Hassan v The Queen - [2022] SASCA 56

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HASSAN v THE QUEEN
[2022] SASCA 56
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable President Livesey and the Honourable Justice Doyle)
22 June 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
Appeal against sentence on the grounds of manifest excess and disparity.
The appellant and a co-accused, Ms Ruru, were jointly charged with three offences contrary to the Criminal Law Consolidation Act 1935 (SA): aggravated serious criminal trespass in a place of residence (Count 1); aggravated assault causing harm (Count 2); and theft (Count 3). While Ms Ruru pleaded guilty to all three counts, the appellant proceeded to trial and was convicted by a jury of Counts 2 and 3, but not Count 1, the trial judge having directed the jury to acquit on that count.
In October 2018, at around midnight, the appellant together with three others dressed in dark clothing, armed themselves with a baseball bat and sticks, entered the victim’s bedroom and assaulted him, causing harm in the form of a laceration to his lower right leg, a swollen right calf, a cut lip and bruising. They proceeded to take around $900 in cash, two mobile phones and a bumbag. Relevantly, Ms Ruru was in a relationship with the victim and living with him in his home, but had previously been in a brief relationship with the appellant. They had planned the offending together earlier that day. Ms Ruru left with the appellant, the victim being led to believe that she had been kidnapped.
Ms Ruru was sentenced for all three counts to a single sentence of two years, nine months and three days imprisonment (discounted from a starting point of three years and six months on account of her guilty plea and further reduced for time spent in custody) with non-parole fixed at one year, seven months and 26 days. The sentencing judge refused to suspend her sentence, but ordered that it be served on home detention.
The appellant received a single sentence of three years, seven months and 11 days imprisonment. The sentencing judge identified notional starting points of three years for Count 2 and 18 months for Count 3, before aggregating the sentences to arrive at a head sentence of four years imprisonment (implicitly allowing six months concurrency). The sentencing judge then reduced the sentence for time spent in custody, and fixed a non-parole period of two years and two months. His Honour refused to suspend the sentence or allow that it be served on home detention.
The appellant appeals against his sentence on the grounds that it was manifestly excessive in regard to the starting points for each offence (Ground 1.1) and the non-parole period fixed (Ground 1.2), and that the sentencing judge erred in failing to properly take into account parity considerations in respect of the appellant and Ms Ruru (Ground 2).
While the appellant was granted permission to appeal on Ground 1.1 by a single judge of the Court, a grant of permission is required for Grounds 1.2 and 2.
Held, per the Court, granting permission to appeal on Grounds 1.2 and 2 but dismissing the appeal on all grounds:
1.      In this case, the principle in R v De Simoni (1981) 147 CLR 383 prevented the appellant from being punished for the criminality inherent in Count 1 for which he was acquitted but did not require that the sentencing judge ignore the context and surrounding circumstances in which Counts 2 and 3 occurred. Having regard to these matters, together with the appellant’s personal circumstances and antecedents, the starting points adopted for each offence and the non-parole period fixed were appropriate.
2.      Per Doyle JA (Livesey P agreeing), as it is apparent that the sentencing judge did not impose any significant penalty upon Ms Ruru for her offence of serious criminal trespass, there was no relevant disparity between the sentences imposed upon the appellant and Ms Ruru.
3.      Per Kourakis CJ, there was a relevant disparity between those sentences. This is an appropriate case in which to exercise the Court’s discretion to not intervene with the sentence imposed upon the appellant despite that disparity.
Criminal Law Consolidation Act 1935 (SA) ss 20, 134, 170; Criminal Procedure Act 1921 (SA) s 5; Sentencing Act 2017 (SA) ss 10, 26, referred to.
Ndreka v The Queen [2021] SASCA 11; Dinsdale v The Queen (2000) 202 CLR 321; Hili v The Queen (2010 242 CLR 520; House v The King (1936) 55 CLR 499; R v Morse (1979) 23 SASR 98; R v De Simoni (1981) 147 CLR 383; R v Austin (1985) 121 LSJS 181; R v Newman (1997) 1 VR 146; Director of Public Prosecutions v England [1999] 2 VR 258; R v Birnie (2002) 5 VR 426; R v Tranter (No 2) (2014) 119 SASR 480; R v Stratton (2008) 20 VR 539; Giordimania v The Queen [2020] SASCFC 28; R v Tsonis (2018) 131 SASR 416; R v Ribbon [2022] SASCA 15; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462; Jimmy v The Queen (2010) 77 NSWLR 540, considered.

HASSAN v THE QUEEN
[2022] SASCA 56
Court of Appeal – Criminal: Kourakis CJ, Livesey P and Doyle JA

KOURAKIS CJ: I have had the advantage of reading the draft judgment of Doyle JA and gratefully adopt his Honour’s summaries of the factual circumstances and the reasons of the sentencing judge.
Disparity is a disproportion between sentences which is not explained by differences in the relevant sentencing circumstances including any difference in the offences of which the co‑offenders have been convicted. It is not obvious to me how the erroneously favourable treatment of one offender by a sentencing judge can dispel an otherwise legitimate sense of grievance founded on a comparison of sentences which do not proportionately reflect those differences. The Judge’s reasons may explain why the sentences are disparate but the dismissal of an offender’s complaint of disparity on the grounds that the disparity results from the erroneous leniency extended to his or her co-offender is likely to compound, rather than ameliorate, the grievance.
I acknowledge that it is necessary to maintain some flexibility in the way sentencing courts deal with offenders complicit in the same criminal enterprise who are convicted of different offences. Different convictions may result from a variety of causes: the loading up of informations, the withdrawal of charges as part of a plea deal, or inconsistent jury verdicts. However, the sentencing power is enlivened and must be judicially exercised whenever there is a conviction even when a co-offender, for whatever reason, has escaped conviction for that offence.
The offence of aggravated criminal trespass of which Ms Ruru was convicted would ordinarily attract a substantial sentence of imprisonment. That offence was committed by Ms Ruru remaining in the victim’s home whilst planning the offending and also by arranging for her co-offenders to come into the house against the victim’s consent. The starting point of three years and six months must be taken to be the sentence imposed on Ms Ruru’s convictions for all three offences, including the trespass. That sentence falls well short of the range of sentences for an aggravated criminal trespass of this kind. To my mind, there was little to differentiate Ms Ruru’s culpability for the offending from Mr Hassan’s. She planned and encouraged the offending and unlocked the door to facilitate his entry. If Ms Ruru had not been convicted of the trespass offence, her relatively lower starting point would have been warranted only because of the major psychiatric illness from which she suffers and the resulting socio-economic disadvantages it entails. When Ms Ruru’s conviction for aggravated criminal trespass is factored in as a relevant sentencing circumstance, there is a marked disparity between her sentence and the sentence imposed on Mr Hassan.
True it is that the reason for the disparity lies in the flawed course taken by the proceedings. First, there was the erroneous finding of no case to answer on the aggravated trespass charge brought against Mr Hassan. However, Mr Hassan cannot now be denied the benefit of that acquittal and his sentence cannot be compared to Ms Ruru’s on the false premise that he was convicted of the trespass offence. Secondly, there is the unexplained failure of Ms Ruru’s counsel to seek permission to withdraw her guilty plea. However, that error did not relieve the Judge of his duty to sentence Ms Ruru for that offence in accordance with proper sentencing principles. Thirdly, there is the unduly favourable decision of the Judge to largely ignore Ms Ruru’s conviction of the trespass offence when fixing her sentence.
On this appeal, it would be yet a further error to compare the sentences of Mr Hassan and Ms Ruru on the ground that, the Judge having largely ignored Ms Ruru’s conviction for trespass, so too must this Court.
However, notwithstanding the disparity, if Mr Hassan’s sentence were to be reduced to reflect the circumstance that he was not convicted of the trespass offence, the resulting sentence would be so unduly lenient that it would be ‘an affront to the proper administration of justice’.[1] I would, therefore, exercise the discretion not to interfere with the sentence despite the disparity.
