Kuchar v The Queen - [2019] SASCFC 127

Supreme Court of South Australia
(Court of Criminal Appeal)
KUCHAR v THE QUEEN
[2019] SASCFC 127
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Auxiliary Justice David)
17 October 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence imposed in the District Court.
After being found guilty by a jury the appellant was sentenced to a term of six years imprisonment with a non-parole period of two and a half years for the offence of arson. The offending concerned the destruction by fire of an investment property owned by the appellant and his wife at Holden Hill. The offence occurred on 23 October 2011. The appellant’s wife was jointly charged with the appellant for this offending. She too was sentenced to six years imprisonment with a non-parole period of two and a half years but the sentencing judge ordered that sentence be served on home detention pursuant to s 33B of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act).
There are three grounds of appeal for which permission was granted:
1. The learned sentencing judge erred in his approach to the significance of the appellant’s mental health to general and specific deterrence, in particular, in the fixing of the head sentence, by confining his consideration to its role in the offending (ground 2);
2. The head sentence and non-parole period are manifestly excessive (ground 3); and
3. The learned sentencing judge erred in failing to have any or adequate regard to the parity principle (ground 5).
Held, per Stanley J (Kelly J and David AJ agreeing):
1. The learned sentencing judge did not err in his approach to the significance of the appellant’s mental health to general and specific deterrence in the fixing of the head sentence.
2. The head sentence and non-parole period are not manifestly excessive.
3. The learned sentencing judge did not err by failing to have regard to the parity principle.
4. Appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(l), s 10(2)(d), s 18A, s 33BB, referred to.
R v Jongewaard (2009) 266 LSJS 283, applied.
R v Kreutzer (2013) 118 SASR 211; Muldrock v The Queen (2011) 244 CLR 120; R v Tsiaras [1996] 1 VR 398; R v Verdins [2007] 16 VR 269; R v Yaldiz [1998] 2 VR 376; R v Engert (1995) 84 A Crim R 67; Veen v The Queen (No. 2) (1988) 164 CLR 465; R v Smith [1997] 44 SASR 587; R v Boyes (2004) 8 VR 230; R v Scuteri [2018] SASCFC 103; R v Lekaj (1997) 92 A Crim R 325; R v Franceschini [2015] SASCFC 116; Green v The Queen (2011) 244 CLR 462; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; R v MacGowan (1986) 42 SASR 580; R v Wolfe [2008] VSCA 284; R v Teng & Ors [2008] VSCA 148; Sinn v The Queen [2014] VSCA 149; DPP (Vic) v Holder (2014) VR 467, discussed.
House v The King (1936) 55 CLR 499; R v Wiskich (2000) 207 LSJS 431; R v Flentjar [2013] SASCFC 11; R v Hronopoulos [2017] SASCFC 143; R v Morse (1979) 23 SASR 98; R v James (1981) 27 SASR 348; R v Law [1996] 2 Qd R 63; R v Carr (2008) 101 SASR 13; R v Timmins [2015] SASCFC 153; R v MacGowan (1986) 42 SASR 580, considered.

KUCHAR v THE QUEEN
[2019] SASCFC 127
Court of Criminal Appeal: Kelly and Stanley JJ and David AJ

KELLY J: I would dismiss the appeal. I agree with the reasons of Stanley J.
STANLEY J:
Introduction
This is an appeal against sentence.
After being found guilty by a jury of the offence of arson the appellant was sentenced to a term of six years imprisonment with a non-parole period of two and a half years. The sentencing judge backdated the sentence and non-parole period to commence on 3 September 2017 to allow for time the appellant spent in custody.
The offending concerned the destruction by fire of an investment property owned by the appellant and his wife at Holden Hill. The offence occurred on 23 October 2011. The appellant’s wife was jointly charged with the appellant for this offending. She too was sentenced to six years imprisonment with a non-parole period of two and a half years but the sentencing judge ordered that sentence be served on home detention pursuant to s 33BB of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act).
Grounds of appeal
There are three grounds of appeal for which permission was granted:
1.The learned sentencing judge erred in his approach to the significance of the appellant’s mental health to general and specific deterrence, in particular, in the fixing of the head sentence, by confining his consideration to its role in the offending (ground 2);
2.The head sentence and non-parole period are manifestly excessive (ground 3); and
3.The learned sentencing judge erred in failing to have any or adequate regard to the parity principle (ground 5).
The appellant was also sentenced for two counts of possessing child pornography. The appellant pleaded guilty to these offences. The judge found there were significant mitigating factors in respect of this offending. The judge utilised s 18A of the Sentencing Act to impose a single sentence of three months imprisonment after a plea of guilty to both offences. The judge ordered that this sentence be served concurrently with the sentence of imprisonment for arson. As a result the sentence imposed for this offending did not increase the length of the head sentence or non-parole period. Accordingly it is unnecessary to address this matter further.
The factual basis of the offending
The appellant fell to be sentenced on the factual basis that he and his wife conceived and executed a plan to set fire to their investment property. The background to this offending is conflict between the appellant and former tenants which culminated in the appellant being assaulted by associates of those tenants. The sentencing judge considered that this, coupled with concerns held as to the future financial viability of the rental property, resulted in the appellant and his wife setting fire to the property.
