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Court of Criminal Appeal 19 March 2002

REGINA v. KENDALL

[2002] NSWCCA 79

Theft & propertyFirearms & weapons
CRIMINAL LAW APPEAL PARITY OR RELATIVITY BETWEEN CO OFFENDER OFFENDER'S APPEAL CONCEDED BASIS FOR RE

Citation: [2002] NSWCCA 79
Court: NSW Court of Criminal Appeal
Date: 19 March 2002
Judge(s): Greg James J; Buddin J

Background

The applicant pleaded guilty in the District Court to 10 counts of armed robbery on indictment, with a further 13 counts of armed robbery and three counts of attempted armed robbery taken into account on a Form 1 document. The offences were committed together with a co-offender, who had separately pleaded guilty to his own set of charges arising from the same conduct. Both offenders were sentenced by the same District Court judge, who found no real basis for distinguishing their overall criminality, though he noted some individual differences.

The sentencing judge imposed a total effective sentence of 10 years on the applicant, with a six-year non-parole period. The co-offender received an overall sentence of 11 years with a seven-year non-parole period, the one-year difference reflecting factors including the applicant's prior good character and the fact that he had not carried the knife used during the offences.

The applicant initially filed a notice of abandonment of his appeal. However, after the Court of Criminal Appeal separately allowed the co-offender's appeal and reduced his sentence on the ground of manifest excess, the applicant sought to have his abandonment set aside and his appeal reinstated on parity grounds.

  • Whether the notice of abandonment of the appeal could be set aside in light of the co-offender's successful appeal
  • Whether an extension of time and leave to appeal against sentence should be granted
  • Whether the principle of parity between co-offenders required the applicant's sentence to be reduced to preserve the relativity established at first instance

Decision

The Court accepted that the District Court judge had properly sentenced both the applicant and the co-offender on the basis of a considered relativity, taking into account their common culpability and the specific factors distinguishing them. When the Court of Criminal Appeal subsequently reduced the co-offender's sentence as manifestly excessive, that relativity was disrupted and the applicant was left with a justifiable sense of grievance.

The Crown conceded that, if the Court was minded to intervene on parity grounds, it was appropriate to permit the appeal to proceed despite the abandonment, and to grant the extension of time and leave to appeal. The Court accepted those concessions and upheld the appeal.

In restructuring the sentences, both counsel agreed on a formulation that preserved the original relativity between the two offenders. The Court reiterated the special circumstances previously identified by the sentencing judge, including the applicant's age, the fact that this was his first custodial sentence, and the cumulative nature of the sentences. The resulting total sentence of eight years and nine months, with a non-parole period of four years and nine months, was adopted by the Court.

Orders Made

  • Notice of Abandonment set aside
  • Extension of time to appeal granted
  • Leave to appeal granted
  • Appeal upheld
  • Original sentences set aside; applicant resentenced as follows:
  • Counts 1 to 9: four years imprisonment each (fixed terms), concurrent, commencing 29 October 1999, expiring 28 October 2003
  • Count 10 (with Form 1 matters taken into account): four years and nine months imprisonment, cumulative on counts 1 to 9, commencing 29 October 2003, with a non-parole period of nine months commencing 29 October 2003
  • Earliest parole eligibility: 28 July 2004

Key Takeaways

  • Where a sentencing court explicitly calibrates the sentences of two co-offenders against each other, a subsequent appellate reduction of one co-offender's sentence on grounds of manifest excess can give the other a well-founded basis for a parity appeal, even after a notice of abandonment has been filed.
  • A notice of abandonment of a criminal appeal is not necessarily a final bar to proceeding; it can be set aside where circumstances, such as a co-offender's successful appeal, justify reinstatement.
  • The Court of Criminal Appeal confirmed that the principle of parity requires not merely similar sentences but the preservation of a coherent relativity between co-offenders who were sentenced together on that basis.
  • Special circumstances identified at first instance, including a first custodial sentence, the offender's youth, and sentence accumulation, can be carried forward and affirmed on resentencing without fresh argument.
  • Crown concessions as to the proper sentencing range, where grounded in the outcome of a related co-offender appeal, will carry significant weight in shaping the orders ultimately made by the Court of Criminal Appeal.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW), ss 45, 53

Cases:
- Regina v Pearce (1998) 194 CLR 610
- Regina v Antecki (unreported, Court of Criminal Appeal, 10 August 2001) (referred to in the judgment but not formally cited)