Lloyd v R

Grounds of appeal:

1. The applicant seeks leave to appeal on the following grounds: 1. The individual sentences and effective total sentence are manifestly excessive. 2. The applicant has a justifiable sense of grievance in relation to the sentences imposed on his co-accused, [Jake and Gary Lloyd].

The offences

1. The learned sentencing judge described the agreed facts concerning the offences in considerable detail in her ex tempore sentence judgment. They may be summarised as follows.
2. The applicant, Barry Lloyd, his older brothers, Jake and Gary, and another person, Daniel, were at the Rouse Hill Town Centre on the evening of Thursday 9 October 2014. At about 7.00pm they, and a number of other unknown persons, attended the food court area where 15 year-old Baden Grundy was eating with a number of friends. There was a verbal altercation between the two groups. Baden Grundy left the food court and telephoned his family. He then went down to a lake area near the shopping centre to wait for them to arrive. Terry and Todd Grundy drove to the location in order to pick Baden up.
3. While this was happening, the three Lloyd brothers and Daniel went to a supermarket. The applicant waited outside while the others entered. Three knives were purchased. Gary Lloyd paid for them. The four then made their way to the area where Terry, Todd and Baden Grundy were. The brothers, Todd and Baden, saw a group of people running towards them. Barry Lloyd was at the front of the group which comprised about 10 people, followed by Jake Lloyd. Gary Lloyd was not within the group.
4. The applicant struck Baden Grundy to the head and a struggle ensued between them. Punches were thrown towards Todd Grundy. Terry Grundy tried to break up the fight. Daniel and another person (a juvenile) kicked Baden Grundy.
5. Jake Lloyd began to unwrap the knives from their packets. Gary Lloyd came up from behind Terry Grundy, grabbed him on the back of his neck and stabbed him in the stomach from behind. Terry Grundy punched Gary Lloyd and pushed the knife away. Gary Lloyd then came around in front of Terry Grundy and stabbed him in the stomach. Gary Lloyd then moved towards Todd Grundy and stabbed him in the chest, abdomen and right upper limb. Todd also sustained injuries to his fingers. The applicant was cheering whilst this was happening.
6. Jake Lloyd came out from the bushes and pointed a knife at Terry Grundy's throat. Terry fended the knife away but it split open his arm and he fell to the ground. Jake Lloyd attempted to stab Terry Grundy in the throat but the knife struck his arm and chest.
7. Baden Grundy tackled Jake Lloyd off Terry Grundy. Jake began to swing the knife at Baden. As Terry Grundy was lying on the ground, the applicant came over, began to cheer and struck him.
8. The Lloyd brothers, including the applicant, left the area. Jake Lloyd shouted as he was running away, "Ha ha, I told you you'd get yours".
9. Terry, Todd and Baden Grundy were unarmed during the incident.
10. Police and ambulance officers arrived a short time later and medical aid was given to Terry and Todd Grundy. They were taken to hospital.
11. The Lloyd brothers were arrested at Whalan a short time later.
12. It was not a part of the statement of agreed facts tendered by the Crown but it is worth mentioning by way of explanation for the offences that in a Juvenile Justice Background Report the applicant's mother told the author that there had been ongoing conflict between members of her family and the victims for some five years. The applicant told the author that he thought he was going to have a "one on one" physical altercation with Baden Grundy which would settle the ongoing feud.

Injuries to Terry Grundy

1. In addition to a statement of "agreed facts" there was also tendered before the sentencing judge a number of statements and expert certificates as to the injuries sustained by the two victims.
2. Terry Grundy was aged 41 at the time. When ambulance officers arrived at the scene there was stream of blood running away from him and he was receiving first-aid from bystanders. He said to an officer, "I'm going, I'm going". The officer noted a number of wounds including one to the left abdomen from which intestines and body tissue were protruding. Due to the amount of blood loss, Mr Grundy was loaded into the ambulance and taken to Westmead Hospital with medical treatment continuing en route.
3. Upon arrival at the Emergency Department at Westmead Hospital he was in a critical condition and required emergency surgery. He required multiple blood transfusions before and during surgery.
4. Penetrating stab wounds to the chest, abdomen, left arm and right hand were identified. There were also lacerations across the upper chest on both sides, 5 cm in length. One wound (approximately 10 cm in length) breached the abdominal cavity. There was a tear to the small bowel and multiple intestinal perforations. The arm wound affected veins, muscles and caused a spasm in the upper arm. Surgery was required to clean, repair and close all the wounds. A plastic surgery team was required to repair the hand wound. Post-operative hand therapy was also necessary.
5. Following surgery, Terry Grundy was in the intensive care unit for a day before being transferred to a surgical ward. He was in hospital for eight days in total.
6. Terry Grundy experienced flashbacks and disturbing dreams about the assault during his hospital stay. He was referred to a social worker for ongoing mental health care.

