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[2011] NSWCCA 67
Court of Criminal Appeal (NSW)
2011-02-21
Whealy JA, Hidden J, Johnson J
Original judgment source is linked above.
The Applicant Dwayhi's Parity Ground 93The Applicant Dwayhi's first ground of appeal claims disparity of sentence when compared with that imposed on Kertebani. The ground of appeal does not assert disparity by reference to the sentences imposed upon the Applicant Bechara or El-Deblan.
Submissions 94Mr Dhanji SC, for the Applicant Dwayhi, invited comparison between the single count to which Kertebani pleaded guilty and Counts 2 and 3 charged against his client. It was noted that $135,000.00 was paid by Kertebani to the Applicant Dwayhi so that Kertebani took almost two-thirds of the proceeds of his offence. Allowing for a 15% discount for Kertebani's plea of guilty, a starting point head sentence of two years and four months resulted, being a period significantly less than that imposed upon the Applicant Dwayhi with respect to the corresponding count. 95It was noted that, if a 25% discount was applied to the Applicant Dwayhi's sentences, the starting point for these two offences was four years and eight months, a significantly greater period than the starting point in relation to Kertebani. It was noted that the Court of Criminal Appeal in R v Kertebani had described his sentence as being towards the bottom of the range of sentences available, but not outside the range. 96Mr Dhanji SC acknowledged that the primary difference between his client and Kertebani was that his client's offence was aggravated by the breach of trust owed to his employer. He submitted, however, that Kertebani had received a significant majority of the proceeds of the offence. He submitted that, ultimately, any differences between the Applicant Dwayhi and Kertebani were insufficient to explain the marked disparity between the sentences imposed on his client and those imposed on Kertebani. 97Whilst acknowledging that the Applicant Dwayhi was also involved in offences that did not involve Kertebani, Mr Dhanji SC submitted that it was necessary for the Applicant Dwayhi to be sentenced in accordance with the principles in Pearce v The Queen [1998] HCA 57; 194 CLR 610, with an appropriate sentence to be imposed with respect to each of Counts 2 and 3. Accordingly, he submitted that it was possible to compare the sentence imposed on the Applicant Dwayhi with that passed on Kertebani for the equivalent criminal conduct. It was of no moment, the submission ran, that the same criminality was expressed in Kertebani's case in one charge as opposed to two charges in the case of the Applicant Dwayhi. The Court was required to deal with precisely the same criminality. 98Mr Dhanji SC submitted that the Applicant Dwayhi had a justifiable sense of grievance with respect to the sentences imposed on Counts 2 and 3 as a result of the sentence imposed on Kertebani. In circumstances where there is a marked disparity with a sentence imposed on a co-offender which is not manifestly inadequate, he submitted that there was no discretionary basis on which the Court may properly refuse to intervene: OM v R [2009] NSWCCA 267 at [16]. It was submitted that lesser sentences are warranted in law on Counts 2 and 3 and should be passed: s.6(3) Criminal Appeal Act 1912 . 99The Crown submitted that the Applicant Dwayhi invited the Court to undertake a somewhat artificial exercise given that he had been sentenced on four separate counts related to a course of conduct, at least two of which did not involve Kertebani. In addition, four matters were to be taken into account on a s.16BA Schedule on the fourth count. It was submitted that not only was the sentencing Judge required to impose sentences in respect of the individual counts in accordance with Pearce v The Queen , but was also concerned with a different course of criminal conduct when applying the principle of totality. 100The Crown acknowledged that the decision of this Court in Jimmy v R does not confine the parity principle to a consideration of sentences imposed upon co-offenders in the strict sense. However, the Crown pointed to factors (referred to in Jimmy v R at 77-78 [203]), which constituted limitations on the application of the parity principle. It was said that there were differences in sentences arising from a prosecutorial decision as to which charges to lay, together with significant practical difficulties where there is an attempt to compare sentences of participants in the same criminal enterprise charged with different crimes and where, as the Crown contended, one of the offenders (Kertebani) had received a sentence that was unjustifiably low. 101The Crown went so far as to argue that this Court should decline to follow its decision in R v Kertebani . It was submitted that a sentence as lenient as that imposed upon Kertebani would only be correct insofar as it reflected a finding of exceptional circumstances for the purposes of s.16A(2)(p) Crimes Act 1914 (Cth) concerning the impact upon the offender's family, this being a finding which was not made in that case. The Crown submitted that to reduce the sentence of the Applicant Dwayhi to bring it into line with that of Kertebani would be to repeat error, so that the resulting sentence would be an affront to the proper administration of justice: R v Ismunandar [2002] NSWCCA 477; 136 A Crim R 206 at 220 [38]. 