The appellant was sentenced on the basis that he and his wife drove to the property from their farm at Stockwell in the early hours of Sunday, 23 October 2011. They had their two small children in the car with them. Mrs Kuchar waited in the car with the children a short distance from the unoccupied property while the appellant entered the property through the back door. He proceeded to pour petrol through the house, working from the front to the back door. While the appellant was in the area of the back door he set fire to the petrol. The inflammation caused an explosion due to the ignition of petrol vapours which had accumulated in the house. As a result of the explosion the appellant suffered a severe fracture of his leg. The house was completely destroyed. Surrounding properties were damaged.
Following the commission of the offence the Kuchars drove some 800 kilometres from Holden Hill to Wangaratta with their children. In Wangaratta the appellant lied about the cause of his leg injury providing a history of a motor bike accident to medical staff at the Wangaratta District Hospital.
There was an element of planning involved in the offending as is evidenced by the appellant increasing the insurance value on the house in the weeks leading up to the offence; the appellant purchasing two sets of door locks a couple of days before the offence which, on the prosecution case, was a ruse for attending at the house to change the door locks on the Sunday morning of the offending; and the appellant’s wife attending at the Holden Hill police station a few days before the offence to give an affidavit about an assault incident that had recently occurred at the subject property which included, on the prosecution case, a false statement about the assailants having uttered threats to burn down the house.
The appellant’s personal circumstances
The appellant is a 50-year-old male. He is married with three children. He has no relevant antecedents. He endured a disruptive and dysfunctional upbringing by his mother. The sentencing judge considered it was likely she suffered a serious mental illness. As a result of this upbringing the appellant’s formal education was limited. Eventually the appellant completed a secondary education and attended university where he was awarded an Honours degree in science. He also obtained a Diploma of Education. He was a member of the Army Reserve for a period of five years. He entered the teaching profession but suffered a psychiatric illness.
The appellant was diagnosed as suffering from a major depressive illness in 2003. Due to the symptoms of this illness he has been unable to work since 2005.
The Court received evidence from a consultant psychiatrist, Dr Paul Furst, who provided three reports, and a general practitioner, Dr Neroni, who provided two reports.
Dr Furst is of the opinion that the appellant suffers from a major depressive disorder and a narcissistic personality disorder. The appellant’s major depressive disorder is of a high severity. In 2015 Dr Furst considered that the appellant was one of the most severely depressed people he had encountered in the previous 10 years. Unfortunately the appellant’s major depressive disorder did not respond to pharmacological treatment. As a result in 2015 Dr Furst commenced a lengthy course of electro-shock treatment of the appellant. Dr Furst considers the narcissistic personality disorder compounds the difficulties in treating his major depressive disorder. His psychiatric illness has resulted in him being hospitalised at various times. At the time Dr Furst considered he was a real risk of suicide.
Notwithstanding this opinion, in his report dated 28 September 2015, Dr Furst considered that the appellant was fit to stand trial. While the appellant was suffering from a mental illness at the time of the offending and was likely to have been depressed, it was clear that his actions in the lead up to the offending were logical. The offending and the aftermath of the flight to Wangaratta suggested an understanding of wrongfulness, as did the deception he attempted to perpetrate at the Wangaratta Hospital in relation to the cause of his injured leg.
Dr Neroni, in a report dated 11 December 2017, set out the appellant’s personal and psychiatric history, particularly in the period since the offending. Dr Neroni said the appellant was unable to return to his pre-injury work duties due to permanent residual psychological impairment with major depression, severe anxiety and panic attacks with agoraphobia and chronic insomnia. He expressed the opinion that at the time of the offending the appellant was not his normal self and his reasoning and judgment were affected by his psychiatric condition, his drug treatment and the medication changes that occurred at the time.
Principles on appeal
The test to be applied in determining whether to interfere on appeal with a sentence is set out in R v Jongewaard[1] where Doyle CJ said:[2]
The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed, and in deciding not to suspend that sentence. This Court does not substitute its opinion as to an appropriate sentence. The Court will intervene only if error is established. As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[Citations omitted.]
[1] [2009] SASC 346, (2009) 266 LSJS 283.
[2] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288-289.
A court of appeal will not interfere with the sentence passed below merely because it has a different view from the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King[3] does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer[4] by Kourakis CJ,[5] if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
[3] (1936) 55 CLR 499.
[4] [2013] SASCFC 130, (2013) 118 SASR 211.
[5] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215.
Ground 2 – mental health
The appellant submits that by reason of his mental illness he was not a suitable medium for a sentence that reflected the need for general deterrence. He submits that the trial judge erred in fixing his head sentence to reflect this consideration. Further, the Judge erred in failing to give any weight to the fact the appellant has not been receiving treatment by way of counselling for his psychiatric illness since he has been in custody. In addition, the appellant’s psychiatric condition has been exacerbated by his not seeing his family since April 2018. It follows that the sentence of imprisonment weighs more heavily on the appellant than it would on a person in normal mental health. The sentence imposed fails to reflect this factor.
