Clarke v The Queen

[2021] NSWCCA 248

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Clarke v R [2021] NSWCCA 248

Hearing dates:

16 June 2021

Date of orders:

27 October 2021

Decision date:

27 October 2021

Before:

Meagher JA at [1]
Garling J at [2]
Beech-Jones J at [88]

Decision:

See [93]

Catchwords:

CRIME – Appeals – appeal against sentence – two co-offenders sentenced contemporaneously for similar but not identical offences – aggregate sentence imposed – alleged grievance at the disparity in the sentences – whether there was marked or clearly unjustifiable disparity – no justifiable sense of grievance from comparison of indicative sentences – differential application of the totality principle has no proper basis – applicant is to be resentenced so his aggregate sentence reflect that of his co-accused – appeal allowed

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Afu v R [2017] NSWCCA 246

Ayik v Regina [2013] NSWCCA 119

DGM v Regina [2006] NSWCCA 296

El-Helou v R [2014] NSWCCA 209

Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462

Jimmy v Regina [2010] NSWCCA 60; (2010) 77 NSWLR 540

Kelly v R [2017] NSWCCA 256

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Pearce v R [1998] HCA 57; (1998) 194 CLR 610

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Clarke [2013] NSWCCA 260

R v Kelly [2005] NSWCCA 280

Tran v Regina [2006] NSWCCA 266

Why v R [2017] NSWCCA 101

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Harrison Max Clarke (Applicant)
Regina

Representation:

Counsel:
G Bashir SC (Applicant)
M Millward (Respondent)

Solicitors:
Conditsis & Co (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2018/136995; 2018/137029;
2018/137075; 2018/137020

Publication restriction:

Not Applicable

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

11 June 2020

Before:

J D Smith SC DCJ

File Number(s):

2018/136995; 2018/137029;
2018/137075; 2018/137020

Judgment

1. MEAGHER JA: I agree for the reasons given by Beech-Jones J that the sentence imposed should be set aside and Mr Clarke re-sentenced as proposed by his Honour.

2. GARLING J: Harrison Max Clarke (“the applicant”) seeks leave to appeal against an aggregate sentence imposed on him in the District Court by J D Smith SC DCJ (“the Judge”).

3. The aggregate sentence consisted of a total period of 13 years with a non‑parole period of 7 years and 8 months. The aggregate sentence was imposed for six separate offences. It will be necessary to describe those offences in due course.

4. The application for leave to appeal is based upon a single ground which is expressed in the following way:

“The applicant has a justifiable sense of grievance from the aggregate sentence imposed on him having regard to the discrepancy between his sentence as compared with the aggregate sentence imposed on his co-accused Mr Atashi taking into account the relevant similarities and differences between the facts and circumstances of each of the offences and offenders informing the respective sentences.”

5. It is to be observed from the ground of appeal that the Court is being asked to consider the disparity between the sentence imposed on the applicant and the sentence imposed on Mr Atashi. The sentences were imposed on the same day, by the same Judge, one after the other.

Legal Principles

6. The Court only comes to consider a question of parity, or alternatively put, an inappropriate degree of disparity between sentences, in circumstances where it is accepted that the sentence is in all other respects an appropriate one and one falling within the proper discretionary range of sentences applicable in the circumstances: Jimmy v Regina [2010] NSWCCA 60 at [251]; (2010) 77 NSWLR 540

7. The parity principle is an aspect of equal justice which requires that there be consistency in punishment. Unequal treatment under the law is likely to lead to an erosion of public confidence in the integrity of the administration of justice: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at p.610-611 per Mason J; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at p.301 per Dawson and Gaudron JJ, at 335 per Kirby J; Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [28] and [30] per French CJ, Crennan and Kiefel JJ.

8. The discrepancy required to be identified between sentences is one which is not merely an arguable one, but one which is “marked” or “clearly unjustifiable”, or “manifest … such as to engender a justifiable sense of grievance” or else it “[appears] that justice has not been done”: Lowe at 610 per Gibbs CJ (Wilson J agreeing), at 613 per Mason J, at 623-624 per Dawson J; Postiglione at 301 per Dawson and Gaudron JJ, at 323 per Gummow J, at 338 per Kirby J; Green at [31] per French CJ, Crennan and Kiefel JJ, at [105] per Bell J; DGM v Regina [2006] NSWCCA 296 at [46] per Latham J (McColl JA agreeing).

