Henderson v R

Court of Criminal Appeal (NSW)|2012-02-23|Before: Macfarlan JA, Hulme J, MacFarlan JA

... A co-offender, Mr Lignow, was dealt with in the North Sydney Local Court for the possession of unregistered firearm, goods in custody and numerous possess restricted substance charges. He was convicted and received fines for all offences and the Crown put to me, and I think correctly, that parity does not apply and that seemed to be the view of his counsel because she made no submissions on the matter. (Emphasis added.) 48It was submitted that the applicant "has a justifiable sense of grievance arising from the extreme disparity of his punishment compared to that of Mr Lignow" (AWS p.4). Both offenders were in possession of the same firearm and were charged with the same offence. It was submitted that "the fact that Mr Lignow harboured the shotgun for the applicant does not make him any less culpable than the applicant, just as a receiver of stolen goods is no less culpable than the thief who provided the goods to the receiver". 49Counsel for the applicant referred in written submissions to the judgment of Howie J in Jimmy v Regina [2010] NSWCCA 60; (2010) 77 NSWLR 540 ("Jimmy"):

"Equal justice" embodies the norm expressed in the term "equality before the law". It is an aspect of the rule of law. It was characterised by Kelsen as "the principle of legality, of lawfulness, which is immanent in every legal order." It has been called "the starting point of all other liberties." It applies to the interpretation of statutes and thereby to the exercise of statutory powers. 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: "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." (Emphasis in original.) 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 offenders 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 offenders to reflect different degrees of culpability and/or different circumstances.

General concepts of "systematic fairness" and "reasonable consistency" in sentencing, as an aspect of the administration of federal criminal justice, were discussed in Hili v The Queen. They apply to persons charged with similar offences arising out of unrelated events. The consistency they require is "consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence." That kind of general consistency is maintained by the decisions of intermediate courts of appeal. The consistency required by the parity principle is focussed on the particular case. It applies to the punishment of "co-offenders", albeit the limits of that term have not been defined with precision.

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. (Footnotes omitted, emphasis added.) 57Jimmy is authority for the proposition that the parity principle is not confined to co-offenders sentenced for "the self-same crime" and this was confirmed in Green and Quinn. The principal judgment in Jimmy was that of Campbell JA. In the course of, and following, a most extensive review of authorities in the High Court and intermediate courts of appeal, his Honour repeatedly referred to the issue being concerned with participants in a "common criminal enterprise" or the "same criminal enterprise". Howie J, who agreed with Campbell JA, used the term, "persons who have been engaged in the same criminal enterprise". 58In Green and Quinn, the High Court was concerned with a comparison of the sentences imposed upon the appellants with the sentence imposed upon a third person, Taylor. The appellants were sentenced for cultivating a large commercial quantity of cannabis plants. Taylor was sentenced for knowingly taking part in the supply of a commercial quantity of cannabis. The majority judgment identified (at [8]) each of the three men as having been involved in "a commercial enterprise for the cultivation of cannabis plants and the production of cannabis leaf for supply". 59In Jimmy the applicant and the offenders who were being compared, Huang and Siu, were charged with money laundering offences involving their transmission overseas of various sums of money on behalf of a man named Chen. Campbell JA explained the differences between the three offenders thus:

