MO v R [2023] NSWCCA 26 | Case summary

Court of Criminal Appeal (NSW)|2022-08-17|Before: Bell CJ, Davies J, Fagan J

E Kerkyasharian (Applicant) A Bonnor (Respondent)

Murphy's Lawyers Inc (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2017/279040; 2018/145190 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 5 March 2021 Before: Zahra SC DCJ File Number(s): 2017/279040; 2018/145190

HEADNOTE [This headnote is not to be read as part of the judgment] On 30 November 2020, following a trial before jury in the District Court, MO (the Applicant) was found guilty of two counts of doing an act with intent to pervert the course of justice, contrary to s 319 of the Crimes Act 1900 (NSW). He was tried together with a co-offender, AH, who was found guilty of one count of the same offence. Each offence is punishable by a maximum penalty of 14 years of imprisonment. The facts of the offending were as follows. In 2013, the Applicant, who was a member of the criminal group Brothers for Life, was charged in connection with the wounding by shooting of another man, Witness A. In 2016, the Applicant stood trial in the District Court for his involvement in the shooting. Before the 2016 trial, the Applicant and Witness A came to an agreement that the Applicant would pay $25,000 to Witness A to either not give evidence, or to give false evidence, at the trial. This conduct constituted Count 1 against the Applicant. At the 2016 trial, Witness A gave false evidence to the effect that the Applicant had not been present at the time of the shooting. Nonetheless, the Applicant was convicted of the shooting-related offences and was imprisoned. Following the Applicant's conviction, he was housed in the same correctional centre as another co-offender, AH. While in custody, the Applicant and AH came to an agreement that AH would be paid $80,000 to prepare a false affidavit, which would be filed in an appeal against the Applicant's conviction in the Court of Criminal Appeal. AH, who had been with Witness A immediately before the shooting, prepared a false affidavit in which he asserted that he had not seen the Applicant on the night of the shooting. After the plan came to the attention of Corrective Services, the ground of appeal which relied on the false affidavit was withdrawn and the affidavit was not read. The $80,000 payment never took place. This conduct constituted Count 2 against the Applicant. On 5 March 2021, the Applicant and AH were sentenced together in the District Court. The Applicant was sentenced to an aggregate term of imprisonment of 7 years with an aggregate non-parole period of 4 years and 3 months, while AH was sentenced to a term of imprisonment of 3 years and 9 months with a non-parole period of 2 years and 3 months. Both sentences were made partially concurrent with terms of imprisonment which the Applicant and AH were already serving. The Applicant sought leave to appeal against his sentence on two grounds: first, that the sentencing judge erred in his application of the principle of parity, and second, that the sentence imposed on the Applicant was manifestly excessive. The first ground of appeal was primarily concerned with the sentencing judge's treatment of parity with respect to three other co-offenders, Witness A, IT and NA. Witness A gave false evidence at the 2016 trial, as has been explained, while IT and NA acted as intermediaries at various times. These three co-offenders had already been sentenced at the time of the Applicant's sentencing hearing. In proceedings on sentence, the Crown made a submission to the effect that the Applicant "should receive a higher sentence" than those received by NA, IT and Witness A. In the sentencing judge's remarks on sentence, in the context of the parity principle, his Honour stated: "Having considered all of the factors considered in the respective cases on sentence of each of the co-offenders I am of the view the sentence to be imposed upon [MO] should be higher than the others to reflect my findings relating to the assessment of the objective gravity of his offending and to reflect his paramount role." The Applicant argued, among other things, that this passage disclosed error. The Court held (Bell CJ, Davies and Fagan JJ agreeing), granting leave to appeal but dismissing the appeal: As to the parity issue 1. There was nothing "proportional" or "mathematical" about the sentencing judge's process of reasoning in relation to the principle of parity. The remarks on sentence revealed no attempt to fix the Applicant's sentence by increasing the sentences imposed on his co-offenders in mathematical proportion to their relative criminality, moral culpability, or any other particular consideration: [50] (Bell CJ); [123] (Davies J); [124] (Fagan J). 2. The Crown's submissions on parity did not amount to a submission about the range of available sentences of the kind criticised in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2. That case was concerned with submissions advanced by prosecutors to the effect that a sentence disposition would amount to appellable error if it fell outside a certain range. The prosecutor did not make such a submission before the sentencing judge: [56]-[60] (Bell CJ); [123] (Davies J); [124] (Fagan J). Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2; Anderson v R [2022] NSWCCA 187; Matthews v The Queen (2014) 44 VR 280; [2014] VSCA 291, considered. 1. It may be accepted that a sentencing judge should not rely upon a sentence previously imposed upon a co-offender to justify the imposition of a sentence that is more severe than that which the sentencing judge otherwise would have imposed. On the other hand, a sentencing judge may take into account previous sentences imposed on co-offenders in assessing sentencing practice, and may explain why the sentence to be imposed is more severe than others by reference to differences in the relevant conduct and circumstances: [66]-[70] (Bell CJ); [123] (Davies J); [124] (Fagan J). R v Nguyen; R v Nguyen [2010] NSWCCA 331; Delaney v The Queen; R v Delaney (2013) 230 A Crim R 581; [2013] NSWCCA 150; Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46; Steer v R (2000) 171 ALR 463; [2000] FCA 462; Hili v The Queen (2010) 242 CLR 520; [2010] HCA; DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, considered. 1. The remarks on sentence do not support a conclusion that the sentencing judge invoked the parity principle impermissibly to increase the sentence otherwise to be imposed on the Applicant: [72]-[79] (Bell CJ); [123] (Davies J); [124] (Fagan J). Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430; Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54; McClain v R [2011] NSWCCA 191, considered. 1. In light of the Applicant's role as the participant with the greatest responsibility and self-interest in the criminal scheme, together with differences in the co-offenders' subjective features, there was no relevant disparity in sentences warranting appellate intervention: [103]-[105] (Bell CJ); [123] (Davies J); [124] (Fagan J). As to the manifest excess issue 1. The submission that the Applicant's sentence was manifestly excessive should be rejected: [120] (Bell CJ); [123] (Davies J); [124] (Fagan J). Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; Kerr v R [2016] NSWCCA 218; Issa v R [2017] NSWCCA 188; PO v R [2020] NSWCCA 129; R v Pearce [2020] NSWCCA 61.