[1] R v Draper (Supreme Court of New South Wales, Court of Criminal Appeal, Street CJ, Hunt and Wood JJ, 12 December 1986) at 5 (Street CJ); Green v The Queen (2011) 244 CLR 462 at [71] (French CJ, Crennan and Kiefel JJ).
I would dismiss the appeal.
LIVESEY P: I agree with the reasons of Doyle JA and the orders he proposes.
DOYLE JA: The appellant appeals against the sentence he received on the grounds of a lack of parity with the sentence imposed upon a co-offender, and manifest excess.
The appellant was jointly charged with Summer Ruru with three offences:
·aggravated serious criminal trespass in a place of residence, contrary to s 170(1) of the Criminal Law Consolidation Act1935 (SA) (CLCA) (maximum penalty of imprisonment for life) (Count 1);
·aggravated assault causing harm, contrary to s 20(4) of the CLCA (maximum penalty of imprisonment for five years) (Count 2); and
·theft, contrary to s 134(1) of the CLCA (maximum penalty of imprisonment for 10 years) (Count 3).
Count 1 was alleged to have been aggravated by reason that the victim was lawfully present in the place of residence when the offence was committed, and the appellant and Ms Ruru knew of his presence or were reckless about whether anyone was in the said place. Count 2 was alleged to have been aggravated by reason both that the appellant and Ms Ruru committed the offence in company, and that they used or threatened to use an offensive weapon (namely a baseball bat) to commit the offence.
Ms Ruru pleaded guilty to all three charges. The appellant proceeded to trial before a jury. As explained later in these reasons, the trial judge directed an acquittal on Count 1. However, the appellant was convicted by a jury of Counts 2 and 3.
In sentencing the appellant, the sentencing judge identified notional starting points of three years imprisonment for Count 2, and 18 months imprisonment for Count 3. Implicitly concluding that the sentence for Count 3 should be served partially concurrently as to six months, the sentencing judge imposed an aggregate sentence of four years imprisonment. After allowing reductions for time served in custody and on home detention, this was reduced to a head sentence of three years, seven months and 11 days imprisonment. The judge fixed a non-parole period of two years and two months, but declined to suspend the sentence or order that it be served on home detention.
The appellant challenges his sentence on two grounds:
1.that the sentence is manifestly excessive having regard to both the starting points for each offence (Ground 1.1), and the non-parole period (Ground 1.2); and
2.the sentencing judge erred in failing to properly consider parity considerations with respect to the appellant and his co-offender (Ground 2).
A single judge of this Court granted the appellant permission to appeal on Ground 1.1, and referred Grounds 1.2 and 2 for hearing as on appeal.
Before addressing these grounds, it is necessary to set out the background relevant to the sentences imposed upon both the appellant and Ms Ruru.
Background and circumstances of the offending
As mentioned, Ms Ruru and the appellant were jointly charged with three offences, which I shall refer to as the trespass, assault and theft offences, or Counts 1, 2 and 3, respectively.
The prosecution case was that on 28 October 2018, the appellant and Ms Ruru entered or remained in the place of residence of the victim as a trespasser, with the intention of committing assault (Count 1). Acting in company with three other people and armed with a baseball bat, the appellant and co-accused assaulted the victim and thereby caused him harm (Count 2). They also took from him $900 in cash, two mobile phones and a bumbag (Count 3).
The context in which this offending was alleged to have occurred was that, at the time of the incident, Ms Ruru was in a relationship with the victim and was living with him at his house in Morphett Vale. This was where the offending occurred. Ms Ruru had previously been in a relationship with the appellant and they had a child together. The offending was the culmination of a plan between Ms Ruru and the appellant to stage a kidnapping of Ms Ruru.
As a result of the assault, the victim sustained a laceration to his lower right leg, a swollen right calf, a cut lip and bruising.
On the morning of the trial, Ms Ruru pleaded guilty to all three counts. The appellant proceeded to trial.
At the close of the prosecution case, the trial judge ruled that there was no case to answer in respect of the trespass offence, and directed the jury to acquit on that count. His Honour’s reason for so holding was that the prosecution could not disprove that the appellant had the consent of an occupier of the property, namely Ms Ruru, to enter or remain in the property.[2]
[2] Whether that was an appropriate way of considering the question of consent is not an issue which it is necessary to decide on this appeal.
The trial proceeded on the remaining two counts of assault and theft, and the appellant was jury found the appellant guilty of both.
The judge described the factual basis for the sentences to be imposed in the following terms:
The offending occurred in the following circumstances. At the time of the alleged offending you, Ms Ruru, had been in a relationship with the victim for about a month or so. The two of you met when you were both in-patients in a residential mental health facility. After both of you were discharged you came to live with the victim at his house in Morphett Vale. You say that relationship was an unhealthy one and marked by domestic violence. You say that you came to feel trapped in your circumstances, fearful of the victim’s controlling behaviour and violence and that things got to a point where you desperately needed to find a way out.
You had previously been in a brief relationship with Mr Hassan. That relationship produced a child and, notwithstanding an intervention order preventing him from having contact with you, you facilitated his contact with the child.
In the early afternoon on the day of the offending Mr Hassan sent a Facebook message to the victim asking for your mobile phone number, Ms Ruru. Mr Hassan, you had never met the victim but the victim knew that you had a child with Ms Ruru and so he responded by sending you the number of his spare phone to allow you to communicate with her. You, Ms Ruru, then used that phone to speak with Mr Hassan whilst you were in another room and out of range of the victim’s hearing. You used the spare phone to send text messages to Mr Hassan during the course of the day. I will not repeat the content of those messages in these remarks but it is clear that during the course of the evening you sent messages to Mr Hassan to encourage him to give effect to a plan that had clearly been made between you during the course of the day.
Mr Ruru, when you and the victim went to bed that night you made sure that the front door of his house was unlocked. You sent texts to Mr Hassan urging him to come quickly and you, Mr Hassan, were at pains to ask what side of the bed Ms Ruru slept on and where the victim placed his phone. Ms Ruru, you reminded Mr Hassan to say when committing the offence ‘Ross wants you Summer. You are coming with us.’
What happened when you, Mr Hassan, arrived with your three associates at about midnight is that you burst in through the front door and entered the victim’s bedroom where he lay with your co-accused Ms Ruru. You were all dressed in dark clothing and you, Mr Hassan, were wearing a hockey mask. At least one of you was carrying a baseball bat and at least two others were armed with either baseball bats or sticks. Your associates were also wearing masks.
The victim was struck with bats by at least two of you to his leg, head and arm. During the assault one of the assailants held what the victim believed to be a taser to his face and someone threatened to stab him.
Whilst all of this was going on, unbeknownst to the victim, you Ms Ruru, were gathering up your things and preparing to leave. One of the males shouted ‘Grab the phones’ and the two of you left in a car with the other three men.
The victim sustained a laceration to his lower right leg which bled profusely and required stitches as well as a swollen right calf, a cut lip and bruising.
The two of you took from the victim a bumbag which contained his wallet, numerous cards and $900 cash. You also took two mobile phones and his house keys.
He believed that you, Ms Ruru, had been abducted, which is what you wanted him to believe to avert suspicion from yourself. He asked his neighbour to call the police.
Ultimately police attended your house, Mr Hassan, at around 3 am in the morning just as you were arriving home in a car with another and Ms Ruru. You were both caught red-handed and in your bedroom, Mr Hassan, police located Ms Ruru’s bag with some of her belongings in it including the night garment she had been wearing, the two mobile phones which had been stolen from the victim and numerous identification cards which had been in his wallet. The $900 was not located and presumably had been disposed of by that stage.
The sentencing judge sentenced the appellant and Ms Ruru on the basis that they were both involved in a joint enterprise to assault the victim and steal his property; that enterprise having been agreed and planned during their telephone conversations earlier in the day.
