[2011] HCA 49
Leeth v The Commonwealth (1992) 174 CLR 455
[1992] HCA 29
Lowe v The Queen (1984) 154 CLR 606
[1984] HCA 46
Miles v R [2017] NSWCCA 266
Pecora v The Queen [1980] VR 499
Postiglione v The Queen (1997) 189 CLR 295
Source
Original judgment source is linked above.
Catchwords
Quinn v The Queen (2011) 244 CLR 462[2011] HCA 49
Leeth v The Commonwealth (1992) 174 CLR 455[1992] HCA 29
Lowe v The Queen (1984) 154 CLR 606[1984] HCA 46
Miles v R [2017] NSWCCA 266
Pecora v The Queen [1980] VR 499
Postiglione v The Queen (1997) 189 CLR 295
Judgment (4 paragraphs)
[1]
The applicant's contentions in the present case
In the present case it was submitted that there is "marked and manifest" disparity in sentencing as between the applicant and his co-offenders such as give rise to a justifiable sense of grievance.
Both the written submissions on behalf of the applicant and on behalf of the Crown included tables which compared the relevant features of the cases concerning the applicant and his co-offenders. The table referred to earlier that is annexed to this judgment amalgamates the information in those tables together with some further information derived from the judgments of the primary judge on verdict and sentence.
It is apparent from the information in the table that there were six offenders who were sentenced for the offence against s 35(1) and four of them (the applicant, Anderson, Khan and Vella) received sentences of 3 years with non-parole periods of 2 years whilst two (Coe and Gauci) received sentences of 3 years 4 months with non-parole periods of 2 years 3 months.
The first observation to make about the various sentencing outcomes is that for an offence which carries a maximum penalty of 14 years and also has a standard non-parole period of 5 years the sentences imposed by Zahra SC DCJ were relatively modest. It must be borne in mind that none of the offenders were entitled to any discount as they had all pleaded not guilty.
The written submissions by counsel on behalf of the applicant and the oral submissions made by different counsel at the hearing of the application sought to highlight various features of the applicant's case that should have, it was contended, brought about a lesser sentence being imposed in his case.
It was contended, for example, that the applicant's role in the offence rendered him less culpable than any of the other offenders. That is a matter about which minds might differ. The applicant played a key role in the event notwithstanding he was not shown to have physically participated in the assault upon the victim. It was he who brought the cable ties and the pick axe handle to the scene. The victim was beaten with the pick axe handle and a significant part of the assault upon him occurred whilst he was restrained with the use of the cable ties.
Various features of the applicant's subjective case were also highlighted for comparison upon the contention that he should have received a more favourable response. For example, the degree to which he would experience hardship in custody was referred to. That was certainly one factor that was a significant feature of his subjective case but it is not to say that it necessarily warranted a lesser sentence than the one that was imposed. Two of the other offenders, in particular, were anticipated to experience hardship in custody as well (Coe with his Perthes disease and Gauci with his chronic pain condition).
Moreover, there were features that suggested that other offenders might be considered more favourably than the applicant. For example, some of the offenders were found to have a lesser risk of reoffending (all but Gauci). Some offenders had more favourable findings as to rehabilitation prospects (Anderson and Khan).
Counsel who appeared for the applicant at the hearing sought to pursue a further argument not foreshadowed in the written submissions. It was to the effect that the liability of each of the offenders found guilty of the offence against s 35(1) was on an extended joint criminal enterprise basis. That is, these offenders entered into a joint criminal enterprise to assault the victim and that during the course of that assault one or more of the participants committed the offence against s 35(1) in furtherance of the joint criminal enterprise. It was contended that the applicant's culpability turned on an analysis of his role in the joint criminal enterprise as well as the circumstances in which he foresaw the possibility of the "additional offence".
This issue was clearly explained in the remarks on sentence where his Honour summarised his findings on verdict on the issues of the existence of a joint criminal enterprise and the state of mind of each of the offenders. In short, his Honour was satisfied that those who assaulted the victim outside the premises intended to inflict grievous bodily harm upon him. His Honour was only satisfied that participation in that assault was proved beyond reasonable doubt in respect of the offenders Achampong and Ferguson. A finding that applied to each of the other offenders was that they attended the premises pursuant to an understanding or agreement to carry out an assault upon the victim. His Honour then described his finding as to their culpability as follows:
"I went on to make findings that those offenders who were not part of the assault on the footpath either himself committed the crime of recklessly cause grievous bodily harm while in company or a person, who was, together with him a party to a joint criminal enterprise, committed the crime of recklessly cause grievous bodily harm while in company in furtherance of that joint criminal enterprise. Further I was satisfied that even if an accused did not physically cause the injury, in all of the circumstances of their attendance with a number of persons with a common intention to assault the complainant, he must have considered that the person with whom he was in a joint criminal enterprise might act intentionally or recklessly to cause actual bodily harm (99)."
As it can be seen, the applicant's liability for the offence was largely the same as it was for the others except that whilst he may not have participated in the physical assault upon the victim he played a significant role nonetheless in the way I have described (at [25-27]).
[2]
Conclusion
This was a most difficult sentencing exercise as no doubt the judge alone trial was for the primary judge, given the fact that there were eight offenders involved. It was noted in the written submissions on behalf of the applicant that the judge had not mentioned the principle of parity as such in his remarks on sentence. However, it has not been suggested, nor could it be, that the judge was not acutely mindful of the principles. The judgment, with respect, is exemplary for its detailed discussion of the objective and subjective cases concerning each of the eight offenders. His Honour's discernment of their relative culpability for the offending and the degree to which mitigation was available in the light of their respective subjective circumstances is one that I cannot fault.
There is no cause for the applicant to have any justifiable sense of grievance when the sentence he received is compared to each of his co-offenders.
[3]
Orders
I propose the following orders:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.
BUTTON J: I agree with R A Hulme J.
[4]
Amendments
06 August 2018 - [32] - typographical error
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 August 2018
A succinct statement of the parity principle may be drawn from the joint judgment of French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]:
"Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice' [Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 at 610 per Mason J]. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner [Leeth v The Commonwealth (1992) 174 CLR 455; [1992] HCA 29 at 470 per Mason CJ, Dawson and McHugh JJ]. 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 [Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 301 per Dawson and Gaudron JJ].
There has been some discussion in this Court in recent times about whether the epithets, "gross, marked or glaring" should be used in the application of the parity principle; see for example Cameron v R [2017] NSWCCA 229 at [86]-[90] (Hamill J); and Miles v R [2017] NSWCCA 266 at [9] (Leeming JA), [36]-[40] (Rothman J), and [67] (Hamill J). The better course in my respectful view is to confine discussion of the principle to the terms used in judgments of the High Court. There, the expressions, "marked disparity" or "marked and unjustified disparity" have been used in the majority judgment in Green v The Queen; Quinn v The Queen; see similarly Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 per Gibbs CJ at 610, Mason J at 611, and Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 per Dawson and Gaudron JJ at 301.
In Lowe v The Queen, Dawson J also used the expression, "manifestly excessive" in the following context (at 623-624):
"The view has been expressed in England that a court should not interfere unless the disparity is gross or glaring and the circumstances are 'most exceptional'; see R v Stroud (1977) 65 Cr App R 150 at 153-154; R v Potter [1977] Crim LR 112 at 113. The decisions in this county do not appear to be quite as restrictive as this but on any view the interference with a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice: see Pecora v The Queen [1980] VR 499; R v Tisalandis [1982] 2 NSWLR 430."
It is well known that the description "manifestly excessive" signifies something that is "unreasonable or plainly unjust": Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].
In Postiglione v The Queen (at 302), Dawson and Gaudron JJ also spoke in terms of there being "due proportion" between sentences when regard is had to the "different circumstances of the co-offenders in question and their different degrees of criminality".