102In any event, the Crown submitted that the Applicant Dwayhi was being sentenced for a different course of conduct to that of Kertebani, and was not being sentenced for precisely the same criminality. Apart from the additional charges and the s.16BA Schedule matters, the Crown relied as well upon the serious abuse of trust involved in the offences by the Applicant Dwayhi. 103The Crown referred to R v Wing Cheong Li at [52]-[58], where reference was made to the reluctance of courts to apply the parity principle where co-offenders are charged with different offences. 104The Crown also relied upon R v Hoole (NSWCCA, 17 March 1989) in support of the submission that a comparison between co-offenders who were sentenced in relation to some, but not all, of a number of offences was of little value. 105The Crown relied upon other differences as well, including the fact that Kertebani gave evidence on sentence giving rise to a finding of remorse, but his Honour Judge Zahra SC was unable to make a complete assessment of the Applicant Dwayhi's remorse because he did not give evidence. Further, there was psychological evidence concerning Kertebani in his sentencing proceedings, but no psychological or psychiatric report was tendered on sentence on behalf of the Applicant Dwayhi. 106The Crown submitted that it was inappropriate to apply the parity principle in the circumstances of this case where the totality of the offending by the Applicant Dwayhi differed significantly from that of Kertebani, and where the different sentences reflected different degrees of culpability and the different circumstances of the offenders.
Decision 107The Applicant Dwayhi's four offences concerned crimes involving Angela Andriopoulos (Count 1), Kertebani (Counts 2 and 3) and the Applicant Bechara (Count 4). The sentence imposed on Count 4 took account of the four offences contained in the s.16BA Schedule, at least two of which involved crimes committed by the Applicant Dwayhi in an attempt to cover up his criminal activity with Kertebani. 108It may be observed immediately, that aspects of the Applicant Dwayhi's common criminal enterprise with Kertebani have been detached from Counts 2 and 3 and attached to Count 4, which related to the Applicant Bechara. 109In fixing sentence for offences of this type, it was appropriate that the sentences reflect the importance of general deterrence and the breach of trust that arises from abuse of the system of self reporting in taxation matters: Cao v R [2010] NSWCCA 109 at [58]. This principle applied to the sentencing of all those who abused the self-reporting system, including Kertebani and the Applicant Bechara. 110However, a further and powerful factor operated against the Applicant Dwayhi alone on sentence. This was his grave breach of trust in acting corruptly in the exercise of his function as a public officer within the ATO. It was necessary to impose sentences upon the Applicant Dwayhi which demonstrated the gravity with which the law regards corruption by a public officer occupying a position of trust. As an officer within the ATO with the responsibility of verifying BAS returns, his abuse of trust for reward was a very significant aggravating factor on sentence. Further, it was necessary that a strong message be sent through the sentences to be imposed upon him to others in public office that criminal abuse of trust of this type will be met by heavy sentences: R (Cth) v Petroulias (No. 36) [2008] NSWSC 626; 73 ATR 83 at 119 [213]; R v Nikolovska [2010] NSWCCA 169 at [57]. This aspect constituted a substantial additional factor on sentence of the Applicant Dwayhi. 111Further, the Applicant Dwayhi was to be sentenced for four offences involving a course of conduct extending beyond his criminal involvement with the Applicant Bechara and Kertebani. It has been said that a narrow focus on an appeal to this Court upon one sentence amongst several imposed at first instance, may introduce an element of artificiality to the case: R v Thalari [2009] NSWCCA 170; 75 NSWLR 307 at 320 [82]. 112In my view, the concentration by the Applicant Dwayhi upon the sentences passed on him for Counts 2 and 3, and the comparison with the sentence imposed upon Kertebani for his offence, does involve a degree of artificiality. This observation does not seek to apply the decision of this Court in R v Hoole , which should be regarded as no longer persuasive in light of Maldonado v R [2009] NSWCCA 189 at [40]. In this case, prosecutorial discretion had been exercised to proceed against Kertebani for one offence, and not the two offences (Counts 2 and 3) for which the Applicant Dwayhi was sentenced. 113Further, the four offences committed by the Applicant Dwayhi, in grave breach of trust, were followed by persistent efforts on his part (again in grave breach of trust) to cover up within the ATO his criminal activities with Kertebani, the Applicant Bechara and Angela Andriopoulos. These matters were taken into account on sentence for the fourth count. In this way, the Applicant Dwayhi's attempts to cover up his criminal involvement with Kertebani were not taken into account on sentence with respect to Counts 2 and 3. All of these features differentiate the positions of the Applicant Dwayhi and Kertebani. 