Gill v R

Firstly, I repeat the fact that Nugent received a discount of fifty per cent for his plea of guilty and his assistance. On one view that should make the starting point a total sentence to be applied of eight years imprisonment. However, that is overly simplistic. This offender was not a first time offender. Nugent had one prior entry on his record. Nugent was found by Judge Bennett to be a person of prior good character. By contrast this offender has an appalling prior criminal record and committed offences while subject to a s 12 bond and a s 9 bond. A significant difference in their sentences needs to be applied to record these factors. In my view had these matters gone to trial and the offender been convicted then a sentence of nine years and six months imprisonment would have been applied. The offender here pleaded guilty late. It was only after the case was listed for trial that the pleas were entered. There were negotiations going on between the parties and the Crown concedes they were not resolved until trial. In my view the pleas being entered as late as they were means that a discount of only 12.5 per cent should be applied in these cases .

The parity principle requires that there be a consistency of sentencing between offenders. Consistency is a reflection of fairness whereas inconsistency may be a reflection of unfairness; see Lowe v Queen (1984) 154 CLR 606 at 610. The test to be applied is an objective one. It is necessary to consider the two sentences and decide whether one party has a legitimate sense of grievance as a result of the obvious differences. It is necessary that both parties be able to understand the differences between the sentences, but also that the differences conform to recognised principles of sentencing. It has been said that the actual time in custody is the period to consider; see Regina v Bell [1999] NSWCCA 423. With respect, the non-parole period will vary depending upon the individual circumstances of the two offenders. Special circumstances, if they are found, are found due to something special about that offender. Those factors do not necessarily apply to other offenders. An offender may have a need for a longer period on parole but that need might not be for as long a period as another offender who commits the same offence. Chief Justice Gleeson in Regina v Farrouhk unreported Court of Criminal Appeal, 29 March 1996, put the matter of determination of special circumstances in this way: 'The question in issue is a question of the relationship between minimum and additional terms, and in particular, the question of the need or justification for an additional term which bears to the minimum term, or to the total sentence, a relationship different from the relationship referred to in the statute. When a sentencing judicial officer finds special circumstances he or she does so in a context involving a decision that there is something about the case that warrants a longer than usual additional term by comparison with the minimum term.'

The considerations of need referred to by the Chief Justice are necessarily subjective and therefore only apply to the individual offender sentenced. Another offender looking at the sentence imposed on a co-offender might have a grievance as to the length of time that that offender will spend in custody compared to the period that he or she has to spend in custody. But provided that difference is adequately explained in the court's judgment, in my view that grievance could not be said to be reasonable . In this case the offender is in need of a longer period on parole to assist him re-integrate into the community. I have already referred to the factors in that regard. Further, he is in need of some long term counselling with respect to drug and alcohol dependence. Having said that, due to the length of the sentence to be imposed, it may be that the need for a longer period on parole does not extend the period significantly over and above the statutory period. Inasmuch as I have not addressed all of the factors referred to in s 21A of the Crimes (Sentencing Procedure) Act I note that I have taken those factors into account on the sentence." (emphasis added)

