Contos v R

Court of Criminal Appeal (NSW)|2022-03-07|Before: Brereton JA, Adams J, Lonergan J

Judgment

BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by N Adams J, with which I agree.
As to relative objective gravity between the applicant and the co-offenders, it is to my mind significant that the applicant was the instigator and intended beneficiary of the criminal conduct which he planned, prepared and orchestrated, and that to the extent that there were aggravating elements in the conduct of the co-offenders, their participation was at his behest. I do not regard his "claim of right" as materially reducing the objective gravity of his offences: a "claim of right" might be relevant to a property offence (and indeed in this case appears to have resulted in no robbery offence being pressed against the applicant), but its relevance to an assault and kidnapping is at best marginal. In my opinion, the sentencing judge's evaluation of the objective gravity of his offences as "only slightly lower than the assessment for the co-offenders" was not at all unfavourable to the applicant.
As to parity, its application was rendered acutely difficult for the sentencing judge, notwithstanding that her Honour sentenced all three offenders, by the alternative facts on the basis of which the judge was required to sentence the appellant, as distinct from those on which her Honour was required to sentence the co-offenders. As it seems to me, on the applicant's facts, the applicant was only slightly, if at all, less culpable than the co-offenders. On the co-offenders' facts, the totality of the offending was significantly more serious, and the applicant was significantly more culpable than the co-offenders. In applying the principle of parity, of which the sentencing judge was plainly conscious, the sentence imposed by her Honour reflects a conclusion that the applicant, on his facts, was somewhat but not very greatly less culpable than were the co-offenders, on their facts. In the rather artificial and difficult context with which her Honour was faced, I discern no error in that conclusion, and no such disparity such as to give rise to an objectively justifiable sense of grievance on the part of the applicant.