The sentencing judge addressed the issue by noting that the appellant’s personal circumstances were comprehensively detailed in a number of forensic psychiatric reports prepared by Dr Furst as well as a letter written by his general practitioner. The judge noted that the appellant’s major depressive disorder was of high severity and, because of enzyme deficiency, was resistant to pharmacological treatment. He noted that Dr Furst reported that the appellant also suffers from a narcissistic personality disorder which contributed to the difficulties in treating his severe depression. The judge said:
Your major depressive disorder has become so severe at times that you had to be hospitalised for treatment. In fact, so severe is your mental illness and its resistance to conventional pharmacological treatment that you were commenced on a lengthy course of electroshock therapy in 2015. So there is little doubt that you suffer from a serious psychiatric disorder and have done so over a great many years covering the time of your offending. Indeed, in 2015 Dr Furst reported that you were one of the most severely depressed people he had encountered in the previous 10 years.
As your counsel submitted, both sets of offences committed by you are characteristic of poor decision-making, associated with your major depressive disorder such that it is difficult to envisage it would not have had some role to play in your offending, although, in my view, not to such an extent that the sentencing consideration of general deterrence is diminished.
The judge went on to note that following the jury’s verdict the appellant had returned to prison and was struggling to cope given his complex mental health issues. In fixing the non-parole period the judge expressly made clear that he was setting a very low non-parole period that reflected the appellant’s lengthy and ongoing serious mental illness.
Section 10(1)(l) of the Sentencing Act required a sentencing court to have regard to the mental condition of an offender in determining both the head sentence and the non-parole period. This reflects the position at common law which has long recognised that the mental condition of an offender is always a relevant factor in the sentencing process. The weight to be given to the mental condition of an offender varies according to the circumstances of the offending and the nature and severity of the mental condition.[6]
[6] R v Wiskich [2000] SASC 64 at [22], (2000) 207 LSJS 431 at 438.
In Muldrock v The Queen[7] the High Court cited with approval the reasons of the Victorian Court of Appeal in R v Mooney[8] where Young CJ said:[9]
General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.
[7] [2011] HCA 39, (2011) 244 CLR 120.
[8] Unreported, Court of Criminal Appeal (Vic) 21 June 1978.
[9] Unreported, Court of Criminal Appeal (Vic) 21 June 1978 at 5.
The High Court also approved the explanation for the principle given by Lush J in Mooney where his Honour said:[10]
[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.
[Citation omitted.]
[10] [2011] HCA 39 at [53], (2011) 244 CLR 120 at 138-139.
The High Court went on to observe in Muldrock that this principle applies in sentencing offenders suffering from mental illness but that a question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence.[11]
[11] [2011] HCA 39 at [54], (2011) 244 CLR 120 at 139.
In R v Tsiaras[12] the Victorian Court of Appeal said:[13]
Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.
[12] [1996] 1 VR 398.
[13] [1996] 1 VR 398 at 400.

In R v Verdins[14] the Victorian Court of Appeal reformulated the Tsiaras principles as follows:[15]
Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
[14] [2007] VSCA 102, (2007) 16 VR 269.
[15] [2007] VSCA 102 at [32], (2007)16 VR 269 at 276.
The Court emphasised that the Tsiaras principles were enunciated by reference to serious psychiatric illness not amounting to insanity but an erroneous view developed that what was said in Tsiaras was intended to and did “cover the field” in relation to mental illness and sentencing. In R v Yaldiz[16] Batt JA said that general deterrence is not eliminated but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder.[17] Winneke ACJ said that whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused.[18]
[16] [1998] 2 VR 376.
[17] [1998] 2 VR 376 at 381.
[18] [1998] 2 VR 376 at 383.
In R v Engert[19] Gleeson CJ, with whom the other members of the New South Wales Court of Criminal Appeal agreed, said:[20]
Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application of those facts and circumstances to the principles laid down by statute or established by the common law. The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment. Those purposes were set by the High Court in Veen (No. 2) as follows:
“… protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.”
A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No. 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.
It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in light of the purposes to be served by the sentencing exercise.
[Citation omitted.]
[19] (1995) 84 A Crim R 67.
[20] (1995) 84 A Crim R 67 at 68.
In Veen v The Queen (No. 2)[21] Mason CJ, Brennan, Dawson and Toohey JJ said:[22]
[A] mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.
[21] (1988) 164 CLR 465.
[22] (1988) 164 CLR 465 at 476-477.
In R v Wiskich[23] Martin J, as he then was, with whom Prior and Williams JJ agreed, said:[24]
The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender's thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.
[23] [2000] SASC 64, (2000) 207 LSJS 431.
[24] [2000] SASC 64 at [62], (2000) 207 LSJS 431 at 457-458.
An offender’s mental condition can be relevant to sentencing in two ways. First where it may have a causal relationship to the offending. The mental state of an offender at the time of his or her offending is a relevant factor in determining sentence. The circumstances in each case will vary and the weight to be given to matters personal to the offender will depend on a number of circumstances. The severity of the offender’s condition is important, especially in considering whether the condition can be regarded as a cause of the offending. Other circumstances will also be relevant, such as the extent to which the offender has sought treatment. Because of this variation, a close analysis of the evidence must be conducted to reveal the full extent and impact of the condition.[25]
[25] R v Flentjar [2013] SASCFC 11 at [42].
In R v Hronopoulos[26] Hinton J said:[27]
[26] [2017] SASCFC 143.