Injuries to Todd Grundy

1. Todd Grundy was aged 20. He was receiving first aid from by-standers who included an off duty doctor when ambulance officers arrived. Various wounds were noted, including a laceration to the lower left abdomen from which part of the bowel was protruding. Todd Grundy was screaming in pain. He was loaded into an ambulance and taken to Westmead, receiving medical treatment including pain relief en route.
2. Upon arrival at the Emergency Department at Westmead Hospital he was in a critical condition and required emergency surgery. Multiple blood transfusions were required before and during surgery.
3. He was found to have sustained penetrating stab wounds to the chest, abdomen and right hand. A wound to the right chest penetrated the diaphragm and caused a superficial laceration to the liver. These were sutured during surgery. A large haematoma was found within the chest wall cavity which was removed and a small arterial vessel bleed was noted and ligated. A wound to the left lower abdominal wall resulted in a small bowel perforation which was sutured.
4. A lacerating injury to the fourth and fifth digit of the right hand penetrated tendon. These injuries were operated on by a plastic surgery team four days after admission.
5. Todd Grundy was initially admitted to the intensive care unit under the care of a trauma surgical team. He remained in the intensive care unit for four days. A breathing tube was removed two days after admission. He had ongoing fevers. The abdominal wound required further attention (a drain and stenting), which prolonged his hospital stay. He was discharged 15 days after admission.

Assessment of the seriousness of the offences, the applicant's role and the basis of his liability

1. The learned sentencing judge referred to the maximum penalty of 25 years for the offences against s 33 as "providing guidance by Parliament as to [their] seriousness generally speaking". She added, "What that means is that these offences are regarded generally as extremely serious offences". She also noted that the standard non-parole period of 7 years was a statutory guidepost but it did not apply in the case of the applicant because he was a juvenile.
2. Her Honour then addressed, at length but with obvious care, "the specific features of offending in this case, to properly assess where these matters fall within that range of seriousness for these types of offences".
3. Factors which her Honour took into account, either as informing the assessment of the seriousness of the offences generally, or specifically as aggravating factors, included that each victim suffered multiple wounds; weapons, namely knives, were used; the offences were committed in company; the knives were purchased before the offenders proceeded to the confrontation with their victims (see [41]); and the attack was sustained and involved multiple acts by the offenders.
4. Although it is not a ground of appeal, an issue was raised in this Court about her Honour having regard to the fact that the offences were committed in the presence of a child (Baden Grundy, 15 years' old) as an aggravating factor. Her Honour said: "[Baden Grundy] at various stages was trying to pull off an offender from further assaulting his father. Whilst [Baden Grundy] was a direct victim of the affray offence on the Form 1, he was not a named victim and certainly not a victim of a wounding in respect of the s 33 offences. The fact that these offences occurred in front of [Baden Grundy] make it a serious matter. It exposed a young person to such serious violence against his own brother and father."
5. On the issue of gratuitous cruelty, her Honour referred to Jake Lloyd stabbing Terry Grundy when he was already wounded and had fallen to the ground (aiming for the throat but striking him in the arm and chest). She also referred to the applicant coming over to Terry Grundy as he was lying on the ground, cheering and striking him. She found that the gratuitous cruelty did not amount to an aggravating feature but said "it is a disturbing criminality that is involved" and "paints a serious picture of offending".
6. A further aggravating circumstance that applied only to Jake Lloyd was that he was subject to conditional liberty at the time in that he was on a good behaviour bond pursuant to s 9 and a suspended sentence good behaviour bond pursuant to s 12 of the Crimes (Sentencing Procedure) Act.
7. In the course of discussing the purchase of the knives, her Honour referred to it being conceded by the applicant that at the time the offenders were running to the location where the victims were, he was aware of the presence of the knives (even though he had not been in the supermarket when they were purchased) and he contemplated their use in the confrontation of the members of the Grundy family. As this was the basis upon which the applicant accepted by his pleas of guilty his liability on joint criminal enterprise principles, her Honour did not regard premeditation as an aggravating circumstance in his case.
8. Her Honour concluded this part of her judgment on overall seriousness by stating that she was satisfied that the offences fell within the mid-range level of seriousness.
9. She then turned to an assessment of the roles of each offender. She recounted the series of events, including that they started with the applicant initiating the physical assault in the affray offence by punching Baden Grundy to the head. The events culminated with the applicant approaching Terry Grundy when he was lying on the ground, cheering and striking Mr Grundy. She noted that this was not suggested to have inflicted any wound "but it is nonetheless a part of the affray".
10. In concluding on the roles of the offenders, the judge noted that Gary Lloyd had inflicted wounds to both victims, Jake Lloyd inflicted wounds to Terry but not Todd Grundy and, while the applicant did not inflict any wounds, he nonetheless participated in the joint criminal enterprise to do so. She added: "In terms of direct participation in the offence, [Gary Lloyd] had a greater direct involvement as regards the victim [Todd Grundy], but had an equal participation to [Jake Lloyd] in respect of the victim [Terry Grundy]."
11. The affray offence was taken into account for each offender when sentencing for the s 33 offence concerning Terry Grundy. Her Honour described the circumstances of the affray as "very serious". It encapsulated the initial striking by the applicant to Baden Grundy's head and the strike by him to Terry Grundy as he lay wounded on the ground. It also involved the presentation of a knife by Jake Lloyd to Baden Grundy as the latter was trying to tackle Jake Lloyd away from his father who lay wounded on the ground.

Harm to victims

1. Her Honour then discussed the harm caused to the victims. She quoted at length from a victim impact statement by Todd Grundy. There had been serious physical consequences as well as significant psychological harm. The statement included an account of a variety of ways in which his life had been adversely affected. Her Honour concluded: "The distress to that victim is ongoing and is typical of these offences. There is a physical and psychological harm that this court sees time and time again with these offences. Regrettably there are two such victims in this case. I take those matters into account as confirmation of the typical physical and psychological harm we see. It is a matter that informs the need for deterrence in this case and protection of the community."

The applicant's personal circumstances

1. The judge referred to the personal circumstances of the applicant and his brothers in considerable detail.
2. At the time of the offences the offenders were aged 15 (the applicant), 18 (Gary Lloyd) and 20 (Jake Lloyd). Her Honour said that the principles relating to sentencing young offenders arose for each in varying degrees.
3. Reference was made to evidence that each offender had been raised in a dysfunctional home environment. They were exposed to drug use and violence. They witnessed violence perpetrated by their father against their mother on a reasonably regular basis by way of emotional abuse and physical violence. There was evidence that the children were on the receiving end of physical violence as well. Their father, who was gaoled from time to time, had a long-term addiction to methylamphetamine (ice) but the violence persisted whether he was under the influence or not.
4. Her Honour said: "The relevance of deprivation in childhood is that where an offender has been raised in a community surrounded by substance abuse and violence, that circumstance may mitigate the sentence to be imposed against the offender. This is because the moral culpability of the offender is … likely to be less than the culpability of an offender whose formative years have not been marred in that way."
5. In this context, her Honour referred to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, quoting or summarising part of what was said by the plurality at [40]-[45].
6. Her Honour then discussed the personal circumstances of the individual offenders in detail. In relation to the applicant she referred to him having to cease his attendance at high school because of his involvement in the present offences. He completed his education to Year 10 standard by correspondence and he had also engaged in some vocational training courses.
7. Her Honour noted that the applicant was not assessed as having any cognitive difficulties but there was an immaturity that was evident from his involvement in the offences, for example the cheering and striking Terry Grundy as he lay bleeding on the ground.
8. A Juvenile Justice Background Report included that the applicant was described by a school principal as a "good kid" at school; he had no learning difficulties; and he achieved some good results. There was no prior criminal offending. The judge considered that he had good prospects of rehabilitation on account of his youth.
9. Special circumstances justifying a non-parole period less than the usual three-quarters of the overall sentence were found, based upon the applicant's youth and the need for ongoing rehabilitation in the community as well as the need to partially accumulate the sentences for the two offences.
