Greaves v R

[2020] NSWCCA 140

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Greaves v R [2020] NSWCCA 140

Hearing dates:

22 May 2020

Date of orders:

26 June 2020

Decision date:

26 June 2020

Before:

Hoeben CJ at CL at [1]
Hamill J at [2]
Cavanagh J at [3]

Decision:

(1)   Leave to appeal is granted.

(2)   The appeal is upheld.

(3)   The sentence imposed in the District Court on 17 April 2019 is quashed.

(4)   In lieu thereof, a sentence of imprisonment of 3 years with a non-parole period of 20 months starting from 27 March 2019 is imposed.

(5)   The applicant will first be eligible for release on parole on 27 November 2020 and the head sentence will expire on 26 March 2022.

Catchwords:

SENTENCING — appeal against sentence — co-offenders — disparity between sentences — co-offenders sentenced in Local Court and applicant in District Court — where sentencing judge did not consider parity when sentencing applicant — whether justifiable sense of grievance — whether failure of applicant's counsel on sentence to raise parity should be taken as acceptance of its limited role in determination of sentence — resentencing

Legislation Cited:

Crimes Act 1900 (NSW), ss 59, 112, 117, 195

Crimes (Sentencing Procedure) Act1999 (NSW), ss 3A, 5, 53A

Criminal Procedure Act 1986 (NSW), s 268

Cases Cited:

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

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

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

Park v R [2020] NSWCCA 90

Pecora v The Queen [1980] VR 499

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

R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317

R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242

R v Tisalandis [1982] 2 NSWLR 430

Re Attorney-General’s Application (No 1) under s 26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson (1999) 48 NSWLR 327; [1999] NSWCCA 435

Scicluna v R [2008] NSWCCA 24; 181 A Crim R 133; Tobia v R [2016] NSWCCA 99

Shortland v R [2013] NSWCCA 4

Zreika v R [2012] NSWCCA 44

Category:

Principal judgment

Parties:

Edward Greaves (Applicant)
Regina (Respondent)

Representation:

Counsel:
A Evers (Applicant)
G Newton (Respondent)

Solicitors:
Legal Aid Commission NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2018/214678
2018/294105

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

17 April 2019

Before:

Grant DCJ

File Number(s):

2018/214678
2018/294105

Judgment

1. HOEBEN CJ at CL: I agree with Cavanagh J and the orders which he proposes.

2. HAMILL J: I agree with the orders proposed by Cavanagh J and with his Honour’s reasons.

3. CAVANAGH J: The applicant, Edward Greaves, seeks leave to appeal from the sentence imposed upon him in the District Court at Sydney by his Honour, Judge Grant, on 17 April 2019.

4. The applicant pleaded guilty to a number of different offences committed over a 12-hour period. He was sentenced to an aggregate term of imprisonment of 4 years and 6 months with a non-parole period of 3 years.

5. The applicant relies on two grounds of appeal being:

1. the sentencing judge erred in failing to consider parity when imposing sentence; and

2. the sentence is manifestly excessive.

6. I set out below a table showing the charges, the maximum penalties and the indicative sentences imposed by the sentencing judge:

Charge	Maximum Penalty	Indicative Sentence
Larceny (contrary to s 117 of the Crimes Act 1900 (NSW))	5 years’ imprisonment	6 months
Break, enter and steal (contrary to s 112(1)(a) of the Crimes Act) Form 1 — Two counts of enter enclosed lands	14 years’ imprisonment	2 years
Assault occasioning actual bodily harm in company (contrary to s 59(2) of the Crimes Act) Form 1 — Failing to pay taxi fare	7 years’ imprisonment	3 years and 6 months
Destroy, damage property (contrary to s 195(1)(a) of the Crimes Act)	5 years’ imprisonment	1 month

Circumstances of offending

7. The circumstances of the offending were the subject of agreed facts and are set out in the sentencing judgment. At the time of the offending, the applicant was 26 years old. He was in a relationship with a co-offender, Dearne Atkinson (“Atkinson”).

