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Court of Criminal Appeal 28 July 2011

Lee v Regina

[2011] NSWCCA 169

Homicide
CRIMINAL LAW APPEAL SENTENCE FOR MURDER PARITY BETWEEN CO OFFENDERS

Citation: Lee v Regina [2011] NSWCCA 169
Court: NSW Court of Criminal Appeal
Date: 28 July 2011
Judges: Basten JA; RS Hulme J; Hidden J

Background

The applicant pleaded guilty to murder arising from a street confrontation in Sydney's CBD in March 2008. He had attended the scene after being telephoned by his co-offender, brought a hammer to the location, and pursued the deceased after the co-offender made an initial knife attack. The applicant caught the deceased after he slipped, grappled with him, and was holding him when the co-offender arrived and stabbed him four times, with one wound proving fatal.

The applicant was sentenced to 19 years and 3 months imprisonment, with a non-parole period of 13 years and 3 months. His co-offender, who had wielded the knife and was the principal aggressor, received a non-parole period of 14 years for the murder, plus a separate sentence for wounding another person during the same incident. Crucially, the two men were sentenced by different Supreme Court judges within three months of each other.

The applicant sought leave to appeal, arguing his sentence was manifestly excessive and failed to reflect that his culpability was significantly lower than that of the co-offender.

  • Whether the sentencing judge erred in finding the applicant's culpability was "not significantly less" than that of the co-offender who physically inflicted the fatal wounds
  • Whether the difference between the two sentences adequately reflected the different roles and circumstances of each offender (the parity principle)
  • Whether specific findings, including that the applicant "facilitated" the murder, were properly made on the evidence
  • Whether the sentencing judge erred in applying aggravating circumstances (use of a weapon, offending in company) and in the assessment of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

The Court of Criminal Appeal granted leave and allowed the appeal, finding the sentence did not adequately distinguish the applicant's criminality from that of his co-offender.

On the factual findings, the Court upheld the primary finding that the applicant had "facilitated" the murder. The evidence supported the conclusion that the applicant had deliberately prevented the deceased from escaping, and the Court rejected the submission that his role was minor. His conduct in restraining the deceased immediately before the stabbing was found to be a substantial contribution to the killing.

The parity issue, however, was more telling. The Court identified that the co-offender was the principal aggressor, had used a weapon far more likely to cause death, was offending while on conditional liberty under three separate bonds, and had a prior criminal record and drug abuse history. These were serious aggravating factors affecting the co-offender that did not apply to the applicant. When the respective sentences were compared on a notional pre-discount basis (accounting for their different guilty plea discounts of 20% and 12% respectively), the gap between starting points was less than 2 years, which the Court ultimately found was insufficient to reflect these material differences in culpability and circumstances.

The Court set an appropriate starting point of 20 years for the applicant's sentence, applied a 12% guilty plea discount to arrive at 17 years, and reduced the non-parole period to reflect both parity and proportionality with the co-offender's sentence, finding that this justified a departure below the standard proportion under s 44 of the Sentencing Procedure Act.

Orders Made

• Appeal allowed
• Sentence reduced to 17 years with a non-parole period below the proportion specified in s 44 of the Crimes (Sentencing Procedure) Act

Key Takeaways

  • The Court of Criminal Appeal confirmed that the parity principle requires a "marked" difference in sentences before a successful appeal can be mounted on that basis, but found that even a difference of less than 2 years in notional starting points can meet that threshold when the circumstances of co-offenders differ significantly.
  • Where co-offenders are sentenced by different judges, the appellate court must undertake a careful comparison of both sentencing judgments, accepting the factual findings made in each as given.
  • A participant in a joint criminal enterprise who restrains the victim immediately before a co-offender delivers fatal blows can be found to have "facilitated" the murder, even where that participant did not themselves inflict the lethal injury.
  • Offending while on conditional liberty is a seriously aggravating circumstance, and its presence in one co-offender's case but not another's is a material factor in assessing whether sentences are appropriately differentiated.
  • Parity analysis must account for the different guilty plea discounts applied to co-offenders by working back to notional starting points, so that comparisons are made on a consistent basis.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44, 54A

Cases:
- Arafan v The Queen [2010] VSCA 356
- Dwayhi v R; Bechara v R [2011] NSWCCA 67
- Hearne (2001) 124 A Crim R 451
- Likiardopolous v The Queen [2010] VSCA 344
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- McAuliffe v The Queen [1995] HCA 37; 183 CLR 108
- OM v R [2009] NSWCCA 267
- R v AJP [2004] NSWCCA 434; 150 A Crim R 575
- R v Thomson [2000] NSWCCA 309; 49 NSWLR 383
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v Wong [2010] NSWSC 171
- Regina v AEM (Snr) [2002] NSWCCA 58