Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cambey v R [2013] NSWCCA 170 Hearing dates: 9 July 2013 Decision date: 09 July 2013 Before: Basten JA at [1]; Price J at [34]; Campbell J at [43] Decision: 1. Grant leave to appeal against sentence. 2. Appeal upheld. 3. Sentence imposed by the sentencing judge is set aside and in place thereof the applicant is sentenced to a period of imprisonment consisting of a non-parole period of 4 years and 10 months commencing on 16 September 2008 and expiring on 15 July 2013 and a balance of term of 2 years and 4 months expiring on 15 November 2015. The earliest date on which the applicant will eligible for release on parole is 15 July 2013. Catchwords: CRIMINAL LAW - appeal - sentencing - parity between co-offenders - whether difference between sentences imposed on co-offenders inadequately reflected disparity between actions - each offender convicted of manslaughter - co-offender administered blows with metal pole and punches to head of victim - applicant provided aid and encouragement and kicked victim - kicking not instrumental in causing death - trial judge found co-offender's offending more serious than that of applicant - applicant offered to plead to manslaughter - plea rejected - discount given for plea - whether 14-15% differential between sentences sufficient to reflect disparity PROCEDURE - criminal appeal - whether further evidence should be accepted on appeal against sentence - solicitor's affidavit regarding offer to plead - additional evidence usually only admitted for purpose of re-sentencing - where material provided not useful in resolving matters in issue Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6 Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 House v The King [1936] HCA 40; 55 CLR 499 Carney v R; Cambey v R [2011] NSWCCA 223 Category: Principal judgment Parties: Luke Joseph Cambey (Applicant) Regina (Respondent) Representation: Counsel: Mr N Steel (Applicant) Ms T L Smith (Respondent) Solicitors: P O'Brien (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent) File Number(s): CCA 2009/12114 Decision under appeal Jurisdiction: 9111 Citation: R v Carney; R v Cambey [2012] NSWSC 1344 Date of Decision: 2012-11-07 00:00:00 Before: Schmidt J File Number(s): SC 2009/12114 Judgment 1BASTEN JA: On 29 January 2006, Derrick Reid was viciously assaulted in his unit at Cartwright and died shortly thereafter from his injuries. The principal offenders were Todd Carney and Luke Cambey. At a trial conducted in July 2012 each was convicted of manslaughter. The presiding judge, Schmidt J, sentenced each offender on 7 November 2012. The present applicant, Luke Cambey, was sentenced to a non-parole period of five years and two months with an additional term of two years and six months, giving a total sentence of seven years and eight months. He seeks leave to appeal against that sentence. 2The grounds of appeal were twofold, but were interrelated. The first ground was that his culpability was less than that of Mr Carney and, although he received a lesser sentence, there was inadequate differentiation to reflect the true disparity between their respective actions. Secondly, he complained that he received an inadequate discount for an offer to plead guilty to the offence of manslaughter, at a time when he was facing charges of both murder and manslaughter. 3The applicant was first taken into custody in relation to the charges on 16 September 2008. Accordingly, his sentence was set to commence on that date. His non-parole period will expire on 15 November 2013, that is approximately four months from the date of hearing his application in this Court. At the conclusion of the hearing, the Court was satisfied, by a majority, that it was appropriate to grant leave to appeal and substitute a lesser sentence for that imposed by the trial judge. Accordingly, orders were made resentencing Mr Cambey to a non-parole period of four years and 10 months, with a balance of term of two years and four months. The effect of the reduction of the non-parole period was to allow the applicant to be considered for release on parole from 15 July 2013. My reasons for joining in the order of the Court are as follows. Facts established for purpose of sentencing 4Because the accused were placed before a jury on charges of both murder and manslaughter, but verdicts were returned finding each guilty of manslaughter, it was necessary for the trial judge to make findings as to the basis of the convictions for the purpose of sentencing each offender. This was done. The trial judge also had before her some brief evidence from the applicant, the applicant's criminal record, a pre-sentence report and a psychologist's report. 