The larceny offence

8. At 3.30pm on 11 July 2018, the applicant and Atkinson (with others) entered the Beer, Wine and Spirits Liquor Store at Leichhardt Marketplace in Leichhardt. Whilst the applicant and another person distracted the sales assistant, Atkinson placed two bottles of vodka in her bag. The applicant and Atkinson then left the store with the other person (unknown). This triggered the alarm. The sales assistant followed the three offenders outside the store and asked Atkinson if she was going to bring the bottles back in. She replied “No, I’m leaving now”. The sales assistant then called the Police.

The assault and damage property offences

9. Then, at 10.20pm on 11 July 2018, the applicant, Atkinson and another co-offender in respect of this offending, Josh Senico-Young (“Senico-Young”), hailed a taxi driven by the victim, being Fengjian Sun.

10. One of the offenders asked the victim to open the boot of the taxi so he could put his jumper in the boot. When the victim complied, Atkinson and/or Senico-Young rummaged through the boot for a short time. The offenders then entered the taxi and asked the victim to drive. Whilst the victim was driving the taxi, Senico-Young, who was seated in the front passenger seat, took the victim’s EFTPOS machine from the centre console and moved it to the side of the passenger door. On being asked to return it, Senico-Young replied that it was his mobile phone but he returned the machine to the centre console in any event.

11. The victim was then asked to stop in the middle of the trip and open the boot. The victim did not do so but the applicant who was seated in the back passenger seat leaned over his seat and started searching the boot from the inside.

12. The victim then stepped out of his car. The applicant then jumped out of the car and kicked in the driver’s front door to try to stop the victim getting out. In the meantime, Senico-Young opened the glove box and started searching the glove box. By this stage, everyone had left the taxi.

13. Atkinson reached into the driver’s window and released the handbrake of the vehicle. This caused the taxi to roll several metres down the street until the victim caught it and reset the handbrake.

14. After this occurred, the applicant punched the victim with both fists. Atkinson and Senico-Young immediately joined in, also punching the victim. The victim was knocked to the ground. He stated that they were all punching him. He ended up falling on the ground and the two men (being the applicant and Senico-Young) were kicking him. The victim was able to grab his tyre iron from inside the driver’s door. He swung it in the air. His glasses had fallen off and he was having trouble seeing. The applicant and Senico-Young continued to punch and kick the victim.

15. The offenders eventually fled the scene. No property was taken from the taxi. They did not pay the taxi fare, which became the subject of a Form 1 charge. The victim sustained cuts to his legs and scrapes to his face. His knuckles were scratched and bloodied. He complained of soreness to the head and jaw. His glasses were cracked and damaged. They were worth approximately $600.

The break, enter and steal offence

16. Then, at approximately 2.00am the next morning, 12 July 2018, the applicant and Atkinson entered the courtyard of an apartment complex on Darling Street, Rozelle. They approached the door of one of the units and smashed the lock and damaged the wooden frame of the door. They gained entry to the apartment, which was vacant at the time. The applicant rummaged through the cupboards and drawers whilst Atkinson took a bedspread off the bed and wrapped it around herself. They then removed the following items and put them on the footpath outside the building:

• a flat-screen television valued at $100;

• an instant coffee machine valued at $100; and

• bedding items valued at $50.

17. The applicant and Atkinson then returned to the apartment and removed further items and again placed them on the footpath:

• an impact drill worth $1,000;

• a cordless drill worth $500;

• a socket set worth $200; and

• cosmetic items worth $200.

18. A witness contacted the Police and the Police attended. The applicant fled the scene, jumping over a fence and hiding on another property. He was located hiding underneath an outdoor patio deck attached to the rear of premises in Rozelle. When arrested, the Police observed that he was in a highly intoxicated state. The Form 1 offences (entering enclosed lands) relate to his entry on to the two properties whilst he was trying to avoid Police.

The sentencing of the applicant

Objective seriousness

19. The sentencing judge assessed the objective seriousness of the offence of larceny at the lower end of the scale. He described it as a clumsy attempt at shoplifting with no sophistication.

