Dunn v R

Court of Criminal Appeal (NSW)|2022-06-22|Before: Beech-Jones CJ, Price J, Lonergan J, Jones CJ

Judgment

BEECH-JONES CJ AT CL: I agree with Lonergan J.
PRICE J: I agree with Lonergan J.
LONERGAN J: The applicant, David John Dunn, seeks leave to appeal against the sentence imposed upon him following his plea of guilty to one count of robbery while armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 (NSW). An offence contrary to s 97(2) of the Crimes Act has a maximum penalty of 25 years. There is no standard non-parole period.
Sentence was imposed by the District Court on 4 February 2021. The sentencing judge, Beckett DCJ, imposed a sentence of imprisonment of 5 years and 3 months, with a non-parole period of 3 years. The sentence commenced on 4 May 2020 and so the non-parole period expires on 3 May 2023.
The notice of intention to appeal was filed on 8 February 2021 but the notice of appeal was not filed until 22 February 2022. The applicant needs an extension of time and relies on the affidavit of his solicitor, Mr Portakolli, sworn 22 February 2022 to explain the delay. The delay was caused by the late provision of some documents about a particular custodial period and the need to wait for information regarding the co-offender's trial and sentence which had taken place in May and July 2021. The explanation is satisfactory and the delay understandable.

The co-offender's sentence

Mr Jackson pleaded not guilty to the same charge, robbery armed with a dangerous weapon ("the subject offence"). He was tried before a jury and found guilty on 14 May 2021. A sentence hearing was conducted on 2 July 2021. The sentence imposed by the District Court on 12 August 2021 was imprisonment for 3 years and 8 months with a non-parole period of 2 years and 2 months: R v Jackson [2021] NSWDC 416.
The judge who sentenced Mr Jackson, Weber SC DCJ, was provided with Beckett DCJ's sentencing remarks regarding the applicant. He also received submissions specifically directed to the issue of parity. His Honour dealt with parity at [73] to [79] of his remarks on sentence. He noted that there was a significant overlap between the sentence imposed on Mr Dunn for the subject offence and other sentences that Mr Dunn was serving at that time for other offending. This meant that the non-parole period for that other offending did not expire until 18 months into the 3-year non-parole aspect of the sentence imposed on the applicant by Beckett DCJ for the subject offence. His Honour observed that the practical consequence of the accumulation, (and concurrence), in the sentences imposed on the applicant was, in broad terms, that a non-parole period of approximately 18 months was entirely referable to Mr Dunn's participation in the subject offence.

The circumstances of the subject offence as summarised in the remarks on sentence of Beckett DCJ regarding the applicant

