Tuivaga v R

[2015] NSWCCA 145

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Tuivaga v R [2015] NSWCCA 145
Hearing dates:	1 May 2015
Decision date:	17 June 2015
Before:	Hoeben CJ at CL at [1] R A Hulme J at [63] Wilson J at [64]
Decision:	(1)Leave to appeal against sentence granted. (2)Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – manslaughter – applicant part of a group who attacked victim – death caused by a firearm, the presence of which was unknown to the applicant – relationship between sentence imposed for manslaughter and pre-sentence custody – principle of totality – whether error of fact on part of sentencing judge – whether finding of special circumstances reflected in sentence – whether sentence manifestly excessive – application of parity principle – appeal dismissed.
Cases Cited:	Corda v R [2014] NSWCCA 281 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 England v R; Phanith v R [2009] NSWCCA 274 House v R [1936] HCA 40; 55 CLR 499 Jimmy v R [2010] NSWCCA 60; 269 ALR 115 Mammone v R [2013] NSWCCA 95 Postiglione v R [1997] HCA 26; 189 CLR 295 R v MMK [2006] NSWCCA 272; 164 A Crim R 481 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Tuivaga [2013] NSWSC 1626 Stoeski v R [2014] NSWCCA 161 Tan v R [2014] NSWCCA 96
Category:	Principal judgment
Parties:	Kirk Daniel Tuivaga – Applicant Regina – Respondent Crown
Representation:	Counsel: Ms H Cox – Applicant Ms T Smith – Respondent Crown Solicitors: Nabilah Reza – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2010/341540
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Tuivaga [2013] NSWSC 1626 Date of Decision: 11 November 2013 Before: Price J File Number(s): 2010/341540

Judgment

1. HOEBEN CJ at CL:

OFFENCE AND SENTENCE

The applicant pleaded guilty in the Supreme Court to manslaughter the day before his trial was fixed to commence for the murder of Wallace Ruiz-Sanchez. The Crown accepted the plea to manslaughter in full satisfaction of the indictment. The maximum penalty for this offence is imprisonment for 25 years. There is no standard non-parole period.

2. On 11 November 2013 Price J sentenced the applicant to imprisonment with a non-parole period of 4 years and 6 months, to date from 15 June 2013 and to expire 14 December 2017, with an additional term of 2 years and 23 days to expire on 6 January 2020.

3. The applicant seeks leave to appeal from that sentence on the following grounds:

Ground 1 – His Honour erred in the application of the principles of totality.

Ground 2 – His Honour erred in inadequately reducing the non-parole period to reflect the finding of special circumstances.

Ground 3 – The applicant has a legitimate sense of grievance when comparing his sentence with that of his co-offender, Barnes.

Ground 4 – The sentence imposed is manifestly excessive.

FACTUAL BACKGROUND

4. On 12 October 2010 the applicant was at his home, having finished work for the day, with the co-offenders Karl Brown, Brad Trawin-Hadfield, Samuel Lockett and Richard Barnes. Also at home was the applicant’s de facto wife and their children. All five offenders left the home in a motor vehicle belonging to his de facto wife. The group went to a location in Mount Pritchard where the applicant became aware that Brown intended to confront the deceased, who lived next door, over money and text messages sent to Brown by the deceased. The five offenders left the house together. The applicant was aware that a physical confrontation with the deceased was a real possibility.

5. The applicant became involved in the physical confrontation. While so involved, he was grabbed by the deceased and he pushed the deceased. The applicant had his head down in the fight when he heard a loud bang. All the offenders then ran to the motor vehicle at which time one of the offenders shouted at Lockett saying “Why the fuck did you do that?”. One of the offenders then shouted “He shot him”. The applicant noticed that he had pellet wounds from the shot. The applicant was arrested at 8.10pm when he was in the same vehicle. He was taken to hospital where he was treated for his gunshot wounds.

6. The applicant agreed that he was a party to a joint criminal enterprise to assault the deceased and that he participated by becoming involved in the fight. He did not foresee either death or grievous bodily harm as possible consequences, or that another party to the agreement would employ the violence applied by Lockett, or it being achieved by the use of a gun.

