Gill v R - [2010] NSWCCA 236

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: Gill v R [2010] NSWCCA 236

HEARING DATE(S): 14 September 2010

JUDGMENT DATE:
20 October 2010

JUDGMENT OF: McColl JA at 1; Hulme J at 67; Latham J at 68

DECISION: 1. Leave to appeal granted. 2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – appeal against sentence – parity principle – need to preserve parity constituting “special circumstances” for the purposes of s 44, Crimes (Sentencing Procedure) Act 1999

LEGISLATION CITED: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Rural Fires Act 1997 (NSW)

CATEGORY: Principal judgment

CASES CITED: Chen, Siregar, Ismunandar & Lau [2002] NSWCCA 174; (2002) 130 A Crim R 300
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
England v R; Phanith v R [2009] NSWCCA 274
House v The King [1936] HCA 40; (1936) 55 CLR 499
Josefski v R [2010] NSWCCA 41
OM v R; MH v R; AA v R; AS v R [2009] NSWCCA 267
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Do [2005] NSWCCA 209
R v Rexhaj (New South Wales Court of Criminal Appeal, 29 February 1996, unreported)
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
R v Wahabzadah [2001] NSWCCA 253
Tatana v R [2006] NSWCCA 398

PARTIES: Mark William Gill (Applicant)
The Crown

FILE NUMBER(S): CCA 2007/8737

COUNSEL: P Lange (Applicant)
D Arnott SC (Crown)

SOLICITORS: Legal Aid Commission (Applicant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/61/0190

LOWER COURT JUDICIAL OFFICER: Blackmore DCJ

LOWER COURT DATE OF DECISION: 24 April 2009

2007/8737

McCOLL JA
RS HULME J
LATHAM J
Wednesday 20 Ocotber 2010

Mark William GILL v REGINA

Judgment

1 McCOLL JA

: The applicant seeks leave to appeal against the sentence imposed upon him by his Honour Judge Blackmore SC at the Sydney District Court on 24 April 2009.

2 The sole ground of appeal the applicant seeks to advance if granted leave to appeal rests on the parity principle. He seeks to argue that the sentencing judge fell into error in that, as a result of the sentence imposed upon a co-offender, Dale Nugent, he has a justifiable sense of grievance concerning the length of his sentence.

3 On 28 July 2008, when the matter was listed for trial at the Bathurst District Court, the applicant pleaded guilty to four offences:

Count 1

Crimes Act

Count 2: On 24 March 2006, aggravated break and enter and commit serious indictable offence, namely, maliciously damage property by fire (s 112(2), Crimes Act, maximum penalty 20 years; standard non-parole period 5 years, s 54A, Crimes (Sentencing Procedure) Act 1999 (NSW) (the “Sentencing Procedure Act”)).

Count 3: On 12 May 2006, maliciously destroy property by fire (s 195(1)(b), Crimes Act, maximum penalty 10 years)

Count 4: On 23 May 2006, maliciously destroy property by fire (s 195(1)(b), Crimes Act, maximum penalty 10 years)

4 In relation to count 2 the applicant asked the Court to take into account two offences of cause or set fire to the property of another (s 100(1)(a), Rural Fires Act 1997 (NSW)), both committed on 12 May 2006, and two offences of maliciously cause damage by fire (s 195(1)(b), Crimes Act), one committed on 12 May 2006 and the other on 11 July 2006.

5 After allowing a 12.5 per cent discount on account of the late plea of guilty his Honour sentenced the applicant to the following terms of imprisonment:

Count 3

Count 1: To a non-parole period of 2 years to commence from 8 May 2007 and to expire on 7 May 2009 with a balance of term of 1 year to expire on 7 May 2010.

Count 4: To a non-parole period of 2 years to commence from 8 May 2008 and to expire on 7 May 2010 with a balance of term of 1 year to expire on 7 May 2011.

Count 2: To a non-parole period of 3 years to commence from 8 November 2009 and to expire on 7 November 2012 with a balance of term of 2 years and 3 months to expire on 7 February 2015.