[27] [2017] SASCFC 143 at [69]-[73].
The relevance of mental illness falling short of mental incompetence to the determination of sentence was dealt with comprehensively by Martin J, with whom Prior and Williams JJ agreed, in R v Wiskich.[28] As Martin J shows it is not appropriate to simply fasten on to the fact that the offender suffers a mental illness and then, without regard to the symptoms and consequences of the illness, contend that general deterrence has no part to play in the sentencing process. That at times appeared to be the applicant’s approach on the hearing of this appeal.
Martin J quoted with approval from the judgment of Gleeson CJ in R v Engert (Engert):[29]
…
The passage from the judgment of Gleeson CJ in Engert quoted by Martin J was also quoted with approval by French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ in Bugmy v The Queen[30] (Bugmy) and by French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ in Munda v Western Australia[31] (Munda). Whilst Bugmy and Munda were cases concerning the relevance to sentence of a defendant’s deprived background and not mental illness, the joint reasons suggest that the approach of the sentencing court in considering the relevance and weight to be attached to either factor is the same and is as set out by Gleeson CJ in Engert. That is unsurprising given the High Court’s emphasis particularly in Bugmy[32] and Munda[33] on the determination of an appropriate sentence as being a process resulting in an individualised outcome. Thus, within the bounds of proportionality, a sentence is to be fashioned having regard to the protection of the community and the purposes of punishment that fits the offending and the offender. Within that framework the question of how a particular mental illness influences the sentencing outcome will be a product of its symptoms and consequences for the defendant and the bearing that such symptoms and consequences have on achieving the purposes of the sentencing task. Critical to the task will be the exposure of a link grounded in the evidence before the sentencing court between the illness and any of the purposes of punishment or the mode of punishment under consideration.[34]
Many of the authorities in this area of discourse concern moderation of the weight to be attributed general deterrence in fashioning the appropriate sentence. Here I would adopt what fell from French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ in Munda where their Honours said:[35]
… the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community.
[28] (2000) 207 LSJS 431.
[29] (1995) 84 A Crim R 67 at 68.
[30] (2013) 249 CLR 571 at [45].
[31] (2013) 249 CLR 600 at [58].
[32] (2013) 249 CLR 571 at [24].
[33] (2013) 249 CLR 600 at [55].
[34] R v Verdins (2007) 16 VR 269; DPP (Vic) v O’Neill (2015) 256 A Crim R 469. Note also that the Court in O’Neill said at [71] that whilst in Verdins the Court recognised that the diagnostic label is not determinative, the principles are limited to cases in which the offender suffers from an impairment to his or her mental functioning; they do not apply to personality disorders.
[35] (2013) 249 CLR 600 at [54].
The second way in which an offender’s mental condition is relevant is where it may have the effect that any sentence of imprisonment will be more burdensome on him or her or will have an adverse effect on his or her mental health. It is a factor that weighs more heavily in fixing a non-parole period.[36]
[36] R v K [2019] SASCFC 87 at [114].
In imposing sentence the judge clearly had regard to the appellant’s mental illness. Plainly it was a factor in the judge fixing a very low non-parole period. The sentencing judge considered that it was difficult to envisage that the appellant’s mental illness would not have had some role to play in his offending but, in any event, what role it played in the offending was not such as to diminish the need for a sentence that served the purposes of general deterrence. In doing so the judge did not fall into error. Whether general deterrence should be moderated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender and the effect of the condition on the mental capacity of the offender. As Martin J in Wiskich noted if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not gravely affected. The gravity of the criminal conduct is also an important consideration.
The evidence in this case from Dr Furst is that the appellant committed the arson with knowledge and understanding of the wrongfulness of his conduct. In his report of 28 September 2015 Dr Furst said there was no evidence to suggest that at the time of the offending the appellant would have been so impaired by his depression that his thinking would have become so disordered that he would not have been able to understand the nature and quality of his actions or that he would have been wholly unable to control his behaviour. This was serious offending. It was fortunate that no one other than the appellant was injured or killed. It was the product of some planning by the appellant. Whatever role the appellant’s mental illness played in the offending the judge considered that it did not diminish the need for general deterrence. That was an approach to the exercise of the sentencing discretion open to the judge. The approach taken by the judge can be distinguished from the circumstances in R v Hallett[37] where the judge in sentencing for arson a mentally ill appellant, who had the problem solving skills of a seven year old did, so on the basis that general deterrence was an important consideration. In this case the sentencing judge did not elevate the importance of general deterrence in fixing a head sentence over other relevant considerations. Further the evidence of Dr Furst does not positively establish that the appellant’s psychiatric illness was causative of his offending. In his last report of 28 September 2015 Dr Furst said that while the appellant was likely to have been depressed at the time of the offending is clear that his actions in the lead up to the offence were logical. It is also important to recognise that while the appellant’s psychiatric condition was very serious when he first was seen by Dr Furst in March 2015, by September of that year Dr Furst considered that he was only moderately depressed. Also Dr Furst saw him for the first time some three and a half years after the offending occurred.
[37] [2012] SASCFC 143 at [57].
The further issue in relation to the appellant’s mental health is whether the judge erred in failing to consider whether by reason of the appellant’s mental illness a sentence of imprisonment would weigh more heavily on him than it would on a person with normal mental health.