7. The applicant agreed with the four others to assault the deceased, with whom the applicant had no disagreement. When he left the next door house, he was aware that a physical confrontation with the deceased was a real possibility. Although he did not know that a firearm was in the possession of his co-offenders, he realised that the deceased was being exposed to an appreciable risk of serious injury. He joined in the attack upon the deceased who was outnumbered. He pushed the deceased and continued his involvement in the fight until the shotgun discharged. His close proximity to the deceased at that time is evidenced by the pellet wounds he suffered.

SENTENCE PROCEEDINGS

8. Having made the above findings of fact, the primary judge identified the following matters which mitigated the objective seriousness of the offence. The agreement to assault the deceased was not entered into until shortly before he was attacked. The applicant did not foresee that any of his co-offenders would employ the degree of violence used by Lockett, or that the degree of violence would be achieved by the use of any type of weapon, or that death or grievous bodily harm was a possible consequence of the joint criminal enterprise.

9. Although the plea was late, his Honour allowed a discount for its utilitarian value of 12.5 percent.

10. The applicant did not give evidence during the sentence proceedings. This required the primary judge to assess his subjective case by reference to general background information and a report from a psychologist, Mr Watson-Munro.

11. The applicant was educated at Toongabbie East Primary School and Macquarie Boys Technical High School where he completed his HSC at the age of 17. He then became involved in labouring and factory work for several years and in other employment where he remained for about four years before his dismissal. He then returned to labouring work. He was aged 29 at the time of the offence and was 32 at the time of sentence.

12. He had a previous criminal record. There was a conviction at the Parramatta District Court on 27 May 2011 for one count of reckless wounding while in company on 4 October 2009. The agreed facts for that offence disclosed serious violence by the applicant. His record also revealed driving offences of a serious nature that were committed on 27 December 2011. The particular significance of these offences is that the applicant was on bail for the deceased’s murder when they were committed.

13. Because of the applicant’s previous offence of violence, his Honour gave more weight to personal deterrence and the protection of society than otherwise would have been the case. His Honour took into account that at the time of the manslaughter, the applicant was on bail for the offence of reckless wounding while in company, and that it was an aggravating factor that the offence was committed while he was at conditional liberty.

14. The primary judge noted that the applicant had been in a de facto relationship for nine years at the time of sentence and had three daughters aged seven, three and two. His fiancé was seriously ill with cervical cancer and was presently undergoing chemotherapy. His Honour took into account those difficult personal circumstances, although he appreciated that they were not “exceptional” so as to be taken into account as a mitigating consideration.

15. His Honour found that by his plea of guilty the applicant accepted responsibility for the part that he played in the death of the deceased and that his plea indicated contrition for the offending. His Honour took the plea into account as reflecting his remorse and that Mr Watson-Munro reported that the applicant expressed deep remorse for what had occurred. His Honour made a finding that the applicant was remorseful and took that into account as a mitigating factor.

16. His Honour was not prepared to make a positive finding that the applicant had good prospects of rehabilitation. This was because he had engaged in serious offending while subject to bail. His Honour found that the applicant’s disregard on two occasions for his conditional liberty detracted from an optimistic view being taken concerning rehabilitation. His Honour concluded that he was unable to make a positive finding that the applicant was unlikely to re-offend, and that he had good prospects of rehabilitation. His Honour considered that his prospects of rehabilitation remained uncertain.

17. His Honour had regard to what Mr Watson-Munro said about the applicant’s conditions of incarceration. He had been a segregation prisoner for the entirety of his confinement. He noted that the applicant was given a difficult time by Corrective Services personnel and by other prisoners. At the time of the report, the applicant had been locked in his cell for 23 hours a day. The applicant reported to him that he had no friends in gaol.

18. Mr Watson-Munro made a formal diagnosis of a depressive illness, which was aggravated by the applicant’s conditions of imprisonment. At the time of examination, Mr Watson-Munro found that the applicant was still suffering from “severe depression” with a particular concern referable to active suicidal ideation. The psychologist opined that the applicant required treatment in addition to the psychotropic medication which he was taking and that such treatment should involve cognitive behavioural therapy.