In terms of their individual roles, it is apparent from the above that Ms Ruru was sentenced on the basis that she sent messages to the appellant encouraging him to give effect to the plan, and then made sure that the front door of the victim’s house was left unlocked when they went to bed. In elaborating upon Ms Ruru’s involvement, the sentencing judge later accepted that a substantial part of the motive for the offending was the theft and that she was party to a joint enterprise to use violence with weapons if necessary:
Your counsel has submitted that while you were part of the joint enterprise you did not expect to receive any reward from the theft personally. I have some difficulty in accepting that submission at face value but ultimately it makes little difference for the purpose of sentencing you. The fact of the matter remains that theft was always an intended part of the joint enterprise and you were more than prepared to tell Mr Hassan where the victim kept his property. Whether you anticipated a benefit for yourself or only for others makes little difference. A substantial part of the motive for the offending was theft. It was also submitted that you did not know for certain that the victim would be violently assaulted with weapons. Whether or not that is the case, you have acknowledged by your plea of guilty to aggravated assault causing harm that you were at the very least part of a joint enterprise to use violence with weapons if necessary.
Once again, the distinction between those two possibilities makes very little difference for the purpose of sentencing.

As described in the earlier extract from the sentencing judge’s reasons, the appellant’s role included entering the victim’s premises around midnight, with three other men. They were wearing dark clothing and masks. At least three of them had bats or sticks as weapons. At least two of the men struck the victim to the leg, head and arm. The men also held what the victim believed was a taser to his face, and one of them threatened to stab him.
While this description did not make clear whether the appellant himself was armed or inflicted any of the wounds, the sentencing judge later added:
You were armed, heavily disguised and in company with three other persons when you entered the victim’s room and assaulted him. It is only a matter of good fortune that he was not more seriously injured.
Ms Ruru’s personal circumstances
Addressing Ms Ruru’s personal circumstances, the sentencing judge noted that she was 26 years of age at the date of sentence. She was born in New Zealand and then raised in Sydney until she moved with her family to Adelaide at the age of 14.
Ms Ruru had a history of abusing methlyamphetamine, heroin and painkillers, which had exacerbated her mental health condition of treatment resistant schizophrenia. She had been on a methadone program since remanded in custody for the present offending, and had informed the Court that she was determined to put her substance abuse behind her. Her schizophrenia had been difficult for professionals to treat, but since commencing depot injections while in custody, there had been a notable improvement in her presentation.
The sentencing judge explained that he had given weight to the consideration that Ms Ruru was regarded by Forensic Mental Health Service as vulnerable and at risk, particularly in custody. He noted that there was a community treatment order in place that would ensure she could receive mental health support while in the community. His Honour said that he sentenced Ms Ruru on the basis that she had a long history of mental health problems, but that her condition had not been diagnosed until 2018, the year of her offending. Since remanded in custody, it had been necessary for Ms Ruru to spend time in James Nash House to stabilise her mental health.
The sentencing judge noted that Ms Ruru had spent a significant period in custody following her arrest, and had most recently been in custody for a period of about five months prior to sentencing as a result of a bench warrant.
Ms Ruru had no prior criminal history. Since her offending the subject of these proceedings, she had several convictions without penalty for breaches of bail and some minor thefts.
The sentencing judge emphasised that Ms Ruru had the support of her parents to help her work through her mental health and drug issues in order to lead a productive life; and noted that she had already made progress in stabilising her medication.
Ms Ruru was sentenced on the basis that she had been a victim of domestic violence in the past. The sentencing judge accepted a submission that Ms Ruru’s relationship with the appellant was toxic and that she had been a victim of domestic violence at his hands. (As the appellant had not been charged with any offence in this regard, his Honour said he would ignore this submission when sentencing the appellant.) The sentencing judge also sentenced Ms Ruru on the basis of a finding that she had experienced domestic violence in her relationship with the victim.[3] However, his Honour appears to have attached limited significance to this finding:
That does not excuse your offending which was calculated, irrespective of the surrounding circumstances. It also involved a breach of trust in your relationship with the victim, whether or not that relationship was a happy one. Had you felt in immediate danger on the day of the offending you could have called 000 at any time when you had access to the victim’s spare phone.
[3] While his Honour appears to have made this finding on the erroneous basis that it was sufficient that he could not exclude this possibility (as opposed to being satisfied on the balance of probabilities that it occurred), there is no challenge to this finding and so I proceed on that basis.
The sentencing judge accepted that Ms Ruru was deeply remorseful for her conduct, and that the time she had spent in prison had been very hard on her. His Honour also accepted that if her mental health was properly managed, and she was able to abstain from illicit drugs, then her risk of reoffending was low, particularly with the support of her parents.
The appellant’s personal circumstances
The appellant was 33 years of age at the date of sentencing. He identifies as an Afghan Aboriginal man, with his father being from Afghanistan and his mother being of indigenous heritage. He was born in Adelaide and had five siblings, one of whom passed away some years ago. His parents separated when he was a baby. He lived with his father between the ages of six and 10 years.
The appellant completed year 11 at high school and obtained a Certificate III qualification in construction, carpentry and horticulture.
The appellant was diagnosed with anxiety and depression when he was 16 years of age, but the sentencing judge considered that there was no evidence that the appellant was suffering from any mental illness or psychological issue at the time of the offending.
The appellant had commenced using drugs when he was 14 years of age, beginning with cannabis and then moving to methylamphetamine. The Court was told that he had stopped taking methylamphetamine in the middle of 2020.
The sentencing judge observed that while the appellant did not have a strong relationship with his father, he was fortunate to have the strong support of his mother. She attended each day of his trial, and informed the Court that she was committed to his rehabilitation.
While acknowledging that his relationship with Ms Ruru was dysfunctional, and had been affected by their drug abuse, the appellant denied ever having been violent towards Ms Ruru. His antecedent report disclosed numerous breaches of intervention orders relating to contact with Ms Ruru.
In the period leading up to sentencing, the appellant was having contact with his daughter by Ms Ruru once a week, facilitated by Ms Ruru’s parents. He had commenced a new relationship with a partner who had three children from a previous relationship.
The appellant’s counsel submitted that since 2018 the appellant had turned the corner and his rehabilitation was well underway. He had engaged with a service called Aboriginal Community Connect, and the Drug and Alcohol Services Council of South Australia. He had an indigenous mentor at Job Prospects who had helped him find full-time employment in April 2021. This was the first time he had ever held full-time employment. A reference from his employer spoke well of his attitude and commitment to his work. His employer indicated that he was prepared to offer the appellant employment on his release if he were sentenced to an immediate custodial term.
Against this, the sentencing judge noted that while on home detention bail for these offences, the appellant had breached his bail by cutting off his ankle bracelet. His Honour also noted that a pre-sentence report and home detention inquiry report had included both positive and negative considerations. In particular, they revealed that, while on bail, the appellant had tested positive for drugs (cannabis and methylamphetamine) 11 times since October 2017, including as recently as May 2021. Although there had not been any further tests since May 2021, the appellant’s case manager said that there did not appear to be any current signs of drug use. The reports also suggested that the appellant was showing a more sustained effort to change, relative to an assessment in 2019 (which suggested that the appellant had not shown any commitment to change, and that his prospects for rehabilitation at that time appeared poor).
The appellant has a history of offending, although no prior convictions for offences of violence. As the sentencing judge summarised, prior to the present offences, the appellant had been convicted of two offences of dishonesty and a breach of bond. He had also been convicted of at least three counts of breaching an intervention order and two breaches of bail. In July 2019, the appellant was convicted of two counts of driving under suspension, theft, six counts of failing to comply with a bail agreement, possessing a prohibited weapon and possessing ammunition without a licence. These offences had been committed prior to the present offending. The appellant received a suspended sentence.