In R v Smith[38] King CJ said that ill-health will be a factor tending to mitigate punishment where it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health. However he warned that the courts must be cautious as to the influence they allow this factor to have upon the sentencing process.[39] He said:[40]
… Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners.
[38] [1997] 44 SASR 587.
[39] [1997] 44 SASR 587 at [589].
[40] [1997] 44 SASR 587 at [589].
There are two limbs to the test posed by King CJ in Smith. The first limb is whether the imprisonment would be a greater burden on the offender by reason of the state of his health. The second one is whether there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health. If either limb of the test is established, that is a factor to be weighed in favour of mitigation.
In R v Boyes[41] Chernov JA, with whom Smith and Coldrey AJJA agreed, discussed the first limb of the test in Smith in the following terms:[42]
[W]hether imprisonment will be more difficult for the appellant than for an ordinary inmate is not the relevant criteria for determining if the first part of the test in Smith has operation. Without seeking to treat the above passage from the judgment of King CJ as if it were a piece of legislation, it is nevertheless clear from its terms that the first limb is concerned with whether the burden of imprisonment on the offender will be increased because of his disability. Thus, the analysis focuses on the impact that the offender’s disability has on his ability to cope with the prison system in light of his disability. Consequently, before the disability can be treated as a mitigating factor under the first limb, the offender must establish that it will result in imprisonment being a greater burden on him. Thus, the relevant question for present purposes is whether the appellant’s incomplete paraplegia will make imprisonment more burdensome for him and not whether he will find imprisonment more difficult due to his disability than an ordinary prisoner.
[41] [2004] VSCA 97, (2004) 8 VR 230.
[42] [2004] VSCA 97, (2004) 8 VR 230 at 237.
In this matter no submission was put to the sentencing judge that a sentence of imprisonment would weigh more heavily on the appellant than it would on a person with normal mental health. The psychiatric reports before the judge did not address this issue. In my view a sufficient evidentiary foundation to support the appellant’s submission is absent. There is no evidence that the burden of imprisonment would be increased because of his disability. The relevant question is whether the appellant’s mental illness would make imprisonment more burdensome for him. That question was not canvased by Dr Furst or Dr Neroni.
It is unclear why the appellant has not seen his children in the 12 months preceding the hearing of the appeal. In any event that does not establish that the appellant falls within either limb of the Smith test.
No error has been demonstrated in the approach taken by the trial judge in addressing the appellant’s mental illness.
I would dismiss ground 2.
Ground 3: Manifest excess
The appellant complains that both the head sentence and the non-parole period are manifestly excessive.
The test of whether a sentence is manifestly excessive is to be determined by reference to the maximum sentence prescribed by law for the crime; the standards of sentencing customarily observed with respect to the crime; the place which the criminal conduct occupies in the scale of seriousness of crimes of that type; and the personal circumstances of the offender.[43]
[43] R v Morse (1979) 23 SASR 98 per King CJ at 99.

The maximum sentence for the offence of arson is life imprisonment.
There is no tariff or sentencing standard for the offence of arson.[44] As this Court said in R v James:[45]
The legislature has seen fit to provide a maximum penalty of life imprisonment for arson, leaving the Court a discretion exercisable within wide limits in fixing a sentence in respect of each offender. It seems to us that ordinarily a substantial sentence of imprisonment is called for by reference to the immediate gravity of the crime and its consequences. Arson, in all its forms, is an extremely serious and dangerous crime, and the element of general deterrence must be given proper weight, in order to reflect the Court's condemnation of the crime, especially where it is committed with an appreciation of what is being done and there is a calculated act of vengeance.
[44] R v James (1981) 27 SASR 348 at 351.
[45] (1981) 27 SASR 348 at 351.
This case, of course, does not involve a calculated act of vengeance.
Section 10(2)(d) of the Sentencing Act provides that the policy of the criminal law in relation to arson is to protect the community from such offending and to exact reparation from the offender for harm done to the community to the maximum extent possible.
Apart from considerations arising from the appellant’s psychiatric illness there are two principal features to this ground of appeal. First, there was a very lengthy period of delay between the offending and sentencing. The appellant complains that the sentence failed to reflect the evidence of the appellant’s rehabilitation over that period of nearly six and a half years. Second, the sentencing judge failed to give the appellant any credit for the period of nearly 12 months spent on home detention.
I have already addressed the issue of the appellant’s psychiatric illness. I turn to the first of the features identified above.
In R v Scuteri[46] Peek J, with whom Lovell and Doyle JJ agreed, considered the factors relevant to the different ways in which a delay between offending and sentencing may affect the sentence imposed.[47] Peek J identified the following factors in assessing the relevance or otherwise of delay in a given case, including the reasons for delay: namely, whether the delay is explicable and necessary; whether it is the fault of investigating and prosecuting authorities; and whether any delay is the product of the defendant’s forensic decisions, including the decision to contest the matter and proceed to trial.
[46] [2018] SASCFC 103.
[47] [2018] SASCFC 103 at [9]-[20].
