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Court of Criminal Appeal 9 December 2022

Cross v R

[2022] NSWCCA 261

Assault & violence
OFFENDER

Citation: Cross v R [2022] NSWCCA 261
Court: NSW Court of Criminal Appeal
Date: 9 December 2022
Judge(s): Macfarlan JA (with Button J and Wilson J agreeing)

Background

The applicant pleaded guilty to a specially aggravated form of kidnapping under s 86(3) of the Crimes Act 1900 (NSW), involving the detention of a 19-year-old victim over several days in September 2020 with intent to obtain a financial advantage, while also occasioning actual bodily harm. Two co-offenders, Ms Priddle and Mr Watts, pleaded guilty to the lesser, aggravated form of the same offence under s 86(2)(a), which required only that the offence was committed in company, without the additional element of actual bodily harm.

The sentencing judge imposed a term of 4 years and 6 months with a non-parole period of 2 years and 6 months on the applicant. Ms Priddle received 3 years with an 18-month non-parole period, and Mr Watts received 2 years and 3 months with a 12-month non-parole period. All three were sentenced by the same judge on the same day.

The applicant sought leave to appeal on the ground of parity, arguing that the difference between her sentence and Ms Priddle's gave her a justifiable sense of grievance.

  • Whether the applicant had a justifiable sense of grievance when her sentence was compared to that imposed on Ms Priddle, given both arose from the same criminal episode but involved different charges carrying different maximum penalties.
  • Whether the stronger subjective circumstances of the applicant (including her disadvantaged personal history) were sufficient to narrow the gap in objective seriousness between the two offenders.
  • Whether the principle that sentence severity increases exponentially rather than linearly affected the parity analysis.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Macfarlan JA, with whom Button J and Wilson J agreed, held that the sentencing judge had explicitly and carefully addressed parity and that the difference in sentences was not outside the range reasonably open.

A central distinction was that the applicant was convicted of the specially aggravated offence under s 86(3), which carries a maximum of 25 years and requires both commission in company and the occasioning of actual bodily harm. Ms Priddle was convicted under s 86(2)(a), the aggravated form carrying a maximum of 20 years, which required only commission in company. The objective seriousness of the applicant's conduct was found to be considerably greater than Ms Priddle's.

The applicant argued that her stronger subjective case, arising from her deprived background, reduced the significance of the difference in objective seriousness. The Court accepted that both offenders had subjective factors operating in their favour, but in different directions: the applicant's moral culpability was reduced by her personal history, while Ms Priddle's stronger rehabilitation prospects and lower risk of reoffending also operated to reduce her sentence. The Court found the subjective difference was not sufficient to bring the sentence disparity outside the acceptable range.

The Court also accepted, consistent with R v MAK, that sentence severity increases exponentially rather than linearly as sentences lengthen, meaning a raw numerical comparison of terms can understate the true gap. However, even accounting for this principle, the difference between the two sentences did not establish an unacceptable disparity.

Orders Made

• Leave to appeal granted
• Appeal dismissed

Key Takeaways

  • A parity challenge requires more than a numerical difference in sentence length; the comparison must account for differences in the charges, their respective maximum penalties, and the objective seriousness of each offender's conduct.
  • Where co-offenders are convicted of differently graded forms of the same offence, a sentencing court is entitled to impose materially different sentences reflecting those differences, even when the underlying events arise from identical circumstances.
  • The principle established in R v MAK that sentence severity increases exponentially with length is a relevant factor in parity analysis, but it does not automatically render a sentencing disparity unreasonable.
  • No heightened threshold applies simply because co-offenders were sentenced by the same judge on the same day; the Court of Criminal Appeal confirmed, following Borg v R, that the same parity principles govern regardless of whether sentencing occurred before the same or different judges.
  • Subjective factors favouring different offenders in different ways (reduced moral culpability versus stronger rehabilitation prospects) can legitimately point in the same direction, both reducing individual sentences, without eliminating a justifiable difference between them.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86 (kidnapping: basic, aggravated and specially aggravated offences)

Cases
- Afu v R [2017] NSWCCA 246
- Baquiran v R [2014] NSWCCA 221
- Borg v R [2019] NSWCCA 129
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Lloyd v R [2017] NSWCCA 303
- R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- Smith (a pseudonym) v R [2022] NSWCCA 123