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26
Court of Criminal Appeal 19 November 2002

R v Kollas and Mitchell

[2002] NSWCCA 491

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW APPEALS AGAINST INADEQUACY OF SENTENCE PLEA OF GUILTY CROWN APPEAL ALLOWED (KOLLAS) APPEAL DISMISSED (MITCHELL).

Citation: R v Kollas and Mitchell [2002] NSWCCA 491
Court: NSW Court of Criminal Appeal
Date: 19 November 2002
Judges: Meagher JA, Wood CJ at CL, Greg James J

Background

Two offenders, Kollas and Mitchell, participated in a violent home invasion at a Hornsby flat in January 2001. The premises were occupied by four adults and six children, including infants. The group entered armed with steel poles and wooden bats, assaulted multiple occupants, and left with cannabis, a video recorder, and a mobile phone.

Kollas pleaded guilty in the District Court to the offence of entering a dwelling house with intent to commit a serious indictable offence (affray) in circumstances of aggravation, carrying a maximum of 14 years imprisonment. Mitchell pleaded guilty to robbery in company, which carried a maximum of 20 years. Their sentences were imposed by different District Court judges.

The Crown appealed Kollas's sentence as inadequate. Mitchell separately sought leave to appeal his own sentence as excessive, arguing primarily that it was disproportionate to the sentence Kollas received.

  • Whether the sentence imposed on Kollas by Judge Coorey was manifestly inadequate in all the circumstances, including his prior criminal history and the seriousness of the offending.
  • Whether the sentence imposed on Mitchell by Judge Hosking was manifestly excessive.
  • Whether a justifiable sense of grievance arose from the disparity between the sentences imposed on Kollas and Mitchell, sufficient to enliven the parity principle.

Decision

On the Crown appeal against Kollas's sentence, the Court found the sentence imposed was manifestly inadequate. Judge Coorey's orders had the practical effect of adding only 18 months to a pre-existing sentence and reducing the impact of that earlier sentence to the point of rendering it, in the Court's words, "derisory." The earlier sentence had itself been imposed for a savage assault. The combined effect of the orders failed to reflect the seriousness of the home invasion offending or Kollas's criminal history.

On Mitchell's appeal, the Court considered whether the disparity between the two sentences gave rise to a justifiable sense of grievance. The parity principle, which is an aspect of equal justice, requires that like be treated alike but that relevant differences between co-offenders be taken into account. The Court found that the circumstances of the two offenders were not equal. Mitchell had been on parole and subject to a bond at the time of the offending, having previously breached periodic detention orders and a recognisance, whereas Kollas had merely been on bail. Kollas also faced serving his sentence on strict protection. Once Kollas's sentence was increased on appeal, the Court found any disparity was substantially balanced out.

Applying the objective test for the parity principle, the Court held that a reasonable person would not regard Mitchell's sense of grievance as justified. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Kollas (Crown appeal): Appeal allowed. Sentence below quashed. Kollas sentenced to imprisonment for five years and six months, commencing 16 March 2002 and expiring 15 September 2007, with a non-parole period of three years and three months expiring 15 June 2005. Sentence to be served partially concurrently and partially cumulatively upon the pre-existing sentence.
  • Mitchell (appeal against severity): Leave to appeal granted. Appeal dismissed.

Key Takeaways

  • A sentencing outcome that, in practical terms, renders a pre-existing sentence for serious violence "derisory" may constitute manifest inadequacy warranting intervention by the Court of Criminal Appeal.
  • The parity principle is an aspect of equal justice: it requires like treatment of like offenders, but demands that relevant differences between co-offenders, including criminal history, bail or parole status, and role in the offending, be weighed before concluding that a disparity is unjustified.
  • The test for whether a parity argument succeeds is objective: the offender must demonstrate that a reasonable person, viewing all the circumstances, would regard the grievance as justified.
  • Where one co-offender's sentence is increased on Crown appeal, that increase is a relevant factor in assessing whether any remaining disparity with a co-offender's sentence gives rise to a justifiable grievance.
  • In dismissing Mitchell's appeal, the Court confirmed that different maximum penalties applicable to co-offenders for related offences arising from the same incident are a legitimate basis for differential sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 111
- Justices Act 1902 (NSW), s 51A

Cases:
- Dinsdale v The Queen (2000) 74 ALJR 1538
- Griffiths v The Queen (1977) 137 CLR 293
- Lowe v The Queen (1985) 154 CLR 606
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR 295
- The Queen v De Simoni (1981) 147 CLR 383
- R v Alpass (1993) 72 A Crim R 561
- R v Anderson (NSWCCA, 25 March 1993)
- R v Dodd (1991) 56 A Crim R 349
- R v Henry (1999) 46 NSWLR 346
- R v Ilbay [2000] NSWCCA 251
- R v Kollas [2002] NSWCCA 15
- Regina v Richards [1981] 2 NSWLR 464
- R v Rushby [1977] 1 NSWLR 594
- R v Sharma [2002] NSWCCA 142
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v WHS (NSWCCA, 6 April 1995)