Teece v The The King

[2022] NSWCCA 265

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Teece v R [2022] NSWCCA 265

Hearing dates:

24 October 2022

Decision date:

15 December 2022

Before:

Garling J at [1];
Button J at [2];
Wilson J at [74]

Decision:

1) Leave to appeal, including out of time, granted.
2) Appeal dismissed.

Catchwords:

CRIME – Appeals – Appeal against sentence – Manifest excess – Parity – Misapplication of principle – Error in fact finding – Where two judges sentenced co-offenders separately – Where appellate court does not go behind fact finding – Evaluative assessment of each sentencing judge as to objective findings and weight given to subjective features – Appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Code Act 1995 (Cth)

Criminal Procedure Act 1986 (NSW

Firearms Act 1996 (NSW)

Cases Cited:

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194

House v the King (1936) 55 CLR 499; [1936] HCA 40

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Patel v R [2022] NSWCCA 93

PG v R [2017] NSWCCA 179

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111

Rae v R [2011] NSWCCA 211

Tran v R (Cth) [2020] NSWCCA 310

WM v R [2020] NSWCCA 96

Category:

Principal judgment

Parties:

Matthew Teece (Applicant)
Rex (Respondent)

Representation:

Counsel:
D Phillips (Applicant)
A Bonnor (Respondent)

Solicitors:
Stidwill Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2019/00225907

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

11 December 2020

Before:

King SC DCJ

File Number(s):

2019/00225907

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Teece (the applicant) sought leave to appeal against a sentence imposed on him on 11 December 2020 by Judge King SC in the District Court of NSW. The sentence was imposed for an offence of possessing an offensive weapon in company with intent to commit an indictable offence, namely intimidation, as well as two Commonwealth offences of using a carriage service to menace. The applicant received a total term of imprisonment for 6 years with a non-parole period of 4 years 6 months, with a head sentence of imprisonment for 5 years 6 months with a non-parole period of 4 years imposed for the single State offence.

The applicant pressed three interrelated grounds of appeal. First, that the applicant has a justifiable sense of grievance with regard to the sentence imposed for the State offence when compared to the sentence imposed on the co-offender. Secondly, that the sentence is manifestly excessive. And finally, that a number of errors of fact and sentencing principle caused error in the sentence imposed.

Aspects of the remarks on sentence that were generally relied upon to advance the grounds of appeal included: the treatment of the applicant’s decision to proceed to a trial by jury and its impact on findings of remorse and rehabilitation; the treatment of the applicant’s diagnoses of attention deficit disorder (ADD) and substance abuse; the degree of concurrency between the State offence and Commonwealth offences; and inconsistency in fact finding between the two sentencing judges who sentenced the applicant and the co-offender.

The Court held, dismissing the appeal (per Button J, Garling and Wilson JJ agreeing):

As to ground 1

1. It is an unfortunate, but common occurrence in the criminal justice system that different sentencing judges impose sentence on different co-offenders: [63], [69] (Button J); [1] (Garling J); [74] (Wilson J).

2. In a situation where one co-offender has pleaded guilty and thereby obtains the advantage of engaging in negotiations with the prosecution, it is not unusual that differing findings of fact may be made. Separately, differing judges may form different impressions of the offence, and the role of the offender before them in its commission, as part of the process of evaluation and instinctive synthesis. Where these findings of fact with regard to an applicant are open on the evidence, an applicant cannot impugn this evaluative process: [64], [69] (Button J); [1] (Garling J); [74] (Wilson J).

Rae v R [2011] NSWCCA 211; PG v R [2017] NSWCCA 179; Tran v R (Cth) [2020] NSWCCA 310, applied.

3. A ground of appeal advanced by way of an asserted justifiable sense of grievance must necessarily be predicated on the starting point sentences of co-offenders. In this way, a court will appropriately be comparing “like for like”: [67] (Button J); [1] (Garling J); [74] (Wilson J).

As to ground 2

4. The straightforward question for an appellate court, when considering manifest excess, is simply whether, although no patent error may be identified, the sentence ultimately imposed upon an applicant is so far beyond the sentencing discretion legitimately reposed in the sentencing judge as to constitute error: [50] (Button J); [1] (Garling J); [74] (Wilson J).

