Shortland v R [2013] NSWCCA 4

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Shortland v R [2013] NSWCCA 4 Hearing dates: 30 August 2012 Decision date: 01 February 2013 Before: Hoeben JA at [1] Johnson J at [2] Button J at [167] Decision: 1. Grant leave to appeal against sentence. 2. Allow, in part, the appeal against sentences imposed at the Penrith District Court on 20 April 2010. 3. Confirm the sentences imposed with respect to Count 1, Count 2 (including the Form 1 offences), Count 4 and Count 5. 4. Quash the sentence imposed upon Count 6 and, in its place, sentence the Applicant to a non-parole period of two years commencing on 26 February 2011 and expiring on 25 February 2013, with a balance of term of one year commencing on 26 February 2013 and expiring on 25 February 2014. 5. With respect to Count 3, quash the sentence and, in its place, sentence the Applicant to a non-parole period of three years commencing on 26 February 2012 and expiring on 25 February 2015, with a balance of term of three years commencing on 26 February 2015 and expiring on 25 February 2018. 6. The earliest date upon which the Applicant will be eligible for release on parole is 25 February 2015. Catchwords: CRIMINAL LAW - sentence - violent attack by group of young men on another group of young men - Applicant sentenced first in time in District Court - Applicant sentenced for aggravated robbery in company inflicting grievous bodily harm in company - co-offenders sentenced later in District Court, Local Court and Children's Court - co-offenders sentenced for recklessly causing grievous bodily harm in company - all offenders participants in joint criminal enterprise - Judge and Magistrates who sentenced co-offenders not informed of sentences imposed upon Applicant - remarks on sentence of Applicant's sentencing Judge not supplied to later sentencing Judge and Magistrates - whether Applicant has legitimate sense of grievance - principle of parity or proportionality of sentences - strong desirability that co-offenders be sentenced by same Judge -necessity for remarks on sentence to be provided if related offender to be sentenced by different Judge or Magistrate - duty of Crown to ensure that remarks on sentence provided to different Judge or Magistrate - objective foundation demonstrated for Applicant's sense of grievance - very marked discrepancy between sentences even allowing for different charges and different jurisdictions - lesser sentences imposed upon Applicant Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Children (Criminal Proceedings) Act 1987 Criminal Appeal Act 1912 Cases Cited: Green v The Queen [2011] HCA 49; 244 CLR 462 R v Govinden [1999] NSWCCA 118 R v Colgan [1999] NSWCCA 292 Jones v The Queen (1993) 67 ALJR 376