R v McKenna - [2007] NSWCCA 113

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: McKENNA v REGINA [2007] NSWCCA 113
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2007/566

HEARING DATE(S): 16/04/07

JUDGMENT DATE: 18 May 2007

PARTIES:
Eric Noel McKENNA (Applicant)
REGINA (Respondent)

JUDGMENT OF: McClellan CJ at CL Hidden J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1016

LOWER COURT JUDICIAL OFFICER: His Honour Judge Walmsley SC DCJ

LOWER COURT DATE OF DECISION: 13/04/06

COUNSEL:
A. Francis (Applicant)
V. Lydiard (Respondent)

SOLICITORS:
K. Kyriacou (Applicant)
S. Kavanagh (Respondent)

CATCHWORDS:
CRIMINAL LAW – SENTENCE APPEAL – Parity in sentencing – justifiable sense of grievance – no discernable distinction in subjective circumstances – principles of equal justice in sentencing – assistance and voluntary disclosure of guilt compared.

LEGISLATION CITED:
Crimes Act 1900 (NSW)
Crimes Legislation Amendment (Periodic and Home Detention) Act 2002 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

CASES CITED:
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
R v Ellis (1986) 6 NSWLR 603
R v Kai Kong Li [2005] NSWCCA 154
R v Tiddy [1969] SASR 575
York v The Queen (2005) 79 ALJR 1919

DECISION:
(a) leave to appeal be granted; (b) the appeal be allowed and the sentence imposed on the applicant by Walmsley DCJ on 13 April 2006 (as amended on 5 April 2007) be quashed and in lieu thereof the following sentences be imposed: (i) for Count 3, the assault occasioning actual bodily harm in company committed on 14 August 2003, imprisonment comprising a non-parole period of 12 months to commence on 13 April 2006 and expire on 12 April 2007 with a remainder of term of 12 months to expire on 12 April 2008; (ii) for Count 1, the offence of maliciously inflict grievous bodily harm in company committed on 14 August 2003, imprisonment comprising a non-parole period of 12 months commencing 13 July 2006 and expiring 12 July 2007 with the remainder of sentence of 15 months to expire on 12 October 2008; (iiii) the total effective sentence imposed is one of 15 months non-parole period with a further 15 months for the remainder of the sentence and a total sentence of 30 months; (iv) the applicant will be first eligible for parole on 12 July 2007. The remainder of the non-parole period is to be served as part of a continuing full time custodial sentence.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/566
McCLELLAN CJ at CL
HIDDEN J
ROTHMAN J
18 May 2007

