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Parties: Howard Hall (First Appellant) Albert Barker (Second Appellant) The Queen (Respondent)

Representation: Counsel Mr J Stewart (First Appellant) Mr B Dean (Second Appellant) Mr J White SC (Respondent) Solicitors Legal Aid ACT (Appellant) (ACTCA 6 of 2016) Aboriginal Legal Service (NSW/ACT) (Appellant) (ACTCA 9 of 2016) ACT Director of Public Prosecutions (Respondent)

File Numbers: ACTCA 6 of 2016; ACTCA 9 of 2016

Decision under appeal: Court/Tribunal: Supreme Court of the Australian Capital Territory Before: Murrell CJ Date of Decision: 4 February 2016 Case Title: R v Hall; R v Barker Citation: [2016] ACTSC 11

THE COURT:

1. The appellants, Howard Hall and Albert Barker, each pleaded guilty to two counts of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT) and one count of attempted aggravated robbery contrary to ss 44 and 310 of the Criminal Code.

2. On 4 February 2016, Murrell CJ (“the sentencing Judge”) sentenced the appellants. Mr Hall was sentenced to terms of imprisonment totalling nine years, nine months, with a non parole period of five years, nine months. Mr Barker was sentenced to terms totalling seven years, five months imprisonment, with a non parole period of three years, nine months. See R v Hall; R v Barker [2016] ACTSC 11. They have both appealed against those sentences. The appeals were heard together and it is convenient to deal with them together.

3. Mr Hall was also sentenced to six months imprisonment for a breach of a Good Behaviour Order. He has not appealed against that sentence.

The offences

4. The first offence occurred on 27 December 2014. At about 4:40am, a telephone call was made to a taxi company ordering a taxi for a pick-up at an address in Garran. When the taxi arrived, one of the co-offenders got into the passenger seat armed with a hammer. His face was partially obscured. He reached over and put the gear-stick into the park position and demanded money from the driver. At the same time, the other co-offender, armed with a knife, got into the rear seat. He held the knife to the taxi driver’s throat. The driver handed approximately $400 to the co-offenders, who then fled.

5. The second offence occurred on 5 January 2015. It involved a similar modus operandi. At about 11:15pm, a call was made to the same taxi company ordering a taxi for a pick-up at an address in Rivett. Again, one of the co-offenders, who was partially disguised, got into the front passenger seat and pushed the gear stick into the park position. The other co-offender got into the rear seat, held a knife to the driver’s neck and demanded money. The driver handed over some money, but the co-offender in the front seat searched the driver’s shirt pockets and removed about $200. Fearing for his safety, the driver handed them an envelope that contained more cash.

6. The third offence occurred on 6 January 2015. At about 12:40am, a booking was made for a pick-up at an address in Giralang. The taxi operator became suspicious and contacted police. Police drove to the address, located the co-offenders and arrested them. Police found a knife in a garden bed. A DNA profile taken from the knife matched that of Mr Barker. It was the Crown’s case that one of the co-offenders threw the knife into the garden when they realised that the approaching vehicle was not a taxi but a police car.

The sentencing Judge’s reasons

7. The sentencing Judge gave her reasons ex tempore. Her Honour commenced by noting that the maximum penalty for each offence is 25 years imprisonment. Her Honour said that the pleas of guilty had been entered after committal, but before a trial date was set, in the face of the Crown’s reasonably strong circumstantial case. Her Honour decided that a discount of 15 to 20 per cent was warranted for the pleas. There was no challenge to this discount on the appeals.

8. The sentencing Judge noted that Mr Barker was a 35 year old Aboriginal man born in Sydney. His parents separated when he was about one year old, but he had a stable childhood. He was educated to Year 9 at school and then completed an apprenticeship as a painter. He worked as a painter in western New South Wales before training to become a housing officer.

