Charnley v R

Facts of offending

1. The following summary of the agreed facts is taken from the respondent's written submissions (with some minor edits).
2. On 5 December 2021, the co-offenders parked a hired Toyota RAV4 outside an IGA store in Buxton owned and operated by the victims, a married couple.
3. The co-offenders entered and walked around the store. The applicant asked for a face mask, and Mr Chandler bought an orange juice. Some hours later the owners packed some of the store's cash takings into a black bag, and closed the store, heading to their vehicle.
4. The three offenders jumped out from behind the vehicle.
5. One offender held a black object about half a metre long towards the female victim (who fell on the ground in fear) then the male victim, pointing it about 40 to 50 centimetres from his face. Another offender approached the male victim, yelling at him to give him the bag. The male victim handed over the bag containing $1,700, his wallet, his phone and keys, and was scared he would be hurt if he did not. When he handed over the bag, he lacerated two of his fingers on the knife held by the offender. The lacerations were small.
6. The offenders were arrested shortly afterward in the RAV4 and were found to be in possession of cash consistent with the robbery.

Procedural background

1. The three co-offenders (the applicant, Mr Whipp and Mr Chandler) all ultimately pleaded guilty in the Local Court (thus each attracting a 25% discount) to two identical offences as follows: 1. use offensive weapon with intent to commit an indictable offence (assault) in company (s 33B(2) of the Crimes Act) carrying a maximum penalty of 15 years' imprisonment (with no standard non-parole period specified); and 2. robbery armed with an offensive weapon (s 97(1) of the Crimes Act) carrying a maximum penalty of 20 years' imprisonment (with no standard non-parole period specified).
2. Whilst the sentencing proceedings were heard before the same sentencing judge, the sentence proceedings for Mr Whipp and Mr Chandler were separated from the applicant's and were heard before the applicant's sentence proceedings.
3. On 4 November 2022, the sentence hearing for Mr Whipp and Mr Chandler proceeded with sentence pronounced on those two men on 12 December 2022.
4. On 12 December 2022, the sentence hearing for the applicant commenced, evidence was tendered and the applicant gave evidence. As the Crown had required the applicant's psychologist, Mr Awit, for cross-examination, the matter was adjourned to 9 February 2023 on which day the balance of the sentence hearing occurred and the matter was then adjourned for judgment. On 14 February 2023, the applicant's sentence was pronounced.
5. Each of Mr Whipp, Mr Chandler and the applicant was sentenced to a fixed term of 2 years for the s 33B(2) offence, to be served concurrently with the sentence for the s 97(1) offence of 5 years and 3 months total term with a non-parole period of 3 years and 3 months. The applicant's sentence dated from 5 March 2022 to 4 June 2027, and he is eligible for release on parole on 4 June 2025 (that is, less than 4 months from the date of the hearing of his appeal).

