McKinley v R [2016] NSWCCA 53

McKinley v R [2016] NSWCCA 53

Leave to appeal against sentence was refused because the only comparable factor, the head sentence for robbery in company, was identical for the applicant and her co-offender; the co-offender's different non-parole period resulted from a later finding of special circumstances, whereas the sentencing judge expressly...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
08 April 2016
Procedural Posture
Criminal Application for Leave to Appeal Against Sentence / Application in the Court of Criminal Appeal for Extension of Time and Leave to Appeal Against Sentence Imposed in the District Court at Newcastle on 23 October 2014
Outcome
Time for filing the application for leave to appeal was extended, but leave to appeal against sentence was refused.
Legal Topics
['application for Leave to Appeal Against Sentence' 'parity With Co Offender' 'robbery in Company' 'non Parole Period' 'special Circumstances Under Crimes (sentencing Procedure) Act 1999 (nsw), S 44']
['criminal Law' 'sentencing'] ['application for Leave to Appeal Against Sentence' 'parity With Co Offender' 'robbery in Company' 'non Parole Period' 'special Circumstances Under Crimes (sentencing Procedure) Act 1999 (nsw), S 44']

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Procedural Posture

Criminal Application for Leave to Appeal Against Sentence / Application in the Court of Criminal Appeal for Extension of Time and Leave to Appeal Against Sentence Imposed in the District Court at Newcastle on 23 October 2014

Legal Issues

  1. 1 ['Whether time should be extended for filing the application for leave to appeal against sentence.' 'Whether the applicant had a justifiable sense of grievance when comparing her sentence for robbery in company with that imposed on her co-offender.' "Whether the difference in non-parole periods arising from a finding of special circumstances for the co-offender disclosed error in the applicant's sentence."]

Ratio Decidendi

Leave to appeal against sentence was refused because the only comparable factor, the head sentence for robbery in company, was identical for the applicant and her co-offender; the co-offender's different non-parole period resulted from a later finding of special circumstances, whereas the sentencing judge expressly declined to find special circumstances for the applicant and that finding was not challenged. No sentencing error or justifiable parity grievance was shown, and the applicant had played a significantly greater role in the offending.

Court Disposition

Time for filing the application for leave to appeal was extended, but leave to appeal against sentence was refused.

Orders

  • ['With respect to the sentence imposed by Wilson SC DCJ in the District Court at Newcastle on 23 October 2014, extend the time for filing the application for leave to appeal to 24 November 2015.' 'Refuse leave to appeal against sentence.']