Eric Noel McKENNA v REGINA

Judgment

McCLELLAN CJ at CL: This was a dreadful crime. An innocent person was attacked and he and his child seriously injured by a group of young people acting from a completely misguided belief that they were entitled to take the law into their own hands. Although the appellant’s role in inflicting the injuries was modest and he was the first to call off the attack he was a major force in initiating the violent pursuit of the person who robbed his girlfriend.
Members of the community are entitled to walk the streets without fear of being attacked by others intent upon inflicting physical violence. Those who put people in fear and cause serious injury cannot expect any leniency from the law.
In the present case the sentences imposed on each offender were in my view at the lower end of the appropriate range. Although there is a disparity between the sentence imposed on the applicant and the sentence imposed on Benischke, having regard to their leniency I have had reservations as to whether this Court should intervene. However, on balance I have determined that a reduction in the applicant’s sentence to the extent proposed by Rothman J would not take his sentence beyond the permissible range. Accordingly, I agree that although only modest, the grievance which the applicant maintains justifies the intervention of this Court.
I agree with the orders proposed by Rothman J.
HIDDEN J: I agree, for the reasons given by Rothman J, that the applicant has a justifiable sense of grievance in the light of the sentence passed upon Mr Benischke and that this Court should intervene. I agree with the orders which his Honour proposes.
ROTHMAN J: The applicant, Eric Noel McKenna, seeks leave to appeal against the sentence imposed by His Honour Judge Walmsley SC DCJ on 13 April 2006 (as amended pursuant to section 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW) on 5 April 2007).
The applicant was charged with: Count 1: maliciously inflict grievous bodily harm in company, the date of offence being 14 August 2003, contrary to section 35(2) of the Crimes Act 1900 (NSW), the maximum penalty for which is imprisonment for ten years. In the alternative to Count 1, Count 2: the applicant was charged with maliciously inflict grievous bodily harm contrary to section 35(1)(b) of the Crimes Act 1900 (NSW), the maximum penalty for which is seven years’ imprisonment. The applicant was also charged with: Count 3: assault occasioning actual bodily harm in company, the date of offence also being on 14 August 2003, contrary to section 59(2) of the Crimes Act 1900 (NSW), the maximum penalty for which is imprisonment for seven years. And in the alternative to Count 3, Count 4: assault occasioning actual bodily harm contrary to section 59(1) of the Crimes Act 1900 (NSW), carrying a maximum penalty of imprisonment for five years.
The applicant pleaded not guilty on all Counts and the jury returned a verdict of guilty on Counts 1 and 3.
His Honour Walmsley DCJ imposed a sentence for Count 3 of imprisonment comprising a non-parole period of 18 months, commencing on 13 April 2006 and expiring on 12 October 2007, with a parole period of 18 months to expire on 12 April 2009. He also sentenced in relation to Count 1 to a term of imprisonment comprising a non-parole period of 18 months, commencing on 13 June 2006 and expiring on 12 December 2007, with a parole period of 6 months, to expire on 12 June 2008.
The overall effective sentence was a term of imprisonment comprising a non-parole period of 20 months, commencing on 13 April 2006 and expiring on 12 December 2007, with the remainder of term of 16 months which will expire on 12 April 2009. These sentences recite the sentences as finally imposed, namely, as amended pursuant to section 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The applicant, by notice of appeal, raised two grounds of appeal. The first of which was satisfied by the amendments made by his Honour under section 43 and referred to in the immediately preceding paragraph. The sole remaining ground of appeal is the allegation that there is a justifiable sense of grievance in the sentence imposed compared to the co-offenders, particularly Mr Penrice and Mr Benischke.
Mr Penrice was sentenced by Walmsley DCJ at the same time as was the applicant. Mr Benischke was sentenced by Charteris DCJ on 15 September 2006.
The applicant was sentenced, as already stated, to an overall effective sentence of a term of imprisonment comprising a non-parole period of 20 months and the remainder of sentence of 16 months. A comparison with the total effective sentences imposed on the co-offenders is best illustrated in table form:

Name	Non-Parole Period	Remainder of Sentence
McKenna (the applicant)	20 months	16 months
Betts	21 months	14 months
Benischke	15 months	15 months
Penrice	15 months	5 months

The above table is in descending order of length of overall sentence.

Further, in the case of the co-offenders Penrice and Benischke they were each sentenced to serve their term of imprisonment as a periodic detention. The only two offenders who engaged in this criminal conduct and received full-time custodial sentences were the applicant, Mr McKenna, and his co-offender Betts. Each of the co-offenders was charged with the same offences. Mr Betts was the only co-offender who pleaded guilty. It is necessary to outline the criminal conduct in question.
Facts
The Crown alleged there was a joint criminal enterprise in relation to all four co-offenders and the jury (in relation to all but Betts who pleaded guilty) found, that they were party to a joint criminal enterprise. The offences occurred in the following way.
At or about 8.00pm on 14 August 2003 the adult victim was walking along Hinkler Street Maroubra. His daughter who, at the date of the incident, was five weeks old, was strapped to the adult victim’s chest in a baby pouch. As it was a cold night the adult victim wrapped his jacket around the baby and zipped up the jacket. There is in place a non-publication order from the District Court, which has been continued by this Court, in relation to the names of the victims and their immediate family and certain other persons identified other than by their name in this judgment.

