Adams v R

Court of Criminal Appeal (NSW)|2018-05-21|Before: Johnson J, Adamson J

Judgment

SIMPSON AJA: I agree with Johnson J.
JOHNSON J: The Applicant, Jason Steven Adams, seeks leave to appeal with respect to a sentence imposed at the Newcastle District Court on 13 February 2017 for an offence of aggravated break and enter and commit serious indictable offence contrary to s.112(2) Crimes Act 1900.
Following a plea of guilty, the Applicant was sentenced by her Honour Judge Syme on 13 February 2017 to a term of imprisonment of four years and 10 months, comprising a non-parole period of two years and 10 months commencing on 25 August 2016 and expiring on 24 June 2019 with a balance of term of two years commencing on 25 June 2019 and expiring on 24 June 2021.

Ground of Appeal

By Notice of Application for Leave to Appeal filed on 4 April 2018, the Applicant relies upon a single ground of appeal that the imposition of a sentence upon the Applicant identical to those imposed upon his co-offenders, Luke Langbein and Jai Morrow, was not reasonably justified by the differences in their cases.

Facts of Offence

An Agreed Statement of Facts was tendered in the sentencing proceedings with respect to each of the Applicant, Mr Langbein and Mr Morrow. What follows is drawn from the Agreed Statement of Facts.
Clare Clark (then aged 22 years) lived with her friend, Lani Smith, at an address in Rosewood Drive, Medowie. The house was owned by Ms Clark's parents. Ms Clark is a hairdresser.
Ms Clark had met the Applicant in about August 2015 at a hotel in Medowie. She had cut his hair at her home a couple of times and he had been in regular contact with her since then. They had a mutual interest in motorbikes and Ms Clark felt that the Applicant had a "crush" on her. The Applicant was born in April 1992 and was 23 years old at the time of the offence.
On the afternoon of Saturday, 18 October 2015, Ms Clark was at home with a friend, Rose Beverley. They had been watching television and had dinner and Ms Clark was styling her friend's hair. Later in the evening, Ms Smith arrived home and parked her car in the driveway before going inside. About 10.00 pm, three young men arrived at the house and, at about 10.30 pm, Ms Smith's boyfriend arrived as well. The group was sitting around socialising and drinking together.
At about 12.30 am on Sunday, 19 October 2015, Matthew and Daniel Cranney arrived and joined the party.
At about 1.10 am, Ms Clark checked her mobile phone and saw that she had six text messages sent to her by the Applicant. She saw there was also a missed call from him at 12.50 am. In the third message sent to her at 12.55 am, the Applicant said: "Be there soon I'm riding out."
At 1.35 am, Ms Clark rang and spoke to the Applicant for a short time. He claimed that Ms Clark was stirring him up because she had not responded to his messages. When Ms Clark told him that she had not been stirring him up and had not seen her phone, the Applicant said "Yeah you are, I'm going to come round and bash everyone in that house".
There was a further series of text exchanges between the Applicant and Ms Clark and, at 1.57 am, he said he was "leaving now" to come over.
Shortly after that, the Applicant arrived at Ms Clark's home on his motorbike and parked it in the driveway. Ms Clark and her friends were out the front of the house having a cigarette when he arrived.
The Applicant was aggressive and approached Ms Beverley on the driveway. As he did so, he took a wooden bat from the front of his pants and said, "Which one of you has the balls?". The bat was about 60 centimetres long and he was waving it around saying to Ms Beverley, "What are you going to do little girl? I'll take on you cunts". Ms Clark said to the Applicant, "Jason, just drop it and go away".
The Applicant remained outside for about 15 minutes, continuing to yell and threaten the people outside.
