AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
17
Court of Criminal Appeal 11 August 2005

R v Kelly

[2005] NSWCCA 280

Also reported as (2005) 155 A Crim R 499
Assault & violenceTheft & property
CRIMINAL LAW SENTENCING APPEAL PARITY ABORIGINAL DESCENT JUSTIFIABILITY OF GRIEVANCE

Citation: R v Kelly [2005] NSWCCA 280
Court: New South Wales Court of Criminal Appeal
Date: 11 August 2005
Judge(s): Simpson J, Johnson J, Rothman J (dissenting)

Background

The applicant was convicted of aggravated robbery under s 95(1) of the Crimes Act 1900 and sentenced in the District Court in December 2004. The offence occurred at Toongabbie Railway Station late on a Friday evening in May 2003, when the applicant and a co-offender attacked a woman who had just finished work and was waiting for a train. The victim was punched, kicked, pushed and bitten over approximately four minutes, and two rings were forcibly removed from her fingers. The applicant subsequently pawned one ring and sold the other.

The co-offender was sentenced separately, by a different District Court judge, in March 2005. That sentence was more lenient than the one imposed on the applicant. The applicant sought leave to appeal her sentence, arguing primarily that the disparity between her sentence and the co-offender's gave rise to a justifiable sense of grievance under the parity principle.

A secondary argument concerned whether the sentencing judge had erred in applying aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999, and whether the Fernando principles (relating to Aboriginal background and its relevance to sentencing) should have been applied to the applicant but were not.

  • Whether the applicant had a justifiable sense of grievance under the parity principle, given the lesser sentence imposed on the co-offender
  • Whether the sentencing judge erred in applying aggravating factors already inherent in the offence under s 21A of the Crimes (Sentencing Procedure) Act 1999
  • Whether the Fernando principles (concerning Aboriginal background and disadvantage) should have been applied at the applicant's sentencing, and whether their non-application constituted error
  • Whether, even if disparity existed, the Court of Criminal Appeal should exercise its discretion to intervene

Decision

The majority (Simpson and Johnson JJ) dismissed the appeal, with Rothman J dissenting. On the s 21A aggravating factors issue, the majority agreed with Rothman J that any error in this respect did not warrant intervention. The sentencing remarks gave no indication that the judge attached additional weight to those factors beyond what was already inherent in the offence, making the errors of little practical significance.

On the Fernando question, the majority noted that no submission had been made to the original sentencing judge that the Fernando principles applied to the applicant, despite a reference in the pre-sentence report to her Aboriginal background. The majority found that the failure to raise Fernando at first instance, combined with the limited material before the Court, meant this ground could not support a successful appeal.

On the parity issue, the majority accepted that the co-offender received a more lenient sentence, but concluded that the applicant's sense of grievance was not a justifiable one. Key distinctions between the two offenders included the applicant's greater role in the robbery, the fact that the co-offender derived no personal benefit from the offence, and differences in their subjective circumstances. The majority also noted that the inadequacy of the co-offender's sentence was sufficiently significant that reducing the applicant's otherwise appropriate sentence would constitute an affront to the proper administration of justice.

Rothman J dissented on the parity issue alone, finding that on a fine balance, the disparity was sufficient to warrant interference in the exercise of the Court's discretion. His Honour would have allowed the appeal and substituted a shorter sentence.

Orders Made

  • Leave to appeal granted (by majority)
  • Appeal dismissed (by majority)

Key Takeaways

  • The parity principle can be invoked by the first-sentenced offender where a co-offender is subsequently sentenced more leniently, but the test for a justifiable sense of grievance is objective, not subjective.
  • A sentencing disparity will not automatically attract appellate intervention. Where the co-offender's sentence is itself inadequate to a significant degree, reducing an otherwise appropriate sentence to match it may become an affront to the proper administration of justice.
  • The Fernando principles, which recognise the relevance of Aboriginal background and associated disadvantage in sentencing, require a proper evidentiary and submissions foundation at first instance. Where those submissions were not made to the original sentencing judge, the appellate court's ability to apply the principles on appeal is constrained.
  • Errors in applying s 21A aggravating factors under the Crimes (Sentencing Procedure) Act 1999 do not, on their own, justify appellate intervention unless they had a practical effect on the sentence imposed.
  • In dismissing the appeal, the majority reinforced that the Court of Criminal Appeal's discretion to adjust a sentence for parity is not exercised mechanically, and the overall justice of the outcome remains the central consideration.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1900 (NSW), s 95(1)

Cases
- R v Fernando (1992) 76 A Crim R 58
- Lowe v The Queen (1984) 154 CLR 606
- Jones v The Queen (1993) 67 ALJR 376
- R v Ranse (CCA, 8 August 1994, unreported)
- R v Diamond (CCA, 18 February 1993, unreported)
- R v Doggett (CCA, 24 March 1996, unreported)
- R v Boney [2001] NSWCCA 432
- R v Ilbay [2000] NSWCCA 251
- R v Atonio [2005] NSWCCA 200
- R v Johnson [2005] NSWCCA 196
- R v Ibrahami [2005] NSWCA 153