In August 2019, the appellant was again convicted of theft and failing to comply with a bail agreement, and received a further suspended sentence. Between then and September 2020, the appellant was convicted of a further eight counts of breaching his bail. Since the present offending, the appellant had been convicted of driving with methylamphetamine in his blood and had breached a bond. He had a bond estreated in November 2019 and a sentence of 21 days imprisonment was reduced to zero days. He served a sentence of two months and 24 days imprisonment from late September 2020.
The sentencing judge explained that he had detailed the appellant’s antecedents at length because they were of obvious relevance to his prospects of rehabilitation, and in particular the weight that could be placed on his recent efforts at rehabilitation. Noting the significance of methylamphetamine to the appellant’s offending, and the difficulty in ending a longstanding addiction, the judge concluded that “the information from the last several months is encouraging but given your overall history at this point, I regard your prospects of reoffending as moderate to high.”
The sentencing judge observed that despite warnings when previously sentenced, the appellant had a record of persistent offending and of an inability to comply with his obligations to the court. Viewed chronologically, his offending appeared to have escalated over time, culminating in the present offending, which involved serious examples of aggravated assault causing harm and theft.
His Honour accepted that the appellant was remorseful, and that, having obtained employment, wanted to turn his life around.
The sentences imposed
The sentencing judge commenced his consideration of the sentences to be imposed upon Ms Ruru and the appellant with a reference to the parity principle:
In truth, you were both involved in the plan which led to the offending and whilst you did different things you share an equal responsibility for what occurred. Ordinarily the principle of parity in sentencing means that where people are concerned in the same crime and commit the same offences, they should receive the same sentence, all things being equal. If circumstances differ, that principle does not necessarily apply.
His Honour then explained that while the application of this principle would ordinarily have called for a more significant sentence for Ms Ruru (given her conviction of the trespass offence, as opposed to the appellant’s directed acquittal), his Honour considered that it would, in the circumstances of the present case, be “blatantly unjust” if her sentence were greater than the appellant’s by virtue of the fact that her plea of guilty had denied her the benefit of a directed acquittal:
With respect to you Ms Ruru, if I were to apply that principle, strictly you would be liable for a more significant sentence because unlike Mr Hassan, you are to be sentenced also for the offence of aggravated serious criminal trespass in a place of residence. Had you not pleaded guilty to all of the charges thereby facilitating the interests of justice, you would have had the benefit of a directed acquittal on the aggravated serious criminal trespass at trial. No application has been made for you to withdraw that plea. The directed acquittal on that count for Mr Hassan was on the basis of a point of law, not because of a lack of evidence.
As things stand I must sentence you for all three offences but I am of the view that it would be blatantly unjust if your overall sentence were to be be greater than that of Mr Hassan by virtue of the fact that your plea of guilty denied you of the benefit of the directed acquittal. I have taken that matter into account in considering the sentence I will impose on you.
The sentencing judge added that there was another matter that suggested that “parity is not strictly indicated”, namely that the appellant had a more significant criminal record. His Honour recognised that given the nature of the offending, and entitlement of people to feel safe in their own beds, the offending called for a significant degree of general deterrence. But in the case of the appellant, given his history of offending, and the fact that this was not the first time that his offending had been motivated by theft, a degree of personal deterrence was required.
In the case of Ms Ruru, the sentencing judge imposed a single sentence under s 26 of the Sentencing Act 2017 (SA). His Honour said that, but for her plea of guilty, he would have imposed a sentence of three years and six months imprisonment. However, Ms Ruru’s plea entitled her to a reduction of up to five per cent, and his Honour was satisfied it was appropriate to accord her that full reduction. That resulted in a starting point of three years, three months and 28 days. From that, his Honour subtracted 148 days on account of time spent in custody and two months on account of an earlier period in custody for the present offending, resulting in a head sentence of two years, nine months and three days. His Honour fixed a non-parole period of one year, seven months and 26 days.
The sentencing judge was not satisfied that there was good reason to suspend Ms Ruru’s sentence of imprisonment. However, his Honour ordered that it be served on home detention. His Honour was satisfied that Ms Ruru was a suitable person notwithstanding some minor offences and numerous breaches of bail since the present offending. In so concluding, his Honour had regard to Ms Ruru’s history of mental health difficulties and the improvement in that regard since an appropriate medication regime had been put in place; the support from her parents; and her assessment as a vulnerable person while in custody. In exercising his discretion in favour of home detention, his Honour explained:
I am satisfied that making an order for your sentence to be served on home detention would not be likely to affect public confidence in the administration of justice, notwithstanding the gravity of your offending, given your lack of relevant prior convictions, your age, your significant history of mental health problems and the positive response you have experienced on your current medication. Those things being understood, as I have said, I am satisfied that making a home detention would not be likely to affect public confidence in the administration of justice. I make an order that your sentence be served on home detention.
Turning to the appellant, the sentencing judge again used s 26 of the Sentencing Act to impose a single sentence. His Honour identified notional head sentences for the assault and theft offences of three years and 18 months imprisonment respectively. But his Honour then imposed an aggregate sentence for the two offences of four years, thus implicitly allowing six months concurrency in respect of the theft offence.
From this notional head sentence of four years imprisonment, his Honour subtracted 80 days on account of time spent in custody and a further two months for time spent on home detention bail. This resulted in a head sentence of three years, seven months and 11 days imprisonment. His Honour fixed a non-parole period of two years and two months.
The sentencing judge was not satisfied there was good reason to suspend the appellant’s sentence of imprisonment. His Honour also declined to order that it be served on home detention:
… Having regard to your antecedents, your past multiple breaches of bail and breaches of bond, balancing that against the efforts you have made to date towards rehabilitation, I am not satisfied that you are a suitable person for a home detention order. I am also independently satisfied that even if I had found you to be a suitable person, public confidence in the administration of justice would be affected if I were to order that your sentence be served on home detention. I decline to make a home detention order.
Manifest excess
Ground 1 involves a contention that the sentence imposed upon the appellant is manifestly excessive, having regard to both the starting point for each offence, and the non-parole period.
The principles governing the Court’s consideration of a submission of manifest excess are well-known.[4] They were summarised by the High Court in Dinsdale v The Queen[5] and Hili v The Queen.[6] They require satisfaction by the appellate court that the impugned sentence is unreasonably high, or plainly unjust, in the sense required by House v The King.[7] It is not enough that the sentence is higher than what the appellate court, or some other sentencing judge, might have imposed. The appellate court will only interfere if the sentence is outside the range of sentences that might reasonably have been imposed. Whether this is so requires consideration of the range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.[8] But ultimately there is a limit to the amount of analysis that may be brought to bear. Often the existence or otherwise of manifest excess will be a conclusion that does not admit of lengthy exposition.[9]
[4]     The following summary is taken from this Court’s decision in Ndreka v The Queen [2021] SASCA 11 at [28] (Doyle JA, Kelly P and Bleby JA agreeing).
[5]     Dinsdale v The Queen (2000) 202 CLR 321 at [6] (Gleeson CJ and Hayne J).
[6]     Hili v The Queen (2010) 242 CLR 520 at [59]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[7]     House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).
[8]     R v Morse (1979) 23 SASR 98 at 99 (King CJ, White and Mohr JJ agreeing).
[9]     Dinsdale v The Queen (2000) 202 CLR 321 at [6] (Gleeson CJ and Hayne J); Hili v The Queen (2010) 242 CLR 520 at [59]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
While the sentencing judge ultimately imposed a single sentence of four years imprisonment for the assault and theft offences, his notional starting point for the assault offence was three years imprisonment.
The maximum penalty for aggravated assault causing harm involving the use of, or a threat to use, an offensive weapon, contrary to s 20(4) of the CLCA, is five years imprisonment. The appellant emphasises that the starting point adopted by the sentencing judge was three-fifths of the maximum penalty. However, given the seriousness of the offending and the personal circumstances of the appellant, I do not think this is indicative of manifest excess.