9. Mr Barker has had polysubstance abuse problem for many years. In 2011, his drug abuse was very heavy and he admitted himself into a rehabilitation program. In December 2013, Mr Barker moved to Canberra but was unable to find work. He began to use heroin and his use quickly escalated. His drug abuse has been assessed as severe. While in custody, Mr Barker had given one positive urinalysis drug test. He had displayed an interest in pursuing drug rehabilitation.

10. Mr Barker’s criminal history between 1999 and 2005 included street offences, driving offences, and some property offences. The most serious matter on his criminal record was an offence of break, enter and steal in 2001, for which he received 12 months imprisonment. From 2005 to 2014, he did not re-offend, until in 2014 when he was convicted of common assault. He did not re-offend until the aggravated robbery on 27 December 2014.

11. The sentencing Judge noted that Mr Barker had been assessed as being at a medium to high risk of offending. He had shown some insight into his offending behaviour and had indicated some remorse. His criminal record, while extensive, was generally not very serious, demonstrating some prospects of rehabilitation. As stated above (at [9]), he had demonstrated an interest in drug rehabilitation. He was motivated to reconnect with his three children. He was also motivated to obtain employment, which he regarded as a stabilising factor.

12. The sentencing Judge then turned to consider Mr Hall’s circumstances. Mr Hall was 28 years old. His criminal history was much more serious than Mr Barker’s. He had a pattern of going in- and out-of-custody. His compliance with previous community based orders was unsatisfactory.

13. Mr Hall had a number of offences of break, enter and steal in his criminal history. He had received a number of sentences of imprisonment with non parole periods of six or nine months. His criminal history included a prior robbery in company. In 2014, he had committed an offence of attempting to choke and thereby render insensible his partner. He was sentenced to 12 months imprisonment for that offence, of which he was required to serve six months with the remaining six months suspended on a 12 month Good Behaviour Order. The present offences where committed three months into that Good Behaviour Order and it was an aggravating feature that he was on conditional liberty for an offence of violence when he committed the subject offences.

14. Her Honour noted that Mr Hall is an Aboriginal man. He was raised by his mother and step-father in the Dubbo area. Although he was close to both, he alleged past domestic violence by his step-father. Generally, he had been dependent on social welfare payments when not in custody.

15. Mr Hall had a long history of poly-drug abuse. He was introduced to cannabis at 11 years of age and was a heavy and regular user until his late teens. Following a motorcycle accident in 2010, he began using heroin and had also used methylamphetamine and amphetamines for some years. He has been assessed as having a severe level of drug dependency. He has a history of mental health issues associated with depression. He had a chronic medical condition arising from his motorcycle accident for which he had been prescribed medication.

16. Her Honour concluded that Mr Hall had displayed some victim empathy. He had acknowledged poor judgement, although he sought to justify his actions, asserting that Mr Barker had placed pressure on him. Her Honour found that assertion difficult to accept given that Mr Hall had a much stronger association with serious criminal activity than Mr Barker.

17. Her Honour stated that the offences were objectively serious. In each case a knife was held at the throat of the taxi driver. There was not merely a threat through the possession of a weapon, but the use of the weapon in a frightening way. Her Honour noted that two aggravating features were present, namely that the robberies were in company and while armed with an offensive weapon. The courts have always held that the use of knives is a seriously aggravating feature: R v Jajou [2009] NSWCCA 167; 196 A Crim R 370 at 386; [72].

18. The sentencing Judge said that in each case the taxi driver was a vulnerable victim, operating alone, late at night or in the early hours of the morning, responding to a call from someone who they did not know and being required to attend at a dark and isolated place. Her Honour said she had not received victim impact statements, but assumed the taxi drivers were very much affected psychologically by the incidents. Her Honour accepted that there was not a high level of planning, but noted that the taxi drivers were lured to the relevant location. These were not just opportunistic offences.

19. The sentencing Judge noted that the third offence was committed only about an hour after the second offence. Her Honour noted that there was no actual victim in respect of that offence.

20. The sentencing Judge could discern no difference between the roles played by each offender. In relation to the first and second offences, both offenders threatened the victim. In relation to the first offence, both offenders were armed.