5. Comparisons between approaches taken by different sentencing judges with regard to different co-offenders are not pertinent to this ground of appeal: [50] (Button J); [1] (Garling J); [74] (Wilson J).

As to ground 3

6. The criticism that undue weight was placed on the applicant’s lack of remorse or prospects of rehabilitation or both does not fit comfortably with the long-held principle that questions of weight are evaluative judgments for sentencing judges: [37] (Button J); [1] (Garling J); [74] (Wilson J).

House v The King (1936) 55 CLR 499; [1936] HCA 40, referred to.

7. The degree, if any, to which the applicant’s ADD and substance abuse would affect the sentence imposed, is merely an example of a discretionary question central to the evaluation process of a sentencing judge: [39] (Button J); [1] (Garling J); [74] (Wilson J).

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, referred to.

JUDGMENT

1. GARLING J: I agree with the orders proposed by Button J for the reasons which his Honour has expressed.

2. BUTTON J:

Introduction

Mr Matthew Teece (the applicant) was sentenced by Judge King SC on 11 December 2020 to a substantial sentence of imprisonment for three offences.

3. Two were Commonwealth offences of using a carriage service to menace, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for each was imprisonment for 3 years.

4. The third offence was contrary to s 33B(2) of the Crimes Act 1900 (NSW), and was an offence of possessing an offensive weapon in company with intent to commit an indictable offence; namely, intimidation (“the shared offence”). The maximum penalty for that offence was imprisonment for 15 years, and it bore no standard non-parole period.

5. The applicant received for the shared offence a head sentence of imprisonment for 5 years 6 months, with a non-parole period of 4 years. For the two Commonwealth offences, he received head sentences, fully concurrent with each other, of imprisonment for 1 year, with a recognisance release order after 8 months. The sentence for the shared offence commenced six months after the Commonwealth periods of concurrent incarceration, with the result that the applicant received a total head sentence of imprisonment for 6 years, with a total non-parole period of 4 years 6 months.

6. Almost exactly a year later, on 13 December 2021, Judge Wass SC sentenced Mr Matthew Yealland (the co-offender). He was sentenced for two offences, the first of which was that shared with the applicant, and was therefore brought pursuant to the same offence-creating provision with the same maximum penalty.

7. The second offence was using a firearm while the subject of a firearms prohibition order (FPO), an offence contrary to s 74 of the Firearms Act 1996 (NSW), and which carried a maximum penalty of imprisonment for five years. It was placed before her Honour on a certificate pursuant to s 166 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and was therefore subject to its jurisdictional limit in the Local Court of two years (see s 268(1A) and Table 2 pt 4 cl 7 of the Criminal Procedure Act 1986 (NSW)).

8. Ultimately, Judge Wass imposed an aggregate head sentence of imprisonment upon the co-offender of 3 years, with a non-parole period of 1 year 6 months. The indicative head sentence for the shared offence was imprisonment for 2 years 10 months, and the indicative head sentence for the FPO offence was imprisonment for 6 months.

9. The applicant sought leave to argue the following grounds of appeal, out of time:

1. “Sentencing proceedings miscarried in that the applicant has been left with a justifiable sense of grievance as a result of the sentence of Matthew Yealland, a co-accused.

2. The sentence imposed was manifestly excessive.

3. The learned judge erred in applying the principles of sentencing, in that he;

1. Placed undue weight on the applicant’s lack of remorse as an aggravating factor and it’s [sic] impact on his prospects of rehabilitation;

2. Failed to take into account the applicant’s long standing diagnosis of Attention Deficit Disorder and drug abuse as a subjective mitigating factor;

3. Finding that the applicant knew that the co-offender had loaded the gun in the absence of evidence as an aggravating factor.”

10. It was made clear in the hearing before this Court that the primary ground relied upon was erroneous disparity.

Aspects of the findings of Judge King about the applicant

11. There were shades of difference in the findings made between the two sentencing judges about the two offenders. Even so, there were some significant common themes. I turn first to discuss the findings of Judge King.

