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Court of Criminal Appeal 17 December 2012

Kemp v R

[2012] NSWCCA 281

Assault & violence
CRIMINAL LAW WHETHER SENTENCE MANIFESTLY EXCESSIVE PRINCIPLES OF CONSISTENCY AND PARITY

Citation: Kemp v R [2012] NSWCCA 281
Court: NSW Court of Criminal Appeal
Date: 17 December 2012
Judges: Simpson J, Harrison J, Adamson J (Adamson J writing)

Background

The appellant was 18 years old when, in the early hours of 10 April 2011, he participated in a group attack on two men waiting for a train at Gosford Railway Station. The appellant punched one victim in the face with a closed fist, throwing him off his feet and causing him to strike the back of his head on the concrete platform. The victim suffered a fractured skull, bleeding on the brain, and permanent deafness in his right ear.

The appellant pleaded guilty to recklessly causing grievous bodily harm in company (s 35(1), Crimes Act 1900) and affray (s 93C, Crimes Act 1900). Critically, at the time of the offence he was on parole for earlier offences of assault and wounding with intent. The sentencing judge imposed a total sentence of 4 years and 6 months with a non-parole period of 2 years and 6 months for the s 35(1) offence, plus a concurrent fixed term of 12 months for affray.

The appellant sought leave to appeal against the sentence for the s 35(1) offence only. His sole ground was that the sentencing judge misapplied the parity principle, resulting in an unjustifiable disparity between his sentence and those received by his co-offenders, particularly one co-offender (La Rosa) who had punched and kicked one of the other victims.

  • Whether the sentencing judge erred in applying the parity principle when sentencing the appellant relative to his co-offenders
  • Whether the sentence of 4 years and 6 months for the s 35(1) offence was manifestly excessive given the sentences imposed on co-offenders for similar conduct
  • Whether the actual harmful consequences of an offender's act (as distinct from the act itself) are a legitimate basis for imposing a heavier sentence on one co-offender compared with another

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, upholding the sentence imposed by the sentencing judge. Adamson J, with whom Simpson and Harrison JJ agreed, found no error in the sentencing judge's application of the parity principle.

The court acknowledged an apparent similarity between the appellant's conduct and that of co-offender La Rosa, who had also punched a victim and then kicked him while he was on the ground. However, the court identified a material distinction: it was the appellant's blow that caused the grievous bodily harm to his victim. La Rosa's victim did not suffer equivalent serious injuries. While the court accepted that it may have been a matter of chance which blow had the more severe effect, it confirmed that actual consequences of an offender's actions are a legitimate and material consideration in sentencing.

The court also noted the appellant's significantly more serious subjective circumstances compared with his co-offenders. He was on parole at the time of the offence, his parole was subsequently revoked, and he had a prior history involving offences of violence. These factors, combined with the severity of the harm caused, provided ample justification for the heavier sentence.

Regarding La Rosa's sentence, Adamson J observed that the sentencing judge had himself noted it appeared lenient. The court agreed La Rosa was "fortunate" but did not find his sentence so excessively lenient as to infect the appellant's sentence. A sentencing judge's expressed concern about a co-offender's lighter sentence demonstrates engagement with the parity principle, not disregard for it.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that actual consequences of an offender's actions remain a material consideration in sentencing, even where the severity of those consequences may have been a matter of chance compared with a co-offender's similar act.
  • Applying the parity principle does not require identical sentences where co-offenders occupy materially different positions, whether due to their role in the offence, the harm caused to their respective victims, or their subjective circumstances such as being on parole at the time.
  • A sentencing judge's express acknowledgment that a co-offender's sentence appears lenient demonstrates engagement with parity principles rather than a failure to apply them.
  • Upholding the sentence here, the court reinforced that offending while on parole is a weighty aggravating factor that can legitimately differentiate an offender's sentence from those of co-offenders who were not subject to conditional liberty at the time.
  • No error is established merely because co-offenders who engaged in ostensibly similar physical acts received lighter sentences, where the harm resulting from each offender's act differed significantly.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(1), 93C
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Callaghan v R [2006] NSWCCA 111
- GAS v The Queen [2004] HCA 22; 217 CLR 198
- Green v The Queen; Quinn v The Queen (2011) HCA 49; 244 CLR 462
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v Cotter & Ors [2003] NSWCCA 273
- R v Wright [2009] NSWCCA 3
- Siganto v The Queen [1998] HCA 74; 194 CLR 656
- Wong v The Queen [2001] HCA 64; 207 CLR 584