21. Her Honour concluded that there were very significant differences in the subjective circumstances of Mr Barker and Mr Hall. While Mr Barker’s criminal record was long, it was far less serious than Mr Hall’s. Most significantly, Mr Barker had committed only one offence between 2005 and the sentencing date: a common assault which appeared to be relatively minor, and the subject offences. Mr Hall had a prior conviction for robbery, as well as other offences of violence and numerous serious dishonesty offences. Mr Hall committed an offence of violence in 2014 and was on conditional liberty at the time of these offences, having only been in the community for about three months. Mr Hall’s prospects of rehabilitation were certainly lower than those of Mr Barker and he was assessed as having a high risk of reoffending.

22. Her Honour imposed the following sentences upon Mr Hall:

(a) Breach of the Good Behaviour Order – six months imprisonment from 6 January 2015 to 5 July 2015;

(b) Attempted aggravated robbery on 6 January 2015 – three years, four months imprisonment (reduced by eight months for the plea of guilty), from 6 April 2015 to 5 August 2018;

(c) Aggravated robbery on 5 January 2015 – five years, six months imprisonment (reduced by one year for the plea), from 6 July 2016 to 5 January 2022;

(d) Aggravated robbery on 27 December 2014 – five years, six months imprisonment (reduced by one year for the plea) from 6 April 2019 to 5 October 2024.

23. Mr Hall’s total head sentence for the three relevant offences was nine years, six months imprisonment from 6 April 2015 to 5 October 2024. Her Honour imposed a non parole period of five years, nine months to 5 October 2020. The non parole period is about 60 per cent of the total head sentence.

24. The sentencing Judge sentenced Mr Barker as follows:

(a) Attempted aggravated robbery on 6 January 2015 – two years, 11 months imprisonment (reduced by seven months for the plea of guilty), from 6 January 2015 to 5 December 2017;

(b) Aggravated robbery on 5 January 2015 – four years, three months imprisonment (reduced by nine months), from 6 January 2016 to 5 April 2020;

(c) Aggravated robbery on 27 December 2014 – four years, three months imprisonment (reduced by nine months), from 6 March 2018 to 5 June 2022.

25. Mr Barker’s total head sentence was seven years, five months imprisonment from 6 January 2015 to 5 June 2022. Her Honour imposed a non parole period of three years, nine months imprisonment to 5 October 2018. The non parole period is about 50 per cent of the total sentence.

26. As the appellants point out, her Honour did not expressly mention the totality principle or expressly say that she had applied it. The grounds of appeal and submissions

27. Mr Barker’s grounds of appeal are:

(a) The sentences imposed were manifestly excessive.

(b) The primary Judge erred in her approach to totality.

28. Mr Halls’ grounds of appeal are:

(a) The sentences imposed were manifestly excessive.

(b) The primary Judge failed to properly apply the totality principle.

(c) The primary Judge erred in failing to properly apply the parity principle.

29. Mr Barker does not submit that any of the individual sentences for the three offences are manifestly excessive. However, he contends that his aggregate sentence falls outside the permissible range and is unreasonable or plainly unjust. Mr Barker submits that each of his individual sentences were towards the top of the range, relying on a schedule of sentencing decisions for robbery or aggravated robbery in support of that proposition. He submits that this has resulted in a very substantial overall term of imprisonment and that, in the absence of a greater degree of concurrency, the total sentence is manifestly excessive.

30. Mr Barker’s second ground substantially overlaps with his first. He submits that the sentencing Judge failed to give effect to the principle of totality, resulting in the total sentence being manifestly excessive. He submits that the judgment in Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [45] requires that a sentencing Judge must determine the appropriate sentence for each offence, turn to consider the combined criminality for and set out her reasoning given for the total sentence, including assessing how the subsequent offences made the overall offending more severe. He argues that after determining the appropriate sentence for each offence, her Honour should have turned to consider the overall criminality of the conduct. He submits that her Honour failed to do this, as can be seen from her Honour’s failure to expressly refer to the totality principle. He submits that her Honour should have considered the proximity, similarity and common circumstances of the offences – particularly that they were committed over a fairly short period of time by two drug addicts seeking money to feed their drug addiction, and carried out with little planning.