5The victim, Mr Reid, was a supplier of cannabis. Mr Carney, Mr Cambey and a younger man who carried a taser, went to Mr Reid's unit with the intention of obtaining cannabis, apparently without payment. At least part of what ensued after they entered the unit was revealed by the injuries suffered by Mr Reid. (There was no evidence that any of his assailants were injured.) The victim's injuries were described by the trial judge in the following terms at [13]: "Mr Reid's injuries were consistent with him having been kicked, as well as having been hit with a metal pole. They included fractures to the head, including a depressed fracture which had hair embedded into the fracture; lacerations to the head; lacerations and fractures to two fingers of the left hand; bruising to the chest, shoulder, back, left flank, face head and arms; as well as abrasions to the left arm. Todd Carney's evidence was that he did not hit Mr Reid in the shoulder, chest, or back and that he saw him being kicked, but not by whom. Luke Cambey's evidence was that he saw Todd Carney hitting Mr Reid. He was equivocal about whether he had been kicked, but he denied himself kicking Mr Reid." 6Further evidence for the prosecution, which was not discussed in detail in the judgment on sentence, was identified by the trial judge in the following terms: "12 Before he died, Mr Reid gave accounts of what had happened to him to a neighbour and to attending ambulance officers. He told them that three people had bashed him and that he had been tasered to the head. That a taser had been used to inflict any of his injuries, was not admitted nor established on forensic examination after his death. It was not in issue at the trial, however, that Todd Carney had repeatedly hit Mr Reid with a metal pole, but where Mr Reid was, when he was struck was in issue. There was also an issue as to whether he had been kicked by Luke Cambey. ... 15 There was also evidence given by a number of witnesses to whom Todd Carney, Luke Cambey and the juvenile later spoke. Their evidence as to what they were told about what had happened, was also consistent with Mr Reid having been hit after falling and with being kicked. Those accounts included that Todd Carney had kept hitting Mr Reid when he kept getting up and that Luke Cambey had kicked him. While the evidence of these witnesses was variously disputed by Todd Carney and Luke Cambey, who put the reliability of some of these witnesses in question and in one case, the honesty of the witness as well, their evidence was largely consistent with Mr Reid's accounts, with the injuries which he suffered and also partially consistent with the evidence which Todd Carney and Luke Cambey gave themselves." 7The trial judge was, however, satisfied that the accounts given by Carney and Cambey were inaccurate to the extent that they failed to give a full account of the events. She noted that neither had admitted that Mr Reid was struck "after he fell" and that the applicant did not admit inflicting any injuries at all: at [17]. She did not accept that evidence. 8The critical evidence, for the accused, as recounted by Mr Carney, which must have been accepted by the jury, was summarised in the following terms: "20 Todd Carney's evidence was that when he entered the unit where Mr Reid lived with Luke Cambey and the juvenile following, Mr Reid was sitting on the bed. They did not know him. Todd Carney approached him and asked about buying cannabis. He turned to look behind him when he heard the juvenile drop the taser. He then heard Mr Reid say, loud enough, to 'warn them off', that 'this is not happening to me'. When he turned back, he saw Mr Reid grabbing the pole from under a pillow or blanket on the bed and getting to his feet, swinging the pole at him. He said that Mr Reid was slightly taller than him, but he caught the bar with his left hand and then saw someone kick Mr Reid from the right side. 21 He then punched Mr Reid in the head with his right hand and took the bar away from him. Mr Reid then said 'you're dead you dog'. It was then that he first hit Mr Reid in the head with the bar. That blow stunned him, but it didn't drop him and he hit him again in the head, because Mr Reid came at him again. Mr Reid came at him again and he hit him twice more, once in the arm. He then he hit him again, before running out of the room." 9With respect to the applicant's evidence at trial, much was supportive of Mr Carney's account that it was the victim who seized a metal "pole" from under the blanket and swung it at Mr Carney, who in turn caught it in his hand and punched the victim in the head with his other hand. The trial judge, however, continued: "27 Luke Cambey's evidence was also implausible in a number of respects. He said that Todd Carney hit Mr Reid only once or twice with the pole, while he remained standing near the bed; that they were both pretty much standing still during the fight; that there was no shouting; that he did not think Mr Reid had been seriously hurt; and that he saw no blood at all. In cross-examination he said the fight had lasted only 15 seconds and denied that Mr Reid had been knocked down; that the whole time he stood between the coffee table and his bed; and that he had been hit 'twice if that' on the head and shoulder. He agreed that someone could have shoved Mr Reid to his bed, but claimed that no-one did. 28 Initially Luke Cambey also denied that he or anyone else had kicked Mr Reid, but later he said that the juvenile could have kicked Mr Reid and later again, that he did not recall Mr Reid being kicked." 