Chandler v The The Queen

[2022] NSWCCA 124

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Chandler v R [2022] NSWCCA 124

Hearing dates:

27 May 2022

Date of orders:

10 June 2022

Decision date:

10 June 2022

Before:

Bell CJ at [1];
Button J at [30];
N Adams J at [31]

Decision:

1.   Grant leave to appeal.

2.   Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against sentence – principle of parity – where applicant and co-offender pleaded guilty to different offences arising from identical facts – where different offences reflected different levels of moral and criminal culpability

CRIME – appeals – appeal against sentence – aggravating factors – in company – Applicant carried out offence in company with co-offender – where co-offender pleaded guilty to lesser offence on the basis of joint criminal enterprise – whether the fact that Applicant was in company was an element of his offending

SENTENCING – appeal against sentence – co-offenders – disparity between sentences – applicant shot victim in leg after co-offender lured him into position – applicant and co-offender pleaded guilty to different offences arising from identical facts – where maximum penalty for applicant’s offence is 25 years’ imprisonment compared to 10 years for co-offender’s offence – where applicant’s moral and criminal culpability significantly higher than that of co-offender – where applicant obtained lesser discount than co-offender for guilty plea – whether there was unjustifiable disparity between applicant and co-offender’s sentences

SENTENCING – appeal against sentence – aggravating factors – in company – Applicant carried out offence in company with co-offender – where co-offender pleaded guilty to lesser offence on the basis of joint criminal enterprise – whether the fact that Applicant was in company was an element of his offending

Legislation Cited:

Crimes Act 1900 (NSW) ss 33A, 93G

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 10(1)(a), 21A(2), 25D, 25E

Criminal Procedure Act 1986 (NSW) s 166

Firearms Act 1996 (NSW) s 65(3)

Cases Cited:

Daw v R [2017] NSWCCA 327

Gaggioli v R [2014] NSWCCA 246

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kadwell (a pseudonym) v R [2021] NSWCCA 42

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

R v Birchell [2020] NSWDC 69

Tabbah v R [2019] NSWCCA 324

Category:

Principal judgment

Parties:

Dylan Zachary Chandler (Applicant)
The Crown (Respondent)

Representation:

Counsel:

G D Wendler (Applicant)
A Morris (Respondent)

Solicitors:

Criminal Law Group (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2018/305344

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

2 March 2021

Before:

Colefax SC DCJ

File Number(s):

2018/305344

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 30 November 2020, Mr Dylan Zachary Chandler (the Applicant) pleaded guilty in the District Court to one count of discharging a firearm with intent to cause grievous bodily harm, contrary to s 33A(1)(a) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 25 years’ imprisonment with a standard non-parole period of nine years. The Applicant’s plea of guilty was entered at a very late stage, on the first day set down for his trial, and entitled him to a 5% discount to the duration of his sentence.

The Applicant was sentenced to six years and seven months’ imprisonment with a non-parole period of four years and three months. The Applicant’s co-offender, Mr Daniel Owusu-Ansah (Owusu-Ansah), who was responsible for meeting the victim at the front of his home and luring him to a position where the Applicant could shoot him, pleaded guilty to the offence of firing a firearm in a manner likely to injure, contrary to s 93G(1)(c) of the Crimes Act, on the basis of a joint criminal enterprise (the s 93G offence). The s 93G offence carried a maximum penalty of 10 years’ imprisonment with no standard non-parole period. Owusu-Ansah was sentenced to two years and nine months’ imprisonment with a non-parole period of one year and nine months, incorporating a 25% discount for an early guilty plea.

Although the essential facts of the Applicant and Owusu-Ansah’s respective offences were the same, Owusu-Ansah’s plea did not entail any element of intent to cause grievous bodily harm. The sentencing judge expressly considered the principle of parity in the remarks on sentence and concluded that the Applicant’s moral and criminal culpability was significantly higher than that of Owusu-Ansah. His Honour also found that the Applicant’s offending was aggravated by the fact that it occurred “in company”, pursuant to s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The Applicant sought leave to appeal against his sentence on two grounds. First, that there was an unjustifiable disparity between his sentence and that imposed on Owusu-Ansah and, secondly, that the sentencing judge erred in taking account of the fact that the Applicant’s offence was committed in company as an aggravating factor.

