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Court of Criminal Appeal 1 May 2002

R v Michael

[2002] NSWCCA 154

Homicide
APPEAL AGAINST SEVERITY OF SENTENCE APPEAL ALLOWED.

Citation: R v Michael [2002] NSWCCA 154
Court: New South Wales Court of Criminal Appeal
Date: 1 May 2002
Judge(s): Meagher JA, Bell J, McClellan J

Background

The appellant, Mr Michael, was convicted of murder in July 1990 and initially sentenced to penal servitude for life. He subsequently applied for a redetermination of his sentence under the Sentencing Act 1989, a statutory process that allowed prisoners serving life sentences to have their sentences reconsidered and set at a fixed term.

At the redetermination hearing in November 1999, Sully J heard both Mr Michael's application and that of his co-offender, Mr Slater, together. Sully J imposed 21 years on Mr Michael and 24 years on Mr Slater, expressly finding that Mr Michael deserved a distinctly lighter sentence. This difference reflected Mr Michael's lesser degree of involvement and the fact that he had given evidence against Mr Slater.

Mr Slater subsequently appealed his redetermined sentence to the Court of Criminal Appeal, and that appeal was allowed. His sentence was reduced to 21 years with a non-parole period of 16 years, which coincidentally matched Mr Michael's sentence exactly. Mr Michael then appealed his own sentence on the sole ground that this parity was unjust.

  • Whether the reduction of a co-offender's sentence on appeal, for reasons unrelated to the appellant's own circumstances, can give rise to a justifiable sense of grievance warranting a reduction in the appellant's sentence.
  • Whether the principle of parity in sentencing required the court to restore the disparity that Sully J had deliberately built into the two sentences.

Decision

The Court of Criminal Appeal accepted Mr Michael's argument entirely. The court observed that Sully J had expressly found Mr Michael was entitled to a distinctly lower sentence than Mr Slater, and that this finding was correct on the facts. Those facts had not changed.

Mr Slater's sentence had been reduced for reasons entirely disconnected from Mr Michael's case. Part of the reduction reflected a factual error about the length of time Mr Slater had spent serving his sentence on protection (meaning held separately from the general prison population for safety reasons), and part arose from the resentencing process itself. Neither reason had any bearing on Mr Michael's position.

The court reasoned that once Mr Slater's sentence came down to match Mr Michael's, the two were being treated identically despite Sully J's clear finding that they should not be. Mr Michael therefore had a justifiable sense of grievance, the standard test for a parity-based appeal. The court allowed the appeal and reduced Mr Michael's sentence to restore the intended disparity.

Orders Made

  • Appeal allowed.
  • Sentence reduced to a period of 18 and a half years from 12 September 1989, with the total sentence to expire on 11 March 2008 and the non-parole period to expire on 11 September 2003.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a co-offender's successful sentence appeal can generate a valid parity ground for a separate appellant, even where the reduction was achieved for reasons entirely unrelated to that appellant's case.
  • A justifiable sense of grievance arises where an original, deliberate disparity between co-offenders is inadvertently erased by a subsequent appellate decision, leaving them serving identical terms despite different levels of culpability.
  • Under the parity principle, the relevant question is whether the sentencing comparison produces a result that is objectively unjust, not whether any error was made in the appellant's own sentencing proceedings.
  • Sully J's express finding that Mr Michael deserved a distinctly lighter sentence remained unchallenged and formed the foundation for the appeal's success.
  • In allowing the appeal, the Court of Criminal Appeal did not find that the original redetermined sentence was outside the acceptable range; the reduction was warranted solely to restore the relative position between the two co-offenders.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW), s 13A (application for redetermination of life sentence)

Cases:
- R v Slater (the unreported Court of Criminal Appeal decision reducing Mr Slater's sentence, referenced in the judgment)
- The earlier redetermination judgment of Sully J: (1999) NSWSC 1144