19. There was other material which confirmed that the applicant was held in segregation, had been the subject of a non-association order and was locked in his cell for 23 hours a day. As a result of the conditions of his incarceration, the applicant had little contact with other inmates and was unable to access programs or courses. His ability to exercise and make telephone calls was restricted. His Honour accepted that it was more likely than not that the applicant would continue to serve his sentence under these conditions which were more difficult than the custodial conditions of the general prison population.

20. The primary judge noted that the applicant did not submit that his mental condition was relevant to the commission of the offence but that it made a custodial sentence more burdensome for him. His Honour accepted that submission and that the conditions of his custody would exacerbate his depression. He found that the hardship that the applicant experienced in custody was a matter in mitigation. His Honour was not prepared to find that this reduced the weight to be given to general deterrence because his mental condition had no causal relationship with the commission of the offence.

21. The primary judge was conscious of the principle of parity and referred to it in the sentence judgment as follows:

“5   … However, the parity principle is of importance when sentencing each of them and is not confined to sentences imposed upon co-offenders who have committed the same crime. It can also be applied to sentences imposed upon persons who are co-offenders by virtue of having been engaged in the same criminal enterprise, regardless of the charges that have actually been laid against them: Green v The Queen [2011] HCA 49; 244 CLR 462; Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540 at [136]. However, the significant practical difficulties with this approach are well recognised: Jimmy at [203]; Green at [30].

6 In my view, there is little utility in considering parity with Lockett and Brown who have been found guilty of murder. The roles that they played in the death of the deceased were much greater than the offenders who have pleaded guilty to manslaughter and there is a deal of difference between the maximum penalties for murder and for manslaughter. The question of parity is considered at [25] below. I have firmly borne in mind the principle of proportionality when sentencing all of the offenders: R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [15].

…

25   Both Mr Crown and Mr Brady submitted that when considering the parity principle, the culpability of the offender and Barnes was the same. Although the offender became physically involved in the attack upon the deceased and Barnes did not, the offender was not aware that a firearm was in the possession of his co-offenders, whereas Barnes with that knowledge did not desist from participating in the agreement to assault the deceased and remained ready and willing to assist. I assess them as being equally culpable for the offence. I turn to their subjective cases. The offender is about two years older than Barnes but Barnes' prior criminal offending is marginally more serious than the offender. Barnes, however, is not required to serve his sentence in protection nor does he have a mental condition. In my opinion, the hard custodial conditions under which the offender is to serve his sentence justify a lesser sentence than that to be imposed on Barnes. When sentencing Barnes, I discussed the question of the offender's parity with Barnes at [21] of the sentencing remarks: R v Barnes NSWSC [2013] 1627.”

22. There was an issue before the primary judge as to the commencement date of the applicant’s sentence. His Honour reviewed the issue as follows:

“28   During sentencing submissions, there was some discussion about the commencement date of the sentence. It was initially contended the offender's period of time in custody that was solely referable to the manslaughter was 129 days, but this submission overlooked the offender's sentence for reckless wounding of 2 years imprisonment that commenced on 15 October 2010 and expired on 14 October 2012 with a non-parole period of 12 months expiring on 14 October 2011. The offender was also sentenced on 1 March 2012 in the Parramatta Local Court for "driving dangerously" to imprisonment for 14 months 11 days commencing on 27 September 2012 and expiring on 7 December 2013 with a non-parole period of 9 months commencing on 27 September 2012 and expiring on 26 June 2013. The earliest date that the offender was to be released on parole was 26 June 2013. The offender was arrested for the deceased's murder on 4 October 2010 and there are 11 days prior to the commencement of the sentence for reckless wounding that are solely referable to the manslaughter.

29   As the offender has served sentences for reckless wounding and driving offences since he went into custody, it is necessary to consider the principle of totality: Mill v The Queen [1988] HCA 70; 166 CLR 59. The offences for which the offender was sentenced in the District Court and Local Court and the offence of manslaughter are discrete and independent acts of criminality. This does not, however, finally determine whether the present sentence ought to be imposed concurrently, partially concurrently or consecutively: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 per Howie J at [27]. In the present case, I consider that it is appropriate to commence the sentence on 15 June 2013 being the date that the offender would have been released on parole less the 11 days in custody that are solely referable to the present offence.

