CRIMINAL LAW - Appeal against sentence - murder (Crimes Act 1900 (NSW) s18(1)(a)) - assault with intent to rob in company (Crimes Act 1900 (NSW) s97(1)) - principle of parity - distinction between criminal responsibility and moral culpability - parity principle not engaged - whether the allocation of a discount for plea of guilty by the trial judge constituted a denial of procedural fairness - applicant afforded opportunity to make submissions - appeal dismissed.
COUNSEL H Dhanji SC/I McLachlan - (Applicant) N Noman - (Crown Respondent) SOLICITORS Legal Aid NSW - (Applicant) Solicitor for Public Prosecution) - (Crown Respondent)
File Number(s):
2009/7539
Decision under appeal
Date of Decision:
2010-03-19 00:00:00
Before:
Howie J
File Number(s):
2009/7539
Judgment
WHEALY JA : I agree with Latham J.
LATHAM J : This is an application for leave to appeal against sentences imposed following pleas of guilty to one count of Murder and two counts of Assault with Intent to Rob in Company (s 97(1) Crimes Act1900). Murder carries a maximum penalty of life imprisonment. The robbery offences each carry a maximum penalty of 20 years imprisonment.
Fixed terms of 12 months and 6 months imprisonment were imposed in respect of the robbery offences. A non parole period of 12 years with a balance of term of 6 years and 9 months was imposed on the murder count. The total sentence of imprisonment was 19 years and 6 months, including a non parole period of 12 years and 9 months.
The sentence imposed by the same judge (Howie J) on the co-offender (LR) for Murder and one count of Assault with Intent to Rob in Company is said to give rise to a justifiable sense of grievance on the part of the applicant (Ground 1). It is further claimed that the applicant was denied procedural fairness by virtue of the judge's revision of the discount for the pleas of guilty from 20% to 15% without hearing further from the applicant (Ground 2).
The Offences
Shortly after 11 pm on 13 June 2008, the applicant (then aged 17…
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
AGLC
KR v R [2012] NSWCCA 32
Case
[2012] NSWCCA 32
Decision Date
CaseChat Overview and Summary
KR was convicted of the murder of a person, along with an accomplice, and the assault of another person with intent to rob while in company (Crimes Act 1900 (NSW)). The case was heard in the Court of Criminal Appeal, where KR appealed against the sentence imposed by the trial judge. The central issue in the appeal was whether the trial judge's allocation of a discount for the plea of guilty constituted a denial of procedural fairness. Additionally, the court considered the applicability of the principle of parity in relation to KR's sentence.
The Court of Criminal Appeal found that the principle of parity was not engaged in this case. The principle of parity pertains to the distinction between criminal responsibility and moral culpability, and the court held that it did not apply here. Furthermore, the court determined that KR was afforded an opportunity to make submissions regarding the discount for the plea of guilty, thereby satisfying procedural fairness. As a result, the appeal was dismissed.
The court held that the trial judge's allocation of a discount for the plea of guilty did not constitute a denial of procedural fairness, as KR had the opportunity to make submissions on the matter. The court found that the principle of parity was not applicable in this case, and therefore the sentence imposed by the trial judge was upheld. Consequently, the appeal was dismissed, and the sentence remains valid.