The principal issues on appeal were:

1. whether the sentencing judge erred in applying the principle of parity (the parity issue); and

2. whether the fact that the Applicant’s offence was committed “in company” was an aggravating factor (the “company” issue).

The Court held (Bell CJ, Button and N Adams JJ agreeing), granting leave to appeal but dismissing the appeal.

As to the parity issue

1. The sentencing judge properly applied the principle of parity in formulating the Applicant’s sentence. Although his offending arose from the same essential facts as Owusu-Ansah’s, there was a significant difference between the maximum penalties for the respective offences and the Applicant’s moral and criminal culpability was considerably higher: [19]–[23] (Bell CJ); [30] (Button J); [31] (N Adams J).

Kadwell (a pseudonym) v R [2021] NSWCCA 42; Daw v R [2017] NSWCCA 327; England v R, Phanith v R [2009] NSWCCA 274; Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Lloyd v R [2017] NSWCCA 303; Afu v R [2017] NSWCCA 246; Gaggioli v R [2014] NSWCCA 246; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, referred to.

As to the “company” issue

2. The sentencing judge properly took into account that the Applicant’s offence was committed in company as an aggravating factor. Principles of joint criminal enterprise did not form the basis of the Applicant’s liability, such that “company” was not an element of his offending, whereas it was in Owusu-Ansah’s case: [27] (Bell CJ); [30] (Button J); [31] (N Adams J).

Tabbah v R [2019] NSWCCA 324, distinguished on the facts.

Judgment

1. BELL CJ:

Introduction

On 30 November 2020, Mr Dylan Zachary Chandler (the Applicant) entered a plea of guilty before Colefax SC DCJ (the sentencing judge) on the following count:

“Dylan Zachary Chandler

1   On 2 October 2018 at Warwick Farm in the State of New South Wales, discharged a firearm with intent to cause grievous bodily harm.

S 33A(1)(a) Crimes Act 1900 Law part code 63631”.

2. Count 1 carried a maximum penalty of 25 years’ imprisonment with a standard non-parole period of nine years.

3. The Applicant also consented to the sentencing judge dealing with a further offence of possessing ammunition without holding a licence, permit or authority, contrary to s 65(3) of the Firearms Act 1996 (NSW), on a certificate issued pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) (the s 166 offence). But for the certificate, that offence would ordinarily be dealt with in the Local Court of New South Wales. The s 166 offence carried a maximum penalty of a fine of 50 penalty units.

Agreed facts and proceedings on sentence

4. The Applicant was sentenced on the basis of a statement of agreed facts, which was relevantly summarised by the sentencing judge as follows: [1]

   1. Remarks on sentence at [6]–[33] (ROS).

“6    In July 2018, when [the Applicant was] aged 21 years, [he was] released from gaol having served a term of imprisonment.

7     Whilst in gaol on that occasion, [the Applicant] met Mr Hayden Pillay [the victim].

8     As sometimes happens between inmates of correctional facilities, [the Applicant] and [the victim] had occasional disagreements.

9     Notwithstanding those disagreements, [the Applicant] and [the victim] continued to socialise once both of [them] left gaol. From time to time, this involved [the Applicant] visiting [the victim’s] home unit at Warwick farm.

10   In September 2018, [the victim] began a relationship with Ms Doolan – someone who also knew [the Applicant].

11   In the early hours of the morning of 30 September 2018, [the Applicant] visited [the victim] at his home unit. For some reason or other [the Applicant] slept there. It would seem that [he] had taken a bag with [him], which contained an unspecified amount of money which [he was] going to use to pay off a debt to an unidentified person.