20. In respect of the offence of break, enter and steal, the sentencing judge considered the guideline judgment in Re Attorney-General’s Application (No 1) under s 26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson (1999) 48 NSWLR 327; [1999] NSWCCA 435, as well as the considerations that have been taken into account on sentence for the offence. The sentencing judge referred to the fact that the applicant was on conditional liberty at the time of the offending and that he had a prior record for similar offences, although the sentencing judge acknowledged that prior offending should be ignored when assessing objective seriousness. [1]

    1. R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242.

21. The sentencing judge noted that there was some damage to the property in the breaking of the lock and entering the premises but this was not a serious breaking of the property. The sentencing judge had regard to the value of the stolen property and noted that the property was recovered by the Police and there was no force used or threats to anybody in the premises. The sentencing judge considered that the objective seriousness of the offence of break and enter was at the lower end of the scale.

22. In respect of the offence of assault occasioning actual bodily harm in company, the sentencing judge assessed the objective seriousness at the mid-range.

23. His Honour observed that the applicant set upon a taxi driver who provided a community service. He was struck repeatedly and others joined in. The behaviour was thuggish and brutal. The taxi driver was a vulnerable victim. The sentencing judge said it was necessary to make an example of the offender to deter this inhuman treatment of a vulnerable victim and demonstrate that it cannot and will not be tolerated by a civilised society.

24. The sentencing judge observed that the victim would have experienced great trauma which he will suffer for the rest of his life. He described the actions as callous, inhuman and barbaric, warranting condign sanction by the Court.

Subjective circumstances

25. The applicant was 26 years of age at the time of sentencing. He had a limited work history. At one stage, he had been working with his father washing windows. He had been a drug user for a considerable part of his adult life. He is said to have used ice and sleeping pills, although, according to the sentencing judge, when he stayed at his grandmother’s house, he had been a model person. The sentencing judge stated, “it would appear that his girlfriend has been a bad influence upon him and whenever he has been in her company he has engaged in the use of drugs and criminal activities”.

26. The sentencing judge acknowledged the applicant’s evidence that he had brought disrepute onto his family and that he felt for the taxi driver and that he now had some insight in understanding that he would not treat a fellow human being in that way.

27. The sentencing judge referred to the applicant’s prior criminal history, noting that the applicant had first come before the Court on 13 January 2009. He considered he had not taken the opportunities afforded to him by the Court on earlier occasions.

28. On 20 July 2017, he was sentenced for a number of offences including aggravated break and enter and assault occasioning actual bodily harm. He was sentenced to 4 years and 8 months with a non-parole period of 3 years and 3 months. As the sentencing judge observed, there was a recommendation that, on release, regard be had to the supervisory role of the offender’s father, including the advantage of supervised work. It seems that he did not take up the opportunity for work with his father upon release.

29. The sentencing judge also referred to his prior convictions for other offences, such as demanding money with menaces with intent to steal in 2010, affray in 2010 and goods in personal custody suspected having been stolen in 2011. He had also been charged with resisting an officer in execution of her duty, hindering Police and behaving in an offensive manner, as well as destroying or damaging property. Further, there was a history of offending or infractions whilst in custody. According to the sentencing judge, infractions in custody included matters such as intimidation, dealing with or possessing drugs, disobeying directions, failing to comply with routine and giving false and misleading information.

30. The sentencing judge rejected the applicant’s explanation that the most recent offending whilst in custody of possessing a drug was only in respect of the applicant’s personal use.

31. Further, the applicant had failed to report to Community Corrections on two occasions in accordance with the requirements of parole. An explanation was given to the State Parole Board (“the Board”) that he had been kicked out of home, although the sentencing judge noted that that would be inconsistent with the evidence given by the family on sentencing.

32. The sentencing judge had regard to the report from the Board, in particular, relating to the applicant’s continued illicit substance and alcohol abuse and aggression. The Board considered that his behaviour had progressively escalated and he had continued to ignore directions made by Community Corrections to engage in appropriate interventions. He had been given numerous warnings but failed to adhere to those warnings.

