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Court of Criminal Appeal 16 April 1999

Regina v McKendrick [1999] NSWCCA 87 revised - 13

[1999] NSWCCA 87

Theft & propertyPublic order & justice offences
CRIMINAL LAW AND PROCEDURE SENTENCE PARITY WITH CO OFFENDERS

Citation: Regina v McKendrick [1999] NSWCCA 87 revised - 13/08/99
Court: NSW Court of Criminal Appeal
Date: 16 April 1999
Judge(s): Grove J, Bell J

Background

The applicant was the manager of a Mobil service station in Burwood who provided detailed information to co-offenders to facilitate a street robbery. The victim was a female employee of a similar service station in Ashfield who was carrying just under $5,000 in takings to the bank. The applicant's insider knowledge, including the amount being carried, the bank's address, and the expected timing, enabled the robbery to be carried out.

The applicant was convicted after a trial without jury before Grogan DCJ in the Sydney District Court on a charge of being an accessory before the fact to robbery. He was sentenced to a total term of two years and eight months penal servitude, with a minimum term of two years commencing 19 September 1997. The principal offender and two other participants, one of whom shared the same accessory charge, were dealt with separately by a different District Court judge.

The applicant sought leave to appeal the severity of his sentence on a single ground: that his sentence was disproportionately harsh compared to the sentences received by his co-offenders, particularly a man named Shaitly, who faced the same accessory before the fact charge.

  • Whether the disparity between the applicant's sentence and those received by co-offenders, particularly Shaitly, was sufficient to warrant intervention by the Court of Criminal Appeal on parity grounds.
  • Whether the sentencing judge erred in concluding that parity considerations did not require any adjustment to the sentence imposed on the applicant.

Decision

The sentencing judge had acknowledged the sentences imposed on co-offenders but concluded that parity did not compel any particular adjustment, noting differences between the applicant and his co-offenders. Shaitly and the principal offender Sljivar had both pleaded guilty, Sljivar gave evidence against the applicant, and Shaitly received additional discounts under what was then s 442B of the Crimes Act for assistance provided to authorities in other proceedings. On that basis, the sentencing judge regarded the parity question as effectively set aside.

The Court of Criminal Appeal, however, examined the actual time Shaitly was required to serve specifically attributable to this offence. That analysis revealed Shaitly served approximately four months and eight days for his participation. Crown counsel conceded the arithmetic and accepted that, if correct, the contrast with the applicant's two-year minimum term would be likely to justify appellate intervention.

Grove J found that the "yawning gap" between the two sentences gave rise to a justified sense of grievance on the applicant's part. While acknowledging the differences between the two offenders, including Shaitly's entitlement to plea and cooperation discounts and his more extensive criminal record, the court concluded those differences did not explain or justify a disparity of that magnitude. The court also noted that the delay in bringing the appeal before the Court had not been caused by the applicant, a factor relevant to the practical relief that could be granted.

Because the minimum term had already been served to a degree exceeding 18 months by the time of the appeal hearing, the Court concluded that no further minimum term was warranted as a matter of parity.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence quashed.
  • Applicant resentenced to a total term of two years penal servitude, comprising a minimum term of 18 months commencing 19 September 1997 and expiring 18 March 1999.
  • Applicant directed to be released to parole from 18 March 1999, subject to supervision by the Probation and Parole Service.

Key Takeaways

  • A convicted offender may appeal a sentence on parity grounds where a co-offender received materially more lenient treatment, and the disparity is sufficient to give rise to a justified sense of grievance.
  • Differences between co-offenders, such as guilty pleas, cooperation discounts, and prior criminal records, are relevant to parity analysis but do not automatically foreclose appellate intervention if the resulting disparity remains extreme.
  • Where a co-offender held the same charge and served only four months compared to the applicant's two-year minimum term, the Court of Criminal Appeal treated the gap as too large to be explained by those differences alone.
  • Delay in bringing an appeal before the court, where attributable to administrative factors rather than the applicant, does not count against the applicant and may affect the practical nature of any re-sentencing.
  • In resentencing, the Court of Criminal Appeal limited the minimum term to the period already served, reflecting both the parity principle and the time elapsed since the original sentence commenced.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 442B (assistance to authorities, now superseded)

Cases:
- The Queen v Lowe (cited on parity principles; full citation not provided in judgment)
- The Queen v Postiglione (High Court; cited on parity principles; full citation not provided in judgment)