114There were significant differences as well in the subjective cases of the two offenders. There was evidence of remorse in Kertebani's case and psychological evidence which bore on the question of sentence. 115His Honour Judge Sorby considered the Applicant Dwayhi's crimes were of greater seriousness than that of Kertebani. In this regard, his Honour was correct. In any event, his Honour did not think that parity considerations applied as between the offenders. Kertebani was sentenced on that basis. 116Mr Dhanji SC relies upon the findings of his Honour Judge Zahra SC that the Applicant Dwayhi became involved in the scheme "largely organized by others" and was influenced by financial hardship in doing so. He submits that these findings ought be considered in light of the sentence imposed upon Kertebani, and that a legitimate sense of grievance results from that process. I do not accept that submission. The two sentencing Judges sentenced the two offenders by reference to different arguments advanced to them concerning the roles of the Applicant Dwayhi and Kertebani at the separate sentencing hearings. Unsurprisingly, different conclusions were reached and applied to the determination of sentence. There is no objective foundation for the Applicant Dwayhi to entertain a legitimate sense of grievance. 117It is not necessary to determine the Crown submission that the Court, as presently constituted, should elect not to follow the recent decision in R v Kertebani . I merely observe that the Crown here did not assert that some error of principle had been made by the earlier Court, nor that some significant authority had been overlooked. The Crown submission seemed to invite this Court to reach a different conclusion to that of the earlier Court concerning the range of sentence for this class of offence. In dismissing the Crown appeal, the Court found that the sentence imposed on Kertebani lay towards the bottom of the range of sentences available, although not lying outside the range. I see no reason for this Court to contradict that view, but as I have said, it is not necessary to say more in the context of these appeals. 118I am not persuaded that an objective foundation has been established for a legitimate sense of grievance to be held on the part of the Applicant Dwayhi arising from the sentence imposed upon Kertebani. The disparity between sentencing is explicable by significant differences between both the objective circumstances of the offences and the subjective circumstances of the offenders. It is necessary for the Applicant Dwayhi to demonstrate error arising from his claim of manifest disparity and, if error is demonstrated, to satisfy the Court that some lesser sentence is warranted in law upon Counts 2 and 3 for the purposes of s.6(3) Criminal Appeal Act 1912 . In my view, the Applicant Dwayhi has not established error in this respect. 119I would reject the first ground of appeal.
The Applicant Dwayhi's Complaint Concerning the Fixing of his Non-Parole Period 120The Applicant Dwayhi's second ground of appeal complains of error on the part of the sentencing Judge in fixing the non-parole period. In doing so, his Honour referred to the decision in R v Bernier (1998) 101 A Crim R 144 that the non-parole period should be approximately 60%-66% of the head sentence. In Hili v The Queen; Jones v The Queen [2010] HCA 45; 85 ALJR 195, it was held that there was no fixed ratio between the non-parole period and head sentence for federal offences so that the percentages referred to in R v Bernier should not be applied as a type of norm. 121Mr Dhanji SC submitted that his Honour's sentencing discretion miscarried in relation to the setting of the non-parole period and that this Court should find error and conclude that a non-parole period significantly less than 60% of the head sentence ought be set in this case. 122The Crown acknowledged the statements of principle in Hili v The Queen; Jones v The Queen but submitted that it did not follow that simply because the sentencing Judge arrived at a non-parole period that is about 60% of the head sentence that error has been demonstrated. 123I am not persuaded that error has been demonstrated in the manner claimed in the second ground of appeal. The sentencing Judge did not state that a type of non-statutory norm was being applied in the fixing of the non-parole period. A non-parole period of 60% was an available period in the objective and subjective circumstances of the case. The mere fact that the sentencing Judge adverted to the decision in R v Bernier does not, in my view, demonstrate error on the sentencing Judge's part in fixing the non-parole period: Lai v R [2011] NSWCCA 16 at [18]-[21]; Alvares v R; Farache v R [2011] NSWCCA 33 at [78]. 124Even if error has been demonstrated by the sentencing Judge's reference to R v Bernier , I am not persuaded that some lesser non-parole period is warranted in law in the circumstances of this case. 125I would reject the second ground of appeal.