The applicant’s girlfriend (also subject of a non-disclosure order) had, earlier that evening, been assaulted. The person that assaulted her, who was not the male victim, had punched the girlfriend in the nose and sought to steal her mobile telephone. The applicant and his co-offenders, on being told of the assault, drove around looking for her assailant. They saw the adult victim. The applicant’s girlfriend indicated that she did not think that he was the assailant and seems to have mentioned that the assailant had been wearing a cap. Despite that, the offenders got out of the car and, seemingly at the instigation of Mr Betts, attacked the male victim. After leaving the car the co-offenders attacked the male victim from behind.
The male victim was kicked and punched and received head injuries. While he was being attacked his five week old baby was also injured. Her injuries were particularly bad. She received a depressed fracture to the skull and suffered an intracranial haemorrhage. Later she suffered from seizures for which she required medication. Luckily, her injuries did not prove to be permanent although, to some degree, the full extent of the effect of the injuries will not be known until she matures.
As the attack was occurring, independent bystanders stopped to give assistance. The attack ceased. The sentencing judge found, as a fact that is not contested, that the applicant, on hearing the baby cry “called off the attack”. His Honour also held that the applicant did not occasion any injury to either the adult or infant victim and did not punch or kick either one of them. On the material before the Court, it seems as if the applicant was approximately one to two metres away from the actual assault.
The offenders fled the scene. While some information was given to the Police, none of the offenders were identified and while enquiries were made by the Police in and around the area, they were not able to ascertain the identity of the offenders.
Two days after the attack, Mr Penrice, a co-offender of the applicant, of his own accord, attended at the Police Station, gave a lengthy interview describing the attack, and gave Police the names and descriptions of his co-offenders. He denied striking either victim but indicated who had. As a result of that confession his three co-accused were arrested and charged.
Mr McKenna was arrested at work and interviewed. During the interview Mr McKenna gave a complete statement of what occurred on the evening, his involvement and the involvement of others. He identified each of the others and the terms of the interview were wholly or substantially in accordance with the factual findings of Walmsley DCJ. Mr Betts declined to be interviewed.
Walmsley DCJ ordered a separate trial on application of Mr Benischke. Walmsley DCJ found that, in the charges against each of the accused, it was not necessary for the Crown to prove that any one of the accused knew that the infant victim was present at the time of the offence (the transferred malice issue).
After this judgment on the voir dire Mr Betts entered a plea of guilty to both Counts under sections 35(2) and 59(2) of the Crimes Act 1900 (NSW). The applicant and Messrs Penrice and Benischke maintained pleas of not guilty to both counts.
At the time that Walmsley DCJ sentenced the applicant, Mr Benischke’s trial had not yet been held. The jury found the applicant and Mr Penrice guilty and on 14 June 2006 another jury found Mr Benischke guilty of the same offences (i.e. the 1st and 3rd Counts on the indictment).
Walmsley DCJ found that he could not be persuaded beyond reasonable doubt that the co-offenders knew of the baby’s presence during the attack on the adult victim.
As already stated, Betts was the person whom his Honour found had inflicted the blows (punching and kicking) on the victims and the injury involved. There is some inconsistency in the evidence as to who else, other than Betts, was involved in the altercation. His Honour was not able to find, beyond a reasonable doubt, that any of the other co-offenders punched or kicked the victims. However, it is clear that the applicant was not one of the offenders who inflicted injury and, unlike the other co-offenders, there was no suggestion to the contrary. This is the result not only of the statement from the applicant but from other co-offenders who corroborated the applicant on that issue.
His Honour found, correctly, that the culpability of Mr Betts was significantly greater than the culpability of the other offenders. In that regard, the finding of his Honour (at [92]) that the applicant called off the attack, being a finding made only in relation to the applicant and not other co-offenders, means that the applicant’s culpability would ordinarily be lower than the others and displays contrition at the time of the attack itself.
A number of other factors must be taken into account. First, in relation to the co-offender Penrice, there are significant Ellis factors: R v Ellis (1986) 6 NSWLR 603. The attack in question was the subject of significant notoriety and press coverage at or shortly after the incident. The Police had no or very few leads and were unaware of the identity of the attackers. In this context the assistance offered by the co-offender Penrice, of his own accord, was substantial. His Honour allowed a substantial discount.
Mr Betts on the other hand was described as “the main assailant” by Walmsley DCJ, with the applicant and Mr Penrice as having “lesser roles”. Charteris DCJ when sentencing the co-offender Benischke, described Betts as the “ring leader in the event. He delivered both punches and kicks to the body of [the adult victim]. Forensic examination of his boots revealed the presence of the victim’s blood upon them. I am comfortably satisfied that Mr Betts was the ring leader in the attack. He was very much a ‘loose cannon’.”
Charteris DCJ, later in his remarks on sentence, said:
“Having regard to the other evidence before me I am comfortably satisfied that Mr Betts was very much the loose cannon that led to the offences occurring. Indeed, I think it unlikely that there would have been an attack upon [the adult victim] but for the behaviour of Mr Betts. He delivered the initial punches knocking [the adult victim] to the ground. He then engaged in kicking [him].”
Mr Betts was given the benefit of his plea of guilty and was given a discount, with rounding, of approximately 25% (i.e. the maximum discount for a plea of guilty) on one charge and 20% on the other. Mr Betts gave no statement to the Police and has given no evidence in any trial for any of these offences. He did give evidence, being called by the prosecutor in a Basha inquiry relating to Benischke and was contemptuous of the court proceedings and abusive of Mr Benischke.
On any analysis, this attack was a callous and violent attack on an innocent person (and his infant child) who was doing no more than walking home. He was entitled to do so. Even accepting, as I must, that the perpetrators were unaware of the presence of the infant, attacks of this kind strike at the heart of the community and threaten the peace of society that most take for granted.
Even if Betts believed, which I do not consider he did, that the adult victim had earlier assaulted the female co-offender, it is for the Police and law enforcement agencies to apprehend perpetrators of crime and for the courts to punish them. The alternative is too chaotic and dangerous to contemplate.
The courts must provide significant specific and general deterrence to assaults on people in the street or public places, including, and perhaps especially, assaults purportedly for the purpose of revenge or punishment for an earlier crime.
In particular the co-offender Betts, who, because we have evidence from both trials we know, was the instigator of the attack and the perpetrator of the injuries, was treated lightly. That may be true of Penrice, even allowing for the discounts. Benischke’s trial also heard evidence (from other than the applicant) more exculpatory of the applicant than was heard during his own trial. Nevertheless in dealing with this appeal by McKenna, it is with the evidence adduced in his trial, and on his sentencing hearings, that I must deal.
Subjective Circumstances
Ms Francis, Counsel for the applicant before this Court, summarised the subjective circumstances of the applicant in dot points in a manner which has, with some exceptions, been accepted by the Crown. The submission was in the following terms:
“4.1The applicant’s subjective case can be summarised as follows:

