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Court of Criminal Appeal 6 December 2013

Wilken v R

[2013] NSWCCA 304

Assault & violence
CRIMINAL LAW SENTENCE APPEAL OFFENDERS OFFENDER WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Wilken v R [2013] NSWCCA 304
Court: NSW Court of Criminal Appeal
Date: 6 December 2013
Judge(s): Basten JA at [1]; Price J at [6]; Campbell J at [7]

Background

The applicant was convicted of specially aggravated kidnapping under s 86(3) of the Crimes Act 1900 (NSW), carrying a maximum penalty of 25 years imprisonment. He was sentenced in the District Court to a total of 7 years and 2 months for the s 86(3) offence, with a non-parole period of 5 years and 2 months. He had also been sentenced for a common assault and for a called-up bond, producing a total effective sentence of 8 years and 5 months with a non-parole period of 6 years and 5 months.

The offending involved the applicant and two co-offenders pursuing and detaining a female victim after she and her male partner attended a debt-collection confrontation. The female victim was subjected to actual bodily harm in the course of the kidnapping. The sentencing judge found the applicant and one co-offender, Carroll, to bear equal moral responsibility for the offending.

Despite that finding of equal culpability, the non-parole period imposed on Carroll for the s 86(3) offence was 4 years and 6 months, compared with the applicant's 5 years and 2 months. The applicant sought leave to appeal, arguing that this disparity gave rise to a justifiable sense of grievance, that the sentencing judge had failed to adequately explain the difference, and that the sentence was manifestly excessive.

  • Whether the difference in non-parole periods between the applicant and Carroll, despite equal moral culpability, gave rise to a justifiable sense of grievance sufficient to warrant appellate intervention on parity grounds.
  • Whether the sentencing judge failed to state adequate reasons for the difference in non-parole periods between the applicant and Carroll.
  • Whether the sentence imposed on the applicant was manifestly excessive.

Decision

On the adequacy of reasons: The Court found that the sentencing judge's reasons were clear and adequate. The different non-parole periods arose because each offender was serving multiple sentences, and the sentencing judge sought to maintain the statutory ratio between non-parole and additional term across the total effective sentence for each offender. That ratio reflects the requirement under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that, absent special circumstances, the non-parole period should be at least three-quarters of the total term. The Court held that any reasonably informed reader of the remarks on sentence would have understood this rationale.

On parity: The applicant's counsel accepted in written submissions that the s 44 ratio was likely the reason for the difference, but argued that the preferred approach would have been to impose identical non-parole periods and achieve the same outcome through partial accumulation. The Court rejected this contention. Both approaches were available and neither was necessarily preferable. The equal moral culpability of the applicant and Carroll was reflected in the fact that they received identical sentences for the s 86(3) offence considered in isolation. Carroll's overall non-parole period was in fact 20 months longer than the applicant's, meaning Carroll would spend considerably more time in custody before becoming eligible for parole.

On manifest excess: The Court noted the inherent tension in simultaneously arguing parity (which assumes the sentence is otherwise appropriate) and manifest excess. Having regard to the objective seriousness of the kidnapping, the aggravating factor of offending while subject to a bond, the applicant's criminal history, and only fair prospects of rehabilitation, the Court was satisfied the sentences were within an appropriate range. No error was established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's decision to impose different non-parole periods on co-offenders of equal culpability does not automatically create a justifiable sense of grievance where the difference is explicable by the lawful application of the s 44 statutory ratio across each offender's total effective sentence.
  • Where two methods of achieving the same sentencing outcome are both available and neither is clearly preferable, no error arises from a judge's choice between them.
  • Sufficient reasons exist where a reasonably informed reader would understand the basis for differential treatment between co-offenders, even without elaborate or highly detailed explanation; reasons must be read fairly and as a whole.
  • In dismissing the parity ground, the Court confirmed the principle from Lowe v The Queen that equal culpability does not demand mathematically identical sentences when co-offenders are serving different combinations of multiple terms.
  • A manifest excess argument faces a structural difficulty when run alongside a parity complaint, because the parity argument itself presupposes the sentence is otherwise appropriate in range.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(3) (specially aggravated kidnapping), s 148 (stealing in a dwelling house)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 44
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280
- Hall v Van der Poel [2009] NSWCA 436
- R v Moffitt (1990) 20 NSWLR 114
- Gray v R [2013] NSWCCA 169
- Stewart v R [2013] NSWCCA 185
- OM v R [2009] NSWCCA 267; 212 A Crim R 532