The sentencing judge correctly described the appellant’s conduct as a serious example of the aggravated assault offence. The offending was aggravated by reason both that it was committed in company and that it involved the use of weapons. However, in addition to, or by way of elaboration upon, these features of aggravation it is important to bear in mind the context and surrounding circumstances of the assault. It was pre-meditated, indeed carefully planned. It occurred in the middle of the night, while the victim was in his own home, and lying in his own bed. The appellant and the three other men with him were wearing dark clothes and masks, and at least three of them were carrying bats or sticks. The attack was sudden and without any warning, and in circumstances where the victim was defenceless and vulnerable. To state the obvious, it would have been a terrifying experience for the victim.

In considering this context I have been mindful of the principle in R v De Simoni,[10] and hence the impermissibility of punishing the appellant for any offence of which he was not convicted, including most obviously the charge of aggravated serious criminal trespass of which the appellant was acquitted. Whilst I have some reservations about the soundness of the trial judge’s reason for directing an acquittal, I accept that the R v De Simoni principle applied in the present case to prevent the sentencing judge punishing the appellant for the criminality inherent in the charge of trespass of which he was acquitted. However, the operation of that principle did not require that the sentencing judge ignore the context and surrounding circumstances in which the offending occurred. To the contrary, they remained relevant considerations,[11] and in a case such as the present, significant considerations.
[10] R v De Simoni (1981) 147 CLR 383 at 389 (Gibbs CJ, Mason and Murphy JJ agreeing), at 395-396 (Wilson J).
[11] R v Austin (1985) 121 LSJS 181 at 183 (King CJ, Zelling and Bollen JJ agreeing); R v Newman (1997) 1 VR 146 at 150-151 (Winneke P, Hayne JA and Crockett AJA agreeing); Director of Public Prosecutions v England [1999] 2 VR 258 at [17]-[18] (Brooking JA, Batt and Chernov JJA agreeing); R v Birnie (2002) 5 VR 426 at [15] (Ormiston JA, Charles JA and O’Bryan AJA agreeing); R v Tranter (No 2) (2014) 119 SASR 480 at [27]-[62] (Kourakis CJ, Peek and Stanley JJ).
In some cases there may be a degree of difficulty, and perhaps artificiality, in determining where the circumstances of the offending end, or must otherwise be ignored, on the basis that to take them into account would be to punish the offender for an offence of which he or she has not been convicted.[12] In the present case, the R v De Simoni principle operated to prevent the appellant being punished for unlawfully entering the victim’s home knowing that (or being reckless as to whether) the victim was at home. But it did not require that the sentencing judge ignore that the assault took place in the context and circumstances I have described.
[12] See, for example, the discussion in broadly similar circumstances in R v Stratton (2008) 20 VR 539 at [35]-[40] (Ashley JA), [83]-[88] (Neave JA), [121]-[125] (Lasry AJA).
In addition to these matters, it was also relevant to have regard to the appellant’s role in the assault that occurred. In this respect it is relevant that while Ms Ruru appears to have instigated the plan to engage in the joint enterprise that ensued, the appellant was also party to the conversations in which it was planned. Further, the appellant then joined with three other men in physically carrying out the assault that occurred.
It is true that, when initially describing the circumstances of the offending, the sentencing judge seemed to rest on a finding that at least three of the four men were armed, and that at least two of the four men struck the victim with their weapons. Taken literally, the judge stopped short of a finding that the appellant was armed or inflicted any blows. But two points must be made in response to this. First, the judge did, when imposing sentence upon the appellant, say that “[y]ou were armed, heavily disguised and in company with three other persons when you entered the victim’s room and assaulted him.” It would seem, therefore, that the judge did find that the appellant was armed. Secondly, and more fundamentally, the appellant’s role was so closely connected to the physical violence that was inflicted that I do not think it materially affected his culpability whether or not he personally inflicted one or more of the blows struck.
Next, it was also relevant to consider the extent of the harm suffered by the victim. The victim suffered a laceration to his lower right leg which bled profusely and required stitches, as well as a swollen right calf, a cut lip and bruising. Although the injuries were neither long-lasting nor particularly serious, it is to be remembered that the applicable offence (and maximum penalty) was assault causing ‘harm’ rather than ‘serious harm’ and, as the sentencing judge observed, it was “only a matter of good fortune that [the victim] was not more seriously injured.”
In contending that the sentence for the assault was too high, the appellant relied upon the reference in Giordimania v The Queen[13] to a sentence with a starting point of 12 months for an aggravated assault in broadly similar circumstances as “comfortably within the appropriate range.” In addition to the usual caveat that every case is different, it is relevant to note that the observation made in that case was in the context of a submission that the overall head sentence of five years and eight months imprisonment (after reductions for pleas of guilty) for the criminal enterprise was too high. In addressing the component of 12 months imprisonment that was referable to the aggravated assault (which had to be separated out because of the different percentage reduction available for the plea of guilty), the focus was very much upon the extent to which that offence added to the overall criminality inherent in the other crimes for which the appellant was to be sentenced.[14]
[13] Giordimania v The Queen [2020] SASCFC 28 at [59] (Doyle J, Nicholson and Hughes JJ agreeing).
[14] Giordimania v The Queen [2020] SASCFC 28 at [39], [41] (Doyle J, Nicholson and Hughes JJ agreeing).
In all the circumstances, including the appellant’s history of other offending (albeit not violent offending), I am satisfied that three years imprisonment was an appropriate starting point for the appellant’s assault offence.
Turning to the appellant’s theft offence, the maximum penalty was 10 years imprisonment. However, as the appellant pointed out, this maximum covers a wide range of offending and so it was entirely to be expected that the sentence in the present case would be towards the low end of the permissible range. Indeed, the appellant submitted that because the property taken was of limited value (being $900 in cash, two mobile phones and a bumbag of unknown value) a starting point of 18 months was too high. The appellant submitted that, considered alone, the theft might have been treated as a summary offence (with the value of the property stolen not exceeding $2,500) and dealt with the Magistrates Court, with an expectation of a penalty significantly less than 18 months. Against this, the respondent contended that by reason of the theft having been committed with the use of weapons, it was an offence of violence,[15] and hence a minor indictable offence.
[15] For the purposes of s 5 of the Criminal Procedure Act 1921 (SA).
It is to be accepted that the value of the property stolen was modest, and that this is a relevant consideration. However, the relevant considerations also included the context in which this theft occurred (namely, from the victim’s own house and as an incident of a planned assault, committed in company with others in the middle of the night, and motivated at least in part by an intention to commit the theft).
In taking this context into account it was necessary for the sentencing judge to be careful to avoid double punishment for that context given that the appellant was also being sentenced for the assault; but it is apparent from the implicit allowance of six months concurrency that his Honour was alive to this consideration.
In summary, having regard to the context and circumstances of the relevant offending, and the appellant’s personal circumstances (particularly his antecedents), I am satisfied that the starting points for each offence, and the aggregate head sentence of four years imprisonment for both offences, were appropriate.
To the extent that the appellant separately challenges the non-parole period, that challenge has not been made out.
The non-parole period (two years and two months) fixed by the sentencing judge was approximately 60 per cent of the head sentence after reduction for time served in custody and on home detention (three years, seven months and 11 days). Even allowing for the fact that this was a non-parole period fixed after making a reduction for time served,[16] I do not think the non-parole period is excessive. Having regard to the appellant’s poor history of offending and non-compliance with court orders, and difficulties with substance abuse, the sentencing judge was entitled to be cautious about his prospects of rehabilitation. Indeed, the judge found that the appellant had a moderate to high risk of reoffending.