In this case there is no suggestion that the delay is inexplicable or that it has come about due to the conduct of investigating and prosecuting authorities. The delay is explicable by reason of the exploration of the issue of the appellant’s fitness to stand trial, changes in defence counsel, the prosecution’s need to obtain an expert report, and multiple trial listings which were vacated in June 2014, March 2015, May 2015 and October 2016.
In R v Lekaj[48] Matheson J, with whom Nyland J agreed, referred with approval to the following passage from the judgment of the Queensland Court of Appeal in R v Law[49] which explains the circumstances in which delay in sentencing can be taken into account:
It is difficult to see why lapse of time between commission of an offence and sentence should be a mitigating factor in sentence unless that delay has resulted in some unfairness to the offender. There are two obvious cases in which that will be so and in which, consequently, it has been said that that unfairness should mitigate the sentence which should otherwise be imposed.
The first is where there is a delay between the date of apprehension of the offender, or first indication to him by some person in authority that he is likely to be prosecuted, and the date of sentence, in consequence of which the offender may have had his liberty curtailed or his reputation called in question or, at least, left in a state of uncertainty caused by a failure to prosecute his case more quickly. Duncan is an example of that. There the offender was advised, when he was declared bankrupt in 1979, that his conduct constituted the offence for which he was eventually convicted and sentenced in 1982. So too are Crawley, Jones and Kane. The rationale for mitigation in these cases is analogous to that for which, in jurisdictions where a right to a speedy trial is constitutionally or legislatively guaranteed, proceedings may be stayed because of such delay. See for example Barker v Wing; US v Marion; Mills. See also Jago v District Court (NSW). Barham, by contrast, is an example of a case in which the offender, because initially a nolle prosequi had been entered against him, probably thought during the subsequent period of delay until his further arrest, that “he had escaped the clutches of the law” and in which in consequence, it was held that the delay should not mitigate the sentence: at 365-366. See also 356. See also Glennon.
The second is where the time between commission of the offence and sentence is sufficient to enable the court to see that the offender has become rehabilitated or that the rehabilitation process has made good progress. That factor was referred to by Street CJ in Todd in a passage cited with approval by the High Court in Mill. See also Bell; Quinlivan. Duncan is also an example of this.
[Citations omitted.]
[48] (1997) 92 A Crim R 325.
[49] [1996] 2 Qd R 63.
The appellant seeks to invoke the second of these cases.
During sentencing submissions the appellant’s counsel did not refer to the fact of the delay as a basis for mitigating the sentence the Court would otherwise impose in this matter. This is hardly surprising. There is no basis upon which the sentence could have been mitigated on account of delay. There is no evidence of rehabilitation or a diminished risk of reoffending. On the contrary the only evidence is that the appellant continues to deny his role in the offending. By itself that fact speaks against the existence of any contrition, remorse or insight on the part of the appellant which would be the necessary foundation for a submission that there is evidence of rehabilitation during the period of delay. The mere absence of evidence of further offending while not inconsistent with rehabilitation does not prove it. This is particularly so in circumstances where for part of the period of delay the appellant was either on home detention or in custody.
In relation to the issue of the time spent on home detention, while it is the case that the judge in his sentencing remarks made no reference to this period of time, during sentencing submissions the judge indicated that he was disinclined to give any credit for time spent on home detention because the restrictions inherent in home detention were not unduly onerous to the appellant. This was because his agoraphobia kept him indoors when he was not subject to home detention. During those times the appellant rarely ventured out of the house.
It is well established that there is no obligation on a sentencing judge to reduce a sentence by reason of time spent on home detention but there is a discretion conferred on a judge to do so if appropriate.[50]
[50] R v Carr [2008] SASC 125 at [35], (2008) 101 SASR 13 at 19.
In R v Franceschini[51] Nicholson J, with whom Bampton and Lovell JJ agreed, said:[52]
At common law, a sentencing judge in this State has a discretion to allow credit for time spent on home detention bail and to, in effect, fix a period by which the sentence otherwise to be ordered is to be reduced thereby. There is no obligation on a court to give any such credit. Further, where some allowance is made, it inevitably will be significantly less than the total amount of time spent on home detention bail, but there is no accepted formula. It is akin to a personal circumstance to be taken into account and the particular facts of each case will inform whether or not credit is warranted and the extent of any such credit that is warranted.
[51] [2015] SASCFC 116.
[52] [2015] SASCFC 116 at [42].
The discretionary nature of sentencing reductions for time spent on home detention considered alongside the fact that the time the appellant spent on home detention was not unduly onerous satisfies me there was no error in the approach the judge took in failing to allow any credit for time spent on home detention bail.
Objectively, arson is an extremely serious offence.[53] In this case it was sheer good fortune that no one other than the appellant was injured, or for that matter, killed. Surrounding properties were damaged. For the reasons set out above the head sentence of six years is within the range of sentence for this offending and, notwithstanding his mental health issues, for this offender. The head sentence was not manifestly excessive. Neither was the non-parole period. On the contrary it could be considered merciful. It is clear that the judge reduced the non-parole period because of the appellant’s mental health problems.
[53] R v Timmins [2015] SASCFC 153 at [26].
For these reasons I would dismiss ground 3.