Submissions 126Mr Gartelmann, counsel for the Applicant Bechara, submitted that a justifiable sense of grievance has been demonstrated as a result of the suggested disparity between the sentence imposed upon his client and that imposed upon Kertebani. 127Although acknowledging that his client pleaded not guilty and went to trial and that Kertebani had pleaded guilty, Mr Gartelmann submitted nevertheless that there was relevant disparity between the sentences imposed. 128Although acknowledging that there were differences between the offence for which Kertebani was sentenced and that for which his client was convicted by the jury, Mr Gartelmann called in aid the principles in Jimmy v R. He contended that the offences for which the two men were sentenced were sufficiently cognate as to warrant comparison. He submitted that none of the limitations to which Campbell JA referred in Jimmy v R at 77-78 [203] precluded comparison of the sentences imposed on the two men, but that such a comparison must nevertheless take into account the material differences between their respective cases. 129Mr Gartelmann submitted that Kertebani was to be sentenced within one count for essentially two frauds of the same kind as that for which the Applicant Bechara was to be sentenced. Although Kertebani had pleaded guilty, and a discount of 15% had been allowed, he submitted that an undiscounted sentence for Kertebani still lay at a significantly lower level than that imposed upon the Applicant Bechara. It was submitted that the money laundering count, of which the Applicant Bechara was also convicted, did not affect the position as it was accepted that that offence related to the dealings with the same money the subject of the fraud count. 130Mr Gartelmann submitted that a proper comparison of their respective sentences revealed a lack of due proportion between them. He submitted that this Court should intervene and that a lesser sentence was warranted in law and should be passed. 131In written submissions, the Crown took issue with the proposition that a proper comparison may be made between the sentences imposed upon the Applicant Bechara and Kertebani. The Crown submitted that there were significant differences in the offences for which the two men were to be sentenced, in their pleas and in their subjective cases before the sentencing courts. 132However, in oral submissions (T29-30, 21 February 2011), the Crown said that he "would be hard pressed" to say that the Applicant Bechara's offending was worse that that of Kertebani. 133The Crown submitted, however, that if the Court was minded to resentence the Applicant Bechara, this should not lead to any variation of the Applicant Dwayhi's sentence given his grave breach of trust and aggravated criminality (T30).
Decision 134The evidence reveals that Kertebani and the Applicant Bechara were business associates who were involved in a similar type of criminal activity. In practical terms, they were involved in the same criminal enterprise: Jimmy v R at 85 [246]. 135Both were involved in the provision of sham documents to the Applicant Dwayhi for the same dishonest purpose. The position of both men can be contrasted with that of the Applicant Dwayhi, the man inside the ATO, given the latter's gross breach of trust and his involvement in a course of criminal conduct extending beyond these two men. 136There were other differences between them. The Applicant Bechara pleaded not guilty and was convicted after trial. There was a strong subjective case adduced by Kertebani, including reliance on remorse and psychological evidence relevant to sentence. 137The legitimate grievance ground may be called in aid, in appropriate circumstances, where complaint is made concerning parity, proportionality or relativity between sentences of related offenders involved in the same criminal enterprise regardless of the charges that have actually been laid against the offenders: Jimmy v R at 85 [246]. A person who is a true co-offender, convicted of the same crime as another person, will be in the strongest position to advance a true parity ground by reference to the principles in Lowe v The Queen and Postiglione v The Queen . However, the further one moves from the position of strict co-offenders, the more diluted the principle will be in practice. 138There is a marked disparity between the sentences imposed upon the Applicant Bechara and Kertebani. They were related offenders playing a broadly similar role in a common criminal enterprise. 139There are a number of differences between them, some of which fall within the limitations referred to in Jimmy v R at 77-78 [203]. Prosecutorial discretion appears to have operated (favourably) in charge selection for Kertebani. The Applicant Bechara's offences involved a BAS for a different company to those mentioned in Kertebani's offence. Each of the offenders took a different approach to plea and a significantly different case was advanced subjectively, with that of Kertebani strongly favouring him when compared with the Applicant Bechara. 140Nevertheless, there remains a marked disparity in the sentences imposed upon the two men who were engaged in a common criminal enterprise. I am persuaded that an objective foundation has been demonstrated for a legitimate sense of grievance on the part of the Applicant Bechara. 141Error has been demonstrated by the Applicant Bechara with respect to the sentence imposed upon him. The Court of Criminal Appeal characterised the sentence imposed upon Kertebani as being towards the bottom of the range of sentences available, although not being outside the range. The relevant principles on an appeal such as this do not entitle the Applicant Bechara to have passed upon him a sentence towards the bottom of the range of sentences available. Points of difference remain as between the two men, their offences, their pleas and their subjective circumstances. 142However, for the purpose of s.6(3) Criminal Appeal Act 1912 , I am satisfied that this Court should intervene and resentence him, leading to a reduction in sentence to reflect the findings of this Court. 143I am not persuaded that the resentencing of the Applicant Bechara gives rise to any legitimate sense of grievance on the part of the Applicant Dwayhi. His offences were of greater seriousness arising from his protracted course of criminal conduct, his gross breach of trust and his persistent efforts to cover his tracks when investigations were underway.