9. Because the elimination of unjustified discrepancy is a matter of importance, not just to the individual concerned but to the administration of justice in the community more generally, the Court applies an objective test i.e. that a reasonable mind looking over all of what has happened would see that a grievance was justified: Lowe at 613 per Mason J, R v Kelly [2005] NSWCCA 280 at [11] per Johnson J (Simpson J agreeing); Green at [31] per French CJ, Crennan and Kiefel JJ.

10. One limitation on the adjustment of any sentence by way of reduction, because of the application of the parity principle, is that the Court ought not reduce a sentence below a level which would mean that the sentence would be wholly inadequate having regard to the offence involved and the criminality of the offender, and consequently the result would be an affront to the proper administration of justice: Kelly at [12] per Johnson J (Simpson J agreeing); Green at [33] per French CJ, Crennan and Kiefel JJ.

11. It also needs to be kept in mind that particularly where two sentences the subject of the comparison for the purpose of parity have been imposed by the same sentencing Judge at the same time, where the sentencing Judge has recognised the importance of the parity principle and apparently gives effect to it, this Court would be cautious to intervene. Any disparity must be gross, marked or glaring in order to justify such an intervention: Afu v R [2017] NSWCCA 246 at 15.

12. Because the Court must consider the head sentence and all components of the sentence, including the non-parole period and total effective period that both offenders will serve (Postiglione at 303 per Dawson and Gaudron JJ, at 338 per Kirby J) and must also consider all of the facts and circumstances applicable to both individuals involved, including the objective seriousness of the offences, in order to identify whether a differential sentence was justified (Green at [30] per French CJ, Crennan and Kiefel JJ), it is appropriate for the Court to look at the indicative sentences announced by the sentencing Judge for each of the offences: Why v R [2017] NSWCCA 101 at [55].

13. As McCallum J said in R v Clarke [2013] NSWCCA 260 at [68]:

“In comparing the two sentences, it is necessary to bear in mind the fact that the applicant received an aggregate sentence. I see no reason in principle why, in order to determine whether there has been equal justice, a sentence passed on a co-offender may not be compared with an aggregate sentence, taking due account of the other offences comprehended within the aggregation. A primary consideration in that exercise will of course be to consider the indicative sentence for the equivalent offence. That is one of the functions of the requirement under s 53A(2) for the judge to identify the sentence that would have been passed if not an aggregate sentence. …”

14. However, it is necessary to bear in mind, as Macfarlan JA said in El-Helou v R [2014] NSWCCA 209 at [30]: “… a merely arithmetical comparison” would not be appropriate (Tran v Regina [2006] NSWCCA 266 at [24], Ayik v Regina [2013] NSWCCA 119 at [33]).

Comparison of Sentences

15. I set out here a simplified chart of the offences with which the applicant and Mr Atashi were charged, any Form 1 offences, a description of the maximum penalties and standard non-parole periods and a description of the indicative sentences, and finally the aggregate sentence which each received. The chart also identifies the geographical location of the offences so as to enable a ready comparison between the applicant and Mr Atashi.

