Hudson v Regina

The application 9 Mr Dhanji, for the applicant, argued the application on two grounds. The first was that Judge Nield failed to determine a sentence for each offence individually, in accordance with the familiar principles enunciated in Pearce v The Queen (1998) 194 CLR 610. This arose from his Honour's approach to the aggravating and mitigating factors in s21A of the Crimes (Sentencing Procedure) Act. 10 In respect of the count relating to Ms Collins, his Honour found the aggravating factor in s21A(2)(g), that is, that the emotional harm caused by the offence was substantial. On the other hand, as to the other three counts he found the mitigating factor in subs(3)(a), that the resultant emotional harm was not substantial. Mr Dhanji argued that there should on that account have been some distinction between the sentence for the count involving Ms Collins and the sentences for the other counts, and that the sentencing process had, accordingly, miscarried. 11 However, all four offences arose out of the same incident and were committed in the same circumstances. They were all serious. Evidence of the emotional effect of the offences upon the victims was but one of a number of factors to be taken into account in determining the appropriate sentence for each count. The fact that one of them had sequelae for the victim which invoked s21A(2)(g), while the others did not, does not necessarily mean that that count should have been visited with a heavier sentence than the others. 12 That said, I find it unnecessary to express a concluded view about this ground, because I am persuaded that the second ground is made out and that this Court should intervene. 13 That ground is that the applicant has a justifiable sense of grievance because of the disparity between the sentences imposed upon him and those passed upon Mr Crompton. The principles governing this aspect of sentencing, examined by the High Court in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1996 - 97) 189 CLR 295, are familiar and need not be repeated. A recent summary of them is to be found in the judgment of Johnson J in R v Kelly (2005) 155 A Crim R 499 at [9] ff. 14 Judge Nield had before him the remarks of Judge McLoughlin when sentencing Mr Crompton. Judge McLoughlin considered that each count called for an undiscounted sentence of five years and four months. His Honour arrived at the sentence of four years after allowing a twenty-five percent discount for the pleas of guilty. As is apparent from the relationship of that sentence to the non-parole period of two years and three months, he also found special circumstances. 15 In the result, the applicant's head sentence on each count exceeded that imposed upon Mr Crompton by two years and his non-parole period on each count exceeded Mr Crompton's by nine months. Looking at the aggregate sentence for each man after partial accumulation, the applicant's head sentence exceeded Mr Crompton's by two years and three months and his effective non-parole period exceeded Mr Crompton's by one year. 16 Although Mr Crompton appears to have played the more active role in the offences, Judge Nield saw the involvement of the two men as equal. Mr Dhanji did not challenge that finding. However, there were differences in their subjective cases which led his Honour to conclude that he was not bound to sentence the applicant to the same or similar terms as the co-offender. Mr Crompton is almost three years younger than the applicant and, as I have said, pleaded guilty. 17 On the other hand, unlike the applicant, Mr Crompton had a significant criminal record. He had previous convictions for assault occasioning actual bodily harm and threatening to destroy or damage property. At the time of the offences with which we are concerned, he was subject to a good behaviour bond for the first of those matters and a community service order for the second. It is, of course, well established that it is a serious aggravating factor that an offence is committed while subject to conditional liberty. 18 The Crown prosecutor before us argued that it was open to Judge Nield to have approached the matter as he did. He pointed out that this Court's intervention to correct disparity is discretionary and that, in any event, it would intervene only where there was a marked disparity such as to give rise to a justifiable sense of grievance: R v Kollas & Mitchell [2002] NSWCCA 491, per Wood CJ at CL at [45]. 19 However, as Mr Dhanji rightly submitted, his Honour's task was to achieve appropriate relativity between the applicant's sentences and those of Mr Crompton. In my view, there is marked disparity such as to engender in the applicant a justifiable sense of grievance. Mr Dhanji pointed out that Judge McLoughlin's starting point before the discount for Mr Crompton's pleas of guilty was a head sentence of five years and four months on each count. Judge Nield's head sentence was six years. In achieving relativity between the head sentences, the fact that Mr Crompton is a younger man than the applicant is outweighed by his unfavourable criminal record and his conditional liberty at the time of these offences. 20 In my view, the starting point of sentence for the applicant should have been a little less than Mr Crompton's. There must also be some adjustment of the applicant's non-parole period, although I acknowledge that his Honour's finding of special circumstances led to a non-parole period on each count which is only half of the head sentence. The adjustment which I propose would lead to a modest, but significant, reduction of the effective non-parole period. The resultant sentences, individually and in the aggregate, would maintain a distinction recognising the leniency to which Mr Crompton was entitled because of his pleas of guilty. 21 I see no discretionary reason why this Court should not intervene to correct the disparity. The sentences passed by Judge McLoughlin were entirely appropriate, and to reduce the applicant's sentences in the light of them would not produce an overall sentence in his case which is inadequate.