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Court of Criminal Appeal 12 February 2010

Nathan McIVOR v R

[2010] NSWCCA 7

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE MULTIPLE ARMED ROBBERIES WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Nathan McIvor v R [2010] NSWCCA 7
Court: New South Wales Court of Criminal Appeal
Date: 12 February 2010
Judge(s): Tobias JA, Hidden J, Howie J

Background

The appellant was convicted by a jury of three robbery offences committed over a two-week period in July and August 2006. Each offence involved the appellant and a co-offender entering liquor stores armed with knives. Two of the offences resulted in successful robberies; the third was an unsuccessful attempt.

The appellant had a significant prior record, including prior convictions for armed robbery, and was on parole for armed robbery at the time of these offences. In the District Court, Judge Nield sentenced him to a total of 15 years imprisonment with a non-parole period of 9 years and 6 months.

On appeal, the appellant challenged the sentences on three grounds: that the sentencing exercise produced an unjust disparity with a co-offender's sentence, that the sentencing judge had failed to properly apply the totality principle, and that the overall sentences were manifestly excessive.

  • Whether the applicant had a legitimate sense of grievance arising from disparity with the sentence imposed on his co-offender, Barry Cavanagh
  • Whether the sentencing judge properly applied the totality principle when structuring the cumulative sentences
  • Whether the overall sentence of 15 years with a 9 year 6 month non-parole period was manifestly excessive

Decision

Howie J (with Tobias JA and Hidden J agreeing) addressed the manifest excess ground first, noting that if the overall sentence was excessive, the Court would in any event need to reconsider totality and parity when resentencing. The Court found no patent error in the sentencing approach itself, and accepted that each individual sentence of 7 years was appropriate given the seriousness of the offences, the aggravating factors, and the limited mitigation available.

The Court's concern centred on the overall structure of the sentence rather than any individual term. Howie J concluded that the overall non-parole period should represent three-quarters of the total custodial time, including the 12-month parole breach period. This produced a revised overall sentence of 10 years with an overall non-parole period of 7 years and 3 months, with the earliest parole eligibility date of 13 November 2014, compared with 13 February 2017 under the original sentences.

On the parity ground, Howie J rejected the argument that the applicant had a legitimate sense of grievance by comparing his sentence to that of Cavanagh. Cavanagh had been sentenced for a greater number of offences, and the difference between the sentences reflected that distinction. The Court held that where each sentence falls within the available range and any difference results from the proper exercise of discretion, there is no parity issue for the Court to address. The Cavanagh comparison was nonetheless considered relevant as confirmation that the overall sentence was excessive.

Tobias JA added a brief observation that the present case involved only two armed robberies and one assault with intent to rob, and that this relatively modest number of offences further supported the conclusion that the overall sentence was excessive. Hidden J agreed with the result but declined to express any view on the broader remarks made by Howie J about the adequacy of sentencing ranges for multiple armed robberies.

Orders Made

  • Leave to appeal granted; appeal allowed in part
  • Sentence for count 1 confirmed
  • Sentence for count 2 (7 years, with a non-parole period of 4 years 6 months and a balance of 2 years 6 months) confirmed but commencing 14 August 2009, with the non-parole period to expire on 13 February 2014
  • Sentence for count 3 quashed; in lieu, a sentence of 7 years imposed commencing 14 August 2010, comprising a non-parole period of 4 years 3 months expiring 13 November 2014 and a balance of term of 2 years 9 months from 14 November 2014

Key Takeaways

  • Where individual sentences each fall within the available range, the totality principle may nonetheless require adjustment to the overall structure to prevent the aggregate sentence from becoming excessive.
  • A parity argument based on comparison with a co-offender requires more than a showing that the co-offender received a lesser overall sentence; the comparison must reveal a disparity that produces a justifiable sense of grievance, and differences attributable to differing criminal conduct do not establish such a grievance.
  • The Court of Criminal Appeal confirmed that a co-offender's sentence, even where it does not itself give rise to a parity ground, may still be relevant as confirmatory evidence that an overall sentence is excessive.
  • Howie J expressed the view that the non-parole period across accumulated sentences should generally represent three-quarters of the total custodial term, with special circumstances grounded in the fact of accumulation.
  • Tobias JA noted that the number of offences involved in a multiple-offending case is a relevant consideration in assessing whether an overall sentence is excessive, distinguishing cases involving a large number of offences from those involving only a few.

Legislation and Cases Referenced

Cases:
- Cavanagh v R [2009] NSWCCA 174
- TS v R [2007] NSWCCA 194
- Qing An [2007] NSWCCA 53
- R v Antecki [2001] NSWCCA 312

Legislation: The maximum penalty for each of the three offences was 20 years imprisonment. No specific legislative provisions were identified in the text of the judgment.