New South Wales Court of Criminal Appeal CITATION : Regina v MACKEY [1999] NSWCCA 167 FILE NUMBER(S) : CCA 60605/97 HEARING DATE(S) : 24/06/99 JUDGMENT DATE : 24 June 1999 PARTIES : Regina v Ryan Joseph MACKEY JUDGMENT OF : Abadee J at 1; Ireland J at 36; Barr J at 37 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Dunford J COUNSEL : D. N. Howard - Crown T. L. Buddin SC - Appellant SOLICITORS : S. E. O'Connor - DPP T. A. Murphy - Appellant CATCHWORDS : Postiglione v The Queen (1997) 189 CLR 295 CASES CITED: Lowe v The Queen (1984) 154 CLR 606 R v GDR (1994) 35 NSWLR 376 DECISION : Application for leave to appeal the sentence is refused IN THE COURT OF CRIMINAL OF APPEAL 60605/97 ABADEE J IRELAND J BARR J THURSDAY 24 JUNE 1999 REGINA v Ryan Joseph MACKEY JUDGMENT 1 ABADEE J: The applicant, Ryan Joseph Mackey, date of birth 13 February 1977, pleaded guilty to three counts of manslaughter before Justice Dunford. The charges related to three deaths in a house at Westmoreland Street, Glebe on 7 December 1995. The deaths involved a woman and two children, the latter being aged eleven and seven, in a fire deliberately lit at those premises. The house had been occupied by a number of persons, some of whom escaped during the fire. 2 The incident involved several persons, two of whom, Kylie Hampton and the applicant, each pleaded guilty to three counts of manslaughter and the third, one Daniella Caldwell, who pleaded guilty to causing malicious damage by fire. The three co-offenders were sentenced by Justice Dunford on the same day. 3 His Honour, when sentencing the applicant, considered that the appropriate sentence was one consisting of a minimum term of seven years with an additional term of two years, but, in taking into account time previously served in broken periods of pre-sentencing custody, his Honour ultimately sentenced the applicant to concurrent sentences of a minimum term of six years and one month and an additional term of two years dated from the date of sentence being 17 October 1997. 4 The co-offender, Kylie Hampton, received a minimum term of eight and a half years with an additional term of two and a half years. The difference between the two sentences involving Hampton and the applicant Mackey was in effect over two years. In neither case did his Honour find special circumstances when sentencing. 5 The co-offender Hampton sought leave to appeal her sentence to the Court of Criminal Appeal. The Court considered her application and dismissed it on the 25 June 1998, see Regina v Kylie Hampton (CCA 25 June 1998, unreported). The essential ground of Hampton's appeal was one relating to the absence of a finding of special circumstances by the sentencing judge. 6 The co-offender, Daniella Caldwell, received a sentence involving a minimum term of one year and 11 months with an additional term of two years. 7 I now turn briefly to consider the facts. It appears that Kylie Hampton was ill-disposed towards the deceased woman. It is not necessary to state the reasons for that disposition towards the deceased. The applicant Mr Mackey, also entertained some animosity towards the family who occupied the house which was burnt down and had apparently directed some threats towards them, including threats to petrol bomb the deceased house and to harm the occupants. 8 Early on the morning of 7 December 1995, a discussion took place between the applicant Hampton and Caldwell during which the burning of the house was discussed. Hampton said she was going to burn the house down. His Honour found that Hampton made the suggestion to burn the house down whilst she and the applicant were talking in a laneway but that nevertheless it was the applicant who "immediately and enthusiastically started encouraging her" and became a willing participant in the enterprise. His Honour found that Caldwell also went along with it. 9 His Honour, in his sentencing remarks at page five said as follows: "I am satisfied that the instigator of the idea to setting fire to the house that night was Hampton, and that she actually lit the fire and was the principal offender; that Mackey adopted and encouraged the proposal and was present aiding and abetting the offence and so was a principal in the second degree and I regard Hampton as the more culpable of the two." 10 That said, his Honour did not say by how much more he found Hampton culpable than the applicant. However, in terms of his assessment of culpability, his Honour's reasons did in fact reflect the respective roles in terms of the culpability of the applicant and Miss Hampton. 11 His Honour also said that the pleas of guilty were upon the basis that the deaths resulted from an unlawful and dangerous act. 12 When sentencing his Honour had regard to the subjective matters concerning the applicant and no error is suggested in terms of his Honour's assessment and evaluation of the relevant subjective matters. Nor is it suggested that the overall sentence was manifestly excessive in terms or otherwise vitiated by law. Nor could it be. Three deaths were involved. His Honour was satisfied as to the applicant's genuine remorse and regret. He specifically referred to the prospects of rehabilitation being excellent. 