OFFENCE	HARRISON CLARKE	KUROUSH ATASHI
Ettamogah Hotel
Affray (10 years)	3 years – reduced to 2 years 3 months	3 years – reduced to 2 years 3 months
Gateway Motel
Specially aggravated detain in company and inflict ABH (14 years)	8 years – reduced to 6 years (Form 1 included two offences: threaten victim (7 years) and participate in criminal group (5 years)	7 years 6 months – reduced to 5 years 7 months (Form 1 included one offence: participate in criminal group (5 years))
Demand property with menaces in company (14 years)	4 years – reduced to 3 years	4 years – reduced to 3 years
Recklessly Cause GBH in company (14 years, SNPP 5 years)	5 years – reduced 3 years 9 months NPP – 2 years	5 years – reduced to 3 years 9 months NPP – 2 years
Thornleigh
Demand property with menaces in company (14 years)	4 years – reduced to 3 years 4 months (Form 1 included one offence: Demand property with menaces with intent (10 years))	3 years – reduced to 2 years 6 months (No Form 1)
OFFENCE	HARRISON CLARKE	KUROUSH ATASHI
Dural
Dural demand property with menaces with intent in company (14 years)	3 years – reduced to 2 years 3 months	N/A
Lidcombe
Affray (10 years)	N/A	2 years – reduced to 1 year 6 months
Rouse Hill
Recklessly Cause GBH at Rouse Hill (10 years)	N/A	3 years – reduced to 2 years 3 months NPP – 1 year 6 months
Aggregate Sentence	13 years, NPP 7 years 8 months	12 year, NPP 7 years

16. It is to be observed that the difference in the aggregate sentence was 1 year and the difference in the non-parole periods was 8 months. It is also to be noted that whilst there were offences in common between the applicant and Mr Atashi at the Ettamogah Hotel, the Gateway Motel and Thornleigh, there were also offences at Dural, Lidcombe and Rouse Hill which were entirely separate and not committed by both of them.

17. This chart demonstrates that the indicative sentences for the common offences, vary in two respects only.

18. The first variation with respect to the “Gateway Motel incident” is a difference of five months for an offence of specially aggravated detain in company and inflict actual bodily harm. However, it is also to be observed that insofar as the applicant is concerned, he asked the Court to take into account on a Form 1 an extra offence compared with Mr Atashi, that being an offence of threatening a victim – for which the maximum penalty was 7 years. They each had an identical offence of participating in a criminal group also taken into account by way of a Form 1. The additional Form 1 offence would readily explain this discrepancy.

19. The larger discrepancy arises in the Thornleigh offence. Both the applicant and Mr Atashi pleaded guilty to an offence of demanding property with menaces in company – for which one maximum penalty is 14 years. After a reduction for a plea of guilty, the indicative sentence that the applicant received was 3 years and 4 months. The applicant asked the Judge to take into account on a Form 1, one offence of demanding property with menaces with intent – which carried a maximum of 10 years imprisonment. Mr Atashi had no Form 1 offence and received, after reduction for a plea of guilty, 2 years and 6 months i.e. the discrepancy in the indicative offences after the application of the discount for their guilty pleas is 10 months.

20. It is necessary to examine the facts and circumstances surrounding the Thornleigh offending.

Thornleigh Incident

21. According to the Agreed Facts, at the time of all of the offences, the applicant was the Vice President of the North West Chapter of the Finks Outlaw Motorcycle Gang (“the Finks OMCG”), and Mr Atashi was the Treasurer of the same Chapter.

22. One night prior to the offence, the applicant had asked the victim if he could drive him somewhere later that night. The victim agreed. For reasons entirely unconnected with the applicant, the victim was arrested and charged that evening by the police for driving with a mid-range prescribed concentration of alcohol. After being released from the Burwood Police Station, the victim received a phone call from a mutual friend telling him that the applicant was “swearing off his head and looking for the victim because he couldn’t drive him as earlier agreed”.

23. At about 10am on 31 March 2018, the morning after the victim was arrested, the applicant telephoned the victim and arranged to meet with him the following day.

24. At about 2pm on that next day, Sunday 1 April 2018, the victim received a text message from the applicant and was provided with the address which he was to attend. He did so.

25. About 40 minutes later a motor vehicle pulled up at that address. The applicant, Mr Atashi and a third unidentified male, alighted from the vehicle.

26. The applicant confronted the victim about his not being available to pick him up. An exchange took place in which the applicant told the victim that “we lost a lot of money for you not showing up”. He then involved Mr Atashi in the conversation.

27. Mr Atashi moved closer to the victim and punched his right hand towards the victim’s head. It did not make contact. Mr Atashi then threw a further punch towards the victim and made contact with the tip of his nose.

28. This was followed by a further conversation in which the victim was telling those present that he did not want any trouble. The applicant asked Mr Atashi to tell the victim how much money he had lost. Mr Atashi responded “$8,000”. The victim protested that he did not have that money.

