Cambey v R [2013] NSWCCA 170

Cambey v R [2013] NSWCCA 170

By majority, the Court held that, after allowing for the small discount for the applicant's proffered plea, the remaining disparity between his sentence and Mr Carney's sentence was inadequate to reflect their different culpability. Mr Carney repeatedly struck the victim with a metal pole and punched him, while the applicant intentionally aided and encouraged the attack and kicked the victim, but there was no finding that the kicking was instrumental in causing death. The applicant was significantly less culpable, requiring a greater disparity in sentence, but the plea discount ground was rejected.

Jurisdiction
Australia
Judgment Date
09 July 2013
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence and Appeal in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal upheld by majority; sentence set aside and substituted with a lesser sentence.
Legal Topics
['manslaughter' 'parity Between Co Offenders' 'unjustified Disparity' 'discount for Offer to Plead Guilty' 'further Evidence on Appeal Against Sentence' 'excessive Self Defence']
['criminal Law' 'criminal Procedure' 'sentencing'] ['manslaughter' 'parity Between Co Offenders' 'unjustified Disparity' 'discount for Offer to Plead Guilty' 'further Evidence on Appeal Against Sentence' 'excessive Self Defence']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence and Appeal in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the difference between the sentences imposed on the applicant and his co-offender adequately reflected the disparity between their respective levels of culpability.' 'Whether the applicant received an inadequate discount for his earlier offer to plead guilty to manslaughter.' 'Whether further evidence concerning the offer to plead should be accepted on the sentence appeal.']

Ratio Decidendi

By majority, the Court held that, after allowing for the small discount for the applicant's proffered plea, the remaining disparity between his sentence and Mr Carney's sentence was inadequate to reflect their different culpability. Mr Carney repeatedly struck the victim with a metal pole and punched him, while the applicant intentionally aided and encouraged the attack and kicked the victim, but there was no finding that the kicking was instrumental in causing death. The applicant was significantly less culpable, requiring a greater disparity in sentence, but the plea discount ground was rejected.

Court Disposition

Leave to appeal granted; appeal upheld by majority; sentence set aside and substituted with a lesser sentence.

Orders

  • ['Grant leave to appeal against sentence.' 'Appeal upheld.' '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...