10. The judge devoted a specific segment of her judgment to the subject of "Youth". She referred to an authority for the proposition that general deterrence is not as important in sentencing young people as it is with adult offenders: R v C (Court of Criminal Appeal (NSW), 12 October 1989, unrep). She also referred in detail to principles for sentencing children set out in s 6 of the Children (Criminal Proceedings) Act. Reference was also made to a concession by the Crown that these principles also applied to some extent to the sentencing of Jake and Gary Lloyd. Her Honour said: "[T]he acquisition of maturity is not a linear matter. It is one that typically does not suddenly come into full effect upon a person attaining the age of 18 which is the age of legal adulthood. Accordingly the youth of each Offender will mitigate the sentencing and the circumstances that I have read out from section 6 will be considered and applied in the case for each offender. It is desirable that each Offender be given the emphasis on rehabilitation. It is desirable that each Offender be reintegrated to the community with a view to continuing education and continuing with employment."
11. Her Honour also took into account the youthfulness of the offenders in her approach to deterrence being factored into the sentencing. She said that "ordinarily … a very strong emphasis on general deterrence" and "a measure of specific deterrence" would be required. She continued: "However … where the Court is dealing with young offenders who, in [Barry's] case, are still juveniles or who, in [Gary and Jake's] case, were young adults at the time, the Court must give significant weight to rehabilitation. I am of the view that this is a sentencing exercise where there must be a very strong emphasis on rehabilitation. There is nonetheless still a residual need, particularly with the adult offenders, albeit [Gary] was only just an adult, to send a message of deterrence generally. That will be tempered compared with the situation if I were dealing with an older adult."
12. Another subjective matter that is necessary to mention for the purposes of Ground 2 is the treatment of the pleas of guilty of each of the offenders. The judge reduced the sentences to be imposed upon the applicant and Jake Lloyd by 10 per cent on account of their late pleas of guilty. Gary Lloyd had notified the Crown a week before the trial was due to commence that he was prepared to plead guilty and his sentence was reduced by 15 per cent.

Ground 1 - manifest excess

1. Counsel for the applicant advanced the following contentions in written submissions: 1. The judge gave too much weight to general and personal deterrence and retribution and insufficient weight to the applicant's youth, rehabilitation and subjective circumstances. 2. The judge gave too much weight to the offence on the Form 1 document that was taken into account. 3. The applicant's criminal liability was significantly less than that of his brothers. 4. The aggravating factor of the offences being committed in the presence of a child had little or no application in the applicant's case as he was also a child of the same age.
2. The written submissions for the applicant also referred to sentencing statistics maintained by the Judicial Commission of New South Wales which were said to be "of limited assistance" but "show a broad range of sentences". Four "comparative cases" were said to "show a pattern of sentencing young offenders".

Too much weight to general and personal deterrence and retribution and insufficient weight to the applicant's youth, rehabilitation and subjective circumstances

1. I have earlier (at [47]-[57]) summarised the regard the sentencing judge had to the applicant's personal circumstances. It is clear that she gave very careful and earnest consideration to his age and background and that she assessed the significance of such matters in the context of the principles relating to the sentencing of youthful offenders. Nothing she said, or did not say, gives any indication that she gave "too much weight to general and personal deterrence and retribution and insufficient weight to the applicant's youth, rehabilitation and subjective circumstances". Counsel for the applicant did not contend that there was any patent error discernible in the judgment. The contention was that the sentence imposed does not appropriately reflect the weight that should have been given to such matters. I will return to this at the end of the discussion of this ground.