29. At that point in time, the applicant said:

“Well, we’ll take your car. I’ll call you later tonight. We’ll meet you and you will hand over the papers and the keys”.

30. The vehicle referred to was the victim’s 2005 Subaru Impreza WRX sedan. The car had only been purchased about a month earlier and there was a sum of $18,000 outstanding on the finance arrangement for the purchase of the vehicle.

31. Later that afternoon, the applicant and the victim exchanged a text message about the arrangements for the handing over of the motor vehicle. The applicant instructed the victim to clean the motor vehicle properly and ensure that he brought the papers with him.

32. That evening, together with members of his family, the victim drove the car to a location which he had randomly selected. The victim left the keys and a signed notice of disposal on the driver’s seat. The vehicle was left unlocked. His family then drove him home.

33. At around 8pm the victim sent a text message containing photographs of the vehicle to the applicant with a text disclosing its location with the message “It’s all yours sorry for the trouble”.

34. The following morning the applicant contacted the victim and told him he was going to pick up the car. Later that day the victim returned to the location where the car was left and saw that it had been removed.

35. As the applicant was charged with an offence on a Form 1, and Mr Atashi was not, it is appropriate to examine the facts relating to that offence.

The Agreed Facts with Respect to the Offence on the Form1

36. This offence occurred about two weeks after the vehicle had been handed over. After an exchange of text messages with an unidentified third party, the applicant had a conversation with the victim. The applicant told the victim that he had not been informed that there was finance on the car. He told him that he could not sell it because no one would trust him to continue make the payments on the finance arrangements. The applicant then demanded that the victim give him $6,000 in cash. When the victim protested that he did not have that sort of money, the applicant reduced the sum demanded to $5,000 and required it to be paid within a few days. However, before that payment was made, the victim reported the matter to the police.

37. A couple of days later, after further communications were made between the applicant and the victim (whilst being assisted by police officers), the victim received a text message from the applicant in which he demanded the cash sum of $5,000 and said that he would give the car back when that money was paid.

38. Arrangements were made for a meeting. When the applicant attended, he was arrested by the police. Mr Atashi was arrested in different circumstances.

Remarks on Sentence

39. When sentencing the applicant, the Judge described that facts about the Thornleigh offence, which have been set out above. He then said this:

“[The applicant] demanded that the victim give him his car, which was valued at $18,000, in lieu of the money, and that was what occurred. [The applicant] then transferred ownership of the car into the name of his girlfriend. The fact that the car was handed over in response to the menace increases the objective seriousness of the offence. While the original demand was relatively small, it increased to include the value of the car. This falls just below the mid-range of objective seriousness.”

40. The Agreed Facts also recorded that on the day when the victim’s car was taken, it was transferred into the name of the applicant’s former girlfriend, for a sale price of $500. About a week after that occurred, police who were on patrol pulled over the victim’s vehicle for a random breath test. At the time, the applicant and Mr Atashi were passengers in the vehicle. Upon enquiry being made by the police with the registered owner, she informed the police that the applicant was her ex-boyfriend and that he had permission to drive her vehicle whenever he liked.

41. The Judge noted that in respect of all of the offences, except for the Thornleigh offence, the applicant was entitled to a discount of 25%. In respect of the Thornleigh offence, the Judge said that whilst the applicant entered a guilty plea rather late in the process, it was still prior to the hearing date and it enabled a consolidation of proceedings, thereby being of significant utilitarian value. His Honour allowed a discount of 15% for that offence.

42. When sentencing Mr Atashi, the Judge assessed the objective seriousness of his criminality for the Thornleigh offence, in the same way as he did for the applicant, namely, just below the mid-range of seriousness. He also allowed the same discount for the guilty plea for similar reasons.

43. It is convenient to set out some remarks made in the Sentence Remarks referring to the applicant of the which are of general application.

44. The Judge referred to the proper approach with respect to sentencing where an offence on a Form 1 was involved. He noted the principles, in summary, and then said:

“The sentence I impose must reflect the need for personal deterrence and retribution arising from the additional criminality involved in Form 1 offences but maintain focus on the primary offence.”