12. In short, in mid July 2019 the applicant came to believe that another man whom he knew through the drug milieu (the victim) owed him the relatively minor sum of $190. The applicant believed that the putative debtor was stalling in the repayment. At about 10 pm on 13 July 2019, the applicant and the co-offender attended the vicinity of the home of the victim in a suburb of Sydney. The co-offender possessed a loaded, shortened 12-gauge shotgun that he had concealed down his trousers. After a short conversation with a third party (who came to the property with the applicant and the co-offender), the victim came out of his home. The co-offender pointed the weapon at the chest of the victim from close range in a laneway behind the home of the latter, and thereafter fired off a round at his feet. The victim fled, and the two offenders decamped. That was the nub of the shared offence; clearly enough, the co-offender was the principal by way of being the person who actually possessed the firearm, and the applicant was said to be guilty of the shared offence by way of the principles of joint criminal enterprise.

13. About 48 hours later, the applicant left two messages on the phone of the victim that were frightening and threatening. Again, they were motivated by the asserted debt that had not been repaid.

14. Judge King found that the shared offence had been pre-planned. He assessed the applicant as having been its instigator and organiser. His Honour regarded it is a very serious incident of the offence in question.

15. Subjectively, the applicant had been subject to a Conditional Release Order when he committed the shared offence. He was 44 years of age at the time of imposition of sentence. He had offended against the criminal law by way of offences to do with driving, dishonesty, and prohibited drugs, and had been imprisoned on at least three occasions. He had been unemployed for about a decade by the time of imposition of sentence. It was said that he had suffered from attention deficit disorder (ADD) for many years. Although having enjoyed a privileged childhood, regrettably he had commenced to abuse prohibited drugs at the age of 15, and his life had been damaged significantly as a result. Although assisted by a psychologist, who provided a report that was tendered in the defence case, he had relapsed with regard to drugs more than once.

16. The applicant had pleaded guilty to the two Commonwealth offences; since the recorded phone messages were retrieved, that was really an acceptance of the inevitable. He had denied the shared offence at a trial by jury, which had concluded with a verdict of guilty. He continued to deny it at the time of the imposition of sentence. Judge King assessed the applicant as possessing very little insight, and possessing very guarded prospects of rehabilitation.

17. As I have said, a total head sentence of imprisonment for 6 years with a total non-parole period of 4 years 6 months was imposed upon the applicant. The ratio between the total non-parole period and the total head sentence is 75%. The component of that total sentence founded upon the shared offence was a head sentence of 5 years 6 months, with a non-parole period of 4 years. The ratio between the latter and the former is 72.7%.

Aspects of the findings of Judge Wass about the co-offender

18. Judge Wass did not recount the agreed facts tendered in the proceedings on sentence for the co-offender, but was content to incorporate them into her remarks on sentence. Her Honour found that, with regard to the shared offence, the co-offender had acted as “enforcer” for his longstanding friend, the applicant. Her Honour recounted the dispute about the $190, and found that the co-offender had acted out of misplaced loyalty. Judge Wass did not assess him to have been an instigator or organiser. Having said that, she found that his actions on the evening demonstrated that he well knew that the shotgun was loaded.

19. Her Honour emphasised that the certificate offence pertained to the same firearm as that used in the shared offence, and noted that it was important to avoid double-counting as result.

20. Her Honour was aware that the criminal record of the co-offender was adverse, and featured an offence of violence in 2014, for which the co-offender had received a significant sentence of imprisonment for 4 years 2 months with a non-parole period of 2 years 6 months, and which seemed to share some similarities with the matter under consideration.

21. It was noted that an early plea of guilty had been entered to the shared offence, with the result that a discount of 25% was afforded. There was a lesser discount of 10% for the FPO offence.

22. The learned sentencing judge assessed the co-offender as insightful and remorseful. Her Honour found that he represented a lower risk of reoffending. Her Honour also found that the co-offender very clearly needed mental health treatment. A history of possible oxygen deprivation at birth was referred to, as was a diagnosis of ADD from an early age. It was noted that the co-offender attempted suicide in October 2021, while on bail for the matter under discussion. It was also found that he had a longstanding problem with prohibited drugs, had developed hepatitis C, was trying to get help through the methadone program, and also suffered from problems with gambling and alcohol. It was said that the co-offender had a deal of insight into his dependencies. Also noted was that he had provided an apology to the Court. Overall, it was calculated that this man by then of thirty years of age regrettably had already spent something in the order of six years of his life in prison.