Judgment

BELL CJ: On 7 October 2020, MO (the Applicant) entered pleas of not guilty to two counts of doing an act with intent to pervert the course of justice, contrary to s 319 of the Crimes Act 1900 (NSW). On the same day, a co-offender, AH, entered a plea of not guilty to one count of the same offence. Each of those offences is punishable by a maximum penalty of 14 years of imprisonment.
On 30 November 2020, following a joint trial before a jury, both the Applicant and AH were found guilty of the counts described above. The two counts of which the Applicant was found guilty (Count 1 and Count 2, respectively) were particularised as follows: "1 Between the 1st day of July 2015 and 12 April 2016, at Sydney in the State of New South Wales, did an act, namely induce [Witness A] not to give evidence in accordance with his statement to police in the District Court trial of [MO] with intent thereby to pervert the course of justice. … 2 Between the 6th of May 2016 and 23 of August 2017, at Sydney in the State of New South Wales, did an act, namely procure [AH] to provide a false affidavit for his appeal to the Court of Criminal Appeal with intent thereby to pervert the course of justice."
The third count on the indictment (Count 3), of which AH was found guilty, was in the following terms: "3 On or about 13 May 2017 at Sydney and other places in the State of New South Wales, did an act, namely provide a false affidavit with intent thereby to pervert the course of justice." As is clear from the terms of the indictment, Count 3 related to AH's involvement in the scheme which was the subject of Count 2 against the Applicant.
On 5 March 2021, the Applicant and AH were sentenced together in the District Court, by Zahra SC DCJ. In relation to the Applicant, the sentencing judge imposed an aggregate sentence of 7 years of imprisonment, with an aggregate non-parole period of 4 years and 3 months. His Honour indicated that, had he not imposed an aggregate sentence, he would have imposed a sentence of 6 years' imprisonment for Count 1, and a sentence of 5 years' imprisonment for Count 2. The aggregate sentence was backdated to commence on 21 November 2020, such that it was partially concurrent with a term of imprisonment which the Applicant was already serving. In relation to AH, the sentencing judge imposed a term of imprisonment of 3 years and 9 months, with a non-parole period of 2 years and 3 months.
The Applicant now seeks leave to appeal against his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). In support of his application, the Applicant relies upon the following two grounds of appeal: 1. Ground 1: that the sentencing judge erred in the application of the principle of parity; and 2. Ground 2: that the sentence imposed on the Applicant is manifestly excessive.
Although the Applicant filed a Notice of Intention to Appeal (NIA) within time, his Notice of Appeal was filed more than 12 months after the NIA. He therefore also seeks leave to make the present application out of time pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

Factual background

The Applicant was sentenced on the basis of the facts as found by the sentencing judge following the trial. For present purposes, only a brief summary of the factual background is necessary.
In 2016, the Applicant stood trial in the District Court and was convicted of one count of wounding with intent to cause grievous bodily harm, and one count of using an unauthorised firearm (the 2016 trial). Both offences before this Court involve attempts to pervert the course of justice in relation to those proceedings. For clarity, I will refer to the offending which was the subject of the 2016 trial as the "underlying offences", and to the offending which is the subject of this appeal as the "perversion of justice offences".
Count 1 of the perversion of justice offences relates to attempts by the Applicant to induce a witness, Witness A, either to not give evidence or to give false evidence at the 2016 trial. Count 2 relates to attempts by the Applicant to induce another witness in the 2016 trial, AH, to prepare a false affidavit for the purposes of assisting the Applicant to bring an appeal against his conviction. Four co-offenders were charged in relation to the perversion of justice offences, being Witness A, AH, and two other associates, NA and IT. The sentences of these co-offenders were relied upon by the Applicant in support of his parity ground, and will be discussed later in these reasons.
The sentencing judge described the underlying offences in some detail. The salient aspects of that offending can be summarised as follows. The Applicant, Witness A and a third man, Witness X, were members of the criminal group Brothers for Life. The Applicant was charged in connection with the wounding by shooting of Witness A on 8 February 2013, in retribution for the loss of a quantity of cocaine. At the time of the offending, all three men were in a car. The Applicant loaded a firearm and gave it to Witness X, who shot Witness A twice in the leg. AH was not present at the time of the offending, but had been with the three other men immediately beforehand.