Conclusion 144By this stage, a reader of this judgment will have discerned that: (a)the Applicant Dwayhi pleaded guilty and was sentenced by his Honour Judge Zahra SC in 2008; (b)the Applicant Bechara was convicted at trial and was sentenced by his Honour Judge Solomon in 2009, with reference being made to the Applicant Dwayhi's sentences in the parity context; (c)Kertebani pleaded guilty and was sentenced by his Honour Judge Sorby in 2010, with the approach being taken that there was no parity issue which arose by reference to sentences imposed on the Applicants Dwayhi and Bechara; (d)appeals by the Crown and Kertebani were heard and determined by this Court in October 2010, without any argument being advanced to that Court raising parity issues; (e)the present applications brought by the Applicants Dwayhi and Bechara invite this Court to compare and contrast the findings of the different Judges and the sentences imposed by them, by reference to parity issues, with particular reference to Kertebani's sentence; and (f)this approach is open to the Applicants because of the nature and operation of the parity principle. 145This Court was not told how it came to be that the various offenders came before different Judges, and whether any steps had been taken to have the same Judge deal with some or all of the matters. 146Earlier in this judgment (at [20] to [47]), I made a number of general observations concerning the parity principle and its application by sentencing and appellate courts. The facts of the present cases illustrate the need for courts and parties to apply the frequent statements of courts that (absent a convincing reason) related offenders should be sentenced by the same Judge and at the same time. This approach will promote the proper administration of criminal justice. 147With respect to the Applicant Dwayhi, I propose that leave to appeal be granted, but that the appeal be dismissed. 148With respect to the Applicant Bechara, I propose that: (a)leave to appeal be granted; (b)the sentences imposed in the District Court on 21 August 2009 be quashed; (c)in their place, he be sentenced as follows: (i)on the first count, sentenced to imprisonment for three years commencing on 21 August 2009 and expiring on 20 August 2012; (ii)on the second count, sentenced to imprisonment for two years commencing on 21 August 2009 and expiring on 20 August 2011; (iii)pursuant to s.19AC Crimes Act 1914 (Cth) , Badoui Bechara is to be released on 20 August 2011 on a recognizance release order, himself the sum of $1,000.00, to be of good behaviour for the balance of the sentence; (iv)confirm the reparation order made by the District Court under s.21B Crimes Act 1914 (Cth) in the sum of $101,632.00 in favour of the Commissioner of Taxation.
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: 06 April 2011
CA 477; 136 A Crim R 206 R v Hoole (NSWCCA, 17 March 1989) Cao v R [2010] NSWCCA 109 R (Cth) v Petroulias (No. 36) [2008] NSWSC 626; 73 ATR 83 R v Nikolovska [2010] NSWCCA 169 R v Thalari [2009] NSWCCA 170; 75 NSWLR 307 Maldonado v R [2009] NSWCCA 189 R v Bernier (1998) 101 A Crim R 144 Hili v The Queen; Jones v The Queen [2010] HCA 45; 85 ALJR 195 Lai v R [2011] NSWCCA 16 Alvares v R; Farache v R [2011] NSWCCA 33 Category: Principal judgment Parties: Fadi Dwayhi (Applicant) Badoui Bechara (Applicant) Regina (Respondent) Representation: Counsel: Mr H Dhanji SC (Applicant/Dwayhi) Mr T Gartelmann (Applicant/Bechara) Mr N Adams (Respondent/Crown) Solicitors: Legal Aid NSW (Applicant/Dwayhi) Elie Rahme & Associates (Applicant/Bechara) Commonwealth Director of Public Prosecutions (Respondent/Crown) File Number(s): 2008/6136 (Dwayhi) 2008/6135 (Bechara) Decision under appeal Before: Zahra SC DCJ (Dwayhi) Solomon DCJ (Bechara) File Number(s): 2008/11/0334 (Dwayhi) 2008/11/0333 (Bechara)
14In imposing sentence on Kertebani, the sentencing Judge took into account pursuant to s.16BA Crimes Act 1914 (Cth) an offence of dealing with the proceeds of crime contrary to s.400.4(1) Criminal Code 1995 (Cth). 15In addition, a reparation order was made against Kertebani under s.21B Crimes Act 1914 (Cth) in favour of the Commissioner of Taxation in the sum of $307,555.00. 16The Crown appealed to the Court of Criminal Appeal against the suggested inadequacy of sentence imposed by his Honour Judge Sorby, and Kertebani sought leave to appeal against sentence. On 26 October 2010, the Court of Criminal Appeal dismissed both appeals: R v Kertebani; Kertebani v R [2010] NSWCCA 221.
