R v Michael

[2002] NSWCCA 154

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R v Michael [2002]  NSWCCA 154

FILE NUMBER(S):
60240/01

HEARING DATE(S):            01/05/02

JUDGMENT DATE: 01/05/2002

PARTIES:
Regina
v
Nathan Isaac Michael

JUDGMENT OF:      Meagher JA Bell J McClellan J   

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S):        L018 of 1997

LOWER COURT JUDICIAL OFFICER:     Sully J

COUNSEL:
Applicant: P G Berman SC
Crown: G I O Rowling

SOLICITORS:
Applicant: Bird & Associates
Crown: S E O'Connor

CATCHWORDS:
Appeal against severity of sentence - whether appellant's sentence should be reduced so as to restore disparity - appeal allowed.

LEGISLATION CITED:
Sentencing Act 1989

DECISION:
1. Appeal allowed; 2. In lieu of the current sentence, sentence to be reduced to a period of eighteen & a half years from 12/09/89 and total sentence to expire on 11/03/08, with non-parole period to expire on 11/09/03.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60240/01

MEAGHER JA
BELL J
McCLELLAN J

Wednesday, 1 May 2002

REGINA v NATHAN ISAAC MICHAEL

Judgment

1. THE COURT:  On 3 July 1990 the applicant, Mr Michael, was found guilty of murder.  He was sentenced to penal servitude for life by Finlay J on 27 July 1990.  Later, he brought an application for a re determination of his sentence pursuant to s 13A of the Sentencing Act 1989.  That application was heard, together with a similar application brought by his co-offender, Mr Slater, by Sully J on 5 November 1999.

2. In a judgment delivered on 26 November 1999 Sully J redetermined Mr Michael’s sentence, imposing in lieu a sentence of penal servitude for twenty one years, the minimum term being sixteen years.  The redetermined sentence of Mr Slater was one of penal servitude for twenty four years with a minimum term of eighteen years.

3. The circumstances of the events and subjective features of the applicant are set out in the judgment of Sully J in that case in (1999) NSWSC 1144.

4. Later, the applicant’s co-offender, Mr Slater, appealed to the Court of Criminal Appeal against the severity of his redetermined sentence.  This appeal was successful, with Mr Slater’s sentence being reduced to twenty one years with a non-parole period of sixteen years.  Thus, as matters now stand the applicant and his co-offender are serving sentences of identical length.

5. The only ground on which Mr Berman seeks a reduction of the sentence imposed on the applicant by Sully J concerns parity.  It is submitted he, Mr Michael, is entitled to feel a justifiable sense of grievance now that his sentence is identical to that of Mr Slater.  When Sully J redetermined the two sentences his Honour considered that the applicant, Mr Michael, was entitled to a distinctly lighter sentence.

6. The Court of Criminal Appeal reduced Mr Slater’s sentence in the following circumstances.  It rejected all of Mr Slater’s grounds of appeal, apart from one.  The ground which was successful related to his serving his sentence on protection.  It appears that the trial Judge was misinformed as to how long Mr Slater had been serving his sentence on protection.  When the correct information was supplied to the Court of Criminal Appeal his sentence was reduced in order to take account of this.

7. Once error had been demonstrated in the case of Mr Slater’s application for redetermination, the court of Criminal Appeal was able to resentence.  It appears that some part of the reduction achieved by Mr Slater was due to his serving longer on protection than Sully J was told, whilst a further part of the reduction was due to the resentencing process.  Although the sentence imposed by Sully J was admittedly within the range, as the current expression goes, as part of its resentencing function the Court of Criminal Appeal came to a slightly different view.

8. It is not necessary for present purposes to go through the cases and statistics which are usually displayed in such cases.  Whatever those cases were, whatever those statistics were, there is no doubt they were equally applicable to the applicant as they were to Mr Slater.

9. Mr Michael’s point is quite simple and can be made in the following series of propositions:

§           Sully J considered that his sentence should be distinctly lower than that of Mr Slater.

§           Sully J was correct in finding that this disparity should exist, for the reasons he gave.

§           Mr Slater’s sentence was reduced for reasons unconnected with the sentence imposed on Mr Michael.

§           Mr Michael and Mr Slater are now subject to identical sentences.

§           The circumstances of Mr Michael’s involvement in the offence, and the fact that he gave evidence against    his co-offender, Mr Slater, require that he receive a lower sentence than his co-offender.

§           He therefore has or is entitled to have a justifiable sense of grievance at the lack of disparity.

§           His sentence should be reduced so as to restore the disparity which Sully J found should exist.

1. In my view, therefore, the appeal ought to be allowed.  The sentence imposed should be reduced.

2. In lieu of the current sentence he should be sentenced to a period of eighteen and a half years from 12 September 1989 and the total sentence to expire on 11 March 2008, with the non-parole period to expire on 11 September 2003.

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LAST UPDATED:            13/05/2002