23. Judge Wass reflected on the question of parity at length. Her Honour gave detailed reasons for the difference in the sentence that was to be imposed for the shared offence upon the co-offender, and that which had been imposed upon the applicant, as follows. Her Honour noted that the applicant was the instigator, but the co-offender was the enforcer. Her Honour noted their shared criminal records, and periods in custody. She noted that the applicant had been subject to conditional liberty on the evening. The applicant, of course, had also pleaded not guilty to the shared offence, whereas the co-offender had pleaded guilty to it at the earliest opportunity. The applicant, even by the stage of his proceedings on sentence, was continuing to deny the offence, and demonstrated neither responsibility nor remorse. Judge Wass assessed the applicant as not having been entirely frank with the psychologist who prepared the report that was tendered before Judge King.

24. Her Honour also drew a distinction between the applicant, who was aged 43 at the time of the offence, and the relative youth of the co-offender, who was aged 27 at the same time. Judge Wass also noted the adverse fact that it seemed that the applicant was using prohibited drugs even up until imposition of sentence. Finally, Judge Wass noted the very guarded prospects of rehabilitation of the applicant, in contrast with her more optimistic assessment of the prospects of the co-offender. Her Honour also emphasised that, in her assessment, the co-offender had become a different person from the man who had committed such grave criminality on the evening of 13 July 2019. Finally, her Honour emphasised the undoubted roles that judicial mercy and leniency can appropriately play in encouraging reform in the right circumstances.

25. As I have said, an aggregate head sentence of 3 years with a non-parole period of 1 year 6 months was imposed. The indicative sentence for the shared offence was 2 years 10 months. The indicative sentence for the FPO offence was 6 months. The ratio between the non-parole period and the aggregate head sentence is 50%.

26. That concludes my summary of the objective and subjective findings made by the two sentencing judges about the two offenders. I turn now to discuss the submissions in support of each ground, and to provide my determinations of them. As was discussed at the hearing, it is convenient to discuss them a little out of order.

Ground three

27. To repeat, ground three was pressed in the following terms and contained three sub-grounds: “The learned judge erred in applying the principles of sentencing, in that he;

1. Placed undue weight on the applicant’s lack of remorse as an aggravating factor and it’s [sic] impact on his prospects of rehabilitation;

2. Failed to take into account the applicant’s long-standing diagnosis of Attention Deficit Disorder and drug abuse as a subjective mitigating factor;

3. Finding that the applicant knew that the co-offender had loaded the gun in the absence of evidence as an aggravating factor.”

Written and oral submissions of the applicant

28. Counsel for the applicant provided succinct written submissions addressing the three sub-grounds of ground three.

29. With regard to (1), issue was taken with the use by Judge King of the applicant’s decision to take the matter to contested hearing, and lack of demonstrable remorse as an asserted aggravating factor.

30. Regarding (2), it was submitted that his Honour did not give any weight to the subjective circumstances of the applicant generally, and, I infer, the diagnosis of ADD particularly.

31. Lastly and with reference to (3), the case was put forward that the asserted positive finding by Judge King that the applicant had knowledge that the firearm was loaded was not supported by the evidence tendered at trial or on sentence.

32. In oral submissions, counsel emphasised the need to keep remorse and rehabilitation distinct in the evaluative process of sentencing. It was said that Judge King had erroneously conflated the applicant’s rehabilitative prospects with the lack of remorse based upon his continuing denial of the offence, notwithstanding the verdict of guilty of the jury.

33. While it was accepted that a sentencing assessment report placed in evidence noted the applicant as being a medium risk of reoffending, counsel submitted that the sentencing judge failed to consider properly evidence of the applicant having attended drug rehabilitation.