30   I find special circumstances exist that justify a variation in the statutory ratio between the non-parole period and the balance of term of the sentence being his need for appropriate psychological treatment upon release. I have determined that a non-parole period of 4 years 6 months is the minimum period that the offender must spend in custody in order to appropriately reflect the criminality for the offence: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 per Spigelman CJ at [63].”

THE APPEAL

Ground 1 – His Honour erred in the application of the principles of totality.

23. The applicant submitted that his Honour had made a factual error as to the period of time that the applicant had been imprisoned before the imposition of the manslaughter sentence. The applicant submitted that his Honour had overlooked the period from 28 December 2011 to 27 September 2012 when he was in custody serving sentences. This nine month period was for charges of driving while disqualified and dangerous driving. The applicant submitted that the effect of overlooking that period of imprisonment was that the applicant had been in continuous custody since 28 December 2011, not 27 September 2012, to which his Honour referred when reviewing the applicant’s previous custody. The applicant submitted that this oversight must have impacted on the question of the commencement date of the sentence because as his Honour stated, the issue of totality was relevant.

24. In support of the submission, the applicant relied upon R v MMK [2006] NSWCCA 272; 164 A Crim R 481 where the Court said:

“11    One of the limiting principles that constrains a sentencing court in seeking to promote the purposes of punishment is the principle of proportionality. Another is the, not-unrelated, principle of totality and it is this principle that operated in the present case. It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616.

…

13   In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman [2002] NSWCCA 516; (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality.”

25. The applicant submitted that the totality of sentence needed to be informed by accurate information as to the actual incarceration that an offender is subject to. In this instance his Honour did not take into account the two offences of drive whilst disqualified and drive vehicle recklessly or in a manner dangerous for which he also received sentences. Accordingly, his Honour’s assessment of issues of totality and the concurrence and accumulation of sentence were flawed.

26. The applicant submitted that his Honour’s application of the principles of totality to the question of the commencement date of the sentence was infected with error because he failed to take into account that the applicant had spent the period from 28 December 2011 to 27 September 2012, an extra 9 months, in continuous custody.

Consideration

27. There is a preliminary difficulty with this submission in that it is obvious from [28] – [29] of his Honour’s sentence judgment that his Honour was conscious of the principles of totality and proportionality and was also aware of the substantial period of pre-sentence custody which the applicant had served. Being aware of all of those matters, his Honour determined not to backdate the commencement date of the manslaughter sentence beyond 15 June 2013. In that regard, the applicant accepted that the choice of the commencement date for the manslaughter sentence was a discretionary matter for the primary judge.

27. Apart from that difficulty, it is not at all clear that the “error” sought to be relied upon by the applicant did in fact occur. It may well be that his Honour did not specifically refer to each period of imprisonment at [28], but he was clearly aware that the applicant had been in continuous custody since 28 December 2011. He was specifically told this by counsel for the applicant and it was readily apparent from the applicant’s custodial history which was tendered in the proceedings. The “sentences summary” on page 1 of that document made that clear.

28. What his Honour was doing at [28] is clear when one looks at the submissions which had been made on behalf of the applicant by his counsel in the sentence proceedings. By reference to various periods of custody, which he submitted were referable to the manslaughter matter alone, counsel for the applicant submitted to his Honour that the total period in custody referable to the manslaughter offence was 1 year and 129 days. On that basis, counsel for the applicant contended that the manslaughter sentence should be backdated to 11 June 2012 (i.e. the date of his submission 18.10.13 less the 1 year and 129 days). The point that his Honour was making at [28] was that this calculation was not correct since the initial period that he had included in his calculation (i.e. from 4.10.2010 to 14.10.2011) was not referable solely to the manslaughter since the applicant was serving a non-parole period for the wounding offence. It followed that the only period solely referable to the manslaughter was the initial period of 11 days after his arrest and the period since 26 June 2013 when the non-parole period for the driving matters expired.