33. Further, the sentencing judge did not accept the evidence from the applicant’s grandmother as to the family support which would be available to him upon his release from custody.

34. The sentencing judge considered that the applicant’s prospects of rehabilitation were bleak. He rejected the applicant’s submission in relation to an intensive correction order. The sentencing judge took into account ss 3A and 5 of the Crimes (Sentencing Procedure) Act1999 (NSW) and considered that the only appropriate sentence was a term of imprisonment.

35. The sentencing judge found special circumstances, in that the applicant has a drug habit and would need an extended period of time on parole to try and assist him in relation to that drug habit.

The imposition of sentence

36. In accordance with the requirements of s 53A of the Crimes (Sentencing Procedure) Act, the sentencing judge indicated the individual sentences he would have imposed, had he not imposed an aggregate sentence.

37. The aggregate sentence of 4 years and 6 months reflects the 25% discount to the indicative sentences in relation to the early guilty pleas. The sentencing judge must have considered that the appropriate sentence prior to the 25% discount was 6 years. It can be seen that that is 1 month less than the accumulated total of all of the indicative sentences.

The sentencing of the co-offenders

38. The co-offenders, Senico-Young and Atkinson, were dealt with summarily. Senico-Young was sentenced in the Local Court by Magistrate K Thompson on 5 December 2018. Atkinson was sentenced in the Local Court by Magistrate Andrews on 13 December 2018.

39. It is important to emphasise that both co-offenders were subject to other charges unrelated to the applicant and also not charged with all the offences of which the applicant was charged. However, they were all charged with the same offences of assault occasioning actual bodily harm in company and damage to property arising out of the incident with the taxi driver.

40. Senico-Young was sentenced to an aggregate sentence of 14 months with a non-parole period of 5 months.

41. Atkinson received a total sentence of 8 months with a non-parole period of 5 months.

42. I set out below a table (from the Crown’s submissions on appeal) showing the common offences between the applicant and the co-offenders and the individual sentences for those common offences.

INDICATIVE SENTENCE		SENTENCE
OFFENCE	APPLICANT	SENICO-YOUNG	ATKINSON
Larceny s 117 Crimes Act	6 months’ imprisonment	N/A	No conviction recorded
Break, enter and steal s 112(1)(a) Crimes Act	2 years’ imprisonment*	N/A	N/A
AOABH in company s 59(2) Crimes Act	3 years and 6 months’ imprisonment*	12 months’ imprisonment	8 months’ imprisonment with NPP 5 months
Destroy/damage property s 195(1)(a) Crimes Act	1 month’s imprisonment	2 months’ imprisonment	No conviction recorded

* Form 1 matters taken into account

43. There are differences in the subjective circumstances of the co-offenders and their role in the joint offending.

44. In terms of the offending itself, the offence for which the indicative sentence was the highest for all three co-offenders was the assault of the taxi driver. The applicant was the instigator of the assault on the taxi driver in the sense that he threw the first punch. However, other than that, the conduct of Senico-Young was very similar, with both offenders punching the taxi driver then kicking him whilst he was on the ground. Atkinson played a lesser role. They were all charged with the same offence.

45. There were both similarities and differences in the subjective circumstances of the applicant and Senico-Young. The Magistrate accepted that Senico-Young had shown remorse and contrition. Further, the offending coincided with the removal of supervision on parole, an increase of drug use around that time and the death of his grandmother who had been the person in the position of his parent.

46. The Magistrate accepted that Senico-Young was dealing with issues of grief and loss. Further, the Magistrate accepted that he had significant support in the community and was motivated in respect of his rehabilitation. He had a two-year-old son and he believed it important that he play a role in his son’s life by being drug-free and involved in supporting his son and ex-partner. The Magistrate also had regard to Senico-Young’s limited opportunities at school, having left school in Year 8 and that there was extensive drug use preceding the offences. The Magistrate considered that he would require an extensive period of time under supervision to deal with that drug use.