34. With respect to (2), it was contended that the sentencing judge’s asserted dismissal of the applicant’s ADD due to it not being a “serious psychological illness” amounted to an error pursuant to Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, in which it was said that psychiatric illnesses and mental health conditions need not reach that threshold to be a mitigating factor. Counsel conceded, however, that the sentencing judge was not explicitly asked to consider the applicant’s ADD or longstanding drug addiction as causally related to the offending in such a manner as to affect the applicant’s moral culpability.

28. No oral submissions were made in support of (3).

Determination of ground 3

36. In my respectful opinion, this ground—which as I have said was subsidiary to the primary assertion of erroneous disparity in any event – can be dealt with concisely.

37. The submission that “undue weight” was given to the factor of lack of remorse and to its various adverse consequences does not find a comfortable home within House v the King (1936) 55 CLR 499; [1936] HCA 40. As this Court has emphasised many times, questions of weight are evaluative judgments for sentencing judges, and it will be difficult, to the point of near impossibility, for such a ground to succeed. A better way to conceptualise such a ground is either to impugn a finding of fact as not being reasonably open, or to impugn the sentence actually imposed as betraying latent error.

38. It is true that Judge King took a dim view of the approach of the applicant to what he had done. But the sentencing judge was well entitled to do so, as well as of the entire context of all that had gone wrong in the life of Mr Teece, and whether one might reasonably expect things to improve in the future. And in any event, although it is true that remorse and insight are not the same as prospects of rehabilitation (as to which, see Patel v R [2022] NSWCCA 93 at [40]) there is surely a powerful interrelationship between them.

39. As for the second basis of the ground, the sentencing judge expressly referred to the ADD from which it was said the applicant had suffered from an early age (Appeal Book 29, hereafter AB 29). His Honour also referred explicitly to the drug abuse of the applicant, and the damaging criminogenic role that it has played in his life. The complaint here really is that, having taken those factors into account, the ultimate sentence did not reflect them in a way that favoured the applicant. But that is something that must be considered under the rubric of the question of manifest excess, not by way of a separate ground of appeal here. And in any event, with regard to ADD, Judge King recounted the fact that a psychological report tendered on behalf of the applicant found “no evidence of any serious psychiatric disorder” and that “his thoughts and content of processing were deemed normal and he was found to be cognitively intact” (AB 31). Finally, it is well established that the degree to which an emotional, psychological, or psychiatric condition reduces moral culpability and the sentence ultimately to be imposed is another evaluative judgment. Taken as a whole, the approach of the sentencing judge to these questions does not reveal error.

40. As for drug abuse, it has been established for over two decades, since the delivery of the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, that, except in most exceptional circumstances, drug addiction does not constitute a mitigating feature on sentence.

41. In my opinion, (2) should fail, but the submissions made in support of it can be reflected upon in the context of ground two.

42. Finally, (3) is based on the following portion of the remarks on sentence of Judge King. Referring to the firearm that was discharged that evening, his Honour, said at AB 26 in the Remarks on Sentence:

“There is no evidence that he [the applicant] was aware that it was loaded and there is no evidence as to who in fact supplied the shotgun wielded by the co-offender, or as to whether the co-offender was aware it was loaded. It defies common sense, however, to expect that either the co-offender or the offender did not make themselves aware as to whether it was loaded or not. The injuries received by the victim indicate that the discharge was very close to him.” (emphasis added)

43. It is true that the penultimate sentence is, at first blush, a little ambiguous. But it is tolerably clear from the preceding sentences that what the sentencing judge was saying is that one or other of the men, the applicant or the co-offender, was aware of the fact that the shotgun was indeed loaded. On a sensible reading, that sentence is not asserting to the criminal standard that the applicant himself must have known that the shotgun was loaded. That means that the assertion that a finding of fact was made by Judge King that was not reasonably open must, in my opinion, fail.

44. I would dismiss ground three on all of its bases.

Ground two

45. The applicant’s second ground of appeal was “the sentence imposed was manifestly excessive.”

Written and oral submissions of the applicant

46. In written submissions, counsel for the applicant contended that the sentence imposed by Judge King was unreasonable and plainly unjust, directing attention to the asserted errors of fact in ground three, as well as the disparity in the manner in which the two sentencing judges dealt with the two offenders (which will be dealt with separately below).