45. No complaint was made about this statement to suggest that it was an error.

46. His Honour then referred to the doctrine of parity to be applied in assessing an appropriate sentence and noted that it obliged him to apply the principle of equal justice which required that any differential treatment be only meted out “… to reflect differences between those [offences] that are relevantly different”.

47. With respect to Mr Atashi, his Honour said:

“The co-accused for a number of these offences, Atashi, has been sentenced today. His offending was of a similar gravity to these offences and, apart from the matters on the Form 1, there is no particular reason to distinguish between them in determining the appropriate sentence for each of them.”

48. His Honour noted that it was appropriate to impose an aggregate sentence; he then set out the indicative sentences that he proposed for each offence and he then referred to the principle of totality which he said, in the case of the applicant, required significant concurrency.

49. He then referred to matters of a subjective kind relevant to the applicant, and imposed sentence.

50. The applicant in his submission accepts that at the time of the Thornleigh offence, he was the subject of a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999. The fact that the Thornleigh offence was committed at the time the applicant was subject to that bond is a statutory aggravating factor pursuant to s 21A(2)(j) of the Sentencing Procedure Act. Mr Atashi was not the subject of such a bond. Such a breach of bond by the commission of an offence is relevant to the weight to be accorded to specific deterrence.

Subjective Factors

51. The Judge found that although the applicant initially had not accepted responsibility for his crime, he had, by the time of the proceedings on sentence, gained insight into his offending. The Judge described the applicant’s early upbringing, including the fact that he left home at the age of 22 and joined the Finks OMCG. He did so because of the availability of illicit drugs and the hedonistic lifestyle which was offered.

52. His Honour noted that the applicant did not have a significant criminal history, but it was such as to deny him, to some extent, the leniency he would have otherwise deserved.

53. His Honour noted that there were a number of matters that would negatively impact on the applicant’s prospect of rehabilitation but balanced that against the fact that he had strong “pro-social support” from his extended family, past employers, current partner and a group of long-term friends. His Honour made allowance for the applicant’s youth at the time of the offending.

54. In particular, the Judge accepted the evidence that the applicant had left the Finks OMCG and had been abstinent from drugs for some time. However, his Honour formed the view the applicant’s prospects of rehabilitation remained guarded because his prison record revealed a level of defiance and violence.

55. His Honour expressed the view that there was significant need to protect the community in the case of the applicant and that accordingly, general and specific deterrence needed to be given weight.

Mr Atashi

56. The applicant’s submissions draw attention to the subjective circumstances of Mr Atashi. I summarise them here. The Judge accepted that Mr Atashi had expressed shame and contrition. He noted Mr Atashi had a record of some minor offending, but that the offences for which he was being sentenced were the first serious offences committed by him as an adult. He noted that there was a diagnosis of ADHD at the age of 4, although more recent testing suggested that that may have been erroneous. He noted that the applicant had started consuming alcohol and cannabis at the age of 13, and methamphetamine at the age of 16. According to Mr Atashi’s medical records, by the age of 15 he was showing a loss of control of his temper – particularly at school. He left work because he had joined the Finks OMCG. The Judge noted that there was some expert opinion with respect to Mr Atashi, but that was not supported by any sworn evidence. It did not carry any significant weight.

57. The Judge determined that Mr Atashi’s moral culpability was not reduced by reason of profound childhood deprivation because the material before the Judge was not sufficient to establish that Mr Atashi’s childhood had led to a normalisation of violence in his life.

58. His Honour made allowance for Mr Atashi’s youth, which he thought had a good deal to do with his poor choices as a younger man. He found his prospects of rehabilitation guarded. He found that he had ongoing family support.

Applicant’s Submissions

59. The applicant’s submissions contained a helpful comparison table highlighting the similarities and differences in the various offences, the indicative sentences imposed and the various subjective factors. Some, but not all, of those features are reproduced in the table set out at [15] above.