he was born on 12 February 1980 and was twenty six years of age at the time of sentence;
he was the only male in a family of six children;
he had a strict and supportive upbringing;
he left school at fifteen at the end of year ten;
he was an apprentice panel beater;
he had stable employment with the same employer from 1996 until charged with these offences;
after leaving this job on account of the prospect of gaol, he then received work with his father;
he was at the time of sentence in receipt of centrelink payments;
he had begun drinking at fourteen and heavy drinking at sixteen;
after these offences his drinking increased although he had sought help by the time of sentence;
he began to use cannabis at twelve and later used it heavily however claimed to have stopped using it in the year before sentence;
he expressed remorse to the probation and parole officers for his part in the offences but they indicated that he had attempted to minimise his role. In this regard it is unclear that the Probation and Parole officers were appraised of the principles of joint enterprise;
he expressed considerable remorse to Tim Watson Munro, Psychologist, who regarded it as genuine;
by the time of the consultation with Mr Munro the applicant had commenced drug and alcohol treatment and had begun to attend Alcoholics Anonymous;
he was also being treated for depression;
he had before the commission of these offences seen a psychiatrist for depression;
the psychologist considered that the applicant was immature and that his depression had interfered with his capacity to evaluate situations critically;
the psychologist anticipated some improvement with time;
the psychologist characterised his depression and drug and alcohol abuse as amounting to a substance abuse disorder on the DSM – IV criteria and there was a direct nexus between that condition and the offences;
in respect of his criminal record he had no convictions for violence at the time of these offences, however he had three convictions for mid range PCA;
he had since the offences been convicted of assault occasioning actual bodily harm and maliciously destroy or damage property. These offences related to conduct in respect of his sister and she gave evidence before the sentencing Judge that she was confident that the applicant had rehabilitated himself and she was not scared of him;
his sister testified that since the applicant had been going to AA his behaviour had improved significantly;

