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Court of Criminal Appeal 12 September 2014

Ivory v R

[2014] NSWCCA 181

Assault & violence
CRIMINAL LAW PRACTICE AND PROCEDURE SENTENCE WHERE CO OFFENDERS SEPARATELY SENTENCED

Citation: Ivory v R [2014] NSWCCA 181
Court: NSW Court of Criminal Appeal
Date: 12 September 2014
Judges: Hoeben CJ at CL, Adamson J, Bellew J (all agreeing)

Background

The applicant pleaded guilty in the District Court at Newcastle in August 2011 to two counts of demanding money with menaces whilst in company, and one count of wounding with intent to cause grievous bodily harm. He was sentenced to a total of 8 years and 9 months imprisonment, with a non-parole period of 5 years and 3 months.

The application for an extension of time arose after the applicant became aware that two co-offenders, Delaney and Wilson, had subsequently received substantially lighter sentences. Those co-offenders had been charged under a different, less serious provision of the Crimes Act 1900, and the factual basis for their sentencing differed from that applicable to the applicant. The applicant argued that the disparity between his sentence and theirs gave rise to a justifiable sense of grievance.

The application was filed in February 2014, approximately two and a half years after the original sentence was imposed. The Crown opposed both the extension of time and the substantive grounds of appeal.

  • Whether the delay in filing the application for an extension of time was adequately explained
  • Whether, on a parity argument, a court can look behind the exercise of prosecutorial discretion in charging co-offenders differently to assess whether a justifiable sense of grievance arises
  • Whether any disparity in sentence between the applicant and Delaney in relation to the demanding money with menaces offences was established

Decision

On the question of delay, the Court accepted that some periods of delay were adequately explained, including time spent awaiting the outcome of related proceedings involving Delaney before the Court of Criminal Appeal. However, the explanation for the critical period between November 2013 and late February 2014, during which documents were prepared but not filed, was inadequate. The affidavit simply referred to "further research" and a need for "further advice," without identifying the nature of either, who provided the advice, or whether it was ever received.

On the first proposed ground, the Court considered whether the disparity between the applicant's sentence and those of Wilson and Delaney was capable of founding a parity argument. The Court confirmed the established principle that where co-offenders face different charges carrying different maximum penalties, or where the factual bases for sentencing differ materially, direct comparison of sentences is difficult and potentially misleading. The charges against Wilson and Delaney arose from the exercise of prosecutorial discretion, and that discretion is not a matter into which a sentencing court, or an appellate court reviewing sentence, may inquire. No justifiable sense of grievance was established.

On the second proposed ground, the applicant contended that Delaney had been sentenced to only three months more than the applicant in respect of the equivalent demanding money charges, despite having pleaded not guilty. The Court found this argument overlooked the fact that the applicant's sentencing judge was required to impose a sentence taking into account the totality of his offending, which included the more serious wounding offence committed shortly after the demanding money offences. The overall sentencing structure was not demonstrated to be infected by error.

Because the proposed grounds were not made out and the delay was not adequately explained, the Court refused the extension of time.

Orders Made

  • The application for an extension of time is refused.

Key Takeaways

  • Where co-offenders are charged under different provisions carrying different maximum penalties, or where the factual bases for sentence differ, the Court of Criminal Appeal confirmed that meaningful parity comparisons are difficult to sustain.
  • Prosecutorial discretion in determining what charges to lay is not open to review by a sentencing court or an appellate court assessing parity; the disparity that flows from different charging decisions does not automatically give rise to a justifiable sense of grievance.
  • In assessing an extension of time application, all relevant factors must be weighed, including the length and reasons for delay, the interests of the community and any victim, and whether a refusal would result in substantial injustice. This requires a summary assessment of the proposed appeal's strength.
  • Unexplained gaps in a solicitor's affidavit supporting an extension application, particularly where critical periods of inaction are attributed to vague references to "further research" without identification of what was done or by whom, will undermine the adequacy of the explanation for delay.
  • Totality principles mean that individual components of a sentence for multiple offences cannot be compared in isolation with sentences imposed on co-offenders for equivalent charges; the overall sentencing task requires consideration of all offending together.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(a), 59(2), 99(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Abdul v R [2013] NSWCCA 247
- Alpha v R [2013] NSWCCA 292
- Black v R [2013] NSWCCA 265
- Delaney v R; R v Delaney [2013] NSWCCA 150
- Elias v R (2013) 248 CLR 483; [2013] HCA 31
- Green v R; Quinn v R (2011) 244 CLR 262; [2011] HCA 49
- Jimmy v R (2010) 77 NSWLR 540
- Kentwell v R; O'Grady v R [2014] HCA Trans 113
- Miles v R [2014] NSWCCA 72
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Chandler; Chandler v R [2012] NSWCCA 135
- R v Nguyen [2003] NSWCCA 195
- WA v R [2014] NSWCCA 92
- Winter v R [2013] NSWCCA 231