6 The total effective sentence was one of 8 years and 3 months with a non-parole period of 6 years.

Factual background

7 The facts as summarised by the Crown and not disputed by the applicant, in relation to counts 1 and 2 are as follows.

Count 1

8 Prior to 23 March 2006, the applicant met Nugent, who was then employed as the Assistant Manager at the Go-Lo store in Bathurst. After the store ceased trading on the evening of 23 March 2006 Nugent assisted a co-worker in securing the premises. Under the pretence of having left his wallet inside, Nugent re-entered the premises then let the applicant inside. Nugent and the applicant had intended to remove the safe from the office. However, they were unable to do so and instead took the contents of the safe, some $16,890 in cash. Before leaving the premises they caused damage to a rear roller door and to the door of the room where the safe was housed, with the intention of simulating a forced entry.

Count 2

9 Later that evening the applicant and Nugent met a James Mitchell and together they went to the Bathurst RSL Club. While they were at the club they met a Kylie Burge. All four left the club together at about 1am on 24 March 2006.

10 At about 1.15am on 24 March 2006, Nugent and Burge bought a fuel can and 5 litres of petrol from a service station while the applicant and Mitchell waited nearby. The fuel can was then hidden in a shed near the Go-Lo store. All four went to a hotel where they remained until about 2.45am. They then returned to the Go-Lo store. Burge obtained a cigarette lighter from a worker at a nearby bakery.

11 The applicant and Mitchell entered the Go-Lo store, while Nugent stood watch. Petrol was spread inside the office area where the safe was located, and the petrol was then ignited. As a result of the ignition Mitchell sustained serious flash burns to his right hand, neck and face. The applicant and Mitchell left the area, discarding the fuel can in a nearby bin. At about 4am the applicant contacted the ambulance service and Mitchell was conveyed to hospital. Nugent and Burge remained in the vicinity of the store and Burge returned the lighter to its owner.

12 At 3am the Go-Lo store alarm went off and as a result police and a Go-Lo employee attended the premises. Upon arrival at the premises police saw Nugent and Burge, Nugent stating that he had been informed of the alarm by the store manager.

13 The Fire Brigade attended and extinguished the fire. The theft from the safe was then discovered. As a result of the fire damage, Go-Lo’s insurer paid out $100,474.

14 The sentencing judge found that it was far more likely that the applicant had suggested that the premises be burnt down to remove evidence of his fingerprints, than that it had been done at Nugent’s suggestion. However, his Honour also found that not much turned on whose decision it was as the applicant and Nugent were acting in a common purpose and should be held be equally responsible.

15 The facts as summarised by the Crown, and not disputed by the applicant in relation to counts 3 and 4 were as follows.

Count 3

16 In the early hours of 12 May 2006, the applicant and Nugent drove around the Kelso area in Nugent's car with Burge and Natalie Shepherd. The applicant sat in the front passenger seat, directing Nugent. He instructed Nugent to drive to a wooden structure owned by the Bathurst Regional Council which was used as a ticket box during the car racing period. The applicant used a fire lighter to ignite cardboard and paper inside the structure. The resulting fire completely destroyed the structure which was not insured but which was estimated to be valued at $7,500.

Count 4

17 Shortly after midnight on 23 May 2006 the applicant was with Nugent in Nugent's car. Burge and Shepherd were also present in the vehicle. The applicant and Nugent left the car in Lloyds Road, Bathurst and walked to Bathurst Demolition Services, located in Vale Road. According to Nugent, the applicant used tin snips to cut through the fencing. Nugent waited outside and acted as a lookout while the applicant entered the premises where he used a fire lighter to start a fire in a pile of timber. The fire destroyed a shed containing a large amount of building materials and other property. The total value of the property destroyed was unknown, but was estimated by the uninsured owner to be in excess of $500,000. The sentencing judge noted that the applicant claimed that he was outside the premises when they were burned down and that it was Nugent who went inside. However, his Honour disbelieved the applicant (ROS 10.9) and in any event held that the applicant and Nugent were equally responsible for the offence.

18 The four further offences on the Form 1 related to a series of grass and tyre-wall fires lit by the applicant and Nugent on 12 May and 11 July 2006.

The applicant’s sentence

19 The applicant was unrepresented in making submissions on his sentencing. However the sentencing judge observed, “he was clearly quite familiar with the process and was able to both present evidence and submissions with respect to issues relevant to the passing of a sentence on an offender”.

20 Although the applicant pleaded guilty to the offences set out above, the Crown drew attention to the fact that the facts were not “agreed” so far as the applicant’s role was concerned. Four others involved in the offences, as well as the applicant, gave evidence during the course of the sentencing proceedings. The sentencing judge said (ROS 4.8) that with respect to the circumstances relating to the offences, he generally preferred the evidence of the co-offender, Nugent, to the applicant’s. However, ultimately, his Honour sentenced the applicant on the basis that he and Nugent were equally responsible for the offences.

21 In sentencing the applicant the sentencing judge took into account the fact that he had a lengthy criminal record and had been in gaol on numerous occasions. His Honour accepted the applicant’s statement that his offending could be attributed to drug taking, but concluded that his record did “not entitle him to any leniency … moreover his continuing offending over many years, even when subject to court orders designed to moderate his behaviour in that regard, means that the factors of specific deterrence, general deterrence, retribution and protection of society, are all matters that must be enhanced when this offender is sentenced”: ROS 14.6.

22 The sentencing judge also noted the applicant’s personal background as set out in reports from Ms Catherine Wakeley, a psychologist, and Ms Kate Thompson, a Connections clinical support worker. They included a “chaotic” childhood with his upbringing being undertaken both by his mother who was an alcoholic and his grandmother with whom he lived “for some time until she was unfortunately killed in a traffic accident”. He returned to live with his mother; he was deemed uncontrollable shortly thereafter and placed in a Juvenile Justice Centre – the first of his numerous periods of incarceration. He had in effect been in and out of some form of custody ever since. He had been involved in a relationship for ten years from which he had three children. The relationship ended in 2005 and he was seeking access to the children. The sentencing judge said that the applicant “was quite emotional when he discussed his desire to see his children [and] said that this aspect alone was sufficient for him to abstain from taking drugs and for him wanting to live a crime free existence in the community”: ROS 15.6.

23 The sentencing judge noted that the applicant had made some efforts in custody towards achieving a drug free existence. Ms Thompson’s report explained a support program run by Justice Health provided to prisoners on their release which assists with housing issues, mental health issues, financial and educational training and a range of other social issues relevant to the offender. His Honour accepted that the applicant had been assessed as suitable for the program and was anxious to undertake it if he could. He also accepted that it “would no doubt be of considerable assistance for him” as, having regard to his long history of re-offending, he would need additional support when released from custody, if that history was not to be repeated. He recommended that he be given assistance in this regard: ROS 16.2.

24 Having regard to the applicant’s extensive needs for counselling, assistance with housing and re-integration into the community by reason of his alcohol and drug dependence the sentencing judge considered a longer period on parole might be warranted. His Honour found that:

“Realistically, his prospects of rehabilitation are not great [and] [u]nless he receives adequate assistance when released, they might be close to non existent. On the other hand I accept that he does now genuinely desire to be rehabilitated as he has a strong desire to be involved in his children's upbringing.” (ROS 16.5)

25 The sentencing judge dealt with the issue of parity as between the applicant and Nugent as follows (ROS 16 – 19):

“In terms of the sentence imposed, an important feature is to consider the sentences that were imposed on other offenders. In that regard I note it was only Nugent who was sentenced in relation to the same offences as this offender. He received an effective total term of imprisonment of four years. … [The applicant] should be able to understand his sentences in terms of those that were handed out to Nugent.

Firstly, I repeat the fact that Nugent received a discount of fifty per cent for his plea of guilty and his assistance. On one view that should make the starting point a total sentence to be applied of eight years imprisonment. However, that is overly simplistic. This offender was not a first time offender. Nugent had one prior entry on his record. Nugent was found by Judge Bennett to be a person of prior good character. By contrast this offender has an appalling prior criminal record and committed offences while subject to a s 12 bond and a s 9 bond. A significant difference in their sentences needs to be applied to record these factors. In my view had these matters gone to trial and the offender been convicted then a sentence of nine years and six months imprisonment would have been applied. The offender here pleaded guilty late. It was only after the case was listed for trial that the pleas were entered. There were negotiations going on between the parties and the Crown concedes they were not resolved until trial. In my view the pleas being entered as late as they were means that a discount of only 12.5 per cent should be applied in these cases .

Lowe v Queen

Regina v Bell

Regina v Farrouhk

‘The question in issue is a question of the relationship between minimum and additional terms, and in particular, the question of the need or justification for an additional term which bears to the minimum term, or to the total sentence, a relationship different from the relationship referred to in the statute. When a sentencing judicial officer finds special circumstances he or she does so in a context involving a decision that there is something about the case that warrants a longer than usual additional term by comparison with the minimum term.’

Another offender looking at the sentence imposed on a co-offender might have a grievance as to the length of time that that offender will spend in custody compared to the period that he or she has to spend in custody. But provided that difference is adequately explained in the court's judgment, in my view that grievance could not be said to be reasonable

Crimes (Sentencing Procedure) Act

Nugent’s sentence

26 His Honour Judge Bennett SC sentenced the applicant’s co-offender, Nugent on 17 April 2008.

27 Nugent had pleaded guilty on 23 April 2007 and been committed to the District Court for sentence. In respect of the entering of the Go-Lo premises and the taking of the money from the safe, he pleaded guilty to an offence of breaking, entering and stealing in circumstances of aggravation, namely, that he was in company contrary to s 112(2) of the Crimes Act. In respect of the other conduct Nugent pleaded guilty to the same charges as the applicant. Nugent also asked that, when sentenced for the offence of aggravated break and enter and maliciously destroy property by fire, the Court take into account the same offences that the applicant had asked be taken into account when he was sentenced.

28 Bennett DCJ sentenced Nugent on the basis that he assessed the objective seriousness of the offences with which he was charged, including the extent of his participation in their commission, fell below the middle range of objective seriousness of conduct contrary to s 112(2) of the Crimes Act.

29 His Honour noted that Nugent had pleaded guilty in the Local Court at Bathurst on 23 April 2007. While his Honour accepted that to have been an early plea, he agreed with a submission by the Crown that a discount of between 15 and 20 per cent was appropriate in the circumstances.

30 Nugent sought to argue that he committed the offences under duress exerted by the appliacnt so as to mitigate his participation in them. Bennett DCJ rejected that submission, however he did conclude that Nugent was acting under the influence that the applicant was able to exert by reason of his more forceful personality. His Honour accepted that Nugent had some difficulty in declining to participate in the first two offences because of an imbalance between the applicant and him in their relationship, although he was also satisfied there was an economic purpose behind Nugent’s participation. After the initial two offences, however, his Honour concluded that:

“Gill’s capacity for violence and his fear of detection and the certainty of a significant sentence of imprisonment if convicted for these offences played a stronger role in Nugent’s decisions to take part in the offences that followed.”

31 Accordingly, his Honour accepted that Nugent’s fear of consequences from the applicant motivated his continued involvement with him and his participation in further fires the applicant initiated. It will be apparent that in finding the applicant and Nugent were equally responsible for the offences, the sentencing judge did not accept Bennett DCJ’s finding of fact as to the applicant’s influence on Nugent. This course was open to his Honour who was not bound by Bennett DCJ’s findings: Tatana v R [2006] NSWCCA 398 (at [22]) per Howie J (Sully and Latham JJ agreeing).

32 Bennett DCJ found that Nugent had given assistance to authorities in relation to the applicant’s participation in the offences and that he would give evidence at the applicant’s forthcoming trial. He was satisfied that Nugent should have the benefit to which he was entitled from giving that assistance.

33 Nugent was first arrested and charged with the first and second offences on 24 March 2006. He was on bail when he committed the third and fourth offences and the further offences taken into account on a Form 1. Bennett DCJ noted that this was a significant aggravating factor. Other aggravating factors his Honour took into account were that the offence of break, enter and cause malicious damage involved the actual use of an explosive agent and that the offences were committed in company (although his Honour noted in respect of the first two offences that was an element of the offences upon which he was to be sentenced). The injury caused by the offences was substantial, the offences were committed without regard to public safety insofar as the fires were concerned, the offences involved multiple victims and were a series of criminal acts, they were planned and organised and the initial offence was committed for financial gain.

34 Bennett DCJ concluded there were no mitigating factors causally related to the commission of the offences, rather the mitigating factors related to Nugent’s personal circumstances. In this respect His Honour took into account in mitigation the fact that Nugent did not have any significant record of previous convictions, that but for the misconduct with which he was being sentenced, he had been a person of good character, that he was satisfied he would not re-offend and that his rehabilitation had been achieved, that he had demonstrated genuine remorse and had accepted responsibility and acknowledged the damage he had caused, had endeavoured to redeem his position by assisting the authorities in their pursuit of the principal offender, had pleaded guilty, that there had been a significant degree of pre-trial disclosure and that he had given assistance to law enforcement authorities as provided for in s 23, Sentencing Procedure Act.

