The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it 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. (footnotes omitted) (at 301-2)
22 Before turning to consider the ground of appeal, two preliminary matters should be mentioned. First, it was expressly conceded on behalf of the applicant that, putting to one side the argument raised in respect of the issue of parity, the sentence imposed upon him was otherwise not open to challenge upon the basis that it exceeded the legitimate range of the sentencing discretion. Secondly, it is to be observed that each of the co-offenders had served periods of pre-sentence custody which were expressly taken into account in determining their sentences. Both Moore and Dunphy had spent about 15 months in custody prior to sentence. About six months of that period was in each case attributable to other offences. Accordingly, it is common ground that in each case about 9 months was solely referable to the present offence. The co-offender Steel had spent 3 months and 11 days in pre-sentence custody. Counsel for the applicant submitted, correctly in my view, that it was necessary to have regard to the periods of time actually spent in custody by the various offenders in respect of these matters as being the appropriate yardstick against which "the assessment of the proportionality of the respective sentences" was to be made.
23 In Lowe v The Queen (1984) 154 CLR 606 Gibbs CJ said that:
[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. (at 609)
24 It is convenient to deal first with that part of the argument which concerns an assertion that the sentence imposed upon the applicant was disproportionate to the sentences imposed upon the co-offenders Moore and Dunphy. In doing so I will refer, as counsel did, to the various matters identified by the Chief Justice in Lowe (supra).
25 First, and it is recognized by the applicant that it is a matter of some significance, is the fact that the applicant, unlike Moore and Dunphy, had the matters on the Form 1 to be taken into account: see Attorney-General's application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. An increase in penalty was thus called for in the applicant's case, particularly as the first of those offences was not only a very serious offence of its kind but because it, and the other Form 1 offence, provided the setting in which the final offence occurred. Moreover, the sequence of events, to which I earlier referred, reveals that the applicant was engaged in an on-going campaign of escalating violence against the victim over several days.
26 Although counsel for the applicant acknowledged the force of those considerations, it was nevertheless submitted that there needed to be some amelioration of that increase in penalty in order that proper account could be taken of the principle of totality. In that context reference was made to what were said to be a number of "common features involved in all the offences": see R v Hammoud (2000) 118 A Crim R 66 per Simpson J at par 12. The common features were said to be the fact that the offences all arose from the one dispute and the fact that it was the same victim who had been assaulted on each occasion. When pressed in oral argument by the presiding judge, counsel for the applicant repeated the submission that the fact that the same victim, rather than several victims, was involved would suggest that a lower sentence was called for. Although a submission was advanced that support was to be found for that proposition in Hammoud, I am unable to discern that there is. Nor am I otherwise attracted to the proposition and particularly not in the circumstances of the present case.
27 The second matter to be considered involves a comparison of the respective roles of the various offenders. I have already referred to what Judge Woods said when sentencing the applicant. When sentencing the co-offenders, his Honour concluded that the applicant was "the ringleader" in this enterprise whilst they were "followers of [his] influence". Moreover, it is reasonable to infer from all the circumstances that there was a not insignificant measure of premeditation involved in the conduct upon which the applicant embarked, particularly in relation to the offences which occurred on 9 April 2006.
28 Counsel for the applicant did not challenge the sentencing judge's characterisation of the roles of the various offenders, but he did place some emphasis upon an aspect of his Honour's findings, made whilst sentencing the co-offenders Moore and Dunphy, which was said to reveal a not unimportant inconsistency. His Honour said that "[t]he photographs in evidence indicate that [the victim] was severely bashed". He must have been cut by the bottle [the applicant] had, it would seem." A little later his Honour said that "[t]he two offenders are before this court on a proper plea of guilty, based on a notion that those who join in a common purpose are responsible for the actions of others. It would seem, however, that [the applicant] is the one who used the bottle. … Precisely who did what to whom is not clear but the law is structured as it is so that problems of attributing precise movements to one or other among a multiplicity of offenders does not inhibit the legal process." It was submitted that that conclusion was inconsistent with what his Honour had said when sentencing the applicant. On that occasion, concerning this aspect of the incident, his Honour had remarked that the victim "was then belted on the head by a bottle by one of the males." His Honour also had said, "I have no doubt that [the applicant] was inside the house and that he participated in threatening and bashing [the victim]. Precisely what he did is not clear, but in any event, he was there encouraging others in what they did."
29 The inconsistency is said to arise from the fact that in sentencing the applicant, his Honour did not make a finding that the applicant was the person who had struck the blow to the victim's head. In light of that consideration and, as counsel put it, "given the somewhat speculative terms in which his Honour made the finding during the course of sentencing the co-offenders" it was submitted that "his Honour's comment would not amount to a finding capable of giving rise to a legitimate differentiation in the sentences to be imposed on the applicant on the one hand and the co-offenders on the other".
