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Court of Criminal Appeal 9 October 2013

Shedden v R

[2013] NSWCCA 225

Assault & violenceHomicide
CRIMINAL LAW SENTENCE APPEAL MANSLAUGHTER VICTIM SHOT WHILE ARMED WITH A KNIFE

Citation: Shedden v R [2013] NSWCCA 225
Court: NSW Court of Criminal Appeal
Date: 9 October 2013
Judge(s): Hoeben CJ at CL; Bellew J; Barr AJ

Background

The appellant pleaded guilty to the manslaughter of a young man killed during a retaliatory street assault at Raymond Terrace in June 2010. The appellant, aged 31 at the time, organised and led a group of much younger men after learning that some of them had been assaulted. He recruited additional participants, used his home as a planning base, and participated in two separate armed ambushes on the victims' vehicles. His older brother shot and killed the deceased with a shortened shotgun during the second confrontation.

Fullerton J sentenced the appellant to a total term of nine years' imprisonment, with a non-parole period of six years and nine months. A combined discount of 25 percent was applied for the guilty plea and substantial assistance provided to police, including disclosing the location of the murder weapon and naming his brother as the shooter.

The appellant sought leave to appeal on a single ground: that the sentencing judge erred by failing to apply the parity principle when compared with the sentence received by Daniel Forbes, one of the younger participants in the same joint criminal enterprise, who received a significantly shorter sentence.

  • Whether the sentencing judge was required to apply the parity principle when sentencing the appellant, given the lesser sentence imposed on a co-offender, Daniel Forbes.
  • Whether differences in culpability and personal circumstances between the appellant and Forbes were sufficient to justify the disparity in their sentences.
  • Whether the appellant had a justified sense of grievance arising from that disparity, so as to warrant appellate intervention.

Decision

Hoeben CJ at CL, with whom Bellew J and Barr AJ agreed, dismissed the appeal. The court found there were profound and material differences between the appellant and Forbes that fully explained and justified the sentencing disparity.

On culpability, the court identified the appellant as a principal in the joint criminal enterprise. He organised the group, recruited his brother and others, directed the planning of the attacks, and continued to participate knowing that at least one person in the group was armed with a gun. Forbes, by contrast, was found to be naive, gullible, and easily led. He arrived at the scene unarmed and played a far lesser role.

The age difference was also significant. The appellant was 31 and Forbes was 18. Rather than using his greater age and life experience to dissuade the younger men from retaliating, the appellant actively encouraged and coordinated their participation. The appellant also had a prior criminal record that included offences of violence and weapons possession, while Forbes had no antecedents and demonstrated genuine remorse and strong prospects of rehabilitation.

Applying the High Court's articulation of the parity principle in Green v The Queen; Quinn v The Queen, the court confirmed that appellate intervention is only warranted where a co-offender can demonstrate a justified sense of grievance based on objective criteria. The differences in culpability and personal circumstances here were so significant that no such grievance was established. The court found it was open to the sentencing judge to conclude that the parity principle was, in effect, rendered virtually irrelevant on these facts.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle does not automatically apply merely because co-offenders receive different sentences; disparities are justified where there are meaningful differences in culpability, age, character, criminal history, and role in the criminal enterprise.
  • Under the test confirmed in Green v The Queen; Quinn v The Queen, the sense of grievance required to attract appellate intervention must be assessed by objective criteria, not by the subjective feelings of the person complaining of disparity.
  • A significant difference in role within a joint criminal enterprise, such as being the organiser and principal participant as opposed to a naive and subordinate follower, can be decisive in displacing any parity argument.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge may find the parity principle of "virtual irrelevance" where the gap in culpability and personal circumstances between co-offenders is sufficiently profound.
  • Cooperation with police, including disclosing the location of a weapon and identifying the shooter, is a factor that can attract a significant sentencing discount, but that discount does not insulate an offender from the consequences of his or her own substantial criminal role.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(i), s 21A(2)(n)

Cases:
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- R v Forbes [2011] NSWSC 1547