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14
Court of Criminal Appeal 27 September 2017

Cameron v R

[2017] NSWCCA 229

HomicideDrugs
CRIMINAL LAW SENTENCING MURDER ASSISTANCE TO AUTHORITIES PARITY OF SENTENCING CONCEPT OF MATERIAL DIFFERENCE

Citation: Cameron v R [2017] NSWCCA 229
Court: NSW Court of Criminal Appeal
Date: 27 September 2017
Judge(s): Basten JA at [1]; Button J at [16]; Hamill J at [35]

Background

The appellant was convicted of murder and the cultivation of a large commercial quantity of cannabis. The murder was planned and premeditated, motivated by the appellant's desire to avoid detection for the drug offence. The appellant provided post-offence assistance to authorities, including disclosing the location of the victim's body.

At first instance, Fagan J sentenced all three co-offenders at the same time. The appellant's co-offender, Stanley Forward, received a materially lighter sentence. Forward was a young man with no prior record of violence, a serious health condition, and a subservient role in the offending. The appellant, by contrast, was middle-aged with a substantial history of drug cultivation and played the dominant role.

The appellant sought leave to appeal on three grounds: that the sentencing judge gave insufficient weight to his assistance to authorities, that the disparity between his sentence and Forward's offended the parity principle, and that his sentence was manifestly excessive. Leave was granted on both sentences, but the appeal was dismissed by majority.

  • Whether the sentencing judge gave adequate weight to the appellant's assistance to authorities, including disclosure of the location of the victim's body
  • Whether the disparity between the appellant's sentences and those of his co-offender Forward breached the parity principle
  • Whether the sentences imposed were manifestly excessive
  • Whether life expectancy tables are admissible or relevant on a sentencing appeal

Decision

The Court rejected all three grounds of appeal. On the assistance ground, the majority found no error in the weight assigned by the sentencing judge to the appellant's cooperation. On manifest excess, while the starting point for the murder sentence (40 years, before discounts) was at the top of the available range, the brutal and premeditated nature of the offending justified it, and the final sentence was not manifestly excessive.

On parity, the Court analysed the disparity across three elements: the differing starting points for murder, the substantially different cultivation sentences, and the partial accumulation of the appellant's sentences (which was applied to his case but not Forward's). Each element was individually explicable. The murder starting point for the appellant was one-third higher than Forward's, reflecting his dominant role, his age, and his prior history. The cultivation sentence was substantially longer, reflecting the appellant's significantly greater involvement. The partial accumulation, while a point of difference, was arithmetically not unfavourable to the appellant when compared to Forward's wholly concurrent but shorter non-parole period.

Basten JA, drawing on Lowe v The Queen and Street v Queensland Bar Association, emphasised that the parity principle requires equal treatment of equals, not identical treatment of those in materially different positions. Treating unequal cases differently is not only permitted but required. Because each element of disparity was individually justifiable, the sentencing judge had not contravened the principle, and appellate intervention was unwarranted.

On life expectancy tables, Basten JA held that such evidence is neither relevant nor admissible on a sentencing appeal. A proportionate determinate sentence does not become a de facto life sentence merely because the offender may die before its expiry. The risk of dying in custody does not convert a determinate sentence into a life sentence, and such considerations are matters for the executive power of early release on mercy, not for the sentencing court.

Orders Made

• The applicant will be eligible for release to parole at the conclusion of the non-parole imposed in relation to the murder offence.

Key Takeaways

  • The parity principle in sentencing does not mandate identical outcomes for co-offenders; it requires equal treatment of those in equal positions, and different treatment of those in materially different positions is both permitted and required.
  • In dismissing the parity ground, the Court of Criminal Appeal confirmed that differences in age, criminal history, health, role in the offending, and the extent of assistance to authorities can each individually justify sentencing disparity between co-offenders.
  • Where multiple elements of disparity exist between co-offenders' sentences, each element need not be assessed in isolation; provided each is individually justifiable, their combination does not necessarily produce a result that offends the parity principle.
  • Life expectancy tables are not relevant or admissible on a sentencing appeal. A determinate sentence that a prisoner is unlikely to survive does not thereby become a de facto life sentence, and the prospect of dying in custody is a matter for executive mercy rather than judicial sentencing.
  • A sentencing starting point at the top of the available range is not automatically manifestly excessive; the nature and circumstances of the particular offending may warrant it, as was found here in relation to a brutal, premeditated murder carried out to conceal drug offending.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 23, 44, 61
- International Covenant on Civil and Political Rights, Article 26

Cases:
- Lowe v R (1984) 154 CLR 606; [1984] HCA 46
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- Street v Queensland Bar Association (1989) 168 CLR 461; [1989] HCA 53
- Green & Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Wong v R (2001) 207 CLR 584; [2001] HCA 64
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Hili [2010] HCA 45; (2010) 242 CLR 520
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- PG v R [2017] NSWCCA 179
- Tuivaga v R [2015] NSWCCA 145
- R v BWT (2002) 54 NSWLR 241; [2002] NSWCCA 60
- R v Cameron, Forward and Wilkinson [2016] NSWSC 1342
- R v Qaumi, Qaumi and Qaumi (Sentence) [2017] NSWSC 774
- Tan v R [2014] NSWCCA 96
- Ta'ala v R [2008] NSWCCA 132
- Barton v R [2009] NSWCCA 164
- Des Rosiers v R [2006] NSWCCA 16; (2006) 159 A Crim R 549
- England v R; Phanith v R [2009] NSWCCA 274
- Goebel-McGregor v R [2006] NSWCCA 390