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Court of Criminal Appeal 5 October 2022

Moran v R

[2022] NSWCCA 217

Assault & violencePublic order & justice offences
SENTENCING PARITY NO QUESTION OF PRINCIPLE

Citation: Moran v R [2022] NSWCCA 217
Court: NSW Court of Criminal Appeal
Date: 5 October 2022
Judges: Beech-Jones CJ at CL, Price J, Yehia J

Background

The appellant pleaded guilty to two separate kidnapping offences committed in 2018. The first involved the kidnapping and assault of a man who was set upon in his home garage by five assailants, struck with a machete causing serious injury, and driven to a rural area before being abandoned. The second involved detaining a woman to obtain information about a third party. The appellant was sentenced for these offences on different occasions by different District Court judges.

A co-offender, who participated in both kidnappings and committed a third offence of arson, was sentenced on the same day as the appellant for the second kidnapping. That co-offender received an aggregate sentence of 7 years and 6 months with a non-parole period of 5 years across all three offences. The appellant's combined sentences produced a total of 6 years' imprisonment with a non-parole period of 4 years and 6 months.

The sole ground of appeal in both applications was parity: the appellant contended that the co-offender's sentence was so much lower, relative to the offences they shared, that it produced a justifiable sense of grievance on the appellant's part.

  • Whether the sentences imposed on the appellant were infected by a failure of parity when compared with the aggregate sentence imposed on the co-offender for three offences, two of which were the same offences committed by the appellant
  • Whether any unjustifiable disparity between the sentences gave rise to a justifiable sense of grievance warranting appellate intervention
  • Whether an extension of time to appeal the first sentence should be granted

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed both appeals. Beech-Jones CJ at CL, with Price J and Yehia J agreeing, found that the co-offender's sentence did not give rise to a justifiable sense of grievance on the appellant's part.

For the first kidnapping (the Grima offence), the court examined the indicative sentence of 6 years' imprisonment specified for that offence in the co-offender's aggregate. This matched the 6-year head sentence imposed on the appellant for the same offence, demonstrating no disparity at all on that count.

For the second kidnapping (the Fitzpatrick offence), the co-offender received an indicative sentence of 2 years and 6 months, compared to the appellant's sentence of 2 years and 10 months. The court rejected the submission that there was no material difference in the parties' roles. On the agreed facts, the co-offender played a more active role in the Fitzpatrick offence, which would ordinarily have justified an even greater difference in penalty in the co-offender's favour. That difference was offset, however, by the sentencing judge's more favourable findings regarding the co-offender's mental health and other subjective matters. In those circumstances, the court found the marginally higher sentence for the appellant was not unjustifiable.

The court also noted that the totality principle had been applied consistently in both cases. The net effect of the Fitzpatrick sentence on the appellant was only a 6-month increase to his non-parole period, which the court described as relatively lenient in the circumstances. An extension of time to appeal the first sentence was granted, the Crown not having opposed it.

Orders Made

  • The appellant was granted an extension of time to apply for leave to appeal against the sentence imposed by Harris DCJ on 12 March 2020, up to and including 9 June 2022
  • The appellant was granted leave to appeal against the sentence imposed by Harris DCJ on 12 March 2020 and the sentence imposed by Buscombe DCJ on 29 January 2021
  • Both appeals were dismissed

Key Takeaways

  • A difference in the roles played by co-offenders in a serious offence such as kidnapping is capable of justifying a difference in sentence, even where the Crown does not press that distinction
  • The Court of Criminal Appeal confirmed that parity analysis requires a careful comparison of each co-offender's individual circumstances, including subjective factors such as mental health findings, which may offset what would otherwise be a role-based sentencing differential
  • Indicative sentences specified under s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) within an aggregate sentence provide a meaningful basis for comparing co-offender sentences on a charge-by-charge level
  • No justifiable sense of grievance arose where the sentencing outcomes, properly analysed across all relevant factors, disclosed no unjustifiable disparity between the appellant and the co-offender
  • In dismissing the appeals, the court reaffirmed that parity is not a mechanical comparison of headline figures; the totality of each offender's circumstances must be weighed before any disparity can be characterised as unjustifiable

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 86(2)(a), 86(3), 195(1A)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 53A(2)(b)
- Drug Court Act 1998 (NSW), s 18B

Cases
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DS v R [2014] NSWCCA 267
- Cameron v R [2017] NSWCCA 229
- Kelly v R [2017] NSWCCA 256
- Miles v R [2017] NSWCCA 266
- Martellotta v R [2021] NSWCCA 168