Too much weight to the offence on the Form 1

1. Counsel for the applicant referred to the starting points for the two sentences; 4 years in the case of Count 1 and 2 years 6 months in the case of Count 2. It was contended that the greater starting point for Count 1 was largely attributable to the offence of affray taken into account.
2. The judge discussed the circumstances pertaining to the affray offence and explained how she would take it into account. She referred to the guideline judgment in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 and said that "in an appropriate case, greater weight should be given to the need for personal deterrence and the community's entitlement to extract retribution" and that "[t]he point of the process may be to impose a longer sentence or to alter the nature of the sentence that would be imposed if the primary sentence stood alone". The first of these propositions was derived from the judgment of Spigelman CJ at [42]. The latter was derived from his judgment at [18] where he said: "A number of propositions with respect to the process of taking into account matters on a Form 1 are well established and are uncontroversial. First, the entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial."
3. Following reference to that authority, her Honour Judge Culver said: "The circumstances of the affray were very serious. The seriousness was largely contributed to by the two offences on the indictment. The affray offence also encapsulates the initial strike by [Barry] to [a 15 year old child's] head and furthermore the strike by [Barry] to [Terry Grundy] as he lay wounded on the ground. It also involves the presentation of the knife by [Jake Lloyd] to [Baden Grundy] as [Baden Grundy] was trying to tackle [Jake Lloyd] away from his father who lay wounded on the ground. The affray offence for all of those reasons is itself a serious matter. It bears a maximum penalty of ten years imprisonment. The Court is not required to impose a separate sentence for the Form 1 matter but the Court must take into account the seriousness of that matter when imposing the sentences against each offender for count 1 on the indictment."
4. It was contended that because the applicant was of the same age as the child he struck at the beginning of the incident, and because the judge found that the applicant's striking of the child's father when he was on the ground was indicative of the applicant's immaturity, the need to give weight to personal deterrence and retribution was significantly reduced. To the contrary, however, it was submitted that the difference in the starting points for the two sentences was indicative of considerable weight having been given to these factors.
5. There is no challenge by way of a specific ground of appeal in relation to the assessment that "the circumstances of the affray were very serious" and that "the affray offence … is itself a serious matter".
6. It is implicit in the applicant's contention that if it was not for the need to take into account the applicant's guilt for the affray offence, the sentences for the two offences against s 33(1)(a) would have been identical or very close to it. The judge did not say so, but assuming that she considered this to be so, in my view it was open to her to increase the sentence for the offence in Count 1 by the margin that she did in the exercise of her discretionary assessment.

The applicant's criminal liability was significantly less than that of his brothers

1. That the applicant's criminal liability was significantly less than that of his brothers was clearly something the judge accepted and took into account. The degree to which she did so is a matter that falls for assessment under Ground 2.

The aggravating factor of the offences being committed in the presence of a child had little or no application in the applicant's case as he was also a child of the same age

1. It is an aggravating factor if "the offence was committed in the presence of a child under 18 years of age": s 21A(2)(ea) of the Crimes (Sentencing Procedure) Act. This provision has been said by Howie AJ in Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353 at [104] to be "principally aimed at the deleterious effect that the commission of a crime, particularly one of violence, might have on the emotional wellbeing of a child" or their moral values. Howie AJ added: "[W]hether such a factor is aggravating in a particular case and how aggravating it is, will depend upon the nature of the offence charged and the likelihood that the child will be affected by it, having regard to all the circumstances including the child's age."
2. The sentencing judge complied with this prescript. After noting that the child was aged 15, she said: "The two s 33 offences were committed in front of [Baden Grundy]. [Baden Grundy] at various stages was trying to pull off an offender from further assaulting his father. Whilst [Baden Grundy] was a direct victim of the affray offence on the Form 1, he was not a named victim of a wounding in respect of the s 33 offences. The fact that these offences occurred in front of [Baden Grundy] make[s] it a serious matter. It exposed a young person to such serious violence against his own brother and father."
3. Why, as a matter of principle, the exposure of a child to serious violence against close family members could be aggravating factor in the case of the adult offenders but not in the case of the child offender was not explained in the applicant's written submissions. Counsel retreated a little from this submission at the hearing but maintained that "in the circumstances less weight may be given to that factor" (T5.20). This was said to be on the basis that it would attract more weight where the offender is in a position of influence over the child (e.g. a parent) or where the child witness is appreciably younger than a youthful offender.
4. As counsel conceded that there was no error in assigning some weight to this aspect as an aggravating factor the point falls away. Given one does not know (and I do not suggest it should be known) precisely how much weight the judge gave this factor it does not assist the applicant on this ground of appeal to submit, in effect, that if the circumstances were different an aggravating factor could have attracted more weight.