Her Honour noted that an agreed statement of facts was tendered which she summarised relevantly as follows: "… At about 12.10am on Saturday 27 September 2014 the offender and the co-offender Paul Jackson entered the Royal Hotel in Richmond. At this point in time Jake Manning was working behind the bar, the hotel manager Aaron Bean was having a conversation with Kirk Burgess and security officer Christopher Brien was also working. There were a number of other staff working at various locations inside the hotel. About 30 minutes prior to the arrival of the two males Mr Bean prepared the bar for closing by counting the money and doing the floats for the next day. He put money in the tills to take them upstairs to lock away in the safe when the hotel closed later that night. In total there were about eight cash registers behind the main bar. At 12.11am CCTV footage depict the two males approaching the bar where Mr Manning was working. Mr Manning asked if he could help and the co-accused said "Give me all your cash now". The co-accused was wearing a dark coloured top, black gloves, black hat and a black scarf covering his mouth. He was described as being about five foot eight, of stocky build, late 40's, very dark complexion with an Australian accent. Mr Manning saw that the male was holding a black coloured pistol and put his hands up. Mr Manning described the pistol as follows ''It did not look authentic, it appeared too shiny for a real pistol. It looked more like a toy gun". Mr Manning stated he however was not going to take the risk that he was wrong about the pistol and was therefore compliant with the demands of the co-accused. The co-accused told Mr Manning to open the tills, Mr Manning moved along the bar and opened the tills one by one. The co-accused followed Mr Manning and said ''Do you think we're fucking junkies, we're not rookies". The offender entered the bar area and remove cash from the tills, stuffing cash into his pockets whilst the co-accused stood guard at the entrance of the bar. The CCTV does not reveal that the offender was in possession of a bag or any other item to put the money into. Mr Manning told police that the offender did not have a bag. The offender was wearing a dark coloured hoodie and a black hat. The hood of his jumper was down and not covering his head or face, making his face clearly visible. He had a tattoo on the top of his right hand around the wrist area which was described as thick and black and which can be seen on the CCTV footage. Mr Manning saw the tattoo and was able to provide a description of it to the police. The offender was not wearing any gloves or any other hand covering. Mr Manning saw the offender was carrying however a butcher's steel, otherwise referred to as a sharpener. The sharpener can be seen on the CCTV at one stage tucked under the offender's arm whilst he was taking notes out of the register. In describing the actions of the offender Mr Manning said it looked like he was not really prepared, he was "dropping some of the notes and was fumbling quite a lot.'' The offender dropped the butcher's steel and some cash on the ground whilst in the process of removing cash from one of the tills. These items remained on the ground and the offender did not attempt to retrieve them. The actions, and identity, of the offender are depicted, I am told, on the CCTV footage. Mr Bean approached the co-accused who turned around and pointed the gun at him. He said "Back up or I'll shoot''. Mr Bean told him he was the manager and the co-accused replied "Say no more or I will shoot you in the knee". Mr Bean took a few steps back and sat on a chair. At this point in time Mr Brien entered the bar area and saw the co-accused who said "Get down, get on the floor". Mr Brien looked at the co-accused and saw him holding the hand gun. The co-accused again told him to get on the floor and he lay on the ground with his hands about his head. Whilst the offender was taking money from the tills the co-accused pointed the gun at Mr Manning and said "Where's the fucking safe". He replied "There's no safe down here, the only safe we have is upstairs and we don't know how to get into it". The offender moved towards the till located at the other end of the bar and removed cash. The co-accused moved in front of the bar and said to the offender "Hurry the fuck up and stop being greedy". A short time later the offender and the co-accused ran out of the hotel and were depicted on CCTV footage running in a north-easterly direction along East Market Street towards Francis Street. A witness saw the two males enter a vehicle that was parked in Francis Street and heard the car drive off at speed. After the two males left the bar Mr Manning called triple-0 and reported the robbery, Mr Manning said no one was hurt but that he had just had a gun pointed at him and he was "not real good." Mr Manning had said they had got lots of cash. The estimate of the cash stolen was between $10,000 and $15,000. Following the robbery a crime scene examination was conducted whereupon the black knife sharpener was located on the ground where it had been left behind the main bar area. The sharpener was seized and trace swabs taken from the handle."
Although the subject offence was committed on 27 September 2014, the applicant was not arrested and charged until 28 January 2020. He pleaded guilty on 16 October 2020.
The delay in charging the applicant was explained as being due in part to an error by the officer in charge of the investigation making a mistake regarding DNA results. The applicant had been carrying a butcher's steel (the "black knife sharpener" referred to in the facts) which he dropped and left at the scene. In January 2015 DNA testing identified the applicant's DNA as being the major component on the handle, but the officer in charge had misinterpreted the results.
The co-offender Mr Jackson was not charged with the subject offence until July 2019 after admissions were made by him during a covert operation targeting him for that offence.
In her remarks on sentence, Beckett DCJ identified a number of features of the applicant's case which distinguished it from the common factors a Court would need to consider utilising the guideline judgment for offences of this kind of: R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 ("Henry"). These included that the applicant was entitled to a 25% discount for his plea of guilty, he was found to be remorseful, he had a significant background of disadvantage, he was 34 years old at the time of the offending and 40 years old at the time of sentence, the amount of cash taken in the commission of the offence was substantial, the offence involved indicators of planning, he was with someone who was armed with a pistol, (although whether it was genuine or a replica remained unknown), the applicant was armed with a butcher's steel and the offence involves significant threat of violence.
Her Honour described Mr Jackson as "the more notable moving force" during the robbery, but that it was the applicant who gathered the cash. She found the offending to be towards the middle range of objective seriousness. She noted the applicant's significant criminal record which disentitled him to leniency.