60. Based upon that comparison, the applicant first submitted that one could undertake a mathematical analysis by adding the two matters to which I have earlier referred – being the 6 month differential (reduced to 5 months after a plea) for the offence at the Gateway Motel and the 10 month differential for the Thornleigh offence, together with the additional 2 years and 3 months for an offence with which Mr Atashi was not charged. The applicant noted that the total of these differences and the additional offence was 3 years and 6 months.

61. The applicant submitted that one ought then to compare that period with the offences with which Mr Atashi was charged, but which did not involve the applicant. The applicant’s mathematical calculation noted that those offences, if wholly accumulated, amounted to 3 years and 9 months.

62. The submission was made that upon the basis of these calculations, in effect, Mr Atashi’s indicative sentences were for a longer period (by 3 months) than the applicant, but when one compared the aggregate sentences, there was a difference of 12 months on the total sentence and 8 months non-parole period, with the applicant getting the longer aggregate sentence.

63. Accordingly, the applicant submitted:

“Even if looked at wholly mathematically as above, from a totality aspect when one factors in accumulation warranted by the further offences of violence charged against Atashi, the applicant has a justifiable sense of grievance based on the differences and the sentences imposed.”

64. The applicant went on to accept in his submissions that a mathematical comparison is not necessarily the only manner by which the parity principle applies. However, he submitted that in this case such an approach where the subjective cases of each of the applicant and Mr Atashi were substantially similar, was an appropriate one to demonstrate on an objective basis the existence of a significant and unjustified discrepancy.

65. The applicant submitted as follows:

“When all relevant factors both objective and subjective are taken into account, it is submitted that the applicant has a justifiable sense of grievance in having imposed on him a sentence lengthier by twelve months on the head sentence and eight months on the non-parole period when the nature of Atashi’s two further offences is recalled.”

66. Finally, senior counsel for the applicant submitted orally that the proper application of the parity principle ought to have resulted in her client receiving a shorter aggregate sentence than Mr Atashi.

Crown’s Submission

67. The Crown’s principal submission was that in overall terms, the differences between the aggregate sentence imposed on the applicant and that upon Mr Atashi is readily explained by a general similarity in their offending conduct but with an appropriate allowance for the different offences and the Form 1 offences, the relative differences in their subjective cases, particularly the longer record of the applicant, his breach of conditional liberty, and the greater emphasis placed on Mr Atashi’s youth when the Judge sentenced him.

68. But the Crown submits that the offending conduct ought not be regarded as identical because of the different offences for which each was convicted and the fact that in respect of some convictions, there were offences taken into account on a Form 1, which were not the same.

69. The Crown submitted that these differences reflected the “significant practical difficulties” involving making out a parity argument where the applicant and the offender were not co-offenders in every respect. The Crown drew attention to the decision of Jimmy at [203] to support this submission.

70. The Crown drew attention to the difference between the criminal records of each of the applicant and Mr Atashi. The Crown submitted that the applicant had a more extensive adult criminal record, which included offences of violence, possession of illegal drugs and involvement in two affrays, together with driving offences. The Crown contrasted this to Mr Atashi’s adult record which was confined to driving offences as an adult. He had a record of limited violence in the Victorian Children’s Court.

71. The Crown noted that applicant was in breach of conditional liberty at the time of offending. Finally, the Crown submitted that it was inappropriate to conduct a purely mathematical analysis to establish a sense of justifiable grievance.

Discernment

72. A mere difference between sentences imposed on two people who have committed some, but not all of the same, offences, and whose subjective backgrounds have some differences, is not sufficient without more to warrant a conclusion that there has been a misapplication of the parity principle.

73. Sentencing is not an exercise of mathematical precision. Rather, it is the product of instinctive synthesis.

74. In the circumstances of this case, the same Judge sentenced both the applicant and Mr Atashi at the same time. The sentences were imposed on the same day, and the remarks on sentence were delivered on the same day. In the course of the remarks on sentence, his Honour said that he was conscious of the need to address the parity principle when imposing the sentence. Accordingly, caution needs to be exercised by this Court before concluding that any difference between sentences creates a justifiable sense of grievance.

75. Due to his Honour imposing an aggregate sentence on each of the applicant and Mr Atashi, an analysis of the application of the parity principle needed to have regard to the indicative sentences, and not just the aggregate sentences.

