Citation: Regina v Morgan Paul Kain [2004] NSWCCA 143
Court: NSW Court of Criminal Appeal
Date: 12 May 2004
Judge(s): McColl JA, Levine J, Hidden J
Background
The applicant was convicted following two separate trials in late 2002 on four counts: two counts of stealing a motor vehicle and two counts of aggravated armed robbery while armed with a dangerous weapon. The robberies occurred at a Westpac bank in Picton and a credit union at Warrawong in December 2000. A further aggravated armed robbery at Kingscliff was taken into account on a Form 1. The applicant was on bail for other offences at the time he committed each of these offences.
The sentencing judge in the District Court imposed a total effective term of 12 years imprisonment with a non-parole period of 8 years. Sentences were backdated to the applicant's arrest date of 30 May 2001, giving him a credit of approximately nine months for custody already served.
The applicant sought leave to appeal against sentence on seven grounds, including that the overall sentence was unduly harsh, that the judge failed to give sufficient weight to his lesser objective role in the offences, and that the sentence lacked parity with those imposed on his co-offender and his brother.
Legal Issues
- Whether the total sentence was unduly harsh and excessive in all the circumstances
- Whether the sentencing judge gave insufficient weight to the applicant's comparatively lesser role in the offences (acting as a lookout or carrying a screwdriver, rather than brandishing the firearm)
- Whether the applicant's prospects of protective custody were a relevant consideration in mitigation
- Whether the weapon used (described as a handgun) was properly characterised as a dangerous weapon under Schedule 1 of the Weapons Prohibition Act 1998
- Whether the sentencing judge placed inappropriate weight on the applicant's criminal antecedents, particularly prior offences of violence
- Whether the sentence lacked parity with sentences imposed on the co-offender McKeon and the applicant's brother, Nathan Kain
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed all seven grounds. On the question of objective seriousness, the court found no error in the sentencing judge's assessment. The applicant had participated in serious commercial robberies involving disguise, stolen vehicles, and a firearm, and had committed the offences while on bail for other matters.
On the role ground, the court accepted that the applicant's role varied across the offences, but found the sentencing judge had adequately addressed this. The applicant's physical participation in jumping counters and taking cash was weighty conduct, even where his co-offender carried and displayed the handgun.
The parity argument with the co-offender McKeon was rejected on the basis that McKeon had been sentenced for a significantly greater number of armed robberies, receiving a total of 24 years imprisonment with a 15-year non-parole period. The court found it was not possible to meaningfully isolate the shared offences from the broader sentencing exercise applied to McKeon. The parity argument with the applicant's brother also failed: Nathan Kain had pleaded guilty to his offences and received significant sentencing discounts accordingly, including for cooperation with police, and the two situations were not comparable.
The court was satisfied that the sentencing judge's treatment of the applicant's antecedents was appropriate. The brevity with which the judge dealt with his prior offending, including prior violence-related matters, did not indicate any error.
Orders Made
- Leave to appeal against sentence granted
- Appeal dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that parity arguments must account for all material differences between co-offenders, including the total range of offending for which each was sentenced and any guilty plea discounts received.
- Where a co-offender received a substantially higher total sentence for a greater volume of related offences, it is not appropriate to isolate only the shared offences to argue disparity.
- A guilty plea, particularly one entered early or accompanied by cooperation with police, can properly justify a markedly different sentence outcome compared to an offender who contested charges at trial.
- Participation in a serious armed commercial robbery as a lookout or by taking cash did not, on these facts, reduce the applicant's culpability to a degree warranting a materially different sentencing outcome from the principal offender.
- Committing serious offences while on bail remained a significant aggravating factor, and a sentencing court can properly treat this as weighing against the offender in fixing the overall term.
Legislation and Cases Referenced
Legislation:
- Schedule 1, Weapons Prohibition Act 1998 (NSW)
- Section 97(2), Crimes Act 1900 (NSW) (aggravated armed robbery)
- Section 154A, Crimes Act 1900 (NSW) (stealing a motor vehicle)
Cases:
- Erceg v the District Court of New South Wales & Anor; Virgin v the District Court of New South Wales & Anor [2003] NSWCA 379
- Neal v The Queen (1982) 149 CLR 305
- Regina v Durocher-Yvon [2003] NSWCCA 299
- Regina v Hooper [2004] NSWCCA 10
- Regina v Mostyn [2004] NSWCCA 97
- Regina v Qutami (2001) 127 A Crim R 369
- Regina v Scott [2003] NSWCCA 28
- Regina v Totten [2003] NSWCCA 207
- Siganto v The Queen (1998) 194 CLR 656