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19
Court of Criminal Appeal 14 March 2012

KR v R

[2012] NSWCCA 32

Assault & violenceHomicideTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE PRINCIPLE OF PARITY PARITY PRINCIPLE NOT ENGAGED APPEAL DISMISSED.

Citation: KR v R [2012] NSWCCA 32
Court: NSW Court of Criminal Appeal
Date: 14 March 2012
Judge(s): Whealy JA, Latham J, Harrison J

Background

The applicant pleaded guilty to one count of murder and two counts of assault with intent to rob in company, arising from a series of offences committed over a single night in June 2008 when the applicant was 17 years old. Together with a co-offender (LR), the applicant attacked and robbed a cyclist, assaulted a woman and stole her bag, and stomped on the head and face of a third victim, killing him. The applicant was sentenced to a total term of 19 years and 6 months imprisonment, with a non-parole period of 12 years and 9 months.

LR, the co-offender, had been sentenced separately by the same judge at an earlier hearing, having pleaded guilty in the Children's Court and given unchallenged oral evidence at his sentencing. The applicant, by contrast, did not give evidence and had delayed his pleas until arraignment in the Supreme Court. The applicant sought leave to appeal his sentence on two grounds.

  • Whether the difference between the applicant's sentence and that imposed on LR gave rise to a justifiable sense of grievance, engaging the parity principle
  • Whether the sentencing judge denied the applicant procedural fairness by reducing the guilty plea discount from 20% to 15% without affording the applicant a further opportunity to make submissions

Decision

Parity ground: The Court of Criminal Appeal confirmed that the parity principle requires co-offenders in materially similar circumstances to receive sentences that do not differ unjustifiably. Here, however, the sentencing judge had found different facts in relation to each offender. In particular, the judge found beyond reasonable doubt that the applicant had inflicted the shoe prints found on the deceased's head, a finding that could not be made to the same standard against LR on the evidence available at his earlier sentencing. The judge expressly acknowledged the inconsistency but explained it as a consequence of the different evidentiary bases before him at each hearing.

The Court distinguished between criminal responsibility and moral culpability, noting that both offenders bore equal criminal responsibility for the death but the applicant bore greater moral culpability on the available findings. Because the factual foundations for each sentence were genuinely different, the parity principle was not engaged. The applicant could not point to a justifiable sense of grievance where the disparity reflected differences in the findings of fact properly made at each separate hearing.

Procedural fairness ground: The applicant argued that the judge had indicated a 20% discount during the hearing but then reduced it to 15% in the remarks on sentence without giving the applicant a further opportunity to address the reduction. The Court rejected this ground. A review of the transcript showed that the judge's indication of 20% was explicitly conditional on the Crown not submitting otherwise, and the Crown did in fact submit that a lower discount was warranted. The applicant's counsel was present throughout that exchange and had the opportunity to respond in reply submissions. The reduction to 15% was therefore made after the applicant had a real opportunity to be heard. The Court also noted that 15% is generally the highest discount available for a plea entered at arraignment in the Supreme Court, citing R v Borkowski [2009] NSWCCA 102.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The parity principle is not engaged where co-offenders are sentenced on different factual bases, even if sentenced by the same judge for the same offence arising from the same events.
  • A distinction exists between criminal responsibility (which may be equal) and moral culpability (which may differ), and sentencing courts are entitled to impose different sentences where the latter diverges.
  • Procedural fairness in sentencing does not require a judge to formally re-open submissions every time a view expressed during the hearing is refined; it requires only that the offender have a genuine opportunity to address the issue before the sentence is pronounced.
  • In dismissing the parity ground, the Court of Criminal Appeal confirmed that practical constraints causing co-offenders to be sentenced separately, and the different evidentiary records that may result, can legitimately produce sentencing disparity.
  • Under the approach confirmed in R v Borkowski, a discount of 15% represents approximately the maximum available for a plea of guilty entered at the time of arraignment in the Supreme Court.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(a) (murder), s 97(1) (assault with intent to rob in company)

Cases
- R v LR [2010] NSWSC 22
- R v Wright [2009] NSWCCA 3
- R v JW [2010] NSWCCA 49
- R v Sukkar [2011] NSWCCA 140
- R v O'Connor [1980] HCA 17; 146 CLR 64
- R v Merritt [2004] NSWCCA 19
- R v Henry & Ors [1999] NSWCCA 111; 46 NSWLR 346
- Postiglione v R [1997] HCA 26; 189 CLR 295
- Green v The Queen; Quinn v The Queen [2011] HCA 49
- Trujillo-Mesa v R [2010] NSWCCA 201
- R v Borkowski [2009] NSWCCA 102