31. Mr Hall submits that his total sentence was manifestly excessive because the starting point for each of the three sentences he appeals against was too high and her Honour gave no consideration to the established principles for sentencing Aboriginal offenders. He notes that during the sentencing hearing the prosecutor tendered statistics for the offence of aggravated robbery and stated that “it would seem most are sentenced to between three and four years imprisonment”.

32. Mr Hall submits that once the sentences were determined and the overall effect of the sentence was considered there should have been a reduction for totality. He submits that it was an error for her Honour to fail to expressly “take a last look” at the total sentence to see whether it looks wrong, relying on Mill v The Queen (1988) 166 CLR 59 at 63.

33. Mr Hall also submits that there was such a disparity between the sentences imposed on the co-offenders as to demonstrate that an error has occurred. He notes that there is a disparity of three years, six months in the starting points, two years, four months of the actual head sentence and an extra two years of non parole period.

Consideration

34. An appeal to the Court of Appeal against a sentence imposed by a single Judge is brought pursuant to s 37E(2)(a) of the Supreme Court Act 1933 (ACT). Section 37O(7) of the Supreme Court Act provides that the powers of the Court of Appeal include the power to increase or decrease the sentence and to substitute a different sentence.

35. However, the authority of the Court of Appeal to intervene in an appeal against sentence depends upon the demonstration of error: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at 615; Slater v The Queen [2014] ACTCA 33 at [3]. In R v Duffy [2014] ACTCA 53; 297 FLR 359, the Court of Appeal said at [53]:

On such an appeal, the Court of Appeal will intervene only if it is satisfied that there has been an error of the type referred to in House v The King (1936) 55 CLR 499. There must be a specific error of fact or law, or an implicit error that is discernible because the sentence is so plainly wrong (so “manifestly excessive” or “manifestly inadequate” or “outside the range of available sentences” or “dramatically inappropriate”) as to compel the conclusion that there has been an error in the exercise of the sentencing discretion, although no specific error can be identified…

36. In the present appeal the appellants allege that the sentencing Judge made both specific errors of law concerning failure to apply the totality principle, and an implicit error, as the sentences are manifestly excessive. It is convenient to start with consideration of the appellants’ arguments concerning the totality principle.

37. In Mill v The Queen, the High Court described the totality principle as a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. Their Honours adopted the following description of the principle at 63:

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong’; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’. (Citations omitted)

38. In Pearce v The Queen, McHugh, Hayne and Callinan JJ held at [45]:

A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.

39. In O’Brien v The Queen [2015] ACTCA 47 at [26], the Court of Appeal described the principles for sentencing for multiple offences as including the following:

(a) When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen. (b) The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill. (c) A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight; R v MAK. (d) Offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen. (Citations omitted)

40. Mr Barker argues that Pearce v The Queen at [45] requires that a sentencing Judge must expressly set out her reasoning as to how the subsequent offending has made the overall criminality more severe. Mr Hall argues that Mill v The Queen requires that the sentencing Judge must expressly “take a last look” at the total sentence to see whether it looks wrong. In addition, they both argue that her Honour failed to apply the totality principle, as is indicated by the lack of any reference to the principle in her Honour’s reasons.

41. The totality principle requires that when sentencing for multiple offences, the sentencing Judge must consider whether the aggregate sentence is just and appropriate. The orthodox approach is for the sentencing Judge to fix a sentence for each offence and aggregate the sentences and then examine the totality of the criminal behavior: Pearce at [45], Johnson v The Queen [2004] HCA 15; 205 ALR 346 at [26].