The Issue of Parity Before Sentencing and Appellate Courts 20Before moving to consider the merits of the present applications, it is appropriate to make some observations concerning the sentencing of persons who are said to be, in one way or another, related offenders, and the nature and extent of the parity principle and its application. The Parity Principle 21The terms of the parity principle are not in doubt. In R v Wei Pan [2005] NSWCCA 114, with the concurrence of Giles JA and Hoeben J, I described the parity principle in the following way at [34]-[35]: "34 The elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community - the issue is whether the particular sense of grievance or injustice is a legitimate one: Lowe v The Queen (1984) 154 CLR 606 at 611 per Mason J. The test for determining the existence of a sense of grievance is objective not subjective. What has to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved, but that a reasonable mind looking overall at what has happened would see that the offender's grievance is justified: R v Doggett (Court of Criminal Appeal, 24 March 1996, unreported) per Sully J; R v Ilbay [2000] NSWCCA 251 at paragraph 6. 35 Where there is a degree of disparity so as to invite a reduction in the sentence imposed, it is not necessary for the Court of Criminal Appeal to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved: R v Boney [2001] NSWCCA 432 at paragraph 15. A stage can be reached at which the inadequacy of the sentence imposed upon the co-offender is so great that the sense of grievance engendered can no longer be regarded as a legitimate one: R v Diamond (Court of Criminal Appeal, 18 February 1993, unreported, BC9302054); R v Boney, above, at paragraph 16." 22This statement of the parity principle has been applied in Lewins v R [2007] NSWCCA 189 at [7], Nguyen v R [2008] NSWCCA 308 at [37] and Gurney v R; Willetts v R [2011] NSWCCA 48 at [83], and was also adopted by the Australian Capital Territory Court of Appeal in Pavicevic v R [2010] ACTCA 25 at [10]. Requirement for Marked and Unjustifiable Disparity 23It should be kept in mind that a ground of appeal asserting disparity is concerned with markedly and unjustifiably different sentences imposed on different offenders. In England v R; Phanith v R [2009] NSWCCA 274, Howie J (McClellan CJ at CL and Fullerton J agreeing) said at [61]-[67]: "61 ... A ground asserting disparity is concerned with such markedly and unjustifiably different sentences imposed on co-offenders that they give rise to a genuine feeling on the part of an impartial observer that justice has not been achieved because one offender has been unfairly treated having regard to the sentence passed upon the co-offender. Yet frequently, as in this case, the Court is asked to trawl through the sentencing remarks and the facts and circumstances of the two offenders in detail in order to dissect and weigh every aspect of their competing objective and subjective facts to see whether some variation, however minor, should be made to the sentence of the person who, it is asserted, has a grievance. 62 It should be borne in mind that the High Court's decisions on this area of appellate intervention speak of 'gross', 'marked', 'glaring' or 'manifest' disparity. These terms are used throughout the judgments in Lowe v The Queen [1984] HCA 46; 154 CLR 606. Another way of considering the issue is to ask whether the two sentences give rise to an appearance that justice has not been done: per Gibbs CJ at 610 and Dawson J at 623. It should be recalled that the sentences being compared in that case were, on the one hand, a sentence of 6 years imprisonment and, on the other, a non-custodial sentence. 63 No different approach was taken in Postiglione v The Queen [1997] HCA 26; 189 CLR 295. Dawson and Gaudron JJ in their joint judgment stated at 301: '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.' Gummow J stated at 323: 'The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done.' His Honour then quoted with approval from a decision of Callaway JA in R v Taudevin [1996] 2 VR 402 in which it was pointed out that the important words in considering the issue of disparity were 'manifestly' 'justifiable' and 'objective' and emphasising that the difference between the sentences must be 'clearly excessive'." 24After referring to other parts of the judgments in Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 336-338, Howie J said at [67]: "67 With respect it seems to me that on occasions this Court has sought to address disparity that could not be said to be 'manifest', 'glaring', or 'gross'. In one case, to which the Court was taken in the application by Phanith, this Court intervened even though it described the difference in the sentences as 'small'." 25It is important to keep in mind the approach to a ground of appeal to this Court complaining of suggested disparity. In R v Li [2005] NSWCCA 154, Barr J (Spigelman CJ, Wood CJ at CL and Hislop J agreeing) referred to a number of authorities concerning parity and said at [44]: "What these authorities make clear is that disparity between sentences is not of itself a basis of appellate intervention but a factor to be weighed when the Court considers whether the sentencing process has been attended by error and, if so, whether the Court should intervene." 26In Lewins v R , Howie J referred at [7] to the issues on appeal to this Court on grounds of suggested disparity: "The applicant's counsel accepted before this Court that the sentence imposed upon his client was within range and that there was no error apparent in the sentencing remarks. A complaint of disparity accepts that the sentence imposed on the applicant cannot be challenged. It is the sentence imposed upon a co-offender that gives rise to a sense of injustice, not the sentence imposed upon the applicant. The applicant also accepts that the Court's power to intervene to redress disparity is discretionary and that it will not necessarily act where the co-offender's sentence is so inadequate that this Court should not take it into account."
Between Whom Does the Parity Principle Apply? 27In Jimmy v R [2010] NSWCCA 60; 240 FLR 27, Campbell JA undertook an extensive analysis of cases concerning the application of the parity principle. 28The essence of Jimmy v R may be captured in passages of the judgments of Campbell JA and Howie J. It is convenient to refer firstly to the judgment of Howie J at 85 [245]-[247]: "[245] The principle of parity should not be confined to a consideration of the sentences imposed upon co-offenders in the strict sense, that is persons involved in and charged with the very same crime. There is nothing in the decisions of the High Court that so confine it. Where the courts have stated that the principle of parity applies only to co-offenders, it has usually been in situations where the applicant has sought to use the principle for an illegitimate purpose by seeking to compare the sentence imposed upon the applicant with a sentence imposed upon another offender who was not engaged in the offence committed by the applicant. [246] The principle, whether it is called parity or proportionality or relativity between sentences, should be applied to bring about a just result in the sentences imposed upon persons who have been engaged in the same criminal enterprise regardless of the charges that have actually been laid against the offenders. However, I agree with Campbell JA that the principle is subject to the limits stated in [203] of his judgment. [247] In particular I agree, for the reasons given by his Honour, that R v Kerr [2003] NSWCCA 234 should no longer be followed insofar as the proposition for which it is generally cited. It is not the business of the courts to try to ameliorate the effects of prosecutorial decisions in charging, or not charging, persons involved in a criminal enterprise. The facts of Kerr do not, in my respectful opinion, justify the decision taken and this court has not since Kerr was decided found or been able to envisage a situation in which a court would be justified in taking into account the effects of prosecutorial discretion when exercising the sentencing discretion. I have been concerned at the number of times that Kerr has been relied upon in this court, at least when I have been a member of it, without any reference being made to the decisions that have raised doubts about its correctness." 29Howie J (at 85 [246]) agreed expressly with the following limits stated by Campbell JA at 77-78 [203]: "There are significant limitations, however, on reducing a sentence on the basis of that of a co-offender who has committed a different crime. At least some of the limits on the use of the parity principle in such a case are:
32It will be apparent from what has been said so far that each of the Applicant Dwayhi, the Applicant Bechara and Kertebani came before different sentencing Judges. The Applicant Dwayhi was sentenced in 2008. The Applicant Bechara was convicted after trial before a different Judge in 2009. Kertebani pleaded guilty before yet another Judge and was sentenced in 2010. 33Different courts have emphasised the desirability of related offenders appearing for sentence at the same time before the same Judge, and the problems which may arise where that practice is not followed. 34In Lowe v The Queen [1984] HCA 46; 154 CLR 606, Brennan J said at 617 that to "facilitate the comparison of conduct and antecedents it is desirable that, where practicable, co-offenders be sentenced by the same judge at the same time" . 35In Postiglione v The Queen , Gummow J, at 320, referred to Brennan J's comment and, after mentioning the facts, observed that: "... this appeal does more than illustrate the problem that can arise in applying the parity principle to co-offenders where they are sentenced by different judges taking different views as to the relevant culpability of the two offenders in respect of those offences". 36Dawson J said in Lowe v The Queen at 622: "No explanation was given to us or, apparently, to the Court of Criminal Appeal of the reason why the applicant and Smith entered their pleas before different judges at different times. The result was that, although they were co-offenders, they fell to be sentenced by different judges. Such a situation always carries with it a risk that there will be an unwarranted disparity between the sentences imposed and is to be avoided if at all possible. If it cannot be avoided, then at least the judge imposing the later sentence should inform himself of the sentence already imposed and the circumstances in which it was imposed. I hasten to say that Thomas J was so informed in this case." 37In R v Mercieca [2004] VSCA 170, Winneke P observed at [6] that the sentencing of co-offenders by different judges "creates the potential for differing views being taken by different judges of sentencing facts which are common to all co-offenders" . 