Cambey v The Queen - [2013] NSWCCA 170

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cambey v R [2013] NSWCCA 170
Hearing dates: 9 July 2013
Decision date: 09 July 2013
Before: Basten JA at [1];
Price J at [34];
Campbell J at [43]
Decision:
1. Grant leave to appeal against sentence.
2. Appeal upheld.
3. Sentence imposed by the sentencing judge is set aside and in place thereof the applicant is sentenced to a period of imprisonment consisting of a non-parole period of 4 years and 10 months commencing on 16 September 2008 and expiring on 15 July 2013 and a balance of term of 2 years and 4 months expiring on 15 November 2015.
The earliest date on which the applicant will eligible for release on parole is 15 July 2013.

Catchwords:
CRIMINAL LAW - appeal - sentencing - parity between co-offenders - whether difference between sentences imposed on co-offenders inadequately reflected disparity between actions - each offender convicted of manslaughter - co-offender administered blows with metal pole and punches to head of victim - applicant provided aid and encouragement and kicked victim - kicking not instrumental in causing death - trial judge found co-offender's offending more serious than that of applicant - applicant offered to plead to manslaughter - plea rejected - discount given for plea - whether 14-15% differential between sentences sufficient to reflect disparity
PROCEDURE - criminal appeal - whether further evidence should be accepted on appeal against sentence - solicitor's affidavit regarding offer to plead - additional evidence usually only admitted for purpose of re-sentencing - where material provided not useful in resolving matters in issue
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6
Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
House v The King [1936] HCA 40; 55 CLR 499
Carney v R; Cambey v R [2011] NSWCCA 223
Category: Principal judgment
Parties: Luke Joseph Cambey (Applicant)
Regina (Respondent)
Representation:
Counsel:

Mr N Steel (Applicant)
Ms T L Smith (Respondent)
Solicitors:
P O'Brien (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s): CCA 2009/12114
Decision under appeal

Jurisdiction:

9111

Citation:

R v Carney; R v Cambey [2012] NSWSC 1344

Date of Decision:

2012-11-07 00:00:00

Before:

Schmidt J

File Number(s):

SC 2009/12114

Judgment

BASTEN JA: On 29 January 2006, Derrick Reid was viciously assaulted in his unit at Cartwright and died shortly thereafter from his injuries. The principal offenders were Todd Carney and Luke Cambey. At a trial conducted in July 2012 each was convicted of manslaughter. The presiding judge, Schmidt J, sentenced each offender on 7 November 2012. The present applicant, Luke Cambey, was sentenced to a non-parole period of five years and two months with an additional term of two years and six months, giving a total sentence of seven years and eight months. He seeks leave to appeal against that sentence.

The grounds of appeal were twofold, but were interrelated. The first ground was that his culpability was less than…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWCCA 170
Decision Date: 09 July 2013

CaseChat Overview and Summary

The appellant, Cambey, appealed against the sentence imposed by the trial judge, contending that the disparity in sentences between him and his co-offender was inadequate. Both Cambey and his co-offender were convicted of manslaughter following an incident where the co-offender inflicted severe blows to the victim's head with a metal pole and punched the victim. Cambey provided aid and encouragement, and also kicked the victim, though his actions were not the direct cause of death. The trial judge found the co-offender's actions to be more serious than Cambey's and sentenced them accordingly. Cambey had offered to plead guilty to manslaughter, but this plea was rejected by the trial judge. The appeal focused on whether the 14-15% differential in sentences was sufficient to reflect the disparity in the seriousness of their respective offences.

The key legal issues in this appeal were whether the difference in sentences imposed on the appellant and his co-offender adequately reflected the disparity in their actions and whether further evidence, specifically an affidavit from the appellant's solicitor concerning the rejected plea offer, should be considered on appeal. The appellant argued that the plea offer, which was rejected, should have warranted a greater discount in sentencing. The court had to determine the appropriate weight to give to the rejected plea offer and whether it warranted a more significant reduction in the sentence.

The court held that while the plea offer was a relevant factor, it did not warrant a substantial discount in the sentencing. The disparity in sentences, which accounted for the differences in the nature and extent of their respective contributions to the crime, was deemed appropriate. The court noted that additional evidence, such as the solicitor's affidavit, was usually only admitted for the purpose of re-sentencing, and in this case, it did not materially assist in resolving the issues at hand. Consequently, the court found that the 14-15% differential was sufficient to reflect the disparity between the appellant's and his co-offender's actions. The appeal was dismissed, and the original sentences stood.

The final orders confirmed that the sentences imposed by the trial judge were upheld, with no changes to the terms of sentencing. The court rejected the appeal and maintained the disparity in the sentences as reflective of the differences in the respective roles and contributions of the appellant and his co-offender in the offence.

Orders