Count 1

Several days after the shooting took place, Witness A made a statement to police in which he said that the Applicant had been in the car at the time of the shooting, loaded the gun, and gave it to Witness X. Sometime before the commencement of the 2016 trial, the Applicant and Witness A came to an agreement that the Applicant would pay Witness A not to give evidence in the trial in accordance with his police statement. Initially it was agreed that Witness A would not attend court to give evidence. However, after Witness A was arrested and remanded in custody for an unrelated matter, instructions were communicated to Witness A in custody to give false evidence at the trial. At that time, MO was on bail.
A number of intermediaries were used to communicate with Witness A in custody, including NA and IT, both of whom were charged in relation to the perversion of justice offences. NA acted as an intermediary by collecting monies to be paid to Witness A, while IT passed on instructions to Witness A about what to say when giving evidence at the 2016 trial.
At the 2016 trial, Witness A gave evidence that the Applicant had not been present in the car at the time of the shooting, and that the police had fabricated Witness A's original police statement. In exchange, the Applicant agreed to pay $25,000 to Witness A, of which at least $10,000 was paid. There was also evidence that the Applicant and Witness A discussed the possibility of a further payment to Witness A if the Applicant were to bring a successful claim for compensation from the police for his prosecution.
The sentencing judge summarised his findings in respect of Count 1 as follows: "The evidence in the trial… establishes that [MO] and Witness A entered an agreement that Witness A not give evidence against [MO] in accordance with his police statement; that Witness A would ultimately be paid $25,000; that the monies were paid to Witness A with the intention of inducing Witness A to give false evidence; that in [so] doing there was an intention to pervert the course of justice."
Notwithstanding the false evidence given by Witness A, the Applicant was found guilty by the jury following the 2016 trial.

Count 2

Following the Applicant's conviction, he was housed in the same correctional centre as AH. While in custody, the Applicant and AH came to an agreement that AH would prepare a false affidavit to be filed in an appeal to this Court against the Applicant's conviction. At the time, AH knew that the Applicant was guilty of the shooting-related offences. It was agreed that AH would be paid $80,000 for the provision of the false affidavit.
In June 2016, AH was moved to a different correctional facility. The co-offender NA again acted as an intermediary to communicate between the Applicant and AH. The sentencing judge also found that MO gave instructions to AH using a contraband phone while both were in custody.
In May 2017, AH affirmed a false affidavit in which he asserted, inter alia, that he had not seen the Applicant at all on the night of the shooting, and that it was Witness A who procured the firearm. The preparation of the affidavit by AH formed the subject of Count 3, for which AH was convicted and sentenced.
On 1 August 2017, another detainee sent a letter to MO on behalf of AH, which was intercepted by Corrective Services officers. The letter demanded payment of the $80,000, in addition to a further $20,000. It threatened that if payment were not made, AH would "change his mind and retreat on [his] statement".
After the Applicant's solicitor became aware of the letter of demand, the ground of appeal which relied upon AH's affidavit was withdrawn, and the affidavit, was not read.

