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Court of Criminal Appeal 2 March 2010

Kelso v R

[2010] NSWCCA 34

Assault & violenceTheft & property
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE GROUNDS FOR INTERFERENCE JUDGE ACT ON WRONG PRINCIPLE CRIMINAL LAW

Citation: Kelso v R [2010] NSWCCA 34
Court: NSW Court of Criminal Appeal
Date: 2 March 2010
Judge(s): McClellan CJ at CL; Howie J; Harrison J

Background

The applicant pleaded guilty to one count of robbery in company under s 97(1) of the Crimes Act 1900, which carries a maximum penalty of 20 years' imprisonment. The offence occurred on a train late at night in April 2008, when the applicant and his co-offender confronted a lone commuter, assaulted him, and stole his bicycle and mobile phone.

The applicant was sentenced in the District Court to a non-parole period of 2 years with a total term of 4 years. His co-offender, Bancroft, received the same sentence for the robbery in company, but also received a separate, partly accumulated sentence for an unrelated armed robbery to which the applicant was not a party.

The applicant sought leave to appeal, arguing the sentence was either manifestly excessive or that the sentencing judge had acted on a wrong principle, particularly by failing to give him a lesser sentence than his more culpable co-offender.

  • Whether the sentencing judge erred by treating the applicant's culpability as equivalent to Bancroft's, in circumstances where age and criminal history were conflated with culpability for the offence itself.
  • Whether the applicant was entitled to a lesser sentence than his co-offender having regard to the parity principle (the principle that co-offenders should not receive sentences so different that a justified sense of grievance arises).
  • Whether the sentence was manifestly excessive when assessed against the guideline in R v Henry.

Decision

The Court found that the sentencing judge made an error in her reasoning. Her Honour stated that the applicant's culpability was "on a par" with Bancroft's despite their disparity in age and criminal history. McClellan CJ at CL held this was wrong in principle: age and prior criminal record are relevant to subjective considerations but are not measures of culpability for the offence itself.

On the question of manifest excess, the Court concluded the original 4-year sentence was not erroneous on that basis alone. Considered against the Henry guideline (which contemplated a range of 4 to 5 years for armed robbery with specified features), the sentence was within a range open to the sentencing judge, even accounting for the fact that no weapon was used.

The appeal nonetheless succeeded on parity grounds. The applicant was younger, had a substantially cleaner criminal record, and was not affected by drugs or alcohol at the time of the offence. Bancroft had significant criminal antecedents and had committed a separate, more serious armed robbery. Given those differences, the applicant was entitled to expect a lesser sentence than Bancroft. The Court found that entitlement was not honoured, and that intervention was warranted.

The Court resentenced the applicant to a total term of 3 years with a non-parole period of 18 months, maintaining the sentencing judge's finding of special circumstances (which is the term used for a finding that justifies a longer-than-standard parole period).

Orders Made

  • Leave to appeal granted and the sentence imposed in the District Court quashed.
  • The applicant sentenced to 3 years' imprisonment with a non-parole period of 18 months, commencing 16 December 2008 and expiring 15 June 2010, with the balance of term expiring 15 December 2011.
  • The applicant eligible for release to parole on 15 June 2010.

Key Takeaways

  • The Court of Criminal Appeal confirmed that age and criminal history bear on subjective sentencing considerations, but they are not components of culpability for the offence itself. Treating them as relevant to culpability constitutes an error of principle.
  • The parity principle operates as a stand-alone ground of appellate intervention even where a sentence is not independently manifestly excessive. Where a co-offender's greater criminality is clear, an identical sentence may give rise to a justified sense of grievance warranting resentencing.
  • A plea of guilty attracting a 25% discount can exceed the 10% discount contemplated in the Henry guideline without that difference being sufficient on its own to render a sentence within the Henry range erroneous.
  • In resentencing, the Court of Criminal Appeal maintained the finding of special circumstances from the original sentence, reducing both the non-parole period and the total head sentence proportionally.
  • Where co-offenders face sentencing for different combinations of offences, courts must take care to identify the true basis of comparison before treating sentences as equivalent.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)

Cases
- R v Henry (1999) 106 A Crim R 149; (1999) 46 NSWLR 346 (guideline judgment on robbery sentencing)
- Lowe v R (1984) 154 CLR 606 (parity principle)
- Postiglione v R (1996-1997) 189 CLR 295 (parity principle)
- England & Phanith v R [2009] NSWCCA 274
- R v Murchie (1999) 108 A Crim R 482