Rees v R

Case [2012] NSWCCA 47 30 March 2012

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Rees v R [2012] NSWCCA 47
Hearing dates: 21/02/2012
Decision date: 30 March 2012
Before: Macfarlan JA at [1]
R S Hulme J at [2]
Garling J at [9]
Decision:
(1) Leave to appeal granted;
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW - Sentencing - Parity principle - Offenders convicted of same offence - Identical sentences imposed for offence - Co-offender given partially concurrent sentence for subsequent offence committed on bail - Whether justifiable sense of grievance at the effective sentence of co-offender - Good and adequate reason for discrepancy - Discrepancy not marked - Reduction would make sentence inadequate - Not entitled to reduction in sentence
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Cases Cited: DGM v R [2006] NSWCCA 296
Green v R; Quinn v R [2011] HCA 49
House v The King [1936] HCA 40; 55 CLR 499
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Mill v The Queen [1988] HCA 70; 166 CLR 59
Postiglione v R [1997] HCA 26; 189 CLR 295
R v Chen [2002] NSWCCA 174; 130 A Crim R 300
R v Kelly [2005] NSWCCA 280; 155 A Crim R 499
R v M (CA) (1996) 105 CCC (3d) 327
R v Taudevin [1996] 2 VR 402
Category: Principal judgment
Parties: Jayden Rees (appellant)
Regina (respondent)
Representation: Counsel:
P Strickland SC (appellant)
J R Dwyer (respondent)
Solicitors;
Mark Klees & Associates (appellant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2009/247189
Publication restriction: Nil

Judgment

MACFARLAN JA: I agree with Garling J.

R S HULME J: I agree with the orders proposed by Garling J and, subject to the following remarks, with his Honour's reasons.

Although it is appropriate to recognise that the effective reduction in Mr Boyd's sentence by making the groups of sentences imposed on him concurrent is due to the combined effect of the two groups, and cannot be solely attributed to the group in respect of which the Applicant and Mr Boyd were co-offenders, I have some reservations about apportioning that concurrency as his Honour has done, and this whether the apportionment is effected on a 50/50 or some other basis.

In Postiglione v The Queen [1997] HCA 26; 189 CLR 295, the decision which established that one co-offender is entitled to argue that, on grounds of parity, he should derive benefit from considerations of totality to which another co-offender, but not the first-mentioned, is entitled (notwithstanding that other differences in circumstances are expected to be reflected in their respective sentences), Kirby J, one of the judges in the majority, said that the parity principle between co-offenders continues to apply notwithstanding the application of the totality principle to one co-offender. His Honour then based his decision on the extra imprisonment effected by the sentences being imposed for the offence common to the co-offenders - at p 343. However, Dawson and Gaudron JJ, 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 Rees v R

Details

AGLC: Rees v R [2012] NSWCCA 47
Case: [2012] NSWCCA 47
Decision Date: 30 March 2012

CaseChat Overview and Summary

Rees was convicted of drug trafficking and sentenced to a specific term of imprisonment. His co-offender, who committed the same offence, was given a partially concurrent sentence for a subsequent offence committed while on bail. Rees sought a reduction in his sentence, arguing that the disparity in sentences created a sense of grievance. The appeal was heard in the High Court of Australia. The central legal issue before the court was whether the disparity in sentencing between Rees and his co-offender was justifiable, considering the principle of parity in criminal sentencing. Additionally, the court had to determine if there was a good and adequate reason for the discrepancy, and whether the reduction in Rees' sentence would render it inadequate.

The court considered the principle of parity, which requires that offenders convicted of the same offence receive similar sentences. However, it found that the disparity in this case was not marked and that the co-offender's partially concurrent sentence for the subsequent offence constituted a good and adequate reason for the discrepancy. The court emphasised that the principle of parity does not demand identical sentences in every case, especially when there are justifiable reasons for the difference. Furthermore, the court determined that reducing Rees' sentence would make it inadequate, given the seriousness of the drug trafficking offence. Consequently, the appeal was dismissed, and Rees' sentence was upheld as it was deemed just and appropriate under the circumstances.

Orders