42. In our view, neither Pearce nor Mill establish that it is an error for a sentencing Judge to fail to expressly refer to the totality principle, or to fail to expressly say that the Judge has “taken a last look”, or to fail to expressly state how or to what extent the subsequent offending has made the overall criminality more severe. It is true that a sentencing Judge is obliged to state fully his or her reasons for determining the sentence: R v King [2004] NSWCCA 444 at [132]. However, the issue is whether it is discernable from the reasons as a whole and the sentences imposed that the sentencing Judge in fact applied the totality principle as part of the instinctive synthesis involved in the sentencing process.

43. The sentencing Judge set out a number of common features of the offences, including that the same modus operandi was used, that there was not a high level of planning, that the appellants were gripped by severe drug addictions and that the offences were committed in a relatively short time-frame (including that the third offence was committed an hour after the second). When it came to imposing the sentences, her Honour determined the appropriate sentence for each offence and then determined that each sentence would be served partly concurrently and determined the degree of concurrency. The fact that partial concurrency was allowed demonstrates that her Honour reviewed and adjusted the aggregate sentences to reflect the totality of the criminal behavior having regard to the factors she had set out in her reasons. This was the orthodox approach. What is important is that her Honour in fact applied the totality principle, not that she failed to use some express or particular form of words when doing so. Accordingly, we reject the appellants’ submission that the sentencing Judge failed to apply the totality principle.

44. The appellants’ next submission is that their sentences were manifestly excessive. In Dalton v The Queen [2015] ACTCA 48, the Court of Appeal at [18] noted that the principles that apply to the ground that a sentence is manifestly excessive are well settled and include the following:

 Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen.  The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King; Dinsdale; Melham v The Queen. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason or justice: Barbaro v The Queen; Zirilli v The Queen.  In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather that the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principle: Melham  It is not enough to establish that a sentence is manifestly excessive that the members of the appeal court would have imposed a different sentence: Markarian v The Queen; R v Abbott; Balthazaar v The Queen. (Citations omitted)

45. In Zdravkovic v The Queen [2016] ACTCA 53, the Court of Appeal added at [52]:

When deciding whether a sentence is “manifestly excessive”, the legislated maximum penalty that applies to the “worst possible case” must be considered; it provides a “yardstick” for assessing the appropriate penalty: Markarian v The Queen. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including the sentencing purposes in s 7 of the Sentencing Act) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range. (Citation omitted)

46. Mr Hall submits that the sentencing Judge failed to consider “the established principles for sentencing Aboriginal offenders”. This argument was put as part of his submission that the sentence was manifestly excessive, rather than being argued as a specific error. The submission that her Honour failed to take into account “the issue of [his] being Aboriginal” suggests that Mr Hall should have received a discounted sentence by reason of his Aboriginality. Such a proposition was rejected in Bugmy v The Queen [2013] HCA 37; 249 CLR 571, where the High Court explained at [37]:

An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate the offender’s sentence.

47. Their Honours continued at [40]:

The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.

48. In this case, the sentencing Judge noted that Mr Hall is an Aboriginal man and took into account social deprivation and hardship that he had suffered since his childhood. Her Honour noted Mr Hall’s allegations of domestic violence against his step-father, that he had little formal education outside custody, that he commenced using cannabis at the age of 11 years and then fell into addiction to other drugs. Her Honour did not ignore the fact that Mr Hall was Aboriginal and the problems attending his growing up in an atmosphere of violence and drugs in rural New South Wales.

49. The guideline judgment of the New South Wales Court of Appeal in R v Henry (1999) 46 NSWLR 346, while not binding on this Court, is persuasive. In that case, the Court described a category of aggravated armed robbery cases with the following features at [162]:

(a) young offender with little or no criminal history;

(b) weapon like a knife capable of killing or inflicting serious injury;

(c) limited degree of planning;

(d) limited, if any, actual violence but a real threat thereof;

(e) victim in a vulnerable position such as a shop keeper or taxi driver;

(f) small amount taken;

(g) plea of guilty, the significance of which is limited by a strong Crown case.