12   When [the Applicant] awoke later that morning, [he] noticed that the money [he] thought had been in [his] bag was missing. Who else was in that unit apart from [the Applicant] and [the victim] between the time [he] went to sleep and later awoke is not revealed. [He] mentioned the missing money to [the victim] who said he would try to help [the Applicant] ‘get the money [he] needed’.

13   At around midday, [the Applicant was] still in [the victim’s] unit. [He] was in the laundry and [he called the victim] to come into that room.

14   When [the victim] did so, he saw a rifle on top of the washing machine. [The Applicant] had brought it with [him], possibly in the bag which contained the missing money.

15   [The victim] told [the Applicant] to immediately remove that firearm from those premises. [The Applicant] told [the victim] that a friend of [his] was going to collect it.

16   [The Applicant] (and the firearm) were still in [the victim’s] unit at 6:00pm when a friend of [the Applicant’s] (Mr Birchell) arrived in a motor vehicle. By this stage, the firearm was (back) in [the Applicant’s] bag. [He] gave the bag to Mr Birchell, who drove off. It is not asserted by either the Crown or [the Applicant] that Mr Birchell knew that the firearm was in that bag.

17   Although [he] did not know Mr Birchell, [the victim] was with [the Applicant] when the bag was handed over – after which [the Applicant] and [the victim] returned to [his] unit.

18   After a time, [the Applicant] left [the victim’s] unit.

19   However, later that evening, and during the next day (1 October 2018), [the Applicant] came on several occasions to [the victim’s] unit with an unidentified young man. On each occasion, [he] asked [the victim] to help [him] get [his] money.

20   During 1 October, [the Applicant] and Mr Birchell exchanged a number of Facebook messages; and [the Applicant] and Ms Doolan ([the victim’s] girlfriend) also exchanged a number of Facebook messages.

21   The gist of these messages would seem to be that [the Applicant was] accusing [the victim] of stealing the money from [his] bag in the early hours of 30 September 2018.

22   Shortly after midnight on 2 October 2018, [the victim] read some of the Facebook messages [the Applicant] had sent to his girlfriend. They annoyed him because he thought [the Applicant was] showing disrespect to his girlfriend. [The victim] sent [the Applicant] a Facebook message telling [him] to come back to the home unit complex where the two of [them] would become involved in a ‘one on one’ fight in the garage of the complex, to sort things out. [The Applicant] accepted his invitation.

23   A series of Facebook messages then passed between [the Applicant] and Mr Birchell as a result of which, for $150.00, Mr Birchell drove [the Applicant] and an associate of [the Applicant] (Mr Owusu-Ansah) to [the victim’s] home unit complex. Mr Birchell agreed to wait to drive [the Applicant] back to [his] home at Greenacre.

24   [The Applicant] took a rifle with [him] on this journey. It is not clear whether it was the firearm in the bag earlier placed in Mr Birchell’s motor vehicle. But it is important to note that Mr Birchell did not know why [the Applicant] and Mr Owusu-Ansah were going back to [the victim’s] unit – or that [the Applicant] was carrying a rifle or firearm of any kind.

25   When Mr Birchell dropped [the Applicant] and Mr Owusu-Ansah off, [the Applicant] told him to wait and that [he] would return in 20 minutes.

26   Shortly before 4:00am, [the Applicant] sent a Facebook message to [the victim] telling him to ‘come out the front’. Further similar messages were exchanged between the two of [them].

27   [The victim] went outside his home unit and down the stairs to the front entrance to the complex where he saw Mr Owusu-Ansah but did not see [the Applicant] because [he] was hiding around the corner of the building. [The victim] and Mr Owusu-Ansah spoke about where [the Applicant was] and where [the victim] was to go to find [him].

28   [The Applicant] then stepped into view … [He was] holding the rifle which [he] raised, pointed at [the victim], and then fired a single shot.

