Greaves v R

The Crown submissions

1. The Crown submits that there needs to be shown a justifiable sense of grievance which is to be assessed by reference to objective criteria. Further, it submits that, as the offenders were sentenced in different jurisdictions, the Court must recognise that sentencing took place under a different sentencing regime. Further, the Crown relies on the failure of the applicant's counsel in the Court below to make any submissions on the issue of parity. It is said that this should be taken as being consistent with the applicant's counsel recognising that the differences between the role of the offenders and the different jurisdictions were such that the principles of parity could play little role. The Crown also submits that even if the sentencing judge erred in failing to consider the issue of parity on resentencing, this Court would find that no lesser sentence was justified.

Consideration

1. The parity principle is summarised in 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] ("Green"): "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'. It finds expression in the 'parity principle' which requires that like applicants should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like applicants to reflect different degrees of culpability and/or different circumstances." (Footnotes omitted.)
2. This Court should not interfere unless the disparity between sentences for co-offenders 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 the appellate court in the interest of justice: Pecora v The Queen [1980] VR 499; R v Tisalandis [1982] 2 NSWLR 430.
3. "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].
4. Again, in Green at [31], French CJ, Crennan and Kiefel JJ said: "The sense of grievance necessary to attract appellate intervention [in a severity appeal] with respect to disparate sentence is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise." (Footnotes omitted.)
5. When the issue of parity was raised with the sentencing judge by the Crown, the following exchange took place: "SCHRUBB: … The issue of parity is one that - HIS HONOUR: Well, the other ones were dealt with summarily, so that doesn't really raise here at all. SCHRUBB: Yes, and the offender's level of culpability is much more significant. HIS HONOUR: Absolutely." [2]
6. Counsel for the applicant in the Court below did not respond to this exchange either orally or in any written submissions. The question of parity was not raised again and not further considered by the sentencing judge.
7. The fact that the co-offenders were dealt with summarily and not sentenced by the sentencing judge may explain some differences in the sentences and differences in approach. However, the sentencing principles applicable to the process of sentencing remain the same in the Local and District Courts. The jurisdictional limit of the Local Court [3] was not a factor, having regard to sentences imposed by the learned Magistrates. In any event, the Magistrate was required to assess the appropriate sentence having regard to the prescribed maximum penalty for each offence rather than any jurisdictional limit. [4] The jurisdictional limit only becomes relevant if the assessment leads to a sentence greater than the limit.
8. Unlike when differing sentencing regimes might apply, for example, in the Drug Court, [5] the approach of the judicial officer to sentencing should be similar. In circumstances in which there are a number of co-offenders involved in the same series of events, the parity principle remains applicable.
9. To the extent that the sentencing judge considered that parity was not relevant as the co-offenders were dealt with summarily, his Honour was in error. His Honour accepted what was said by the Crown to the effect that the applicant's culpability was much more significant but his Honour did not have before him all the documentation relevant to the sentencing of the co-offenders.
10. His Honour was provided with a table setting out the co-offenders' offences and the sentences imposed, as well as the criminal histories of the co-offenders. However, neither the sentencing judgments in the Local Court or the facts sheet that had been relied upon were made available to his Honour. Whilst his Honour appears to have dismissed the issue of parity as a relevant factor, not all of the relevant documents which might have allowed his Honour to consider the issue further were provided to him.
11. In Shortland v R [2013] NSWCCA 4 at [110], Johnson J (with whom Hoeben JA agreed) stated: "The High Court of Australia and this Court have emphasised repeatedly the strong desirability of co-offenders being sentenced by the same sentencing Judge or, if that is not practicable, the second sentencing Judge being fully informed of the sentence imposed upon a co-offender by the first sentencing Judge, with the remarks on sentence of that Judge being provided to assist and inform the sentencing process: Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 617, 622; Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 320; Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274 at 284-286 [32]-[47]; R v Chandler [2012] NSWCCA 135 at [94]-[96]; Arenilla-Cepeda v R [2012] NSWCCA 267 at [52], [87]."