there was a family plan to move the applicant out of Sydney at such time as the court case was complete;
there were ‘impressive references’ tendered on his behalf which his Honour accepted supported the proposition that he was unlikely to reoffend;
his Honour accepted that he had reasonable prospects of rehabilitation and he was remorseful (ROS p 21 para 90);
he made admissions when first interviewed although denied assaulting the victims.”

The applicant was assessed as unsuitable for periodic detention pursuant to the requirements of section 66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and sections 65A and 65B of the Crimes Legislation Amendment (Periodic and Home Detention) Act 2002 (NSW). The reason for that unsuitability was the mental health instability of the applicant, specifically his depression, and his non-adherence to the prescribed regime of medication. The pre-sentence report nevertheless noted that there had been some positive progress towards rehabilitation in relation to the applicant’s alcohol abuse.
As noted above the Crown qualified the summary of the applicant’s subjective case set out above. Those qualifications, themselves, need comment:

Remorse: the Crown submitted that the issue of remorse needs to be qualified and refers particularly to the applicant’s alleged attempts to minimise his role. This was a reference to the comments made to some of the parole officers as to minimisation. However, in terms of the actual infliction of injury, it is beyond doubt that the applicant was not involved in the infliction of any injury. Moreover, as the Crown itself submits, quoting his Honour, Penrice (a co-offender) “provided more exculpatory material about [the applicant] than he [the applicant] did about himself”. Indeed the impression from the statement given by the applicant to Police that he had “attempted to stop the assault” is significantly less advantageous to his position than Penrice’s recollection of the words used which were: “Stop it, stop it, fucking get off him, he’s got a baby”.
Treatment for depression: it is accepted, and must be, by the Crown that the applicant is being treated for depression. The issue of qualification relates to the timing of that treatment and whether it occurred before or after the commission of the offences. Further, the Crown accurately submits that, in relation to the characterisation by the psychologist of the applicant’s depression and drug and alcohol abuse, this amounts to substance abuse disorder on the DSM IV criteria. This, it is said, does not mean that the depression caused the applicant to commit the offence, but that the nature of his drug addiction significantly impacted on his judgment and capacity with problem solving, and in conjunction with his depression could cause him to act “in an impulsive manner”.