Ground 5: Parity
The appellant submits that the sentencing judge erred in failing to have any regard to the parity principle in sentencing him and his co-offender, Mrs Kuchar. He contends it is often inappropriate for a person suffering from mental ill-health to receive the same sentence as another person who does not have those same issues. The appellant’s mental health problems distinguish his personal circumstances from those of his wife. The appellant submits that as a result he should have received a lower head sentence and non-parole period than those fixed for his wife. That he did not leads to the conclusion that the sentencing discretion miscarried.
The parity principle was explained in the joint reasons of French CJ, Crennan and Kiefel JJ in Green v The Queen[54] in the following terms:[55]
[54] [2011] HCA 49, (2011) 244 CLR 462.
[55] [2011] HCA 49 at [28] and [31], (2011) 244 CLR 462 at 472-473 and 474-475.
“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.
…
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.
(footnotes omitted)
In Lowe v The Queen[56] Mason J, as he then was, said:[57]
Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.
[56] (1984) 154 CLR 606.
[57] (1984) 154 CLR 606 at 610-611.
In Postiglione v The Queen[58] in their joint reasons, Dawson and Gaudron JJ explained the parity principle as follows:[59]
The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. 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.
[Citations omitted].
[58] [1997] HCA 26, (1997) 189 CLR 295.
[59] [1997] HCA 26, (1997) 189 CLR 295 at 301-302.
In R v MacGowan[60] King CJ, with whom Mohr and von Doussa JJ agreed, in applying Lowe, said:[61]
Where two or more persons are sentenced by the same judge for the same crime or crimes the sentences imposed on them should be proportionate to their respective degrees of culpability and to the various personal factors of aggravation and mitigation. Any distinctions in the sentences imposed should fairly reflect differences in the respective degrees of culpability and the circumstances of the offenders and should be explained by the sentencing judge. Unjustified disparities will be rectified by the Court of Criminal Appeal on appeal by the Attorney-General or the offender even though the sentence under review, considered apart from disparity, might be regarded as within the permissible sentencing range.
[60] (1986) 42 SASR 580.
[61] (1986) 42 SASR 580 at 582-583.
In this case, except for one matter, there is no disparity in the sentences imposed on each co-offender. The judge imposed the same head sentence and non-parole period for each of the appellant and his wife, except for the fact that Mrs Kuchar is to serve her sentence on home detention. The complaint by the appellant is not that there is marked disparity in the sentencing but rather that there is insufficient disparity in the sentencing. He contends his sentence should have been more lenient than the sentence his wife received. The sole basis for this submission is the appellant’s psychiatric illness.
In sentencing each of the appellant and his wife the sentencing judge approached the fixation of sentence on the basis that they were to be considered equally culpable in the commission of the arson. No complaint is made concerning that approach. The judge fixed a lower non-parole period than he would have otherwise imposed in respect of the appellant because of his mental health difficulties. The judge fixed a lower non-parole period than he would have otherwise imposed in respect of Mrs Kuchar because of the needs of her three children for whom she was the sole carer since the appellant’s bail was revoked upon the jury’s verdict.
The first question to be considered by the Court is whether the parity principle functions in reverse such that the Court should intervene in the sentencing of a co-offender not on the basis of some marked disparity between the sentences imposed on co-offenders but because of the lack of disparity or insufficient disparity in fixing sentences for co-offenders whose personal circumstances are said to be distinguishable. Integral to answering this question is identification of the rationale for the parity principle.
Generally, an appeal court will interfere with a sentence in accordance with the parity principle where a co-offender is left with a justifiable sense of grievance because of the marked disparity in the sentence imposed upon his or her co-offender. Whether it is justifiable depends on whether there are different degrees of culpability and/or different circumstances. It is an objective test. Where unjustified disparity occurs an appeal court will intervene to reduce the offender’s sentence even if the sentence imposed on the offender is justified on the basis of the nature of the offending and the circumstances of the offender. The offender’s sense of grievance will be justified solely by reason of the disparity even if the explanation for that disparity is that the co-offender’s sentence was lower than the permissible range for that offending and that offender.[62] Further, that offender’s sense of grievance will be justified if the disparity occurs where both sentences are within the permissible range. The basis for the court’s intervention is the affront to the notion of equal justice of co-offenders sentenced to markedly disparate sentences for the same offending without that difference being explicable by reference to their different personal circumstances or culpability. If there is the Court will intervene unless there are sound reasons not to. For example if both sentences are within a maximum authorised by law and within the range of sentences properly considered on the facts of the case the appellate court is not bound to intervene.[63] That suggests that the parity principle only operates to correct unjustified marked disparities in sentencing. However, to confine the operation of the parity principle in that way would be contrary to principle, logic and authority.
[62] Of course that would not justify an appeal court reducing the offender’s sentence to the extent of imposing a sentence outside the permissible range.
[63] R v MacGowan (1986) 42 SASR 580 at 583.

In R v Wolfe[64] Maxwell P, with whom Weinberg JA and Hargrave AJA agreed, said:[65]
[T]he question which according to the authorities must be addressed when dealing with a parity ground is whether the appellant could be said to have a “justifiable sense of grievance” about the relativity between the appellant’s sentence and the sentence of the co-offender. I do not understand the test thus formulated to require any departure from the conventional approach to appellate review of sentences. That is, the question whether the appellant’s sense of grievance is justifiable is to be determined by asking whether there were reasonable grounds for the differentiation – or lack of differentiation, as the case may be – between the appellant and the co-offender. If it was reasonably open to the sentencing judge, on the material before the Court, to differentiate – or fail to differentiate – between the co-offenders in the way he/she did, then there is no warrant for appellate intervention, and the appellant’s grievance about the sentencing relativity cannot be said to be justifiable.