47. However, like the applicant, Senico-Young had a criminal history which involved an earlier period in custody for the violent offence of causing grievous bodily harm with intent. He had also been sentenced for the offence of stealing from the person. He was on bail for an earlier offence (the offence of aggravated dealing with the intent to steal) at the time of the assault on the taxi driver. Senico-Young also received an indicative sentence of 9 months in respect of the offence of demand money with menaces arising out of the same event.

48. The indicative sentence for the assault on the taxi driver of 3 years and 6 months for the applicant was 3½ times the indicative sentence for Senico-Young.

49. Further, the aggregate sentence that the applicant received was more than 3½ times that received by Senico-Young, in circumstances in which by far the longest indicative sentence was in respect of the assault on the taxi driver.

43. Atkinson was also sentenced in respect of a range of offences, not all of which involved the applicant. Other offences included dishonestly obtain benefit by deception, larceny, driving and traffic offences, being armed with the intent to commit an indictable offence, goods in custody, escape lawful custody and assaulting a Police Officer.

44. As the sentences in respect of all of the offending by Atkinson were concurrent, they were subsumed by the lengthiest period of imprisonment being 8 months for the assault occasional actual bodily harm in company. The sentence received by Atkinson in respect of the same assault charge was thus less than 20% of the sentence imposed upon the applicant. However, Atkinson played a significantly lesser role in the events than the applicant, in the sense that she did not instigate the assault and nor was she kicking the taxi driver whilst he was on the ground.

45. Further, Atkinson’s subjective case was significantly better. The Magistrate accepted that she had good prospects of rehabilitation and viewed her personal circumstances and upbringing as tragic, in the sense that she was a daughter of a heroin addict. She had not been previously sentenced to a term of imprisonment.

46. Having said that, there is certainly a significant disparity between the sentences imposed in respect of the assault on the taxi driver. The applicant received a sentence of five times the actual sentence imposed upon Atkinson. This is in circumstances in which the sentencing judge assessed the objective seriousness of the applicant’s offending relating to the assault on the taxi driver, at the mid-range.

Ground 1

The Applicant’s submissions

54. The applicant relies on an affidavit of John Pearson, his solicitor, affirmed 12 May 2020, annexed to which are the facts sheet, transcript and sentencing judgment in respect of each of the co-offenders.

55. The applicant submits that as between Senico-Young and him, the facts were almost identical and their role in the offending was indistinguishable. Further, the applicant submits that Senico-Young was also convicted of damaging property with menaces arising out of the same event. He said that his criminality was less than that of Senico-Young in respect of that event.

56. The applicant then points to Senico-Young’s similar subjective circumstances, including that Senico-Young’s criminal history was significant. The applicant acknowledged that Senico-Young’s prospects of rehabilitation were found to be better than that of the applicant but, other than that, there was little difference between the subjective circumstances.

57. In respect of Atkinson, the applicant acknowledges the finding of the Magistrate that she played a lesser role, although the applicant submits that her role could not have been found to be substantially less than that of the applicant and remains significant. The applicant accepts that Atkinson’s subjective case was better, although it could not, of itself, justify the substantial disparity between the sentences.

58. The applicant submits that the conclusion of the sentencing judge that he did not need to consider the issue of parity when sentencing the applicant was an error. The applicant submits that the sentencing regime in the Local Court is not substantially different to that of the District Court, save for the jurisdictional limit. Further, the applicant accepts that it is the aggregate sentence which must be shown to be in error, rather than any indicative sentence, and that the aggregate sentence imposed upon the applicant included sentencing for offences not involving Senico-Young.

The Crown submissions

59. The Crown submits that there needs to be shown a justifiable sense of grievance which is to be assessed by reference to objective criteria. Further, it submits that, as the offenders were sentenced in different jurisdictions, the Court must recognise that sentencing took place under a different sentencing regime. Further, the Crown relies on the failure of the applicant’s counsel in the Court below to make any submissions on the issue of parity. It is said that this should be taken as being consistent with the applicant’s counsel recognising that the differences between the role of the offenders and the different jurisdictions were such that the principles of parity could play little role. The Crown also submits that even if the sentencing judge erred in failing to consider the issue of parity on resentencing, this Court would find that no lesser sentence was justified.