An overview of the applicant's criminal record was cited under the heading "Aggravating features", and it is appropriate to reproduce this part of the remarks in their entirety for the purposes of transparency and to understand her Honour's approach to totality and the need for the sentence imposed to reflect the applicant's overall criminality: "It is accepted that it is an aggravating feature that the offence was committed whilst in company pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act. The offender has a significant criminal record including offences dating back to the Children's Court in 1994, the content of which becomes apparent when consideration is given to the subjective material presented in this matter. He was first subject to a control order as a juvenile in 1995 in relation to a break and enter offence. The offender committed his first robbery offence when he was still a juvenile in 1996 when he was dealt with by Wellington Children's Court. A further offence of armed robbery was committed again when he was still a juvenile in 1998. His first gaol sentence was imposed in 2000 when he was 20 years of age. His second armed robbery offence was committed that same year resulting in a period of imprisonment of three years and nine months, non-parole two years. Thereafter he has spent the majority of his adult life in custody, committing a robbery in company offence during 2003. He was released in 2009 to parole and entered a period of time in a rehabilitation program and managed to remain in the community for a period of three and a half years, comprising the longest period of time out of custody for most of his adult life. He was returned to custody on 7 May 2013, he was briefly out of custody for periods of less than four months in 2014, 2015 and 2016. It was during a four month period out of custody in September 2014 that the subject armed robbery offence was committed. Relevant to the sentencing exercise the offender committed an aggravated break and enter and steal matter on 16 March 2018 for which he received a sentence of 30 months, non-parole period 15 months to date from 16 March 2018. He was released at the end of the non-parole period on 15 June 2019 to parole. Whilst on parole for that offence he committed a series of serious shoplifting offences for which he thereafter received an aggregate sentence of 26 months, non-parole period 20 months to date from 4 March 2020. His current release date is 3 November 2021. The effect of the sentencing exercise imposed an effective ratio of about 88% of non-parole to head sentence. Of course the offender's criminal record does not aggravate the subject offence however clearly it disentitles him to leniency."
Her Honour went on to analyse the subjective material which included a Sentencing Assessment Report dated 25 January 2021 and a report of Dr Dayalan, forensic psychiatrist, dated December 2020. There was also tendered on sentence an affidavit of the applicant and some other material. The applicant gave evidence.
Her Honour comprehensively dealt with the applicant's subjective features which included his difficult upbringing with early exposure to alcohol and drug abuse and violence. She noted that his background included being sexually abused in a boys' home, as well as his own drug and alcohol abuse. Dr Dayalan diagnosed relevant PTSD and concluded that past substance abuse likely adversely affected the applicant's cognitive capacity to fully understand the consequences of his behaviour.
Her Honour also referred to the applicant's own affidavit and oral evidence covering his past heavy involvement in drug taking, his difficulties in custody during COVID-19 and the unavailability of programs. Her Honour noted the positive evidence of improvement with attitude, his wish to work and to reform from drug-taking with a willingness to attend a full-time drug rehabilitation program.
Her Honour proceeded to deal with mitigating factors: "The offender is entitled to a discount of 25 per cent for the utilitarian value of his plea. It is accepted that the offender has demonstrated remorse, both by his plea but also in his evidence before the Court, corroborating his expressions of remorse to the report writers. I am unable to find that the offender's prospects of rehabilitation are good. However, I am prepared to say that they are perhaps better than they have ever been in his adult life. I am prepared to recognise also, that this offender may be at the cross roads, given his age and recent attempts to address his chronic drug dependency by accepting treatment by way of the Suboxone Program and stating his willingness to attend full-time rehabilitation, by staying off the drugs whilst being in custody. And, he has expressed insights into his various difficulties in addition to the damage done to others by his offending conduct. I accept the Crown's submission however, that the offender's prospects of rehabilitation cannot be properly assessed, until he is released into the community. Noting initially, at least, the offender plans to return to his family home, where he resided at the time of the shoplifting offences. How he manages his apparently well-entrenched association with other drug users, remains to be seen. The ''green shoots" of recovery however, for this individual are apparent in his complete absence of in-custody disciplines since January 2019. His participation in full-time work as an upholsterer with the gaol, his participation in the Drug Court Program albeit short-lived due to his arrest on this matter and his stated willingness to go into full-time rehabilitation prior to release into the community."
Her Honour comprehensively dealt with Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy") issues under the heading "Background of Disadvantage" as follows: "The offender's background as described has all the hallmarks of disadvantage on multiple levels. His criminal record tells a story. Being placed before the courts from the age of 13. Placed into an institution by the age of 15. The impact of institutional sexual abuse is now better understood by our society, as is the nexus between exposure to such abuse and subsequent development of mental health and drug problems, and the consequential involvement in the criminal justice system. The roots of his interaction with the criminal justice system are obvious, given his very early exposure to domestic violence, drug and alcohol abuse, interaction with police in the context of poverty, over-crowding and removal from the care of his mother. In short, this individual has had little chance in his early life, to exercise independence of will and character, before drug-use and related offending had become habitual in his daily life. These various forms of disadvantage, are now well-recognised by our courts. However, as was recognised by the High Court in Bugmy v R [2013] 249 CLR 571, sometimes the impact of disadvantage can point in different directions, when it comes to the application of sentencing principles. I accept that there is a clear link between the offender's exposure to various forms of disadvantage from a young age, and his use of drugs and consequential criminal offending behaviour, as is set out in the psychiatrist's report. Although intoxication, where self-induced, cannot mitigate the