35 While Bennett DCJ recognised that the sentences he imposed on Nugent must satisfy the need for general deterrence, he was satisfied that the need for specific deterrent was reduced significantly because Nugent’s rehabilitation had been achieved. Nevertheless his Honour recognised that Nugent’s conduct had to be denounced and that the Court should recognise the harm that he had caused.

36 Bennett DCJ found special circumstances for the purposes of s 44(2) of the Sentencing Procedure Act as follows. First, that this was the first occasion Nugent would be required to serve a custodial sentence and that he would serve that sentence whilst on protection necessitated by the assistance he was providing to the authorities and the risks that flowed from that in the light of the knowledge the Court had of the applicant. He also took into account the psychological challenges facing Nugent which his Honour found it would take some years for him to resolve and for which he would need a longer period on parole to allow opportunities to complete the counselling required.

37 After allowing a 50 per cent discount on account of Nugent's plea of guilty and his assistance to authorities Bennett DCJ sentenced Nugent to the following terms of imprisonment:

Count 4: (malicious destruction of property by fire on 23 May 2006) To a fixed term of 1 year and 6 months to commence from 17 April 2008 and to expire on 16 October 2009.

Count 3: (malicious destruction of property by fire on 12 May 2006) To a fixed term of 1 year to commence from 17 April 2008 and to expire on 16 April 2009.

Count 1: (aggravated break, enter and steal on 23 March 2006) To a non-parole period of 1 year to commence from 17 October 2008 and to expire on 16 October 2009 with a balance of term of 1 year and 6 months to expire on 16 April 2011.

Count 2:

38 The total effective sentence imposed upon Nugent was a term of 4 years with a non-parole period of 18 months.

Comparison of sentences

39 The undiscounted starting points of the individual sentences and of the total effective sentences imposed upon the applicant and Nugent were as follows:

Applicant		Nugent
Non-parole	Total term	Non-parole	Total term
Count 1	2 yrs 3mnths	3 yrs 5mnths	2 yrs	5 yrs
Count 2	3 yrs 5mnths	6 yrs	2 yrs	7 yrs
Count 3	1 yr 2 mnths	1 yr 9 mnths	2 yrs
Count 4	2 yrs 3 mnths	3 yrs 5 mnths	3 yrs
Total effective sentence	6 yrs10 mnths	9 yrs 5 mnths	3 yrs	8 yrs

40 As I have said, in imposing those sentences upon Nugent, Bennett DCJ afforded him a 50 per cent discount for his plea of guilty and assistance to the authorities. The applicant received a discount of 12.5 per cent in recognition of his late plea of guilty. After taking into account discounts, the respective sentences were:

Applicant		Nugent
Non-parole	Total term	Non-parole	Total term
Count 1	2 yrs	3 yrs	12 mnths	2 yrs 6 mnths
Count 2	3 yrs	5 yrs 3 mnths	12 mnths	3 yrs 6 mnths
Count 3	12 mnths	1 yr 6 mnths	12 mnths
Count 4	2 yrs	3 yrs	1 yr 6 mnths
Total effective sentence	6 yrs	8 yrs 3 mnths	18 mnths	4 yrs

41 The effective non-parole period of the applicant's sentence equates to 72.6 per cent of the effective total term whilst the effective non-parole period of Nugent's sentence represents 37.5 per cent of the effective total term.

Applicant’s submissions

42 The applicant accepts that the sentencing judge was aware of the general need to ensure consistency between the sentence to be meted out to him and that already passed upon Nugent, but submits his Honour erred in concluding that little guidance could be derived from Nugent's sentence. He contends that a review of his sentence leads to the conclusion that he justifiably holds a sense of grievance about the disparity between his and Nugent’s sentences in the sense to which the authorities refer. He does not contend that such grievance arises out of the individual sentences determined in respect of the four offences, but that the overall sentence is reflective of error.

43 The applicant submits error attracting the operation of the parity principle is demonstrated in the following respects.