After a while, Ms Clark said to the Applicant, "Oh well guys, at the end of the day there's seven of us and one of him. If you want to stand out the front and talk to yourself all morning go ahead". She and her friends then went back into the house and Ms Clark locked the front door behind her.
Ms Clark was watching the Applicant through the front door and saw him on his mobile phone and heard him say, "Hurry up, get down here baaaa".
Ms Clark went back outside and said, "What the fuck are you doing? Why are you causing more trouble than you've already caused?". The Applicant replied, "You wanted to be a smart arse, they're on their way. Let's see how tough your boys are now".
Luke Boyton was out the front with Ms Clark trying to calm the Applicant. Luke Dovey was also there.
A short time later, Ms Clark and Mr Boyton heard running footsteps on the road coming from the direction of Kindlebark Road. Ms Clark, Mr Boyton and Mr Dovey saw two men running towards the house. Ms Clark recognised them as the co-offenders, Mr Morrow and Mr Langbein. She saw that Mr Morrow had an axe and that Mr Langbein had a wooden mallet. As they arrived, Mr Morrow ran over to Ms Smith's car and smashed the back window with the axe.
Ms Clark, Mr Boyton and Mr Dovey went back into the house. Mr Dovey locked the front door and held his body against it to prevent it from being opened. Ms Beverley rang "000" to call the police.
Mr Langbein began to smash the windows in the front of the house with the wooden mallet whilst Mr Morrow smashed the glass panels in the front door with the axe. Ms Clark saw the axe go through the glass panels. When the door panels smashed, glass went into Mr Dovey's eyes.
One of the offenders then kicked the door open. The offenders forced their way through the front door and into the house. Ms Beverley recognised Mr Morrow (whom she had known for years) and also Mr Langbein (whom she had known previously).
Ms Clark ran to the front bedroom and each of the three offenders followed her. One of the offenders said, "Come here you little bitch".
Mr Langbein said, "You're an informant dog, why would you run my name into the ground?". During this time, there was a struggle between Mr Langbein, Mr Morrow and Ms Clark outside the bedroom.
The Applicant stepped between them saying to his co-offenders, "That's enough". The three offenders then left the house.
Police arrived a short time later and began to investigate. A crime scene was established and police recovered two wooden fence palings from the front yard.
The police went to Mr Morrow's home in Medowie. In due course, Mr Morrow told police he had been in Georgetown at his mother's house all night. Police noted two fence palings missing from a house near Mr Morrow's home. The fence palings recovered by police from Ms Clark's yard were identical with those stolen from the fence near Mr Morrow's home.
At 10.10 am on Sunday 19 October 2015, police went to an abandoned house at Medowie which appeared to be used by squatters. Inside the house, police found Mr Morrow hiding behind the bathroom door and Mr Langbein hiding in the front room. Both were arrested and taken to Raymond Terrace Police Station where each declined to be interviewed and each was then charged.
When Mr Morrow was searched, a plastic bag was located in his underwear which comprised a small quantity of methylamphetamine.
At 2.30 pm that day, the Applicant attended Raymond Terrace Police Station where he was arrested and charged.
As a result of the events in the early hours of 19 October 2015, Ms Clark sustained a cut to the back of her right elbow, a large bruise on her back and abrasions to her arm. Mr Dovey sustained irritation to his eyes from flying glass fragments and was treated by ambulance officers at the scene. Daniel Cranney sustained a cut foot from the smashed glass on the floor inside the front door.