Statistics and comparative cases

1. The statistics and "comparative cases" do not assist the applicant.
2. The statistics that do not isolate any variable factors simply show that the sentences imposed in the applicant's case are within the range of sentences that have been imposed in other cases (the vast majority of offenders received full-time imprisonment ranging from 18 months to 16 years). The statistics that only include offenders aged less than 18 years also show that the applicant's sentences are within the range of those previously imposed (offenders who received full-time imprisonment (33 of 37 offenders) received sentences in the range of 2 to 7 years).
3. Three of the "comparative cases" do not illustrate "a pattern of sentencing young offenders". They each relate to sentences imposed upon persons under the age of 18 years which were higher than that imposed upon the applicant. Before any discounting the starting points for the sentences were 9 years, 5 years 6 months and 7 years 8 months, whereas the starting point for the applicant's longest sentence was just under 4 years. To the observation made at the hearing that these cases simply demonstrated that the applicant should have received a lesser sentence which in fact he did, counsel submitted that it should have been "much lesser" (T7.37).
4. The fourth case relied upon involved sentencing in the District Court for one offence against s 33(1)(a) and for a lesser offence against s 35. The starting point for the sentence for the s 33(1)(a) offence was 3 years. The case was not the subject of appellate review. Comparison with a single case could never illustrate a "pattern of sentencing". Counsel conceded, "I don't place a great deal of weight on it" (T7.42).
5. The applicant's submissions fail to demonstrate any "unifying principles" revealed by these cases (Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]-[55]) much less demonstrate any divergence from such principles in the sentencing of the applicant.

Conclusion

1. The force of the submissions in relation to this ground was that when regard was had to the various issues discussed above, and appropriate weight was assigned to them, the sentence could be characterised as manifestly excessive.
2. It is clear that the sentencing judge approached her task with considerable care. She referred to relevant authority, particularly in relation to the sentencing of young offenders and offenders coming from a disadvantaged background. Her task was undoubtedly a difficult one in balancing two competing factors. On the one hand there were, objectively, very serious offences but on the other hand there was the need to treat with care and sensitivity the various subjective considerations of the offenders, the applicant included. The latter called for significant amelioration of the sentencing response.
3. It is no light matter to sentence an offender who was aged 15 at the time of the offending to imprisonment for any period, let alone to imprisonment for some years. The seriousness of the offences, both factually and as indicated by the statutory guidepost of a maximum penalty of imprisonment for 25 years, necessitated the imposition of a custodial sentence. In the end, I am not persuaded that the terms imposed, or the relatively modest degree of partial accumulation, can be characterised as unreasonable or plainly unjust.
4. Although leave to appeal should be granted, this ground must fail.

Ground 2 - parity

1. Counsel for the applicant submitted that there is insufficient disparity between the sentences imposed on the applicant and those imposed on his older brothers in light of the age differential and their differing roles in the offences.
2. The submission was supported by the following propositions:

• The standard non-parole period prescribed for the offence was a statutory guidepost applicable to the co-offenders but it did not apply to the applicant because he was a juvenile.
• The judge found that there was a greater residual need for general deterrence in the cases of the co-offenders than in the applicant's case because they were adults and that there was a degree of premeditation in their cases whereas the applicant had little or no time to reflect, or withdraw from the criminal enterprise. Moreover, he had no knowledge of the knives at the time they were purchased by his brothers and he did not use the knives or wound the victims.
• Little or no weight should have been given in the applicant's case to the aggravating factor that the offences occurred in the presence of a child because the applicant was also a child.
• The three year age difference between Gary Lloyd and the applicant was significant in terms of their respective cognitive development and relative immaturity.

1. In relation to Gary Lloyd, it was submitted that there was a justifiable grievance for the applicant having a 4 year starting point for his sentence for the offence in Count 1 prior to discounting and Gary Lloyd having a 7 year starting point for that offence. This grievance also arose from the applicant having an overall sentence of 4 years compared with Gary Lloyd's overall sentence of 6 years 7 months.
2. In relation to Jake Lloyd, the submissions noted that he was five years older than the applicant; he had a criminal history; and he was on conditional liberty in the form of good behaviour bonds under both s 9 and s 12 of the Crimes (Sentencing Procedure) Act at the time of the offences. Further, he was a party to the purchase of the knives, unwrapped them, and he inflicted serious wounds upon Terry Grundy. So, it was submitted, the applicant was justifiably aggrieved in that his overall sentence "is almost half the effective sentence imposed on [Jake]".