13 His Honour had regard to the fact that the applicant whilst in gaol had been subjected to threats, that he had been in protection and that this justified a moderation of sentence. His Honour concluded that notwithstanding favourable subjective features the offences called for a substantial period of incarceration. 14 The applicant in his written submissions has essentially advanced three arguments in respect of his application. In the oral submissions put to the Court this morning by Mr Baran and if I may say so in a most effective manner, the applicant essentially relied upon two particular points, being a parity point and a special circumstances point. 15 Turning to the applicant's written submissions, whilst the applicant's counsel conceded that the sentencing judge drew a distinction between the sentences imposed upon Hampton and the applicant, nevertheless it was submitted that in all the circumstances the applicant was left with a justifiable sense of grievance in that the differentiation between the two sentences was not sufficiently large to accommodate the significant differences in their respective circumstances. The particular ground was articulated this morning by Mr Baran. He put the submission, that the element of criminality on the part of the applicant as contrasted with the criminality or culpability on the part of Hampton required a lower sentence being imposed than that which was imposed by his Honour in the circumstances of this case. 16 Next it was submitted that although his Honour stated that he would moderate the sentence because of the fact that the serving the sentence would be more onerous because it would, inter alia, have to be served in protective custody, that nevertheless insufficient weight was given by his Honour to that matter. He submitted this was a matter also relevant to the different sentences imposed on the two co-offenders. 17 Then it was submitted that whilst his Honour recognised as he did that there were a number of matters which could give rise to a finding of special circumstances, nevertheless his Honour was in error in finding that there were none. 18 Before passing from the last point I would observe that his Honour's sentencing remarks reveal careful consideration of the matter of special circumstances in each of the cases that his Honour was considering. His Honour found no special circumstances in the case of Hampton, no special circumstances in the case of the applicant but found relevant special circumstances when sentencing the third co-offender, Caldwell. 19 I turn to the "sense of grievance" argument or the parity argument that has been advanced by Mr Baran and which is at the forefront of his submissions before this Court. 20 His Honour sentenced each of the co-offenders at the same time. He carefully examined the respective criminality of both Hampton and the applicant in respect of each of their roles. He carefully considered the subjective features relevant to each offender. In Postiglione v The Queen (1997) 189 CLR 295 Dawson and Gaudron JJ said at 301: "In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated." See Lowe v The Queen (1984) 154 CLR 606. 21 Next their Honours observed that when applying the parity principle, it is necessary to remember that like be compared with like. Indeed, as their Honours also observed, different criminal histories and custodial patterns may justify a real difference in the time each will serve in prison. 22 Some of the differences in culpability and criminality to be considered in this case involve particular features. Whilst is correct that whilst Hampton may have initiated the suggestion to burn the house, the applicant not only encouraged her, but became a willing participant, egging Hampton on, knowing that people were inside. Indeed, both saw the house burning and neither subsequently called the police. I do not believe that in the circumstances there was really a vast difference in the criminality between the two offenders. It is of course to be remembered that Hampton's total sentence exceeded the applicant's in excess of 20 percent. 23 Indeed, in terms of culpability, there is the material that was before his Honour contained in an ERISP interview with the police. At question and answer 95 to 96 on page 14 of the ERISP the following appears: "Q. 95: All right. When you say she brought up the idea of the fire ...? A. 95: To burn the cunts and that, she's saying, should burn it down. Q. 96: And what did you say? A. 96: I said, "Yeah." ... you know, gee'd her up, egged her on." 24 The answers that I have referred to contain significant admissions in terms of the applicant's culpability and criminality. 