The Applicant's Subjective Circumstances

The Applicant was 23 years old at the time of the offence and 24 years and 10 months at the time of sentence.
The Applicant has a prior criminal history. On 22 July 2009, he was sentenced at the Raymond Terrace Children's Court for an offence of affray and was given 12 months' probation. On 1 March 2000, he appeared at the Broadmeadow Children's Court upon a further charge of affray in relation to which he was sentenced to a control order for a period of 12 months with a non-parole period of three months commencing on 1 March 2010. An appeal against those orders was dismissed in the Newcastle District Court on 22 March 2010.
On 16 January 2012, the Applicant appeared before the Raymond Terrace Local Court for offences of affray and having custody of an offensive implement in a public place, for which he was sentenced respectively to an 18-month good behaviour bond and a fine of $400.00.
On 20 January 2014, the Applicant was sentenced at the Raymond Terrace Local Court for offences of common assault, resisting an officer in the execution of duty and being an excluded person who failed to leave premises when required, in relation to which he was to serve 30 hours community service and was fined a total of $400.00.
The Applicant's history recorded further offences committed after the present offence, but before sentence was passed on 13 February 2017.
Whilst on bail for the present offence, he appeared at the Wyong Local Court on 19 September 2016 for an offence of driving whilst his licence was suspended for which he was fined $330.00 and disqualified for three months.
The Applicant has a disciplinary offence whilst in custody for fighting on 24 November 2016 for which he was confined to his cell for three days.

