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Court of Criminal Appeal 3 March 2017

R v AC; AC v R

[2017] NSWCCA 20

HomicideFirearms & weaponsPublic order & justice offences
CRIMINAL LAW APPEAL SENTENCING WHETHER MANIFESTLY INADEQUATE PARITY WHETHER JUSTIFIABLE SENSE OF GRIEVANCE

Citation: R v AC; AC v R [2017] NSWCCA 20
Court: Court of Criminal Appeal, NSW
Date: 3 March 2017
Judge(s): Bathurst CJ (primary reasons); Rothman J (agreeing); Garling J (agreeing)

Background

The applicant pleaded guilty to two offences: accessory before the fact to murder, and accessory before the fact to discharging a firearm with intent to cause grievous bodily harm. Both offences arose from her involvement with the Brothers for Life (BFL), an organised criminal group. On the first count, the sentencing judge also took into account a Form 1 offence of participating in a criminal group.

The applicant's role included passing intelligence about the movements of a rival group leader, driving shooters to the victim's home, and later hiding the weapons used. She also attended the site of a separate café shooting and identified the target and his vehicle. Both offences were carefully planned and executed attacks connected to a violent turf war within the BFL.

The sentencing judge imposed a non-parole period of 5 years for the murder accessory count (commencing August 2017) and 3 years for the firearms count (commencing February 2016), with sentences partially accumulated. The sentences incorporated a 50% discount for a late guilty plea and for past and future assistance to authorities. Both the Crown and the applicant sought to challenge the sentences: the Crown on the ground of manifest inadequacy, and the applicant on the ground that her onerous bail conditions had not been properly taken into account.

  • Whether the sentences imposed were manifestly inadequate (Crown appeal)
  • Whether the sentencing judge erred by failing to take into account the applicant's onerous bail conditions when fixing the sentences or their commencement dates (applicant's appeal)
  • Whether the parity principle precluded any increase in the applicant's sentence compared with sentences imposed on co-offenders

Decision

Crown's appeal: Manifest inadequacy

Bathurst CJ accepted that the sentences were "somewhat lenient," but held they did not reach the threshold of being manifestly inadequate, meaning unreasonable or plainly unjust. The Chief Justice considered each of the Crown's three arguments in turn. On the first argument, he found that while the applicant's criminality was serious and her role important, the sentencing judge had not erred in weighing all relevant factors, including the significant discount for plea and assistance.

On the parity argument, Bathurst CJ found that the sentences imposed on two co-offenders (MM and WK, dealt with in a related appeal) provided a meaningful comparison. Even accepting the Crown's position that the indicative sentences in that matter were themselves too low, any increase in the applicant's sentence would, in the Chief Justice's view, give rise to a justifiable sense of grievance on the applicant's part. The parity principle therefore operated as a constraint on the Crown's appeal. On the degree of accumulation, the Chief Justice acknowledged the relevant discretionary nature of that judgment and found no error warranting intervention.

Applicant's appeal: Onerous bail conditions

The applicant contended the sentencing judge had overlooked the onerous conditions of her bail when fixing the sentence. Bathurst CJ rejected this ground. Given the history of the proceedings and the sentencing judge's prior judgments, it was not reasonably open to conclude that the judge had overlooked the issue. Rothman J agreed, noting that a sentencing judge is permitted (but not required) to take onerous bail conditions into account when determining the sentence or its commencement date, and that no error was established here.

Orders Made

  • Crown appeal (R v AC): dismissed
  • Applicant's application for leave to appeal (AC v R): leave granted; appeal dismissed

Key Takeaways

  • A sentence may be "somewhat lenient" without being manifestly inadequate. The Court of Criminal Appeal confirmed that manifest inadequacy requires the sentence to be unreasonable or plainly unjust, not merely generous.
  • The parity principle can operate to constrain a Crown appeal. Where an increase in one offender's sentence would create a justifiable sense of grievance when compared with sentences imposed on co-offenders, that increase will not be ordered even if the original sentence was lenient.
  • Sentencing judges are permitted to take onerous bail conditions into account when fixing a sentence or its commencement date, but are not required to do so. Failure to adjust for bail conditions is not, of itself, an error.
  • No error is established merely because a sentencing judge did not expressly address bail conditions in the sentence, particularly where the history of the proceedings makes it implausible that the issue was overlooked.
  • The degree of accumulation of sentences for multiple counts is a matter of sentencing discretion, and an appellate court will not intervene unless that discretion has miscarried.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 33A(1)(a), 93T(1), 346

Cases
- Aoun v R [2007] NSWCCA 292
- Dinsdale v The Queen (2000) 202 CLR 321
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- House v The Queen (1936) 55 CLR 499
- Jimmy v The Queen (2010) 77 NSWLR 540
- Kanaan v R [2006] NSWCCA 109
- Lowe v The Queen (1984) 154 CLR 606
- Mulato v R [2006] NSWCCA 282
- Nguyen v The Queen (2016) 256 CLR 656
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR 295
- R v AC (No 3) [2016] NSWSC 209
- R v AC (No 7) [2016] NSWSC 404
- R v KB [2011] NSWCCA 190
- R v MM; R v WK [2017] NSWCCA 19
- R v XX (2009) 195 A Crim R 38
- Ramos v R [2015] NSWCCA 313