Factual background

As at 20 February 2019, the applicant was a 31 year old real estate agent leasing a three-bedroom apartment in Milsons Point. The victim, Mr Kuen Hyuk Yang, was his contract cleaner. Yang was a permanent resident of Australia having moved here in 2007. Since 2012, he had owned and operated a residential and commercial cleaning business called "Kenny's Cleaning". In addition to his cleaning business, Yang worked as an Uber driver.
The applicant and Yang first met in November 2018 when the applicant was a passenger in Yang's Uber vehicle. They had discussed Yang's cleaning business and arranged that Yang would clean the applicant's apartment. Between November 2018 and February 2019, Yang cleaned the apartment on approximately three occasions, with the arrangements being confirmed by text message on each occasion.
At that time, the applicant was friends with his two co-offenders Gerrey-Burgess (then aged 24) and Korovou (then aged 21). The co-offenders are brothers.
Prior to 20 February 2022, the applicant formed the view that Yang had been stealing property from his apartment. Phone records establish that between 10.10am and 1.38pm that day there were communications between the applicant and Korovou. Between 11.03am and 2.10pm that day Yang and the applicant exchanged text messages in which the applicant requested Yang's attendance that afternoon to clean the apartment. This was a ruse. Unbeknownst to Yang, the applicant had arranged for his two co-offenders to be present at the apartment that afternoon.
At about 3.25pm on 20 February 2019, the applicant and his two co-offenders were depicted on CCTV footage arriving in the applicant's Toyota Hilux in the basement of the apartment building. The applicant had collected the co-offenders in his Hilux earlier that day. The offenders took the lift to level 14.
At about 4.20pm Yang and his co-worker Sanmyoung Lee arrived at the applicant's unit in Yang's car and parked in front of the apartment building. Mr Lee was a South Korean national and at the relevant time was employed by Yang while on a working holiday in Australia.
After Yang spoke to the applicant on the intercom, the victims proceeded to level 14. The victims entered the apartment and were greeted by the applicant. The co-offenders were standing behind the applicant. Loud music was playing. The applicant then forced the two victims to enter the empty bedroom. The floor in the bedroom was covered by a blue plastic tarpaulin, in the centre of which was a clear plastic chair. There was an open suitcase next to it.
Whilst the three men were in the room the applicant hit Yang to the body multiple times. Lee was directed into the corner of the room and instructed to get on his knees. He complied. The applicant told him not to try to leave. Korovou said words to the effect of "give us everything you have". Lee emptied his pockets, but they only yielded a cleaning cloth. Gerrey-Burgess also hit Yang on a number of occasions. Yang fell to the floor at which time the applicant continued to hit him about the body.
The applicant said to Yang, "[g]ive me the shit you took from me". Yang denied taking anything from the applicant. The applicant accused him of being a liar. During this exchange, one of the co-offenders hit Yang to his chin, face, body and ribs. The applicant continued to yell at Yang, saying, "give me back my shit" and "give me back what you stole".
One of the co-offenders took Yang's mobile phone and directed Yang to unlock it. Yang complied. The co-offender started reviewing photographs on the phone, and then said to Yang, "[y]ou are barbequing prawns, you are enjoying your life through the money you are stealing". Yang replied "[n]o". The co-offender said, "[y]ou have beautiful kids and wife. If you want to see them again you have to pay $10,000". This co-offender again punched Yang to the face and body.
Korovou then left the bedroom with Yang's car keys and used the fire exit to get to Yang's car to retrieve Lee's mobile phone, before returning to the apartment. Korovou directed Lee to unlock the phone. Lee complied. The applicant said to Yang, "it's not even five o'clock and you don't have much time left. If you don't give me back my money, you will end up inside the suitcase".
The co-offenders discussed going to Yang's home. Yang was pushed onto the tarpaulin and rolled up in it. The applicant threatened to harm Yang if he did not pay the $10,000. Yang was subjected to further assaults. Later, in fear, Yang said words to the effect of, "I have money at home". The applicant said, "If we go to your place and there is no money, we will take you to the police".
The victims were walked out of the apartment, with the applicant and Gerrey-Burgess following behind them. They took the elevator to the basement carpark, and the four of them entered the applicant's Hilux. Korovou collected the victims' cleaning equipment from the apartment and carried it down via the fire exit to Yang's car. Korovou then drove Yang's car and followed the applicant's Hilux towards Yang's home.
At about 7.30pm, the three offenders and two victims arrived in Yang's street in Lidcombe. Korovou parked Yang's vehicle a few doors down from Yang's home. The applicant directed Yang to telephone his wife and asked her to bring $10,000 to the front door. The phone call was made on Lee's mobile phone, as Yang's had switched off. Yang's wife did not answer the call. After numerous attempts, a text message was sent to Yang's wife that read "ten thousand dollars. Bring it now". Yang tried calling again, and this time his wife answered. Yang directed her to bring the money, but she was concerned and confused. She terminated the call and rang "000".
The co-offenders walked Yang to the front of his house and knocked on the door. While Yang's wife remained on the "000" call, she stood behind the closed and locked door. She heard Yang scream in Korean, "[d]on't open the door, call the police". She then heard Yang scream in English, "[c]an you open the door and get the ten thousand dollars?". The offenders were not given access to the house. Gerrey-Burgess and the applicant then took Yang back to the applicant's Hilux, where they again continued to assault him.
The offenders drove away from Yang's house in the Hilux. As they did so, they were passed by police cars. The applicant continued to threaten Yang and said he would report him to police, and his visa would be cancelled. At about 9.05pm, the victims were dropped off somewhere in North Sydney. This was captured by CCTV. At about 9.08pm, the offenders returned to the apartment, then left again in the applicant's vehicle at 9.20pm. The applicant returned alone at 9.31pm, changed clothes, then left again at 9.51pm.
Yang was conveyed by ambulance to Royal North Shore Hospital. He was discharged two days later with multiple broken ribs, chest pain, bruising and abrasions, including to his shoulder and neck area, and swelling to the left side of his jaw.
Police searched and forensically examined the applicant's apartment the following day. A number of relevant exhibits were identified, including the blue tarpaulin, plastic chair and suitcase. DNA consistent with Yang's DNA profile was located on the tarpaulin. His fingerprints were also located on the tarpaulin, as were those of the applicant and the co-offenders. The applicant's fingerprints were located on the chair.
On 22 February 2019, the applicant attended Manly Police Station and informed police that he was "wanted". He declined to be interviewed and was charged.