The remarks on sentence

The sentencing judge sentenced the Applicant together with AH, and his written remarks on sentence, delivered on 5 March 2021, concern the sentences imposed on both offenders. At this stage, it is sufficient to discuss the relevant aspects of the remarks on sentence insofar as they concern the Applicant.
Before turning to consider the objective seriousness of the offending, the sentencing judge reviewed the principles relevant to sentencing offences of perverting the course of justice, saying the following: "The superior courts have recognized that offences of perverting the course of justice are of substantial gravity and that such offending strike[s] at the very heart of the justice system and must be severely punished whenever detected: Marinellis v R [2006] NSWCCA 307 at [10]; PO v R [2020] NSWCCA 129 at [40]. The authorities further make it clear that sentences reflecting a strong element of specific and general deterrence are required when sentencing an offender for an offence under section 319. The authorities are clear that the fact that an attempt to pervert the course of justice did not succeed or was doomed to fail is of far less significance than in a case of sentencing for an attempt to commit some other substantive offence. It is the tendency of the conduct which is decisive and it is irrelevant whether or not the conduct brings about the miscarriage of justice. Such is the seriousness of offending of this kind that a sentence of imprisonment is usually warranted. In R v Giang (2001) NSWCCA 276, McClellan J (as he then was) stated at [26]-[27]: 'There can be little doubt that when the offender is the instigator of the act which is intended to compromise the integrity of the curial process and benefits or intends to benefit from the doing of the agreed act, extraordinary circumstances will be required before a custodial sentence is not appropriate. The situation may be different when the offender, although a willing participant, neither initiates or stands to benefit from the offence'."
These principles may be accepted, although caution should be taken not to adopt an overly rigid or prescriptive approach to the reference to "extraordinary circumstances" in R v Giang [2001] NSWCCA 276 at [26].
With respect to Count 1, his Honour found that the relevant offending was "objectively of a most serious kind" and its objective gravity was "of a high order". In support of this conclusion, his Honour noted the following matters: 1. that the conduct occurred over some period of time; 2. that the offending was "of some sophistication", and involved the coordination of a group of intermediaries to perform tasks including the conveying of instructions to Witness A and the payment of monies; 3. that the Applicant showed persistence in putting the agreement into effect when it was frustrated by changed circumstances (I infer that his Honour was referring to the arrest and imprisonment of Witness A); 4. that the Applicant continued to coordinate and implement the agreement during the course of the trial, by arranging the payment of monies to Witness A's girlfriend; 5. that the agreement led to Witness A giving false evidence in the 2016 trial over a number of days; 6. that the false evidence included allegations that police engaged in improper conduct by fabricating evidence; 7. that the underlying offences in respect of which the Applicant sought to manipulate the Court's processes involved serious violence; and 8. that the Applicant was on bail at the time of the offending.
In the context of the motivation for the Applicant's offending, his Honour accepted the Crown's submission that "whilst the primary motive of [MO] was to secure an acquittal and avoid being held to account for his criminal conduct he also intended to provide a false foundation for civil proceedings against police alleging misconduct by police in fabricating evidence." His Honour also found that "the evidence establishes the total disregard by [MO] to the proper processes of the court in the administration of justice."
With respect to Count 2, the sentencing judge addressed the objective seriousness of the Applicant's offending together with AH's offending which was the subject of Count 3. His Honour found that the Applicant's offending fell within "the upper end of the middle of the range of objective seriousness". His Honour referred to the following aspects of the offending: 1. that the agreement between the Applicant and AH involved a substantial sum of money, being $80,000; 2. that AH was a material witness to the events surrounding the shooting, and was in a position to present his false account as a credible narrative; and 3. that the agreement was only frustrated by the interception of the letter to MO by Corrective Services, and that the attempt to pervert the processes of the Court of Criminal Appeal would likely have continued if it were not for the interception of that letter.
The sentencing judge made the following relevant findings in relation to the Applicant's subjective circumstances: 1. he was 34 years of age at the time of sentence, and worked in his mother's cleaning business; 2. he had been in a stable relationship with his partner since 2015 and they had plans to marry; 3. he had a number of prior convictions, including for failing to disclose his identity as a driver, possessing unauthorised ammunition, using an unauthorised firearm and wounding with intent to cause grievous bodily harm (the latter two being the offences the subject of the 2016 trial); 4. he continued to maintain his innocence, and there was no evidence that he had remorse or insight into his offending; and 5. although noting that the Applicant had been assessed to have a medium/low risk of reoffending, the sentencing judge said he was "unable to make any meaningful prediction as to the prospects of his rehabilitation".
His Honour then turned to consider the principle of parity. Over approximately two pages of his remarks, to which it will be necessary to return later in these reasons, he addressed considerations of parity by reference to four co-offenders, being Witness A, NA, IT and AH.
In applying the principle of totality, the sentencing judge considered that the sentences to be imposed should partially overlap with the sentences which the Applicant was already serving for the shooting offences. His Honour found that, whilst Counts 1 and 2 were factually related to the shooting offences (in the sense that they were committed in an attempt to pervert the 2016 criminal proceedings), they were discrete offences warranting separate punishment. His Honour fixed the aggregate sentence to commence on 21 November 2020, approximately one year before the Applicant would have been eligible to be released on parole for his prior sentences (on 16 November 2021).
Because the sentences to be imposed would involve a degree of accumulation upon the sentences the Applicant was already serving, the sentencing judge made a finding of special circumstances. As a result, he fixed a ratio of 60% between the non-parole period and the head sentence.

The sentences imposed upon co-offenders

It is convenient at this point to note the sentences imposed upon the four co-offenders referred to by the sentencing judge, being AH, NA, IT and Witness A. As has been explained, AH was sentenced together with the Applicant, having being found guilty after a joint trial: see [4] above. Witness A and IT were sentenced after entering pleas of guilty, while NA entered a guilty plea to one count and was found guilty of another at trial. The remarks on sentence (and agreed statements of facts, where relevant) were before the sentencing judge.
First, Witness A was sentenced by Neilson DCJ on 27 May 2019 for one count of attempting to pervert the course of justice, contrary to s 319 of the Crimes Act, and one count of perjury with intent to procure an acquittal, contrary to s 328 of that Act. The first count related to Witness A's agreement not to give evidence in accordance with his witness statement in exchange for $20,000, while the second count related to the false evidence he gave at the 2016 trial to the effect that the Applicant was not present during the shooting. Both offences carried a maximum penalty of 14 years' imprisonment.
After allowing a 25% discount for entering early guilty pleas, Neilson DCJ imposed a sentence of 1 year and 6 months of imprisonment for the offence against s 319, and 3 years and 9 months of imprisonment for the offence against s 328, with a non-parole period of 1 year and 9 months. The sentences were made wholly concurrent with each other, and were backdated to be partially concurrent with a term of imprisonment already being served by Witness A. The ultimate effect was that the expiry of Witness A's non-parole period was extended from 17 September 2019 to 30 September 2020.
Second, IT was sentenced by Hock DCJ on 6 December 2019 for one count of attempting to pervert the course of justice. That offence related to his role as an intermediary in relaying information from the Applicant to Witness A, and collecting payment for Witness A. After allowing a 15% sentence discount for IT's plea of guilty, Hock DCJ imposed a sentence of 15 months of imprisonment, to be served by way of an intensive correction order.
Third, NA was sentenced for two counts of attempting to pervert the course of justice, contrary to s 319 of the Crimes Act. He was sentenced for each offence at different times and by different judges. The first count, to which he pleaded guilty, related to his role in arranging for Witness A to give false evidence in the 2016 trial. He was sentenced for this count by Neilson DCJ on 24 May 2019, together with two unrelated offences. For the pervert the course of justice offence, after allowing a 25% sentencing discount for NA's guilty plea, his Honour imposed a term of 2 years' imprisonment, with a non-parole period of 12 months.
For the second count, which related to his role in procuring AH to provide the false affidavit, NA was found guilty at trial after entering a plea of not guilty. He was sentenced on 3 July 2020 by the sentencing judge himself, to a term of imprisonment of 2 years and 9 months, with a non-parole period of 1 year and 3 months. Taking into account principles of totality, this sentence was made partially concurrent with those which NA was already serving. It was backdated to commence on 16 December 2019, three months before NA was eligible for parole on his existing sentences (and 1 year and 3 months before the expiration of his term of imprisonment).