There is no basis in the Agreed Facts for concluding that the Applicant knew of the existence of Huang or Siu. There is no basis in the Agreed Facts for concluding that the Applicant knew that Mr Chen had ever engaged another person to take money to the bank for remission to Hong Kong in parcels of less than $10,000. The period when the Applicant was taking money to the bank for Mr Chen did not coincide, or even overlap, with the periods when Siu and Huang were taking money to the bank for Mr Chen. The sums of money that the Applicant remitted to Hong Kong are different to the sums of money that each of Huang and Siu remitted to Hong Kong. Thus, the Applicant, Siu and Huang, did not commit the same crime. However, it is clear that the Applicant, Siu and Huang were all being used by Mr Chen as part of an enterprise involving the repeated commission of crimes of a similar character. That suffices, in my view, to make them participants in a common criminal enterprise. The Crown's submission that the parity principle cannot apply because they are not co-offenders in the relevant sense fails. (Emphasis added.) 60In the present case, it is doubtful that there was a "criminal enterprise" at all, let alone one in which the applicant and Mr Lignow were both involved. Certainly, they were charged with the same offence in respect of the same shotgun. However, if one looks at "substance rather than form" (Green and Quinn at [30]), the applicant's offence was concerned with his ownership of the shotgun which he had purchased and illegally possessed for many years. Mr Lignow, on the other hand, had possession of the shotgun for 3 days in circumstances in which he was secreting it on the applicant's behalf out of "misplaced and extravagant loyalty" to a friend. 61In these circumstances, it cannot be said, in my view, that there was a common (or the same) criminal enterprise in which each was engaged. It is as inappropriate to compare the sentences imposed on each as it was to compare the sentence imposed upon a supplier of heroin with the sentence imposed upon the offender from whom the heroin was sourced: Meager v R [2009] NSWCCA 215. 62Even if the parity principle did apply, I am not persuaded that there can be any legitimate sense of grievance arising from the vastly more lenient outcome in Mr Lignow's case. The difference in the nature of the offences and the personal circumstances of the offenders justified a substantial difference in the sentence imposed in the applicant's case. 63There is not merit in either of these grounds.

Orders 64I propose that leave to appeal be granted but that the appeal be dismissed.

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The principle, whether it is called parity or proportionality or relativity between sentences, should be applied to bring about a just result in the sentences imposed upon persons who have been engaged in the same criminal enterprise regardless of the charges that have actually been laid against the offenders. (Emphasis added.) 50Counsel's written submissions were filed prior to the High Court of Australia giving judgment in Green v The Queen; Quinn v The Queen [2011] HCA 49; (2012) 86 ALJR 36 ("Green and Quinn"). That case was principally concerned with a Crown appeal being allowed and respondents being re-sentenced, where there was a question of the new sentence creating unacceptable disparity with the sentence imposed upon a co-offender who was not the subject of the Crown appeal. In the course of dealing with that issue there was consideration of the principle of parity in a general sense. 51It was Mr Wendler's submission on behalf of the applicant (23.2.12 at pp 1-2) that the effect of Green and Quinn was that the "strictures of the application of the parity principle" had been relaxed and that the "focus is upon the substance, not form". The fact that persons are not strictly co-offenders is not determinative. The issue is "arriving at a just result with some flexibility". 52Asked as to whether the applicant and Mr Lignow were engaged in the "same criminal enterprise", Mr Wendler's submission was that they both had possession of the same firearm and, although their possession was for different purposes and in different situations, "the High Court's analysis ... wouldn't stop application of the parity principle". The question was whether it was a "just result" that one man received a sentence of 2 years 6 months while the other received a fine of $250 (23.2.12 at p 3). 53It was accepted that the applicant should not have received the same imposition as Mr Lignow received, but it was submitted that "it shouldn't have been a head sentence of two and a half years" for an offence the judge described as "low range" (23.2.12 at p.4.20). 54When pressed as to the extent to which there should have been an amelioration of the applicant's sentence, Mr Wendler submitted that it should have been "to the extent that he should be released or capable of being released on parole immediately" (23.2.12 at 5.10) or "almost immediately" (23.2.12 at 8.36). The applicant is presently due to be released when the non-parole period for the firearm offence expires on 26 April 2012. 55For the Crown it was submitted that there were significant differences between the circumstances of the offence in relation to each of the applicant and Mr Lignow and there were also significant differences in their personal circumstances, including that Mr Lignow had given "considerable" assistance to authorities. Further, in the applicant's case, there were the additional offences to be taken into account on the Form 1. The disparity in the sentences was justified. 56The majority in the High Court (French CJ, Crennan and Keifel JJ) made the following observations concerning the parity principle in Green and Quinn:

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