10Critically for present purposes, the trial judge made the following findings: "31 I am satisfied that the evidence established to the requisite degree that Todd Carney repeatedly hit Mr Reid with the pole, even after he fell to the bed; that Luke Cambey provided him with intentional aid and encouragement, including by kicking Mr Reid; and that the injuries which caused his death were the result of excessive self defence. 32 On both offenders' evidence, while these events happened quickly, there was nothing physical which prevented them from leaving, once Mr Reid had been disarmed and pushed to the bed, without the need to inflict all the injuries which ended his life. Viewed objectively these were both serious offences, although the criminality involved in Todd Carney's offending was clearly more serious than that of Luke Cambey. 33 The sentences imposed must thus reflect the serious nature of this offending, which was more serious, as I have noted, in the case of Todd Carney, than of Luke Cambey. That must be reflected in the sentences imposed." 11The trial judge then embarked on a lengthy consideration of the personal circumstances of Mr Carney. She accepted that he was "remorseful", which she described as involving an acceptance of "his responsibility for the actions which caused Mr Reid's death": at [41]. She accepted that this was an acceptance which "only developed slowly over time": at [42]. The first time that Mr Carney revealed his use of the metal pole was in the course of his trial, some five and a half years after the event. He also did not give a complete account of his actions: at [42]. 12The trial judge also concluded that Mr Carney was "unlikely to re-offend and has good prospects of rehabilitation": at [70]. However that view was qualified by the conditions that he maintain his abstinence from drugs and alcohol and remain compliant with respect to his anti-psychotic medication: see also at [75]. She further found that although it was a "brutal killing" it was "to some extent the result of Todd Carney's deteriorating mental state": at [78]. 13The applicant was assessed by a clinical psychologist, Dr Emma Collins, in September 2012, after the trial. She assessed his risk of "violence recidivism" at "moderate to moderate-low": Report, par 26. This view appears to have been accepted by the trial judge: at [92]. Whilst accepting that the applicant had "matured" whilst in custody, she concluded that "there are reasons for having reservations as to the likelihood that Luke Cambey will not re-offend and as to his prospects of rehabilitation": at [98]. 14The trial judge concluded that specific deterrence had a role to play in setting a sentence in respect of the applicant, because "he still does not have complete insight into his offending and that his risk of re-offending is not small": at [108]. In respect of Carney, she said that specific deterrence had "a slightly lesser role to play than it otherwise would, given the mental illness to which he later succumbed and which is now in remission": at [107]. 15Finally, the sentencing judge turned to the issue of parity and noted that "the offenders' involvement in Mr Reid's manslaughter [were] different, with the result that the greater criminality of Todd Carney's offending must be reflected in the sentences which are imposed". Carney was sentenced to a non-parole period of six years with a balance of term of three years, giving a total sentence of nine years. As noted above, the applicant was sentenced to a non-parole period of five years and two months, with a balance of term of two years six months, giving a total sentence of seven years and eight months: at [111]. Grounds of appeal (a) discount for proffered plea 16The question of the discount for an offer to plead to manslaughter requires reference to the procedural history of the charges and the possible consideration of further evidence sought to be led on the appeal. 