The first ground of appeal

By the first ground of appeal, the Applicant complains that the sentencing judge erred in his application of the principle of parity.
The Applicant's submissions in support of the first ground of appeal can be distilled into two discrete strands of argument. First, he contends that the sentencing judge erred in his process of reasoning in relation to the parity principle. This contention was primarily directed to certain submissions made by the Crown Prosecutor in proceedings below, and accepted by the sentencing judge, to the effect that the Applicant should receive a more severe sentence than those imposed upon his co-offenders.
Second, as became clear in the course of oral argument, the Applicant separately argues, albeit faintly, that he has a justifiable sense of grievance arising from a disparity between the sentences imposed upon him and his co-offenders. This strand of argument is not directed specifically to the sentencing judge's process of reasoning, but rather to the disparities in the sentences actually imposed.

The attack on the sentencing judge's process of reasoning

The gravamen of the first contention is that the sentencing judge erred in his treatment of the parity principle by accepting the Crown's submission that, having regard to the relevant conduct and circumstances of the offenders, the Applicant should receive a more severe sentence than was imposed upon his co-offenders. In essence, the Applicant argues that this process of reasoning was impermissible on a number of bases, which are outlined at [48] below.
The Applicant placed considerable emphasis on a particular passage of the Crown's written submissions on sentence, in which it was said that the Applicant: "…should receive a higher sentence than the sentences received by [NA], [IT] and [Witness A], when looking at the relevant criminal conduct, relevant record and other mitigating and aggravating factors." (emphasis added). The Crown's written submissions then included a table setting out the sentences that had already been imposed on the co-offenders NA, IT and Witness A, together with brief submissions about each offender's degree of involvement in the offending by comparison to the Applicant.
It may be observed that the Crown's written submissions on parity appear to have been responsive to a segment of the Applicant's written submissions on sentence, entitled "parity". That segment of the Applicant's written submissions merely set out a number of statements of principle concerning parity, and did not address their application to the sentences imposed upon the Applicant's co-offenders. Nonetheless, it was clear from the Applicant's written submissions on sentence that the principle of parity was raised on his behalf.
In proceedings on sentence, counsel for the Applicant (who did not appear on appeal) said the following about the Crown's written submissions on parity: "[With respect to] principles of parity that the Crown has raised in the written submissions, noting the [Crown's] written submissions, the role assigned to [MO], I cannot make any submission to the contrary. It would be accepted that his objective criminality is at a different level to those of the other co-offenders." In other words, counsel below made no objection to the submission which now forms the basis of this ground of appeal.
In proceedings on sentence, the Crown prosecutor only briefly addressed her written submissions on parity in the following terms: "Your Honour I've already set out the Crown's submission with respect to parity and of course it is the Crown's submission that [MO] sits at the apex of the offending, particularly in relation to count 2. I set out the submissions as to why your Honour would find that the objective criminality and moral culpability of [MO] is higher in relation to his co-offenders for count 1 and count 2."
In his remarks on sentence, although not expressly referring to the Crown's submission above, the sentencing judge said the following: "When [one examines] the relevant conduct of those involved in the joint criminal enterprise to pervert the course of justice in the trial of [MO], being Witness A, NA and IT, the evidence establishes [MO] is at the top of the hierarchy of those involved. Having considered all of the factors considered in the respective cases on sentence of each of the co-offenders I am of the view the sentence to be imposed upon [MO] should be higher than the others to reflect my findings relating to the assessment of the objective gravity of his offending and to reflect his paramount role." (emphasis added)
His Honour then reproduced the table from the Crown submissions, making only minor changes to anonymise the name of a co-offender. That table was as follows: Co-offender Sentences for pervert course of justice Comparison District Court pervert offence 2 years NPP 12 months (25% discount, sentenced with other matters, remorse, contrition) [NA] CCA pervert [NA] pleaded guilty to the District Court pervert offence receiving a discount of 25%. He was sentenced with other public justice offences. He was convicted after trial on the CCA pervert offence. A relevant factor was totality. [NA]'s role was that of an intermediary. 2 years and 9 months [NA]'s role was less than that of either Witness A or [the Applicant]. NPP 1 year 3 months (Convicted after trial, no remorse, totality, finding of special circumstances) [IT] District Court offence This offender's role was limited to that of an intermediary passing on messages to and from Witness A to others. In terms of his role, it was significantly less than the offender [the Applicant]. 15 months to be served by way of ICO (15% for late plea, role of intermediary, no priors) District Court pervert: 1 year and 6 months (25% discount plea of guilty) [Witness A] Perjury to procure an acquittal: This offender's role was significant. Witness A's offending may be considered slightly less than [the Applicant] with whom he had reached agreement. Whilst Witness A was motivated by financial reward, [the Applicant] was motivated to pervert the course of justice to secure his own acquittal AND contemplated financial reward should he successfully sue the NSW police. [The Applicant] sat throughout the entire trial and evidence knowing that the principal witness had been paid off. 3 years 9 months NPP 1 year 9 months (25% for plea of guilty, remorse, totality given previous sentence for drug and robbery offences) Total: 3 years 9 months

