Philp v The Queen - [2017] VSCA 320

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0221

GARREN JOHN PHILP	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 May 2017
DATE OF ORDERS:	12 May 2017
DATE OF REASONS	3 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 320
JUDGMENT APPEALED FROM:	[2016] VSC 486

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CRIMINAL LAW – Appeal – Sentence – Parity – Manslaughter – Applicant sentenced to nine years’ imprisonment with non-parole period of six years – Co-offender sentenced to three years and six months’ imprisonment with non-parole period of two years – Whether disparity of sentences justified – Material differences – Significant differences in role – Co-offender undertook to give evidence against applicant – Reasonably open to judge to differentiate – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Danos	Tony Danos Lawyers
For the Respondent	Mr C Boyce SC	Mr John Cain, Solicitor for Public Prosecutions

MAXWELL P
CROUCHER AJA:

On 3 June 2016, the applicant (who had initially been charged with murder) pleaded guilty in the Supreme Court to the manslaughter of Raymond Parker. He was sentenced to nine years’ imprisonment, with a non-parole period of six years.

Two co-offenders, each of whom also pleaded guilty to manslaughter, were sentenced by the same judge. Daniel O’Donnell was sentenced to three years and six months’ imprisonment, with a non-parole period of two years, and Dean Brooks was sentenced to nine years’ imprisonment, with a non-parole period of six years.

The applicant sought leave to appeal on two grounds. On 2 March 2017, Priest JA refused leave on both grounds. The applicant elected to renew his application, but on the election advanced only a single ground, namely, that the sentence imposed on him offended against the principles of parity.

At the conclusion of argument on the renewed application, we announced that leave to appeal would be refused. It was well open to the judge, in our view, to differentiate between the applicant and O’Donnell as she had, and the contrary was not reasonably arguable. We said that we would publish reasons in due course. These are those reasons.

The parity principle

The parity principle requires that there be appropriate relativity of sentence between co-offenders. The principle is fundamental to the community’s sense of justice, for the reasons which Mason J gave in Lowe v The Queen:

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.[1]

Indeed, such is the importance…

Grounds of appeal

[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.

Continue reading Philp v The Queen

Details

AGLC: Garren John Philp v The Queen [2017] VSCA 320
Case: [2017] VSCA 320
Decision Date: 3 November 2017

CaseChat Overview and Summary

The applicant, Philp, appealed against the sentence imposed by the Supreme Court of Victoria for manslaughter. Philp was sentenced to nine years’ imprisonment with a non-parole period of six years, while his co-offender was sentenced to three years and six months’ imprisonment with a non-parole period of two years. The primary issue for the High Court was whether the disparity in sentences was justified given the significant differences in the roles played by Philp and his co-offender in the commission of the crime.

The High Court examined whether the trial judge could reasonably differentiate the sentences based on the material differences in their roles. The co-offender had undertaken to give evidence against Philp, which played a significant role in the disparity of sentences. The Court considered whether it was reasonably open to the trial judge to impose a sentence that reflected these differences. The Court found that the disparity in sentences was justified, as the co-offender’s role in providing evidence against Philp constituted a significant difference warranting a lesser sentence.

The Court held that the trial judge had reasonably considered the material differences between the roles of the applicant and the co-offender. It was reasonably open to the judge to differentiate the sentences based on these significant differences. Consequently, the Court refused Philp’s application for leave to appeal. The original sentence imposed by the Supreme Court of Victoria was upheld, maintaining the nine-year imprisonment term with a six-year non-parole period for Philp.

Orders