47. Submissions before the Court followed largely the same structure, with counsel emphasising various alleged erroneous findings of fact and inconsistencies between the two sentences imposed on the applicant and the co-offender, in order to attack the applicant’s sentence as manifestly excessive.

48. In particular, emphasis was placed on the different structural approaches adopted by the two sentencing judges. It was noted that Judge Wass, regarding the co-offender, imposed an aggregate sentence for the shared offence and the FPO offence, and made the sentences almost completely notionally concurrent. That is to say, for the offence that was not shared, the aggregate head sentence was, one may infer, notionally increased by only two months.

49. Judge King, on the other hand, structured the sentences such that the sentence for the shared offence commenced six months after the commencement of the aggregate sentence of one year for the two Commonwealth offences. The failure of the sentencing judge in the applicant’s matter to sentence in a similar way to Judge Wass – that is, almost completely concurrently – was said to play its part in a sentence that is manifestly excessive.

Determination of ground two

50. The straightforward question for this Court is simply whether, although no patent error may be identified, the sentence ultimately imposed upon the applicant is so far beyond the sentencing discretion legitimately reposed in Judge King as to constitute an inherent error in outcome. Submissions that compare the structural approach taken by the judge who sentenced the applicant with that taken by the second judge who sentenced the co-offender must be reflected upon in the context of erroneous disparity, not manifest excess.

51. Reflecting on that question, and repeating myself a little, the applicant was the instigator and organiser of a planned, brazen act of intimidation with a firearm. As it happened, the weapon was fired in close proximity to the victim. That was no doubt terrifying, and extremely dangerous. There was neither utilitarian discount nor remorse available. After the shared offence, the applicant continued to offend in a frightening way. Subjectively, the past, present, and future with which the sentencing judge was confronted were all adverse. In light of the maximum penalty available for the shared offence, no aspect of the total sentence or any of its components can be said to be beyond the discretion reposed in Judge King.

52. I would not uphold ground two.

Ground one

53. To repeat for the convenience of the reader, ground one was articulated as “Sentencing proceedings miscarried in that the applicant has been left with a justifiable sense of grievance as a result of the sentence of Matthew Yealland, a co-accused.”

Written and oral submissions of the applicant

54. As I have indicated, the submissions about the three grounds featured a degree of overlap between them, despite their conceptual differences (I do not say that critically).

55. It was contended in written submissions that the primary distinguishing factors between the applicant and the co-offender were insufficient to justify the different sentences imposed or indicated for the shared offence. These factors were said to be: first, that the applicant was on conditional liberty at the time of the offending, and secondly, that he took the matter to trial.

56. Other factors said to feed into the establishment of erroneous disparity included the significant role the co-offender played in the offending – being the principal who actually carried and discharged the firearm; the similarities in the subjective cases of the two offenders; their criminal histories – noting that that of the co-offender featured more serious violence; and the assessment of the co-offender in a sentencing assessment report placed before Judge Wass as having a high risk of reoffending.

57. These factors were expanded upon in oral submissions.

58. Facts above and beyond those discussed above in ground three were identified as being inconsistent between the two remarks on sentences. Two such facts were that the offending was committed in the home of the victim, and was planned – both of which were identified as an aggravating factor for the applicant, but not for the co-offender. While it was conceded that different facts may be found by different sentencing judges, counsel pressed the submission that there must be some consistency in the findings made about the roles of co-offenders engaged in a joint criminal enterprise.

59. Further to the submission in [33]-[34], counsel said that, in fact, the applicant had the better subjective case with respect to rehabilitation and remorse – being assessed at a lower risk of reoffending, and having engaged in positive, albeit unsuccessful, rehabilitation for his drug addiction.

60. The similarities in the criminal records of the two co-offenders were pointed to as indicating the erroneous disparity in their sentences. In fact, it was the co-offender who possessed the more significant record for violence, despite the applicant’s longer criminal record in general.

61. Once again, counsel relied on the treatment of the applicant’s psychological conditions, not just under ground three but also in support of ground one. It was noted that the psychological conditions of the two offenders were largely shared – being ADD and drug abuse. And yet the distinct approaches of the two sentencing judges to this subjective material meant that a far harsher sentence had been imposed upon the applicant.