44 First, he contends that there is a stark disparity between the extent to which the sentencing judge accumulated the sentences, at least in respect of counts 3 and 4. Whereas Bennett DCJ imposed fixed term sentences, which were wholly concurrent, the sentencing judge provided for a six month period of accumulation. The result was that the effective sentence imposed upon the applicant in respect of counts 3 and 4 was one of 3 years and 6 months with a non-parole period of 2 years in contrast to the effective sentence for those counts of 18 months imprisonment imposed upon Nugent.

45 Secondly, the applicant contends the disparity is readily apparent once the discount is removed when it is seen that the head sentence imposed upon Nugent in respect of counts 3 and 4 would translate into a head sentence of 3 years and that imposed upon him into one of 4 years. He argues that such an increase cannot be justified merely by the increased importance of deterrence and retribution in his case.

46 Thirdly, the applicant submits that error is apparent from the overall undiscounted sentence. His undiscounted sentence was one of 9 years and 5 months with a non-parole period of 6 years and 10 months in contrast to the undiscounted sentenced imposed upon Nugent of 8 years imprisonment with a non-parole period of 3 years. He contends that a difference of 17 months based on no more than his record of previous convictions was disproportionate.

47 Fourthly, the applicant submits that the divergence in the sentences is most apparent in the respective non-parole periods. When the discount is removed he points out that his non-parole period is more than twice Nugent’s. While accepting that the sentencing judge recognised the importance in applying the parity principle to the actual amount of time spent in custody, that is, the non-parole period, he submits his Honour erroneously took the view that the fixing of the non-parole period beneath that ordinarily required by the statutory ratio was one based (at least in this instance) solely upon subjective circumstances, a view he contends was an unduly narrow interpretation of what may constitute a special circumstance within the meaning of s 44, Sentencing Procedure Act. He relies in this respect on Tatana (at [33]) per Howie J.

48 Finally, the applicant points to the sentencing judge’s observations about his need for a longer period on parole to assist him to re-integrate into the community and for long term counselling with respect to drug and alcohol dependence. He submits that each of these matters is a typical subjective feature which one would ordinarily expect might lead a court to conclude that there were special circumstances and that the fact his Honour did not address the question of parity in this context, further confirmed that he was not of the view that the requirement of parity had any role to play in the determination of his non-parole period.

The Crown’s submissions

49 The Crown submitted that the undiscounted total term of 9 years and 5 months referable to the applicant represents an 18 per cent increase from the undiscounted total term of 8 years referable to Nugent. It contends that there is no basis for any justifiable sense of grievance on the part of the applicant as a result of this difference and that the approach taken by the sentencing judge to the application of the parity principle was appropriate given the significant differences in the applicant and Nugent’s circumstances including the following:

• Bennett DCJ was satisfied that Nugent would not reoffend and that his rehabilitation had been achieved whereas the sentencing judge found that the applicant's prospects of rehabilitation were “not great” and unless he received adequate assistance when released they “might be close to non existent”. Bennett DCJ found that the need for specific deterrence had been reduced significantly be reason of Nugent's rehabilitation.

• Bennett DCJ found that Nugent had demonstrated genuine remorse whereas no such finding was made in respect of the applicant.

• The applicant was on conditional liberty at the time he committed all the offences. He was subject to s 12 bonds at the time of the Go-Lo offences and at the time of the further offences he was subject to a s 9 bond as well as the s 12 bonds. Nugent was not subject to conditional liberty when he committed the offences at the Go-Lo store but was subject to bail for those offences when he committed the further offences.

• Nugent was 26 years old at the date of the offences, the applicant was 38.

Consideration

50 While the applicant complains about the issue of parity, he does not submit that in all the circumstances the sentence was manifestly excessive. This is consistent with the proposition that a ground of appeal based upon parity assumes that the sentence imposed is otherwise correct: Tatana (at [15]) per Howie J; OM v R; MH v R; AA v R; AS v R [2009] NSWCCA 267 (at [7]) per Basten JA; (at [34]) per Fullerton and McCallum JJ.

51 The applicant also concedes that Bennett DCJ’s sentencing of Nugent could be seen as generous. He accepts that, even it there is force in his parity principle argument, the Court should not impose a sentence which is manifestly inadequate. However, he contends that, having regard to the parity principle, his sentence should be adjusted to the “bottom of the range” by, for example, varying the non-parole period even if the Court was persuaded that the head sentence was appropriate.

