Cross v The The King - [2022] NSWCCA 261

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cross v R [2022] NSWCCA 261
Hearing dates: 11 October 2022
Date of orders: 09 December 2022
Decision date: 09 December 2022
Before: Macfarlan JA at [1];
Button J at [58];
Wilson J at [59]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME — appeals — appeal against sentence on parity ground — offence of in company detaining a person with intent to obtain financial advantage and actual bodily harm occasioned contrary to s 86(3) of the Crimes Act 1900 (NSW) — whether applicant has a justifiable sense of grievance when sentence is compared to that of co-offender

Legislation Cited:
Crimes Act 1900 (NSW), s 86

Cases Cited:
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

Category: Principal judgment
Parties: Leticia Maree Cross (Applicant)
Rex (Respondent)
Representation:
Counsel:
C O’Neill (Applicant)
C O Gleeson (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2020/311030
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

29 November 2021

Before:

Tupman DCJ

File Number(s):

2020/311030

Judgment

MACFARLAN JA: The applicant, Ms Leticia Cross, pleaded guilty to an offence committed between 26 and 30 September 2020 of detaining a person, Mr William Latter, in company, with intent to obtain financial advantage and occasioning actual bodily harm, contrary to s 86(3) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 25 years’ imprisonment. No standard non-parole period applies in respect of it.
On 29 November 2021 the applicant was sentenced by Tupman DCJ with two co-offenders, Ms Kristy-Leigh Priddle and Mr Jason Watts, who pleaded guilty to offences arising out of the same circumstances as those giving rise to the applicant’s offence. The sentences imposed were as follows:

The applicant was relevantly sentenced for the specially aggravated form of the offence under s 86(3) to an overall term of imprisonment of 4 years and 6 months commencing on 30 October 2020, with a non-parole period of 2 years and 6 months (a ratio of 55.5%). Her non-parole period expires on 29 April 2023 and the balance of the term will expire on 29 April 2025.

Ms Priddle was sentenced for the aggravated form of the offence, contrary to s 86(2)(a) of the Crimes Act. A maximum penalty of 20 years’ imprisonment is prescribed for the offence. No standard non-parole period applies. She was sentenced to an overall term of imprisonment of 3 years commencing on 29 October 2020, with a non-parole period of 18 months. Her non-parole period expired on 28 April 2022 and the…

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.

Continue reading Cross v The The King

Details

AGLC: Cross v The The King [2022] NSWCCA 261
Case: [2022] NSWCCA 261
Decision Date: 09 December 2022

CaseChat Overview and Summary

The case of Cross v The King involved an appeal against the sentence imposed by the District Court of New South Wales. The applicant, Cross, was convicted of in company detaining a person with intent to obtain financial advantage and causing actual bodily harm, contrary to section 86(3) of the Crimes Act 1900 (NSW). The legal issue before the court was whether the sentence imposed on Cross was unjust when compared to the sentence of his co-offender, who was sentenced to a significantly lesser term. The applicant argued that he had a justifiable sense of grievance due to the disparity in sentencing.

The court considered the principles of parity in sentencing, which require that sentences imposed on co-offenders be comparable, taking into account the degree of each offender's participation in the crime. The court recognised that while the sentences should not be identical, they should be of a similar order of magnitude. In this case, the court found that the disparity in sentences was significant and unjust, particularly given that both offenders had played a substantial role in the crime. The court held that the sentencing judge had not adequately addressed the principle of parity in sentencing, leading to a manifestly unjust result.

The appeal was allowed, and the matter was remitted to the District Court for re-sentencing. The court emphasised the importance of ensuring that sentences reflect the culpability of each offender and that the principle of parity is properly applied. The court did not specify the exact sentence to be imposed but directed that the re-sentencing take into account the principle of parity and the role of each offender in the crime. The final orders were that the conviction be upheld, but the sentence was to be reconsidered by the District Court in light of the court's findings.

Orders