38In R v Rodden [2005] VSCA 24, Vincent JA, at [28], stated succinctly the problems arising in this context: "Of course, it would have been more satisfactory if all of the persons involved in this matter had been tried and/or sentenced at the same time, and certainly by the same judge. This case demonstrates the kinds of tensions that can appear to arise in the criminal justice system when this does not occur. When a situation arises in which co-offenders are dealt with separately, there may and often are differences in the substratum of facts upon which the different sentencing judges act and the impressions formed by them with respect to the relative roles, levels of responsibility and prospects of rehabilitation of the individuals involved. This, of course, would flow, in part, from the different emphases which can be expected to be placed on aspects of the offending behaviour and the circumstances of the offenders concerned." 39Where the usual practice is followed and related offenders are dealt with by the same Judge at the same time, there are significant advantages to the administration of the criminal law. In R v Swan [2006] NSWCCA 47, Barr and Howie JJ said at [71]: "This was a case where the sentencing of both offenders was by the same judge on the same occasion. Where the same judge sentences two offenders at the same time and gives detailed reasons for imposing the sentences he did by having regard to the differing criminality of each, the differing subjective circumstances and the relevant sentencing principles, in our view this Court should be cautious before determining that one of the offenders has a justifiable sense of grievance just because of the different sentencing outcomes." This statement was applied in Gurney v R; Willetts v R at [82]. 40The observations of Brennan J and Dawson J in Lowe v The Queen and Barr and Howie JJ in R v Swan were cited by the Court of Appeal of the Australian Capital Territory where co-offenders had appeared before the same sentencing Judge, and the Court observed that the Judge "was in the best position to assess the relative criminality of the offenders and to distinguish the circumstances relevant to each of the offenders" and that "an appellate court will exercise caution before determining that the disparities between two sentences are unjust" : Pavicevic v R at [20]-[21] (Gray P, Refshauge and Ryan JJ). 41Similar sentiments were expressed by Winneke P in R v Spizzerri [2001] VSCA 49 at [10]: "... an appellate court should be careful in concluding manifest disparity, particularly where the offenders have been sentenced by an experienced judge who has sentenced a large number of offenders engaged in the same criminal enterprise. In those circumstances the appellate court is at risk of upsetting the symmetry of the sentencing process employed by the judge and introducing its own disparity into that process. To that extent the Court is constrained in rectifying a disparity which it perceives. Because of those constraints, it runs the risk of 'tinkering'." 42In R v Nguyen; R v Pham [ 2010] NSWCCA 238, this Court referred at [13] to the "strong desirability of sentencing proceedings concerning co-offenders going ahead before the same Judge, and preferably at the same time" . It was said, at [24], that the listing of the proceedings in that case added a layer of complexity before this Court, and served to underline the desirability of related offenders being "dealt with by the same Judge following a single sentencing hearing". 43More recently, this Court has emphasised the desirability of related offenders being sentenced together and the problems which may arise where this is not done: Gurney v R; Willetts v R at [81]. 44It is necessary for sentencing Courts and prosecutorial bodies to take steps to ensure, so far as it is reasonably possible, that related offenders are sentenced by the same Judge, and preferably at the same time following a single sentencing hearing. To reinforce this message, creation of relevant Practice Notes (by the Courts) and amendment to prosecution guidelines (by the Commonwealth and New South Wales Directors of Public Prosecutions) may be considered appropriate to give effect to the statements of Courts referred to above. 45It ought be appropriate, as well, for sentencing and appellate courts to enquire of counsel for an offender, who seeks to rely upon the parity principle, as to the steps taken by that offender or his legal representatives to ensure that he or she was sentenced by the same Judge, and at the same time, as any related offender, if the case is one where there were different sentencing judges. 46In my view, procedures of this type will serve the public interest in consistent and transparent sentencing of related offenders which forms, after all, part of the rationale for the parity principle itself. 47The variations and complications which arose in the present cases, from three discrete sentencing hearings before three different Judges, will become apparent from what follows.
[2010] ACTCA 25
[2004] VSCA 170
[2005] VSCA 24
[2001] VSCA 49
[1998] HCA 57
(1984) 154 CLR 606
(1998) 194 CLR 610