29   It was submitted on [the Applicant’s] behalf that [he] thought [the victim] would bring a knife to the fight. However, [he] chose to go to [the victim’s] premises. [He] chose to lie in wait for [the victim] until Mr Owusu-Ansah lured him into position. [The Applicant] chose to take a rifle with [him]. When [he] emerged from [his] hiding spot, [he] didn’t wait to see if [the victim] was armed with a knife or not – without a moment’s hesitation, [he] aimed and fired. Even if [he] had that belief (which I am not satisfied about on the balance of probabilities), it provides no circumstance of mitigation whatsoever.

30   The bullet entered [the victim’s] right lower leg just below the knee joint. The bullet lodged in the lateral calf muscle. No further information about that wound has been provided. I shall not speculate about that matter adversely to [the Applicant].

31   [The Applicant] and Mr Owusu-Ansah then returned to Mr Birchell’s car and he drove [the Applicant] back to [his] house at Greenacre.

32 On 7 October 2018, [the Applicant was] arrested in relation to unrelated matters. [His] premises were then searched in relation to those matters, during which the ammunition the subject of the s 166 certificate was found – and after which [he was] arrested in relation to the matters before the Court today.

33   [The Applicant has] been in custody continuously since that date – but not only in relation to those two matters.” (emphasis added)

5. The Applicant was sentenced to a term of imprisonment of six years and seven months, commencing on 17 February 2020, with a non-parole period of four years and three months. The Applicant’s sentence will expire on 16 September 2026 and he will be eligible for parole on 16 May 2024. The sentencing judge “would have sentenced [the Applicant] to a term of imprisonment of seven years” but for the Applicant’s “very late” guilty plea, which entitled him to a discount of 5% in accordance with s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). [2]

   2. Ibid at [62].

6. In the remarks on sentence, the sentencing judge also found the Applicant guilty of the s 166 offence, pursuant to s 10(1)(a) of the Sentencing Act, but by reason of the sentence to be imposed in relation to Count 1, his Honour was satisfied that it was “inexpedient to impose any penalty”. [3]

   3. Ibid at [4].

7. The sentencing judge considered that the objective seriousness of Count 1 was “slightly below [the] mid-range”. [4] However, his Honour found that the offence was aggravated by the fact that the Applicant was on bail on 2 October 2018 and, importantly for the purposes of the second ground of appeal, the fact that the Applicant committed the offence “in company” (for the purposes of s 21A(2)(e) of the Sentencing Act). [5]

   4. Ibid at [35].

   5. Ibid at [36].

8. In relation to Count 1, there were two co-offenders, Mr David Birchell and Mr Daniel Owusu-Ansah (Owusu-Ansah). As noted in the statement of agreed facts, Mr Birchell was responsible for driving the Applicant and Owusu-Ansah to the victim’s home and was described by the sentencing judge as a “completely innocent person in relation to this activity” until he was notified by the Applicant that the victim had been shot in the leg. [6] At this point, he became an accessory after the fact of the Applicant’s offence, for which he was made subject to a community correction order for a period of two years.

   6. R v Birchell [2020] NSWDC 69 at [14]–[17].

9. Owusu-Ansah was responsible for meeting the victim at the front gate to his unit block and “lur[ing] him into position”[7] so that the Applicant could shoot him in the leg. Notwithstanding that Owusu-Ansah did not discharge a firearm, on 18 June 2020 he pleaded guilty to the offence of firing a firearm in a manner likely to injure, contrary to s 93G(1)(c) of the Crimes Act 1900 (NSW) (the s 93G offence), which carried a maximum penalty of 10 years’ imprisonment with no standard non-parole period. This plea must have been entered on the basis of a joint criminal enterprise, meaning that Owusu-Ansah had entered into an agreement with the Applicant to carry out the offence.