Sentencing remarks

1. The sentencing judge relied upon the same facts for all the co-offenders, as set out above in summary form at [8]-[13].
2. The very experienced sentencing judge set out the maximum penalties for the offences and the discount for the pleas of guilty. The guideline judgment for the offence of armed robbery was considered, along with the general sentencing principles.
3. The objective seriousness of the offences was considered. The sentencing judge determined that the armed robbery offence fell within the mid-range of objective seriousness and the use weapon offence was below the mid-range. This was the same assessment as her Honour had made in relation to Mr Whipp and Mr Chandler.
4. When sentencing Mr Whipp and Mr Chandler, the sentencing judge determined that they should receive the same sentence. Following the applicant's sentence hearing, the sentencing judge came to the view that the applicant should also receive the same sentence. It can be observed that the sentencing judge considered the principle of parity, observed that the three co-offenders were of "similar age, antecedents and subjective factors", and expressly found that each "had an equal role to play in the commission of these offences".
5. The sentencing judge determined that given the relationship of the two offences, full concurrency was appropriate.
6. In relation to the applicant, the sentencing judge considered that the sentences should be partially accumulated on an earlier unrelated sentence, resulting in the commencement date imposed.
7. Apart from the mental condition of the applicant (which I will detail when I consider the ground of appeal), the applicant's subjective case was based on material in Mr Awit's report and oral evidence as well as the applicant's oral evidence. The following was accepted by the sentencing judge: 1. The "truly tragic upbringing" of the applicant included that as a child he had been exposed to domestic and homicidal violence. He was the victim of physical violence, including being shot by his mother's partner and being denied treatment. While his mother was in custody, he was separated from his siblings and placed in foster care where he was exposed to extreme domestic violence. His mother developed difficulties after leaving custody, abusing drugs and alcohol. He had left the family home at 12 years of age, eventually moving in with his sister who was also the subject of domestic violence which the applicant witnessed. Her Honour accepted that this background fell "squarely within the Bugmy principles" which resulted in a reduction of moral culpability. 2. At 15 years of age, the applicant was sexually abused by a youth worker, and he was seeking redress. 3. His education had been fractured, and he had completed Year 10 in custody and had also gained a Certificate IV in Small Business and Management. He had some work history and a former employer thought so highly of him that they visited him in custody, as well as provided him with a reference. 4. The applicant's mother and partner were supportive, and he had a young son. 5. The applicant had started to abuse alcohol at 14 years of age, although he had had been abstinent for several years, and more recently resumed social drinking. 6. The applicant's drug use had commenced at a young age, and from 2021 included the drug ice to which he quickly became addicted. 7. The applicant was genuinely remorseful and contrite. On his release, he hoped to return to the country and return to farm work. 8. Whilst in custody, he was stabbed which resulted in surgery and reliance on pain medication. 9. The applicant's prospects for rehabilitation were guarded. 10. Given the applicant's criminal history (which was not set out in the remarks), the likelihood of him reoffending was high should he be unsuccessful in rehabilitating himself. 1. It can be noted that his criminal history included four previous armed robbery offences: 1. 2007: Armed robbery and assault with intent to rob while armed in company (with another armed robbery on a Form 1); total effective sentence of 6 years and 4 months with a non-parole period of 4 years; 2. 2013: Robbery and robbery in company; total effective sentence of 5 years with a non-parole period of 3 years and 9 months. 1. His criminal history meant that additional weight needed to be given to specific deterrence, although it did not aggravate the sentence. 2. The offences had been committed whilst the applicant had been on conditional liberty (as had both of the co-offenders). At the time, the applicant had been subject to a non-conviction conditional release order for an offence of driving with an illicit substance present in his blood. 3. General deterrence still had a significant role to play having regard to the nature of the offences. 4. Special circumstances were found on the basis of the applicant needing a longer period of supervision on parole to ensure that he received an appropriate treatment program aimed at addressing the issues stemming from his childhood and his longstanding drug addiction.

Sole ground of appeal: The applicant has a justifiable sense of grievance in light of the sentence imposed on the co-offender Peter Whipp

Legal principles

1. The principles relating to parity between co-offenders are well-established, and have been conveniently set out in Hung v R [2023] NSWCCA 172 at [31]-[32]: "There was no dispute as to the applicable principles. The question is an objective one, although styled in terms of an offender's grievance. As was said in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31]: The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: 'the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.' The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise. (Footnotes omitted.) The question is whether the sentence imposed on a co-offender is reasonably justified in light of those differences, bearing in mind the qualitative and discretionary judgments required of the sentencing judge: C v R [2022] NSWCCA 285 at [33]; Z v R [2022] NSWCCA 286 at [31]-[32]; Labban v R [2022] NSWCCA 275 at [24]. It is not necessary to find a 'gross, marked or glaring' discrepancy: Miles v The Queen [2017] NSWCCA 266 at [9], [38], [67]. Instead, it is better to use the expressions of the High Court, namely, 'marked disparity' or 'marked and unjustified disparity': Fenech v R [2018] NSWCCA 160 at [30]; Weiss v R [2020] NSWCCA 188 at [89]."
2. A legitimate sense of grievance can arise as a result of a later sentence imposed on a co-offender: Jones v The Queen (1993) 67 ALJR 376 at 377; Elmir v R [2023] NSWCCA 260 at [6].

