38The facts sheets in respect of each offender were generic and accordingly substantially similar, although the charges were different.
39Black, who was born in July 1992, had no relevant prior history and was charged only with affray. Wilson, who was born in September 1990, had no relevant prior history and was sentenced on the basis that he had punched Thorton in the stomach when he was upright and slapped his chin when he was lying unconscious on the ground. Hendry, who was born in August 1991, had no relevant prior history and was sentenced on the basis that he punched England in the face and Thorton in the stomach. La Rosa, who was born in March 1990, had a relevant prior history of violent offences but was not on parole or conditional liberty when he committed the subject offence. He was sentenced for assault occasioning actual bodily harm to England and affray.
40It is evident from the comparison that the applicant's sentence was more severe than those imposed on his co-offenders. The question arises whether the disparity was a result of a failure on the part of the Sentencing Judge to correctly apply the principle of parity or whether the difference was a product of the greater objective criminality of the applicant's conduct, of the fact that the subject offences were committed while he was on parole for a violent offence and of his subjective circumstances. The former would indicate error; the latter would amount to a proper exercise of the sentencing discretion.
41The following passage in the ROS reflects the Sentencing Judge's consideration of the sentences imposed on the co-offenders:
"The Court has been provided with a set of facts in relation to four of the other young men, all of whom were dealt with in the Local Court, none of whom were charged with this particular offence. Each of those statements of fact relative to each individual also includes the criminal history of the respective offender. Parity does not strictly apply because those matters were dealt with in the Local Court and one of those individuals faced a s 35 'in company' count. In my view, the fact that the offender was already on parole for a serious act of violence which had brought him before me here at Gosford District Court when he was aged seventeen means that his subjective material further differentiates him from the others notwithstanding that one of the other four, Mr Larossa [sic], also has a criminal history involving violence. It appears to me that Mr Larossa [sic] was rather fortunate to receive a sentence of twelve months imprisonment with a non-parole period of three months. Nevertheless, when one looks at the video, it was this offender that escalated the violence significantly by striking the victim in the way and in the circumstances which he did." [Emphasis added].
42This passage shows that the Sentencing Judge had regard to the relative objective seriousness of the applicant's conduct by comparison with his co-offenders and to the fact that the applicant committed the subject offence while on parole. Although his Honour said that the parity principle did not strictly apply, I consider that this observation ought be understood as an acknowledgement that each of the offenders had been involved in the same criminal events, although none apart from the applicant had been charged with an offence under s 35 of the Crimes Act and none but the applicant had been dealt with by indictment. His Honour's consideration of the need to differentiate the subjective material pertaining to the applicant from that of the other offenders is also, in my view, a powerful indication that he considered that the respective criminality of the participants ought be addressed in a holistic way to ensure both consistency and parity.
43I consider that his Honour gave adequate consideration to the sentences imposed on the co-offenders when sentencing the applicant.
44Further, even though it would appear to have been open for the Crown to charge the applicant and each of the co-offenders with a joint illegal enterprise, the acts of each individual participant would have been a material consideration in sentencing each offender, on the assumption that each would either have pleaded guilty or been found guilty. As James J, with whom McClellan CJ at CL and Adams J agreed, said in R v Wright [2009] NSWCCA 3 at [28]-[29]:
"If this conduct by other persons was done in the carrying out of a joint criminal enterprise to which the respondent was a party, then the respondent was to be sentenced for that conduct under the principle that a party to a joint criminal enterprise is to be sentenced for the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise R v Cotter & Ors [2003] NSWCCA 273 especially per Carruthers AJ at 90.
However, the respondent was not necessarily to receive the same punishment as would have been appropriate if he had himself personally performed all of those acts. In each case it depends on the circumstances whether a person who is criminally liable for an act as a principal in the second degree or as an accessory should be regarded as equally culpable, less culpable or even more culpable than the person who actually performed the criminal act. See the discussion by the High Court in GAS v The Queen (2004) 217 CLR 198 especially at 209 [23].
45On this analysis, the objective seriousness of what the applicant did was substantially greater than that of his co-offenders. Although they, too, were participants in the assault of Thorton and England, it was the applicant who delivered the blow which knocked Thorton to the ground and caused him to suffer grievous bodily harm. The Sentencing Judge was not only entitled, but obliged, to have regard to the extent of the harm to the victim: Siganto v The Queen [1998] HCA 74; 194 CLR 656 at [29]; s 21A(1)(c) of the Crimes (Sentencing Procedure) Act 1999.
46That the applicant assaulted Thorton when Thorton's capacity to withstand attack had already been compromised by others in my view increased, rather than ameliorated, the relative objective seriousness of his conduct.
47It is also significant that the applicant committed the offence when he was on parole for another violent offence for which he had served a custodial sentence. The Sentencing Judge had a discretion to backdate the commencement of the sentence where parole in respect of an earlier offence is revoked by reason of the commission of a further offence: Callaghan v R [2006] NSWCCA 111. His Honour exercised the discretion substantially in the applicant's favour by backdating the sentence for the subject offences to 15 June 2011 which took account of all but one month of the loss of parole. It would have been open to his Honour to commence the sentence for the subject offences on 15 January 2012, when the term of the earlier sentence would otherwise have expired. The favourable exercise of discretion by the Sentencing Judge is a factor to be taken into account in considering whether the principles of parity have been correctly applied.
48The other material matter is that the applicant and the co-offenders were not mature men. They were on the cusp of adulthood. When sentencing offenders in that category, a sentencing judge might impose a non-custodial sentence on a first offender in the hope that it will have a salutary effect on the offender's future conduct and that he will not re-offend. However, when an offender comes before a court for sentencing for a similar offence in respect of which a lighter sentence has been imposed in respect of a prior offence, it is a proper exercise of the sentencing discretion to impose a harsher sentence, particularly when the offender is still on parole for the earlier offence.
49These circumstances explain why the Sentencing Judge was evidently concerned about the leniency apparently extended to La Rosa, which appeared to him to be at odds with the respective criminality in light of La Rosa's prior criminal record. However, although La Rosa had a prior criminal record which included offences of violence he was not on parole or any other form of conditional liberty at the time of the subject offence. His Honour was careful to record that the applicant had not kicked Thorton when he was down. I take this to be a distinction which the Sentencing Judge considered ought to be recorded because of the apparent similarity between La Rosa's conduct and the applicant's, although the harm to the respective victim was, different materially.
50That his Honour commented on the relative leniency of La Rosa's sentence as compared to the one he proposed to impose on the applicant demonstrates a concern, rather than a disregard, for the principles of parity and consistency.
51The Sentencing Judge appears to have considered that the sentence imposed on La Rosa was, if anything, lenient. I do not consider the sentence imposed on La Rosa to be excessively lenient although I do not disagree with the Sentencing Judge's observation that La Rosa was, in the circumstances, fortunate.
52Sentencing requires a judgment to be made not only of relative criminality and subjective circumstances, but also of the relative consequences of actions. On one view there is a similarity between the act of the applicant in punching Thorton in the head and the act of Hendry and La Rosa doing the same to England. It could be argued that La Rosa's action was more serious because he subsequently kicked England when he was down. There is, however, a significant distinction: it was the applicant's blow that caused grievous bodily harm to Thorton. While it may have been a matter of chance which blow on which victim had that effect, the actual consequences of the offender's actions are, for reasons given above, a material consideration in sentencing. That Thorton suffered really serious injury as a result of the applicant's blow is, in my view, sufficient to justify the greater sentence imposed on him, particularly when compared with La Rosa's sentence.
53I propose the following orders:
(1)Grant leave to appeal.
(1)Dismiss the appeal.