Citation: Kelly v R [2017] NSWCCA 256
Court: NSW Court of Criminal Appeal
Date: 27 October 2017
Judges: Basten JA; Beech-Jones J; Fagan J
Background
The applicant was sentenced by Judge Pickering SC in the District Court on 23 September 2016 for attempted armed robbery, receiving 5 years and 11 months imprisonment with a non-parole period of 3 years and 6 months. The offence arose from a failed robbery of a butcher shop at Moorebank Shopping Complex on 15 November 2015. The applicant had participated in reconnaissance and vehicle hire for the attempt, while his co-offender Steven Kelly entered the shop and brandished a large knife at staff and customers.
Steven Kelly had been sentenced separately by Judge English on 7 March 2016. His Honour imposed an aggregate sentence of 9 years and 6 months with a non-parole period of just over 7 years, covering four offences: the common attempted armed robbery offence, a separate armed robbery, an aggravated break and enter, and a larceny. Judge English specified an indicative sentence of 6 years for the common offence under the aggregate sentencing provisions.
The applicant sought leave to appeal on the single ground that his sentence was disproportionately harsh compared to Steven Kelly's, giving rise to a justifiable sense of grievance. The applicant argued that only a small portion of Steven Kelly's actual custody was truly attributable to the offence they committed together.
Legal Issues
- Whether the applicant had a justifiable sense of grievance arising from the disparity between his sentence and Steven Kelly's aggregate sentence, engaging the parity principle from Postiglione v The Queen (1997) 189 CLR 295.
- Whether a parity comparison should focus on the portion of Steven Kelly's aggregate sentence said to be "solely referable" to the common offence, calculated by subtracting the longest indicative sentence for unrelated offences.
- Whether, when aggregate sentences are involved, the correct comparator is the indicative sentence specified for the common offence.
Decision
Beech-Jones J (with whom Basten JA and Fagan J agreed) rejected the sole ground of appeal. His Honour examined the full sentencing circumstances of both offenders, noting the significant differences in their criminal histories, ages, roles, and the nature of their unrelated offending. Steven Kelly had an extensive record of serious violence, had committed additional serious offences both before and after the common offence, and was on a more serious form of conditional liberty at the time. These factors justified a substantially higher overall sentence.
On the parity comparison itself, the Court held that comparing the actual periods in custody is a relevant consideration but not determinative. The proper approach requires comparing all components of each offender's sentence, including sentences being served for unrelated offences. Viewed in this way, no justifiable sense of grievance arose: the differences in overall criminality, subjective circumstances, and the seriousness of Steven Kelly's additional offending explained the difference in outcomes.
The Court also addressed the applicant's specific arithmetic argument. Fagan J rejected the proposition that one can isolate the portion of an aggregate sentence "solely referable" to the common offence by subtracting the longest indicative sentence for unrelated offences. Even if such a calculation were permissible in principle (which Fagan J did not accept), the correct comparison on a parity appeal is the portion attributable to the common offence, not solely attributable to it. Any apparent advantage to Steven Kelly arising from the mechanics of aggregation does not engage the parity principle.
In practical terms, the Court found the proper comparison was between the applicant's sentence and Steven Kelly's indicative sentence of 6 years for the common offence. Against that comparator, the applicant's sentence of 5 years and 11 months disclosed no basis for grievance. The non-parole period of the applicant's sentence was proportionate even accounting for differences in roles and subjective circumstances.
Orders Made
- Application for leave to appeal refused.
Key Takeaways
- The Court of Criminal Appeal confirmed that the parity principle requires a comparison of all components of each co-offender's sentence, including any sentences for unrelated offending, not merely the period of actual custody attributable to a shared offence.
- Comparing actual periods in custody is a factor to be taken into account in a parity analysis, but it is not determinative on its own.
- Where a co-offender has been sentenced by way of aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999, the appropriate comparator for the common offence is the indicative sentence specified under s 53A(2)(b), not a residual figure derived by subtracting unrelated indicative sentences from the aggregate.
- Any apparent advantage flowing to a co-offender from the process of sentence aggregation, such as effective concurrency between a shared offence and unrelated offences, does not itself engage the parity principle.
- Significant differences in criminal history, age, role in the offending, and seriousness of unrelated offending can justify substantially different sentencing outcomes between co-offenders without giving rise to a justifiable sense of grievance.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 97, 111, 117, 344A, 346
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Weapons Prohibition Act 1998 (NSW), s 7
Cases:
- Postiglione v The Queen (1997) 189 CLR 295 (leading High Court authority on the parity principle)
- Green v The Queen (2011) 244 CLR 462
- Lowe v The Queen (1984) 154 CLR 606
- Mill v The Queen (1988) 166 CLR 59
- Kelly v R [2017] NSWCCA 82 (earlier appeal by the co-offender Steven Kelly)
- Ayik v Regina [2013] NSWCCA 119
- Bell v R [2008] NSWCCA 206
- El-Helou v R [2014] NSWCCA 209
- Tran v Regina [2006] NSWCCA 266