None of these issues seem to impact greatly on the aspects of subjective circumstances which were submitted by the applicant or on his behalf.
Two other matters need to be mentioned. First, Walmsley DCJ makes no comment, in his remarks on sentence, on the effect on the sentence of the confession of the applicant. Unlike Penrice, the applicant did not come forward of his own volition. He was arrested and questioned. Nevertheless he gave a full and frank admission of all of the facts which led to his conviction, and the conviction of the others. While I infer that at the time of his arrest and questioning he knew that “the game was up” and probably that he had been identified, perhaps by one of his co-offenders, as participating in the attack, that does not mean that the confession was of no assistance.
It is clear from that which followed that the confession of the applicant was a more reliable confession (save that he seems to have overstated his involvement in the physical attack and understated his attempts to stop it) than any other version. Even if it added no more than that which had been told by Penrice, given the sentencing judge’s finding that it would have been hard, without Penrice’s assistance for the Police to have traced the offenders, a statement corroborative of that of Penrice would have significant value. Such a statement significantly alters the evidence available to the prosecutor compared with a situation where one of four co-offenders gives evidence that, for example, may have been denied by each of the others. Moreover, it is clear from the later findings that the statement by the applicant did more than simply corroborate the statement by Penrice.
Of course, the statement made on interview by the Police is in a different category to the voluntary surrender and statement to the Police, which was the situation in relation to Penrice.
The principles as to how each should be treated require a significant difference. The kind of assistance offered by Penrice commonly would be (and was) a ground for substantial leniency. In doing so the discount is not only for the assistance to the administration of justice but also takes account of the subsequent likely threat to the offenders safety, the conditions under which the offender will have to serve a sentence in order to reduce the risk of reprisals, and the steps that will need to be taken to protect the offender when released: York v The Queen (2005) 79 ALJR 1919, per Gleeson CJ at [3].
The applicant’s statement was a voluntary disclosure of guilt, albeit at a time that did not warrant the benefits of assistance afforded Penrice. Nevertheless it was made at a time when it could be, although not necessarily, the subject of discount:
“… Although a sentencing judge should allow some discount for a voluntary disclosure of guilt, a sentencing judge is not required, in every case in which there has been a voluntary disclosure of guilt by the offender, to allow a considerable or significant discount because of the voluntary disclosure of guilt or to say in the judge’s remarks on sentence that the judge has allowed a considerable or significant discount on this ground”: R v GLB [2003] NSWCCA 210 per James J at [33].
In the current circumstances, the sentencing judge made no reference to the voluntary disclosure of guilt in the context of fixing the level of sentence. It is said, correctly, that the voluntary disclosure made by the applicant is at a lesser level because the applicant maintained a plea of not guilty. In this instance, the voluntary disclosure of guilt was the disclosure of all of the facts which gave rise to guilt. The trial of the applicant did not proceed on the basis of contested facts as to his involvement and the finding of the sentencing judge was that the circumstances of the offence, and the involvement of the applicant, were as described by him in his statement to the Police.
Further, in this regard it is submitted, on behalf of the applicant, that the sentencing judge was unaware at the time of sentence, and therefore paid no regard to, the assistance given by the applicant in giving evidence in the trial of Benischke. Generally, post-sentence assistance, such as here described, would not be, of itself, a ground to alter a sentence. While there is no distinction in the policy matters that give rise to the desirability of a discount for such assistance, this Court will not interfere with a sentence already passed except on one or other of the well known bases which require error either identifiable or manifest. If, however, this Court were required, for other reasons, to re-sentence, then the subsequent assistance can be taken into account.
Parity
The Crown, in its written submissions, said:
“Recently, applying Lowe v The Queen (1984) 154 CLR 606 this Court emphasised that there is no rule of law requiring co-offenders to be given the same sentence for the same offence, even if no distinction can be drawn between them: R v Kai Kong Li [2005] NSWCCA 154 at [40]-[44].”
The above citation of the judgment of Barr J in Kai Kong Li takes the statement of his Honour out of context. Barr J, applying Lowe v The Queen said:
“[40] … There is no rule of law that requires co-offenders to be given the same sentence for the same offence, even if no distinction can be drawn between them: Lowe v The Queen (1984) 154 CLR 606, per Dawson J at 623. As Street CJ said in R v Tisalandis [1982] 2 NSWLR 430 at 431, an assertion that there is a disparity between a sentence under challenge and another which ought to be comparable, if not identical, is but a particular instance of the general proposition that the sentence under challenge falls outside what might be described as the general pattern of sentencing for the crime under consideration. The objective on appeal is the attainment of even-handedness in sentencing and there remains in this Court a power to modify a sentence which conforms with the general pattern, and thus does not offend the concept of general even-handedness, so as to bring it into or towards conformity with another leniently disparate sentence in order to achieve particular even-handedness as between individual sentences which ought to be equivalent or at least comparable. His Honour [Street CJ] said this at 431-432 -
Consistently with the foregoing, it has long been recognised that ordinarily the initial inquiry by the appellate court is directed to whether the sentence under challenge, viewed individually, is so heavy as to attract of itself appellate intervention before it will be corrected with a view to eliminating or diminishing any disparity vis-à-vis another sentence which it could have been expected to be equivalent or comparable. Special significance is to be attached to the adverb ‘ordinarily’ in the foregoing formulation of the general approach of the court. An analysis of many cases where an argument based on disparity has been considered, and either upheld or rejected, in recent years will disclose that, where the interest of justice so require, the Court of Criminal Appeal will not refrain from interfering with a sentence which, in the absence of particular disparity, would not have been the subject of appellate intervention. In the interests of justice it has at times been thought necessary, in eliminating or diminishing disparity, to reduce a sentence to a level which would probably be criticised as inadequate.”