76. In considering the length of the indicative sentences for the Gateway Motel offences, the Judge was obliged to give effect to an additional offence on a Form 1 which the applicant asked to be taken into account. It was an offence of violence which carried a maximum of 7 years imprisonment. On its own, in my assessment, a differential of 5 months can be readily explained by that additional offence that the Judge took into account. As well, I am unpersuaded that one can precisely equate the criminal conduct, although regarded as being of the same objective seriousness, of each of the applicant and Mr Atashi. Together there is a sufficient explanation of the difference in the two indicative sentences.

77. With respect to the Thornleigh offence, there were in my opinion significant differences between the applicant and Mr Atashi with respect to the roles which each played. The applicant instigated the offence; he was the person who contacted the victim and he was the one who made demands upon him. As well, as is apparent from the Agreed Facts, it was the applicant who took possession of the car, transferred the registration into his ex-girlfriend’s name and used the car. On sentence, the Judge was entitled to, and obviously did, take into account what was a significantly longer and significantly greater participation in this objectively serious offence by the applicant when compared with Mr Atashi. As well, the applicant pursued the victim, engaging in the later conduct, without any involvement by Mr Atashi, which amounted to a further offence of demanding property with menaces with intent, which offence was taken into account by his Honour on a Form 1 at the applicant’s request. The applicant’s offending was aggravated by his being on conditional liberty at the time.

78. In those circumstances, a difference of 10 months after reduction for a plea guilty (or 12 months before that reduction) is entirely justifiable.

79. In his remarks on sentence, the Judge specifically drew attention to the additional Form 1 offences as they affected the sentence imposed on the applicant. It was one obvious reason for the differences in the length of the indicative sentences imposed. The Judge specifically said so.

80. In the circumstances of this particular case comparison of the aggregate sentences above is an inappropriate exercise. The aggregate sentences imposed on each of the applicant and Mr Atashi were not in respect of the same offences. The sentences imposed, as the comparison chart set out at [15] above demonstrates, were for different offences – only some of which were common to the applicant and Mr Atashi.

81. When the Judge came to impose an aggregate sentence, he was taking into account a range of factors encompassed by the totality principle. Included in that range were matters which differed between the applicant and Mr Atashi. There were different offences. The applicant sought to have included on a Form 1 three offences in total, whereas Mr Atashi sought only to have included a single offence on a Form 1. Some of the offences of the applicant had been committed whilst he was on conditional liberty. These were aggravating factors which the Judge needed to take into account and to reflect in the different aggregate sentences.

82. As well, there were differing aspects of their respective subjective cases which pointed to need in the case of the applicant for more weight to be given to specific deterrence than in the case of Mr Atashi. In considering the extent of concurrency of the indicative sentences as a consideration of the appropriate aggregate sentence, the need for specific deterrence is a relevant matter to be given weight. It was of much more importance in respect of the applicant than Mr Atashi having regard to his past record and the fact that he offended whilst on conditional liberty.

83. All of these matters suggest that an aggregate sentence which differed between the applicant and Mr Atashi was appropriate. His Honour judged that difference to be 1 year in total or an 8 month non-parole period.

84. That difference does not, in my assessment, fall within the description of gross, marked or glaring. Rather, it falls within the description of a difference which is explicable by all of the different matters to which I have referred and was well within the discretionary range available to the sentencing Judge.

85. My conclusion in this respect is particularly enforced by those decisions which urge caution on the part of this Court in interfering on a parity ground with sentences that have been imposed by the same Judge in contemporaneous circumstances.

86. I am unpersuaded that the applicant has any justifiable sense of grievance at the disparity in the sentences when determined from an objective viewpoint.

Orders

87. The orders which I, but not my two colleagues, favour would be to grant leave to appeal but dismiss the appeal.

88. BEECH-JONES J: In Pearce v R [1998] HCA 57; (1998) 194 CLR 610 at [45], McHugh, Hayne and Callinan JJ confirmed that the process of sentencing an offender for multiple offences involves “fix[ing] an appropriate sentence for each offence and then consider[ing] questions of cumulation or concurrence, as well, of course, as questions of totality”. Modified to the circumstance where an aggregate sentence is imposed, an appropriate indicative sentence must be fixed for each individual offence and the totality principle must be taken into account in determining the aggregate sentence, albeit the commencement and finishing dates for each of the indicative sentences are not specified.