52 The application must be considered in the light of the injunction in s 6(3) of the Criminal Appeal Act 1912 (NSW) that on a sentence appeal the court shall only quash a sentence and pass a sentence in substitution therefor if it is of the opinion that some other sentence, relevantly for present purposes less severe, is warranted in law and should have been passed. Section 6(3) empowers the court in its discretion to reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender: Lowe vThe Queen [1984] HCA 46; (1984) 154 CLR 606 (at 610) per Gibbs CJ (with whom Wilson J agreed). The substituted sentence must, however, be one “warranted in law”: s 6(3).

53 The fundamental principles underlying the parity principle are well established. It is “an aspect of equal justice [which] requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them”: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 (at 301) per Dawson and Gaudron JJ. Mere disparity between sentences imposed on co-offenders is not of itself a ground for the intervention of an appellate court, rather the difference between the sentences must be manifestly excessive so as to engender a justifiable sense of grievance: Lowe v The Queen (at 610) per Gibbs CJ; (at 611) per Mason J; (at 624) per Dawson J (with whom Wilson J also agreed); Postiglione v The Queen especially per Kirby J (at 338). Appellate intervention is only justified where the applicant demonstrates “gross”, “marked”, “glaring” or “manifest” disparity: England v R; Phanith v R [2009] NSWCCA 274 (at [61]-[67]) per Howie J (McClellan CJ at CL and Fullerton J agreeing).

54 Before a Court of Criminal Appeal can interfere with the exercise of the sentencing discretion, it must first identify an error in the sense referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 (at 505): Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 (at [3]) per Gleeson CJ and Hayne J; (at [21]) per Gaudron and Gummow JJ; R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 (at [74] – [79]) per Spigelman CJ (Mason P, Grove J and Newman AJ agreeing); see also (at [99]) per Sully J.

55 The principle which underlies intervention in a case of unacceptable disparity between sentences is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice. It is also accepted, however, the multiplication of manifest errors may also lead to an erosion of public confidence in the administration of justice, hence the frequent judicial observations about “the unattractiveness of responding to one wrong decision by making another wrong decision”: R v Rexhaj (New South Wales Court of Criminal Appeal, 29 February 1996, unreported) per Gleeson CJ (Powell JA and Ireland J agreeing).

56 Consistently with Gleeson CJ’s observation in Rexhaj it has been held that the exercise of the Court’s s 6(3) discretion may be affected by a view being formed that a stage has been reached at which the inadequacy of the lower sentence is so grave that any sense of grievance engendered can no longer be regarded as a legitimate one, and a reduction of an otherwise appropriate sentence to remove that disparity becomes an affront to the proper administration of justice: Chen, Siregar, Ismunandar & Lau [2002] NSWCCA 174; (2002) 130 A Crim R 300 (at [289]) per Heydon JA, Sully and Levine JJ; see also Josefski v R [2010] NSWCCA 41 (at [65]) per Howie J (James and Davies JJ agreeing).

57 Application of the parity principle takes into account that different sentences may reflect different degrees of culpability or the co-offenders’ different circumstances and, that if that is done appropriately by the sentencing judge, the notion of equal justice is not violated: Postiglione v The Queen (at 301) per Dawson and Gaudron JJ.

58 Finally, it should be understood that considerable obstacles are faced by an applicant seeking to invoke the parity principle in circumstances where the sentencing judge was fully aware of sentences imposed upon a co-offender, and the reasons for those sentences, and indicates in the sentencing remarks why the judge is departing from the co-offender’s sentences: Tatana (at [28]).

Conclusion

59 In my opinion the applicant has not demonstrated error in his sentence. While the sentencing judge approached the applicant’s sentence on the basis that he and Nugent were equally responsible for the offences, there were clearly, as the Crown submitted, substantial differences in the two offenders’ personal circumstances which warranted a different approach to each man’s sentence. I have set those substantial differences out above (at [49]). They are more extensive than the applicant suggested, insofar as he complained that the difference between the two sentences could not be explained merely by his previous convictions.

