Ferris v R

Court of Criminal Appeal (NSW)|2020-11-26|Before: Johnson J, Hulme J, Wilson J

Solicitors: Ross Hill & Associate Solicitors (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2018/212338 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 3 June 2020 Before: Craigie SC DCJ File Number(s): 2018/212338

Grounds of appeal

The applicant initially sought leave to appeal on three grounds. Ground 2 was abandoned and leave was granted to add ground 4 at the hearing. [2] The grounds relied upon are: "(1) His Honour erred in relation to the sentence imposed for the manslaughter offence which informed the aggregate sentence imposed. (3) His Honour imposed a sentence which was manifestly excessive. (4) The Applicant has a justifiable sense of grievance by reasons of a marked disparity and disproportionality between his sentence and the sentence imposed upon Mihai."

Facts

The following summary has been drawn from a Statement of Agreed Facts that was tendered in the District Court.
The principal events occurred in an industrial subdivision of a former aluminium smelter in Pine Road, Yennora. Emil Mihai, Traian Dihel and the applicant had been stealing copper products and on the evening of 9 February 2017, they entered the subdivision for this purpose. The applicant began detaching copper items at one location while Messrs Mihai and Dihel did likewise in a warehouse that was under demolition.
During the course of this activity, Mr Mihai began arguing with Mr Dihel, telling him he was useless to the enterprise and accusing him of having stolen tools from, and of owing money to Mihai. The Agreed Facts state: "It is at this point that Mihai, a former world-class wrestler, assaulted Dihel, causing him to sustain a 50mm long laceration to his left occipital bone and what was later found to be a corresponding fracture that radiated down through his skull to his left jugular foramen. The assault was in the form of a heavy open handed blow to the head (described as a 'bitch-slap'). At the time of the assault, [the applicant] heard a noticeable 'thud' sound which caught his attention." (Emphasis added)
Mr Dihel lost consciousness immediately. Mr Mihai attempted to revive him by slapping him hard multiple times around the face, "brutally". He asked the applicant to go and retrieve an esky and upon the applicant's return, poured water on Mr Dihel. At some stage, Mr Dihel began making a snoring noise. Mr Mihai and the applicant then dragged some copper product to the applicant's car and went home. (They lived next door to each other.)
After some time, the applicant and Mr Mihai returned in order to recover items of copper the applicant had earlier removed as well as the tools he had left behind. They passed Mr Dihel and heard him making loud "gurgling" and "snoring" noises. The Agreed Facts included that such noises are consistent with significant brain swelling causing compression to an airway. (The applicant later said to police that he thought Mr Dihel was asleep.) Mr Dihel was lying in a substantial pool of blood draining from his ear and from wounds to his head. At this point, terminal brain injury and significant blood loss were competing to cause his death.
Mr Mihai and the applicant returned home for a period before Mr Mihai approached the applicant and said he was worried about the deceased. The applicant asked him why and Mr Mihai said, "because of the blood". The applicant said, "what blood?" and Mr Mihai replied, "from the wound - you stepped in it". They decided to return to the warehouse to check on Mr Dihel. When they returned, Mr Mihai, who had gone ahead, found Mr Dihel was dead. He told the applicant and they left.
At some point in all of this, Mr Mihai dragged the body to a location where it would not be seen by security patrols and passers-by and he disposed of Mr Dihel's tools and torch.
The applicant and Mr Mihai had a conversation in the applicant's garage that was overheard by the applicant's ex-partner. (The Agreed Facts imply that this was on the same night.) "Applicant: We should have rang an ambulance; we should have gone back. You shouldn't have fucking bitch-slapped him. Mihai: Well he shouldn't have taken our copper … He deserved it. Applicant: … he was gurgling. Mihai: … he's dead. Applicant: What did you fuckin' do to him? Mihai: I bitch-slapped him and he hit the ground. I'm a wrestler; I'm not meant to use my hands." (Emphasis added)