Nugent's sentence 26 His Honour Judge Bennett SC sentenced the applicant's co-offender, Nugent on 17 April 2008. 27 Nugent had pleaded guilty on 23 April 2007 and been committed to the District Court for sentence. In respect of the entering of the Go-Lo premises and the taking of the money from the safe, he pleaded guilty to an offence of breaking, entering and stealing in circumstances of aggravation, namely, that he was in company contrary to s 112(2) of the Crimes Act. In respect of the other conduct Nugent pleaded guilty to the same charges as the applicant. Nugent also asked that, when sentenced for the offence of aggravated break and enter and maliciously destroy property by fire, the Court take into account the same offences that the applicant had asked be taken into account when he was sentenced. 28 Bennett DCJ sentenced Nugent on the basis that he assessed the objective seriousness of the offences with which he was charged, including the extent of his participation in their commission, fell below the middle range of objective seriousness of conduct contrary to s 112(2) of the Crimes Act. 29 His Honour noted that Nugent had pleaded guilty in the Local Court at Bathurst on 23 April 2007. While his Honour accepted that to have been an early plea, he agreed with a submission by the Crown that a discount of between 15 and 20 per cent was appropriate in the circumstances. 30 Nugent sought to argue that he committed the offences under duress exerted by the appliacnt so as to mitigate his participation in them. Bennett DCJ rejected that submission, however he did conclude that Nugent was acting under the influence that the applicant was able to exert by reason of his more forceful personality. His Honour accepted that Nugent had some difficulty in declining to participate in the first two offences because of an imbalance between the applicant and him in their relationship, although he was also satisfied there was an economic purpose behind Nugent's participation. After the initial two offences, however, his Honour concluded that: "Gill's capacity for violence and his fear of detection and the certainty of a significant sentence of imprisonment if convicted for these offences played a stronger role in Nugent's decisions to take part in the offences that followed." 31 Accordingly, his Honour accepted that Nugent's fear of consequences from the applicant motivated his continued involvement with him and his participation in further fires the applicant initiated. It will be apparent that in finding the applicant and Nugent were equally responsible for the offences, the sentencing judge did not accept Bennett DCJ's finding of fact as to the applicant's influence on Nugent. This course was open to his Honour who was not bound by Bennett DCJ's findings: Tatana v R [2006] NSWCCA 398 (at [22]) per Howie J (Sully and Latham JJ agreeing). 32 Bennett DCJ found that Nugent had given assistance to authorities in relation to the applicant's participation in the offences and that he would give evidence at the applicant's forthcoming trial. He was satisfied that Nugent should have the benefit to which he was entitled from giving that assistance. 33 Nugent was first arrested and charged with the first and second offences on 24 March 2006. He was on bail when he committed the third and fourth offences and the further offences taken into account on a Form 1. Bennett DCJ noted that this was a significant aggravating factor. Other aggravating factors his Honour took into account were that the offence of break, enter and cause malicious damage involved the actual use of an explosive agent and that the offences were committed in company (although his Honour noted in respect of the first two offences that was an element of the offences upon which he was to be sentenced). The injury caused by the offences was substantial, the offences were committed without regard to public safety insofar as the fires were concerned, the offences involved multiple victims and were a series of criminal acts, they were planned and organised and the initial offence was committed for financial gain. 34 Bennett DCJ concluded there were no mitigating factors causally related to the commission of the offences, rather the mitigating factors related to Nugent's personal circumstances. In this respect His Honour took into account in mitigation the fact that Nugent did not have any significant record of previous convictions, that but for the misconduct with which he was being sentenced, he had been a person of good character, that he was satisfied he would not re-offend and that his rehabilitation had been achieved, that he had demonstrated genuine remorse and had accepted responsibility and acknowledged the damage he had caused, had endeavoured to redeem his position by assisting the authorities in their pursuit of the principal offender, had pleaded guilty, that there had been a significant degree of pre-trial disclosure and that he had given assistance to law enforcement authorities as provided for in s 23, Sentencing Procedure Act. 35 While Bennett DCJ recognised that the sentences he imposed on Nugent must satisfy the need for general deterrence, he was satisfied that the need for specific deterrent was reduced significantly because Nugent's rehabilitation had been achieved. Nevertheless his Honour recognised that Nugent's conduct had to be denounced and that the Court should recognise the harm that he had caused. 36 Bennett DCJ found special circumstances for the purposes of s 44(2) of the Sentencing Procedure Act as follows. First, that this was the first occasion Nugent would be required to serve a custodial sentence and that he would serve that sentence whilst on protection necessitated by the assistance he was providing to the authorities and the risks that flowed from that in the light of the knowledge the Court had of the applicant. He also took into account the psychological challenges facing Nugent which his Honour found it would take some years for him to resolve and for which he would need a longer period on parole to allow opportunities to complete the counselling required. 37 After allowing a 50 per cent discount on account of Nugent's plea of guilty and his assistance to authorities Bennett DCJ sentenced Nugent to the following terms of imprisonment:

Count 4: (malicious destruction of property by fire on 23 May 2006) To a fixed term of 1 year and 6 months to commence from 17 April 2008 and to expire on 16 October 2009.

Count 3: (malicious destruction of property by fire on 12 May 2006) To a fixed term of 1 year to commence from 17 April 2008 and to expire on 16 April 2009.

Count 1: (aggravated break, enter and steal on 23 March 2006) To a non-parole period of 1 year to commence from 17 October 2008 and to expire on 16 October 2009 with a balance of term of 1 year and 6 months to expire on 16 April 2011.

Count 2: (aggravated break and enter and maliciously damage property by fire on 24 March 2006) To a non-parole period of 1 year to commence from 17 October 2008 and to expire on 16 October 2009 with a balance of term of 2 years and 6 months to expire on 16 April 2012. 38 The total effective sentence imposed upon Nugent was a term of 4 years with a non-parole period of 18 months.