Although a key contention of the Applicant's written submissions was that the submission by the Crown extracted at [41] above "should not have been made", counsel for the Applicant properly acknowledged in oral argument that the making of an erroneous submission could not itself give rise to appellable error. Rather, he contended that the sentencing judge effectively adopted the Crown's erroneous submission, and thereby misapplied the principle of parity.
Five attacks on the reasoning of the sentencing judge emerge from the Applicant's submissions, primarily by reference to the passage of his Honour's reasoning extracted at [45] above. They may be summarised as follows: 1. that his Honour "singled out the sentences imposed on co-offenders as a factor to which his Honour applied a proportional or mathematical approach"; 2. that his Honour's reasoning amounted to the acceptance of a submission from the Crown as to the range of available sentences, in a manner inconsistent with Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 (Barbaro); 3. that his Honour invoked the parity principle to "increase the [Applicant's] sentence", in a manner said to be inconsistent with R v Nguyen; R v Nguyen [2010] NSWCCA 331 (Nguyen) and Delaney v The Queen; R v Delaney (2013) 230 A Crim R 581; [2013] NSWCCA 150 (Delaney); 4. that his Honour "limited his consideration of the effect of parity to the objective seriousness of the offence and role, impermissibly ignoring the subjective case of the offender"; and 5. that his Honour failed to consider the effect of the totality principle in his treatment of parity.
It may be observed that the impugned passages of the sentencing judge's remarks refer only to the sentences imposed upon NA, IT and Witness A, and not AH (who was being sentenced simultaneously with the Applicant). No specific complaint was made of the sentencing judge's application of the parity principle in respect of AH.
The first of the submissions outlined at [48(1)] above may be disposed of briefly. The contention that the sentencing judge "applied a proportional or mathematical approach" in his treatment of parity finds no support in the remarks on sentence. The remarks reveal no attempt to fix the Applicant's sentence by increasing the sentences imposed on his co-offenders in mathematical proportion to their relative criminality, moral culpability, or any other particular consideration. To the contrary, the sentencing judge merely said that the Applicant's sentence "should be higher" than those of his co-offenders, having regard to "all the factors" in each case. Similarly, his Honour's statements about the offenders' relative criminality were to the effect that the Applicant's criminality was "higher" than that of AH, and, in the table adopted from the Crown's submissions, that the involvement of other co-offenders was "less", "significantly less" or "slightly less" than that of the Applicant. There is nothing "proportional" or "mathematical" about this process of reasoning.
The highest this submission can be taken is that it is in effect one going to the weight that the sentencing judge placed on the parity principle. In this context, counsel for the Applicant submitted in oral argument that the sentencing judge used parity as "singular factor from which he has reasoned a higher penalty should be imposed rather than putting it into his instinctive synthesis as he ought to have done." Understood in this way, this submission is substantially similar to the third of the submissions advanced under ground 1, and is addressed by the reasoning at [61]-[79] below. In short, the remarks on sentence do not support a conclusion that the sentencing judge gave primacy to parity as a sentencing consideration, used the sentences of the co-offenders as a starting point in determining the Applicant's sentence, or "reasoned up" from the sentences imposed upon the co-offenders.
I turn then to the second submission outlined at [48(2)] above. This submission was centrally concerned with the decision of Barbaro, in which a majority of the High Court held that the making of submissions about the range of appropriate sentences was not an aspect of a prosecutor's duty to the court, and that the practice should cease. The Applicant contended, in essence, that the Crown's submission reproduced at [41] above, to the effect that the Applicant should receive a higher sentence than those imposed upon his co-offenders, amounted to a submission about the range of appropriate sentences of the kind criticised in Barbaro.
The High Court's decision in Barbaro was recently considered by this Court in Anderson v R [2022] NSWCCA 187 at [48]-[50]: "Barbaro v R was an application for leave to appeal by offenders who complained that the judge who sentenced them had declined to receive a submission from the prosecution about what range of sentences she could impose. The applicants relied upon the decision of the majority of the Victorian Court of Appeal in R v MacNeil-Brown (2008) 20 VR 677 [[2008] VSCA 190 at [2]] where it was said that: the making of submissions on sentencing range is an aspect of the duty of the prosecutor to assist the court. The Court granted leave in Barbaro v R but dismissed the appeal unanimously. The plurality said at [23]: To the extent to which MacNeil-Brown stands as authority supporting the practice of counsel for the prosecution providing a submission about the bounds of the available range of sentences, the decision should be overruled. The practice to which MacNeil-Brown has given rise should cease. The practice is wrong in principle. Barbaro v R does not stand for a proposition that if Crown counsel should purport to nominate an available range of sentence, contrary to the High Court's disapproval, the sentencing process would thereby miscarry rendering the imposed penalty liable to be set aside. No subsequent decision has extrapolated the reasoning in Barbaro v R to any such proposition. An extension to that effect would be unsupportable."
