1. Grant leave to appeal out of time, and leave to appeal against sentence.
2. Dismiss the appeal.
Catchwords:
SENTENCING – appeal against sentence – co-offenders – disparity between sentences – proper use of the parity principle – where several co-offenders had already been sentenced before the applicant – where sentencing judge, after considering the circumstances of the co-offenders, stated that the sentence to be imposed on the applicant “should be higher” than those imposed on co-offenders – whether sentencing judge impermissibly invoked parity principle to increase the sentence otherwise to be imposed on the offender – whether Crown submissions on parity amounted to submissions of the kind considered in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 – no error in application of the parity principle
SENTENCING – relevant factors on sentence – co-offenders – parity – proper use of the parity principle – where several co-offenders had already been sentenced before the applicant – where sentencing judge, after considering the circumstances of the co-offenders, stated that the sentence to be imposed on the applicant “should be higher” than those imposed on co-offenders – whether sentencing judge impermissibly invoked parity principle to increase the sentence otherwise to be imposed on the offender – whether Crown submissions on parity amounted to submissions of the kind considered in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 – no error in application of the parity principle
SENTENCING – appeal against sentence – severity – manifest excess – proper use of sentences imposed in comparable cases in determining whether a sentence was manifestly excessive – approach to a ground of manifest excess where offender was sentenced by way of an aggregate sentence – sentence not manifestly excessive
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
MO v The King [2023] NSWCCA 26
Case
[2023] NSWCCA 26
Decision Date
CaseChat Overview and Summary
The applicant, MO, appealed against his sentence following a conviction for various offences. The appeal centred on the disparity between his sentence and those of his co-offenders, and whether the sentencing judge had properly applied the parity principle. The High Court of Australia heard the appeal, with the central issue being whether the sentencing judge had improperly invoked the parity principle to increase the sentence otherwise to be imposed on the applicant. A secondary issue was whether the Crown's submissions on parity amounted to the kind of submissions considered in Barbaro v The Queen.
The court examined the sentencing judge's approach to the parity principle and the sentences of the co-offenders. It found that the sentencing judge had correctly considered the circumstances of the co-offenders and had reasonably concluded that a higher sentence was warranted for the applicant. The court also held that the Crown's submissions did not fall within the parameters established in Barbaro. The appeal against the sentence was dismissed as there was no error in the application of the parity principle. The court further held that the sentence was not manifestly excessive, particularly in light of the aggregate sentence imposed. The appeal was ultimately unsuccessful, and the original sentence was upheld.