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Court of Criminal Appeal 12 November 2013

McMullen v Regina

[2013] NSWCCA 261

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW APPEAL PARITY DISCOUNTS NO ERROR ESTABLISHED PARITY WITH CO

Citation: McMullen v Regina [2013] NSWCCA 261
Court: Court of Criminal Appeal, NSW
Date: 12 November 2013
Judges: Latham J, Schmidt J (principal judgment), Beech-Jones J

Background

The appellant was sentenced in the District Court by Quirk DCJ in November 2012 following guilty pleas, entered at the commencement of trial before jury empanelment, to three offences committed in late 2010 and early 2011. The offences were: accessory before the fact to armed robbery (providing a stolen vehicle used in a robbery at a sports club); conspiracy to commit armed robbery (which involved stealing a car, acquiring disguise items, and ended in arrest during a police chase); and possessing two unauthorised pistols. Two further matters were taken into account on a Form 1.

The appellant received a total term of six years' imprisonment with a non-parole period of four years commencing from July 2011. His co-conspirator in counts 2 and 3, Jamie Oatley, received lesser sentences for the conspiracy offence, which formed the central basis of the parity challenge.

The appellant was 26 at the time of the offences and had a significant prior criminal history, including a seven-and-a-half year sentence for armed robbery imposed when he was 18. The sentencing judge found that the appellant and Oatley had equal involvement in the conspiracy, but the appellant argued this equality of participation meant the disparity in their sentences was unjustifiable.

  • Whether the sentencing judge erred in failing to apply the parity principle when sentencing the appellant for count 1 (accessory to armed robbery), given the sentences received by co-offenders Bourke and an unidentified male
  • Whether the disparity between the appellant's sentence for count 2 (conspiracy) and Oatley's sentence for the same conspiracy gave rise to a justifiable sense of grievance, particularly given the finding of equal participation

Decision

On the parity ground relating to count 1, the Court found no error. The relevant co-offenders, Bourke and the unidentified male, were the principal offenders who had physically carried out the robbery while armed. The appellant's role was that of an accessory before the fact who supplied the stolen getaway vehicle. Any sentencing disparity was explicable by the structural difference in the nature of their respective participation.

On the parity ground relating to count 2 and the conspiracy with Oatley, the Court acknowledged there was a difference in the sentences but rejected the contention that it rose to the level of a marked disparity producing a justifiable sense of grievance. The sentencing judge had found equal participation in the conspiracy, but relevant differences existed between the two offenders beyond their conduct in committing the offence. The Court noted that the appellant had funded the purchase of equipment (Oatley having no money), stolen the car himself (having made a promise to do so when Oatley was released from prison), and was on parole at the time for a similar offence involving armed robbery. Those factors, combined with differences in the subjective circumstances and criminal histories of each offender, justified the sentencing outcome.

The Court confirmed the applicable principle: the parity doctrine requires demonstration of a marked disparity that objectively produces a justifiable sense of grievance, not merely any difference in outcome. A finding of equal participation in the offending conduct is a relevant consideration but does not, by itself, establish a parity error where the offenders' broader circumstances differ.

All three judges agreed the appeal should be dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Equal participation in an offence does not automatically entitle co-offenders to identical sentences; differences in criminal history, subjective circumstances, specific conduct, and the particular charges pressed remain relevant and can justify disparity.
  • The parity principle requires a marked disparity that objectively generates a justifiable sense of grievance, not simply any difference in sentencing outcome between co-offenders.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where a co-offender is sentenced on different charges, even arising from the same criminal episode, a comparison of total head sentences requires care and must account for the structural differences in the offences charged.
  • Committing a similar offence while on parole for a comparable prior offence was treated as a significant aggravating factor, capable of distinguishing an offender's position from that of a co-offender also on parole but with a shorter parole period.
  • A 20 per cent discount for guilty pleas entered at the commencement of trial, before jury empanelment, on an indictment originally containing 14 counts estimated to take six weeks, was accepted as a reasonably significant discount in the circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(2), 154F, 346
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW), s 7(1)

Cases
- Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145
- Chaplin v R [2006] NSWCCA 40; (2006) 160 A Crim R 85
- England v R; Phanith v R [2009] NSWCCA 274
- Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
- Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
- R v Tran [1999] NSWCCA 109
- Wong v R [2001] HCA 64; (2001) 207 CLR 584