[16] This approach of reducing the sentence for time served prior to fixing a non-parole period has been deprecated in recent decisions of this Court, including R v Tsonis (2018) 131 SASR 416 at [71] (Lovell, Doyle and Hinton JJ) and R v Ribbon [2022] SASCA 15 at [27], [34], [40] (Livesey P, Doyle and David JJA). However, given that it does not necessarily result in error, and was not directly challenged in the present appeal, it is not a matter warranting further consideration in the present case.
The appellant’s complaint of manifest excess must be rejected.
The parity principle
At a general level, the parity principle is simple and easily understood. It is a principle that is reflected in s 10(1)(b) of the Sentencing Act, and that seeks to ensure that offenders who are party to the same offences, all other things being equal, receive the same penalty. As Gibbs CJ said in Lowe v The Queen:[17]
The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.
[17] Lowe v The Queen (1984) 154 CLR 606 at 609 (Gibbs CJ, Wilson J agreeing), at 611-614 (Mason J), at 623 (Dawson J, Wilson J agreeing).
Further, as Dawson and Gaudron JJ emphasised in Postiglione v The Queen,[18] the principle requires not only that like cases be treated alike, but also that due allowance be made for differences. Describing it as a question of “due proportion”, their Honours said:[19]
Discrepancy or disparity is not simply a question of different sentences for the same offences. Rather, it 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.
[18] Postiglione v The Queen (1997) 189 CLR 295.
[19] Postiglione v The Queen (1997) 189 CLR 295 at 301-303 (Dawson and Gaudron JJ).
However, as a close analysis of the High Court’s reasons in Green v The Queen[20] reveals, there are some subtleties in the principle’s operation in cases, such as the present, where the relevant offenders have been convicted of different offences.
[20] Green v The Queen (2011) 244 CLR 462.
In Green v The Queen, Mr Green and Mr Quinn pleaded guilty to the offence of cultivating, or knowingly taking part in the cultivation of, a number of prohibited plants (cannabis) not less than the commercial quantity applicable to those plants, contrary to s 23(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the Drug Act). As the offending involved not less than a “large commercial quantity” of cannabis, the maximum penalty for the offence was 20 years imprisonment, with a standard non-parole period of 10 years. The sentencing judge determined sentences for Mr Green and Mr Quinn having regard to the sentence he had imposed upon another offender, Mr Taylor, who had pleaded guilty to one count of knowingly taking part in the supply of a commercial quantity of a prohibited drug (cannabis) (contrary to s 25(2) of the Drug Act) arising out of the same cultivation. While Mr Taylor had initially been charged with the supply of a large commercial quantity (which carried a maximum of 20 years imprisonment), the prosecution ultimately chose to proceed against him only on the basis of the lesser offence of commercial supply under s 25(2). The maximum penalty for this offence was 15 years imprisonment, and there was no standard non-parole period. Mr Quinn and Mr Green were respectively the principal and a senior figure in the cultivation of the cannabis plants. Mr Taylor also had a senior role, with a financial interest similar to that of Mr Green.
Having sentenced Mr Taylor to three years imprisonment[21] with a non-parole period of 18 months, the judge sentenced Mr Quinn to six years imprisonment[22] with a non-parole period of three years, and Mr Green to four years imprisonment[23] with a non-parole period of two years.
[21] Discounted by 25 per cent from four years imprisonment for his plea of guilty.
[22] Discounted by 20 per cent from seven years and six months imprisonment for his plea of guilty.
[23] Discounted by 20 per cent from five years imprisonment for his plea of guilty.
The Crown appealed the sentences imposed upon Mr Quinn and Mr Green to the Court of Criminal Appeal, but did not appeal the sentence imposed upon Mr Taylor. By a majority (McClellan CJ at CL, R S Hulme and Latham JJ, Allsop P and McCallum J dissenting) the Court allowed the appeals and re‑sentenced Mr Quinn to eight years and Mr Green to five years imprisonment.
The High Court, by a majority (French CJ, Crennan and Kiefel JJ, Heydon and Bell JJ dissenting), allowed the appeal. The majority held that the Court of Criminal Appeal erred in failing to give adequate weight to the purpose of Crown appeals and to the importance of the parity principle in sentencing; its judgment had disturbed the relativity between the sentences of the co-offenders and created an unjustified disparity between the punishments imposed on them.[24] The majority also held that the Court of Criminal Appeal erred in predicating its interference upon the basis that the sentence imposed upon Mr Taylor was manifestly inadequate when that was not a matter raised in argument on the appeal.[25]
[24] Green v The Queen (2011) 244 CLR 462 at [71] (French CJ, Crennan and Kiefel JJ).
[25] Green v The Queen (2011) 244 CLR 462 at [76] (French CJ, Crennan and Kiefel JJ).
In considering the operation of the parity principle, the majority, in a joint judgment, explained that while notions of equality and consistency lay behind the parity principle, this encompassed both requiring like outcomes in cases that are relevantly similar, and different outcomes in cases that are relevantly different:[26]
"Equal justice" embodies the norm expressed in the term "equality before the law". It is an aspect of the rule of law. It was characterised by Kelsen as "the principle of legality, of lawfulness, which is immanent in every legal order." It has been called "the starting point of all other liberties." It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:
"Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect." (emphasis in original)
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 offenders 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 offenders to reflect different degrees of culpability and/or different circumstances.
General concepts of "systematic fairness" and "reasonable consistency" in sentencing, as an aspect of the administration of federal criminal justice, were discussed in Hili v The Queen. They apply to persons charged with similar offences arising out of unrelated events. The consistency they require is "consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence." That kind of general consistency is maintained by the decisions of intermediate courts of appeal. The consistency required by the parity principle is focussed on the particular case. It applies to the punishment of "co-offenders", albeit the limits of that term have not been defined with precision.
[26] Green v The Queen (2011) 244 CLR 462 at [28]-[29] (French CJ, Crennan and Kiefel JJ) (omitting citations).
Importantly, the majority held that the parity principle not only focuses upon substance over form, but also extends to offenders involved in the same criminal enterprise but charged with different offences:[27]
In Lowe v The Queen[28] and in Postiglione v the Queen[29], this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen[30], there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co‑offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged.
[27] Green v The Queen (2011) 244 CLR 462 at [30] (French CJ, Crennan and Kiefel JJ).
[28] (1984) 154 CLR 606.
[29] (1997) 189 CLR 295.
[30] (2010) 77 NSWLR 540 at 588-589 [201]-[203]. See also Farrugia v The Queen [2011] VSCA 24 at [8]-[19].
The majority explained that the Court will intervene when the disparity between sentences is such as to give rise to a justifiable sense of grievance, as opposed to the disparity being 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:[31]
Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may "reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender." The exercise of the statutory discretion is informed by the common law norm.Gibbs CJ said in Lowe v The Queen:
"the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done."
The sense of grievance necessary to attract appellate intervention with respect to disparate sentences 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.
[31] Green v The Queen (2011) 244 CLR 462 at [31] (French CJ, Crennan and Kiefel JJ) (omitting citations).

The majority explained that marked (unjustified) disparity is itself a ground for interfering with a sentence; it is not necessary that the sentence be otherwise excessive:[32]
A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself. Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight. In such a case, an appeal to this Court on the question whether a disparity identified in a court of criminal appeal was unjustifiable and called for intervention by that court would also involve review of a qualitative and discretionary judgment.
[32] Green v The Queen (2011) 244 CLR 462 at [32] (French CJ, Crennan and Kiefel JJ) (omitting citations).
However, in circumstances where achieving parity would result in an erroneously lenient sentence, the Court retains a discretion to either decline to intervene or to mitigate the disparity by reducing the sentence to a level which, although lower, is still within the range of appropriate sentences:[33]
There is a question whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. In Lowe that question was answered explicitly in the affirmative by Mason J and less explicitly but to like effect by Dawson J, with whom Wilson J agreed. It has also been answered in the affirmative in a number of cases in the Court of Criminal Appeal of New South Wales. On the other hand, as Simpson J correctly pointed out in R v Steele, the existence of a discretion, where unjustified disparity is shown, to reduce a co‑offender's sentence to one which is inadequate does not amount to an obligation to do so. Certainly, the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a level which would be, as Street CJ put it in R v Draper, "an affront to the proper administration of justice." Moreover, if the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on appeal to impose one. Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences.