The opening sentence of the above citation, which the Crown cited was in turn taken from the judgment of Dawson J in Lowe v The Queen (1984) 154 CLR 606. Justice Dawson, with whom Wilson J agreed, dealt with the parity principle in the following way:
“There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or his involvement in the offence are different then different sentences may be called for but justice should be even-handed and it has come to be recognised both here and in England that any differences between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.” (Lowe at 623)
In the joint judgment of Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295, the High Court expanded on its judgment in Lowe in the following terms:
“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.” (Postiglione, supra, per Dawson and Gaudron JJ at 301)
As between co-offenders the principle is that where things are equal, persons concerned should receive the same treatment; and where things are not equal, due discrimination should be made to account for the differences: R v Tiddy [1969] SASR 575 at 577.
Discrepancy or difference, of itself, is never sufficient to warrant intervention by an appellate court. The discrepancy must be unjustifiable and the difference must be otherwise than on account of differences in the co-offenders. The test is objective, not subjective. And, even where the differences in sentence between two or more co-offenders cannot be shown to be due to a proper discrimination on the basis of relevant factors, an appellate court will still not intervene if the result would be to reduce the sentence to that which would be inappropriate for the offence in question.
While unequal treatment before the law, obviated in sentencing by the application of the parity principle, brings the administration of justice into disrepute, so too does the imposition of a sentence which is inappropriately low for the offence and offender in question. To use the parity principle to reduce a sentence to a level which is inappropriate or insufficient merely replaces one manner of bringing the administration of justice into disrepute by another.
Thus, while appellate courts will intervene to implement parity of sentencing between co-offenders, they will not do so unless the discrepancy in sentence gives rise to a justifiable sense of grievance. “Justifiable” in that context must be objectively ascertained and cannot depend upon a comparison with an inappropriately lenient sentence on a co-offender.
I turn then to the discrepancies that are alleged in the sentences for these co-offenders. The initial reaction to the proposition that the applicant, who, in terms of criminal culpability, had the least problematic conduct, should receive the heaviest sentence tends to suggest that the sentence imposed is out of kilter with the remaining sentences. However, the comparison is not so simple. The co-offender Betts was entitled to a discount resulting in a lower sentence than would otherwise be the case. The difference in criminal activity between the activity of Betts and the activity of the applicant seems to warrant a greater discrimination than six months, which was the starting point of his Honour. Nevertheless such a comment may point more to an inappropriately low sentence imposed upon Betts.
Likewise, when one considers a comparison with Penrice, one must take into account the substantial discount for the assistance given by Penrice to the authorities.
However, when one compares with the co-offender Benischke, there seems to be no rational basis for the distinction in sentence. I do not here refer to the distinction between a full-time custodial sentence and periodic detention. While periodic detention builds in a degree of leniency, the applicant was not entitled to a sentence of that kind and I disregard it for the purpose of comparison.
Comparison of Subjective Circumstances
It is not only the criminal culpability of each co-offender that must be examined in order to determine whether there is a rational relationship between the sentences imposed on each. An analysis of the subjective circumstances as they apply to Mr Benischke and those that apply to the applicant are extraordinarily similar. While the applicant is two years older than Mr Benischke, the subjective circumstances are otherwise almost identical. Each of them come from large families where the parents’ marriage had broken up. Mr Benischke’s father had issues relating to alcohol consumption and while there seems to be no evidence of that in relation to the applicant, he was prior to the rehabilitation process commencing, far more dependant upon alcohol than was Mr Benischke.
Each of them showed considerable remorse. While it is beyond doubt that the applicant did not participate in the occasioning of blows, there is some doubt whether Mr Benischke did. However, Charteris DCJ found that he did not, or rather, that he was not satisfied on the requisite standard that he did, and therefore he was sentenced on the basis of the same participation in the offences as the applicant. Interestingly, Charteris DCJ refers to the sentences of each of the co-offenders and in particular the co-offender, Penrice. Charteris DCJ remarks that he had the benefit, unlike Walmsley DCJ, of seeing Mr Penrice in the witness box. It is clear that he was not impressed with Mr Penrice. He was also not that impressed with the applicant. It may be that the comparison with Mr Penrice is the reason there is a disparity between Mr Benischke and the applicant.
Neither Mr Benischke nor the applicant had any prior criminal record at the time of the offence. Mr Benischke had committed offences prior thereto, being driving offences relating to recklessly and furiously driving a motor vehicle and disobeying a request to stop for a breath test, but he had not been convicted of them at the time of the offence in question. The applicant, on the other hand, had committed no offences prior to the incident in question. After the incident, it seems as a result of his alcohol abuse and a level of depression associated with the commission of the offence itself, he assaulted his sister, which was referred to by Walmsley DCJ as was their reconciliation and the improvement in behaviour that was obvious following his partial rehabilitation.
All in all the subjective circumstances of each of Mr Benischke and the applicant do not give rise to a rational basis for a distinction in the sentences imposed.