Comparison of sentences 39 The undiscounted starting points of the individual sentences and of the total effective sentences imposed upon the applicant and Nugent were as follows: Applicant Nugent Non-parole Total term Non-parole Total term Count 1 2 yrs 3mnths 3 yrs 5mnths 2 yrs 5 yrs Count 2 3 yrs 5mnths 6 yrs 2 yrs 7 yrs Count 3 1 yr 2 mnths 1 yr 9 mnths 2 yrs Count 4 2 yrs 3 mnths 3 yrs 5 mnths 3 yrs Total effective sentence 6 yrs10 mnths 9 yrs 5 mnths 3 yrs 8 yrs

40 As I have said, in imposing those sentences upon Nugent, Bennett DCJ afforded him a 50 per cent discount for his plea of guilty and assistance to the authorities. The applicant received a discount of 12.5 per cent in recognition of his late plea of guilty. After taking into account discounts, the respective sentences were: Applicant Nugent Non-parole Total term Non-parole Total term Count 1 2 yrs 3 yrs 12 mnths 2 yrs 6 mnths Count 2 3 yrs 5 yrs 3 mnths 12 mnths 3 yrs 6 mnths Count 3 12 mnths 1 yr 6 mnths 12 mnths Count 4 2 yrs 3 yrs 1 yr 6 mnths Total effective sentence 6 yrs 8 yrs 3 mnths 18 mnths 4 yrs

41 The effective non-parole period of the applicant's sentence equates to 72.6 per cent of the effective total term whilst the effective non-parole period of Nugent's sentence represents 37.5 per cent of the effective total term.

Applicant's submissions 42 The applicant accepts that the sentencing judge was aware of the general need to ensure consistency between the sentence to be meted out to him and that already passed upon Nugent, but submits his Honour erred in concluding that little guidance could be derived from Nugent's sentence. He contends that a review of his sentence leads to the conclusion that he justifiably holds a sense of grievance about the disparity between his and Nugent's sentences in the sense to which the authorities refer. He does not contend that such grievance arises out of the individual sentences determined in respect of the four offences, but that the overall sentence is reflective of error. 43 The applicant submits error attracting the operation of the parity principle is demonstrated in the following respects. 44 First, he contends that there is a stark disparity between the extent to which the sentencing judge accumulated the sentences, at least in respect of counts 3 and 4. Whereas Bennett DCJ imposed fixed term sentences, which were wholly concurrent, the sentencing judge provided for a six month period of accumulation. The result was that the effective sentence imposed upon the applicant in respect of counts 3 and 4 was one of 3 years and 6 months with a non-parole period of 2 years in contrast to the effective sentence for those counts of 18 months imprisonment imposed upon Nugent. 45 Secondly, the applicant contends the disparity is readily apparent once the discount is removed when it is seen that the head sentence imposed upon Nugent in respect of counts 3 and 4 would translate into a head sentence of 3 years and that imposed upon him into one of 4 years. He argues that such an increase cannot be justified merely by the increased importance of deterrence and retribution in his case. 46 Thirdly, the applicant submits that error is apparent from the overall undiscounted sentence. His undiscounted sentence was one of 9 years and 5 months with a non-parole period of 6 years and 10 months in contrast to the undiscounted sentenced imposed upon Nugent of 8 years imprisonment with a non-parole period of 3 years. He contends that a difference of 17 months based on no more than his record of previous convictions was disproportionate. 47 Fourthly, the applicant submits that the divergence in the sentences is most apparent in the respective non-parole periods. When the discount is removed he points out that his non-parole period is more than twice Nugent's. While accepting that the sentencing judge recognised the importance in applying the parity principle to the actual amount of time spent in custody, that is, the non-parole period, he submits his Honour erroneously took the view that the fixing of the non-parole period beneath that ordinarily required by the statutory ratio was one based (at least in this instance) solely upon subjective circumstances, a view he contends was an unduly narrow interpretation of what may constitute a special circumstance within the meaning of s 44, Sentencing Procedure Act. He relies in this respect on Tatana (at [33]) per Howie J. 48 Finally, the applicant points to the sentencing judge's observations about his need for a longer period on parole to assist him to re-integrate into the community and for long term counselling with respect to drug and alcohol dependence. He submits that each of these matters is a typical subjective feature which one would ordinarily expect might lead a court to conclude that there were special circumstances and that the fact his Honour did not address the question of parity in this context, further confirmed that he was not of the view that the requirement of parity had any role to play in the determination of his non-parole period.