   7. ROS at [29].

10. For the s 93G offence, Owusu-Ansah was sentenced by Townsden DCJ, on 25 September 2020, to two years and nine months’ imprisonment with a non-parole period of one year and nine months. This sentence incorporated a 25% discount for an early offer of a guilty plea, in accordance with s 25E(2) of the Sentencing Act. [8]

    8. Owusu-Ansah remarks on sentence at 9.

11. The agreed facts on which Owusu-Ansah was sentenced were “essentially the same” as those in respect of the Applicant, save for the Crown’s concession that Owusu-Ansah “did not share the intent to cause [grievous bodily harm]”. [9]

    9. Transcript of proceedings on sentence at 5.21 (POS).

12. In his remarks on sentence in respect of the Applicant, the sentencing judge said: [10]

“56  The co-offender, Mr Owusu-Ansah, was sentenced by his Honour, Judge Townsden, on 25 September 2020. Accordingly, considerations of parity need to be taken into account.

57   [The Applicant] and Mr Owusu-Ansah are of a similar age.

58   He was sentenced in relation to a differen[t] offence which had a significantly lesser maximum penalty.

59   [The Applicant] and [Owusu-Ansah] had clearly different roles, not least of which was that [the Applicant was] the instigator of the offence and pulled the trigger.

60   [The Applicant has] a more extensive criminal record and [has] been in custody previously.

61   Accordingly, [the Applicant has] a much higher level of moral and criminal culpability than that co-offender.” (emphasis added)

10. ROS at [56]–[61].

Grounds of appeal

13. Ground 1 of the Notice of Appeal was that:

“the Applicant has a justifiable sense of grievance or complaint, having regard to the sentence imposed upon him compared to that of the Offender, Owusu-Ansah, and therefore the sentence imposed upon the Applicant was manifestly excessive.”

14. The second ground of appeal concerned the sentencing judge’s finding that the offending in Count 1 was aggravated by the fact that it was committed “in company” with Owusu-Ansah. Ground 2 was expressed as follows:

“the Sentencing Court erred by erroneously taking into account as an aggravating factor, within the terms of s21A (2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) that the index offence was committed ‘in company’.”

I have assumed that the reference to “s 21A(2)(c)” in ground 2 was intended to refer to s 21A(2)(e) of the Sentencing Act, which identifies the fact that “the offence was committed in company” as an aggravating factor on sentence.

Ground 1: parity

15. In Kadwell (a pseudonym) v R (Kadwell),[11] Leeming JA made the following observations in relation to the principle of parity:

    11. [2021] NSWCCA 42 at [11]–[13].

“11   The principle of parity derives from the fundamental norm of equal justice according to law. As applicable to this appeal, it was said in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]:

‘Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2001) 207 CLR 584 at 608 [65]:

“Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.”’ (Emphasis original)

12   Their Honours referred, at [30], to the difficulty that can arise, in appeals based on the operation of the principle of parity, when participants in the same offending conduct have been differently charged:

‘The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged.’ (Footnote omitted).

13   Returning to the present appeal, the fact that the appellant’s co-offender has been charged in relation to different offending, and has been charged differently in relation to the same offending, does not prevent the operation of the principle of parity. The ultimate question remains whether the appellant has made out unjustifiable disparity between her sentence and that of her co-offender. That question is to be answered by consideration of substance rather than form.”

16. When a question of parity arises on appeal but, as in the present case, that principle has been the subject of attention by the sentencing judge, error of the kind identified in House v The King [12] must be established. [13]

    12. (1936) 55 CLR 499; [1936] HCA 40.

    13. Daw v R [2017] NSWCCA 327 at [21] per Basten JA.

17. Whilst Leeming JA, in Kadwell, made plain that the “the fact that [a] co-offender … has been charged differently in relation to the same offending” does not prevent the operation of the parity principle,[14] by the same token, the prosecutorial discretion to determine the charges to be preferred against an offender or offenders is not susceptible to judicial review. [15] The more significant the difference in maximum penalties between the offences charged, the more difficult it becomes to give effect to the principle of parity because of the “yardstick” role played by maximum penalties in the sentencing process. [16]

    14. Kadwell at [13].

    15. Gaggioli v R [2014] NSWCCA 246 at [25]–[36].

    16. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [31].