offending conduct pursuant to s 21A(5)(a)(a) of the Act, it can nonetheless be relevant to an assessment of his moral culpability, as was recognised by Rothman J in Kelly v R [2016] NSWCCA 246 at 50. As was recognised by Simpson J in R v Millwood [2012] NSWCCA 2 at 69, a person with a background of deprivation does not bear equal moral responsibility to a person who has experienced a normal or advantaged upbringing, because common sense and common humanity dictate that such persons will have fewer emotional resources to guide his or her behavioural decisions. Similar sentiments were found in the judgment of the plurality of Bugmy where the Court emphasised that courts should give full weight to an offender's deprived background in every sentencing decision, (at [44]), recognising that a background of disadvantage may leave its mark on a person throughout life, including by compromising a person's capacity to mature and learn from experience, noting it was a feature of the person's makeup and remains relevant to the determination of an appropriate sentence, at 43. See also Kentwell v R (No 2) [2015] NSWCCA 96 (at [86] - [89], [94]). I have had reference to the Public Defender's Bugmy Bar Book chapter on early exposure to alcohol and other drugs, although I note that there are numerous other chapters that would have application to this individual. I take judicial note that research shows that children in families with parental or carer substance abuse, are at greater risk of a range of adverse developmental outcomes. Living in a household where misuse of alcohol and drugs occur, may increase the likelihood of children being substance misusers themselves and being involved in the juvenile justice system. The direct effects of childhood exposure to alcohol and other drug abuse, may include emotional and physical abuse, maltreatment, modelling of poor drinking and substance abusing behaviours, inadequate supervision and separation from parents. The placement of children into the care of other care givers or the placement with informal kinship care arrangements, or being placed in out of home care, protection and authorities can result Parental incarceration and/or experiences of out of home care, are themselves factors which may increase the likelihood of a person coming into contact with tile criminal justice system. The relevant references to those studies can be found on the website just cited. The potential relevance of evidence of early exposure to alcohol and/or other drug abuse in sentencing proceedings includes an assessment of moral culpability, moderation of the weight to be given to general deterrence and determining the weight to be given to specific deterrence and protection of the community. It is also relevant to a finding of special circumstances and the shaping of conditions to enhance prospects of rehabilitation. I accept that matters personal to the offender that are causally connected with or materially contributed to the commission of the offences, are relevant to the assessment of the objective criminality of the offending. See Tupania v R [2018] NSWCCA 247 at [112]. Accordingly, I find that the offender's disadvantaged background and resulting diminished moral culpability, has a modest downward impact on my assessment of the objective seriousness of the offence as set out above."
Her Honour then specifically dealt with the effects of delay on sentence: "The delay in instituting proceedings against the offender for this 2014 offence is a complicated feature of this sentence. The delay was reportedly due, as stated, to an oversight by the investigating police officer, who had the evidence of the DNA link to this individual, shortly after the commission of the offence in 2014. The authorities also had the CCTV footage clearly depicting, I am told, the offender and his distinctive tattoo on his hand. Despite this evidence, the offender was not charged until the co-offender was charged in early 2020. By then the offender had been in and out of custody several times, in respect of an offence of being armed with intent in 2016, the aggravated break and enter in 2018 already mentioned and, the series of shoplifting offences in 2019. It is well-recognised that delay is not itself a mitigating factor, although it may well, in combination with other relevant sentencing factors, be favourable to an offender who has demonstrated rehabilitation in the interim period. The Crown concedes the delay has had the impact, that the offender is to be sentenced as he is assessed today, as to his capacity for rehabilitation. And that whilst the sentence ought not be mitigated by virtue of the delay, it may play a part in the exercise of totality. As I said, the interim period has presented a very mixed picture. The offender submits that had he been dealt with at an earlier time, he would have been able to complete his participation in the Drug Court Program. The cancellation of his attendance, only taking place due to his being charged for with this offence."
Her Honour applied focus to totality and the effect of delay entirely in accordance with principle: "The offender submits that it is within my discretion to backdate the offending to as early as 4 December 2019, when the offender's parole was revoked, concerning the 30 month sentence for the aggravated break and enter offence committed in March 2018. Alternatively, it is submitted that 28 January 2020 was the date the offender was arrested for the subject offence. After which, he was sentenced to the shoplifting offences, committed from September 2019 to date from 4 March 2020. It is well-recognised that in the exercise of totality, I ought fix the appropriate sentence and then consider issues of concurrence and accumulation, Pearce v R [1998] 194 CLR 610 at [45]. I note that delay has a role to play, as no doubt significant totality would have been exercised with earlier sentences, had the offender been charged at an earlier point, as was appropriate. However accumulation must also be allowed for in circumstances where the offending is discrete and involves different victims, despite all offending being apparently drug-related. I also note that I am to consider the overall sentencing exercise when considering the overall ratio of non-parole to head sentence. Not just as it concerns the discrete sentence I impose. I take into account that the structure of the current sentences imposed, presents an overall ratio of 88 per cent as stated. I propose to take into account the delay factor by allowing for a greater period of concurrency than I otherwise would. I intend nonetheless, to provide for a degree of accumulation of sentences to allow for the discrete nature of the offences committed and the number of victims impacted albeit to a lesser degree than I otherwise would."
Her Honour found special circumstances on the basis of the applicant's clear need for intensive rehabilitation for drug issues and extensive counselling for his identified psychiatric and psychological issues. She also referred to his institutionalised status and the need for an extended and stepped process of supported reintegration back into the community having spent the majority of his adult life in custody. The ratio of non-parole period to head sentence was 60%.