Consideration

60. The parity principle is summarised in the joint judgment of French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] (“Green”):

“Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’. It finds expression in the ‘parity principle’ which requires that like applicants should be treated in a like manner. As with the norm of ‘equal justice’, which is its foundation, the parity principle allows for different sentences to be imposed upon like applicants to reflect different degrees of culpability and/or different circumstances.” (Footnotes omitted.)

61. This Court should not interfere unless the disparity between sentences for co-offenders is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of the appellate court in the interest of justice: Pecora v The Queen [1980] VR 499; R v Tisalandis [1982] 2 NSWLR 430.

62. “Manifestly excessive” signifies something that is unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].

63. Again, in Green at [31], French CJ, Crennan and Kiefel JJ said:

“The sense of grievance necessary to attract appellate intervention [in a severity appeal] with respect to disparate sentence is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.” (Footnotes omitted.)

64. When the issue of parity was raised with the sentencing judge by the Crown, the following exchange took place:

“SCHRUBB: … The issue of parity is one that—

HIS HONOUR: Well, the other ones were dealt with summarily, so that doesn’t really raise here at all.

SCHRUBB: Yes, and the offender’s level of culpability is much more significant.

HIS HONOUR: Absolutely.” [2]

2. Proceedings on Sentence, 17 April 2019, p 29(2–10).

65. Counsel for the applicant in the Court below did not respond to this exchange either orally or in any written submissions. The question of parity was not raised again and not further considered by the sentencing judge.

66. The fact that the co-offenders were dealt with summarily and not sentenced by the sentencing judge may explain some differences in the sentences and differences in approach. However, the sentencing principles applicable to the process of sentencing remain the same in the Local and District Courts. The jurisdictional limit of the Local Court[3] was not a factor, having regard to sentences imposed by the learned Magistrates. In any event, the Magistrate was required to assess the appropriate sentence having regard to the prescribed maximum penalty for each offence rather than any jurisdictional limit. [4] The jurisdictional limit only becomes relevant if the assessment leads to a sentence greater than the limit.

    3. 5 years for an aggregate sentence (Crimes (Sentencing Procedure) Act s 53B) or 2 years, for example, for assault occasioning actual bodily harm in company when dealt with as an individual offence (Criminal Procedure Act s 268).

    4. Park v R [2020] NSWCCA 90 at [30] (Bathurst CJ), [182] (R A Hulme J); R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 at [35].

67. Unlike when differing sentencing regimes might apply, for example, in the Drug Court,[5] the approach of the judicial officer to sentencing should be similar. In circumstances in which there are a number of co-offenders involved in the same series of events, the parity principle remains applicable.

    5. Scicluna v R [2008] NSWCCA 24; 181 A Crim R 133; Tobia v R [2016] NSWCCA 99.

68. To the extent that the sentencing judge considered that parity was not relevant as the co-offenders were dealt with summarily, his Honour was in error. His Honour accepted what was said by the Crown to the effect that the applicant’s culpability was much more significant but his Honour did not have before him all the documentation relevant to the sentencing of the co-offenders.

69. His Honour was provided with a table setting out the co-offenders’ offences and the sentences imposed, as well as the criminal histories of the co-offenders. However, neither the sentencing judgments in the Local Court or the facts sheet that had been relied upon were made available to his Honour. Whilst his Honour appears to have dismissed the issue of parity as a relevant factor, not all of the relevant documents which might have allowed his Honour to consider the issue further were provided to him.

70. In Shortland v R [2013] NSWCCA 4 at [110], Johnson J (with whom Hoeben JA agreed) stated:

“The High Court of Australia and this Court have emphasised repeatedly the strong desirability of co-offenders being sentenced by the same sentencing Judge or, if that is not practicable, the second sentencing Judge being fully informed of the sentence imposed upon a co-offender by the first sentencing Judge, with the remarks on sentence of that Judge being provided to assist and inform the sentencing process: Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 617, 622; Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 320; Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274 at 284-286 [32]-[47]; R v Chandler [2012] NSWCCA 135 at [94]-[96]; Arenilla-Cepeda v R [2012] NSWCCA 267 at [52], [87].”