29. If there were any doubt that his Honour was well aware that the applicant had been in custody from 27 December 2011 it is resolved by what his Honour said at [13]:

“… His record also reveals driving offences of a serious nature that were committed on 27 December 2011. The particular significance of these offences is that the offender was on bail for the deceased's murder when they were committed.”

31. Moreover, at [29] his Honour went on to state that as the applicant had served sentences for reckless wounding and driving offences since he went into custody, it was necessary to consider the principle of totality. His Honour was clearly aware that the driving offences and malicious wounding offence were discrete and independent acts of criminality from the manslaughter.

32. Being aware of those matters, it is clear that his Honour intended to entirely accumulate the manslaughter sentence on the driving matters, except for the eleven days of pre-sentence custody. He gave express reasons for so doing at [29]. It was open to his Honour to do this in the exercise of his discretion. For the applicant to succeed on this ground, he needed to show that it was not open to his Honour to exercise the discretion in the way in which he did. Unless he could point to a specific error (which he could not) it was necessary for him to establish that the discretion was wrongly exercised on a House v R [1936] HCA 40; 55 CLR 499 ground. This he has not done.

33. This ground of appeal has not been made out.

Ground 2 – His Honour erred in inadequately reducing the non-parole period to reflect the finding of special circumstances.

34. The applicant submitted that the aggregate period to be served by him, taking into account the earlier sentences for the “driving matters”, amounted to 8 years 23 days with a non-parole period of 6 years. Rounding the sentence down to 8 years, the total non-parole period amounted to exactly 75 percent of the overall term. Accordingly, his Honour’s sentence failed to achieve his stated aim, namely a variation in the statutory ratio to allow him a longer period of parole supervision for psychological treatment.

35. The applicant submitted that at no point in his sentence judgment did his Honour refer to the impact of the overall non-parole period on the period which he had specified for parole supervision. The applicant submitted that this important issue was not given consideration. He submitted that because his Honour had found special circumstances, arising from his need for appropriate psychological treatment upon release, it was important that there be a real reduction in the proportion of time he was to spend in custody as opposed to the period he was to spend on parole supervision.

Consideration

36. It is clear that the basis for his Honour’s finding that there should be a variation in the statutory ratio between the non-parole period and the balance of term for the manslaughter offence was the need for appropriate psychological treatment. If one looks at the manslaughter sentence alone, the finding of special circumstances saw a reduction in the statutory ratio from 75 percent to 68 percent.

37. His Honour also expressly stated that the non-parole period of 4½ years was the minimum period the applicant must spend in custody in order to appropriately reflect the criminality of the manslaughter offence. The effect of the applicant’s submission is that a finding of special circumstances, on the basis explained by his Honour, required his Honour to take into account not only a reduction in the statutory ratio for the manslaughter offence, but a reduction in the statutory ratio having regard to the total period continuously spent or to be spent in custody.

38. For the reasons already given in respect of Ground of Appeal 1, his Honour was clearly aware of the period of continuous custody served by the applicant. He was also clearly aware that he was accumulating the manslaughter sentence almost fully on those previous periods of incarceration. It is against that background that he specifically found that the non-parole period of 4 years and 6 months was the “minimum period” that the applicant should spend in custody to appropriately reflect the criminality of the manslaughter offence. In those circumstances, it was not necessary for his Honour to refer to the impact of the combined periods in custody on the manslaughter parole period. It follows that his Honour did not err in not doing so.

