver of the getaway vehicle. 3 The charge against the applicant arose out of the planning and execution of the robbery of the manager of a Chinese restaurant at Wyoming near Gosford on 20 May 1999. At the time of the commission of the robbery the victim was assaulted and his right cheek was fractured when he was struck with the butt of a shot gun that was used for the purposes of the robbery. During the course of the robbery the shotgun was discharged, but that appears to have been accidental and a consequence of the applicant's father, who was the ringleader of the group, stumbling. 4 The applicant bases his application on the fact that although his role in the commission of the offence was less than that of his father, his father received a sentence from Judge Bellear which was one year less than the sentence which had been imposed upon the applicant by Judge Job. This, he argued, was contrary to the principle of parity which should be applied in cases in which sentences are imposed on the participants of a particular crime. Applying such a principle, his argument ran, he should have received a sentence which was less than that imposed on his father, who was the ringleader and organiser of the crime and who induced the applicant to participate in the crime. 5 If all other factors in relation to the imposition of sentences had been equal, there would be much to commend the argument advanced by the applicant. However, there were subjective features in relation to the sentence imposed on his father which were favourable to his father and did not exist in relation to the applicant. 6 In sentencing Mr Stuart senior, Judge Bellear indicated that, but for subjective factors particular to the father, he would have imposed a sentence of seven and a half years imprisonment. However, in the light of the subjective factors he discounted such sentence by one third (or two and a half years) to arrive at the final sentence of five years. 7 Two subjective factors in particular in relation to the father should be noted. First, the state of the father's health. It was not good. On the other hand, the health of the applicant does not present a problem His health is not a factor which can be called in aid to discount the sentence which might otherwise have been imposed. Second, and conformably with authority, the more important subjective factor in the father's favour is the assistance given by him to the authorities. This assistance was relied on heavily by Judge Bellear. 8 In fixing the father's sentence, Judge Bellear was aware of the sentences that had been imposed on the applicant and saw no difficulty in discounting the sentence of seven and a half years that he would otherwise have imposed on the father. 9 In Regina v AB (2000 NSWCCA 467) the difficulties experienced in prison for informers were dealt with in some detail. They are real and create a situation which makes a given sentence much heavier in fact than the same sentence imposed on a person who is not an informer. 10 Having regard to the subjective factors in relation to the applicant's father, I do not think that the principle of parity can properly be called in aid to attack the sentence imposed on the applicant. 11 The crime for which the applicant is sentenced was serious. It was premeditated, carefully planned, involved violence and the carrying of a firearm. It called for quick exit from the scene of the crime. That was the role of the applicant. Whilst the role was not as major as that of his father, the sentence imposed on him, when regard is had to the fact that it was not discounted in any way, reflected his role and the fact that the proceeds of a crime were shared equally amongst the participants. 12 In my opinion no error is disclosed as a result of the comparison between the sentence imposed on the applicant and that imposed on his father when regard is had to the subjective factors that were present in his father's case. 13 I would propose that leave to appeal should be refused. 14 SMART AJ: I agree. 15 O'KEEFE J: The order of the Court is leave to appeal is refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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