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Court of Criminal Appeal 9 December 2020

Ferris v R

[2020] NSWCCA 325

HomicidePublic order & justice offences
CRIME SENTENCE APPEAL APPEAL DISMISSED

Citation: Ferris v R [2020] NSWCCA 325
Court: NSW Court of Criminal Appeal
Date: 9 December 2020
Judges: Johnson J, R A Hulme J (primary reasons), Wilson J

Background

The applicant (identified by pseudonym due to assistance given to authorities) was sentenced in the District Court at Parramatta in June 2020 for being an accessory after the fact to manslaughter and attempting to influence a witness with intent to hinder a homicide investigation. A further offence of attempting to steal copper piping was taken into account on a Form 1.

The offences arose from events on the night of 9 February 2017 at an industrial site in Yennora. The applicant had accompanied two others to steal copper products. One of those men, a former world-class wrestler, struck the victim with a heavy open-handed blow to the head, causing a serious skull fracture. The victim lost consciousness immediately. Rather than seeking help, the applicant and the principal offender left the scene, returned later to find the victim still alive but making gurgling sounds and lying in blood, and left again. The victim died from blunt force head injury.

After the death, the applicant participated in covering up the crime: disposing of clothing, cleaning his car, and colluding with the principal offender to give false accounts to police. He was ultimately arrested in July 2018 and entered early guilty pleas. Judge Craigie SC imposed an aggregate sentence of 2 years and 10 months with a non-parole period of 1 year and 6 months. The individual indicative sentences were reduced by 40 per cent to reflect the early pleas and assistance to authorities.

  • Whether the sentencing judge erred in setting the starting point for the indicative sentence on the accessory after the fact to manslaughter charge
  • Whether the aggregate sentence was manifestly excessive
  • Whether the applicant had a justifiable sense of grievance arising from a marked disparity with the sentence subsequently imposed on the principal offender (Mihai) for assault causing death

Decision

The Court of Criminal Appeal rejected the contention that the starting point for the accessory offence was excessive. R A Hulme J characterised this as a serious example of a serious offence, noting that the applicant had direct knowledge of the assault, observed the victim's grave condition on two separate returns to the scene, and actively participated in a sustained cover-up. The applicant's subjective case was described as neutral, and the indicative starting sentence was therefore not shown to be outside the available range.

On the question of manifest excess, the Court found no error in the aggregate sentence. The 40 per cent discount for the early guilty pleas and assistance to authorities was substantial, and the resulting sentence of 2 years and 10 months was held to be within the proper range.

The disparity ground received the most detailed treatment. The principal offender, Mihai, was separately sentenced in the District Court (R v Mihai [2020] NSWDC 727) and received a sentence that the Court of Criminal Appeal regarded as inadequate when measured against the seriousness of his conduct. Because the disparity between the two sentences arose not from excessive harshness toward the applicant but from undue leniency toward Mihai, the Court held the applicant could not establish a legitimate grievance. The principle that a co-offender's inadequate sentence cannot ground a successful sentence appeal by a properly sentenced offender was applied.

While the Court acknowledged the applicant might understandably feel aggrieved, it found that the grievance was not objectively legitimate. The appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A sense of grievance arising from disparity with a co-offender's sentence does not give rise to a ground of appeal where the co-offender's sentence was itself inadequate rather than the applicant's sentence excessive.
  • The Court of Criminal Appeal confirmed that the appropriate comparator in a disparity argument is a properly sentenced co-offender: an applicant cannot leverage another party's unduly lenient sentence to obtain a reduction in their own.
  • An offence of being an accessory after the fact to manslaughter may be treated as a serious example of that offence where the offender had direct knowledge of the fatal assault, personally witnessed the victim's deteriorating condition on multiple occasions, and engaged in an ongoing cover-up.
  • A neutral subjective case (no significant mitigating or aggravating personal factors) does not, of itself, bring a starting sentence within an indicative range down from a position that reflects the objective gravity of the offending.
  • Under the aggregate sentencing regime, a substantial discount for guilty pleas and assistance to authorities applied to the indicative sentences feeds through into the aggregate, and the resulting aggregate will not be manifestly excessive merely because the starting indicative sentences were significant.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 4, 24, 25A, 139, 348, 349, 350
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 23, 53A
- Criminal Appeal Act 1912 (NSW), s 5D

Cases:
- R v Mihai [2020] NSWDC 727
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Karout v R [2019] NSWCCA 253
- Lee v R [2020] NSWCCA 244
- Loveridge v R (2014) 243 A Crim R 31; [2014] NSWCCA 120
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Carroll; Carroll v R (2010) 77 NSWLR 45; [2010] NSWCCA 55
- Saraya v R [2015] NSWCCA 63