39. A similar situation arose in Stoeski v R [2014] NSWCCA 161 where Adamson J (with whom Bellew J and I agreed) said that a failure to specifically refer to such a calculation does not necessarily establish error:

“53   Furthermore no inference can be drawn from the fact that the sentencing judge did not perform a calculation to ascertain what proportion the sum of the non-parole period and the period already spent in custody bore to the total term of the sentence. Such a calculation would be irrelevant. Nor is such a calculation required by s 44(2) of the Act. His Honour, having found special circumstances and stipulated the ratio between the non-parole period to the total term to be 70%, applied the ratio to the aggregate sentence his Honour imposed …”

40. It is not only implicit in what his Honour said but express that he regarded 4 years and 6 months as the minimum period the applicant should spend in custody in order to appropriately reflect the criminality of the offence. This is in line with the observation of Spigelman CJ (with whom Mason P, Grove and Sully JJ and Newman AJ agreed) in R v Simpson [2001] NSWCCA 534; 53 NSWLR 704:

“61    The statutory proportion constitutes a `fetter' or `constraint' (to use the words of the Court in GDR, quoted above) on the exercise of what would otherwise be an unfettered and unconstrained discretion. It does not, however, alter the discretionary nature of the judgment for which the statute provides in s44(1)(b) of the 1999 Act, requiring the Court to fix a non-parole period, subject to s45 of the Act.

62    The issues of law that may arise are the same as those which arise on appeal from other discretionary decisions, including whether or not, on the facts of a particular case, a specific fact, matter or circumstance is, either alone or in combination with other facts, matters and circumstances, capable of constituting "special circumstances" of the requisite character, i.e. that it is capable of justifying a variation in the statutory proportion which the legislature has enacted.

63    More significantly, there is the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence.”

41. This ground of appeal has not been made out.

Ground 4 – The sentence imposed is manifestly excessive.

42. It is appropriate to deal with this ground before considering the parity ground since a complaint of disparity accepts that the sentence is otherwise appropriate (England v R; Phanith v R [2009] NSWCCA 274 per Howie J (with whom McClellan CJ at CL and Fullerton J agreed) at [22]; Jimmy v R [2010] NSWCCA 60; 269 ALR 115 at [251]; Corda v R [2014] NSWCCA 281 at [59]).

43. The applicant submitted that given the difficult conditions of custody experienced by him and to be experienced by him, together with his mental illness, a sentence of 6 years 6 months and 23 days with a non-parole period of 4 years and 6 months was manifestly excessive.

Consideration

44. As has been pointed out by this Court on a number of occasions, the task of an applicant relying upon such a ground is a difficult one in that what has to be established is that the sentence was “unreasonable or plainly unjust” (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321).

45. His Honour referred specifically to the applicant’s conditions of custody and to his mental illness. He specifically found that the applicant’s sentence would weigh more heavily upon him as a consequence and that the conditions in custody would exacerbate his depression. He expressly took these matters into account as part of the hardship that the applicant would experience in custody as a matter of mitigation.

46. What his Honour was also required to do was be appropriately mindful of the value that the community placed upon the preservation of human life and the need to denounce the applicant’s conduct by a sentence appropriate to the circumstances of the offence. What cannot be ignored is that the applicant joined in a cowardly attack on the deceased, who was seriously outnumbered, in circumstances where he realised that the deceased was exposed to an appreciable risk of serious injury. At the time the applicant was on bail for the offence of reckless wounding while in company.

47. The applicant has not demonstrated that in all the circumstances the sentence imposed by his Honour was unreasonable or plainly unjust.

48. This ground of appeal has not been made out.

Ground 3 – The applicant has a legitimate sense of grievance when comparing his sentence with that of his co-offender, Barnes.

49. The applicant submitted that the parity principle applied when his sentence was compared with that of his co-offender, Barnes, and relied upon the statement of principle in Postiglione v R [1997] HCA 26; 189 CLR 295 where Dawson and Gaudron JJ said at 310:

“Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.”

50. The applicant submitted that his Honour breached the parity principle, even though the sentence imposed on Barnes of imprisonment with a non-parole period of 5 years and a balance of term of 2 years was longer than his. The applicant submitted that the reduction of 6 months in the sentence imposed upon him, as compared with that imposed on Barnes, failed to properly reflect the extra hardship that he would endure during his sentence from both the harsh custodial conditions and because of the mental condition from which he suffered.

51. The applicant noted the following similarities:

1. Both had entered a plea of guilty which indicated contrition and remorse which was found as a mitigating factor in both cases.