The sentence imposed on the applicant backdated to commence on 4 May 2020

The backdating to 4 May 2020 reflected a degree of accumulation upon a sentence for a series of shoplifting offences committed between October and December 2019. The applicant was charged with those offences on 4 December 2019 and bail was refused. He was sentenced in the Penrith Local Court on 26 August 2020 to an aggregate term of imprisonment of 26 months commencing on 4 March 2020 with a non-parole period of 20 months which was due to expire on 4 November 2021. The period of accumulation for the subject offence was accordingly 2 months.
The applicant was already serving another sentence as at 4 May 2020, following revocation of parole for the offence of aggravated break, enter and steal, (and related offences), committed on 16 March 2018. For that offence he was sentenced in the Parramatta District Court on 6 December 2018 to 30 months' imprisonment with a non-parole period of 15 months to date from 16 March 2018. The overall sentence for that offence expired on 15 September 2020. The applicant was released upon the expiry of the non-parole period on 15 June 2019, but parole was revoked on 18 December 2019 effective from 14 October 2019 following the shoplifting offences for which he was arrested and charged on 18 December 2019.

Sentencing of the co-offender Mr Jackson

Mr Jackson was sentenced to 3 years 8 months, with a non-parole period of 2 years 2 months to commence on 18 July 2019 (the date of his arrest). The non-parole period expired on 17 September 2021.
Weber SC DCJ referred to the guidelines in Henry and identified features which distinguished Mr Jackson's case. He found that Mr Jackson's criminal antecedents disentitled him to leniency. He concluded that the offending was slightly below the midrange of objective seriousness.
His Honour found that Mr Jackson's upbringing was characterised by significant deprivation. His mother was Aboriginal. He suffered separation from family members, suffered physical, sexual and psychological abuse and was introduced to offending early in his life. He was introduced to drugs at an early age and suffered from mental illnesses including PTSD and a major depressive disorder.
His Honour was satisfied that there was a clear link between Mr Jackson's exposure to disadvantage, his use of drugs and consequent offending behaviour. His Honour found that there was a substantial lowering of his moral culpability and that less weight was to be attributed to general deterrence.
His Honour assessed Mr Jackson as having a "medium to high risk of reoffending" and concluded that, while somewhat guarded, the co-offender's prospects of rehabilitation were not reduced to the point of insignificance and gave Mr Jackson a "substantial benefit of the doubt" regarding rehabilitation.
Mr Jackson had been arrested on 18 July 2019 and was refused bail. On 4 October 2014, he had committed a robbery and for that offence, on 24 July 2017 he was sentenced to 5 years 3 months with a non-period of 3 years 9 months. In this regard, his Honour accepted that there would have been some concurrence and arguably a significant overlap with the sentence for the subject offence, had both matters been sentenced at the same time.
His Honour also took into account that during the period of the delay, Mr Jackson appeared to have shown some positive signs of rehabilitation, having successfully lived independently on parole between 9 July 2018 and 18 July 2019 when he was arrested for the subject offence.
His Honour recognised that considerations of parity with the applicant as well as totality were of relevance in his sentencing approach to Mr Jackson. His Honour referred to the fact that the applicant's sentence significantly overlapped with other sentences that he was serving at the time and the practical consequence of the overlap was that a non-parole period of approximately 18 months of the applicant's sentence for the subject offence was entirely referrable to that offence.
His Honour noted that Mr Jackson had already served a "lengthy custodial sentence" for his 4 October 2014 robbery offence (with which the applicant was not involved) and also noted that Mr Jackson did not reoffend on parole.
His Honour concluded that the extent of differentiation between the roles of Mr Jackson and the applicant in the subject offence was "not so marked as to play a material role in relation to parity".
He also found special circumstances on the basis of the need for significant ongoing counselling, as well as Mr Jackson's institutionalisation. The non-parole period imposed was 59% of the head sentence.