The Crown's submissions 49 The Crown submitted that the undiscounted total term of 9 years and 5 months referable to the applicant represents an 18 per cent increase from the undiscounted total term of 8 years referable to Nugent. It contends that there is no basis for any justifiable sense of grievance on the part of the applicant as a result of this difference and that the approach taken by the sentencing judge to the application of the parity principle was appropriate given the significant differences in the applicant and Nugent's circumstances including the following: • Bennett DCJ found that apart from the offences for which Nugent was to be sentenced, he was a person of good character, whereas the applicant had what the sentencing judge described as "an appalling record" which in his view did not entitle him to any leniency. In addition his Honour remarked that the applicant's "continuing offending over many years, even when subject to court orders designed to moderate his behaviour in that regard, means that the factors of specific deterrence, general deterrence, retribution and protection of society, are all matters that must be enhanced when this offender is sentenced". • Bennett DCJ was satisfied that Nugent would not reoffend and that his rehabilitation had been achieved whereas the sentencing judge found that the applicant's prospects of rehabilitation were "not great" and unless he received adequate assistance when released they "might be close to non existent". Bennett DCJ found that the need for specific deterrence had been reduced significantly be reason of Nugent's rehabilitation. • Bennett DCJ found that Nugent had demonstrated genuine remorse whereas no such finding was made in respect of the applicant. • The applicant was on conditional liberty at the time he committed all the offences. He was subject to s 12 bonds at the time of the Go-Lo offences and at the time of the further offences he was subject to a s 9 bond as well as the s 12 bonds. Nugent was not subject to conditional liberty when he committed the offences at the Go-Lo store but was subject to bail for those offences when he committed the further offences. • Nugent was 26 years old at the date of the offences, the applicant was 38.

Consideration 50 While the applicant complains about the issue of parity, he does not submit that in all the circumstances the sentence was manifestly excessive. This is consistent with the proposition that a ground of appeal based upon parity assumes that the sentence imposed is otherwise correct: Tatana (at [15]) per Howie J; OM v R; MH v R; AA v R; AS v R [2009] NSWCCA 267 (at [7]) per Basten JA; (at [34]) per Fullerton and McCallum JJ. 51 The applicant also concedes that Bennett DCJ's sentencing of Nugent could be seen as generous. He accepts that, even it there is force in his parity principle argument, the Court should not impose a sentence which is manifestly inadequate. However, he contends that, having regard to the parity principle, his sentence should be adjusted to the "bottom of the range" by, for example, varying the non-parole period even if the Court was persuaded that the head sentence was appropriate. 52 The application must be considered in the light of the injunction in s 6(3) of the Criminal Appeal Act 1912 (NSW) that on a sentence appeal the court shall only quash a sentence and pass a sentence in substitution therefor if it is of the opinion that some other sentence, relevantly for present purposes less severe, is warranted in law and should have been passed. Section 6(3) empowers 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: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 (at 610) per Gibbs CJ (with whom Wilson J agreed). The substituted sentence must, however, be one "warranted in law": s 6(3). 53 The fundamental principles underlying the parity principle are well established. It is "an aspect of equal justice [which] requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them": Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 (at 301) per Dawson and Gaudron JJ. Mere disparity between sentences imposed on co-offenders is not of itself a ground for the intervention of an appellate court, rather the difference between the sentences must be manifestly excessive so as to engender a justifiable sense of grievance: Lowe v The Queen (at 610) per Gibbs CJ; (at 611) per Mason J; (at 624) per Dawson J (with whom Wilson J also agreed); Postiglione v The Queen especially per Kirby J (at 338). Appellate intervention is only justified where the applicant demonstrates "gross", "marked", "glaring" or "manifest" disparity: England v R; Phanith v R [2009] NSWCCA 274 (at [61]-[67]) per Howie J (McClellan CJ at CL and Fullerton J agreeing). 54 Before a Court of Criminal Appeal can interfere with the exercise of the sentencing discretion, it must first identify an error in the sense referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 (at 505): Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 (at [3]) per Gleeson CJ and Hayne J; (at [21]) per Gaudron and Gummow JJ; R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 (at [74] - [79]) per Spigelman CJ (Mason P, Grove J and Newman AJ agreeing); see also (at [99]) per Sully J. 55 The principle which underlies intervention in a case of unacceptable disparity between sentences is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice. It is also accepted, however, the multiplication of manifest errors may also lead to an erosion of public confidence in the administration of justice, hence the frequent judicial observations about "the unattractiveness of responding to one wrong decision by making another wrong decision": R v Rexhaj (New South Wales Court of Criminal Appeal, 29 February 1996, unreported) per Gleeson CJ (Powell JA and Ireland J agreeing). 56 Consistently with Gleeson CJ's observation in Rexhaj it has been held that the exercise of the Court's s 6(3) discretion may be affected by a view being formed that a stage has been reached at which the inadequacy of the lower sentence is so grave that any sense of grievance engendered can no longer be regarded as a legitimate one, and a reduction of an otherwise appropriate sentence to remove that disparity becomes an affront to the proper administration of justice: Chen, Siregar, Ismunandar & Lau [2002] NSWCCA 174; (2002) 130 A Crim R 300 (at [289]) per Heydon JA, Sully and Levine JJ; see also Josefski v R [2010] NSWCCA 41 (at [65]) per Howie J (James and Davies JJ agreeing). 57 Application of the parity principle takes into account that different sentences may reflect different degrees of culpability or the co-offenders' different circumstances and, that if that is done appropriately by the sentencing judge, the notion of equal justice is not violated: Postiglione v The Queen (at 301) per Dawson and Gaudron JJ. 58 Finally, it should be understood that considerable obstacles are faced by an applicant seeking to invoke the parity principle in circumstances where the sentencing judge was fully aware of sentences imposed upon a co-offender, and the reasons for those sentences, and indicates in the sentencing remarks why the judge is departing from the co-offender's sentences: Tatana (at [28]).