30 The Court was provided with the statement of facts which was tendered in the proceedings involving Moore and Dunphy. The only material difference between what it discloses and what was contained in the document tendered in the proceedings involving the applicant is that there was no reference in the facts tendered in the applicant's case to the fact that there was DNA material implicating both Steel and Dunphy in the commission of the offence. The statement of facts was the only material from the sentence proceedings of Moore and Dunphy that was provided to the Court. For example, the records of interview of the co-offenders were not made available. In those circumstances it is not clear what other evidence, if any, was before Judge Woods which may have shed light on this issue. Nor does the court have the benefit of the submissions which were advanced during the sentencing proceedings of Moore and Dunphy. It is tolerably clear however that the issue of parity loomed large. The issue of parity was not, of course, an issue with which Judge Woods was concerned when he sentenced the applicant because he was the first in point of time to be sentenced. That consideration does not of course disentitle the applicant from relying on the principle of parity: R v Jones (1993) 67 ALJR 376.
31 In my view, it is neither possible nor necessary to determine the issue which has been raised. It is quite impossible, given the state of the material before the Court, to determine the question of whether the sentencing judge's somewhat equivocal finding that the applicant struck the victim over the head was one that was properly open upon the material which was before his Honour in the sentencing proceedings against Moore and Dunphy. Nor is it necessary to determine the issue because, as I have said, the applicant does not challenge the finding that he was "the ringleader" and that the co-offenders were "followers". That being so, and given the other inferences which are properly available as to their respective roles, an entirely legitimate basis existed for drawing a clear distinction between the position of the applicant and that of the co-offenders on that basis. In any event, the existence of an inconsistency in the fact-finding process of the kind which is presently asserted does not, of itself, mean that error has been established.
32 Thirdly, the applicant had a rather more extensive criminal record than either of his co-offenders. Indeed Judge Woods described it as being "not insignificant". In 1996 in the Local Court he was placed on a recognisance for an offence of aiding and abetting an offence of break enter and steal. In 1999 in the Local Court he was fined in respect of two counts of assaulting an officer in the execution of his duty and one of larceny. In 2001 in the Local Court he was fined for contravening an apprehended domestic violence order. In 2002 in the Local Court he received a bond for contravening an apprehended violence order and at the same time was ordered to perform 60 hours of community service for an offence of assault. In 2002 he was sentenced in the District Court for supplying a prohibited drug. The sentence was reduced by this Court to one of 3 years imprisonment with a non-parole period of 18 months. In the same year he received a sentence of imprisonment for 1 month for malicious damage to property. In 2004 in the Local Court he was twice placed on a bond for separate offences of malicious damage to property. In 2005 in the Local Court he was placed on yet three further bonds for offences of malicious damage to property, resisting arrest and for contravening an apprehended domestic order. In February 2006 he was called-up for breaching those bonds. He received the benefit of yet further bonds. When he committed the present offences, the applicant was on conditional liberty because each of those bonds was still current. It appears that each of the co-offenders was also on conditional liberty at the time of the offence.
33 Although the Court was not provided with the details of the prior convictions of the co-offenders Moore and Dunphy, it was informed that Moore had been convicted of two offences of malicious damage in 2005 and an offence of assault occasioning actual bodily harm in 2006 whereas Dunphy had been convicted of two offences of common assault in 2005, of an offence of occasioning actual bodily harm in the same year, of offences in 2005 and 2006 of assaulting an officer in the execution of his duty together with other offences of obstructing and resisting an officer in the execution of his duty. It was submitted, at least so far as offences of violence were concerned, that the differences between the applicant's history and that of his co-offenders were not particularly significant. Be that as it may, Judge Woods observed, correctly in my view, when sentencing Moore and Dunphy, that the applicant "has a significantly longer background in offending than these two, and it is not necessary to punish them as severely as [him]". Indeed, counsel for the applicant appeared to accept that the applicant had "manifested in his commission of the instant offence a continuing attitude of disobedience to the law [such that] retribution, deterrence and protection of society may all indicate that a more severe penalty was warranted": see Veen v The Queen [No2] (1988) 164 CLR 465 at 477.
34 Fourthly, Judge Woods considered it to be a relevant factor that the applicant was aged 29 at the time of the offences whilst Moore was 21 and Dunphy 22.
35 Fifthly, Judge Woods assessed that each of the co-offenders Moore and Dunphy had "reasonable prospects of rehabilitation" by reason of their age and the strong family support that each enjoyed. His Honour was unable however to express the same degree of optimism in respect of the applicant. The evidence indicated, for example, that he had not worked for a number of years although he was said to be providing assistance, from time to time, to his mother who was in poor health.
36 There is however one factor to be weighed in the balance that is in the applicant's favour. He pleaded in the Local Court and, as a consequence, received a discount of 20% from the sentence which would have otherwise been imposed upon him. On the other hand, Moore and Dunphy did not plead guilty until the day of their trial. Although Judge Woods did not quantify the discount which he extended to them, it is reasonable to assume that they were not afforded the same measure of leniency on account of this factor as was the applicant.