Consideration

1. In re-sentencing Mr Whipp, it is contended by the applicant that this Court departed in two respects from the findings of the trial judge. The first was that his very deprived background was obviously criminogenic thus reducing his moral culpability for the offences under consideration.
2. As to this issue, it can immediately be observed that the sentencing judge made a similar reduction in relation to the moral culpability of this applicant - see above at [25(a)].
3. More significantly for the purposes of this appeal, this Court found that Mr Whipp's time in custody would be made very difficult on account of his psychological problems. As conceded by the applicant before this Court, no submission in relation to the onerous nature of custody was advanced in the applicant's case nor was any such finding made by the sentencing judge.
4. Indeed, the sentencing judge stated: "No submissions have been made on behalf of the offender that his moral culpability should be reduced by reason of mental illness, nor that his time in custody would be more onerous."
5. In relation to Mr Whipp however, a submission in relation to Mr Whipp's onerous experience of custody had been made to the sentencing judge. This Court found that the sentencing judge had erred because she did not address the ramifications of the submissions in relation to Mr Whipp's past custodial hardship in light of his inevitable further custody.
6. In Whipp v R, at [54], the following was stated: "[…] it was also surely important that a man who was suffering from PTSD as a result of experiences in custodial settings would be held as a result of the inevitable further custodial sentence in the exact same setting from which that psychological condition arose." And at [62]: "[I]t was incumbent upon the sentencing judge to engage explicitly with this submission. […] it was a significant proportion of the oral submissions on behalf [of] the applicant as a whole. It was also, I think, an important point: that a man who had been psychologically and indeed physically damaged in a particular setting was to be punished by being placed yet again in the very setting from which the damage arose. I respectfully think that it was insufficient simply to state the effect on periods of incarceration of the applicant in the past, and then to state that all such factors had been taken into account as a matter of instinctive synthesis. I think it was incumbent upon the sentencing judge - perhaps only briefly - to refer to the matter, and to either accept it as playing some mitigatory role regarding the sentence to be served in the future, or to explain why it had been rejected." (Emphasis added.)
7. On resentence the following was relevantly stated at [71]-[72]: "Reflecting now on resentence, and synthesising the most salient objective and subjective features of the matter: this was serious offending, that engendered terror, and, as all robberies do, combined dishonesty and the threat of violence. The belief of the victims was that they were being threatened with a firearm. The offence was committed on parole by a mature offender who had 'an atrociously long offending and custody record' (to use the words of his own barrister on the appeal). On the other hand, it was committed by a man who had endured a very deprived background that I consider was obviously criminogenic, that should be given full weight, and that reduces his moral culpability for the offences under consideration. It was also committed by a man suffering from various psychological problems quite apart from his entrenched drug addiction, one of which problems would make time in custody very difficult indeed. […]"
8. The applicant contends that there is nothing which materially distinguishes the subjective cases of Mr Whipp and the applicant, and such differences there are tend to favour the applicant. The applicant points to Mr Awit's report and evidence in the applicant's case at the sentencing hearing. The applicant contends that the report stated that the applicant suffered from Post-Traumatic Stress Disorder ("PTSD") and a major depressive disorder, requiring ongoing psychological intervention. Further, it is contended that the applicant has also been subjected to serious violence and injury in custody, having been stabbed and requiring surgery in 2016, and that, as stated in his written submissions before this Court: "[t]his Court would be comfortably satisfied that the applicant's custody will be more onerous on account of these factors, notwithstanding that the matter was not addressed before the sentencing judge."
9. Further, the applicant contends that he was found to be "truly remorseful and contrite" by the sentencing judge whereas no finding of remorse was found in Mr Whipp's case, and Mr Whipp committed the offences shortly after being released to parole. These matters are noted as being in the applicant's favour.
10. The applicant submits that the disparity of nine months is not justified by any differences such as age, background, criminal history, character or the part each played in the offending, and the discrepancy between their sentences gives rise to a justifiable sense of grievance on the part of the applicant.
11. It can be observed that the report prepared by Mr Awit for the applicant included a self-report of an earlier diagnosis of PTSD and accepted that the applicant's symptoms met the diagnostic criteria for PTSD, albeit it was noted by the sentencing judge that Mr Awit did not purport to give a diagnosis for this condition. The sentencing judge acknowledged Mr Awit's opinion that the applicant's reported symptoms also met the DSM-V diagnostic criteria for major depression and substance use disorder which accorded with the applicant's prescribed medication for these two conditions.
