Regina v McKendrick [1999] NSWCCA 87

New South Wales Court of Criminal Appeal CITATION : Regina v McKendrick [1999] NSWCCA 87 revised - 13/08/99 FILE NUMBER(S) : CCA 60700/97 HEARING DATE(S) : 16 April 1999 JUDGMENT DATE : 16 April 1999

PARTIES : Regina v Bradley John McKendrick JUDGMENT OF : Grove J at 1; Bell J at 16

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/21/0341 LOWER COURT JUDICIAL OFFICER : Grogan DCJ

COUNSEL : W.G. Dawe, QC (Crown) P.M. Strickland (Applicant) SOLICITORS : R. Gray (Public Prosecutions) T. Murphy (Applicant) CATCHWORDS : Criminal Law and Procedure - Sentence - Parity with Co-offenders DECISION : Appeal allowed. Applicant resentenced.

IN THE COURT OF CRIMINAL APPEAL

60700/97

GROVE J BELL J

Friday 16 April 1999 REGINA v BRADLEY JOHN McKENDRICK

JUDGMENT

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Grogan DCJ in the Sydney District Court on 16 October 1997. On that occasion the applicant was sentenced, having been convicted by his Honour after a trial without jury, to a total term of two years and eight months penal servitude comprising a minimum term component of two years specified to commence on 19 September 1997 and to expire on 18 September 1999. The sole matter raised for deliberation on behalf of the applicant is the question of parity with sentences received by co-offenders and one co-offender in particular. 2 The offence in respect of which the applicant was an accessory before the fact was a robbery which took place upon a public street when a female employee of a Mobil service station and convenience store was on the way to the bank with a little under $5,000 takings. The victim was an employee of such an establishment at Ashfield and the applicant was the manager of a similar facility at Burwood; hence, he was able to give information as to the likely amount of money that was being taken to the bank, the address of the bank, the expected times of arrival and other information which would enable the crime to be carried out. 3 The crime was, in fact, carried out by a man called Sljivar. Two other participants were a man called Shaitly and a woman called Thompson. For present purposes one can ignore the participation of Thompson who was, in fact, charged as an accessory after the fact. Shaitly was also charged, like the applicant, with being an accessory before the fact. 4 The three co-offenders were variously dealt with before Graham DCJ. Grogan DCJ was advised of the outcome of the proceedings concerning them. He came to the conclusion, which he expressed, that the question of parity did not arise. By that I understood his Honour to be saying he did not feel questions of parity obliged him to make any particular reference for quantifying his sentence, to what had been received by the co-offenders. 5 There were undoubted differences between the applicant and Sljivar and Shaitly. Both of the latter pleaded guilty. Sljivar gave assistance to the extent of giving evidence in the case against the applicant. Shaitly was said to be entitled not only to a discount of appropriate sentence for his plea of guilty but also for matters taken into account pursuant to s 442B of the Crimes Act. It would appear that whatever was the focus of the matters taken into account under that provision, they had been raised in other proceedings in the District Court but the sentencing Judge dealing with his offence of accessory before the fact to robbery came to the conclusion that there was a continuing benefit to authority which ought to be reflected. Accordingly, I would comment that it is easy to see how Grogan DCJ came to the conclusion that the matter of parity could be put to one side, as it were. 6 We have, however, today been taken to the record, in particular, of the offender Shaitly. It should be commented that the applicant had no significant past record, whereas Shaitly, in particular, had a considerable record and at about the time of the current offence was directly before courts for matters of some seriousness. It is unnecessary to recapitulate all the details of Shaitly's forensic excursions. It was submitted by counsel that analysis showed that Shaitly, in fact, served but four months and eight days specifically referrable to his participation in this offence. 7 Mr Dawe of Queen's Counsel for the Crown very fairly has indicated to the Court that he cannot dispute the arithmetic which leads to that conclusion and he has acknowledged that if it be the fact that Shaitly has served but four months and eight days in reference to his participation, then the contrast between that and the term of two years and eight months imposed upon the applicant, including the minimum term component of two years, would be likely to provoke intervention by this Court. 8 The issue of parity is governed by well-known authority, including The Queen v Lowe and the recent judgments in the High Court in The Queen v Postiglione. It is unnecessary for present purposes to engage in an analysis of either of those cases. 9 In my view it is apparent that although the participation in the offence of the applicant and Shaitly were different and although Shaitly was entitled to discounts for the reasons which I have mentioned, the yawning gap between the sentence he has been required to serve and that required to be served by Shaitly is such that it should be concluded that the applicant is entitled to harbour a justified sense of grievance by reason of the lenience which was received by Shaitly. Therefore, in my view this Court ought intervene. It will be observed that the minimum term element of the applicant's sentence has less than six months to run. At the outset of proceedings, inquiry was made as to why there had been such a long delay in this matter coming before the Court and we were informed that the delay was as a consequence of the inability to obtain necessary transcript from courts below. It is common ground that the significant delay does not result from any action by the applicant. 10 The minimum term to serve under the current sentence has been served to the extent of in excess of 18 months. Although I regard the participation of the applicant, in effect, targeting a fellow employee for robbery on her way to the bank, as a matter requiring significant punishment I am unable to conclude that as a matter of parity the applicant should serve by way of minimum term any longer than he has already served. 11 For the reasons that I have sketched I have come to the conclusion that the following order should be made:- 12 I propose that the application for leave to appeal be granted. 13 The appeal be allowed. 14 The sentence imposed in the District Court be quashed. In lieu thereof the applicant be sentenced to a total term of two years penal servitude to consist of a minimum term of 18 months commencing on 19 September 1997 and expiring on 18 March 1999. 15 I would direct that the applicant be released to parole with effect from 18 March 1999 and whilst on parole he be subject to the supervision of the Probation and Parole Service. 16 BELL J: I agree. 17 GROVE J: The orders of the Court, therefore, will be as I proposed. **********