50. In R v Henry, the Court of Appeal considered that an offence in that category should generally attract a sentence of between four and five years imprisonment. It may be noted that, like the ACT, the maximum sentence for aggravated armed robbery in New South Wales is 25 years imprisonment.

51. The category of case described in R v Henry involves a young offender with no or little criminal history. In this case, the offenders are older and their criminal histories, particularly Mr Hall’s, are significant. In addition, they were in company with each other. Otherwise the circumstances of this case fall generally within the category described in Henry.

52. Mr Barker was sentenced to four years, three months imprisonment for each of the aggravated armed robbery offences and two years, 11 months’ imprisonment for the attempted aggravated robbery, after discounting for his pleas of guilty. As counsel for Mr Barker accepted, the sentences imposed on his client fall within the range of available sentences. His complaint is that, taking into account the totality of the criminality, the aggregate of the sentences was manifestly excessive in the absence of some greater level of concurrency.

53. In R v TW [2011] ACTCA 25; 6 ACTLR 18, Penfold J noted at [83]:

Even more so than for most other claims of specific error, a claim that the structuring of a sentence is erroneous needs to be made out by careful argument, since there is no single correct approach to the structuring of multiple sentences, and there may be a variety of acceptable ways in which to implement the totality principle in a particular sentencing exercise.

54. Mr Barker submits that the sentences should have been made “more substantially concurrent”. In fact, his sentences exhibit a substantial degree of concurrency. The aggregate of his sentences was 11 years, six months, but concurrency has reduced the time to serve to seven years, five months.

55. Mr Hall was sentenced to five years, six months imprisonment for each of the aggravated robberies and three years, four months for the attempted aggravated robbery, after discounting for his plea. Taking into account Mr Hall’s age, criminal history, and the need for personal deterrence, each of these sentences were within the available range. Mr Hall submits that there should have been a reduction for totality. But there was a substantial reduction. The aggregate of his sentences is 14 years, four months, but with partial concurrency, he is required to serve nine years, nine months.

56. It must be remembered that each offender committed three separate serious offences, two of which involved threatened violence with a knife against vulnerable taxi drivers. Each offence carried a maximum penalty of 25 years imprisonment. Mr Hall’s individual and aggregate sentences are comfortably within the available range. Mr Barker’s aggregate sentence, given that he had committed only one relatively minor offence in nine years before the subject offences, can be described as high, but nevertheless within the range. The sentences, whether viewed individually or in aggregate, cannot be described as unreasonable or plainly unjust. In our view, the appellants’ respective sentences are not manifestly excessive.

57. Mr Hall also submits that there was such disparity between the sentences imposed on him compared to Mr Barker as to demonstrate error. In Rubino v The Queen [2015] ACTCA 22, Ross J (with Refshauge and Burns JJ agreeing) summarised the parity principle as follows:

58. Parity in sentencing is an incident of the principle of equal justice. It requires that offenders be treated in a like manner but allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. As Gibbs J observed in Lowe v The Queen (1984) 154 CLR 606 at 609: It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. 27. The sense of grievance necessary to attract appellate intervention on the basis of disparity is to be assessed by objective criteria. An appeal court will not intervene in circumstances where the disparity imposed on co-offenders is justified by the differences between the co-offenders such as age, background, criminal history, general character, and the part each has played in the relevant criminal conduct…

59. In Postiglione v The Queen (1997) 189 CLR 295, Gummow J said at 323:

The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done.

59. The sentencing Judge considered the differences between Mr Hall’s circumstances and those of Mr Barker. A significant difference lay in their respective criminal histories. Mr Hall’s criminal history was much worse and included a previous offence of robbery and a recent serious offence involving violence. Her Honour also noted that it was an aggravating feature that the subject offences were committed while Mr Hall was on conditional liberty. In addition, Mr Hall’s prospects of rehabilitation were lower than those of Mr Barker. These matters justified the disparity between their respective sentences.

60. Accordingly, each of the appeals should be dismissed.

I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 9 May 2017