12. In this matter, the co-offenders were dealt with summarily. It was thus not practicable that the same judge sentence all of the co-offenders. However, the co-offenders were sentenced prior to the applicant. In those circumstances, the sentencing judge should have been provided with all the documents relevant to the sentencing of the co-offenders, including the sentencing judgment and agreed facts. The sentencing judge would have been in a position to properly consider parity in respect of the identical charges. To the extent that there were differences between the co-offenders, then those differences could have been identified. If the sentencing judge considered that the criminality and the subjective circumstances of the applicant were markedly different to those of the co-offenders, then those differences might have been reflected in different sentences. This did not occur.
13. The question that arises in this appeal is whether the sentences are so disparate as to give rise to a justifiable sense of grievance on the part of the applicant, when assessed objectively. As Dawson and Gaudron JJ put it in Postiglione v The Queen (1997) 189 CLR 295 at 320; [1997] HCA 26: "[I]t is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."
14. I do not accept the Crown's submission that the failure of the applicant's counsel in the Court below to make submissions on the issue of parity is consistent with the recognition that the differences between the role of the offenders and the different jurisdictions were such that parity could have little role to play in the determination of the correct sentence. It was the prosecutor's duty to place the relevant material before the sentencing judge.
15. I acknowledge the submissions to the effect that there is an expectation on an offender's legal representative that submissions will be made to the sentencing judge at first instance by reference to particular factors which the sentencing judge should take account of in sentencing the offender. [6] However, the failure of the applicant's counsel to raise the issue of parity in the circumstances of this matter does not preclude the point being raised in this appeal. Indeed, the Crown did not go so far as to suggest that it did.
16. Nor did the Crown suggest that an explanation for the differences in sentence is that the sentences imposed on the co-offenders were plainly inadequate. Rather, the Crown merely submitted that the failure of the applicant's counsel to raise the issue of parity should be taken as acceptance that it had little role to play. I disagree.
17. In general terms, the Court will compare the aggregate sentences so as to determine whether the disparity is unreasonable or plainly unjust. However, the particular circumstances of the sentencing of co-offenders in this matter do not permit a mere comparison of the aggregate sentences. This is because: 1. the co-offenders were sentenced in respect of a number of different offences not related to the applicant at the same time as the most serious common offence of assault occasioning actual bodily harm in company; 2. an aggregate sentence was not imposed upon Atkinson; 3. the sentences for all other offences were subsumed by the sentence for the assault of the taxi driver; and 4. despite all the other offences with which each of the applicant, Senico-Young and Atkinson were convicted, it is apparent from the consideration of each of the sentencing judgments that the assault on the taxi driver was considered to be the most serious offence for each offender.
18. There is a substantial difference in the level of criminality, the role played and the subjective circumstances between the applicant and Atkinson. Even so, the applicant's aggregate sentence was more than 6 times that of Atkinson.
19. Having said that, there is a similarity in both the offending and the subjective circumstances between Senico-Young and the applicant. Whatever differences there might be do not account for the significant difference in the aggregate sentences. The applicant received a sentence of 3½ times of that imposed on Senico-Young (including a 250% greater indicative sentence for the assault occasioning actual bodily harm in company offence) when the only difference in their conduct was that the applicant threw the first punch.
20. I do not consider that the criminality or subjective circumstances are identical and it is appropriate that the applicant received a higher sentence than the co-offenders. However, the sentencing judge erred in not having regard to the need for parity or some proportion between the sentences imposed. There is a significant disproportion between the sentences imposed. In my view, the sentences are so disparate as to give rise to a justifiable sense of grievance.
21. In the circumstances, I would allow Ground 1.

Ground 2

1. The principles that apply to an appeal based on manifest excess are well-known. It is not necessary to further consider them in the context of this appeal.
2. The applicant has succeeded on Ground 1. In the circumstances, leave to appeal is granted and the appeal is upheld. The sentence is quashed and it is necessary that he be re-sentenced.