89. The parity principle is described in the judgment of Garling J. The majority judgments in Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 confirm that the parity principle is applicable to the circumstance where two offenders commit multiple offences only some of which are in common. Further, the judgment of Dawson and Gaudron JJ in Postiglione upheld a claim that the parity principle was contravened. This conclusion was reached not simply through a comparison of the extra time in custody served by each offender for their common offence, but instead because of the differential application of the totality principle to the two offenders who committed multiple offences only some of which were common offences (see Kelly v R [2017] NSWCCA 256 at [30]; “Kelly”). Put another way, in cases such as these the parity principle is engaged at each step in the process of sentencing identified in Pearce.

90. The judgment of Garling J comprehensively sets out the facts and circumstances of both Mr Clarke and Mr Atashi’s offending and the careful analysis undertaken by the sentencing judge. For the reasons given by his Honour, I am not satisfied that any justifiable sense of grievance arises from a comparison of the indicative sentences specified for each Mr Clarke and Mr Atashi for their common offences.

91. However, I respectfully differ with his Honour so far as the process of considering the principle of totality as contemplated by Pearce is concerned. The total sum of all of Mr Clarke’s indicative sentences was 247 months whereas the total sum of Mr Atashi’s indicative sentences was 250 months. Mr Clarke engaged in four distinct (and serious) instances of criminality whereas Mr Atashi engaged in five such instances. Despite this, Mr Clarke’s aggregate head sentence was 156 months (ie, 13 years) whereas Mr Atashi’s aggregate head sentence was 144 months (ie, 12 years). The ratio of the non‑parole period to the head sentence was the same for each. This result is only explicable on the basis of a differential application of the totality principle to each of them (see Kelly at [30]). For my part, I cannot discern in this case any proper basis for that different approach. Like Dawson and Gaudron JJ in Postiglione, I consider that the difference in its application between Mr Clarke and Mr Atashi is so marked as to require interference by this Court.

92. I would adopt the indicative sentences imposed on Mr Clarke for the reasons given by the sentencing judge. However, bearing in mind that an assessment of their culpability for the individual offences as reflected in the accumulation of their indicative sentences is roughly equal, then I would impose the same aggregate sentence on Mr Clarke as was imposed on Mr Atashi.

93. I would propose the following orders:

1. Leave to appeal against sentence be granted;

2. Appeal allowed;

3. Set aside the aggregate sentence imposed on the applicant on 11 June 2020 and in lieu thereof:

1. Sentence the applicant to an aggregate sentence of 12 years imprisonment commencing on 1 May 2018 and expiring on 30 April 2030 with a non-parole period of 7 years commencing on 1 May 2018 and expiring on 30 April 2025;

2. Specify that the applicant will be first eligible for release on parole on 1 May 2025;

3. Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 specify that the sentences that would have been imposed on the applicant had an aggregate sentence not been imposed are those set out in the following schedule

Schedule

Sequence 1 – affray (Crimes Act 1900, s93C) – 2 years and 3 months.

Count 1 – specially aggravated detention in company and inflict actual bodily harm (Crimes Act 1900, s 86(3)) – 6 years’ imprisonment.

Count 2 – demand property with force with intent to steal while in company (Crimes Act 1900, s 99(2)) – 3 years’ imprisonment.

Count 3 – recklessly cause grievous bodily harm in company (Crimes Act 1900, s 35(1)) – imprisonment for 3 years and 9 months with a non-parole period of 2 years.

Sequence 2 – demand property with menaces with intent to steal while in company (Crimes Act 1900, s 99(2)) – imprisonment for 2 years and 3 months.

Sequence 1 – demand property with menaces with intent to steal while in company (Crimes Act 1900, s 99(2)) - imprisonment for 3 years and 4 months.

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Decision last updated: 27 October 2021