Conclusion

The lack of rationality between sentences imposed upon co-offenders points to error. Either there is error because the parity principle has not been properly applied, or there is error because one or other of the sentences must be infected with it. While the sentence imposed upon the applicant is not outside the range of sentences available and does not, of itself, disclose error, nor is the sentence imposed upon Benischke.
The Crown does not submit that the sentences imposed upon Benischke were inappropriately low or outside the range of sentences available. In those circumstances a reduction of sentence for the applicant, to bring it in line with the sentence imposed for Benischke, could not bring the sentences for the applicant to a level which would be inappropriate.
The disparity between the sentences imposed on the applicant and on Benischke is irrational. There is a justifiable sense of grievance and the appeal should succeed.
If this Court were to intervene and re-sentence on the basis of parity, it would be appropriate to bring into account an allowance for the assistance by the giving of evidence in the proceedings against Benischke. In the circumstances a sentence which was below that of the sentence imposed upon Benischke would be inappropriately low and I propose the following orders:
(a) leave to appeal be granted;
(b)the appeal be allowed and the sentence imposed on the applicant by Walmsley DCJ on 13 April 2006 (as amended on 5 April 2007) be quashed and in lieu thereof the following sentences be imposed:
(i)for Count 3, the assault occasioning actual bodily harm in company committed on 14 August 2003, imprisonment comprising a non-parole period of 12 months to commence on 13 April 2006 and expire on 12 April 2007 with a remainder of term of 12 months to expire on 12 April 2008;
(ii)for Count 1, the offence of maliciously inflict grievous bodily harm in company committed on 14 August 2003, imprisonment comprising a non-parole period of 12 months commencing 13 July 2006 and expiring 12 July 2007 with the remainder of sentence of 15 months to expire on 12 October 2008;
(iiii)the total effective sentence imposed is one of 15 months non-parole period with a further 15 months for the remainder of the sentence and a total sentence of 30 months;
(iv) the applicant will be first eligible for parole on 12 July 2007.

As a matter of abundant caution I make it clear that the remainder of the non-parole period is to be served as part of a continuing full time custodial sentence.

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AMENDMENTS:

11/09/2007 - Typographical error - Paragraph(s) 18

LAST UPDATED: 11 September 2007