Parity principles

1. It is worth referring to some general principles before turning to a consideration of the ground.
2. It has been said that equal justice requires that like should be treated alike. However, if there are relevant differences, due allowance should be made for them: Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26 (Dawson and Gaudron JJ).
3. The reason why an appellate court interferes in cases where there is an inappropriate degree of disparity between sentences is because it considers such disparity to give rise to a justifiable sense of grievance or the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606 at 610; [1984] HCA 46 (Gibbs CJ).
4. A court will refuse to intervene where the degree of disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at 474-475 [31]; [2011] HCA 49 (French CJ, Crennan and Kiefel JJ).
5. This Court has recently observed, "Where a sentencing judge recognises the importance of the parity principle and ostensibly gives effect to it, this Court will be cautious to intervene. Any disparity must be gross, marked, or glaring in order to justify such intervention": Afu v R [2017] NSWCCA 246 at [15]. See also, Tatana v R [2006] NSWCCA 398 at [28]; Lam v R; Lam v R [2015] NSWCCA 87 at [12]; and Stuart v R [2016] NSWCCA 72 at [11]

Consideration

1. The judge specifically addressed the issue of parity: "I also note that when dealing with three co-offenders as I am now I must bear in mind sentences that bear parity where appropriate with each other. The more serious offending ordinarily receives a more serious sentence than a co-offender. There is also the need, of course, to balance the features that are personal to each offender in arriving at the ultimate sentence and that balancing exercise is done by way of what I have already referred to as instinctive synthesis. There ought not be a sentence imposed for one offender that would give rise to a justifiable sense of grievance by another offender."
2. It is clear that her Honour was mindful of the appropriate principles and sought to exercise her sentencing discretion in balancing the differences between the respective offenders. Those differences, helpfully available from a table provided in the Crown's written submissions which counsel for the applicant endorsed, included the factors set out in the table below. No reference is made to the roles played by each offender as that has been adequately referred to earlier. Applicant Gary Lloyd Jake Lloyd Age 15 years 7 months 18 years 5 months 20 years 2 months Criminal history Nil Nil Prior bonds for resisting police officer (s 9) and aggravated break and enter (s 12) Conditional liberty No No Yes in relation to above bonds Mental or intellectual issues Nil Borderline intellectual functioning - contributed to commission of offences Longstanding cannabis use disorder Remorse No finding Genuine remorse Genuine remorse Plea discount 10% 15% 10%

1. Details of the sentences imposed upon each offender have been provided earlier but as an aid to comparison for the purposes of this ground they are repeated. Applicant Gary Lloyd Jake Lloyd Count 2 2 years 2 months 4 years 6 months 5 years 1 month NPP 1 year 4 months NPP 2 years 10 months NPP 3 years 1 month Count 1 (with Form 1) 3 years 6 months 5 years 10 months 7 years 1 month NPP 1 year 9 months NPP 3 years 4 months NPP 4 years Accumulation 6 months 9 months 9 months Overall sentence 4 years 6 years 7 months 8 years 4 months NPP 2 years 3 months NPP 4 years 1 month NPP 5 years 3 months Ratio of effective NPP to overall term 56% 62% 63%

1. It can be seen from the above that the judge made a very obvious and marked distinction between the sentences imposed upon the applicant and those imposed upon his brothers. The applicant's overall sentence is 60 per cent of that imposed upon Gary Lloyd (who received a greater discount for his pleas) and it is 48 per cent of the overall term imposed upon Jake Lloyd. A marked distinction was justified for various reasons, particularly because of their different roles and levels of responsibility for the offences, as well as the age and level of maturity of each.
2. It is possible that the difference between the sentences imposed upon the co-offenders might have been greater. However, it must be kept clearly in mind that this was a discretionary assessment by a judge who had the facts and circumstances of the offences and each offender in mind in the one sentencing exercise.
3. It is a basic principle of appellate review of sentencing that "there is no single correct sentence" and "judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies": Markarian v The Queen (2005) 228 CLR 357 at 371 [27]; [2005] HCA 25 (Gleeson CJ, Gummow, Hayne and Callinan JJ). That observation may be translated to a review of the degree to which a sentencing judge has differentiated the sentences imposed upon co-offenders sentenced in the one sentencing exercise.
4. In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done: see Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15]; [1999] HCA 29. The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion? In my view, the answer must be affirmative.

Orders

1. I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.
2. GARLING J: I agree with the orders proposed by R A Hulme J, and with the reasons which he gives.

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