71. In this matter, the co-offenders were dealt with summarily. It was thus not practicable that the same judge sentence all of the co-offenders. However, the co-offenders were sentenced prior to the applicant. In those circumstances, the sentencing judge should have been provided with all the documents relevant to the sentencing of the co-offenders, including the sentencing judgment and agreed facts. The sentencing judge would have been in a position to properly consider parity in respect of the identical charges. To the extent that there were differences between the co-offenders, then those differences could have been identified. If the sentencing judge considered that the criminality and the subjective circumstances of the applicant were markedly different to those of the co-offenders, then those differences might have been reflected in different sentences. This did not occur.

72. The question that arises in this appeal is whether the sentences are so disparate as to give rise to a justifiable sense of grievance on the part of the applicant, when assessed objectively. As Dawson and Gaudron JJ put it in Postiglione v The Queen (1997) 189 CLR 295 at 320; [1997] HCA 26:

“[I]t is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.”

73. I do not accept the Crown’s submission that the failure of the applicant’s counsel in the Court below to make submissions on the issue of parity is consistent with the recognition that the differences between the role of the offenders and the different jurisdictions were such that parity could have little role to play in the determination of the correct sentence. It was the prosecutor’s duty to place the relevant material before the sentencing judge.

74. I acknowledge the submissions to the effect that there is an expectation on an offender’s legal representative that submissions will be made to the sentencing judge at first instance by reference to particular factors which the sentencing judge should take account of in sentencing the offender. [6] However, the failure of the applicant’s counsel to raise the issue of parity in the circumstances of this matter does not preclude the point being raised in this appeal. Indeed, the Crown did not go so far as to suggest that it did.

    6. Zreika v R [2012] NSWCCA 44 at [80]–[81] (Johnson J, with McClellan CJ at CL and Rothman J agreeing).

75. Nor did the Crown suggest that an explanation for the differences in sentence is that the sentences imposed on the co-offenders were plainly inadequate. Rather, the Crown merely submitted that the failure of the applicant’s counsel to raise the issue of parity should be taken as acceptance that it had little role to play. I disagree.

76. In general terms, the Court will compare the aggregate sentences so as to determine whether the disparity is unreasonable or plainly unjust. However, the particular circumstances of the sentencing of co-offenders in this matter do not permit a mere comparison of the aggregate sentences. This is because:

1. the co-offenders were sentenced in respect of a number of different offences not related to the applicant at the same time as the most serious common offence of assault occasioning actual bodily harm in company;

2. an aggregate sentence was not imposed upon Atkinson;

3. the sentences for all other offences were subsumed by the sentence for the assault of the taxi driver; and

4. despite all the other offences with which each of the applicant, Senico-Young and Atkinson were convicted, it is apparent from the consideration of each of the sentencing judgments that the assault on the taxi driver was considered to be the most serious offence for each offender.

77. There is a substantial difference in the level of criminality, the role played and the subjective circumstances between the applicant and Atkinson. Even so, the applicant’s aggregate sentence was more than 6 times that of Atkinson.

78. Having said that, there is a similarity in both the offending and the subjective circumstances between Senico-Young and the applicant. Whatever differences there might be do not account for the significant difference in the aggregate sentences. The applicant received a sentence of 3½ times of that imposed on Senico-Young (including a 250% greater indicative sentence for the assault occasioning actual bodily harm in company offence) when the only difference in their conduct was that the applicant threw the first punch.

79. I do not consider that the criminality or subjective circumstances are identical and it is appropriate that the applicant received a higher sentence than the co-offenders. However, the sentencing judge erred in not having regard to the need for parity or some proportion between the sentences imposed. There is a significant disproportion between the sentences imposed. In my view, the sentences are so disparate as to give rise to a justifiable sense of grievance.