Proceedings on sentence for the co-offenders

As stated above, Judge Noman SC sentenced the two co-offenders Korovou and Gerrey-Burgess on 3 April 2020 for the same offences. They both asked her Honour to take an additional offence of armed robbery contrary to s 97(1) of the Crimes Act into account on a Form 1 pursuant to s 33 of the Sentencing Act in relation to the specially aggravated kidnapping charge on the indictment.
Both co-offenders were sentenced to a fixed term of 2 years imprisonment for the aggravated kidnapping charge and a sentence of 6 years imprisonment with a non-parole period of 3 years and 8 months for the specially aggravated kidnapping charge. Both defendants were thus sentenced to an effective non-parole period of 4 years and an effective head sentence of 6 years and 4 months imprisonment.
Mr Korovou unsuccessfully appealed to this Court on the sole ground that her Honour had erred in her treatment of his diagnosis of Post-Traumatic Stress Disorder: Korovou v R [2021] NSWCCA 28. It was common ground that that judgment does not bear upon the issues raised in this application.
Although the co-offenders were sentenced by the same judge, they were sentenced on different agreed facts.

Proceedings on sentence

In addition to the agreed facts, the DPP tendered victim impact statements from both victims. Mr Yang described being damaged physically and mentally by the assaults and kidnapping. He could not work for a couple of months due to his injuries. He described the mental harm as being more difficult than the physical damage. He was depressed and had wanted to commit suicide. He wanted to leave the country because he was unable to go out to meet anybody. He could not understand why it had happened to him. Memories of the crime kept coming back to him and he could not sleep for years. He was seeing a psychologist and getting better. He described still been traumatised two years after the event.
Mr Lee described the trauma of having to watch Mr Yang get hit and tortured for hours. He had also received psychiatric treatment but experienced difficulty getting counselling given that English is his second language.
A significant amount of material was tendered on behalf of the applicant: an affidavit of Michael Contos, the applicant's father, affirmed to February 2021; a report prepared by Dr Olav Nielssen, forensic psychiatrist, dated 28 January 2021; a letter prepared by the applicant dated 11 February 202; a character reference from Jon Contos dated 8 November 2020; a character reference from Tina Contos dated 13 November 2020; a character reference from Lawrence Cauchi dated 3 November 2020; a character reference from Chris Dionysatos dated 9 November 2020; a character reference from Brenda Louise Munro dated 8 November 2020; a character reference from Maria Mitropoulos dated 6 November 2020; a character reference from Aaron Khan dated 17 February 2021; a certificate of completion from Positive Lifestyle Program dated July 2020; and a certificate of attendance Health Survival Program dated 18 March 2019.
The applicant is the oldest of four siblings and had a stable upbringing. He has no prior convictions of offences involving violence and these offences have been described as out of character. He had worked in the real estate industry for most of his adult life and had a property development company. He was engaged to be married in 2018 but, as a result of these offences, that relationship broke down.
His parents had serious health issues in the past, including his mother's breast cancer in 2008 and a cardiac surgery and a subsequent stroke since his incarceration. His father suffers from Type 2 diabetes and had a triple bypass surgery in 2013 and an admission to a clinic for his mental health issues in 2016. His father's release from the clinic was followed by his parents' separation. The applicant's grandmother had died just before Christmas in 2018 after a long battle with dementia. A number of friends and family attested to his good character.
Brief oral evidence was given relevant to s 23 of Sentencing Act. Neither of the grounds of appeal concern that aspect of the sentencing process and I do not propose to refer to it further.
In addition to putting the applicant's subjective case, the submissions before her Honour focussed on the relevance of the parity principle and the fact that a different set of facts was placed before her Honour in relation to the two co-offenders.

Remarks on Sentence

Her Honour commenced her Remarks on Sentence by noting that she had sentenced the co-offenders on 3 April 2020. She noted that both received the same sentence despite making different findings on objective seriousness for each of them. Her Honour then noted the following: "I set out the sentences because ultimately a consideration of parity will arise. The extent to which it will apply is influenced by the prosecutorial decision to present markedly different facts against Dean Contos, the current offender and instigator of the offences, to those presented for the co-offenders. There is no repeated use of a bat, no knife, no scissors, no cable ties, no balaclava, no beanie, no threat to kill, no choking to unconsciousness. There is no denial by the victim of stealing. Whereas an assailant was not known, now it is said to be one of the co-offenders. Also, this offender does not have a separate offence of robbery in company listed on a Form 1. The more significant role attributed to this offender is however maintained. I am bound to proceed only upon what is tendered and must dismiss from consideration the more extreme facts agreed to by the co-offenders." [Emphasis added.]
Her Honour then set out the relevant maximum penalty and procedural history, including the fact that the applicant only pleaded guilty two days after the trial was due to commence. Given the lateness of the pleas, her Honour indicated that she would reduce his sentence by 5%. Her Honour then observed the following: "According to the facts, it is evident that the instigator of the offending was this offender. It was he who perceived he had a dispute with the principal victim. I accept that each offender is liable for the acts of others but I will also reflect upon the role of each individual. The principal victim was known to this offender and it was this offender who outlined the terms of the advantage sought. The secondary victim was not known to any of them and he was in attendance to assist the victim Yang with cleaning. Both victims were in attendance merely to purportedly clean the offender's home as the principal victim had done on a number of occasions previously. This was evidently a planned incident by this offender. The victim Yang was lured to the premises under a false pretence."
Her Honour then recounted the facts, as per the agreed facts, before noting that each of the two offences is proven by the involvement of at least two persons and that three persons had committed these offences, although in varying ways. It was noted that the co-offenders were also involved in a robbery of Mr Yang's personal property whereas the offender was not involved in the theft.
Given that ground 1 is a complaint as to the finding of objective seriousness, I propose to set out her Honour's reasons for her finding on that issue in full: "The facts disclose that the offender brought the other two men to his apartment and he prepared a room with a tarpaulin. There is evidence of planning by him. The offender commenced the assault upon the victim and the co-offender Gerrey-Burgess was also involved. There is no act attributed to the offender Korovou directly. The offender and an unnamed offender both uttered threats. The co-offenders acted to increase the level of intimidation. The person responsible for some acts cannot be nominated During the periods of detention, the victim Yang suffered multiple broken ribs, chest pain, bruising, abrasions and swelling. These injuries are significant but fall within the overall mid-range for injuries amounting to actual bodily harm. The offender is to be sentenced on the basis he believed the principal victim stole items of value from him. There is no evidence that this in fact occurred. In terms of objective gravity, the facts redact many of the more serious aspects of the offending that was accepted by both co-offenders and upon which they were sentenced. The facts for this offender disclose that significant acts were perpetrated by a co-offender. As referred to earlier these far more limited facts will result in a different determination on objective seriousness than would otherwise have been available. I am sentencing the instigator but on highly redacted facts. Even on the reduced violence and the absence of weapons, it was still a prolonged detention and still serious offending. This offender planned the offences in that he lured the principal victim to his home. He listed the support of the co‑offenders and he evidently prepared the room with the tarpaulin and other items. I proceed on the explanation for the offending to be a belief that the principal victim took property. That belief does not in any way warrant or excuse the conduct. I determine the specially aggravated offence to be of mid-level seriousness. The different facts do not influence this offence to the extent they influence the other offence. The secondary victim certainly witnessed less serious acts, perpetrated upon the principal victim. The aggravated offence is still a serious offence, although considerably below the principal offence. Within these assessments, they are only slightly lower than the assessment for the co-offenders." [Emphasis added.]
Her Honour went on to note the ongoing emotional and psychological harm for the victims but was not satisfied that this reached to the level of being an aggravating circumstance.
Her Honour then turned to the applicant's subjective case. She noted that he has a criminal history with his most serious penalty being a fine. She approached him as a person of prior good character and was satisfied that his antecedents did not operate to disentitle him to leniency. She noted that he did not give evidence but had written a letter to the Court acknowledging his "cowardly" conduct. On the question of remorse her Honour observed: "… most of the letter documents the impact to the offender and his ambition for the future. Any concern for the victims presents as superficial".
Her Honour noted that the applicant is still supported by his partner although the relationship has ceased. She referred to the numerous character references and, ultimately, accepted that the offender "does have remorse and insight".
Her Honour next referred to Dr Nielssen's report which documented the applicant's stable background and drug use as a teenager. She noted Dr Nielssen's reference to the applicant's grandmother having died shortly before the incident without the relevance of that being clear from his report. On that basis, her Honour indicated that she would not use it in any way to ameliorate the sentence.
It was noted that the applicant did not meet the criteria for a diagnosis of any psychiatric disorder although he had experienced depression and anxiety when he took steroids. Dr Nielssen's noted positive prognostic features, although he indicated that the applicant could derive some benefit from counselling to improve self-awareness, impulse control and decision-making.
Her Honour then dealt with s 23 of the Sentencing Act and indicated that she would reduce the sentence for 20% based on that material.
Her Honour went on to note that the applicant's prospects of rehabilitation and not reoffending were promising as he continues to have strong family and community support and will return to employment. She was satisfied the offending was out of character and likely to provide a salutary warning. Her Honour then noted the following "It is appropriate that regard be given to the principle of parity and the sentences received by the co-offenders. However, the circumstances, both objective and subjective, are different and inform the utility that might be gained. The objective seriousness for each offence falls marginally below that assessed for the co-offenders. Both co-offenders were considerably younger than this offender. The co-offenders both had breaches of conditional liberty. Overall, the antecedents between the three are not distinguishable With [sic] this being the first custodial sentence for all offenders. Both co-offenders had experienced considerable disadvantage that served to ameliorate sentence. The finding of rehabilitation and personal deterrence are more favourable for this offender."
Her Honour went on to make a finding of special circumstances based on the fact that this is the applicant's first time in custody and that more restrictive conditions apply due to COVID-19 conditions, although she noted that the variation would not be as significant as for the co-offenders as they would benefit from a longer period of parole to assist with their mental health, impulsivity and substance abuse issues.
Ultimately, her Honour was satisfied that this offence was an aberration, there was no suggestion of poor peer association given his overall prosocial lifestyle and that he would not need formal assistance upon release.

Applicant's submissions

The applicant submitted that her Honour erred in her assessment of the objective seriousness by having regard to the more serious facts upon which the co-offenders were sentenced. It was noted that her Honour found that the applicant's offending was marginally or slightly below that of the co-offenders. It was submitted that the objective seriousness of the applicant's offending was so significantly different from his co-offenders so as to require a finding that there was a significant difference in the level of seriousness of the offending in each case.
It was submitted that, unlike the two co-offenders, the applicant had a belief that the victim had stolen from him. It was, apparently, for that reason that the DPP did not press the robbery offence against him given that he had an arguable case of claim of right. The fact that he was not charged with the robbery had both legal and material significance.
It was submitted that even having regard to the fact that it was the applicant who instigated the offending his offending is reflected in the different agreed facts.
It was submitted that her Honour's reasoning was unsound in the italicised last paragraph of the Remarks on Sentence extracted above at [43] when she concluded that the different facts did not influence the objective seriousness for the aggravated kidnapping offence.
Overall, it was submitted that the differences in the factual foundations for both offences were so marked that it was not open to the Court to regard the objective seriousness of both of the applicant's offences as being "slightly lower" or "marginally lower" than that of the co-offenders. It was submitted that a substantially lower sentence should have been imposed in relation to both offences and therefore to the total effective sentence.

Crown submissions

The Crown relied upon the portions of the Remarks on Sentence in which her Honour explained her approach to the finding of objective seriousness as an answer to this ground.
It was noted that her Honour misstated the facts at the first page of her reasons when she stated that the victim twice denied stealing anything from the applicant and that one of the co-offenders made threats to kill him. Any mistake was one favourable to the applicant.
I shall address the remaining Crown submissions in my consideration below.

Consideration: Ground 1

It is well established that the assessment of the objective seriousness of an offence is one quintessentially for the sentencing judge: Mulato v R [2006] NSWCCA 282 at [46]. The applicant must establish House v The King error (House v The King (1936) 55 CLR 499; [1936] HCA 40) in order to succeed.
Her Honour found that the seriousness of the specially aggravated kidnapping charge for the co-offenders to be "mid-level", and that the aggravated detain charge was "still a serious offence" but "considerably below" the main offence. By comparison, her Honour found that the objective seriousness for each offence for the applicant to fall "marginally below" of that assessed for the co-offenders.
Although this ground contends for error in the assessment of objective seriousness, the real complaint under this ground is not with the finding per se but, rather, that the finding of seriousness for the applicant should have been well below that of the co-offenders rather than only "moderately" so. To put this another way, the complaint is as to the lack of disparity as between the respective findings.
I have already extracted the relevant portions of her Honour's Remarks regarding the findings of objective seriousness. They record that her Honour was acutely aware of the fact that different agreed facts had been put before her in relation to the co-offenders and that many of the more serious aspects of agreed facts which were accepted by the co-offenders had been redacted from the applicant's agreed facts. It was not suggested otherwise at the hearing of this application.
I have set out the relevant findings made by her Honour above. The most significant finding is that it was the applicant who instigated the offending. It was his dispute with Yang. He is the one who lured him to his premises on a false premise. It was he who enlisted the two co-offenders (who her Honour noted had "imposing builds"). It was also the applicant who prepared the room with the tarpaulin and other items. It was the applicant who was the first to assault the victim Yang.
The applicant relies upon his claim of right as a matter reducing the seriousness of his criminality when compared with his co-offenders. But no evidence was put before the Court to suggest that the principal victim had in fact stolen anything and he certainly was not charged with doing so.
When her Honour sentenced the co-offenders, she found that there was no evidence of any planning undertaken by either of them. This is to be contrasted with her findings in relation to this applicant. When sentencing the co-offenders her Honour also found that "the most significant acts were perpetrated by [the applicant] and that there was a "marked difference" between them and [the applicant].
Her Honour considered that the co-offenders "… both readily became involved based upon the impetus to recover stolen property…". Her Honour assessed the armed robbery offence on the co-offenders' Forms 1 to be a "lower level offence within this offence provision".
I have compared the agreed facts for the co-offenders with the agreed facts for the applicant. A helpful comparison chart was relied upon by the applicant at the hearing of this application. Significantly, they both describe the duration of the kidnapping and the injuries inflicted upon the principal victim to be the same. In the co-offenders' agreed facts no acts of violence were attributed directly to Korovou, and only a few acts of violence were attributed to Gerrey-Burgess directly.
The significant difference between the two statements of agreed facts is the mention of there being weapons in the co-offenders' agreed facts. It was not suggested in those facts that the co-offenders used them; rather, it was the applicant who was said to have used them. The relevant weapons were: a small baseball bat and two knives used in the apartment; a knife used in the car; and a pair of scissors. No weapon was attributed to either co-offender directly in their agreed facts. The co-offenders' facts also described the applicant using restraints whereas the only restraint attributed directly to the co-offenders was the cable ties that they both used to tie Yang's wrists together.
Overall, although it is to be accepted that the agreed facts for the co-offenders disclosed a more serious episode of criminality, that is because of acts attributed to this applicant rather than the co-offenders.
It seems to me that the real complaint is that her Honour, contrary to her stated intention, must have had regard to what the applicant was said to have done in the agreed facts of the co-offenders. In order for that argument to succeed, there would need to be no other explanation for the finding of objective seriousness made by her Honour in relation to this applicant to be only marginally lower than that of the co-offenders. For the reasons stated above, that is not the case.
I am satisfied that it was open to Her Honour to find that the objective seriousness of the applicant's offending was less serious than that of the co-offenders, but not significantly so.

Applicant's submissions

The applicant submitted that the starting point of the sentence imposed for the applicant on the specially aggravated kidnapping count was seven years and four months, compared to eight years for the two co-offenders, noting that for the co-offenders the robbery charge in the form one was taken into account.
In relation to the aggravated kidnapping the starting point was 26.67 months for the applicant compared with the notional starting point for the co-offenders of 32 months.
It was submitted that these starting points do not adequately reflect the differences in the cases presented to her honour.
It was submitted that, generally, the findings in relation to the applicant were more favourable or as favourable as those in relation to the co-offenders. It was conceded that the two co-offenders had "Bugmy" (Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37) backgrounds whereas this applicant did not. The applicant nonetheless had personal issues which led her Honour to make favourable findings in relation to his rehabilitation and risk of reoffending including that, unlike the co-offenders, the applicant was not on bail at the time of the offending. Like the co-offenders, her Honour found that this applicant was remorseful and had insight.
It was submitted that the objective differences in the applicant's offending compared to that of his co-offenders were such as to warrant a more significant differential in penalty and that the two different outcomes can be described as a "marked disparity" as considered by the plurality in Green v The Queen; Quinn v The Queen 244 CLR 462; [2011] HCA 49 ("Green v The Queen") at [31]-[32].
It was submitted that the very modest differences in the sentences imposed on the applicant compared to the sentences imposed on the co-offenders are not reasonably explicable by the degree of difference between the co-offenders and their offending.

Crown submissions

Annexed to the Crown submissions was a "parity table" which set out the similarities and differences as between the three co-offenders. It reflects a summary of the Crown submissions as to the similarities and differences between this applicant and his two co-offenders. I propose to consider the factors identified in that table in my consideration below.

Consideration: Ground 2

It is well established that a court may reduce a sentence not in itself manifestly excessive "in order to avoid a marked disparity with a sentence imposed on a co-offender": Green v The Queen at [31]. As the plurality went on to observe in Green v The Queen at [62] (footnotes omitted): "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."
As Gibbs CJ earlier observed in Lowe v The Queen (1984) 154 CLR 606; [19 84] HCA 46, "…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 starting point in the present matter is that the same sentencing judge sentenced both the applicant and the co-offenders. This Court has stated that, where possible, that practice is desirable. When the same judge hears both matters simultaneously, "… [he or she] will be in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way": Huckstadt v R [2016] NSWCCA 22 per Button J at [90] (with whom Johnson and Fagan JJ agreed). In Tuivaga v R [2015] NSWCCA 145, Hoeben CJ at CL (with whom RA Hulme and Wilson JJ agreed) observed at [55]-[56]: "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. 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])."
The sentencing judge was keenly aware of the relevance of the parity principle in the present matter, as the extracts from her Remarks on Sentence set out above make clear.
Following my finding that ground 1 has not been made out, the comparison of the respective sentences is to be undertaken on the basis that the applicant's objective seriousness is slightly below that of his co-offenders.
As for the applicant's subjective case, her Honour noted his co-offenders were considerably younger and that the applicant only had limited entries on his criminal history such that he was to be sentenced on the basis that he was a person of good character. Her Honour ultimately accepted that the applicant had remorse and insight and did not meet the criteria for diagnoses with any psychiatric disorder. Nor were the offences related to substance abuse. Her Honour found the applicant to have "promising" prospects of rehabilitation and of not reoffending. Her Honour made a finding of special circumstances but determined that the variation ought not be as significant as it was for the co-offenders.
In sentencing the co-offenders, her Honour noted both were relatively young and both were on conditional liberty at the time. Her Honour observed that Korovou had limited prior criminal offending (comprising two traffic matters), and Gerrey-Burgess had no prior offending. In relation to Korovou, her Honour had regard to his psychologist's opinion that he met the criteria for conduct disorder and PTSD. Her Honour stated, "[i]n considering personal deterrence, I take into account that the offender (Korovou) said in the sentencing assessment report that he was quick to anger and was unable to make positive choices while angry. He also said he is unable to regulate his emotions whilst using drugs".
In relation to Gerrey-Burgess, her Honour accepted his psychiatrist's opinion that his substance abuse issues were "in remission in custody", and that he had "an unspecified personality disorder which would encompass aspects of antisocial, histrionic and narcissistic personality disorders emanating from both genetic and environmental exposure". Her Honour accepted that both co-offenders had experienced disadvantage, and stated "[t]his adversity, and its likely correlation with the offending, will result in amelioration to the sentence. I accept each resorted to substance abuse to alleviate aspects of childhood trauma. I accept that each suffered poor judgment attributable to substance abuse". Her Honour found both co-offenders to be genuinely remorseful, and a finding of special circumstances was also made in respect of both.
The applicant's offending was serious. He instigated the kidnapping of two victims in the company of two co-offenders, for a period of almost five hours at different locations during which time Yang was repeatedly threatened and assaulted and received significant injuries including multiple broken ribs. Although the applicant contends that he had a claim of right, her Honour found there was no evidence that the principal victim had in fact stolen anything from the applicant. The secondary victim was not known to any of the offenders. Both victims continue to suffer psychologically. The applicant planned, instigated, and carried out the kidnapping, and enlisted the two co-offenders to assist.
I am satisfied that having regard to the differences in the respective cases of the three offenders, particularly in relation to the objective circumstances, the applicant has not demonstrated that he has an objectively justifiable sense of grievance as a result of the sentences imposed upon the co-offenders.
This ground should be dismissed.

ORDERS

I would propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.
LONERGAN J: I agree with N Adams J and the orders proposed by her Honour. I also agree with the additional remarks by Brereton JA.

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