In the following days, the applicant and Mr Mihai took steps to reduce their chances of being linked to the crime scene. They each disposed of clothing and/or shoes that they had worn and extensively cleaned their respective cars.
The body of Mr Dihel was found on the morning of 13 February 2017. There was a wound to the rear of his head and he was lying in a large pool of blood. A post-mortem examination revealed that the cause of death was "blunt force head injury". It was determined that he died from either a traumatic brain injury or significant blood loss. The doctor said that the blood loss might have occurred over a period of hours following the impact, depending on the rate at which the vein bled.
A crime scene examination was conducted and a number of shoe impressions in blood were found. Police soon identified the applicant and Mr Mihai as having been involved with Mr Dihel in the theft of items from the industrial subdivision. They spoke with Mr Mihai on 14 February 2017 and he gave a false account to the effect that the three men attended the premises on the relevant night and were involved in the theft of property but that he, and inferentially the applicant, had no knowledge or involvement in the death.
Mr Mihai met up with the applicant after the interview and coached him as to the questions he had been asked and the responses he had given to police. The applicant falsely corroborated Mihai's version when he was interviewed by police later that day. Both men lied when police asked them to provide the footwear they had been wearing.
A lengthy police investigation ensued during which the applicant was captured in telephone intercepts discussing Mr Dihel's death and the role of Mr Mihai in it. The applicant spoke with close associates about being afraid of Mihai, saying to one person that he "knocked someone and walks around threatening the only person who knows about it". Mihai was captured speaking about Mr Dihel and the night he was killed. He described Mr Dihel as a thief and expressed an intense hatred for him.
The applicant was further interviewed by police on 11 September 2017. He made admissions, providing an account largely along the lines set out in the Agreed Facts. However, he maintained his earlier denial that he disposed of his clothing and shoes and cleaned his car. He admitted to colluding with Mr Mihai after Mr Mihai's initial police interview and conspiring to retell the same version. He said the reason he did not tell the whole truth was because, "I didn't want to get in trouble. I was fearful. I didn't want to definitely get him in trouble … If he wasn't going to tell anyone, I wasn't going to … 'cause … he's threatened me before".
The applicant was arrested, further interviewed, and charged on 10 July 2018. He maintained a lack of knowledge as to the extent of the injury sustained by Mr Dihel and blamed this for his inaction. He continued to deny involvement in the disposal of clothing, although he now accepted that he cleaned his car.
The Agreed Facts include a statement as to the applicant's culpability for the offence of accessory after the fact to manslaughter. It is to the effect that the applicant, with knowledge that Mr Mihai had assaulted Mr Dihel and that Mr Dihel had died, "took steps which he knew would, directly or indirectly, assist Mihai to avoid prosecution". These steps included giving police a false account as instructed by Mihai and removing evidence which could link himself, and consequently Mihai, to the crime scene. It is said that the failure to provide information that would assist in securing the prosecution of Mr Mihai persisted until the applicant's interview on 11 September 2017.
In relation to the hinder investigation offence, the Agreed Facts state that on 12 May 2018, after learning that investigators had spoken with his ex-partner, the applicant wrote her a letter in which he advised her that should the police ask her to make a statement, she should either say that she could not recall or should provide a "chain of events" that the applicant described in the letter. That chain of events was to the effect of what the applicant had told the police.