Sentencing Proceedings in the District Court

The sentencing proceedings came before her Honour Judge Syme at the Newcastle District Court with respect to the Applicant, Mr Langbein and Mr Morrow on 21 October 2016. On that day, the Applicant was unrepresented and her Honour adjourned the sentencing proceedings with respect to him to another day.
The sentencing hearing concerning Mr Langbein and Mr Morrow proceeded on 21 October 2016 and her Honour sentenced each of them later that day to identical terms of imprisonment as that imposed later with respect to the Applicant.
The Applicant's sentencing hearing proceeded before her Honour on 13 February 2017. The Applicant was represented by counsel. By agreement, the Applicant appeared by audio-visual link from Cessnock Correctional Centre. Early in the relatively short sentencing hearing, her Honour noted that the Applicant's antecedents "are slightly different from the co-offenders" (T3, 13 February 2017). Her Honour had received the Agreed Facts, the Applicant's criminal history and custodial history, her remarks on sentence with respect to the co-offenders delivered on 21 October 2016 and details of the criminal histories of the co-offenders.
A report of Ms Laura Durkin, psychologist, dated 10 February 2017 was tendered in the Applicant's case on sentence. The Applicant did not give evidence at the sentencing hearing.
At the commencement of submissions, her Honour invited the Applicant's counsel to address on the parity issue (T4-5, 13 February 2017): "HER HONOUR: All right. What do you want to tell me? Issues of parity, I think you might well start with. BOOTH: Yes, well, I was just given these documents, the antecedents of the co offenders. Both individuals have been in custody before. In my submission it's a case, because my client's involvement, if you like, as the principal protagonist at the outset of this matter would indicate that he had a greater initial involvement, your Honour will see from the facts that he also was the great - he stopped the matter at a certain point. So in my submission, in an objective situation, or an analysis of the material objectively, his essential involvement mirrors the others. They were involved essentially in a common criminal enterprise, which he initiated, but which he also stopped. In my submission, your Honour's assessment of the matter as being above the mid-range is appropriate. We're dealing with serious criminal matters. No other alternative other than a full time custodial sentence is warranted. The objective seriousness is mirrored in certain features of it, the night time, three males, weapons, minor injuries, but injuries nevertheless, and a violent entry into the home, perhaps that's one of the more serious aspects because they gained entry in a very violent way."
Counsel continued to address referring to the Applicant's antecedents and the fact that he was under the influence of "Ice" at the time of the offence. Counsel referred to other features of the Applicant's subjective case and, significantly, concluded his address in the following way (T5-6, 13 February 2017): "Your Honour's sentence on the last occasion in respect of Mr Langbien [sic] and Mr Morrow, we would submit is on all four's with our involvement and our subjective and our objective issues. Unless there was anything else; thank you, your Honour."
The Crown representative then addressed on sentence briefly, commencing in the following way (T6, 13 February 2017): "KIDD: Your Honour, I think the Crown is in a fortunate position where it can be relatively brief. I certainly don't cavil with anything that my learned friend has submitted, and realistically, in a matter such as this, the Crown's real job is simply to remind the Court of the various matters which your Honour addressed with respect to the co-offenders, and for want of a better expression, it all evens out in the wash, in the Crown's respective submission, with respect to the roles played by each of the relevant offenders."
The Crown continued briefly with respect to the Applicant's subjective circumstances. The following discussion then took place (T6-7, 13 February 2017): "HER HONOUR: It seems that each of these offenders had issues in their lives that-- KIDD: In one form or another. HER HONOUR: In one form or another. KIDD: Unless there's anything specific, your Honour, those are the Crown's submissions. HER HONOUR: No. And what I'll propose to do, Mr Adams - is there anything you want to say at all, sir? OFFENDER: No thank you, your Honour. HER HONOUR: Okay. Can you hear us all right? OFFENDER: Yeah. I can, your Honour. HER HONOUR: All right. That's good. Mr Adams, I am going to deal with this matter right away, but I just need to sit here and do a little bit of figuring out and a little bit of work. You sit there quietly while I organise my paper work, and I'm going to give my decision straight away. I'll tell you now, sir, that the sentence that was imposed on your co-offenders is going to be the same sentence that is going to be imposed on you. Do you understand that? OFFENDER: Yes your Honour. HER HONOUR: But you've all got different starting dates for the sentence, so you'll be in custody for a little while longer than they were because you spent quite some time out of custody. Do you understand that? OFFENDER: Yes your Honour. HER HONOUR: All right. I'll just work this out then, counsel. Just checking dates with counsel if I can; if the commencement date is, as you say, 25 August 2016, the non-parole period of two years and ten months would have that period expiring on 24 June 2019. That's what I get. KIDD: Yes your Honour. HER HONOUR: And a total term would expire on 24 June 2021. KIDD: Yes."
The sentencing Judge then enquired of Applicant's counsel (T7, 13 February 2017): "HER HONOUR: Do you want to be heard, Mr Booth? BOOTH: No, your Honour, thank you."
Her Honour then proceeded to deliver ex tempore sentencing remarks. In the course of the sentencing remarks, her Honour said (ROS2): "I observe and I take into account what your counsel has said and I agree with him that it seems in many ways, looking at the facts, you were the instigator of the offence, which might make, objectively, looking at your involvement in this offence, far more serious, but ultimately you were the person who said to the other two 'That's enough let's go'. Now I do not know what control you had over the other two with respect to getting them there and ultimately that they were leaving, but on my assessment the three of you were involved in this offence in an equal way. Now one of your co-offenders was on parole when this offence occurred and one of your co-offenders was also sentenced in relation to some either minor damage offences, but in my view you were all involved in this joint criminal enterprise together. Your criminality is the same for each of you. As I have already observed I sentenced Mr Langbein and Mr Morrow some time ago to a term of imprisonment of a non-parole period of two years and ten months and an additional term of two years. Both of those offenders had substantial personal circumstances that were taken into account when assessing the special circumstances and their need for supervision within the community."
The sentencing Judge then referred to the Applicant's personal circumstances and his subjective case, including the report of Ms Durkin. Her Honour confirmed that the objective seriousness of the offence was "above mid-range seriousness" (ROS3).
Her Honour then considered the Applicant's intoxication and substance abuse issues and made a finding of special circumstances before imposing a sentence of imprisonment of the same length as those imposed with respect to the co-offenders.