Applicable principles relating to parity

The principles to be applied are well established. In Postiglione v The Queen (1996) 189 CLR 295 at 301-302; [1997] HCA 26, ("Postiglione"), Dawson and Gaudron JJ put it in the following way: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." (footnotes omitted)
In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 ("Green"), French CJ, Crennan and Kiefel JJ said at [32]: "A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders."
The Court of Appeal revisited this statement of principle in Dawson (a pseudonym) v R [2021] NSWCCA 33 at [79] and [80,] emphasising the point that there are other factors relevant to sentence that may well not be equal: "[79] Under his first ground of appeal, the applicant in essence invokes the "parity principle". In this regard, the High Court has held, in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green v The Queen) at [28] (French CJ, Crennan and Kiefel JJ): "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." (footnotes omitted) [80] Thus, persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things may not be equal because of matters such as the age, background, previous criminal history and general character of the offenders, and the part which each played in the commission of the offence: Lowe v The Queen (1984) 154 CLR 606 at 609 (Gibbs CJ); [1984] HCA 46 (Lowe v The Queen)."
However as submitted by the Crown, the parity principle is not just concerned with identical outcomes in cases that "are relevantly identical", it also seeks "different outcomes in cases that are different in some relevant respect": Wong v The Queen (2001) 207 CLR 584 at 608 per Gaudron, Gummow and Hayne JJ.
In Postiglione at [303], Dawson and Gaudron JJ said the following in relation to differences between co-offenders' criminal histories and, relevantly to the situation here, custodial patterns: "[I]t is convenient to observe, once again, that, as between co-offenders, different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison. And, of course, it is necessary when applying the parity principle that like be compared with like. There may be some aspect of one offender's criminal history or custodial situation which has no counterpart in the case of his or her co-accused. If so, it may justify the imposition of a different sentence..."
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: Chamon v R [2020] NSWCCA 112 ("Chamon") at [35], citing Tatana v R [2006] NSWCCA 398 at [28].
In considering whether the applicant has a justifiable sense of grievance, it is also to be borne in mind that the sentencing decisions being reviewed are qualitative and discretionary judgments: Green at [32] per French CJ, Crennan and Kiefel JJ; Borg v R [2019] NSWCCA 129 at [88] to [89] per Bathurst CJ, Hamill and N Adams JJ agreeing; Lloyd v R [2017] NSWCCA 303 ("Lloyd") at [96] to [97] per RA Hulme J.
It is well established that the sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria, and an appeal on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders: Green at [31] and [32]. This Court will not interfere lightly with the exercise of the discretion when the sentencing judge has taken into account earlier sentences imposed by other judges: Postiglione at p 336 to 337 and Green at [32].
In Chamon, Hamill J stated the question as whether considered objectively and taking into account all the relevant differences, there is a proper or "due proportion" between the sentences and whether that outcome leaves the applicant with a justifiable sense of grievance: Chamon at [58]. Giving effect to the approach and language of the High Court, another way of expressing the issue is that a sentence that creates a justifiable sense of grievance is not one that was reasonably open: Chamon at [61]. The question is whether the differentiation made by the sentencing judge was open in the exercise of the sentencing discretion: Chamon at [59], citing Lloyd at [97] per RA Hulme J.

(i) The applicant's submissions

Mr McLachlan, counsel for the applicant, submitted that Mr Jackson played a much more significant role in the subject offence because of the following matters: he had his face covered with a black hat and scarf, made the initial demand from the bartender, was the person holding the (possibly replica) pistol, was the one who thereafter directed what was happening, pointed the pistol at the hotel manager and threatened to shoot him, directed the staff at gun point to lay on the floor and pointed the pistol at the bartender to make further demands from him. In contrast, the applicant's role was "limited to holding a butcher's steel and removing cash from the tills" and that he did not give Mr Jackson any directions or demands.
Mr McLachlan argued that the objective criminality of Mr Jackson was significantly higher than the applicant's, and the differences in the subjective cases were not such as would explain the disparity, particularly noting the 25% reduction for the guilty plea by the applicant.
Whilst both had relevant disadvantaged backgrounds that activated Bugmy considerations, and both had PTSD, the applicant was found to be remorseful whereas Mr Jackson was not.
Mr McLachlan noted briefly the effect of delay on the sentencing exercise, referencing only that Beckett DCJ had "noted that it had a role to play" and that Weber SC DCJ had stated that he "had taken into account", but made no further analysis. I interpolate that this is a subject to which I will return because both delay and the effect that had on the sentencing discretion exercised by Beckett DCJ and Weber SC DCJ, and the application of totality considerations, provided important points of difference between the respective circumstances of Mr Jackson and the applicant, and that examined together, both explained and justified the difference in sentences.
Mr McLachlan argued that even allowing for the fact that the applicant had overlapping periods of revoked parole and his non-parole period for completely distinct offending, and even though those periods in effect totalled 20 months (March 2020 to November 2021) and even though there was an earlier 3 and a half months solely referable to a revoked parole period (14 October 2019 to 30 January 2020), the difference between the respective non-parole periods imposed, gave rise to a marked disparity because the applicant's non-parole period was still higher than Mr Jackson's by 10 months.
Mr McLachlan also submitted that the head sentences imposed resulted in the applicant being on parole for 27 months while Mr Jackson's parole period was only 18 months, again an indication of unjustified disparity.

