Crystal Lee ENGLAND v R, Sackda PHANITH v R [2009] NSWCCA 274

Crystal Lee ENGLAND v R, Sackda PHANITH v R [2009] NSWCCA 274

Phanith's extension of time was granted, but his appeal failed because the challenged findings were open, violence by co-offenders was properly considered in assessing objective seriousness, the sentence was lenient in light of the offence and Form 1 matters, and no warrant for intervention arose from parity. England's appeal also failed because her offending was well above mid range, her personal circumstances carried reduced mitigating weight given prior opportunities and offending while on conditional liberty, the effective non-parole period was very lenient, and any disparity with Phanith was not gross, marked, glaring or manifest so as to create a justifiable sense of grievance.

Jurisdiction
Australia
Judgment Date
11 November 2009
Procedural Posture
Criminal Appeal Against Sentence / Applications for Leave to Appeal; Phanith Also Sought an Extension of Time to Apply for Leave
Outcome
Applicant England: leave to appeal granted but appeal dismissed. Applicant Phanith: extension of time to apply for leave to appeal granted, leave to appeal granted, but appeal dismissed.
Legal Topics
['robbery in Company' 'parity Principle' 'manifest Excess' 'joint Criminal Enterprise' 'form 1 Matters' 'objective Seriousness' 'fact Finding on Sentence']
['criminal Law' 'sentencing' 'criminal Appeals'] ['robbery in Company' 'parity Principle' 'manifest Excess' 'joint Criminal Enterprise' 'form 1 Matters' 'objective Seriousness' 'fact Finding on Sentence']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Applications for Leave to Appeal; Phanith Also Sought an Extension of Time to Apply for Leave

Legal Issues

  1. 1 ['Whether Phanith should be granted an extension of time to apply for leave to appeal.' "Whether Phanith's sentencing judge made findings of fact that were not open on the evidence." "Whether Phanith's sentencing judge erred by treating corporal violence by a co-offender as increasing objective seriousness." 'Whether the sentences imposed on Phanith and England created a justifiable sense of grievance under the parity principle.' "Whether England's individual sentences and effective sentence were manifestly excessive having regard to her role, remorse, subjective case and prospects of rehabilitation."]

Ratio Decidendi

Phanith's extension of time was granted, but his appeal failed because the challenged findings were open, violence by co-offenders was properly considered in assessing objective seriousness, the sentence was lenient in light of the offence and Form 1 matters, and no warrant for intervention arose from parity. England's appeal also failed because her offending was well above mid range, her personal circumstances carried reduced mitigating weight given prior opportunities and offending while on conditional liberty, the effective non-parole period was very lenient, and any disparity with Phanith was not gross, marked, glaring or manifest so as to create a justifiable sense of grievance.

Court Disposition

Applicant England: leave to appeal granted but appeal dismissed. Applicant Phanith: extension of time to apply for leave to appeal granted, leave to appeal granted, but appeal dismissed.

Orders

  • ['Applicant England: Leave to appeal is granted but the appeal is dismissed.' 'Applicant Phanith: Extension of time to apply for leave to appeal is granted.' 'Applicant Phanith: Leave to appeal is granted but the appeal is dismissed.']