Citation: Regina v Mackey [1999] NSWCCA 167
Court: NSW Court of Criminal Appeal
Date: 24 June 1999
Judge(s): Abadee J (Abadee J at [1]; Ireland J at [36]; Barr J at [37])
Background
The applicant pleaded guilty to three counts of manslaughter before Dunford J in the Supreme Court. The charges arose from a house fire deliberately lit in Glebe on 7 December 1995, which killed a woman and two children aged eleven and seven. Two co-offenders were sentenced on the same day: one for three counts of manslaughter (Kylie Hampton), and another for causing malicious damage by fire (Daniella Caldwell).
Dunford J found that Hampton had instigated the idea to burn the house, had actually lit the fire, and was therefore the more culpable of the two principal offenders. The applicant was found to have immediately and enthusiastically encouraged Hampton and was present aiding and abetting the offence, making him a principal in the second degree.
Taking into account pre-sentence custody served in broken periods, the applicant was ultimately sentenced to concurrent terms of a minimum six years and one month, plus an additional two years. Hampton received a minimum of eight and a half years and an additional two and a half years. The applicant sought leave to appeal his sentence.
Legal Issues
- Whether the applicant was left with a justifiable sense of grievance under the parity principle, on the basis that the difference between his sentence and Hampton's was insufficient to reflect their significantly different degrees of culpability.
- Whether the sentencing judge gave insufficient weight to the hardship of serving the sentence in protective custody, both as a standalone matter and as relevant to parity with Hampton.
- Whether the sentencing judge erred by declining to find special circumstances justifying an additional term exceeding one third of the minimum term, despite acknowledging several potentially relevant factors.
Decision
On parity: The Court affirmed the principles from Postiglione v The Queen (1997) 189 CLR 295, emphasising that the parity principle requires like to be compared with like, and that different sentences reflecting different degrees of culpability do not violate the notion of equal justice. Dunford J had carefully examined the respective roles and subjective features of each offender and had drawn a meaningful sentencing distinction. The Court found no basis for concluding the applicant was left with a justifiable sense of grievance.
On protective custody: Dunford J had expressly acknowledged that serving the sentence in protection rendered imprisonment more onerous and moderated the sentence accordingly. The Court found no error in the weight his Honour assigned to that factor and was not persuaded it warranted further reduction or a greater differential with Hampton's sentence.
On special circumstances: Dunford J had carefully considered whether special circumstances existed for each of the three co-offenders, finding them only in Caldwell's case. His Honour acknowledged that some matters before him could, in other cases, amount to special circumstances, but concluded they should not be so regarded in this instance. The Court held this was a discretionary judgment, open to the sentencing judge on the evidence, and that no error was disclosed. The mere fact that circumstances could amount to special circumstances in some cases does not mandate such a finding in every case.
The Court refused leave to appeal, with Ireland and Barr JJ agreeing with Abadee J.
Orders Made
- The application for leave to appeal the sentence is refused.
Key Takeaways
- The parity principle does not demand identical sentences for co-offenders. As confirmed by the Court of Criminal Appeal applying Postiglione v The Queen, different sentences are consistent with equal justice where they reflect genuine differences in culpability or personal circumstances.
- A finding that certain matters could constitute special circumstances in other cases does not oblige a sentencing judge to make that finding in the case at hand. The question is one of discretionary judgment, as confirmed in R v GDR (1994) 35 NSWLR 376.
- No error was established in the sentencing judge's approach to protective custody as a mitigating factor, where the judge had expressly acknowledged and moderated the sentence to account for the additional hardship of imprisonment in protection.
- In dismissing the application, the Court of Criminal Appeal underscored that an applicant bears the burden of identifying specific error in the exercise of the sentencing discretion. Broad assertions of insufficient differentiation between co-offenders will not suffice where the sentencing judge has demonstrably addressed the relevant distinctions in culpability and personal circumstances.
- Concurrent sentences for multiple manslaughter counts arising from a single incident remained subject to the same parity and special circumstances analysis as any other sentencing exercise, with no separate or modified framework applied in this case.
Legislation and Cases Referenced
Cases:
- Postiglione v The Queen (1997) 189 CLR 295
- Lowe v The Queen (1984) 154 CLR 606
- R v GDR (1994) 35 NSWLR 376
- Regina v Kylie Hampton (CCA, 25 June 1998, unreported)
Legislation: No specific legislation was identified in the provided text.