Conclusion 59 In my opinion the applicant has not demonstrated error in his sentence. While the sentencing judge approached the applicant's sentence on the basis that he and Nugent were equally responsible for the offences, there were clearly, as the Crown submitted, substantial differences in the two offenders' personal circumstances which warranted a different approach to each man's sentence. I have set those substantial differences out above (at [49]). They are more extensive than the applicant suggested, insofar as he complained that the difference between the two sentences could not be explained merely by his previous convictions. 60 I turn to the applicant's complaint that in considering the issue of special circumstances, the sentencing judge failed to take into account Howie J's observation in Tatana (at [33]) that: "Although matters giving rise to special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 will be, generally speaking, subjective considerations personal to the particular offender, they are not limited to such factors … [S]pecial circumstances may be found when sentences are being made cumulative in order to retain an appropriate ratio between the overall term and the overall non-parole period. In my opinion, the need in a particular case to preserve proper parity between co-offenders may itself amount to special circumstances enabling a principled avoidance of a situation of manifest unfairness arising from a too literal application of conventional sentencing principles and the requirements of s 44 ." (emphasis added) 61 Howie J's remark must be understood in context. It was made in circumstances where the sentencing judge had imposed a sentence which had the effect that the applicant was to spend six months longer in custody before being released to parole notwithstanding that he was sentenced for less criminal activity than his co-offenders. As his Honour observed "[t]hat is on the face of it a somewhat surprising and troubling outcome." It could not, in his Honour's view be explained by the different circumstances between the applicant and his co-offenders being the former's failure to exhibit remorse or the fact he did not have good prospects of rehabilitation: Tatana (at [32]). 62 It should be noted that before his observation in Tatana (at [33]), Howie J had already set out a passage from his reasons (with which Sully and Latham JJ agreed) in R v Do [2005] NSWCCA 209 (at [17] - [19]). In that extract his Honour explained (adopting in turn his reasons in R v Wahabzadah [2001] NSWCCA 253 with which Wood CJ at CL agreed) that there could not be any breach of the principle of parity, simply because different non-parole periods are specified for different co-offenders because of different findings as to the existence, or extent, of special circumstances. His Honour's observation about the need in appropriate cases to consider whether the parity principle of itself could constitute a special circumstance justifying a reduction of the non-parole period was a reminder to sentencing judges to be vigilant about ensuring that, in the final analysis, a double check against a co-offender's sentence did not reveal unacceptable disparity. 63 It is apparent from the remarks on sentence that the sentencing judge was acutely conscious of the need to ensure parity between the applicant's and Nugent's sentence. The first passage emphasised from his Honour's remarks on sentence (at [25] above) demonstrated, and explained (as the second passage emphasised makes abundantly clear), the reason the applicant's sentence differed from Nugent's was the differences between their respective circumstances. His Honour did not err in concluding that the differences were such as to warrant different non-parole periods. 64 Finally I would add that the applicant's tentative concession that Nugent's sentence, in particular relation between the head sentence and the non-parole period could, in substance, be seen to be generous was, in my opinion properly made. That, too, for the reasons I have explained would be a circumstance militating against appellate intervention. 65 In my opinion the applicant has not demonstrated any error on the part of the sentencing judge which would attract appellate intervention. 66 I would grant leave to appeal but dismiss the appeal. 67 HULME J: I agree with McColl JA. 68 LATHAM J: I agree with McColl JA. *******

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