60 I turn to the applicant’s complaint that in considering the issue of special circumstances, the sentencing judge failed to take into account Howie J’s observation in Tatana (at [33]) that:

Crimes (Sentencing Procedure) Act

In my opinion, the need in a particular case to preserve proper parity between co-offenders may itself amount to special circumstances enabling a principled avoidance of a situation of manifest unfairness arising from a too literal application of conventional sentencing principles and the requirements of s 44

61 Howie J’s remark must be understood in context. It was made in circumstances where the sentencing judge had imposed a sentence which had the effect that the applicant was to spend six months longer in custody before being released to parole notwithstanding that he was sentenced for less criminal activity than his co-offenders. As his Honour observed “[t]hat is on the face of it a somewhat surprising and troubling outcome.” It could not, in his Honour’s view be explained by the different circumstances between the applicant and his co-offenders being the former’s failure to exhibit remorse or the fact he did not have good prospects of rehabilitation: Tatana (at [32]).

62 It should be noted that before his observation in Tatana (at [33]), Howie J had already set out a passage from his reasons (with which Sully and Latham JJ agreed) in R v Do [2005] NSWCCA 209 (at [17] – [19]). In that extract his Honour explained (adopting in turn his reasons in R v Wahabzadah [2001] NSWCCA 253 with which Wood CJ at CL agreed) that there could not be any breach of the principle of parity, simply because different non-parole periods are specified for different co-offenders because of different findings as to the existence, or extent, of special circumstances. His Honour’s observation about the need in appropriate cases to consider whether the parity principle of itself could constitute a special circumstance justifying a reduction of the non-parole period was a reminder to sentencing judges to be vigilant about ensuring that, in the final analysis, a double check against a co-offender’s sentence did not reveal unacceptable disparity.

63 It is apparent from the remarks on sentence that the sentencing judge was acutely conscious of the need to ensure parity between the applicant’s and Nugent’s sentence. The first passage emphasised from his Honour’s remarks on sentence (at [25] above) demonstrated, and explained (as the second passage emphasised makes abundantly clear), the reason the applicant’s sentence differed from Nugent’s was the differences between their respective circumstances. His Honour did not err in concluding that the differences were such as to warrant different non-parole periods.

64 Finally I would add that the applicant’s tentative concession that Nugent’s sentence, in particular relation between the head sentence and the non-parole period could, in substance, be seen to be generous was, in my opinion properly made. That, too, for the reasons I have explained would be a circumstance militating against appellate intervention.

65 In my opinion the applicant has not demonstrated any error on the part of the sentencing judge which would attract appellate intervention.

66 I would grant leave to appeal but dismiss the appeal.

67 HULME J: I agree with McColl JA.

I agree with McColl JA.

*******

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Citations

Gill v R [2010] NSWCCA 236

Most Recent Citation

Youkhana v R [2011] NSWCCA 37

Cases Citing This Decision

25

Fares v Director of Public Prosecutions (No 2) [2025] ACTCA 2

R v Ridden [2016] NSWDC 2

Ritchie v R [2023] NSWCCA 153

Cases Cited

15

Statutory Material Cited

4

Tatana v R [2006] NSWCCA 398

OM v R [2009] NSWCCA 267

Dui Kol v R [2015] NSWCCA 150

CITATION:	Gill v R [2010] NSWCCA 236
HEARING DATE(S):	14 September 2010
JUDGMENT DATE:	20 October 2010
JUDGMENT OF:	McColl JA at 1; Hulme J at 67; Latham J at 68
DECISION:	1. Leave to appeal granted. 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – appeal against sentence – parity principle – need to preserve parity constituting “special circumstances” for the purposes of s 44, Crimes (Sentencing Procedure) Act 1999
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Rural Fires Act 1997 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Chen, Siregar, Ismunandar & Lau [2002] NSWCCA 174; (2002) 130 A Crim R 300 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 England v R; Phanith v R [2009] NSWCCA 274 House v The King [1936] HCA 40; (1936) 55 CLR 499 Josefski v R [2010] NSWCCA 41 OM v R; MH v R; AA v R; AS v R [2009] NSWCCA 267 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Do [2005] NSWCCA 209 R v Rexhaj (New South Wales Court of Criminal Appeal, 29 February 1996, unreported) R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v Wahabzadah [2001] NSWCCA 253 Tatana v R [2006] NSWCCA 398
PARTIES:	Mark William Gill (Applicant) The Crown
FILE NUMBER(S):	CCA 2007/8737
COUNSEL:	P Lange (Applicant) D Arnott SC (Crown)
SOLICITORS:	Legal Aid Commission (Applicant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2007/61/0190
LOWER COURT JUDICIAL OFFICER:	Blackmore DCJ
LOWER COURT DATE OF DECISION:	24 April 2009