(ii) The Crown's submissions

The Crown submitted that it was significant to the sentencing discretion for the subject offence in Mr Jackson's case that he had committed an offence similar to the subject offence, very soon after it, and that Mr Jackson had already been released after serving a sentence for that offence.
The circumstances of a co-offender released on parole were addressed recently in R v Obbens [2022] NSWCCA 109 ("Obbens"), and in R v Cattell [2019] NSWCCA 297 ("Cattell") and Porter v R [2019] NSWCCA 117 ("Porter"). Where there is a delay in the prosecution of one or more of a series of offences which are closely related in time and character, causing fragmentation of sentencing proceedings, adjustments may need to be made.
In Obbens, a Crown appeal against sentence, the offender had already served an aggregate sentence of imprisonment for sexual offences against children committed between 1987 and 1989, when he came to be sentenced again for an additional similar offence committed in 1989. For that additional offence, he was sentenced to an 18-month community corrections order.
The Court (Hamill and Dhanji JJ, Basten JA agreeing) made observations of the operation of totality and related principles relevant to the circumstances. In particular, their Honours explained that the question to be asked in the latter sentencing proceedings is whether the total sentencing outcome could encompass the whole of the criminality. The Court also considered the operation of the important aspect of the totality principle which applies when there is a delay in the prosecution of multiple offences with fragmentation of the sentencing proceedings. Where the delay is between prosecution and imprisonment and a second prosecution, the delay is unlikely to be a period in which the offender went about life free from opprobrium. There is additional stress and disruption suffered by the additional prosecution. Serving a separate term of imprisonment is likely to involve significantly greater punishment than if the offences had been dealt with together.
This reflects the approach outlined by Street CJ in R v Todd (1982) 2 NSWLR 517 ("Todd") at 519 to 520, which was approved by the High Court in Mill v The Queen (1988) 166 CLR 59 ("Mill") at 64 per Wilson, Deane, Dawson, Toohey and Gaudron JJ: "Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."
In Cattell, a Crown appeal against sentence, the Court found that the sentencing judge correctly recognised that he was required to have regard to previous sentences for similar offending, even though those sentences had expired, and that: "It was necessary for the judge to ensure that the aggregation of all sentences (including the past sentences) was a "just and appropriate measure of the totality of criminality involved".
It was necessary for both sentencing judges to apply the principles and purposes of totality, while also not overlooking the need to ensure that the sentences viewed in combination reflected the seriousness of the conduct as a whole, and avoiding the effect of having offered some kind of discount for multiple offending.
An important respect in which the applicant's case on sentence was different from Mr Jackson's case on sentence arose from the events which occurred involving each of them in the period between committing the subject offence and being sentenced for that offence.
During that intervening period the applicant was in custody from 19 October 2014 until 28 August 2015 for offences committed on 21 June 2014. After release, he was in custody on three more occasions before he was released on parole on 15 June 2019. He committed the shoplifting offences between October and December 2019 and was arrested and bail was refused on 4 December 2019 for those offences. He was already in custody when he was arrested for the subject offence on 28 January 2020.
During the corresponding intervening period, Mr Jackson committed an offence of armed robbery in company on 4 October 2014 and was arrested soon afterwards for that offence. He was released on parole on 9 July 2018 and on 18 July 2019 a little over a year later was arrested for the subject offence.
Accordingly, the applicant was serving a sentence of imprisonment for other unrelated offences when he was arrested and was sentenced for the subject offence, whereas Mr Jackson was not. Mr Jackson had committed a second offence, (the 4 October 2014 offence), close in time and character to the subject offence, which the applicant had not. Mr Jackson had served the non-parole period for the 4 October 2014 offence and had then remained offence-free in the community for over 12 months and that, together with other factors, allowed Weber SC DCJ to give him a substantial "benefit of the doubt" in relation to rehabilitation. In contrast whilst the applicant had shown some positive progress, the period between offending and sentence presented a "very mixed picture" as described by Beckett DCJ. Different findings as to the prospects of rehabilitation may have a legitimate bearing upon a difference in sentence: see Nasiri v R [2019] NSWCCA 1 at [73].
The delay in sentencing Mr Jackson for the subject offence gave rise to the application of the principles in Todd as confirmed in Mill. If Mr Jackson had been sentenced at one time for both the subject offence and his 4 October 2014 offence, a substantial degree of concurrence of sentences would have been called for. Weber SC DCJ was mindful of this when sentencing Mr Jackson and referred to the difficulties in attempting any form of mathematical calculation of the effect of the disadvantage.
In endeavouring to achieve a total sentencing outcome that encompassed the whole of the criminality, consistently with Todd and Mill and as explained in Obbens, Cattel and Porter, his Honour implemented a flexibility of approach to take these matters into account. When the sentence imposed for the 4 October 2014 offence was considered together with the sentence imposed for the subject offence, the combined terms would be 9 years 1 month head sentence with a 5 year 11 month non-parole period. Allowing for the artificial exercise of combining two sentences served separately this outcome would have been well within the range to properly reflect the criminality of the conduct of Mr Jackson in committing the two armed robberies in September and October 2014.
Weber SC DCJ also noted that the reason for the delay was not attributable to an effect of the applicant's offending.
While a delay also applied to the applicant, specific disruption was caused to Mr Jackson's parole which he was successfully serving in the community. This meant greater punishment for Mr Jackson caused by the delay than if the subject offence and 4 October 2014 offence had been dealt with together.
Weber SC DCJ also took into account the practical consequence of the applicant's sentence for the subject offence and its commencement with other terms of imprisonment that he was serving for other offences. That practical consequence was that the applicant would serve approximately 18 months solely referable to the commission of the subject offence, with the balance being served concurrently with his other sentences for his other offending.