The Sole Ground of Appeal - Sentences Imposed Upon the Applicant and his Co-offenders Submissions of the Parties

Ms Avenell, counsel for the Applicant, relied upon the parity principle in support of the ground of appeal. The Applicant did not challenge the sentencing Judge's assessment that he and his co-offenders were involved in the offence in an equal way, and were involved in the joint criminal enterprise and that their criminality (referable to the offence itself) was the same for each of them.
It was submitted, however, that her Honour drew into this analysis two extraneous factors. Firstly, the fact that Mr Langbein was on parole at the time was an aggravating factor for him, but not for the Applicant. Secondly, an offence of possession of a drug was taken into account on a Form 1 with respect to Mr Morrow, but that did not apply to the Applicant. It was submitted that both of these factors should have operated to decrease the sentence appropriate for the Applicant.
It was submitted that the criminal histories of Mr Langbein and Mr Morrow should have also operated in this way. It was noted that the sentencing Judge had barely referred to the Applicant's criminal history, let alone consider it against that of the co-offenders.
Whilst acknowledging that the Applicant had a criminal history containing a number of entries, it was submitted that his criminal history was of a different order to that of Mr Morrow and Mr Langbein.
Counsel for the Applicant submitted that the approach taken by the Applicant's counsel in the District Court should not be taken as an invitation to the sentencing Judge to impose the same sentence upon him as that imposed upon the co-offenders. Rather, it was submitted, the approach of counsel at first instance should be taken as being a submission that their involvement in the crime was the same, but their subjective circumstances were different.
It was submitted that there were differences between each of the three offenders so that those differences ought to have been reflected in a lesser sentence being passed with respect to the Applicant. It was submitted that epithets such as "marked", "gross" and "glaring" are not necessary parts of the reasoning process of the Court of Criminal Appeal considering a ground concerning parity or disparity of sentence, and that the use of such terms may distract from the underlying principle: Cameron v R [2017] NSWCCA 229 at [86]-[89]; Myles v R [2017] NSWCCA 266 at [9]-[10], [38] and [67]; Daw v R [2017] NSWCCA 327 at [19]-[23], [62]-[63].
In substance, it was submitted that the imposition of identical sentences on each co-offender in this case was such as to engender a justifiable sense of grievance, in that the identical sentence for the Applicant was not reasonably justified in light of the differences in the cases, bearing in mind the qualitative and discretionary judgments required of the sentencing Judge: Cameron v R at [86], [90]; Myles v R at [9]-[10].
The Crown submitted that the Applicant and the co-offenders had been sentenced by the same Judge and that this Court should adopt a cautious approach when considering a ground asserting a justifiable sense of grievance in circumstances where the same Judge had sentenced each of the offenders: Usher v R [2016] NSWCCA 276 at [73].
Aside from the two Form 1 offences taken into account in relation to Mr Morrow (smashing the window of Ms Smith's car and possession of a small quantity of methylamphetamine) and the fact that Mr Langbein was on parole, the Crown submitted that the level of similarly between the Applicant and the co-offenders was very high.
The Crown emphasised the approach adopted by the Applicant's counsel in the District Court and contended that the submission made on his behalf in that Court sought the imposition of the same sentence as that which had been passed on the co-offenders, so that the principles in Zreika v R (2012) 223 A Crim 460; [2012] NSWCCA 44 at 478 [80]-[81] had application.
The Crown submitted that the sentencing Judge had adverted to the various factors relevant to the sentencing of the three offenders and that it had not been demonstrated that the principle of equal justice had been misapplied in this case. Decision
The complaint in this case is not one of disparity between sentences which is said to give rise to a legitimate sense of grievance in the Applicant. Rather, the complaint is that there is a legitimate sense of grievance because of the identical sentences imposed upon him and the co-offenders: cf Dayment v R [2018] NSWCCA 132 at [49].
The approach adopted by the Applicant's counsel in the District Court (see [45]-[46] above) ought be understood as an acceptance by him that having regard to the various objective and subjective factors to be considered, the same sentence should be passed with respect to the Applicant as had been imposed by the same sentencing Judge on the co-offenders.
The appropriate construction of what the Applicant's counsel was putting was that his client should not receive a greater sentence than those which had been imposed upon the co-offenders. This construction is reinforced when one considers what followed, with the Crown making a short submission (at [47] above) and her Honour indicating an intention to impose the same sentence (at [48] above).
Her Honour asked the Applicant's counsel directly if there was anything further he wished to say with counsel replying in the negative (see [49] above).
The approach adopted by the Applicant's counsel in the District Court was understandable. He described (correctly) the Applicant as "the principal protagonist at the outset" of the incident (see [45] ). It was the Applicant who initiated the series of events in the early hours of 19 October 2015. He took offence at Ms Clark's failure to respond to his messages, as if he had some entitlement to her attention. Even after talking to Ms Clark by telephone, the Applicant insisted on coming out to her house, accompanied by a verbal threat to inflict violence when he got there (see [12] above). Upon arrival, he behaved in an aggressive and controlling fashion, challenging others to fight with him at a time when he was armed with a wooden bat.