25 The objective seriousness of these offences required clearly a substantial period of imprisonment. A mother and her two children asleep in their home in the middle of the night lost their lives as a result of this crime. 26 His Honour weighed the objective seriousness of the offences and the different degrees of criminality or culpability of both Hampton and the applicant. His Honour had regard to their different circumstances, including their different histories. The applicant's written submissions point out a number of favourable relevant subjective features in his favour. His Honour's reasons reflected full consideration of such features and of their significance in terms of sentencing the applicant. A relevant subjective feature involving Hampton was that she was a young mother of a child aged five. There was also evidence that the applicant, unlike Hampton, was not affected by alcohol, Rohypnol or cannabis. 27 In my view, looking at the materials before me, there is nothing which would cause me to conclude that there has been engendered a justifiable sense of grievance arising from the two sentences given and their different circumstances. There is no manifest discrepancy such as to engender a justifiable sense of grievance and the first time argument advanced by Mr Baran should be rejected. 28 The second argument, at least in writing, supplemented by oral submissions, involves an argument that his Honour failed to give sufficient weight to the fact that a substantial part of the sentence would be likely to be served in protection. In my view, there is nothing to suggest that his Honour did not give sufficient weight to that particular matter. It was specifically adverted to, considered and in my view his Honour properly evaluated the matter. 29 The next argument taken up by the applicant is the matter of special circumstances. It is submitted by the applicant in the particular case that his Honour should have found, contrary to his finding, special circumstances and that he was in error in not doing so. 30 At pages 11 and 12 of the sentencing reasons his Honour said as follows: "Although there are a number of matters which could give rise to a finding of special circumstances, including serving the sentence in protection and the reduction of the minimum term to allow for pre-sentence custody, the additional term which I consider appropriate and adequate for his rehabilitation does not exceed one third of the minimum term and, accordingly, I find special circumstances do not exist." 31 That circumstances may amount in some cases to special circumstances does not mandate that there must be a finding of special circumstances of this case. The matter is one of discretionary judgment: See R v GDR (1994) 35 NSWLR 376; and see also the judgment of this Court in the co-offender's appeal of Hampton supra, particularly at pages 5 and 6 of the judgment. Indeed, it is interesting to observe that the passage from his Honour's sentencing remarks that I have just read, appears to have been also considered in Hampton's case at page 6 of the court's judgment in rejecting her appeal. 32 In my view the point that should be made, is it is plain that his Honour's finding that there were no special circumstances was a finding that there was no special circumstances as would justify the imposition of an additional term longer than the one third period that his Honour referred to in the instant case. It seems to me that this was a discretionary decision which was open to his Honour to make. 33 The additional term appropriate for rehabilitation, even under the proportionate principle, is nevertheless, as I would understand it, a period that is somewhat lengthy. His Honour clearly considered it was appropriate and adequate in the circumstances. No error is revealed in his Honour's conclusion. 34 His Honour clearly considered the matter of the applicant's excellent prospects of rehabilitation. His Honour specifically said so at page 11 of his sentencing reasons, indicating that he considered the applicant to have excellent prospects of rehabilitation. His Honour's remarks make it abundantly clear as to why he was of the view that he should not adjust the minimum term below that which he felt was appropriate in the case. He found as he did that there was an absence of special circumstances, despite what might be the situation in other cases, and despite the fact that the matters that he referred to could be considered as being special circumstances. He concluded that they should not be so regarded in the instant matter. I see no error in that approach. 35 For all these reasons I consider that the application for leave to appeal the sentence should be refused. 36 IRELAND J: I agree. 37 BARR J: I also agree. 38 ABADEE J: The order of the court is that the application for leave to appeal the sentence should therefore be refused. ------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.