Consideration

Dealing with Mr McLachlan's first point, I am not persuaded that the roles the applicant and Mr Jackson had in the subject offence makes any practical difference to their respective criminality in that offending. I agree with the conclusion of Weber SC DCJ that those differences "were not so marked as to play a material role in relation to parity". The reality of the offending was that two armed men, acting in concert, subdued and terrorised the workers in the hotel, such that cooperation was secured by coercion and the robbery was successfully completed.
The applicant's sense of grievance is not justifiable once the reasons for Mr Jackson's different sentencing outcome are examined more thoroughly than just looking at the numbers. Like is not being compared with like given the custodial histories and rehabilitation steps during the period between offending and imposition of sentence for Mr Jackson compared with the applicant.
The applicant's own sentence was made substantially concurrent with sentences he was serving for unrelated offending. The accumulation of the sentence for the subject offence was 2 months with the sentence for the 2019 shoplifting offences commencing on 4 March 2020. The applicant's counsel at the sentencing hearing submitted that it could be backdated further but accepted that would mean that the sentence for the shoplifting matters would have become wholly subsumed. This notion troubled the sentencing judge, who pointed out that she had to allow for the additional criminality.
The sentencing judge's approach was correct. The applicant's shoplifting offences committed in 2019 did not raise a circumstance where the offending was closely related, or where making the sentences wholly concurrent was otherwise justified. There was also no offence for which the applicant had been sentenced which was relevantly close in time to the subject offence in 2014, like Mr Jackson had, so as to attract the adjustment required by the principles in Todd and Mill. In any event, the sentencing judge did take into account the fact that "no doubt significant totality would have been exercised with earlier sentences, had the offender been charged at an earlier point". The sentencing judge had to balance this against appropriate accumulation given the discrete nature of the 27 September 2014 offending, involving different victims.
The applicant's asserted sense of grievance is based on an incomplete consideration of the elements of the sentences imposed and did not include evaluating the role of totality and the very different effect of delay on each offender's particular circumstances relevant to sentence.
As to the applicant's guilty plea and 25% discount, although it is to be accepted that an offender who pleads guilty at an early stage may well feel aggrieved if a co-offender who pleads later (or, as here, is found guilty after trial) receives a lesser sentence, the critical question for the purposes of parity remains, whether an examination of the respective cases of the offenders justifies the differentiation: Bond v R [2020] NSWCCA 277 at [48] to [61], and here, that examination justifies the difference.
The applicant has not established a justified sense of grievance and the appeal must be dismissed.

Orders

Accordingly, I propose the following orders: 1. Extend time within which to file a notice of appeal until 22 February 2022. 2. Grant leave to appeal. 3. Appeal dismissed.

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 January 2023

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