18. In the present case, it will be recalled that the Applicant was sentenced to a period of six years and seven months’ imprisonment, whilst Owusu-Ansah was sentenced to a period of two years and nine months’ imprisonment, a difference of three years and 10 months between the terms of their respective head sentences.

19. The points of difference highlighted by the sentencing judge, as set out in the extract from the remarks on sentence reproduced at [12] above, were not challenged by the Applicant. They reflected the following passage of argument from, and concessions made in the course of, the sentencing hearing: [17]

    17. POS at 15.26–17.28.

“SHRIDHAR:  Parity, your Honour.

HIS HONOUR:  --comparing Mr Owusu-Ansah and [the Applicant].

SHRIDHAR:  Yes, your Honour … in regards to the objective roles—

HIS HONOUR:   Were the charges the same?

SHRIDHAR:   No, they were different, your Honour.

HIS HONOUR:  So, what was – he was charged in the maximum penalty.

SHRIDHAR:  Your Honour, he was charged under s [9]3G. I’ve just got to find the maximum penalty …

HIS HONOUR: 10 years imprisonment, according to his Honour’s reasons … So, he was charged with firing a firearm in a manner likely to injure.

SHRIDHAR:  Yes … so an offence that has a maximum penalty of significantly less for the co-offender, Mr Owusu. He was not—

HIS HONOUR:  So, it’s 93G, the maximum is 10. Compared to [the Applicant] who’s 33A, a maximum of 25.

…

SHRIDHAR:  Your Honour, the person who pulled the trigger was obviously [the Applicant]. That puts him even higher, again.

HIS HONOUR:  So, it’s a joint criminal enterprise.

SHRIDHAR:  Yes, but as to roles, as to who did what.

HIS HONOUR:  Yes, different role … Owusu-Ansah lured the victim out and [the Applicant] pulled the trigger.

SHRIDHAR:  Pulled the trigger. The level of planning which can be inferred – well, which is direct in regards to [the Applicant], is there is a level of planning, there is – and certainly [the Applicant] was the instigator and the principal offender in the common purpose. It’s a little bit unclear as to what or when Mr Owusu joined the criminal enterprise, but certainly he wasn’t reading between the lines. Or in fact, it’s quite clear that Mr Owusu was not the person who put the idea in [the Applicant’s] head, that idea to confront, arm himself, obtain a weapon, are all matters that raise [the Applicant] to a higher level of moral culpability. In my respectful submission, the issue of parity, in many ways, whilst it’s applicable would certainly elevate [the Applicant] and warrant [him] receiving a significantly greater sentence.

HIS HONOUR:  Is there an age difference between the two?

SHRIDHAR:  Not a great deal, your Honour … I thought they were about the same age … They’re about the same age …

HIS HONOUR:  Similar ages, and what about criminal records?

SHRIDHAR:  [The Applicant’s] record, your Honour, is greater in detail, however, the only matter of violence as an adult … where he received a common assault – it looks like 18 May, he was charged, and it looks like he was finalised the very next day by way of a good behaviour bond.

HIS HONOUR:  Does Mr Owusu-Ansah have any criminal history of violence as an adult?

…

SHRIDHAR:   … Mr Owusu’s record is very limited, shoplifting, graffiti, in possession of drugs. [The Applicant], once again, is elevated because of the nature of serious drug offences and custodial terms. Mr Owusu did not serve a custodial term prior, so for all accounts, if one was crossing boxes in a negative way, [the Applicant] is elevated in every shape and form, and that’s acknowledged and must be acknowledged.” (emphasis added)

20. One key matter which emerged from the different charges levelled against each of the co-offenders was that it was an element of the offence to which the Applicant ultimately pleaded guilty that he had intended to cause grievous bodily harm. In contrast, this did not form an element of the s 93G offence with which Owusu-Ansah was charged and to which he pleaded guilty. This provides some explanation for the candid and proper concessions made by the Applicant’s counsel in relation to the question of parity during the sentencing hearing.

