Citation: Jason Kumar v Regina [2007] NSWCCA 352
Court: NSW Court of Criminal Appeal
Date: 18 December 2007
Judge(s): Basten JA, Hidden J, Barr J (Barr J delivered the leading judgment)
Background
The appellant pleaded guilty in the District Court to one count of stealing from the person under s 94 of the Crimes Act, which carries a maximum sentence of 14 years' imprisonment. The offence involved luring a victim into a laneway near Blacktown railway station and demanding money at close range, with a co-offender taking the victim's wallet and $50. The sentencing judge, Bennett DCJ, imposed a sentence of three years' imprisonment with a non-parole period of two years, commencing 16 April 2006.
The appellant sought leave to appeal against that sentence on two grounds. His co-offender, Michael Hanna, received an identical sentence despite having a significantly longer criminal history, prior lengthy custodial terms, and having offended while on parole rather than on bail.
Legal Issues
- Whether the appellant had a justifiable sense of grievance (a parity complaint) arising from receiving the same sentence as his co-offender, given their differing criminal histories and circumstances
- Whether the accumulation of the sentence upon existing sentences failed to give proper effect to the sentencing judge's finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act
Decision
Parity ground: The Court of Criminal Appeal found no error in the sentencing judge imposing identical sentences on both offenders. Although Hanna had a longer record, more time in custody, and offended while on parole, both men were 23, came from difficult family backgrounds, had substantial prior histories and drug problems, and were both showing genuine signs of rehabilitation at the time of sentencing. The sentencing judge was plainly impressed with both offenders' prospects and the support available to each. In those circumstances, the same sentence was not surprising and the parity ground was not made out.
Special circumstances and accumulation: The second ground concerned whether the sentencing judge had meaningfully adjusted the statutory ratio between the non-parole and parole periods to reflect the finding of special circumstances. The accumulated non-parole period amounted to 73% of the total sentence. The Court confirmed that accumulation of sentences is a well-established basis for finding special circumstances, and that a sentencing judge is not automatically required to vary the ratio simply because sentences are accumulated. In this case, the sentencing judge had expressly acknowledged the need to adjust proportions on account of accumulation, and also identified the appellant's rehabilitation prospects as a further reason for the adjustment. The Court was satisfied that the result incorporated adequate time on parole to support rehabilitation and that no error was established.
Leave to appeal was refused.
Orders Made
- Leave to appeal against sentence refused.
Key Takeaways
- A parity complaint does not succeed merely because a co-offender had a worse criminal record. Where the sentencing judge forms a favourable view of both offenders' rehabilitation prospects, imposing identical sentences can be entirely justified.
- The Court of Criminal Appeal confirmed that accumulation of sentences is a recognised basis for finding special circumstances under s 44 of the Crimes (Sentencing Procedure) Act, consistent with R v Simpson (1992) 61 A Crim R 58.
- There is no rule requiring a sentencing judge to vary the non-parole/parole ratio in the last accumulated sentence in every case: R v Cook [1999] NSWCCA 234 was affirmed on this point.
- Reliance on R v Bolamatu [2002] NSWCCA 454 was rejected; the Court noted that the remarks in that case were fact-specific and did not establish any binding principle about the minimum degree of adjustment required.
- In dismissing the appeal, the Court emphasised that both the length of the total sentence and the structure of its components were appropriate, and that the parole period afforded sufficient time for supervised rehabilitation.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 94 (stealing from the person)
- Crimes (Sentencing Procedure) Act (NSW), s 44 (special circumstances and statutory non-parole ratio)
Cases:
- R v Simpson (1992) 61 A Crim R 58
- R v Cook [1999] NSWCCA 234
- R v Bolamatu [2002] NSWCCA 454