Personal circumstances of the offender

The applicant was aged 54 at the time of the offences.
He had a criminal record that commenced in 1999 when he was aged 36. For the first ten years it comprised summary offences dealt with by way of fines in the Local Court. He received his first term of imprisonment in 2011 for an offence of assault occasioning actual bodily harm.
On 11 March 2015, the applicant was charged with child sexual assault offences that were committed in 2001. He was sentenced on 2 March 2018 to an aggregate term of 5 years with a non-parole period of 3 years. The sentence was backdated to 2 February 2017 so he became eligible for parole on 1 February 2020. [3] The applicant was on bail for those offences at the time of committing the index offences. This was an aggravating feature drawn to the judge's attention, although it was not mentioned in his sentencing remarks. [4]
Evidence in the defence case was confined to the tender of documentary material. There was a report by Dr Adam Martin, forensic psychiatrist, an affidavit and letters by the applicant, various certificates as to rehabilitative and vocational programs he had completed in custody and letters from his sister and his ex-partner.
The applicant had an uneventful upbringing. He left school at the age of 17 and became a carpenter. He had been in a number of relationships over the years, the longest of about six years duration. Domestic violence marred some of the relationships. He has five children; four adults and one child. He maintained involvement in the lives of his children including the child who was reported to be exhibiting behavioural problems because of the applicant's incarceration.
Drugs and alcohol played an influential part in the applicant's descent into criminal offending at a relatively mature age. In the time leading up to his arrest for the present matters he was using methamphetamine and abusing alcohol.
A feature of the applicant's subjective case was his preparedness to give evidence against Mr Mihai. He was not being held in protective custody and he expressed concern for his safety as well as that of his 11 year old daughter and her mother.
Dr Martin diagnosed substance use disorder and considered that it explained the applicant's relatively late engagement with the criminal justice system. Dr Martin said the applicant would have appreciated the seriousness of the consequences of his actions. The applicant had coped as well in gaol as could be expected. He was at risk of developing significant anxiety in relation to giving evidence against Mr Mihai. In addition, being fearful for the safety of his daughter and her mother would be distressing and significantly anxiety provoking. Nevertheless, Dr Martin thought the applicant expressed genuine remorse and had reasonable insight into his offending behaviour. He also had insight into his substance use problems and the need for ongoing intervention.
The judge allowed a 25 per cent discount for the applicant's early pleas of guilty for the two primary offences. He allowed a further discount of 15 per cent for the assistance to authorities. In addition, his Honour was satisfied that the applicant was genuinely contrite; noted his strong community ties; and considered that his prospects of avoiding further offending and of reintegration with lawful society were "at least fair".
The judge considered the principle of totality in relation to the imposition of a sentence in the context of a pre-existing sentence. The practical choice as to backdating the sentence was within the range of 10 July 2018 (the applicant's date of arrest for the present matter) and 2 February 2020 (the expiration of the non-parole period for the pre-existing sentence). His Honour determined to backdate to 1 October 2019 and there is no complaint about that.
His Honour found there to be special circumstances because of the degree of accumulation upon the existing sentence and because the applicant would require a longer period of supervision on parole than would otherwise be provided.
The indicative sentences of 2 years, 6 months for the accessory offence and 1 year, 6 months for the hindering offence followed the combined reduction of 40 per cent. Accordingly, the assumed starting points for those indicative sentences were 4 years, 2 months and 2 years, 6 months.

Ground 1 - error in relation to the sentence imposed for the manslaughter offence

It was agreed at the hearing that, because an aggregate sentence was imposed, this ground is really a particular of ground 3. [5]
The applicant argued that the starting point for the sentence assessed for the accessory after manslaughter offence, 4 years, 2 months, was some 83 per cent and therefore too high as a proportion of the maximum penalty. It was submitted that having regard to the nature of the principal offence and the participation of the applicant, such a starting point was too high and it contributed to the imposition of a manifestly excessive aggregate sentence.
It was noted in JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40] that although indicative sentences specified in accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) are not themselves amendable to appeal, they can be a guide as to whether error is established in relation to an aggregate sentence.
In Lee v R [2020] NSWCCA 244 at [32], Beech-Jones J observed that even if the indicative sentences are considered excessive, that did not necessarily mean that the aggregate sentence is excessive. Moreover, the corollary is that even if the indicative sentences are not excessive in their own right, that does not preclude a conclusion that the aggregate sentence is excessive.
The Crimes Act makes various provisions in relation to the punishment of accessories after the fact to serious indictable offences. An accessory after a treason-style offence is liable to 2 years' imprisonment; [6] accessories after murder are liable to 25 years; and accessories after kidnappings and armed robberies can receive up to 14 years' imprisonment. [7] Section 350 provides that the maximum penalty for an accessory after any other serious indictable offence is 5 years.
A serious indictable offence is defined as an indictable offence with a maximum penalty of imprisonment for life or a term of 5 years or more. [8] Manslaughter is at the top of the range in terms of seriousness of all of the serious indictable offences within s 350.
The homicide itself was brutal and violent. It was described somewhat offensively as "a slap" but this is a euphemistic term that must be eschewed. It was an agreed fact that it was "a heavy open-handed blow to the head". It was angry and unprovoked. It was forceful enough to cause a noticeable "thud" sound and to knock Mr Dihel unconscious. [9]
The relevant physical capacities of the offender and the victim in a case of homicidal violence are pertinent to objective seriousness: R v Carroll; Carroll v R (2010) 77 NSWLR 45; [2010] NSWCCA 55 at [58]. Concessions about the likely greater size and strength of Mr Mihai made by counsel for the applicant in oral submissions cannot be accepted because of the lack of a sufficient evidentiary foundation. [10] However, it is of some significance that Mr Mihai, a former world championship wrestler, said to the applicant after the event, "I'm a wrestler, I'm not meant to use my hands". That may be taken as a recognition of his strength and skill and of him having an enhanced capacity to cause grave harm to a fellow human being.
Mr Mihai then tried to revive Mr Dihel from his unconscious state by brutally slapping him multiple times around the face but to no avail. Mr Dihel was then making "gurgling" and "snoring" noises as he lay on the floor of the disused industrial premises. The applicant and Mr Mihai must have been aware of the dire state in which they left Mr Dihel but they made no real attempt to render assistance. The applicant even walked in his blood before walking away.
The applicant's criminality did not arise from impulsivity. With full knowledge of the acts of Mr Mihai, he embarked upon a series of deceptions to conceal the criminal responsibility of Mr Mihai and in turn conceal his own moral responsibility. He maintained a false version of events for seven months before disclosing part of the truth. He maintained a denial of disposing of or cleaning away incriminating items. He made some admissions to the latter in his interview 17 months after the event.
Craigie SC DCJ found that the applicant's actions were influenced by (a) a desire to protect his own interest against being implicated in a violent crime that he had witnessed, and (b) a desire to assist Mr Mihai with whom he had been jointly engaged in the criminal activity of stealing copper. His Honour also found it probable that the applicant had "a burgeoning fear of Mihai both in terms of physical retribution and also as to himself becoming a potential suspect in the death of Dihel". [11] Given the applicant did not give evidence in the sentence proceedings, the veracity of his account of being in fear of Mr Mihai was untested and unsupported. Similarly, there has never been an opportunity to explore the question of what alternative arrangements the applicant could have made for the safety of himself and his intimates if he had given the police an honest account in the first place.
In all homicide cases, sight should never be lost of the fact that the gravamen of the offending is the unlawful taking of a human life. As an accessory after manslaughter, the applicant was culpable for assisting the person responsible for the homicide to escape justice.
In circumstances where the basis of the applicant's offending is as described in this case, the sentencing judge was correct to describe it as "an inherently very serious offence". [12]
In assessing the appropriate sentence for the accessory offence there was the additional need for the judge to take into account that the applicant was on bail for serious sexual offences at the time and that he had a criminal history which was regarded as denying the applicant leniency. Senior counsel who appeared for the offender submitted that the subjective circumstances were "probably ultimately fairly neutral". He explained that there were "positives in terms of his prospects of rehabilitation [and] his remorse" but that was countered by "the fact that he was on bail for the previous sex offences at that point and he is disentitled to leniency, I concede … because of his criminal history". [13]
Counsel now appearing for the applicant disavowed that submission and contended that the judge had made favourable findings as to certain aspects of the subjective case. In addition to the pleas of guilty and assistance to authorities that attracted discrete discounts, the applicant's submissions referred to the following findings of the judge: Certificates as to vocational and rehabilitative courses "point to the offender having spent his time in custody productively". [14] "His Honour accepted that the applicant had considerable insight and was genuinely contrite" and he accepted the applicant retained strong community ties. [15] The judge also accepted that the applicant's "prospects of avoiding further offending and of reintegration with lawful society are at least fair". [16]
These would appear to be the types of matters senior counsel had in mind in referring to "the positives". It was necessary for the judge to weigh them in the balance along with the two significant negative factors to which senior counsel also referred. The concession that the applicant's subjective case was "fairly neutral" appears to have been not only candid but also realistic. However, when the pleas of guilty and the assistance to authorities were factored in, the judge described the applicant's case as "quite compelling". [17] There was no complaint by either party in this Court as to the extent of the discounts his Honour allowed.
An additional matter that the judge was required to take into account in relation to the assessment of the sentence for the accessory offence was the offence contrary to s 139 of the Crimes Act. That was no trivial matter and required the judge to increase the weight to be given to personal deterrence and retribution in accordance with the relevant guideline judgment: Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [18], [42].
The applicant has failed to make good the contention that the indicative sentence is erroneously excessive when all matters relevant to its assessment have been taken into account.