17In February 2010 the Director of Public Prosecutions presented an indictment against the applicant and Mr Carney charging them with the murder of Derrick Reid. They pleaded not guilty, but were convicted by a jury. Neither gave evidence and the defence sought to raise a reasonable doubt as to whether they were present at the unit in Cartwright when the victim was assaulted. The jury believed the prosecution evidence, primarily of persons to whom they had admitted being involved in the assault. However, the convictions were set aside on the basis that the trial judge ought to have left the alternative verdict of manslaughter to the jury: Carney v R; Cambey v R [2011] NSWCCA 223. Between the date of that judgment (20 October 2011) and the time they went to trial on an indictment containing counts of murder and manslaughter, the applicant offered a plea of guilty to the charge of manslaughter. In discussing the mitigating factors relevant to the applicant, the trial judge stated at [91]: "Account must also be taken, however, of his earlier offer to plead guilty to manslaughter after the first trial. There was no evidence as to the circumstances of that offer and its refusal. Its rejection resulted in the second joint trial being conducted, where both offenders defended the charges of murder and manslaughter, so that no utilitarian savings resulted from the offer to [plead]. ... Nevertheless, in my view the offer must be considered as reflecting at least some willingness to facilitate the course of justice. In the result, I take the view that account of the offer must be taken in fixing the sentence, by way of a small discount. In the circumstances I do not propose to separately identify the amount of that discount." 18Two issues arise with respect to this passage. The first is that relied upon as a ground of appeal, namely whether the trial judge gave adequate allowance for the proffered plea. The second is to assess to what extent the discount apparently given accounts for the disparity in the sentences between Mr Carney (who did not offer to plead) and the applicant. The latter consideration is relevant to the adequacy of the part of the disparity reflecting the differing involvement of each in the offending. 19In the course of submissions, the trial judge noted that there had been a proffered plea to manslaughter to which his counsel remarked that "it is certainly not unusual for people to make offers on a pragmatic basis, and it is in that light that that has got to be looked at": Tcpt, 19/10/12, p 37(47). (i) tender of further evidence 20Perhaps recognising that the paucity of information as to the circumstances of the plea had been correctly identified in the judgment on sentence, counsel for the applicant sought to read in this Court an affidavit of counsel who appeared at the trial and on the sentencing hearing, in order to provide further detail. That step gave rise to an issue as to the admissibility of such material on appeal. The Court accepted the affidavit on the basis that its admissibility would be dealt with in this judgment. 21For the purposes of dealing with this application, it is appropriate to note that the affidavit did no more than identify that counsel had received instructions that his client was prepared to enter a plea of guilty to the charge of manslaughter and that he conveyed those instructions to the prosecutor on two occasions in May and June 2012. He further noted that on each occasion the offer was declined. 22Differing views had been expressed as to the appropriateness of this Court receiving further evidence on an appeal against sentence. While the nature of the available grounds has consistently been accepted as those stated in House v The King [1936] HCA 40; 55 CLR 499 at 505, the evidential basis for a challenge is less clear and is not identified in the Criminal Appeal Act 1912 (NSW), s 6(3). While evidence is commonly tendered on criminal appeals against sentence, the usual basis is that the further material is provided only for the purposes of resentencing, in the event that the Court decides to intervene. It is further generally accepted that evidence readily available to the offender at a hearing on sentence should not be accepted on appeal for the purpose of demonstrating that the sentencing judge was in error. An appeal against sentence is not to be treated as a fresh hearing where the question of the appropriate sentence can be reagitated on a different basis from that before the sentencing judge. 