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R v McIvor

R v McIvor

Case [2002] NSWCCA 490 10 December 2002

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Reported Decision:
(2002) 136 A Crim R 490

New South Wales

Court of Criminal Appeal

CITATION: R v McIvor [2002] NSWCCA 490

FILE NUMBER(S): CCA 60254/02

HEARING DATE(S): 24 July 2002

JUDGMENT DATE:
10 December 2002

PARTIES :

Regina v Nathan McIvor

JUDGMENT OF: Heydon JA at 1; Levine J at 12; Carruthers AJ at 13

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 02/21/3191
01/21/3361

LOWER COURT JUDICIAL
OFFICER : Moore ADCJ

COUNSEL : Mr G E Smith (Crown)
Ms A Francis (Respondent)

SOLICITORS: S E O'Connor (Crown)
D J Humphreys (Respondent)

CATCHWORDS: Criminal law - robbery in company - Crimes Act 1900 (NSW) s 97(1) - sentence - adequacy - Crown appeal - failure of Crown appeal against inadequacy of sentence imposed on co-offender - failure of that appeal turning on Crown delay in filing appeal - relevance to instant appeal - absence of objective or material subjective differences between circumstances of each offender - whether different sentences unjust

LEGISLATION CITED: Crimes Act 1900

CASES CITED:
R v Hernando [2002] NSWCCA 489
Lowe v R (1984) 154 CLR 606
R v Diamond (Court of Criminal Appeal, unreported, 18 February 1993)
R v Steele (Court of Criminal Appeal, unreported, 17 April 1997)

DECISION: Appeal dismissed

60254/02

HEYDON JA
LEVINE J
CARRUTHERS AJ
10 December 2002

REGINA v Nathan McIVOR

Criminal law – robbery in company – Crimes Act 1900 (NSW) s 97(1) – sentence – adequacy – Crown appeal – failure of Crown appeal against inadequacy of sentence imposed on co-offender – failure of that appeal turning on Crown delay in filing appeal – relevance to instant appeal – absence of objective or material subjective differences between circumstances of each offender – whether different sentences unjust

The respondent was charged with two counts of robbery in company contrary to Crimes Act 1900 (NSW) s 79(1). The maximum penalty was 20 years’ imprisonment. On the first count the sentencing judge sentenced the respondent to 2 years’ imprisonment with a non-parole period of 7 months and 7 days. On the second count the sentence was for a fixed term of 6 months to be served concurrently with the first sentence, dated from the time of arrest and imprisonment. He was sentenced after sentences were imposed on his co-offender, Janian Hernando. The Crown had appealed against the sentences imposed on Hernando on grounds that the sentences imposed were manifestly inadequate. The appeal failed. The instant appeal was a Crown appeal brought on the same grounds against the respondent’s sentences.

(Heydon JA, Levine J and Carruthers AJ agreeing), dismissing the appeal,

While the subjective features of the two offenders are not identical, and while McIvor’s position is marginally worse because when he committed the offences he breached a Local Court bond, there is no doubt that if the sentencing judge came to the right conclusion in relation to Hernando, he came to the right conclusion in relation to McIvor. Similarly, if he erred in one case he erred in 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 R v McIvor

Details

AGLC: R v McIvor [2002] NSWCCA 490
Case: [2002] NSWCCA 490
Decision Date: 10 December 2002

CaseChat Overview and Summary

In the case of R v McIvor, the defendant was charged with robbery in company under section 97(1) of the Crimes Act 1900 (NSW). The defendant participated in a robbery with others, and the trial court found him guilty, subsequently imposing a sentence. The Crown, unsatisfied with the severity of the sentence, appealed to the higher court, arguing it was inadequate. The appeal hinged on the Crown's previous unsuccessful appeal against the sentence of a co-offender, which was dismissed due to a delay in filing the appeal. This precedent was considered in the context of the current appeal, focusing on whether there were objective or subjective differences between the circumstances of the co-offender and the defendant that could justify different sentences.

The central legal issues before the court were whether the sentence imposed was adequate and, if not, whether the delay in the previous appeal against the co-offender's sentence should influence the outcome of this appeal. The court had to consider the principles of sentencing consistency and the impact of procedural delays on the fairness and integrity of the appeal process. The key question was whether the absence of any material differences in the circumstances of the co-offender and the defendant meant that similar sentences should have been imposed, and if not, what factors could justify a disparity.

The court found that there were no significant differences in the roles or circumstances of the defendant and the co-offender, and that the delay in the previous appeal did not provide a valid basis for differing sentences. It concluded that the sentences should reflect the gravity of the offence and the need for consistency in sentencing. The Crown's appeal was dismissed, and the original sentence was upheld as adequate. The court emphasised the importance of adhering to sentencing principles and ensuring that any variations in sentences are justified by objective differences in the circumstances of the offenders.

The court's final orders confirmed the sentence imposed by the trial court as just and appropriate, dismissing the Crown's appeal. It highlighted the necessity for the Crown to demonstrate clear and substantial differences in the circumstances of co-offenders to justify varying sentences, absent which, consistency in sentencing must be maintained.

Orders