R v Heang - [2016] QCA 195

SUPREME COURT OF QUEENSLAND

CITATION:

R v Heang [2016] QCA 195

PARTIES:

R
v
HEANG, Jason Michael
(applicant)

FILE NO/S:

CA No 253 of 2015
DC No 187 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville – Date of Sentence: 22 September 2015

DELIVERED ON:

5 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2016

JUDGE:

Morrison JA and Boddice and Burns JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant was convicted on his own plea of guilty of one count of wilful damage and one count of burglary with circumstances of aggravation – where the applicant was sentenced to concurrent terms of imprisonment of two months for wilful damage and 18 months for burglary, and immediately released on parole – where the applicant served 137 days of pre-sentence custody and a declaration was made that those days were time served under the periods of imprisonment that were imposed – where a co-offender was sentenced to concurrent terms of imprisonment of two months for wilful damage and 12 months for burglary, both terms wholly suspended for an operational period of 18 months – where the co-offender served three days of pre-sentence custody and a declaration was made that those days were time served under the periods of imprisonment that were imposed – where the applicant played a greater role in the offending – where the factors personal to the applicant and the co-offender where different – whether there was lack of parity between the sentences imposed on the applicant and the co-accused

Criminal Code (Qld), s 419, s 469
Penalties and Sentences Act 1992 (Qld), s 144, s 146, s 147

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, followed
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, followed
R v Floyd [2014] 1 Qd R 348; [2013] QCA 74, cited
R v Hurst[2014] QCA 168, cited
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited

COUNSEL:

A J Kimmins for the applicant
S J Farnden for the respondent

SOLICITORS:

Rennick Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MORRISON JA: I have read the reasons of Burns J and agree with those reasons and the order his Honour proposes.
BODDICE J: I agree that leave to appeal should be refused.
The differences in the objective criminality of the applicant and Shattock called for a higher head sentence in the applicant’s case. A sentence of 18 months imprisonment for burglary did not constitute a marked disparity from the sentence imposed on Shattock.

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 R v Heang

Details

AGLC: R v Heang [2016] QCA 195
Case: [2016] QCA 195
Decision Date: 5 August 2016

CaseChat Overview and Summary

In the case of R v Heang, the applicant sought to appeal against his sentence on the basis of a perceived lack of parity between his sentence and that of a co-offender. The applicant had been convicted of one count of wilful damage and one count of burglary with circumstances of aggravation. He was sentenced to concurrent terms of imprisonment of two months for wilful damage and 18 months for burglary, and was immediately released on parole. His co-offender, who had served a lesser role in the offending, was sentenced to concurrent terms of imprisonment of two months for wilful damage and 12 months for burglary, both terms wholly suspended for an operational period of 18 months.

The legal issue before the court was whether there was a lack of parity between the sentences imposed on the applicant and the co-offender. The principle of parity of sentencing is based on an aspect of equal justice, which requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. The court considered the different circumstances of the co-offenders in question and their different degrees of criminality. The applicant had played a greater role in the offending, and the factors personal to the applicant and the co-offender were different. The court found that the sentence imposed on the applicant was not manifestly excessive and that there was no lack of parity between the sentences imposed.

The court refused leave to appeal, finding that the sentences imposed were appropriate and within the permissible range of sentencing options. The court held that the sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria, and that the application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity.

No further orders were made.

Orders

Orders of the court

Leave to appeal is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

His Honour then imposed the sentences to which I earlier referred.Consideration One of the two proposed grounds of appeal specified in the Application for Leave to Appeal was that the sentence imposed with respect to the burglary was manifestly excessive, but this ground was abandoned at the commencement of the hearing of the application.[26] That left as the sole proposed ground of appeal the complaint that there was a lack of parity between the sentences imposed by the court for that count.[26]T. 1-2. In Postiglione v The Queen,[27] Dawson and Gaudron JJ explained that the principle of parity of sentencing was based on an aspect of equal justice. Their Honours continued:“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,[28] 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.”[29] (Citations omitted)[27](1997) 189 CLR 295.[28](1984) 154 CLR 606.[29]Ibid 301-302. See also Lowe v The Queen (1984) 154 CLR 606 at 610-611 and 613-614 per Mason J; R v Floyd [2014] 1 Qd R 348 at [24]-[33] per Atkinson J (Muir JA and Martin J agreeing). More recently, in Green v The Queen,[30] French CJ, Crennan and Kiefel JJ restated the principle in these terms:“‘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:[31]‘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.[32]…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.”[33][30](2011) 244 CLR 462.[31](2001) 207 CLR 584 at 608 [65].[32](2011) 244 CLR 462 at [28].[33](2011) 244 CLR 462 at [31]. See also R v Hurst [2014] QCA 168 at [33]-[35] per Morrison JA (McMurdo P and Fraser JA agreeing).

CITATION:	R v Heang [2016] QCA 195
PARTIES:	R v HEANG, Jason Michael (applicant)
FILE NO/S:	CA No 253 of 2015 DC No 187 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville – Date of Sentence: 22 September 2015
DELIVERED ON:	5 August 2016
DELIVERED AT:	Brisbane
HEARING DATE:	21 March 2016
JUDGE:	Morrison JA and Boddice and Burns JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Leave to appeal is refused.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant was convicted on his own plea of guilty of one count of wilful damage and one count of burglary with circumstances of aggravation – where the applicant was sentenced to concurrent terms of imprisonment of two months for wilful damage and 18 months for burglary, and immediately released on parole – where the applicant served 137 days of pre-sentence custody and a declaration was made that those days were time served under the periods of imprisonment that were imposed – where a co-offender was sentenced to concurrent terms of imprisonment of two months for wilful damage and 12 months for burglary, both terms wholly suspended for an operational period of 18 months – where the co-offender served three days of pre-sentence custody and a declaration was made that those days were time served under the periods of imprisonment that were imposed – where the applicant played a greater role in the offending – where the factors personal to the applicant and the co-offender where different – whether there was lack of parity between the sentences imposed on the applicant and the co-accused Criminal Code (Qld), s 419, s 469 Penalties and Sentences Act 1992 (Qld), s 144, s 146, s 147 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, followed Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, followed R v Floyd [2014] 1 Qd R 348; [2013] QCA 74, cited R v Hurst[2014] QCA 168, cited Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited
COUNSEL:	A J Kimmins for the applicant S J Farnden for the respondent
SOLICITORS:	Rennick Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent