Ground 1: Whether there has been a miscarriage of justice in that the prosecution changed the characterisation of the weapon and its possession in the sentencing proceedings of the applicant's co-offender engendering a justifiable sense of grievance in the applicant.
25The principle of parity derives from the fundamental norm of equal justice. In Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [28] per French CJ, Crennan and Kiefel JJ, their Honours said of equal justice:
"... It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2001) 207 CLR 584 at 608, [65]:
Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect."
26In considering whether the applicant has a justifiable sense of grievance it is necessary to have regard to what was done by both offenders in the course of the joint criminal enterprise to rob the victims, and the offences to which they pleaded guilty, as well as the factual findings made by the sentencing judges in each case.
27It is well recognised that sentences imposed on co-offenders may be based upon different factual findings if the evidence tendered before either the same or different sentencing judges differs (see Baquiran v R [2014] NSWCCA 221 referring to R v Chandler; Chandler v R [2012] NSWCCA 135 per Basten JA at [6], referred to with approval in Ith v R [2013] NSWCCA 280 at [61]). The Crown submitted that the difference between the applicant's sentence and that of Zarb (marginal though it is) is justified by the differing factual findings as to who was armed and with what weapon and, in the case of this applicant, that he was on a conditional bond at the time of committing the robberies.
28The applicant does not submit that the judge who sentenced Zarb proceeded on a wrong principle or that she failed to apply parity principles. Rather, it was submitted that what her Honour identified as the difference in the criminal culpability of the applicant and his co-offender was the result of what counsel submitted was an arbitrary selection of different charges by the Crown which has been productive of unfairness to the applicant.
29Senior counsel for the applicant accepted that the discretion in the prosecution to determine the charges to be preferred against an offender or offenders is not susceptible to judicial review. He submitted, however, that does not operate to exclude or even limit the operation of the parity principle and that when the principle of equal justice is applied in this case, wholly identical sentences should result, despite the difference in the maximum penalty between the two offences. In support of that submission particular emphasis was placed upon a passage from the decision in Green at [30]:
"In Lowe v The Queen and in Postiglione v the Queen, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged."
30In Chandler a similar argument to that advanced on this appeal was considered but not decided. The Court (Hoeben JA, with whom Bathurst CJ, Basten JA (with additional observations), McClellan CJ at CL and Johnson J agreed) was of the view that application of the parity principle did not arise given the differences in the respective cases of the applicant and his co-offenders and, for that reason, it was not an appropriate case in which to consider the question whether it is open to this Court to examine the prosecutorial discretion in order to determine whether a legitimate sense of grievance has been made out.
31That question has since been the subject of further consideration in Ivory v R [2014] NSWCCA 181 by Bellew J at [60] (with whom Hoeben CJ at CL and Adamson J agreed). In that case a refinement of the argument that was advanced in Chandler and on this appeal included the submission that the choice of charges, and the fact that the Crown did not take steps to have the co-offenders sentenced by the same sentencing judge, was an abuse of process being for an improper purpose. That argument was unsupported by evidence and rejected.
32Consideration was then given to the underlying proposition that is open to this Court to examine the exercise of prosecutorial discretion where a parity ground is pressed. As to that issue, Bellew J said:
"[61] Firstly, and contrary to the submissions made by counsel for the applicant, no part of the judgment of the High Court in Green (supra at [30]) is authority for the proposition that after a person is sentenced this Court is able to go behind, and examine, the exercise of prosecutorial discretion. In Green, their Honours recognised the practical difficulties, in terms of the application of parity principles, which can arise when a comparison is sought to be drawn between the sentences imposed on co-offenders who are charged with different offences. Their Honours did not make any reference at all to the issue of prosecutorial discretion. Nothing in the judgment suggests, even remotely, that the approach which was urged on this Court is open.
[62] Secondly, the fact that such an approach is not open to this Court is evident from the more recent decision in Elias v R; Issa v R [2013] HCA 31; (2013) 248 CLR 483 where the High Court (French CJ, Hayne, Kiefel, Bell and Keane JJ) said (at [30], citations omitted):
"Parity is concerned with the equal treatment of co-offenders. As Green v R explains, the principle is not confined to co-offenders in the strict sense. It has application in the sentencing of persons involved in the same criminal enterprise. The norm of equality discussed in Green v R is not disturbed by sentencing an offender for the offence for which he or she has been convicted and not by reference to a different, less serious, offence which the court considers to be more appropriate to the offending conduct."
[63] The Court then said (at [35]):
"Prosecutors are subject to a duty of fairness in the exercise of their important public functions. In the unlikely event that the discretion to prosecute a particular charge (or at all) was exercised for some improper purpose, the Court has the power to relieve against the resulting abuse of process. The time for debate as to any claimed abuse arising out of the selection of the charge is before the entry of a plea. After an offender has been convicted of an offence it risks compromising the impartiality and independence of the court to require that it sentenced by reference to an offence of which the offender has not been convicted but which it considers the prosecution should have charged".
[64] In the present case, no issue was raised by the applicant at the time of being sentenced about the Crown's decision to charge him with an offence contrary to s. 33(1)(a). The approach now urged on this Court on behalf of the applicant would clearly run the risk of compromising the impartiality and independence to which the High Court referred in Elias. It should be noted that in the course of oral argument counsel for the applicant was invited to refer the Court to any authority which supported the approach which was being advanced. No authority was provided."
33Although in this case it was not submitted that the prosecutor had acted for any improper purpose in the decision to prosecute Zarb for a less serious offence, in my view the underlying principle that the prosecutorial discretion is unreviewable is the same.
34In Magaming v The Queen [2013] HCA 40; 302 ALR 461 at [68] Gageler J noted that it is undesirable for there to be close curial involvement in prosecutorial processes since the courts are a forum where criminal judgment is administered. Such processes necessarily incorporate a decision as to whether a particular charge is to be laid, and in some circumstances whether a particular charge, having been laid, is to be proceeded with. His Honour went on to say:
"...The main reason generally given is that the court's review of such an exercise of prosecutorial discretion would compromise the impartiality of the judicial process by involving a court in an inquiry into a forensic choice made by a participant in a controversy actually or potentially before the court. A complementary reason often given is that a court's control over its own hearing and determination of whatever charge might in fact be laid and proceeded with in the exercise of prosecutorial discretion means that "the court has other powers to ensure that a person charged with a crime is fairly dealt with"."
35In any event, as the Crown submitted, any suggestion that an unfairness has been perpetrated as a result of the exercise of the prosecutorial discretion in this case is not borne out. Significantly, the applicant admitted to a robbery with the use of a dangerous weapon while his co-offender did not, as was his entitlement. In circumstances where the weapon was never recovered, the Crown case against the co-offender for the charge under s 97(1) would have relied, exclusively, on the description of the weapon by the three victims. In the assessment of the prosecutor, this may well have been an inadequate basis upon which to prove that it was a prohibited weapon as defined, an essential element of the charge which the Crown was obliged to prove beyond reasonable doubt. That being so, to include on the indictment to be presented at the trial of the co-offender an alternative charge under s 97(2) for each of the three armed robbery charges, and to accept pleas of guilty to the alternative counts in full discharge of the indictment, could not be the subject of any criticism.
36Further, I am well satisfied that the differences between the sentences, measured in months, is not only entirely explicable having regard to the different maximum penalties and the different facts with which both sentencing courts were concerned but that disparity is neither "marked", "gross" nor "glaring" such as might warrant intervention and correction by this Court (see Tan v R [2014] NSWCCA 96 at [39]).
37I would dismiss the first ground of appeal.