McKinley v The Queen

[2016] NSWCCA 53

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

McKinley v R [2016] NSWCCA 53

Hearing dates:

8 April 2016

Decision date:

08 April 2016

Before:

Basten JA at [1];
McCallum J at [11];
Davies J at [12]

Decision:

With respect to the sentence imposed by Wilson SC DCJ in the District Court at Newcastle on 23 October 2014,

 

(1)   extend the time for filing the application for leave to appeal to 24 November 2015;

 (2)   refuse leave to appeal against sentence.

Catchwords:

CRIMINAL LAW – sentencing – application for leave to appeal – parity with co-offender – identical sentences – variation in non-parole periods due to refusal to find “special circumstances” for purposes of Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 – different finding for co-offender – no error shown

Legislation Cited:

Crimes Act 1900 (NSW), s 97
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases Cited:

Ruge and Cormack v R [2015] NSWCCA 153

Category:

Principal judgment

Parties:

Jade Alyce McKinley (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr K Averre (Applicant)
Mr N Adams (Respondent)

  Solicitors:
Criminal & Traffic Lawyers (Applicant)
C Hyland, Solicitor for Public Prosecutions (Respondent)

File Number(s):

2013/361121

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

23 October 2014

Before:

Wilson SC DCJ

File Number(s):

2013/361121

Judgment

1. BASTEN JA: On 23 October 2014 Judge Wilson SC sentenced the applicant for one offence of robbery in company pursuant to s 97(1) of the Crimes Act 1900 (NSW). The sentence imposed was one of 3 years 10 months to date from 1 March 2014, with a non-parole period of 2 years 10 months. At the same time, the applicant was sentenced for the breach of a number of bonds which appear to have involved nine separate offences. For each she was sentenced to three months imprisonment, to be served concurrently and to date from 30 November 2013. The sentence for robbery therefore commenced the day following the completion of the sentences with respect to the bonds. Given the number of offences involved and the fact that all sentences were to be served concurrently, there could be no error in requiring the full term of three months to be served before commencing the fresh sentence.

2. The only basis of challenge was that the applicant had a justifiable sense of grievance when comparing the sentence imposed on her for the robbery with the sentence imposed on her co-offender, Fine Anthony Langi.

3. The applicant’s submissions stated that she was sentenced to 3 years 10 months imprisonment with a non-parole period of 2 years 7 months: that was not correct; the non-parole period was 2 years 10 months (34 months), with a balance of term of 12 months. That correction is important because the ratio of mandatory custody to the balance of the term reflected the operation of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW); the balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence unless the court decides there are special circumstances for it being more. The sentencing judge expressly declined to find that there were special circumstances, for reasons which are not challenged. There could, therefore, be no separate complaint based on the length of the non-parole period.

4. The co-offender was sentenced by Cogswell DCJ later than the applicant, namely on 17 November 2014. Mr Langi was sentenced to an aggregate term for the offence of robbery together with breaches of bonds with respect to four offences. Two factors are significant for present purposes. First, the indicative sentence for the robbery in company was specified as 3 years 10 months, being identical with the sentence imposed on the applicant. Secondly, in specifying a non-parole period, Cogswell DCJ found there were special circumstances with respect to the co-offender, thus entitling him to vary the statutory proportion so as to permit a longer period to be served in the community.

5. It is therefore apparent that the only comparable factor is the head sentence for the robbery in company, which was identical for each offender.

6. The applicant sought to avoid this conclusion by calling in aid the approach adopted by this Court in Ruge and Cormack v R [2015] NSWCCA 153. In a judgment delivered by Hamill J (Leeming and Simpson JJA agreeing) the applicant asserted that the sentencing judge had erred in failing to find special circumstances. Hamill J noted at [29] that “the way in which the matter was argued involved the submission that that failure gave rise to a justifiable sense of grievance when comparison is made with the non-parole component of the sentence later imposed on [a co-offender].”

7. The case turned on its own facts and the arguments raised. The error identified was “an unjustified inconsistency, in the approach to special circumstances taken in the two cases”: at [36]. There was, as a result, a disparity between the respective non-parole periods. Unlike the present case, Ruge involved an explicit challenge to the failure of the judge to find special circumstances; no such challenge was available in the present case.

8. In these circumstances, there is no need to set out the facts involved in the offending, nor the subjective circumstances of the offender. All of the relevant matters were set out by the sentencing judge in her reasons. They demonstrate that the offender played a significantly greater role in the offending. The application is entirely without merit.

9. The application was filed late, but only a few days after the expiration of the last extension granted. That date was 12 months after the sentencing of the co-offender. The judgment in that matter was apparently not received until 24 August 2015. The unwarranted delay was probably about two months, not a long period by some standards, but one of concern as the applicant had, by the time the application was filed, served more than half her non-parole period. Nevertheless, she should have an extension of time, although it will provide no benefit.

10. The Court should make the following orders:

With respect to the sentence imposed by Wilson SC DCJ in the District Court at Newcastle on 23 October 2014,

(1)   extend the time for filing the application for leave to appeal to 24 November 2015;

(2)   refuse leave to appeal against sentence.

11. McCALLUM J: I agree with Basten JA.

12. DAVIES J: I agree with Basten JA.

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