12. The sentencing judge further recorded that she accepted the psychological evidence in the applicant's case noting that it was tendered for a particular purpose, that is, for the purpose of demonstrating the applicant's disadvantaged background. As noted, the applicant did not rely below upon this evidence for the purpose of demonstrating hardship in custody or for a reduction in moral culpability based directly on a mental impairment. So much was explicitly stated by the sentencing judge as set out at [31] above, and accordingly, she did not consider the evidence for these purposes.
13. In my assessment, the evidence and the submissions in Mr Whipp's case before her Honour were markedly different in relation to the issue of hardship in custody as compared to the applicant's case.
14. Mr Whipp relied upon a psychiatric report prepared by Associate Professor Michael Robertson which described his interaction with the criminal justice system from the age of 14. He had spent many years in Keelong Juvenile Justice Centre where (as summarised by Button J in Whipp v R): "[…] (to speak elliptically), he was subject to grave offending that was psychologically and indeed physically extremely damaging. [Mr Whipp] attempted to escape Keelong, but his attempt was thwarted by police and he was returned to the facility."
15. The report also described Mr Whipp's current experience in custody as including flashbacks and impacted behaviour. The psychiatrist made a diagnosis of complex PTSD.
16. Before the sentencing judge, Mr Whipp's lawyer explicitly raised the issue of hardship in custody in the context of the psychiatrist's report, pointing, amongst other things, to the evidence of his trauma-related flashbacks, which were sometimes triggered by interactions with other inmates and Corrective Services' staff.
17. It was the failure to explicitly engage with this submission which underpinned the success of Mr Whipp's appeal and was a significant factor in the re-sentencing exercise.
18. Taking all these matters into account, in my view, the applicant's contention that there is a justifiable sense of grievance is not made out in light of the following: 1. There was no submission made on the applicant's behalf before the sentencing judge that the applicant's time in custody would be more onerous. As affirmed recently in Hemsworth v R [2025] NSWCCA 2 at [66], this Court does not lightly entertain new arguments raised for the first time on appeal, but which could have been put to the sentencing judge at first instance, citing the familiar authority Zreika v R [2012] NSWCCA 44 at [80]-[83]. Albeit in a slightly different context, the principle was repeated in the context of a parity appeal in Vassiliou v R [2022] NSWCCA 91. 2. In any event there is an insufficient evidentiary foundation for a custodial hardship submission on the part of the applicant. Whilst the applicant could also point to an instance of grave offending against him as a child, unlike in Mr Whipp's case, that offending did not occur against him in custody. By contrast, Mr Whipp could point to clear evidence of trauma in custody, a clear and considered psychiatric diagnosis, and the current presentation of the diagnosis as causing flashbacks, anxiety and changing Mr Whipp's behaviour. 3. Whilst the applicant also suffered trauma in custody of a different kind - being the subject of a stabbing (which was noted by the sentencing judge), there was no express diagnosis of PTSD, nor any evidence of any effect of mental impairment or trauma on the applicant's current experience of custody. It was not contested that he suffered from major depression and substance use disorder and was being medicated for those conditions in custody. So much was recognised by the sentencing judge.
19. Two further points can also be noted.
20. First, on resentence, there was evidence that Mr Whipp had made some progress in terms of his behaviour in custody. This gave rise to a different finding in Whipp v R as compared to that made by the sentencing judge which was as follows: "In the past year or so, there have been signs of a more constructive approach being taken by him in custody, central of which is the seeming efficacy of opioid replacement therapy, and his commitment to it. At this stage, however, one can feel nothing more than a very guarded optimism about his future." (Emphasis added.)
21. This can be compared to findings made in respect of the applicant that "there can be no doubt that his prospects for rehabilitation are guarded" and that "the likelihood of him reoffending is high."
22. Second, it can also be observed that although both offenders had lengthy criminal histories, of the two, only the applicant had multiple prior offences of the same type as set out above at [25(j)].
23. These factors may be balanced against the submission about the genuine remorse shown by the applicant as compared to Mr Whipp, and the submission that Mr Whipp offended soon after being granted parole.

Conclusion

1. In originally imposing identical sentences, the sentencing judge found the three co-offenders assumed an equal role in the commission of the offences, and that their ages, backgrounds and criminal records were "similar". On appeal in Whipp v R, in exercising the sentencing discretion afresh, this Court made findings in relation to Mr Whipp's hardship in custody and his prospects of rehabilitation which resulted in a reduction of Mr Whipp's sentence. In my view, those differences amply justify the different sentences imposed and there is no basis for a justifiable sense of grievance on the part of the applicant.
2. Accordingly, the single ground of appeal fails, and the appeal should be dismissed.
3. The orders I propose are as follows: 1. Grant leave to extend the time for the applicant to file the Notice of Appeal to 7 November 2024. 2. Grant leave to appeal. 3. Dismiss the appeal.
4. WEINSTEIN J: I agree with McNaughton J.

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