The Applicant called for assistance, with the co-offenders arriving thereafter. The incident escalated to involve the commission of the s.112(2) offence with the infliction of injury and damage to property, not to speak of the terror instilled in the young people who had otherwise gathered peacefully at Ms Clark's house that evening.
It is true that it was the Applicant who called off the attack. That aspect in itself indicates that the Applicant exercised a degree of control over his co-offenders. It was the Applicant who had called them in and then called them off. However, it was the Applicant who caused the offence to occur as a result of his own violent, unwarranted and controlling conduct directed towards Ms Clark, a young woman whom he claimed to like.
There were some differences in the subjective circumstances of the three offenders, as the sentencing Judge recognised (see [50] above).
The submission advanced for the Applicant in this Court is quite contrary to that advanced by his counsel at first instance. This is not a case where counsel in the Court below overlooked the issue (Zreika v R at 478 [82]), not that such a circumstance in itself would be sufficient to permit the issue to be ventilated on appeal to this Court. Here, counsel in the District Court advanced a submission (which was more than reasonably open) and the sentencing Judge accepted the submission in determining the sentence to be passed upon the Applicant.
This Court is a court of error: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at 425-426 [10]; Zreika v R at 477-478 [79]. A sentence appeal to this Court is not the occasion for a rehearing of a plea in mitigation in particular where an argument is put which is contrary to that made at first instance: Zreika v R at 478 [81]. It has been said that an applicant should not be entitled to challenge findings made by a sentencing judge which were not placed in issue on the plea: Adamson v R (2015) 47 VR 268; [2015] VSCA 194 at 293-294 [60]-[61].
At the same time, it is recognised that criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice with respect to sentence, in clear and rare cases where the relevant matter has not been relied upon at first instance: Zreika v R at 478 [82].
The High Court of Australia has recognised that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice concerning sentence: Betts v The Queen at 425-426 [10]. At the same time, the High Court noted that forensic choices are made in the conduct of an offender's case at a sentencing hearing and that justice does not miscarry by reason of a refusal by an appellate court to allow an appellant to run a new and different case on the question of resentence: Betts v The Queen at 427 [14].
I will consider the Applicant's ground of appeal with these considerations in mind.
The Applicant seeks to call in aid the parity principle.
The general principles to be applied when considering a ground of appeal which asserts a justifiable sense of grievance by reason of disparity were summarised by Beech-Jones J (Payne JA and Fagan J agreeing) in Wan v R [2017] NSWCCA 261 at [39]: "39. The reference in this ground of appeal to a 'justifiable sense of grievance' invokes the discussion of the parity principle in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 610 (per Gibbs CJ), at 613 (per Mason J) and at 623 (per Dawson J, 'Lowe'). The parity principle holds that there should not be a 'marked disparity' between the sentences imposed on co-offenders such as to give rise to 'a justifiable sense of grievance' in one of them (Lowe at 610 per Gibbs CJ, with whom Wilson J agreed at 616 and at 612 to 613 per Mason J and at 623 per Dawson J). The parity principle has its foundation in the obligation of the Courts to afford 'equal justice' (Green The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan and Kiefel JJ, 'Green')."
The Court is not concerned with whether the Applicant actually feels a sense of grievance (a subjective test) but rather whether any disparity (or lack of difference) between sentences engenders a justifiable sense of grievance and an appearance of injustice to "that impassive representative of the community, the objective bystander": Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 613 (Mason J); Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at 474-475 [31] (French CJ, Crennan and Kiefel JJ).
In Lloyd v R [2017] NSWCCA 303, RA Hulme J (Payne JA and Garling J agreeing) said at [87]-[89]: "87. It has been said that equal justice requires that like should be treated alike. However, if there are relevant differences, due allowance should be made for them: Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26 (Dawson and Gaudron JJ). 88. The reason why an appellate court interferes in cases where there is an inappropriate degree of disparity between sentences is because it considers such disparity to give rise to a justifiable sense of grievance or the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606 at 610; [1984] HCA 46 (Gibbs CJ). 89. A court will refuse to intervene where the degree of disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at 474-475 [31]; [2011] HCA 49 (French CJ, Crennan and Kiefel JJ)."
Here, the same sentencing Judge proceeded to sentence the Applicant and his co-offenders and in doing so made assessments of the relevant objective and subjective factors for the purpose of passing the sentences. Courts have emphasised the desirability of related offenders being dealt with by the same Judge and preferably at the same time: Lowe v The Queen at 617, 622; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 320; Shortland v R (2013) 224 A Crim R 486; [2013] NSWCCA 4 at 501 [110].