[33] Green v The Queen (2011) 244 CLR 462 at [33] (French CJ, Crennan and Kiefel JJ) (omitting citations).
Applying the parity principle to the sentences imposed in that case, the majority considered that the relativity, or relationship, between their respective sentences imposed at first instance was appropriate, and that the majority of the Court of Criminal Appeal had erred in interfering in a manner that inappropriately disturbed that relativity or relationship:[34]
Whatever might be said of the inadequacies of the sentences imposed upon Quinn, Green and Taylor by the primary judge, the submissions made on behalf of Quinn and Green that his Honour applied the parity principle appropriately should be accepted. The relationship between their respective sentences at first instance was appropriate and reflected, inter alia:
1.    Their ascending levels of participation in the criminal enterprise.
2.    The different maximum penalties applicable to Quinn and Green on the one hand and Taylor on the other.
3.    Matters personal to each of them.
The basis of relativities between the sentences was not attacked in the Court of Criminal Appeal, nor on the appeal to this Court. Quinn's sentence was twice that imposed on Taylor. Green's was one third greater than Taylor's sentence. As a result of the increase in the sentences imposed upon Quinn and Green, the relationship between their punishments and that imposed on Taylor was significantly affected.
[34] Green v The Queen (2011) 244 CLR 462 at [71] (French CJ, Crennan and Kiefel JJ).
The majority concluded by also reasoning that the majority of the Court of Criminal Appeal had, in circumstances where no submission had been put to the effect that the sentence imposed upon Mr Taylor was manifestly inadequate, erred in proceeding on that basis, and hence in inappropriately diminishing its significance as a comparator.[35]
[35] Green v The Queen (2011) 244 CLR 462 at [73]-[76], [80] (French CJ, Crennan and Kiefel JJ).
Heydon J dissented on grounds that included a view that “a key reason why the sentences on the appellants were too light was because the relativities between their sentences and Taylor’s were not correct”; that the sentencing judge had overlooked that Mr Taylor was being sentenced for supplying a commercial quantity, not a large commercial quantity; and that the majority in the Court of Criminal Appeal had afforded appropriate weight to considerations of “relative parity”.[36]
[36] Green v The Queen (2011) 244 CLR 462 at [90] (Heydon J).
Bell J, on the other hand, dissented on grounds that included a view that the operation of the parity principle was confined to co-offenders convicted of the same offences, and needed to be distinguished from broader considerations of proportion or relativity between sentences imposed on persons convicted of different offences arising out of the same criminal enterprise.[37] As her Honour explained:[38]
It is important to distinguish the principle of parity stated in Lowe from recognition that a sentencing judge may take into account consideration of the proportion or relativity between the sentences imposed on persons convicted of different offences arising out of the same criminal enterprise. One does not start in the latter case from a position of equality subject to the making of any adjustment to reflect relevant differences in the offenders' culpability and antecedents. The starting point is the different offences for which the offenders are being sentenced. Conflating the principle of parity with ideas of proportion in the sentencing of offenders for different offences arising out of the same criminal enterprise is very likely to obscure the proper consideration of the appropriate sentence for each offender. The point may be illustrated by these appeals.
[37] Green v The Queen (2011) 244 CLR 462 at [117]-[125] (Bell J).
[38] Green v The Queen (2011) 244 CLR 462 at [125] (Bell J).
In upholding the decision of the majority in the Court of Criminal Appeal, Bell J concluded that there was no unfairness or want of justice or equality in sentencing Mr Taylor for the offence to which he pleaded guilty and in sentencing the appellants Mr Quinn and Mr Green differently for the offences to which they pleaded guilty. The significant difference in the statutory maximum penalties for the offences required such a result.[39]
[39] Green v The Queen (2011) 244 CLR 462 at [126] (Bell J).
Ground 2: application of the parity principle
In sentencing the appellant for the assault and theft offences, the sentencing judge adopted a notional starting point of four years imprisonment. In sentencing Ms Ruru for the assault and theft offences, together with the trespass offence, his Honour adopted a notional starting point of three years and six months. That said, because the sentencing judge made it plain that he did not impose any significant additional penalty for the trespass offence, it is appropriate to approach this notional starting point on the basis that it essentially reflected the sentence imposed upon Ms Ruru for the assault and theft offences.
The appellant contends that there was a disparity, or disproportion, between these two sentences; that even allowing for Ms Ruru’s more favourable personal circumstances and lesser role in the offending, her conviction for the additional trespass offence meant that parity, or due proportion, between their sentences required that the appellant receive a lesser sentence than the one he received.
Starting with a comparison of the sentences imposed upon the two offenders for the two offences of which the appellant was convicted, there is no marked disparity or disproportion. As the appellant accepts, the differences between their personal circumstances meant that it was appropriate for the sentencing judge to afford Ms Ruru a degree of leniency that was not available to the appellant. In my view, their differing roles were also relevant. The fact that Ms Ruru was party to a joint enterprise to commit the assault and theft meant that she bore equal legal responsibility for those offences. But in determining the sentence to be imposed for those offences, the judge was entitled to take into account their differing roles in the commission of those offences. While Ms Ruru agreed to commit the assault and theft, it was not suggested that she physically participated in the commission of those offences (as opposed to assisting in creating the opportunity for them to have occurred). As explained earlier, while the precise role played by the appellant in the assault and theft was not known, there was no doubt that he was closely connected with the physical steps taken in the commission of those offences in a sense that Ms Ruru was not.
These differences justified the judge exercising his sentencing discretion in a manner that resulted in a greater sentence for the appellant than Ms Ruru in respect of the assault and theft offences, and indeed, justified the six months difference between the notional starting points adopted by the judge for the two offenders.
On one view of the matter, that is the end of it. There is no demonstrated disparity between the sentences imposed upon the two offenders for the assault and theft offences. And it is beside the point that Ms Ruru was convicted of a further offence.
However, I accept the appellant’s submission that the matter is not quite that straightforward. As the reasons of the majority in Green v The Queen[40] demonstrate, consideration of the principle of parity requires an approach that favours substance over form, and calls for a focus upon the outcomes of the sentencing process for the two offenders having regard to their overall involvement in the relevant criminal enterprise.
[40] Green v The Queen (2011) 244 CLR 462.
Applying that approach to the present case, the appellant contends that the principle of parity, or the requirement of due proportion between sentences imposed for two offenders’ involvement in the same criminal enterprise, required that he receive a lesser sentence than Ms Ruru given her conviction for the trespass offence of which he was acquitted.
Considered in the abstract, this argument has some attraction. Even allowing for differences in the offenders’ personal circumstances and roles, one would ordinarily expect an offender convicted of only the assault and theft offences to receive a lesser sentence than another offender convicted of not only those two offences but also the trespass offence. In the context of the present case, in the absence of any breakdown of the sentence imposed upon Ms Ruru, or any other explanation for the relationship between the two offenders’ sentences, there may not have been any basis to avoid a conclusion of disparity based upon a comparison of the sentencing outcomes for the appellant and Ms Ruru, given Ms Ruru’s conviction for the additional trespass offence.
However, as I say, this would be to consider the issue in the abstract. In my view, the parity principle must be considered in light of any explanation or justification for the relationship between the respective sentences that emerges from a consideration of the judge’s sentencing remarks. While the focus of the parity comparison is on the outcome of the sentencing process, this does not require that the Court ignore the sentencing judge’s explanations of fact or principle said to justify the relationship between the sentences imposed.