21. Subject to appeal ground 2, dealt with at [24]–[28] below, another factor contributing to the disparity between the two sentences was the sentencing judge’s finding that the Applicant’s offending was aggravated by the fact of his being “in company” with Owusu-Ansah. For reasons explained below, this was a matter legitimately taken into account in the case of the Applicant, but which could not have been taken into account in Owusu-Ansah’s case because the fact that he was in the Applicant’s company was integral to his liability, on the basis of a joint criminal enterprise, whereas the converse was not the case.

22. In addition to these matters, the disparity between the two sentences was magnified by the difference between the 5% discount the Applicant obtained and the 25% discount afforded to Owusu-Ansah for his early guilty plea. When that matter is taken into account and “corrected”, for comparison purposes, the apparent disparity between the sentences reduces significantly.

23. Taking these matters into account together with the differences properly identified by the sentencing judge, and bearing in mind the proper constraints dictated by House v The King, there was no relevant disparity to invite appellate interference.

Ground 2: “company” as an aggravating factor

24. This ground can be dealt with in short compass.

25. The s 33A offence to which the Applicant pleaded guilty was undoubtedly carried out “in company”, and this is an aggravating factor which s 21A(2)(e) of the Sentencing Act requires to be taken into account.

26. The apparent basis of the Applicant’s complaint is that both the Applicant and Owusu-Ansah were participating in a joint criminal enterprise to shoot and injure the victim, and the fact that the Applicant was in company could not therefore constitute an additional aggravating factor as it was integral to the offence. Reliance was placed on Tabbah v R,[18] in which Johnson J (with whom Bathurst CJ and Fullerton J agreed) said:

“113   The statutory aggravating factor of being ‘committed in company’ under s.21A(2)(e) is not made out merely because an offender happens to be in the company of another person at the time of the offending, with ‘company’ meaning the presence of another person involved in the criminal undertaking, usually in order to give weight to the threats made by another offender: Gore v R (2010) 208 A Crim R 353; [2010] NSWCCA 330 at [29].

114   In the circumstances of this case, the liability of the Applicant for the crime of manslaughter arose because he was present with Mr Tiriaki at the time when the latter discharged the firearm, with the Applicant contemplating the possibility that his companion would discharge the firearm. In the circumstances of this case, the concept of being ‘in company’ with Mr Tiriaki was an integral part of the offence itself.

115   The Crown is not assisted by the theoretical possibility that another person may be liable to conviction for an offence by operation of the extended joint criminal enterprise principle even though the person was not physically present in the vicinity of the crime when it was committed. That is not a helpful analysis for the purpose of understanding the Applicant’s liability to be convicted of manslaughter in the circumstances of this case.

116 Accordingly, I am satisfied that the sentencing Judge erred in having regard to this aspect as a statutory aggravating factor under s.21A(2)(e) so that this ground of appeal has been made good.” (emphasis in original)

18. [2019] NSWCCA 324 at [113]–[116].

27. Whilst joint criminal enterprise was the basis upon which the charge against Owusu-Ansah was no doubt maintained (given that it was the Applicant who discharged the firearm; see [9] above), the same could not be said in relation to the Applicant. As the Crown correctly submitted, principles of joint criminal enterprise were not relied upon and did not form the basis of the Applicant’s liability. It was he who harboured animosity towards the victim, he who arranged the meeting at which the victim was shot, he who brought the rifle to the crime scene and he who called out to the victim and shot him.

28. In these circumstances, it was open to the sentencing judge to find that, in committing the s 33A offence, the Applicant’s conduct was aggravated by the fact that he was in the company of Owusu-Ansah.

Disposition

29. For these reasons, I would grant leave to appeal but dismiss the appeal.

30. BUTTON J: I agree with the Chief Justice.

31. N ADAMS J: I agree with Bell CJ.

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Endnotes

Decision last updated: 10 June 2022