Determination of ground one

62. The straightforward question that needs to be answered when the ground is erroneous disparity is whether, in comparing their sentence with that imposed upon a co-offender, and bearing in mind all relevant objective and subjective features of the two of them, the applicant is entitled to experience an objectively justifiable sense of grievance: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46; WM v R [2020] NSWCCA 96.

63. In that regard, it is important that this was a case in which two sentencing judges sentenced two separate offenders. As is often the case when that occurs, differing findings of fact were made, perhaps through negotiation with the prosecution on different occasions, or perhaps through differing judges forming different impressions of the offence, and the role of the offender before them in its commission, as part of the process of evaluation and instinctive synthesis. That is a regrettable but commonly encountered phenomenon in the criminal justice system.

64. In my opinion, in mounting a parity argument in such circumstances, an applicant is simply “stuck” with the contrasting findings of fact that have been made, especially those made in favour of a co-offender that, self-evidently, cannot be impugned on appeal. All that this Court can do is reflect upon the different findings, even if inconsistent about objective matters, and apply the test for erroneous disparity to that context: see Rae v R [2011] NSWCCA 211 at [54]; PG v R [2017] NSWCCA 179 at [24]; Tran v R (Cth) [2020] NSWCCA 310 at [37].

65. Separately, it must be recalled that the indicative sentence provided for the shared offence in the case of the co-offender was reduced by 25%. With the discount removed, the indicative head sentence would have been approximately 3 years 9 months. It is to be recalled that the head sentence imposed for that shared offence on the applicant – which attracted, of course, no discount whatsoever, because a trial had been unsuccessfully run – was imprisonment for 5 years 6 months.

66. In other words, the difference between the two head sentence starting points for the shared offence was 21 months or 1 year 9 months.

67. Once one is comparing “like with like” by way of that necessary calculation, the divergence between the two head sentences is not insignificant; even so, it is hardly extreme.

68. Separately, reflecting upon the sentences imposed upon or indicated for each offender for their other offence or offences, and questions of actual and notional cumulation and concurrence, it can be seen that the applicant received an extension of incarceration of only 6 months for two serious offences of menacing by telephone. That cannot be thought of as supporting erroneous disparity, when one reflects upon the admittedly very slight notional cumulation of 2 months that the indicative sentence of 6 months for the FPO offence indirectly occasioned to the co-offender, especially since it was the same firearm that formed the basis of both offences committed by him.

69. Finally, there can be no doubt that evaluative judgments needed to be made about these two men, and that a rather negative and pessimistic view was taken of the applicant, and a rather positive and optimistic one of the co-offender. But whether sentence is imposed by one judge or more than one judge on two or more co-offenders that is an inevitable consequence of the fact that sentencing in Australia is conducted by human beings called upon to engage in instinctive synthesis, and not by tables or algorithms whereby one simplistically adds or subtracts established positive and negative features, arriving at a rigid mechanistic outcome.

70. And in any event, when one reflects upon the significant contrasts between the two men – the applicant the instigator and aggrieved alleged creditor, the co-offender the “muscle”; the applicant aged 43, the co-offender aged 27; the applicant continuing his self-centred behaviour by way of the menacing phone calls, the co-offender motivated by misplaced loyalty to an older man; the applicant recalcitrant, the co-offender remorseful; the applicant obdurate, the co-offender very changed indeed by the time of imposition of sentence; the future of one man basically bleak, and the future of the other showing cause for hope – the differentiation of 1 year 9 months in the starting points of the shared offence was, in my respectful opinion, well open. Nor, in my opinion, does any other attribute of either sentence under comparison pass the test for erroneous disparity.

71. In short, on analysis I do not consider that the applicant is entitled to experience a justifiable sense of grievance on any basis in comparing his sentencing outcome with that of the co-offender.

72. I would not uphold this ground of appeal either.

Orders

73. Because I believe that each ground, despite its failure, was reasonably arguable, I propose the following orders:

1. Leave to appeal, including out of time, granted.

2. Appeal dismissed.

74. WILSON J: I agree with Button J.

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Decision last updated: 15 December 2022