H W v The Queen

[2012] VSCA 36

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR  2011 0226
HW	Applicant
v
THE QUEEN	Respondent

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ELECTION TO HAVE APPLICATION DETERMINED BY THE COURT OF APPEAL
PURSUANT TO S 315(2) OF THE CRIMINAL PROCEDURE ACT 2009

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JUDGES:	BUCHANAN and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 February 2012
DATE OF JUDGMENT:	2 March 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 36
JUDGMENT APPEALED FROM:	DPP v [HW]  (Unreported, County Court of Victoria, Judge Hampel, 25 August 2011)

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CRIMINAL LAW – Sentence – Parity – No justifiable sense of grievance – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C T Carr	Michael Gleeson & Associates Pty
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA
HANSEN JA:

1. The applicant pleaded guilty before Judge Hampel in the County Court to one charge of trafficking in a commercial quantity of methylamphetamine. On 25 August 2011 he was sentenced to 6 years’ imprisonment with a non-parole period of 4 years. The maximum sentence for the offence was 25 years. The judge made a declaration pursuant to s 6AAA of the Sentencing Act 1991 that but for the plea of guilty she would have sentenced the applicant to imprisonment for 8 years and fixed a non-parole period of 6 years.

1. Earlier, on 17 May 2011, a co-offender had been sentenced by another judge in the County Court.  Those proceedings including the judge’s sentencing remarks and the sentence imposed were, and remain, suppressed from publication.  The only exception is that for the purpose of enabling the applicant to prepare this appeal, the suppression order was varied to enable counsel to be provided with and refer to a redacted version of the judge’s sentencing remarks.

1. The applicant seeks leave to appeal on the sole ground that the disparity between the sentence imposed on him and that imposed on the co-offender is such as to offend the principle of parity. 

1. When sentencing the applicant Judge Hampel knew that the co-offender had been sentenced and, it seems, the terms of the s 6AAA declaration. But she was not advised of the sentence that had been imposed on the co-offender and was not provided with the sentencing remarks or the transcript of his plea. Counsel on the plea chose not to seek to place those materials before her.

1. The present application for leave initially came before Bongiorno JA on 8 December 2011.   Bongiorno JA refused leave noting the failure to provide Judge Hampel with the materials relevant to the co-offender’s case and the way in which the plea was conducted, which did not include a case as to parity with the co-offender.  Further, the sentence imposed on the applicant was within the appropriate sentencing range.

1. Following that refusal, the applicant elected to have his application heard by the Court of Appeal, which we constitute for this purpose. 

1. At the outset of the hearing counsel for the Crown submitted, as a preliminary point, that the appeal should fail at the threshold because no error could be demonstrated in the applicant’s sentence.  That was because the relevant materials concerning the co-offender had not been placed before Judge Hampel;  the sentence was one that was open to be imposed and no error was shown;  further, the co-offender’s sentencing remarks and his police statement were reference to fresh evidence which should not be permitted because it was available at the time of the plea and counsel chose not to rely upon it.  Counsel for the applicant sought to meet this by suggesting that parity had in fact been argued before her Honour.  We disagree.  In truth what is seen to have happened on the plea is that counsel did not press those matters which would have to have been pressed and placed before the judge to make a parity argument, whereas now on appeal it is sought to make a parity argument.  That is to say, the case was conducted one way below and on appeal it is sought to be conducted in the way that counsel eschewed on the plea.  Thus understood the Crown’s submission has substance.  Nevertheless we have considered the question of parity.

1. In our view the principle of parity is not attracted in this case, for several reasons.  This principle is concerned with equal justice and rests on the presence in the relevant circumstances of matters, including the disparity in the sentences, that could give rise in the applicant to a justifiable sense of grievance or an appearance that justice has not been done.  In the circumstances of the way in which the plea was conducted before Judge Hampel, in particular the advised decision not to seek to rely upon the relevant materials concerning the co-offender and in light of her Honour’s statements as to the limited materials that were before her on that aspect, there could be no justifiable sense of grievance.  In other words the applicant knew what was before, and what was not before, her Honour.  On what was before her the sentence imposed was open and appropriate.  Further, in our view, and having had the benefit of the redacted sentencing remarks of the sentencing judge, the sentence imposed on the co-offender was well understandable as was the sentence imposed on the applicant.  Regarding the facts and circumstances overall no justifiable sense of grievance could arise let alone an appearance that justice had not been done. 

1. For these reasons leave to appeal is refused.

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