23It is neither necessary nor appropriate, given the absence of full submissions on the question, to deal in this case with the extent to which evidence not proffered to the sentencing judge should be accepted on appeal. Further, it is not necessary in this case because the evidence proffered does not take the matter any further. (ii) extent of discount 24As counsel for the Director correctly noted, the plea was offered without any indication as to the factual basis on which it might be justified and at a time when neither accused had suggested that it was the victim who had first produced the metal bar and had attempted to assault Mr Carney. In those circumstances, not only was the Director left with little material on which to determine whether or not to accept the plea, but, if accepted, a sentencing judge would have had little if any material on which to determine an appropriate sentence. For that reason, the trial judge was correct in assigning limited weight to the plea. 25There is a hint in her reasons that either because the offer was not accepted, or because the co-offender did not offer a plea, the trial did go ahead, or would have gone ahead, anyway, so that there was no utilitarian benefit to be derived from the offer. Both limbs of such an approach would have been erroneous, but it should not be accepted from the slightly awkward expression of reasoning set out above, that either approach was adopted. Rather it should be accepted that the trial judge gave an appropriate discount, an assumption which favours the applicant on his primary ground. 26The second ground of appeal must be rejected. (b) assessment of parity 27The disparity in sentences noted above may be summarised by saying that the applicant's non-parole period was 86% of that imposed on Mr Carney and the full term of the sentence was 85% of that imposed on Mr Carney. Measured in time, the applicant's non-parole period was 10 months less than that imposed on Mr Carney and his full sentence 16 months less. 28Some part of that differential should be ascribed to the discount which the trial judge accepted was to be allowed to the applicant in respect of his proffered plea. Given the importance of parity (and disparity) in this case, it is perhaps unfortunate that the discount was not quantified. It may, however, be assumed that the discount did not exceed 10% and, to be real and not trivial, must have been at least 5%. It would follow that the disparity in the sentences intended to reflect the different levels of culpability of each offender must have fallen within the range of 5%-10% or, in terms of months with respect to the non-parole period, between three and seven months. Thus, the issue with respect to the first ground of appeal was whether such a differential adequately reflected the different levels of culpability of each. 29One factor which must be weighed in the balance against the applicant's challenge is that any disparity which appropriately reflected the objective differential in the offending, will be reduced to some extent by the findings of the trial judge that Mr Carney (but not the applicant) demonstrated, if belatedly, remorse and that his prospects of rehabilitation were greater than those of the applicant. 30So far as their levels of culpability are concerned, there are two views available. On one view, the applicant was equally complicit with Mr Carney in the savage attack on the victim. Although he did not wield the metal pole, far from seeking to leave to or to dissuade Mr Carney from continuing to attack the victim once he had been disarmed, he actively encouraged and joined in by kicking the victim, presumably when he was on the floor. On that view, the difference in levels of culpability was limited. 31The alternative view is that, whilst the applicant was clearly complicit in all respects, the primary responsibility lay with Mr Carney, who administered numerous blows with the metal pole, as well as punching the victim in the head. Although the trial judge found that the applicant provided "intentional aid and encouragement", beyond the reference to kicking Mr Reid, there were no findings as to what precisely the applicant did. Nor was there any finding that the kicking was instrumental in causing death. Given the nature of the wounds inflicted with the metal pole, it would have been difficult, if not impossible, for the sentencing judge to assign any lethal activity to the applicant. In any event, the findings at [31] should not be understood as implicitly doing so. Rather, as she expressly noted at [32], "the criminality involved in Todd Carney's offending was clearly more serious than that of Luke Cambey". 32The latter view should be accepted. In that event, even making allowance for the countervailing considerations referred to above, the actual disparity in the sentences was inadequate to reflect the disparate levels of culpability. Mr Cambey undoubtedly played an active role in the assaults, but he was significantly less culpable than Mr Carney. That fact should have been reflected in a greater disparity in the sentences. 