As is clear from the above passage (and was conceded by counsel for the Applicant in oral argument), even if this Court were to accept that the Crown's submission was one as to the range of available sentences, it does not necessarily follow that the sentencing discretion was vitiated.
There may well be cases where a sentencing judge has demonstrably allowed the exercise of his or her discretion to be swayed by a submission of the kind contemplated in Barbaro, and where it could be said that, as a result, the sentencing discretion has miscarried. In Matthews v The Queen (2014) 44 VR 280; [2014] VSCA 291 at [19], Warren CJ, Nettle and Redlich JJA expressed the view that this will be the case where it is expressly stated or necessarily implicit in a judge's sentencing remarks that the prosecution's view of the appropriate range of sentences has been taken into account.
For present purposes, however, it is not necessary to consider in what circumstances the making of a Barbaro submission (or its consideration by a sentencing judge) may support a finding of appellable error. That is because I do not accept the Applicant's argument that the Crown's submission at [41] above amounted to a proposed range of available sentences of the kind contemplated in Barbaro.
Barbaro was concerned with submissions advanced by prosecutors to the effect that a sentence disposition would amount to appellable error if it fell outside a certain range. As was explained by French CJ, Hayne, Kiefel and Bell JJ at [26]: "Reference to an 'available range' of sentences derives from the well-known principles in House v The King [[1936] HCA 40; (1936) 55 CLR 499]. The residuary category of error in discretionary judgment identified in House is where the result embodied in the court's order 'is unreasonable or plainly unjust' and the appellate court infers 'that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance'. In the field of sentencing appeals, this kind of error is usually referred to as 'manifest excess' or 'manifest inadequacy'. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences." (footnotes removed)
While the submission at [41] above, taken at face value, might be said to bear the same meaning as a submission that the Applicant's sentence "should be higher than" the fixed numerical duration of the longest of the sentences imposed upon his co-offenders, it is not, in my view, a submission of the kind contemplated by the High Court in Barbaro. As was submitted by Ms Bonnor on behalf of the Crown in oral argument on the appeal, the prosecutor did not propose a numerical range of appropriate sentences, and importantly, no submission was made that a sentence would be manifestly inadequate if it fell below the bounds of any particular range.
Rather, the submission was directed towards the proper use of the sentences imposed on the Applicant's co-offenders, as comparable cases to assist in achieving consistency in sentencing. In this context, it is relevant that, as noted at [42] above, the parity principle had been squarely raised in the Applicant's written submissions on sentence. The impugned Crown submission did not seek to rely upon the sentences of the Applicant's co-offenders as a 'lower bound' of a range of possible sentence dispositions in the Barbaro sense, but rather responded to a defence submission (albeit a rather sparse one) to the effect that the principle of parity might be invoked to assist the Applicant.
As such, the Applicant's second attack on the sentencing judge's application of the parity principle should be rejected.
Turning to the third submission outlined at [48(3)] above, it is convenient to begin by discussing the authorities relied upon in support of that submission, being the decisions of this Court in Nguyen and Delaney. Particular reliance was placed upon the judgment of Simpson J (Hall and Garling JJ agreeing) in Nguyen. In that case, in the course of a Crown appeal against sentence, counsel for the Crown contended that the sentencing judge had erred in finding that a sentence previously imposed upon a co-offender offered no assistance (due to differences in the gravity of the offending and the facts before the sentencing judge). After noting that the co-offender's sentence was a relevant consideration, Simpson J said at [62]: "But neither did its relevance elevate the decision into a binding precedent. It was one, even one important, precedent against which to measure the sentences contemplated by [the sentencing judge]. Parity in sentencing, in the sense discussed in Lowe v The Queen [1984] HCA 46; 154 CLR 606 and Postiglione v The Queen [1997] HCA 26; 189 CLR 295, is not a concept available to the prosecution. A judge cannot be expected to pass a heavier sentence than he or she otherwise would, merely because another judge had, in a related or comparable case, done so: see Steer v R [2000] FCA 462; 171 ALR 463." (emphasis added)
The Applicant also relied upon a passage from the judgment of Hoeben CJ at CL in Delaney at [68]-[69] (Harrison and Beech-Jones JJ agreeing). While the Applicant's written submissions only reproduced a portion of this passage, the full passage is as follows: "The Crown submitted that by reference to the sentence imposed on [the co-offender] by Robison DCJ, it was clear that the appellant's sentence was out of proportion and inadequate in that the punishment for the same offending was not equal. The Crown submitted that as a result the parity principle had been offended. This submission is misconceived. The parity principle is one of amelioration designed to benefit offenders. It was not developed as a means by which the Crown could have sentences increased. It is for this reason that seminal cases such as Lowe v The Queen (1984) 154 CLR 606; 12 A Crim R 408 express the parity principle as follows (Gibbs CJ at 610; 409, see also Mason J at 612; 411, Wilson J at 616; 414 and Dawson J at 623; 419): '3 … It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done …'" (emphasis added)