As Campbell JA (Howie and Rothman JJ agreeing) pointed out in Jimmy v The Queen,[41] the “justifiable sense of grievance” that warrants an appellate court’s interference assumes a disparity that is not explicable either by differences between the offenders’ role and personal circumstances, or by reference to the application of some legal principle (or statutory provision) governing the sentencing process.
[41] Jimmy v The Queen (2010) 77 NSWLR 540.
In addressing a contended disparity with a lower sentence that was the product of a Crown appeal, Campbell JA said:[42]
Just as it is possible, in deciding whether there is a disparity between the sentence of an applicant and a co-offender, to take into account that the co-offender has received a lesser sentence than he or she otherwise might have received because of a subjective factor like age or ill health, so it is possible to take into account that the co-offender has received a lesser sentence than he or she might otherwise have received because that sentence was imposed on a Crown appeal.
[42] Jimmy v The Queen (2010) 77 NSWLR 540 at [216] (Campbell JA, Howie and Rothman JJ agreeing).
His Honour later added:[43]
What Dawson and Gaudron JJ in Postiglione required, before an appellate court intervenes, is “a marked disparity which gives rise to a justifiable sense of grievance”. There is a sense in which every difference between sentences, even for the same crime, is a disparity, because equal treatment has not been meted out. What the composite phrase conveys is that what matters is not only the fact of difference but also its extent and whether the difference can be explained by reference to the principles on which the criminal trial process including criminal sentencing operates. The elements of the composite phrase are coloured by each other, and if the elements are considered separately there is a risk that some of that colour will be lost.
[43] Jimmy v The Queen (2010) 77 NSWLR 540 at [222] (Campbell JA, Howie and Rothman JJ agreeing).
To take a stark example to illustrate the point, assume that two offenders, with relevantly similar personal circumstances, are sentenced for the same offences, but that the first offender receives a sentence that is 25 per cent less than the second offender. If there is no explanation in the sentencing remarks for that difference, then there would be a marked disparity from the second offender’s perspective that might justify the appellate court’s intervention, even if it took the view that the first offender’s sentence was somewhat lenient.
However, assume further that a consideration of the judge’s sentencing remarks reveals that the explanation for the 25 per cent difference in the sentencing outcomes lies in the sentencing judge’s application of the legislative provisions permitting a reduction for an early plea of guilty. Despite the disparity in sentencing outcomes when considered in the abstract, the second offender would not have any justifiable sense of grievance because the explanation for the difference in the sentences is plain on the face of the sentencing remarks.
Further, even if it were to be assumed that the sentencing judge was mistaken in his application of the relevant legislative provisions, and that properly understood the first offender was not entitled to any reduction in his sentence, I do not think the outcome would be any different. Even though the explanation for the difference would, in that scenario, be infected by error, I do not think it alters the analysis. There remains no relevant disparity between the sentences. Put another way, I do not think that the second offender would be entitled in that scenario to ignore the sentencing judge’s explanation for the reduction in the first offender’s sentence (whether on the basis that it was erroneous or otherwise), and then use that reduced sentence as a comparator for an argument of disparity warranting a reduction of the sentence for the second offender. To do so would be to enable the second offender to benefit inappropriately from the undue leniency extended to the first offender.
Returning to the present case, a consideration of the sentencing judge’s remarks reveals that his Honour did not impose any significant additional penalty upon Ms Ruru for the trespass offence. As set out earlier in these reasons, in explaining why he took this approach, the sentencing judge expressly acknowledged that the parity principle might ordinarily have resulted in a higher sentence for Ms Ruru than the appellant, given that Ms Ruru was also convicted of the trespass offence. However, his Honour went on to express the view that the incongruity arising out of the appellant’s directed acquittal for the trespass meant that the parity principle did not apply (was “not strictly indicated”), or at least permitted him to impose a sentence that would avoid the “blatantly unjust” outcome of a higher sentence for Ms Ruru by virtue of her plea of guilty having denied her the benefit of a directed acquittal.
In my view, this reasoning involved a misapplication of the parity principle vis-à-vis Ms Ruru, in a manner favourable to her. It did not provide a proper basis for extending leniency to Ms Ruru in respect of the trespass offence. In the absence of an application to withdraw her plea of guilty for that offence, I do not think the sentencing judge was entitled to essentially ignore Ms Ruru’s conviction for that offence by imposing no significant additional penalty.
But regardless of whether or not there was a proper basis for the judge to proceed in this way, I do not think this explanation for the relationship between the sentences imposed upon Ms Ruru and the appellant can be ignored by this Court when considering the issue of parity. To the contrary, this feature of the sentence imposed upon Ms Ruru explains the relationship between the two sentences in a manner that, in my view, removes any basis for contending that there is a marked disparity that gives rise to a justifiable sense of grievance on the part of the appellant.
In other words, in circumstances where it is apparent from the sentencing remarks that the judge did not impose any significant additional penalty on account of Ms Ruru’s trespass offence, there is, from the appellant’s perspective, an appropriate relationship between the sentence imposed upon the appellant and the sentence imposed upon Ms Ruru. As explained earlier, the appellant’s sentence for the assault and theft offences bore an appropriate relationship with Ms Ruru’s sentence for those offences. And the fact that Ms Ruru’s sentence also reflected a conviction for the additional trespass offence is of no significance to the parity comparison in circumstances where it is apparent from the sentencing remarks that this offence did not contribute significantly to Ms Ruru’s sentence.
Since preparing these reasons, I have had the opportunity to read a draft of the Chief Justice’s reasons. While I agree with his Honour’s concerns about the sentencing judge’s approach, I do not agree that to approach the issue of parity in the manner I have suggested would be to compound the sentencing judge’s error in largely ignoring Ms Ruru’s conviction for trespass when determining her sentence, or indeed to compound the appellant’s sense of grievance. To the contrary, I consider that my approach merely acknowledges, and takes account of, the reality of the judge’s approach to Ms Ruru’s sentence, and, in particular, the role that his (erroneous) extension of leniency in respect of the trespass offence played in determining the sentence he imposed upon Ms Ruru, and hence in explaining the relationship between the sentences for both offenders. To do otherwise would be to permit the appellant to benefit from a false comparison between their sentences. The comparison would be false because it would ignore the sentencing judge’s explanation for the sentence he imposed, and in particular his (erroneous) extension of leniency to Ms Ruru in respect of the trespass offence.

Put differently, where a suggested disparity or disproportion between two sentences for offenders involved in the same criminal enterprise stems from the sentencing judge’s misapplication of some legal principle (here, ironically, the parity principle) vis-à-vis one of those offenders, I do not consider that that offender’s (erroneously low) sentence can then serve as the foundation for a “justifiable sense of grievance” in an appeal brought by the other offender. At the very least, that must be so in circumstances where (unlike in Green v The Queen) the respondent has pointed to this difficulty with the other offender’s sentence in meeting the argument of disparity advanced on appeal, and indeed where the erroneous leniency extended to Ms Ruru was in respect of an offence of which the appellant was not convicted.
To ignore the sentencing judge’s approach to the trespass offence, and to apply the principle of parity on the basis that the judge ought to have imposed a sentence upon Ms Ruru that included a significant component for the trespass offence, would, in my view, be to apply the principle of parity on a basis that does not reflect the reality of what the judge did. While accepting that the principle of parity requires an approach that focuses upon the substance of the offenders’ involvement in the relevant criminal enterprise, and the outcome of the sentencing process, I do not think that this requires the Court to ignore either the fact that the appellant was not convicted of the trespass offence, or the fact that while Ms Ruru was convicted of that additional offence, she did not receive any significant penalty for that offence. As a matter of substance, and in the circumstances of the present case the relevant comparison was between the sentences imposed upon both offenders for the assault and theft offences, and there was no marked disparity between the sentences imposed for those offences.
I would thus reject the appellant’s second ground of appeal.
Conclusion
For the reasons given, and permission to appeal having already been granted on Ground 1.1, I would grant permission to appeal on Grounds 1.2 and 2, but dismiss the appeal.