Re-sentencing

1. For the purposes of re-sentencing, the applicant relies on his own affidavit affirmed 15 May 2020.
2. He says that at the time of his original sentence, he had not been able to get his drug dependency under control. Since that time, he has been taking monthly Buprenorphine injections and has been stable. He says he will remain on that program when released.
3. He also refers to the situation having regard to COVID-19. He says that family visits have been discontinued and he misses seeing his family. He has only had one contact with a friend since personal visits were stopped. He says the situation in custody has become intense with inmates becoming fearful and paranoid. He says that there are no courses available to him currently but he hopes to resume undertaking the EQUIS addiction program. He says that when released he would live with either his father or his mother in Newtown. He hopes to work in his father's window washing business.
4. I would adopt the sentencing judge's findings on objective seriousness. That is, I would also find that the objective seriousness in respect of the offence of break, enter and steal and the two Form 1 offences were at the lower end of objective seriousness.
5. In respect of the offences of assault occasioning actual bodily harm in company (including the Form 1 offence) and destroy or damage property, I would also adopt the sentencing judge's assessment at the mid-range of objective seriousness for the reasons identified by the sentencing judge.
6. In terms of the applicant's subjective circumstances, I would similarly adopt the remarks of the sentencing judge in terms of his prior drug use, prior criminal history and contrition and remorse.
7. The applicant has failed to take up earlier opportunities given to him following earlier offending. However, there have been periods when the applicant has remained stable, such as when living with his grandmother, but it would appear that he did resort to drugs and criminal activity when in the company of Atkinson.
8. Having regard to the further material relied upon by applicant at this time, I consider that his prospects of rehabilitation are improved from the time of sentencing, at which time the sentencing judge described the prospect as bleak. Although the applicant's history of failing to comply with conditions whilst on supervision and resorting to drug use does give rise to some concern and doubt as to his prospects, he appears to be making a conscious effort whilst in custody to deal with his drug problem. Continued participation in programs and appropriate treatment would increase his prospects of rehabilitation and likely compliance with conditions of supervision on release.
9. Further, it is important that I consider parity between co-offenders in respect of the same offences. As I have already indicated, there is some difference in the subjective circumstances between the co-offenders and Atkinson's role in assaulting the taxi driver was plainly much less significant than that of the applicant and Senico-Young. I also have regard to the fact that the applicant was the instigator of the assault having thrown the first punch.
10. I consider that the applicant's improved prospects of rehabilitation should be reflected in the sentences imposed.
11. I consider that the applicant's need for treatment for his drug problem and his improved prospects of rehabilitation require an extended period on parole.
12. In those circumstances, I give an indicative sentence of 2 years' imprisonment in respect of the offence of assault occasioning actual bodily harm in company, contrary to s 59(2) of the Crimes Act. I would also give lesser indicative sentences in respect of the offences of larceny and break, enter and steal as set out in the table below. Otherwise, I would adopt the approach of the sentencing judge.
13. The indicative sentences are reflective of a full 25% discount in relation to the early guilty pleas.
14. I set out below the offences and my indicative sentences: Charge Indicative Sentence Larceny (s 117 of the Crimes Act) 3 months Break, enter and steal (s 112(1)(a) of the Crimes Act)* 15 months Assault occasioning actual bodily harm in company (s 59(2) of the Crimes Act)* 2 years Damage, destroy property (s 195(1)(a) of the Crimes Act) 1 month

• Form 1 matters taken into account

1. I impose an aggregate sentence of 3 years' imprisonment with a non-parole period of 20 months starting from 27 March 2019. The applicant will first be eligible for release on parole on 27 November 2020 and the head sentence will expire on 26 March 2022.

Endnotes

1. R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242.
2. Proceedings on Sentence, 17 April 2019, p 29(2-10).
3. 5 years for an aggregate sentence (Crimes (Sentencing Procedure) Act s 53B) or 2 years, for example, for assault occasioning actual bodily harm in company when dealt with as an individual offence (Criminal Procedure Act s 268).
4. Park v R [2020] NSWCCA 90 at [30] (Bathurst CJ), [182] (R A Hulme J); R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317 at [35].
5. Scicluna v R [2008] NSWCCA 24; 181 A Crim R 133; Tobia v R [2016] NSWCCA 99.
6. Zreika v R [2012] NSWCCA 44 at [80]-[81] (Johnson J, with McClellan CJ at CL and Rothman J agreeing). 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: 26 June 2020