Citation: Regina v Kerr [2003] NSWCCA 234
Court: NSW Court of Criminal Appeal
Date: 26 August 2003
Judge(s): Beazley JA, Adams J, Miles AJ
Background
The appellant was convicted after trial of robbery in circumstances of aggravation, contrary to s 95 of the Crimes Act 1900, carrying a maximum of 20 years imprisonment. The offence occurred in September 1998 at Bellingen, where the appellant, along with two younger associates, broke into a man's home, struck him repeatedly with a handgun and cricket bat, and stole $2,500. The appellant had organised the attack, disguised himself with a balaclava, and was the dominant participant.
At sentencing in August 2001, the District Court imposed a head sentence of 13 years and 6 months (effectively 14 years) with a non-parole period of 10 years and 6 months. The two co-offenders, Oliver and Tickner, had both cooperated with authorities. Oliver received 500 hours of community service on a lesser charge of robbery simpliciter (carrying a maximum of 14 years), while Tickner received an 18-month suspended sentence for concealing a serious indictable offence.
The appellant, an Aboriginal man with a significant criminal history, was unrepresented at trial and on sentence. He subsequently sought leave, out of time, to appeal on the grounds that his sentence was manifestly excessive and grossly disproportionate to those received by his co-offenders.
Legal Issues
- Whether leave to extend time to file an application for leave to appeal should be granted
- Whether the principle of parity in sentencing applied, and whether the disparity between the appellant's sentence and those of his co-offenders created a justifiable sense of grievance
- Whether the head sentence and non-parole period were manifestly excessive in all the circumstances, including the appellant's Aboriginal background and prospects for rehabilitation
Decision
The Court granted leave to extend time, accepting that the delay was adequately explained by the appellant's lack of legal representation and advice following sentence. Miles AJ (with whom Beazley JA and Adams J agreed) then turned to the substantive grounds of appeal.
On the parity question, the Court rejected the Crown's position that no parity issue arose simply because the co-offenders had been charged with different and less serious offences. The Court held that charging cooperative co-offenders with lesser offences could not, of itself, extinguish the policy behind the parity principle. The relevant question was whether, looking at the whole of the circumstances, the disparity created a justifiable sense of grievance on the part of the appellant. The Court found that Oliver's participation in the robbery, physically armed and present in the home, warranted comparison with the appellant's conduct, and that the gulf between their respective outcomes produced a justified grievance.
The Court also took into account new material not before the sentencing judge, including a psychological report from Dr Lucas addressing the appellant's background, the effects of institutionalisation, his Aboriginal identity, and emerging prospects for rehabilitation. Under the principles in R v Fernando, the Court noted the relevance of the appellant's Aboriginal background, prior deprivation, and the limited opportunities available to him in his earlier life. While the original sentence was not criticised as wrong when imposed on the information then available, the changed factual matrix regarding the appellant himself, combined with the co-offender disparity, warranted intervention.
The Court reduced the effective head sentence to 10 years with a non-parole period of 7 and a half years, emphasising that general and personal deterrence, denunciation, and community protection could still be served by a substantial sentence, but not one as long as originally imposed.
Orders Made
- Leave granted to extend time in which to apply for leave to appeal
- Leave to appeal granted and appeal allowed
- Sentence imposed by the District Court quashed
- In lieu thereof: head sentence of 9 years and 8 months, dating from 29 March 2001 and expiring 28 November 2010, with a non-parole period of 7 years and 3 months expiring 24 June 2008
Key Takeaways
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The Court of Criminal Appeal confirmed that the policy underlying the parity principle cannot be circumvented simply by charging cooperative co-offenders with lesser offences. The full circumstances of each participant's involvement must be examined to assess whether a disparity produces a justifiable sense of grievance.
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Parity in sentencing does not require a strict technical comparison of identical charges. Where a co-offender's lesser charge was attributable to cooperation rather than lesser involvement, a comparison of outcomes remains relevant.
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Under R v Fernando, an offender's Aboriginal background, history of deprivation, and institutionalisation are matters a sentencing court must consider. The Court of Criminal Appeal treated these factors, supported here by fresh psychological evidence, as relevant to the appropriate weight given to rehabilitation prospects.
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Fresh evidence going to an offender's background and prospects, not placed before the sentencing judge because the offender was unrepresented, can constitute part of a changed factual matrix justifying appellate intervention.
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A significant unexplained delay in filing an application for leave to appeal may be excused where the delay is attributable to the applicant's lack of legal representation and access to advice about sentencing outcomes affecting co-offenders.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 94 (robbery), 95 (robbery in circumstances of aggravation), 316 (concealing a serious indictable offence)
Cases
- Postiglione v The Queen (1997) 189 CLR 295 (parity principle: sense of grievance test)
- Lowe v The Queen (1984) 154 CLR 606 (parity in sentencing)
- R v Fernando (1992) 72 A Crim R 58 (sentencing principles for Aboriginal offenders)