[64] [2008] VSCA 284.
[65] [2008] VSCA 284 at [9].
This statement of principle was subsequently adopted by the Victorian Court of Appeal in R v Teng & Ors[66] where the Court allowed an appeal on the basis that there should have been a greater difference between the appellant’s sentence and those imposed on his co-offenders and that lack of differentiation in the respective sentences engendered a justifiable sense of grievance and an appearance of injustice.
[66] [2009] VSCA 148, (2009) 22 VR 706.
As the basis of the court’s intervention has its foundation in the concept of equal justice, principle and logic support the court’s intervention where the complaint is not of unjustifiable disparity but of unjustifiable parity. Proper concern for parity of sentencing is a fundamental requirement of the rule of law and a condition of just punishment.[67] The principle of parity requires that the sentencing relativities between co-offenders take into account the relative similarities and differences between them.[68] This is an aspect of the principle of proportionality in sentencing. The principle is supported by logic. It is difficult to justify the intervention of the court where there is unjustifiable disparity in the sentencing of co-offenders but not where there is unjustifiable parity in the sentencing of co-offenders. Principle and logic also finds support in the authorities.
[67] Lowe v The Queen (1984) 154 CLR 606 at 610-611.
[68] DPP (Vic) v Holder [2014] VSCA 61 at [28], (2014) VR 467 at 473.
In Sinn v The Queen[69] the Victorian Court of Appeal allowed an appeal on the basis that the sentence imposed on the appellant in comparison with his co-offender disclosed insufficient disparity where there were marked differences in the roles played by each co-offender who each pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence. The appellant was sentenced to imprisonment for five years with a non-parole period of three years and six months. His co-offender was sentenced to imprisonment for six years with a non-parole period of four years. The offender’s role in the commission of the offence was to perform menial tasks for little reward while his co-offender was a principal, a planner and entitled to a share of profits in a significant criminal enterprise. While there were individual differences in their personal circumstances, they did not explain the minimal differentiation in the head sentences and the non-parole periods of co-offenders with markedly different roles. The Court held the appellant had a justifiable sense of grievance. No reasonable grounds were disclosed to justify the minimal differentiation in the sentences and non-parole periods.
[69] [2014] VSCA 149.
Accordingly, the parity principle can apply where the complaint is not one of marked disparity in the sentences imposed on co-offenders but one of a lack of disparity in the sentences imposed on co-offenders. Whether an appeal court should intervene in either case depends upon whether the appellant’s sentence should be reduced to avoid a justified sense of grievance. I turn now to consider that question.
The reasoning of Kirby J, who formed part of the majority in Postiglione v The Queen[70] emphasises that the existence of some disparity in sentencing must be tolerated out of respect for the discretion of sentencing judges and a modest appreciation of the capacity of appellate courts to rectify discrepancies without causing new or different problems.[71] Some differentiation or lack of differentiation, to use the language of Maxwell P in Wolfe, must be expected. As Kirby J says in Postiglione, mere disparity is not enough.[72] What is needed to justify appellate intervention is that the differentiation or lack of differentiation engenders a justifiable sense of grievance or gives the appearance that justice has not been done.
[70] [1997] HCA 26, (1997) 189 CLR 295.
[71] [1997] HCA 26, (1997) 189 CLR 295 at 338.
[72] [1997] HCA 26, (1997) 189 CLR 295 at 338.
In my view the lack of differentiation between the appellant and his wife because of his psychiatric illness does not engender a justifiable sense of grievance or give the appearance that justice has not been done. The judge found each of the appellant and his wife were equally culpable for the arson. For the reasons already given there was no error in the sentencing judge’s approach to the appellant’s mental illness. The judge sentenced the appellant on the assumption that his mental illness played some part in the commission of the arson. However, the extent of that part played by his mental illness in the offending did not diminish the requirement for a sentence to be fixed which reflected the need for general deterrence. While the personal circumstances of the appellant and his wife can be distinguished on the basis she was not suffering a mental illness, there was some evidence before the judge that Mrs Kuchar satisfies the diagnostic criteria for autism spectrum disorder. In my view, the personal circumstances of the appellant did not warrant a markedly more lenient sentence from that imposed on his wife. The similarity in their sentences, both in respect of the head sentence and the non-parole period, is justifiable given the respect for the sentencing discretion referred to by Kirby J in Postiglione.
Further, I do not consider that there is any basis to interfere with the sentence imposed on the basis of any marked disparity between the sentence imposed upon the appellant and the sentence imposed upon his wife. The only disparity is that the wife’s term of imprisonment is to be served on home detention. As the judge explained that order was made because of the needs of their three young children, one of whom has a disability. That approach does not indicate error.
I would dismiss ground 5.
Conclusion
I would dismiss the appeal.
DAVID AJ: I would dismiss the appeal. I agree with the reasons of Stanley J.