Regina v Swan [2000] NSWCCA 114

Regina v Swan [2000] NSWCCA 114

Because the sentencing judge did not resolve who struck the victim and the objective circumstances and subjective features of the applicant and his co-accused were not sufficiently distinguishable, the 25 per cent difference between the applicant's four-year sentence and the co-accused's three-year sentence gave rise to a justifiable sense of grievance under parity principles. The sentence should be quashed and the applicant resentenced to the same total sentence as the co-accused. A three-year sentence was not manifestly excessive having regard to the robbery in company, the actual violence, the young victim, and the frightening circumstances of the offence.

Jurisdiction
Australia
Judgment Date
22 March 2000
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal allowed; sentence quashed; applicant resentenced to three years' penal servitude with a minimum term of eighteen months and an additional term of eighteen months; parole release date fixed as 12 July 2000.
Legal Topics
['robbery in Company' 'parity in Sentencing' 'manifest Excess' 'special Circumstances' 'parole']
['criminal Law' 'sentencing'] ['robbery in Company' 'parity in Sentencing' 'manifest Excess' 'special Circumstances' 'parole']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentence imposed on the applicant gave rise to a justifiable sense of grievance when compared with the sentence imposed on the co-accused.' "Whether a sentence of three years' penal servitude would still be manifestly excessive." 'Whether special circumstances justified changing the statutory proportions between the minimum and additional terms.']

Ratio Decidendi

Because the sentencing judge did not resolve who struck the victim and the objective circumstances and subjective features of the applicant and his co-accused were not sufficiently distinguishable, the 25 per cent difference between the applicant's four-year sentence and the co-accused's three-year sentence gave rise to a justifiable sense of grievance under parity principles. The sentence should be quashed and the applicant resentenced to the same total sentence as the co-accused. A three-year sentence was not manifestly excessive having regard to the robbery in company, the actual violence, the young victim, and the frightening circumstances of the offence.

Court Disposition

Leave to appeal granted; appeal allowed; sentence quashed; applicant resentenced to three years' penal servitude with a minimum term of eighteen months and an additional term of eighteen months; parole release date fixed as 12 July 2000.

Orders

  • ['The applicant should be granted leave to appeal.' 'The appeal should be allowed.' "The sentence should be quashed and, in lieu thereof, the applicant should be sentenced to three years' penal servitude consisting of a minimum term of eighteen months to commence on 13 January 1999 and expire on 12 July 2000...