80. In the circumstances, I would allow Ground 1.

Ground 2

81. The principles that apply to an appeal based on manifest excess are well-known. It is not necessary to further consider them in the context of this appeal.

82. The applicant has succeeded on Ground 1. In the circumstances, leave to appeal is granted and the appeal is upheld. The sentence is quashed and it is necessary that he be re-sentenced.

Re-sentencing

83. For the purposes of re-sentencing, the applicant relies on his own affidavit affirmed 15 May 2020.

84. He says that at the time of his original sentence, he had not been able to get his drug dependency under control. Since that time, he has been taking monthly Buprenorphine injections and has been stable. He says he will remain on that program when released.

85. He also refers to the situation having regard to COVID-19. He says that family visits have been discontinued and he misses seeing his family. He has only had one contact with a friend since personal visits were stopped. He says the situation in custody has become intense with inmates becoming fearful and paranoid. He says that there are no courses available to him currently but he hopes to resume undertaking the EQUIS addiction program. He says that when released he would live with either his father or his mother in Newtown. He hopes to work in his father’s window washing business.

86. I would adopt the sentencing judge’s findings on objective seriousness. That is, I would also find that the objective seriousness in respect of the offence of break, enter and steal and the two Form 1 offences were at the lower end of objective seriousness.

87. In respect of the offences of assault occasioning actual bodily harm in company (including the Form 1 offence) and destroy or damage property, I would also adopt the sentencing judge’s assessment at the mid-range of objective seriousness for the reasons identified by the sentencing judge.

88. In terms of the applicant’s subjective circumstances, I would similarly adopt the remarks of the sentencing judge in terms of his prior drug use, prior criminal history and contrition and remorse.

89. The applicant has failed to take up earlier opportunities given to him following earlier offending. However, there have been periods when the applicant has remained stable, such as when living with his grandmother, but it would appear that he did resort to drugs and criminal activity when in the company of Atkinson.

90. Having regard to the further material relied upon by applicant at this time, I consider that his prospects of rehabilitation are improved from the time of sentencing, at which time the sentencing judge described the prospect as bleak. Although the applicant’s history of failing to comply with conditions whilst on supervision and resorting to drug use does give rise to some concern and doubt as to his prospects, he appears to be making a conscious effort whilst in custody to deal with his drug problem. Continued participation in programs and appropriate treatment would increase his prospects of rehabilitation and likely compliance with conditions of supervision on release.

91. Further, it is important that I consider parity between co-offenders in respect of the same offences. As I have already indicated, there is some difference in the subjective circumstances between the co-offenders and Atkinson’s role in assaulting the taxi driver was plainly much less significant than that of the applicant and Senico-Young. I also have regard to the fact that the applicant was the instigator of the assault having thrown the first punch.

92. I consider that the applicant’s improved prospects of rehabilitation should be reflected in the sentences imposed.

93. I consider that the applicant’s need for treatment for his drug problem and his improved prospects of rehabilitation require an extended period on parole.

94. In those circumstances, I give an indicative sentence of 2 years’ imprisonment in respect of the offence of assault occasioning actual bodily harm in company, contrary to s 59(2) of the Crimes Act. I would also give lesser indicative sentences in respect of the offences of larceny and break, enter and steal as set out in the table below. Otherwise, I would adopt the approach of the sentencing judge.

95. The indicative sentences are reflective of a full 25% discount in relation to the early guilty pleas.

96. I set out below the offences and my indicative sentences:

Charge	Indicative Sentence
Larceny (s 117 of the Crimes Act)	3 months
Break, enter and steal (s 112(1)(a) of the Crimes Act)*	15 months
Assault occasioning actual bodily harm in company (s 59(2) of the Crimes Act)*	2 years
Damage, destroy property (s 195(1)(a) of the Crimes Act)	1 month

* Form 1 matters taken into account

97. I impose an aggregate sentence of 3 years’ imprisonment with a non-parole period of 20 months starting from 27 March 2019. The applicant will first be eligible for release on parole on 27 November 2020 and the head sentence will expire on 26 March 2022.

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Endnotes

Decision last updated: 26 June 2020