Citation: [1999] NSWCCA 248
Court: New South Wales Court of Criminal Appeal
Date: 9 August 1999
Judge(s): Mason P, Abadee J, Simpson J
Background
The applicant, a young woman convicted by jury of manslaughter, sought leave to appeal against the severity of her sentence. She had been found guilty of criminal negligence in failing to protect her six-month-old son, whose death was accelerated as a result. Wood CJ at CL (the trial judge at the sentencing level) imposed a sentence of six and a half years' penal servitude, comprising a minimum term of three and a half years and an additional term of three years.
The child's father, the co-accused, was dealt with separately. After the joint trial was severed, he pleaded guilty to manslaughter on the basis of criminal negligence in failing to protect the child's wellbeing. He was later sentenced by a different judge to five years and eight months' penal servitude, with an effective minimum term of three years once prior custody was taken into account.
The applicant argued that this disparity between the two sentences was unjust. No challenge was made to any error of fact or law in the original sentencing remarks.
Legal Issues
- Whether the sentence imposed on the applicant was rendered unjust by the parity principle when compared with the lesser sentence subsequently imposed on the co-accused.
- Whether the sentencing judge for the co-accused erred in finding a state of "equipoise" (that is, being unable to distinguish the relative culpability of the two offenders), and whether any such error undermined the applicant's sentence.
Decision
Abadee J, with whom Mason P and Simpson J agreed, examined the factual basis on which each offender was sentenced. The original sentencing judge had no evidence from the co-accused, and accordingly could not determine who had inflicted the fatal injuries. He proceeded on the basis of the applicant's own negligence in failing to respond to signs of serious risk to the child. The subsequent sentencing judge had the benefit of the co-accused's own account, which was not available at the earlier proceedings.
Abadee J found no error in the later judge's conclusion of equipoise regarding the relative culpability of the two offenders. Even accepting, for argument's sake, that such an error existed, his Honour concluded it did not demonstrate that the parity principle had been infringed. The decision to intervene on parity grounds is a substantially discretionary one, and the court was not persuaded that an objective bystander familiar with all the circumstances would regard the applicant's sentence as unjust.
Mason P added a significant observation. Had the trial judge accepted expert evidence that the applicant suffered from a serious dependent personality disorder, that finding would have raised a genuine question about parity. However, Wood CJ at CL declined to accept that diagnosis, while acknowledging that the circumstances did mitigate the applicant's objective criminality to a degree. The applicant did not challenge this aspect of the sentencing judgment, and Mason P regarded it as a material factor bearing on the parity question.
The court was unanimous that no basis for interference had been established, and leave to appeal was refused.
Orders Made
- Leave to appeal against sentence refused.
Key Takeaways
- The Court of Criminal Appeal confirmed that the decision to intervene on parity grounds is substantially discretionary, applying the test from Lowe v The Queen (1984) 154 CLR 606: whether an objective bystander familiar with the circumstances would regard the outcome as unjust.
- Different sentencing outcomes for co-offenders do not automatically engage the parity principle where each sentencing judge was working from different evidence and different factual foundations.
- Rejected psychiatric evidence can still bear on a parity argument: Mason P noted that, had the dependent personality disorder diagnosis been accepted, it would have raised a serious parity question, making the unchallenged rejection of that evidence pivotal.
- A failure to challenge a specific finding in the original sentencing remarks can significantly limit the grounds available on a sentence appeal, particularly where that finding is material to a parity argument.
- In dismissing the application, the court underscored the heavy parental responsibility to protect a defenceless child, and treated the applicant's prioritising of her own interests over the child's safety as a significant aggravating factor in the objective criminality.
Legislation and Cases Referenced
Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1996-97) 189 CLR 295