Ground 3 - the sentence is manifestly excessive

It was indicated at the hearing that aside from the matter raised under ground 1, the applicant's case in relation to ground 3 comprised reliance upon "the very favourable subjective case". [18]
In relation to this ground it is necessary to bear in mind that the aggregate sentence also encompassed the hinder investigation offence. There is little information about that offence in the facts; it is confined to what appears in the summary above. [19]
The applicant sought to portray in this Court a case to the effect that once he had decided to co-operate with the admissions made on 11 September 2017 he had "done everything that might be expected". However, the act that constituted the hindering offence was the writing of a letter eight months later in which he sought to encourage his ex-partner to deceive the police about the version he had provided them.
It is implicit that the sentencing judge regarded the hindering offence as adding something to the overall criminality in the offending, given the indicative sentence for the accessory offence is 2 years, 6 months and the aggregate sentence is 2 years, 10 months.
To make good a ground asserting that a sentence is manifestly excessive it is necessary to establish that the sentence is unreasonable or plainly unjust. That and other relevant principles were summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] and need not be repeated here.
It was necessary for the judge to impose a sentence that properly reflected the purposes of sentence, particularly denunciation and the need for punishment in respect of a variety of offending; most particularly the applicant's assistance to the perpetrator of a homicide to evade justice. The seriousness of the offending is outlined above. [20]
It may be accepted that this was not the worst imaginable example of this sort of offending. As the sentencing judge noted, it was not done for financial gain or in a "sense of criminal justification" shared with Mr Mihai. However, this is not a case where the starting point leaves no room for worse offending.
Further to all of that, it was necessary for the judge to take into account the thieving offence and to factor in the additional criminality of the hindering investigation offence. There was nothing trivial about either of them.
The applicant's "very favourable" subjective case was, in truth, fairly neutral in the sense explained by senior counsel to the primary judge. [21] I am not persuaded that the aggregate sentence is manifestly excessive.

Ground 4 - parity in relation to the sentence imposed upon Mr Mihai

This ground was added by leave at the hearing on Tuesday 24 November 2020, following the sentencing of Mr Mihai the previous Friday: R v Mihai [2020] NSWDC 727.
Mr Mihai had been committed for trial for manslaughter. On the first day of his trial on 10 August 2020, the Crown accepted a plea of guilty to assault causing death, contrary to s 25A(1) of the Crimes Act, in full discharge of the indictment. Mr Mihai received a 5% discount for the plea.
In contrast to the 25 year maximum penalty for manslaughter, assault causing death carries a maximum penalty of 20 years.
Mr Mihai was sentenced by his Honour Judge Sutherland SC to a term of imprisonment of 3 years, 10 months with a non-parole period of 2 years, 4 months, 2 weeks. The starting point was therefore a head sentence of 4 years.
His Honour found that the objective seriousness fell "towards the lower-end of a range described as the mid-range". [22]
There was nothing relevant to note in Mr Mihai's upbringing. He grew up in Romania and came to Australia at the age of 21 to compete in a world championship for wrestling. He did not attend that championship and stayed in Australia on a skills visa, teaching wrestling and working in vineyards. [23]
Mr Mihai's criminal history was replete with offences primarily concerned with drugs and violence. He was on conditional liberty in respect of good behaviour bonds imposed in the Local Court at Parramatta on 24 February 2016 (for possessing a counterfeit security and possession of a prohibited drug) and in the District Court at Parramatta on 29 August 2016 (for stalking or intimidation). [24] While other good behaviour bonds had been the subject of call-up for breach, those three bonds were not and they were current at the time of the offending. The aggravating feature of offending whilst in the community on conditional liberty was drawn to his Honour's attention in written submissions by the Crown but it was not mentioned in his sentencing remarks. [25]
In relation to pre-sentence custody, his Honour derived from the criminal and custodial records that since Mr Mihai's arrest and bail refusal on 12 July 2018 he had served some fixed terms of imprisonment, two for 3 months and two for 2 months each dating from 21 August 2018. His Honour observed that he would take this, and the principle of totality, into account in determining the appropriate sentence. [26]
A further factor relevant to the consideration of Mr Mihai's pre-sentence custody and the application of the totality principle was that for a period of 7 months, 27 days he was serving sentences following three intensive correction orders being revoked. Completely subsuming and extending beyond the fixed terms mentioned above, Mr Mihai was in custody from 21 August 2018 until 16 April 2019 for this reason. [27] The upshot is that by the time he came to be sentenced on 20 November 2020, he had been in custody for other offending for about 8 months since his arrest on 12 July 2018, not just the 3 months that his Honour took into account. His Honour's decision to backdate the sentence to 10 August 2018 might have been otherwise if this had been taken into account.
Sutherland SC DCJ accepted that Mr Mihai had been suffering from PTSD since some men broke into his partner's home and assaulted him, his partner and her son in 2014. His Honour was not, however, satisfied that it contributed to the offending in any causal, mitigatory way. Rather, his Honour found that the "slap" was motivated by anger. His Honour appears to have found it significant that the blow was a slap rather than a punch, head-butt or blow from a bar stool. [28]
His Honour considered that the steps Mr Mihai took to hide the body and destroy the evidence were demonstrative of a lack of remorse and contrition at that time. [29]
His Honour referred to eight manslaughter cases from 1999 to 2008, seven of them being first instance sentencing decisions and one being on appeal. They involved sentences, or, where there was discounting, starting points, ranging from 3 to 5 years and in one case 7½ years. He prefaced this review by saying that "much assistance is to be gleaned from a perusal of some of the relevant cases involving a single blow leading to death notwithstanding that most such cases resulted in convictions for manslaughter". Immediately following the review of those eight cases, his Honour referred to R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31. He referred in particular to a passage in the judgment of the Court at [221]-[227] and quoted the entirety of paragraph [226].
What the Court in R v Loveridge was addressing in that passage was the need for care in referring to other sentencing decisions. In particular, reference was made to the lack of utility in referring to other cases of manslaughter said to involve a particular mechanism of death being caused: "[226] There is, in truth, no range of sentences for offences of manslaughter which may be said to have a single common component relating to the mechanism of death (such as the victim's head striking the ground after a blow to the head). To the same effect, there is no range of sentences for manslaughter offences said to have been committed by use of a knife or a rock or some other implement. [227] The myriad circumstances of manslaughter offences render it unhelpful to speak in terms of a range of sentences, or tariff, for a particular form of manslaughter. Gleeson CJ made this clear in R v Blacklidge (see [193] above), in a passage cited regularly in cases such as R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520 at 530 [40]."
Having regard to that having been said in R v Loveridge, and the regard the sentencing judge clearly had to it, it is difficult to understand how his Honour derived "much assistance", as he said, from his perusal of cases involving a single blow leading to death. The Court was informed that the parties had not referred his Honour to these cases. [30] There appears to be a risk that his Honour misled himself as to there being a range of sentences in single mechanism of death cases of manslaughter, notwithstanding that his Honour was aware of what had been said in R v Loveridge. Moreover, it appears that this was somehow then extrapolated to sentencing for the offence of assault causing death.

Submissions

The applicant submits that there is stark disproportionality between the sentences imposed upon these co-offenders, given that the starting point for the applicant's accessory after the fact to manslaughter sentence was two months more than that for Mr Mihai's corresponding offence. This, notwithstanding the maximum penalty for the applicant's offence was 5 years, whereas that for Mr Mihai's offence was 20 years. The applicant contends that his sentence fails to reflect his assistance, remorse and lesser objective criminality than that of Mr Mihai.
Both parties accepted that the facts of the offending presented to the different sentencing judges in each case were broadly similar. However, one point of difference is that in the applicant's case he agreed with a description of Mr Mihai's fatal attack being constituted by a "heavy open handed blow to the head". That description accords with common sense but in Mr Mihai's case, the agreed description was "an open-handed slap to the head". [31] Another point of difference is that the facts in Mr Mihai's case do not include that he engaged in multiple acts of brutally slapping Mr Dihel after having rendered him unconscious.
An obvious point of distinction between the two offenders on which the Crown placed emphasis was that the applicant had the additional offences, one to be taken into account and the other to be the subject of assessment of a further discrete sentence for its additional criminality.

Determination

Principles relevant to the determination of this ground were usefully summarised by this Court in Saraya v R [2015] NSWCCA 63: "[8] The ground of appeal invokes the "parity" principle which is founded on the notion of equal justice. In broad terms that notion requires that "like offenders should be treated in a like manner": per French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [28]. [9] The jurisdiction of this Court under s 6(3) of the Criminal Appeal Act to quash a sentence "if it is of opinion that some other sentence, whether more or less severe is warranted in law" permits the Court, in its discretion, to reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender or co-offenders. As Gibbs CJ explained in Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610, the reason why the Court interferes is that "it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done". See also per Mason J at 613. [10] Whether there is an unjustifiable disparity directs attention to the differences in the sentences and whether, in the mind of an objective observer, the disparity would give the appearance that equal justice has not been done. That comparison must take account of differences between the antecedents, personal circumstances of the co-offenders and any mitigating factors and the part played by each in the relevant criminal conduct, as well as the fact that those differences form the basis of qualitative and discretionary judgments made as part of the sentencing process: Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 323, 338; Green at [31], [32]. [11] Whilst disparity between sentences may be an indicator of appealable error, it is the presence of unjustifiable disparity that is the ground for intervention: Lowe at 610, 613, 617, 623; Postiglione at 322; Green at [32]. Consistently with that being the position and as was the case in Lowe, the disparity may arise in respect of, and the principle apply to, the sentence imposed on the first of a number of co-offenders to be sentenced, as is the case on this application: Jones v The Queen (1993) 67 ALJR 376; R v Bellorini and R v Ruiz [2000] NSWCCA 50. [12] In Green, the majority considered, in accordance with the view expressed by Mason J in Lowe at 613 - 614, that in the exercise of the appellate discretion enlivened by unjustifiable disparity, a "sentence which would otherwise be appropriate can be reduced … to a level which, had there been no disparity, would be regarded as erroneously lenient": [33]. At the same time it was recognised that the existence of a discretion to mitigate disparity by reducing a sentence to one which is otherwise inadequate does not amount to an obligation to do so; and would not require the reduction of a sentence to a level which could be characterised as "an affront to the proper administration of justice": [33]. [13] These observations of the majority do not squarely address whether a sentence imposed on a co-offender that is manifestly inadequate can give rise to unjustifiable disparity. [14] As is noted by Bell J in Green at [106], there is authority in this Court that the inadequacy of the sentence imposed on a co-offender may be of such a degree that any sense of grievance engendered in the offender sentenced more severely cannot be regarded as legitimate. That was also the view of Brennan J in Lowe at 617 - 618. In R v Diamond (Court of Criminal Appeal (NSW), 18 February 1993, unrep) Hunt CJ at CL said at 5 (James J agreeing): 'The sentence imposed … was, as I have said, appropriate and not excessive. That imposed by the Magistrate was, as I have also said, irresponsible. The disparity between them may give rise to a sense of grievance on the part of the applicant, but it was not a justifiable one.' See also per Howie J (McClellan CJ at CL and Simpson J agreeing) in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [69] and per Howie J (James and Davies JJ agreeing) in Josefski v R [2010] NSWCCA 41; 217 A Crim R 183 at [65]. [15] The decision in Diamond is also cited in support of the proposition that the discretion to mitigate disparity should not be exercised to reduce an otherwise adequate sentence to a level which would be an affront to the proper administration of justice: see Green at [33] fn 96; R v Doan [2000] NSWCCA 317; 50 NSWLR 115 at [19]; R v Chen & Others [2002] NSWCCA 174; 130 A Crim R 300 at [289]; R v Ismunandar and Siregar [2002] NSWCCA 477; 136 A Crim R 206 at [23] - [26]. [16] The relevant principle is stated by R A Hulme J (Beazley JA and Hidden J agreeing) in Youkhana v R [2011] NSWCCA 37 at [49]: '… the Court has a discretion and is not bound to intervene if a sentence offends the parity principle. A reason for not intervening is if the sentence imposed upon the co-offender is manifestly inadequate and intervention would "produce a sentence disproportionate to the objective and subjective criminality involved".' [17] In such a case the necessity to uphold public confidence in the administration of justice continues to prevail for the reasons given by Gleeson CJ in R v Rexhaj (Court of Criminal Appeal (NSW), 29 February 1996, unrep), in the following passage which is extracted in R v Ismunandar at [38]: 'The principle which underlies … [intervention for disparity] … is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice …. There are, however, other things which may also lead to an erosion of public confidence in the administration of justice, and they include the multiplication of manifest errors. That is why numerous judges have stressed the unattractiveness of responding to one wrong decision by making another wrong decision.'"
The hearing of the application was adjourned for two days to allow time for all of the papers relating to the sentencing of Mr Mihai to be obtained and placed before the Court. By that time the Crown was able to advise that the matter had been considered within the Director's chambers and it had been determined not to pursue an inadequacy appeal under s 5D of the Criminal Appeal Act 1912 (NSW). [32]
A decision of the Director of Public Prosecutions to pursue, or not to pursue, an appeal against sentence involves consideration of a range of factors, not simply whether the sentence is thought to be inadequate: see Guideline 29 of the Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales. [33] Even assuming the decision of the Director in this case was made on that limited criterion, the assessment of the sentence imposed upon Mr Mihai and the characterisation of it by the Director is not binding; it is a matter for this Court to make up its own mind on the subject.
Having regard to the level of seriousness of the applicant's offending [34] - all of it - the sentence assessed in his case was well within the bounds of what was proportionate and reasonable. The extent of the discounting on account of the pleas of guilty and assistance reduced the sentence substantially; arguably to a point close to being unreasonably disproportionate. To consider reducing the sentence because of a sense of grievance arising from the sentencing of Mr Mihai would necessitate a reconsideration of the discounts. Sentences cannot be reduced because of pleas of guilty and assistance to authorities to a point that they are disproportionate to the nature and circumstances of the offence. [35]
The sentence passed upon Mr Mihai was lenient. A starting point of four years for unlawfully causing the death of a human being where the maximum penalty is 20 years is an inadequate reflection of the criminality involved in this case. In addition there were a number of errors in the sentencing process as discussed above that likely contributed to the imposition of a sentence more favourable to the offender than was warranted.
It may be understandable that the applicant has a sense of grievance in relation to the sentence imposed upon Mr Mihai but it is not a grievance that can be regarded on an objective level as being legitimate.

Orders

I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.
WILSON J: I agree with R A Hulme J for the reasons his Honour has given.

Endnotes

24.11.20 Tcpt 3.20
24.11.20 Tcpt 3.11; 5.22
It must be assumed that there were broken periods of pre-sentence custody warranting the sentence being backdated to 2 February 2017. There is no doubt the applicant was not in custody in February 2017 when the manslaughter of Mr Dihel occurred. The custodial history document confirms that he entered Corrective Services custody on 8 June 2017.
See Crown Sentence Summary (AB 30)
24.11.20 Tcpt 9.19
Crimes Act, s 348
Crimes Act, s 349
Crimes Act, s 4(1)
Mr Mihai agreed with a statement of facts that included that he had said to a friend, "I hit him once, knocked him out cold and the guy ending up dying". Mihai Agreed Facts [64].
26.11.20 Tcpt 12.2 - 12.33
ROS 14
Remarks on sentence (ROS) 10
22.5.20 Tcpt 7.35
ROS p11. Applicant's written submissions (AWS) [36]
ROS 15, 17; AWS [44]-[45]
ROS 17; AWS [46]
ROS 17
24.11.20 Tcpt 9.40
At [24]
At [43]-[48].
See above at [50]
R v Mihai [2020] NSWDC 727, [25]
R v Mihai [2020] NSWDC 727, [28]-[29]
Mihai criminal history pp 10-11
Crimes (Sentencing Procedure) Act, s 21A(2)(j); Crown written submissions at [10]-[11]
R v Mihai [2020] NSWDC 727, [41]. The criminal and custodial records in fact indicate there were seven fixed terms of 3 months and two of 2 months. Some were imposed following breaches of bonds and some were for fresh offences committed on various dates.
Criminal history pp 5 and 13; Custodial history p1
R v Mihai [2020] NSWDC 727, [46]-[51]; [70]
R v Mihai [2020] NSWDC 727, [71]
26.11.20 Tcpt 6.42; 11.35
Cf the applicant's agreed facts at [6] with the agreed facts for Mihai at [1].
26.11.20 Tcpt 2.45
https://www.odpp.nsw.gov.au/sites/default/files/prosecution-guidelines.pdf accessed 28 November 2020.
See [43]-[48]
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22(1A) and s 23(3) 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: 09 December 2020

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