As Beech-Jones J noted in Wan v R at [39] (see [78] above), the concept of "marked disparity" had been mentioned in the context of the parity principle in Lowe v The Queen. The term "marked disparity" has been used, as well, in Postiglione v The Queen at 301-302 (Dawson and Gaudron JJ) and at 322 (Gummow J) and in Green v The Queen (French CJ, Crennan and Kiefel JJ) at 475 [32]. As in Hiron v R [2018] NSWCCA 10 at [49]-[52], for the purposes of determining this appeal, it is not necessary to consider the appropriateness of the use of other descriptive terms which came under challenge in Cameron v R and Miles v R.
The Applicant seeks to challenge a discretionary assessment by the sentencing Judge in this case. In Lloyd v R, RA Hulme J said at [95]-[97]: "95 It is possible that the difference between the sentences imposed upon the co-offenders might have been greater. However, it must be kept clearly in mind that this was a discretionary assessment by a judge who had the facts and circumstances of the offences and each offender in mind in the one sentencing exercise. 96 It is a basic principle of appellate review of sentencing that 'there is no single correct sentence' and 'judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies': Markarian v The Queen (2005) 228 CLR 357 at 371 [27]; [2005] HCA 25 (Gleeson CJ, Gummow, Hayne and Callinan JJ). That observation may be translated to a review of the degree to which a sentencing judge has differentiated the sentences imposed upon co-offenders sentenced in the one sentencing exercise. 97 In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done: see Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15]; [1999] HCA 29. The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion? In my view, the answer must be affirmative."
The approach of RA Hulme J in Lloyd v R is along similar lines to that applied in Victoria. In a number of decisions in that State, it has been said that the concept of (an objectively) justifiable sense of grievance is a way of expressing the conclusion that a sentencing differential (or lack of differential) was not reasonably open to the sentencing Judge given the relevant similarities and differences between the offending and the offenders: Director of Public Prosecutions (Cth) v KMD (2015) 254 A Crim R 244; [2015] VSCA 255 at 269 [109] (Maxwell P, Weinberg and Beach JJA ); Tran v R [2017] VSCA 346 at [5], [22]-[23] (Osborn, Whelan and Ashley JJA).
The observations of Ashley JA (Osborn JA agreeing) in Tran v R are also pertinent and echo the approach of RA Hulme J in Lloyd v R. Ashley JA said at [24]: "… sentencing involves a synthesis of the entire circumstances of the offending and the offender. Where more than one offender is being sentenced, just as where a single offender is to be sentenced, sentencing is not a mechanical exercise in which circumstances are to be weighed with a pretence of arithmetical certainty. Indeed, where more than one offender is being sentenced, and despite parity considerations requiring a judge to compare the circumstances of the offending and the offenders, disparate circumstances may lend themselves even less to such an exercise. An attempt to demonstrate that the sentence imposed on one of the offenders was not reasonably open, by resort to a minute examination of the individual circumstances of the offending and the offenders, runs counter to the concept of instinctive synthesis."
These considerations have relevance to the present application for leave to appeal against sentence.
In determining whether the Applicant has an objectively justifiable sense of grievance so as to make good his ground of appeal, it is appropriate to consider whether he has demonstrated that it was not reasonably open to the sentencing Judge to form the view that he should be sentenced to the same term of imprisonment as his co-offenders.
In considering this issue, it is appropriate for the Court to have regard to the way in which the proceedings were conducted at first instance on the Applicant's behalf. It was open to the sentencing Judge (and it would be open to this Court if resentencing the Applicant), to form the view that, as the initiating party with respect to the incident, his culpability was greater than that of the co-offenders although it was he who brought the incident to an end as well. When this aspect was taken with the circumstances of each offender, and the shades of difference between them, it was reasonably open to the sentencing Judge to impose the same sentence upon each of them.
This, in reality, was the approach adopted at first instance on behalf of the Applicant. It had an air of practical reality about it. In view of the common position of the parties, the sentencing Judge proceeded to sentence the Applicant by way of ex tempore sentencing remarks which ought not be unduly parsed and analysed: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at 577 [48].
I am not persuaded that the Applicant has demonstrated a basis for this Court to intervene with respect to sentence. The Applicant cannot point to a serious injustice or a miscarriage of justice as a result of the sentence imposed upon him (see [73]-[75] above). The approach urged by the Applicant at first instance, and applied by the sentencing Judge, was reasonably open in all the circumstances of the case (see [83]-[87] above).
I propose that leave to appeal against sentence be refused.
ADAMSON J: I agree with Johnson J.

Amendments 13 July 2018 - Amendment to counsel on coverpage DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2018

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Judgment (7 paragraphs)

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