Citation: McKenna v Regina [2007] NSWCCA 113
Court: New South Wales Court of Criminal Appeal
Date: 18 May 2007
Judge(s): McClellan CJ at CL, Hidden J, Rothman J
Background
The applicant was convicted by jury of maliciously inflicting grievous bodily harm in company and assault occasioning actual bodily harm in company, arising from a violent group attack on an adult victim and his five-week-old infant in Maroubra on 14 August 2003. The attack followed the applicant's mistaken belief that the victim had robbed his girlfriend. While the applicant's direct role in inflicting injury was described as modest, the court found he was a principal instigator of the pursuit.
The applicant was sentenced in the District Court by Walmsley DCJ to a total effective sentence comprising a 20-month non-parole period with a 16-month remainder. Of the four co-offenders, only the applicant and one other (Betts) received full-time custodial sentences. The remaining co-offenders, Penrice and Benischke, were sentenced to periodic detention.
The applicant's sole remaining ground of appeal was that his sentence was disproportionate to those of his co-offenders, particularly Benischke, such that he had a justifiable sense of grievance warranting intervention by the Court of Criminal Appeal.
Legal Issues
- Whether the disparity between the applicant's sentence and the sentences imposed on co-offenders, particularly Benischke, gave rise to a justifiable sense of grievance under the parity principle in sentencing.
- Whether the differing circumstances between co-offenders, particularly the distinction between providing assistance to authorities and voluntary disclosure of guilt, could rationally explain the sentencing disparity.
- Whether this Court should intervene to re-sentence the applicant and, if so, to what extent.
Decision
Rothman J, with whom McClellan CJ at CL and Hidden J agreed, concluded that the disparity between the sentences imposed on the applicant and on Benischke was irrational. Benischke received a total sentence of 15 months non-parole and 15 months remainder, served by way of periodic detention. The applicant, serving full-time custody, received 20 months non-parole and 16 months remainder. No discernible distinction in the subjective circumstances of the two offenders justified this gap.
The sentencing court had apparently treated Benischke's voluntary disclosure of guilt as equivalent in weight to the kind of assistance to authorities that can attract a more substantial sentencing discount (sometimes called a "rolling" or informer discount). Rothman J drew a distinction between these two categories: voluntary disclosure of guilt, while a relevant consideration, does not ordinarily carry the same weight as active cooperation with law enforcement. On this analysis, there was no rational basis for the significantly lighter sentence given to Benischke compared to the applicant.
The Court also noted that any re-sentencing on parity grounds needed to account for the applicant having given evidence in proceedings against Benischke, a form of assistance to authorities. The Court determined that a sentence below Benischke's would be inappropriate in light of this assistance, and instead proposed aligning the applicant's sentence with Benischke's.
McClellan CJ at CL acknowledged that the original sentences were already at the lower end of the appropriate range and expressed some hesitation about intervening. Ultimately, however, his Honour concluded that the proposed reduction would not take the applicant's sentence outside the permissible range, and that the grievance, while modest, justified the Court's intervention.
Orders Made
- Leave to appeal granted.
- Appeal allowed; original sentences quashed.
- For Count 3 (assault occasioning actual bodily harm in company): non-parole period of 12 months commencing 13 April 2006 and expiring 12 April 2007, with a remainder of 12 months expiring 12 April 2008.
- For Count 1 (maliciously inflict grievous bodily harm in company): non-parole period of 12 months commencing 13 July 2006 and expiring 12 July 2007, with a remainder of 15 months expiring 12 October 2008.
- Total effective sentence: 15 months non-parole period plus 15 months remainder, totalling 30 months.
- The applicant to be first eligible for parole on 12 July 2007, with the remainder of the non-parole period to be served as part of a continuing full-time custodial sentence.
Key Takeaways
- A justifiable sense of grievance, sufficient to enliven appellate intervention on parity grounds, can arise even where the applicant's own sentence falls within the permissible range, provided the disparity with a co-offender is irrational and unexplained.
- Where co-offenders share no discernible distinction in subjective circumstances, the equal justice principle requires sentences to reflect that equivalence; absent a rational explanation for disparity, appellate intervention is warranted.
- The Court of Criminal Appeal drew a clear distinction between voluntary disclosure of guilt and active assistance to law enforcement authorities: these are not equivalent mitigating factors, and treating them as such may produce an error in the parity analysis.
- In re-sentencing for parity, the court must account for all relevant factors affecting the applicant, including any assistance given to authorities; here, the applicant's evidence against Benischke meant a sentence below Benischke's would have been inappropriate.
- McClellan CJ at CL confirmed that appellate intervention can be justified even where the resulting reduction is modest, provided the disparity is real and the adjusted sentence remains within the appropriate range.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 35(1)(b), 35(2), 59(1), 59(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
- Crimes Legislation Amendment (Periodic and Home Detention) Act 2002 (NSW)
Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- R v Ellis (1986) 6 NSWLR 603
- R v Kai Kong Li [2005] NSWCCA 154
- R v Tiddy [1969] SASR 575
- York v The Queen (2005) 79 ALJR 1919