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Court of Criminal Appeal 8 April 2016

McKinley v R

[2016] NSWCCA 53

Theft & property
CRIMINAL LAW SENTENCING APPLICATION FOR LEAVE TO APPEAL PARITY WITH CO OFFENDER IDENTICAL SENTENCES

Citation: McKinley v R [2016] NSWCCA 53
Court: Court of Criminal Appeal, New South Wales
Date: 8 April 2016
Judge(s): Basten JA; McCallum J; Davies J

Background

The applicant was sentenced in the District Court at Newcastle in October 2014 for robbery in company under s 97(1) of the Crimes Act 1900 (NSW), receiving a head sentence of 3 years 10 months with a non-parole period of 2 years 10 months. She was also sentenced concurrently for breaches of several bonds relating to nine separate offences, each attracting three months imprisonment. The sentencing judge expressly declined to find "special circumstances" under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which, if found, would have permitted a longer balance of term to be served in the community rather than in custody.

A co-offender was sentenced separately by a different District Court judge the following month. His indicative sentence for the robbery in company was also 3 years 10 months, but the judge in that proceeding did find special circumstances, resulting in a longer period to be served in the community relative to the non-parole period.

The applicant filed a late application for leave to appeal against her sentence. Her sole ground was that the disparity between her non-parole period and her co-offender's gave rise to a justifiable sense of grievance, a recognised basis for appellate intervention in sentencing.

  • Whether the difference in non-parole periods between the applicant and her co-offender, arising from contrasting findings on special circumstances, gave rise to a justifiable sense of grievance warranting appellate intervention on parity grounds.
  • Whether the sentencing judge's refusal to find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was an error that could be raised through the parity argument.
  • Whether an extension of time to file the application should be granted.

Decision

The Court of Criminal Appeal rejected the parity argument, finding that the only truly comparable element of the two sentences was the head sentence for robbery in company, which was identical for both offenders. The difference in non-parole periods flowed not from any disparity in the base sentence but from the different special circumstances findings made by two different judges in two separate proceedings.

Basten JA distinguished the applicant's case from the Court's earlier decision in Ruge and Cormack v R [2015] NSWCCA 153. In Ruge, the error identified was an unjustified inconsistency in the approach to special circumstances across two related sentencings, and crucially, the applicant in that case had directly challenged the failure to find special circumstances. The applicant in the present case raised no such challenge to the refusal to find special circumstances, and accordingly could not use the co-offender's outcome to manufacture a parity grievance.

The Court also noted that the facts demonstrated the applicant had played a significantly greater role in the offending than her co-offender, further undermining any basis for a parity complaint. The application was described as entirely without merit.

On the question of delay, the application was filed a few days after the extended time limit had expired. The Court accepted that the applicant did not receive the co-offender's judgment until August 2015, and the resulting delay of approximately two months was not particularly lengthy, so an extension of time was granted. However, because the appeal had no prospect of success, the extension provided the applicant with no practical benefit.

Orders Made

  • Time for filing the application for leave to appeal extended to 24 November 2015.
  • Leave to appeal against sentence refused.

Key Takeaways

  • A parity argument cannot succeed where the head sentences imposed on two co-offenders are identical and any difference in non-parole periods flows solely from different findings on special circumstances by different sentencing judges.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court must maintain the statutory proportion between the non-parole period and the balance of term unless special circumstances are found; the refusal to find special circumstances is a discrete sentencing decision that must be challenged on its own terms.
  • The Court of Criminal Appeal distinguished Ruge and Cormack v R [2015] NSWCCA 153, emphasising that the error in that case arose from an unjustified inconsistency in approach between two linked sentencings, whereas no equivalent direct challenge to the special circumstances finding was available here.
  • A relatively short period of unexplained delay in filing a leave application may still attract an extension of time, even where the extension produces no practical benefit for the applicant.
  • Where a co-offender played a lesser role in the offending, the sentencing comparison is further weakened as a basis for a parity grievance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (non-parole period and special circumstances)

Cases:
- Ruge and Cormack v R [2015] NSWCCA 153