Shedden v The Queen

Case [2013] NSWCCA 225

Court of Criminal Appeal

New South Wales
Case Title: Shedden v R
Medium Neutral Citation: [2013] NSWCCA 225
Hearing Date(s): Monday, 23 September 2013
Decision Date: 09 October 2013
Before: Hoeben CJ at CL at [1]
Bellew J at [46 ]
Barr AJ at [47 ]
Decision:

Leave to appeal granted.
Appeal dismissed.
Catchwords: CRIMINAL LAW - sentence appeal - whether sentencing judge should have applied parity principle - manslaughter - group of young men engaged in retaliatory assault - victim shot while armed with a knife - comparison of culpability and personal characteristics of two offenders - important differences in culpability and personal characteristics - no basis for any justified sense of grievance.
Legislation Cited: Criminal Appeal Act 1912
Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
R v Forbes [2011] NSWSC 1547
Category: Principal judgment
Parties: John Wayne Shedden - Applicant
Representation
- Counsel: Counsel:
Mr S Odgers SC - Applicant
Ms H Wilson - Respondent Crown
- Solicitors: Solicitors:
SE O'Connor, Legal Aid NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2010/226908
Decision Under Appeal
- Before: Fullerton J
- Date of Decision:  06 July 2012
- Citation: [2012] NSWSC 759
- Court File Number(s): 2010/226908

JUDGMENT

  1. HOEBEN CJ at CL:

    Offence and sentence
    On 16 April 2012 the trial of the applicant for the murder of Joshua Maynard at Raymond Terrace on 29 June 2010 was listed for hearing. On 17 April 2012 he was arraigned on that charge to which he entered a plea of not guilty to murder but guilty of manslaughter. The Crown accepted that plea in full satisfaction of the indictment.

  2. On 6 July 2012 Fullerton J sentenced the applicant for that offence - imprisonment with a non-parole period of 6 years and 9 months, commencing 7 July 2010 and expiring 6 April 2017 with a balance of term of 2 years and 3 months, expiring 6 July 2019.

  3. Pursuant to s5(1)(c) of the Criminal Appeal Act 1912 the applicant seeks leave to appeal against the sentence imposed on him on a single ground of appeal:

    The sentencing judge erred in failing to apply the parity principle.

    Factual Background

  4. At about 9pm on 29 June 2010 Daniel Forbes was walking with two friends when a red Commodore, in which the deceased and his younger brother were travelling as passengers, stopped and the deceased alighted. The deceased was aged 20 and his younger brother 19. Daniel Forbes and his two friends were aged 18. They had been celebrating an 18th birthday and were considerably affected by alcohol. One of his companions was punched by the deceased causing facial injuries which bled profusely. Mr Forbes was also assaulted.

  5. Mr Forbes and his friends ran from the scene to his home where he telephoned the applicant. The applicant was at that time aged 31. The applicant then invited Mr Forbes and his friends to come to his home at Links…

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Shedden v The Queen [2013] NSWCCA 225
Case
[2013] NSWCCA 225
Decision Date

CaseChat Overview and Summary

The case of Shedden v The Queen concerns a sentencing appeal where the primary issue was whether the sentencing judge should have applied the parity principle in sentencing two co-offenders for manslaughter. The appellant, Shedden, was part of a group of young men who engaged in a retaliatory assault during which the victim was shot while armed with a knife. The comparison of culpability and personal characteristics between Shedden and his co-offender, Mr Forbes, was central to the appeal. The appellant argued that the differences in their culpability and personal circumstances did not justify the disparity in their sentences, leading to a justified sense of grievance.

The legal issues before the court were whether the sentencing judge erred in failing to apply the parity principle and whether the differences in culpability and personal circumstances between Shedden and Mr Forbes justified the disparity in sentences. The court needed to determine if the sentencing judge's comparison of the two offenders' culpability and personal characteristics was sufficient and whether there was a justified sense of grievance on the part of Shedden. The court also had to assess if the differences in age, criminal history, and role in the crime warranted a significant disparity in sentences.

The court found that it was not accurate to say that the sentencing judge erred in failing to apply the parity principle, as she implicitly acknowledged its application. However, the court concluded that the differences in culpability and personal circumstances between Shedden and Mr Forbes justified the disparity in sentences. Shedden actively recruited participants and played a leadership role, whereas Mr Forbes was a follower, naive, and gullible. Additionally, Shedden had more life experience and a history of crimes involving violence, whereas Mr Forbes had no criminal antecedents and showed remorse. The court found that these differences were sufficient to justify the disparity in sentences and there was no basis for any justified sense of grievance on the part of Shedden.

The final orders of the court upheld the sentencing judge's decision, affirming that the differences in culpability and personal circumstances between the appellant and Mr Forbes justified the disparity in their sentences and there was no justified sense of grievance on the part of the appellant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HOEBEN CJ

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Ratio Decidendi

Legal Principle Established

Established by: HOEBEN CJ

The applicant submitted that the result of such a comparison made it clear that his sense of grievance was justified in that the differences between him and Mr Forbes, by reference to culpability and personal circumstances, simply did not justify such a disparity in sentences.Consideration It is not accurate to say that her Honour erred in failing to apply the parity principle. It is clear from the way in which her Honour dealt with it (see [20] hereof) that her Honour implicitly accepted that the principle applied otherwise there was no purpose in her setting out what she regarded as the significant distinguishing features between Mr Forbes and the applicant. What her Honour was really saying in a shorthand way, was that when one carried out the comparison of culpability and personal circumstances, which the application of the parity principle required, the end result was that there was no basis for any justified sense of grievance on the part of the applicant. The question for this Court is whether it was open to her to reach that conclusion. I do not agree that the culpability of the applicant and Mr Forbes was the same. The participation of Mr Forbes in the joint criminal enterprise was very much as a follower under the direction of the applicant and his brother. The applicant actively recruited participants in the joint criminal enterprise and adopted a leadership role. The applicant played a part in planning and launching the two attacks on the car in which the deceased was travelling. This is to be contrasted with the position of Mr Forbes who was found to be naive, gullible and easily led. The applicant was armed but Mr Forbes was not. In the particular circumstances of this offence, the difference in ages is important. The applicant was 31 and Mr Forbes was 18. Not only did the applicant have more life experience, but that experience extended to crimes of violence which included the possession if not the use of a weapon. Mr Forbes had no such experience and was clearly dominated by the applicant and his brother. As her Honour found, the applicant instead of using his age and greater experience to counsel his younger companions, including Mr Forbes, used it to encourage their participation in the joint criminal enterprise in which he had a principal role. As the applicant properly conceded, a comparison of their personal characteristics significantly favoured Mr Forbes. Mr Forbes had the advantage of good character without any criminal antecedents, remorse and excellent prospects of rehabilitation. These were the very differences which the plurality in Green v The Queen; Quinn v The Queen identified as justifying a significant disparity in sentences:"31 ... The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise."