Dawson v R

Court of Criminal Appeal (NSW)|2020-09-23|Before: Hoeben CJ, Rothman J, Bellew J

Solicitors: Legal Aid NSW - Applicant Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2019/69008 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 20/9/2019 Before: Harris DCJ File Number(s): 2019/69008

JUDGMENT

HOEBEN CJ at CL: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him on 20 September 2019 by her Honour Judge Harris (the sentencing judge) sitting in the District Court at Parramatta.

Ground 1A - The sentencing judge erred by failing to take into account a relevant consideration, namely consideration of the principles stated in Bugmy v The Queen (2013) 249 CLR 571 and R v Fernando (1992) 76 A Crim R 58

Ground 1B - In the alternative to Ground 1A, the sentencing judge erred in failing to give reasons as to why or why not, and if so how, the principles in Bugmy and Fernando were taken into account

Ground 2 - The applicant has a justifiable sense of grievance when comparing the sentences imposed on him with the sentence imposed on his co-offender

FACTUAL BACKGROUND

The background to the offences was as follows. The victims resided in units on the second floor of Department of Housing premises; Mr Craddock in unit 12 and Mr Keller in unit 11. At about 4:30pm on 3 March 2019, the applicant and co-offender attended the block. The co-offender started banging on doors yelling "Some bloke punched me about two weeks ago and it was up in this section". Ms White, who was in unit 12 with her partner Mr Craddock, went outside and spoke to the co-offender, who repeated the allegation and said "I got my man here. He's just out of gaol". Ms White told the co-offender and then the applicant, that Mr Craddock was not involved and asked them to leave or Mr Craddock would call the police. After a while they left.

Sequence 1 ("the first offence") - Unit 12, Mr Craddock

Ms White heard banging again from inside unit 12. She saw the applicant and co-offender banging on the door of Mr Keller 's unit. Mr Keller shouted at them to leave or he would call the police. The applicant then started ripping at the screen door of unit 12. Ms White slammed the door shut. The applicant ripped and kicked at the screen door. Mr Craddock opened the main door and said "Listen, it's not me. I don't fucking know your missus. I didn't touch her".
The applicant forced his way into the unit, yelling "I'm going to kill ya". Ms White and Mr Craddock attempted to force the applicant back through the door but both fell to the floor. Ms White was between Mr Craddock and the applicant who was yelling "I'm going to kill ya. You did it". There was a struggle and the applicant swung punches at Mr Craddock that did not connect. The applicant took hold of Mr Craddock by the beard and pulled out a clump of hair (Form 1 offence: sequence 4). The co-offender told the applicant it was not him and tried to pull the applicant off Mr Craddock. The co-offender eventually got the applicant out of the unit and Mr Craddock called triple-0.
The applicant had damaged the front door and screen door. Mr Craddock suffered bruising to his upper arms and the right side of his back and he had a small clump of hair pulled from his beard. Ms White had a bruise on her shoulder from falling on the ground when the applicant grabbed Mr Craddock.

Sequence 2 ("the second offence") - Unit 11, Mr Keller

Mr Keller was inside unit 11 when he heard voices and his front screen door rattling. He opened the main wooden door and saw the applicant standing behind the screen. While holding the screen door, the applicant said "Open the door" in a loud and aggressive voice. Mr Keller replied that he did not let strangers into his apartment. Mr Keller could hear a female yelling something about being touched by someone. He closed the door and called the police. Mr Keller heard the screen door being rattled. He opened the main door and saw the applicant standing at the screen door. Mr Keller told the applicant he had called the police. The applicant asked the co-offender "Is this the guy?" and the co-offender replied that it was not. Mr Keller closed the door again and could still hear the applicant and co-offender yelling. He called the police again to update them.
A couple of seconds later, Mr Keller heard what sounded like his screen door being pulled apart and the sound of metal hitting concrete. The main wooden door was kicked and flung inwards as the wooden frame broke. The applicant rushed about four steps into the unit and stood in front of Mr Keller , threatening him and making rambling accusations. Mr Keller could smell alcohol on the applicant's breath. Mr Keller told the applicant that he had called the police and that they were sending vehicles. The applicant said "If you don't call them back and tell them to forget it, I'll come back with some of my mob and beat the crap out of you". The co-offender told the applicant they should leave before the police arrived. The applicant left the unit and he and the co-offender walked away.
Police arrived and observed damage to the doors of units 11 and 12. They located the applicant in the rear yard of unit 1 at about 5:20pm. The applicant had a small laceration to his forehead that was bleeding.

Section 166 Resist arrest (and co-offender resist and assault police offences)

The applicant was handcuffed and arrested. While police were attempting to handcuff him, he tensed his arms and pulled away.
Police smelled alcohol on the co-offender's breath. She said repeatedly "Can I retaliate?" She tensed her arms and upper body and said she was going to retaliate. She dropped her body weight back onto the police. Once at the vehicle, she put her feet up on the doors and refused to get in. She threw her head back and fell onto the ground, kicking an officer in the leg twice, causing minor pain. Further police arrived and assisted in getting the co-offender into the vehicle.

Sentence proceedings

The applicant did not give evidence in the sentence proceedings. As a result, background information was provided by the agreed facts, the applicant's custodial record and a psychological report from Sarah Brann. In relation to the co-offender, the Crown tendered the same agreed facts, her criminal antecedents and a Sentence Assessment Report. The co-offender gave evidence in the sentence proceedings.

Objective seriousness

The sentencing judge described the offences as "aggravated offences involving intentional acts of intimidation, vengeance and violence" (Sentence judgment 6.9).
In relation to sequence 1, the sentencing judge noted that the offenders were seeking revenge for what the co-offender described as a punch to her chest two weeks earlier. From its description, it was not a serious assault. On this occasion, the co-offender threatened the occupants with the applicant, whom she presented as being "just out of gaol". This occurred while the applicant was banging on a third unit door and punching the screen door.
The sentencing judge noted that it must have been a terrifying experience for the occupants of unit 12. The applicant proceeded to assault Mr Craddock by attempting to punch him and pulling out a clump of hair from his beard. Both victims suffered bruising. Her Honour found that the offence was aggravated by the offenders being in company with one another and by being committed in the victims' home. Because of the nature of the serious indictable offence committed on the premises (intimidation), the sentencing judge assessed the offending in sequence 1 to fall "below mid-range, perhaps at a point that is between the mid-range and the mid point between low and medium range" (Sentence judgment 8.5).
The sentencing judge noted the difference in the roles of the applicant and the co-offender. While the co-offender was the instigator of the criminality, the applicant was clearly the aggressor and the implementer of the physical violence. After the applicant became physically violent, the co-offender acted to remove him from the victims' homes.
The sentencing judge noted that the Form 1 offence formed part of the act of intimidation by the applicant and as a result, her Honour did not significantly increase the sentence because of it (Sentence judgment 8.6).
In relation to the sequence 2 offence, the sentencing judge found that the applicant continued on his destructive rampage, which in her opinion, demonstrated a level of increased criminality. Her Honour noted that the applicant kicked open and damaged the front door of unit 11, despite being told that the occupant was not the person who had assaulted the co-offender. The applicant threatened to "beat the crap" out of Mr Keller nonetheless. Her Honour found that the objective seriousness of this offence fell "at a similar place on the spectrum of seriousness as the first" (Sentence judgment 8.8).
The sentencing judge noted that the co-offender's offence of intimidation involved being in company with the applicant when he broke into the unit and threatened the victim. Her Honour considered that this, as well as the fact that the offence was committed in the victim's home, aggravated the seriousness of the offending and represented a continuing course of intimidatory conduct (Sentence judgment 9.1).

Subjective features

The sentencing judge set out the applicant's subjective features as revealed in the psychologist's report. Given the comparatively narrow issue raised by Ground 1, it is useful to set out the psychologist's description of those parts of the applicant's background which were relied upon to support it. "Background history 7 Mr Dawson informed me that he is the youngest of two children to his natural parents. He grew up on acreage in Cooma and his parents continue to reside in the Snowy Mountains. His father worked long hours as a local truck driver and his mother worked various jobs, including as a hotel cleaner, and at a supermarket. He spoke about both of his parents in endearing terms, and stated that they are "good people". His father attempted to be involved with him through horse riding and shooting and Mr Dawson felt "close" to him. He described his mother as "a treasure" due to her warm, nurturing and affectionate nature. 8 According to Mr Dawson, neither of his parents have mental health issues or criminal histories. However, Mr Dawson reported being exposed to his father's alcoholism and violence. While his father was apparently never violent towards his mother, Mr Dawson witnessed his father physically assault other men at the pub when "someone pissed him off". Mr Dawson evidenced attitudes that appeared to normalise and justify this behaviour. He stated that this was "pub life back in the eighties" and that it was common to see a "fight outside". He stated that as a child he felt "proud" of his dad and looked up to him as he believed that his father "never did anything for no reason". He used derogatory terms in reference to people his father assaulted which externalised blame and insinuated the victims were deserving of violence. Mr Dawson added that "these days you look at someone cross-eyed and they put you up on an assault charge". He spoke about the men he observed in his childhood "sorting out" their issues through physical violence without police involvement. This appeared to build dismissive attitudes towards authority and rules. He also evidenced some hypermasculine ideas about what it means to be a man, based on these experiences, such as "if someone hurts the ones you love, you've got to take care of it". He lacked insight into the links between his life experiences, his attitudes and beliefs and his subsequent behaviour."
Although not referred to in that quotation from the psychologist's report, it appears that neither the applicant nor his brother was a recipient of any domestic violence at the hands of their father.
The other matters which formed part of the applicant's subjective case can be summarised as follows: 1. he had not maintained contact with his parents, owing to his substance abuse and anti-social lifestyle, and he lacked family support; 2. he was described as poorly socially integrated; 3. after leaving school in year 10 he developed skills in a number of areas but his excessive alcohol intake interfered with his employment prospects; 4. he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) as an adult and prescribed medication; 5. he had started drinking twice a week at the age of 13 or 14 and had been drinking excessively from 18 years of age, consuming 30 to 36 standard drinks per day. He acknowledged that his drinking impacted on his work and relationships and made him more aggressive. He had never made a serious attempt to reduce or cease his alcohol use. He lapsed within 72 hours of his release from custody because he did not believe he was getting adequate assistance from Community Corrections. He maintained minimal accountability for his decision making and would benefit from addressing those attitudes; 6. his motivation to cease his cannabis use was ambivalent at best. He had found that substance focused programs he had completed in the past did not really help. He was, however, motivated to enter a residential program in the community; 7. his lifestyle was described as highly dysfunctional; 8. his ADHD contributed to his tendency to be impulsive and was relevant to his substance and alcohol abuse and reactive violence; 9. he met the criteria for anti-social personality disorder and retained attitudes that justified and reinforced him using violence at times; and 10. he had some deficits in areas of executive functioning, in regulating his emotions and managing his behaviour, likely linked to his long-term abuse of alcohol and ADHD.

Other relevant findings

In addition to the conclusions set out in the psychologist's report, her Honour made the following findings.
The applicant's prospects of rehabilitation were poor given his previous history that included returning to heavy drinking within days of being released from prison, despite having completed programs. In making that finding, her Honour also had regard to the applicant's lack of motivation to take responsibility for giving up alcohol.
The sentencing judge considered the applicant's criminal history in detail. There is no need to repeat it in detail, other than to observe that at the age of 39 the applicant had a lengthy criminal history. It was replete with convictions for the possession of prohibited drugs, damage to property, assault, robbery armed with a dangerous weapon, destruction of property and other lesser offences which were almost all associated with the abuse of alcohol. Relevant to these proceedings was that at the time of the offences, the applicant was on parole for two separate sets of offences and had been on parole for only a matter of days which itself aggravated the offences (s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999 (NSW)).
The sentencing judge found that the applicant's criminal record demonstrated "a need for the sentence to address personal deterrence, as well as the protection of the community" (Sentence judgment 10.5).
The sentencing judge found in relation to both the applicant and the co-offender that there was a "demonstrative need to emphasise both general and personal deterrence" (Sentence judgment 15.9).
Her Honour found that each offender was allowed a discount of 25 per cent for their early pleas of guilty but her Honour was not prepared to make a finding of remorse in relation to either offender.
The sentencing judge found special circumstances, having regard to the risk of institutionalisation and the applicant's reported willingness to engage in treatment. Her Honour also found special circumstances for the co-offender, although the adjustment was slightly less as there was not the same need for intensive treatment.

Ground 1B - In the alternative to Ground 1A, the sentencing judge erred in failing to give reasons as to why or why not, and if so how, the principles in Bugmy and Fernando were taken into account

It was common ground that no submissions were made in the sentence proceedings on behalf of the applicant that the sentencing judge should take account of the principles outlined in Bugmy v The Queen when assessing the moral culpability of the applicant.
Although no such submission was made, the applicant relied upon the decision of this Court in Kliendienst v R [2020] NSWCCA 98 where N Adams J (with whom Simpson AJA and Rothman J agreed) found in favour of an applicant on the basis that the Bugmy principle applied, despite the fact that no submission to that effect had been made in the sentence proceedings.
In that case, although no submission had been made to the sentencing judge based on Bugmy v The Queen, there had been a significant focus on the applicant's difficult and violent upbringing which provided an explanation for his violent attack on the victim. In those circumstances, and given the close correlation between the facts of that case and those in Bugmy v The Queen, the Court allowed the applicant to raise the Bugmy issue in the appeal for the first time and upheld the appeal on the basis of that ground.
The applicant submitted that the same situation existed here and that not only should he be allowed to rely on the Bugmy principle, but the sentencing judge's failure to apply the principle in this case constituted error entitling him to be re-sentenced.

Consideration

In order to assess this ground of appeal, it is necessary to have regard to what was actually said by the High Court in Bugmy v The Queen. Relevantly, the plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) said: "40 Of course, not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence. However, Wood J was right to recognise both that those problems are endemic in some Aboriginal communities, and the reasons which tend to perpetuate them. The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way. ... 43 ... The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. 44 Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender. 45 The point was made by Gleeson CJ in Engert in the context of explaining the significance of an offender's mental condition in sentencing: "A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.""
It is apparent from those statements of principle that the facts of this case bear little relationship to the matters under consideration in Bugmy v The Queen. Similarly, there is little correlation between the facts of this case and those in Kliendienst v R which were conveniently summarised by N Adams J at [61] as follows: "61 The evidence before the sentencing judge included the following: (1) The applicant's anger difficulties are "likely to be associated with his exposure to violence and trauma in his early life"; (2) The fact that the applicant was fearful of his father "limited his opportunities to develop appropriate emotion regulation and interpersonal skills, and he instead developed a pattern of anger and mistrust"; (3) The applicant's exposure to violence and drug abuse throughout his childhood "likely normalised these behaviours for him"; (4) The applicant, in adulthood, endorsed "some ongoing indicators of trauma response such as difficulty trusting others, reckless behaviours (such as substance use), emotional dysregulation (such as suicidal ideation) and difficulties with anger (as part of an exaggerated "fight" or "flight" response); and (5) The applicant's depression, anxiety and anger difficulties appear to be a function of a complex trauma response to a persistent lack of safety throughout his early life."
That the applicant was influenced by his father's propensity to engage in "pub fights" and abuse alcohol is very different to the circumstances referred to in Bugmy v The Queen. In this case, the applicant admired his father's conduct and no doubt sought to emulate it. There were certainly psychological effects on the applicant as a result of his father's conduct but of a significantly different kind to those produced by profound childhood deprivation and an atmosphere of violent domestic abuse. Ms Brann set out those effects in her report and they were referred to and taken into account by the sentencing judge. Accordingly, whatever label is placed on the conduct of the applicant's father, its effect on the applicant was fully taken into account by her Honour.
While Ms Brann was critical of the ethos and conduct of the applicant's father, she noted that the applicant described his parents as "good people with no mental health issues or criminal histories". The applicant described a close relationship with his parents in childhood and denied any form of neglect or abuse. Nor was there any suggestion that he was exposed to criminal activity (other than his father's pub fights) by his extended family or otherwise.
Ms Brann devoted considerable attention to the applicant's history of alcohol and drug abuse and his more recently diagnosed mental health conditions. These were carefully considered by her Honour and played an important part in the conclusions which she reached.
Her Honour was mindful of the conflicting purposes of punishment and referred in her judgment to the speed with which the applicant lapsed into alcohol abuse and offending behaviour upon being released from custody and his minimal acceptance of responsibility for his decision making. Ultimately, her Honour determined that there was a "demonstrative need to emphasise general and personal deterrence" (Sentence judgment 15.2). Given the particular circumstances of the applicant, even if the sentencing judge had found that his upbringing operated to reduce his moral culpability, it was still open to her Honour to conclude that general and specific deterrence should be reflected in the sentence.
As one would expect, given the content of the psychologist's report, the submissions on behalf of the applicant to the sentencing judge focused upon his alcohol consumption and his recently diagnosed mental health conditions of ADHD and anti-social personality disorder (APD). These matters were carefully considered and taken into account by the sentencing judge. While counsel in the sentence proceedings referred to the circumstances of the applicant's childhood in a general descriptive sense, her Honour was not asked to make a finding that the applicant's moral culpability was reduced because of a profoundly deprived childhood.
On the contrary, it was the applicant's recently diagnosed mental health conditions which were relied upon as contributing to his offending. I have concluded that as the Bugmy principles were not raised, either directly or incidentally in the sentence proceedings, and the evidence was not such as to require them to be considered in the absence of a submission, the sentencing judge gave adequate reasons for the sentences which she imposed. It is clear from her reasons, that her Honour took into account the applicant's subjective material and the submissions which were made on his behalf.
In a somewhat bold submission, the applicant was critical of the sentencing judge's reasons because they failed to refer to Bugmy v The Queen and explain why it was that the decision did not apply to the facts of this case. Apart from the matters to which I have referred, it is quite unfair to be critical of a sentencing judge for not dealing with an issue when that issue has not been raised, either directly or even incidentally, before the judge.
It follows from the above that I would refuse leave to rely on Ground 1A and 1B.

Ground 2 - The applicant has a justifiable sense of grievance when comparing the sentences imposed on him with the sentence imposed on his co-offender

The applicant's complaint in this ground of appeal was directed at the total effective sentence imposed for the entirety of the offending. He submitted that the total sentence disclosed a disparity that was not justified. The applicant submitted that this was most clearly demonstrated by the sentence imposed in relation to sequence 1, where the offending of both the applicant and co-offender was the same.
The applicant submitted that by imposing different sentences, the sentencing judge primarily relied upon the different roles played by the applicant and the co-offender. He noted that while the co-offender was acknowledged to be the instigator of the offending, the sentencing judge described the applicant as being "clearly the aggressor and the implementer of physical violence" (Sentence judgment 8.2).
The applicant submitted that notwithstanding the differences in offences to which the applicant and the co-offender pleaded guilty and the different acts necessarily committed by each, there was no proper basis in the circumstances of the case to justify the extent of the disparity between the applicant and the co-offender's sentences, i.e. that the co-offender's sentence was effectively 57 per cent of that of the applicant.
The applicant submitted that the offences, and in particular sequence 1, were committed pursuant to a joint enterprise to attend upon the premises and obtain revenge for an earlier assault upon the co-offender. In making that submission, the applicant accepted that while participants in the joint enterprise are equally liable for all of the acts in the course of carrying out the enterprise, the sentencing judge could have regard to a participant's level of culpability by reference to their particular conduct.
The applicant submitted that in the present case it was significant that the driving force for the applicant's involvement in the offences was the co-offender. The applicant submitted that she was, as the sentencing judge found, the "instigator". The applicant submitted that it was open to conclude that the intention of both the offenders was to obtain revenge for what had occurred to the co-offender, and that the co-offender intended to use the applicant to achieve that end. The applicant submitted that this was revealed by her early statement "I got my man here and he's just out of gaol". The applicant submitted that the later differences between their conduct needed to be looked at with this in mind. The applicant submitted that the actual differences in conduct in these circumstances (where they were intended by the co-offender) could not justify the level of disparity revealed in their respective sentences for sequence 1 and the differences in the total effective sentences.
The applicant submitted that the act of intimidation to which the co-offender pleaded guilty also included the acts performed by the applicant (to avenge her). The applicant submitted that it was clearly the co-offender's intention that he would commit those offences and intimidate those persons which is why she entered a plea of guilty to the intimidation.
The applicant submitted that the Courts have repeatedly found that the culpability of an offender who is part of a joint criminal enterprise is aggravated when they are the instigator of the offending. The applicant submitted that this often occurred in the context of break and enter offences. The applicant noted that in R v Maher [2004] NSWCCA 177 this Court upheld the sentencing judge's finding that one offender was more culpable because he was the organiser and had partially influenced his co-offenders to commit the crime.
The applicant submitted that the co-offender's role was not "limited": she was the first to act by banging on the doors of the units; she made clear to those in the units that she and the applicant were there because she thought someone there had previously assaulted her and she encouraged the acts of intimidation/violence.
The applicant submitted that although he was sentenced for sequence 2, the co-offender was guilty of a discrete act of intimidation for her involvement in the conduct at Unit 11 (i.e. the unlawful act which the applicant committed while in the premises). The applicant submitted that the co-offender's intimidation was the very act engaged in by him as part of the aggravated break and enter. The applicant submitted that the legal difference between his conduct (sequence 2) and the co-offender's conduct (sequence 5) was that he entered the premises by four steps while he was engaged in the intimidation (and the co-offender was outside the unit and liable for the same acts of intimidation).
The applicant submitted that in terms of subjective considerations, he accepted that there were differences between his case and that of the co-offender which did not favour him but not to the degree that would warrant the very divergent sentences imposed.

Relevant principles

The following statements regarding the principle of parity in sentencing appear in the joint judgment of French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49: "28 ... Consistency in the punishment of offences against the criminal law is "a reflection of the notion of equal justice" and "is a fundamental element in any rational and fair system of criminal justice". It finds expression in the "parity principle" which requires that like offenders should be treated in a like manner. As with the norm of "equal justice", which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. ... 31 ... 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."
In Chamon v R [2020] NSWCCA 112 at [35]-[37] R A Hulme J (with whom Hamill and Wilson JJ agreed) stated: "35 This Court has observed that "considerable obstacles" are placed before an applicant contending error on a parity basis where a sentencing judge is fully aware of the sentences imposed upon co-offenders and the reasons for those sentences, and provides reasons for departing from those sentences: Tatana v R [2006] NSWCCA 398 at [28] (Howie J, Sully and Latham JJ agreeing). 36 In Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [173], this Court implicitly endorsed a proposition that it will be cautious and not overly willing to intervene where the same judge sentenced an appellant and the co-offender, recognised the importance of the parity principle and gave effect to it. 37 In Lloyd v R [2017] NSWCCA 303, I observed (at [95]), with the agreement of Payne JA and Garling J, that a differentiation between sentences imposed upon co-offenders was a discretionary assessment by the judge who had the facts and circumstances of the offences and each offender in mind in the one sentencing exercise. That observation is apposite in the present case. I went on to say (at [96]-[97]: "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. 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?""
Her Honour sentenced the applicant and the co-offender in the same proceedings. Her Honour was therefore "in a position to consider the interrelationship between 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).
The sentencing judge was explicit in her reasons for imposing different sentences on the applicant and co-offender for the first offence which they had in common: "The difference in the sentence imposed on Mr Dawson for this offence can be accounted for by the recognisably lesser role played by Ms Lawrence and her acts to stop the assault by Mr Dawson, as well as considerations of breach of parole that relate only to Mr Dawson." (Sentence judgment 17.15) Her Honour clearly had in mind the gratuitous violence engaged in by the applicant.
The sentencing judge had earlier found the co-offender to be "the instigator" who also acted to remove the applicant from the premises after he became violent. This was in circumstances where the applicant was "clearly the aggressor and the implementer of the physical violence". This distinction, having regard to the extent of the violence, was open to her Honour on the evidence.
It does not follow from the principle that co-offenders engaged in a joint criminal enterprise are equally guilty of offences committed jointly that they are equally culpable for the purposes of sentencing. It is for the sentencing judge to determine how their relative moral culpability (as opposed to legal liability) should be reflected in their respective sentences: McDowall v R [2019] NSWCCA 29 at [54].
There is no reason why the fact that the co-offender was the instigator of the offending should assume overriding significance in determining their relative culpability when their participation differed in other important ways. In the present case, the sentencing judge was entitled to give more weight to the fact that the co-offender did not directly participate in the violence towards the victims or the damage to property and in fact attempted to stop the applicant.
In relation to the applicant's breach of parole, he had been in the community for only a few days before he offended with this criminal activity, and the sentencing judge found this aggravated his offending. The applicant's breach of conditional liberty was an important point of distinction between him and his co-offender.
With respect to the second offence, the co-offender was being sentenced for the offence of intimidation, which carried a significantly lesser maximum penalty (5 years) and no standard non-parole period.
Examining the sentences overall, and taking into account the principles of totality, the following matters emerged: 1. the applicant had the benefit of only 1 month accumulation of the offences, the subject of this application for leave to appeal, upon his balance of parole; 2. the applicant had a significantly more serious criminal history than the co-offender and one that was found to raise the need for his sentence to address the protection of the community. The applicant had been sentenced to multiple sentences of imprisonment before these offences, whereas the co-offender had not been sentenced to any periods of imprisonment; 3. the applicant's prospects of rehabilitation were found to be poor, whereas the co-offender's prospects were guarded; and 4. while special circumstances were found for both the applicant and the co-offender, the applicant had the benefit of a slightly more favourable adjustment to the ratio, due to his greater need for intensive treatment and supervision.
The differentiation made by the sentencing judge between the sentence imposed upon the applicant and the sentence imposed on the co-offender was well open to her Honour in the exercise of her discretion. The applicant has not demonstrated a legitimate sense of grievance.
In summary, the applicant's offending in sequence 2 was far more serious than that of the co-offender in sequence 5. Although the co-offender was the instigator of the offending, once they had arrived at the premises it was the applicant who engaged in the gratuitous destructive activities directed at the doors of the units and it was the applicant who physically sought to engage with the occupants of the two units. Moreover, it was the co-offender who encouraged the applicant to cease his destructive activities and leave the premises.
The seriousness of the applicant's conduct, directed as it was at innocent persons in their homes, was appropriately characterised by Barr AJ in Palijan v R [2010] NSWCCA 142 at [22]: "22 It seems to me that a law-abiding member of the community is entitled to feel safe in his or her own home. There is to my mind something particularly repugnant about the forced entry of an offender into a house and violating the safety of that place by carrying out an attack like that of the applicant. In my opinion his Honour was entitled to take that matter into account as aggravating the applicant's criminality."
It follows from the above that there was a clear distinction between the criminality of the applicant and that of the co-offender which was appropriately reflected in their sentences. This ground of appeal has not been made out.
For the above reasons, the orders which I propose are: 1. In relation to Grounds of Appeal 1A and 1B, I would refuse leave to the applicant to rely on those grounds. 2. In relation to Ground of Appeal 2, I would grant leave to appeal but dismiss the appeal.
ROTHMAN J: I have had the advantage of reading, in draft, the reasons for judgment of Hoeben CJ at CL. I make the following additional remarks.
The applicant's childhood was not deprived; nor problematic. The example set by his father, in fighting in pubs with people to settle disputes, was a dreadful example for the applicant, but it did not normalise violence. Nor did the applicant understand that this was acceptable behaviour.
If the applicant were of a view that such behaviour was acceptable, then it would suggest a greater need for specific deterrence.
As to the issue of parity, I have a more qualified view than Hoeben CJ at CL. The co-offender was the instigator of the violence, although not the perpetrator of it. Her moral culpability was in using the applicant as her "weapon".
Equal justice requires equal treatment for circumstances that are equal. There are differences between the circumstances of the offending by the applicant and his co-offender. There are also differences in the subjective circumstances of each offender.
It seems that the co-offender has been sentenced in a manner that reflects the statistical evidence that women offenders are treated less severely. If so, it is inappropriate.
I accept that the applicant has a justifiable grievance, but, notwithstanding the absence of a Crown appeal against the sentence imposed on the co-offender, consider that sentence to be manifestly inadequate and wholly inappropriate for comparison purposes. While, ordinarily, particularly in circumstances where the Crown has not challenged the lenient sentence, the Court would intervene and strive for more appropriate parity, in this case, such a course would lead to the imposition of a wholly inadequate and inappropriate sentence. [1] In my view, the sentence imposed on this offender for this offence is at the bottom of the range available.
I agree with the orders proposed by Hoeben CJ at CL.
BELLEW J: I agree with Hoeben CJ at CL.

Endnote

R v Tisalandis [1982] 2 NSWLR 430; Youkhana v R [2011] NSWCCA 37 at [49]; Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46. 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: 31 March 2021

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