33There was no challenge, nor could there have been, to the appropriateness of the sentences viewed independently of each other. Nor should any lesser sentence be imposed on the applicant which would fall below the appropriate range required to reflect the objective seriousness of the offending. However, to reflect the different levels of culpability, an appropriate non-parole period is four years and 10 months with a balance of term of two years and four months, giving a sentence of seven years and two months. The non-parole period will expire on 15 July 2013. That is the first date on which the applicant will be eligible for parole. The balance of the sentence will expire on 15 November 2015. 34PRICE J: I have had the benefit of reading Basten JA's judgment in draft. As his Honour announced when granting leave to appeal and substituting a lesser sentence on 9 July 2013, the Court's decision was by a majority. I did not join in the Court's decision because I was not satisfied that the disparity between the applicant's sentence and Carney's sentence was unjustified. However, I agree with Basten JA's reasons for rejecting the second ground of appeal. I also agree that leave to appeal be granted. 35I note that Basten JA considers at [28] above that the unquantified discount for the proffered plea to manslaughter must have fallen within the range of 5 per cent - 10 per cent. In my view, if the discount had been more than 5 per cent, the trial judge would have identified the amount of the discount. 36In order to justify appellate intervention the disparity must be "marked". Where the objective criteria does not give rise to a justifiable sense of grievance, an appellate court will not intervene. The majority (French CJ, Brennan and Kiefel JJ) in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 observed at [32]: "A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders." ` 37In my respectful opinion, the trial judge gave careful consideration to the principle of parity. Her Honour expressly referred to the principle at [109] - [110] of the sentencing remarks immediately before sentencing both offenders. Her Honour had heard the evidence given before the jury and determined the part that each offender played in the crime. Her Honour found that the applicant's involvement in Mr Reid's death was less serious than Carney's but the applicant's offending was not at the lowest end of the scale for manslaughter. She analysed relevant differences in their subjective cases. 38In the case of Carney, the trial judge found that he had accepted responsibility for his actions which caused Mr Reid's death, actions for which he was remorseful. On the other hand, her Honour found there was no evidence that the applicant was remorseful for his offending. The applicant had not accepted his involvement in causing the death or criminal responsibility for his conduct. 39In the applicant's case there were no mental health issues, whereas Carney had suffered from episodes of schizophrenia. Her Honour found that at the time of the offence, Carney was "in a fragile mental state given the mental illness which he was then clearly developing, as the result of his prior serious drug abuse" (ROS at [78]). Her Honour observed that it was a brutal killing "but one which was clearly to some extent the result of Todd Carney's deteriorating mental state" (ROS at [78]). No such finding was made in respect of the applicant. 40Carney's mental illness impacted upon the weight given by the trial judge in Carney's case to specific deterrence. Her Honour found that "specific deterrence has a slightly lesser role to play than it otherwise would, given the mental illness to which he later succumbed and which is now in remission" (ROS at [107]). On the other hand, her Honour considered that "specific deterrence certainly has a role to play in [the applicant's sentence]" (ROS at [108]). Her Honour explained that the applicant did not have complete insight into his offending and that his risk of re-offending was "not small" (ROS at [108]). 41Another difference was in the findings of rehabilitation. The trial judge found that Carney was unlikely to re-offend and had good prospects of rehabilitation as long as he maintained his abstinence from drugs and alcohol and remained compliant with the anti-psychotic medication which had resulted in his mental illness going into remission. On the other hand, her Honour concluded that "there are reasons for having reservations as to the likelihood that [the applicant] will not re-offend and as to his prospects of rehabilitation" (ROS at 98). 42All of these considerations were significant. Having regard to these matters and the differences in the culpability of the applicant and Carney, I was not persuaded that the disparity in sentence gave rise to a justifiable sense of grievance. Accordingly, the orders that I proposed were that the appeal be dismissed. 43CAMPBELL J: I joined in pronouncing the Court's orders of 9th July 2013 for the reasons given by Basten JA. ********** 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. Decision last updated: 18 July 2013