Citation: Cambey v R [2013] NSWCCA 170
Court: NSW Court of Criminal Appeal
Date: 9 July 2013
Judges: Basten JA at [1]; Price J at [34]; Campbell J at [43]
Background
In January 2006, the victim was fatally assaulted in his home unit. Two principal offenders, the applicant and his co-offender, were convicted of manslaughter following a jury trial in July 2012. The co-offender had repeatedly struck the victim with a metal pole and punched him about the head. The applicant provided aid and encouragement to the co-offender and kicked the victim, although the kicking was not found to have been instrumental in causing death.
At sentencing in November 2012, the trial judge (Schmidt J) recognised that the co-offender's culpability was clearly more serious than the applicant's. The applicant received a total sentence of seven years and eight months (non-parole period of five years and two months), while the co-offender received a longer sentence. The differential between the two sentences was approximately 14 to 15 percent.
The applicant sought leave to appeal, arguing that the sentence failed to adequately reflect the true difference in their respective roles, and that he had not received a sufficient discount for an offer to plead guilty to manslaughter that the Crown had rejected.
Legal Issues
- Whether the differential between the sentences imposed on the applicant and his co-offender was sufficient to reflect the disparity in their respective conduct and culpability.
- Whether the applicant received an adequate sentencing discount for his offer to plead guilty to manslaughter (which was rejected by the Crown at the time he was facing both murder and manslaughter charges).
- Whether additional evidence in the form of a solicitor's affidavit about the plea offer should be admitted on appeal.
Decision
The Court was divided. By majority (Basten JA and Campbell J), the Court granted leave to appeal and substituted a lesser sentence. Basten JA found that the 14 to 15 percent differential between the sentences was insufficient to reflect the genuine disparity in culpability between the two offenders. The co-offender had directly administered the blows that caused death; the applicant's participation, while criminally serious, was materially lesser in terms of its causal role and physical gravity.
Basten JA also found that the applicant had not been adequately credited for his offer to plead guilty to manslaughter. This offer, made while he faced both murder and manslaughter charges, indicated a willingness to accept responsibility for the lesser offence before trial. The discount given did not sufficiently reflect this.
Price J dissented. His Honour noted a number of factors that, in his view, justified the existing sentence differential. The applicant, unlike the co-offender, had no mental health issues that affected his culpability or the weight to be given to specific deterrence. The co-offender had been in a fragile mental state attributable to developing schizophrenia at the time of the offence. The co-offender had also demonstrated remorse and good prospects of rehabilitation, whereas the applicant had not accepted his criminal responsibility and was assessed as having a non-trivial risk of reoffending. Taking those differences into account, Price J was not persuaded that the sentence disparity gave rise to a justifiable sense of grievance.
On the additional evidence question, the Court noted that a solicitor's affidavit about the plea offer was tendered on appeal. The Court indicated that additional evidence on a sentence appeal is ordinarily admitted only for the purpose of resentencing, and that the material provided was not useful in resolving the matters in issue on the appeal.
Orders Made
- Leave to appeal granted (by majority).
- The sentence imposed by the trial judge was set aside.
- The applicant was resentenced to a non-parole period of four years and ten months, with a balance of term of two years and four months.
- The sentence was backdated to commence on 16 September 2008 (the date the applicant was first taken into custody on these charges).
- The effect of the reduction in the non-parole period was that the applicant became eligible for consideration for parole from 15 July 2013.
Key Takeaways
- A parity challenge succeeds where the sentence differential between co-offenders fails to reflect a genuine and material difference in their respective culpability, even where a lesser sentence has already been imposed on the less culpable offender.
- The Court of Criminal Appeal confirmed that a pre-trial offer to plead guilty to a lesser charge (where the Crown declines the offer) can warrant a sentencing discount, and the adequacy of any such discount is a legitimate ground of appeal.
- Factors personal to each co-offender, including mental illness, remorse, risk of reoffending, and rehabilitation prospects, are relevant not just to the overall sentence but also to whether the differential between co-offenders' sentences is appropriate. Price J's dissent illustrates that these factors can cut differently depending on which offender they favour.
- Additional evidence is not routinely admissible on a sentence appeal merely because it might have been relevant at first instance. The Court reiterated that such evidence is generally admitted only where it bears directly on resentencing.
- In a case where co-offenders are sentenced for the same offence arising from the same events, the sentencing court must grapple with the full range of differences in their conduct, mental state, and personal circumstances, rather than treating a nominal percentage differential as automatically sufficient.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
Cases:
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (parity principle)
- House v The King [1936] HCA 40; 55 CLR 499 (appellate interference with sentencing discretion)
- Carney v R; Cambey v R [2011] NSWCCA 223 (earlier related proceedings)