2. Each was entitled to a 12.5 percent discount for the utilitarian value of their plea of guilty.

3. His Honour found their culpability in the commission of the offence was very similar.

4. His Honour was unable to find in either case that they had good prospects of rehabilitation or were unlikely to re-offend.

5. Both were on conditional liberty at the time of the offence (Barnes was on parole for armed robbery and the applicant was on bail for reckless wounding). In both cases, his Honour found this feature was an aggravating factor.

6. Both had prior criminal convictions, which involved gaol sentences.

52. His Honour found that the co-offender Barnes’ criminal record was marginally more serious than that of the applicant.

53. Despite those similarities, the applicant submitted that his was a significantly more powerful subjective case than that of Barnes. The matters he relied upon were that his partner, who had the care of their three children, was seriously ill. He was suffering hardship in custody, above and beyond the general prison population, by virtue of his being in protective custody and because of his mental illness.

54. The applicant submitted that he had a justified sense of grievance when comparing the sentence imposed on him with that imposed on Barnes. He submitted that 6 months did not adequately reflect the difference in their subjective cases and that his sentence should be appropriately reduced to reflect that difference.

Consideration

55. It is of significance that the same judge sentenced both the applicant and Barnes. He was fully cognisant of their moral culpability and of their subjective cases. Specifically, his Honour was fully aware of the difference in their subjective cases and he reflected that difference by a reduction of 6 months in the non-parole period of imprisonment to be served by the applicant.

56. In such circumstances, where the primary judge has recognised the importance of the parity principle and has given effect to it, this Court has said that it will be cautious and not overly willing to intervene. Disparity which leads to appellate intervention must be “gross, marked or glaring” (Tan v R [2014] NSWCCA 96 at [39]). In Mammone v R [2013] NSWCCA 95 at [45] – [46] Latham J (with whom Button J and Grove AJ agreed) said:

“45   … The imposition of different sentences does not, without more, raise "equal justice" considerations. Moreover, a sense of grievance is only "justifiable" or legitimate if the application of objective criteria compels the court to that conclusion. The age, background, criminal history and role in the offence of various offenders may justify some disparity: Green v The Queen ; Quinn v The Queen [2011] HCA 49 at [31].

46   In particular, as the majority in Green & Quinn make clear,

A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders.”

57. As already indicated, the primary judge considered the issue of parity when sentencing both Barnes and the applicant. He noted the similarities and differences in their cases. It is not without significance that counsel for the applicant made the following submission to the primary judge:

“At the end of the day in my submission it would be a fairly similar sentence [as Barnes’ sentence] in terms of parity issues perhaps taking into account Mr Tuivaga’s onerous conditions leading to a shorter sentence for him.” (Sentence transcript – pp 5-6)

58. His Honour not only accepted that submission, he acted upon it. After finding the applicant and Barnes equally culpable, his Honour observed that the applicant was 2 years older than Barnes but that Barnes’ prior criminal record was marginally more serious than the applicant’s. After specifically referring to the applicant’s conditions of custody and his mental condition, his Honour concluded that “the hard custodial conditions under which the [applicant] is to serve his sentence justify a lesser sentence than that to be imposed upon Barnes.”

59. The sentence imposed upon the applicant reflected this by having a non-parole period which was 6 months shorter than that of Barnes and an overall term which was just less than 6 months shorter than that of Barnes.

60. While this Court or another Court of Criminal Appeal may have exercised its discretion differently and have allowed for a slightly longer or shorter differential between the two sentences, that is not the test. The difference in outcome between the applicant and Barnes is explicable on the basis of his Honour’s instinctive synthesis of various features in respective cases and the weight to be accorded to them. I am not satisfied that there is a proper basis for the applicant having a legitimate sense of grievance. There is, in my opinion, no gross or marked disparity between the two sentences.

61. This ground of appeal is not made out.

Orders

62. The orders which I propose are:

1. Leave to appeal against sentence is granted.

2. That the appeal is dismissed.

63. R A HULME J: I agree with Hoeben CJ at CL.

64. WILSON J: I agree with Hoeben CJ at CL.

**********

Decision last updated: 17 June 2015