The first observation that must be made about the statements of principle in Nguyen and Delaney is that they were each made in the considerably different context of a Crown appeal against sentence. In each case, the Crown sought to persuade an appellate court to increase the offender's sentence on appeal, referring to sentences imposed on co-offenders in support of grounds that the respondent's sentence was manifestly inadequate.
This distinction must be borne in mind when making use of Nguyen and Delaney to determine what principles applied to the sentencing judge's use of comparable and related sentences in the present case.
The remarks of Hoeben CJ at CL in Delaney were not directed to the exercise of the sentencing discretion at first instance. When his Honour said, for example, that the parity principle is not "a means by which the Crown could have sentences increased", his Honour was referring to the use of the parity principle to increase sentences on appeal. So much is made clear by the quotation from Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 (Lowe), in which Gibbs CJ discusses the "reason why the court interferes" where there is an unjustified disparity between sentences imposed upon co-offenders.
Nonetheless, it may be accepted that a sentencing judge should not rely upon a sentence previously imposed upon a co-offender to justify the imposition of a sentence that is more severe than that which the sentencing judge otherwise would have imposed. This proposition is supported by a passage from the judgment of Miles and von Doussa JJ in Steer v R (2000) 171 ALR 463; [2000] FCA 462 (Steer), which was cited with approval in Nguyen. There, in considering a Crown appeal against a sentence imposed by a judge of the Supreme Court of the Australian Capital Territory, their Honours said: "The application of the principle of parity is always a difficult matter. It is difficult enough when there are only two co-offenders to be sentenced by one sentencing judge on material before the court in a joint trial and in sentencing proceedings which follow conviction for an offence committed jointly. There are special difficulties where other co-offenders have been sentenced for the same offence by another judge on another occasion on evidentiary material which may (and usually does) differ from that before the later judge. The principle of parity requires that the judge who sentences co-offenders subsequently, should not impose sentences which are so severe when compared with those imposed on the other co-offenders previously, that the sentences give rise to a justified sense of grievance on the part of those sentenced subsequently. On the other hand, the judge who sentences subsequently, cannot be concerned with any sense of grievance on the part of those who have already been sentenced by another judge. It would be wrong for the later judge to impose a more severe sentence than the evidence and circumstances of the case before that judge called for, if that were done for the reason that, on another occasion and before another judge, the previous sentences imposed on co-offenders were considered to be more severe than appeared to be warranted."
This is not to say, however, that a sentencing judge may not have regard to sentences previously imposed on co-offenders, or in comparable cases, including cases where the sentence imposed was less severe than the sentence to be imposed upon the present offender. The principles which guide a sentencing judge's use of comparable and related cases to achieve consistency in sentencing are well-known, and need not be repeated here: see Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [49], [53]-[55]; Barbaro at [40]-[41]; DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (De La Rosa) at [303]-[305]. Indeed, consistency in sentencing, as an aspect of equal justice, is the foundation for the parity principle: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green) at [28]; Lowe at 610.
Of course, the sentences imposed on co-offenders will often be the most useful of comparable sentences, as there will be some similarity in the criminal conduct. This may be particularly the case where, as here, offenders are convicted and sentenced on the basis of involvement in a joint criminal enterprise.
The Applicant accepted on appeal that it was permissible for the sentencing judge to have regard to the previously imposed sentences as part of the process of instinctive synthesis, but not to treat those previous sentences as a matter "increasing the penalty imposed". This submission was put in the following way: "It is appropriate for a sentencing judge to note that they have considered the sentence that they have come to as a result of their instinctive syntheses is higher than those imposed on co-offenders, and the reasons why with reference to the relative differences in the subjective and objective cases. It is also appropriate for a sentencing judge to note the penalties imposed by other judges and/or on other offenders as a matter that feeds into the instinctive synthesis engaged in. What is not available is the reasoning engaged in by His Honour: that a sentence 'should be higher than the others to reflect findings…' This is a different proposition than the proposition that the sentence imposed is higher reflecting other findings. In the context of His Honour reserving judgement for about two weeks and later revising his Remarks, and the urging of the Crown to engage in the process, the plain reading of the paragraph indicated that His Honour treated parity as a matter increasing the penalty imposed." (emphasis in original)
It may be broadly correct to say that a sentencing judge may not treat parity as a discrete factor increasing a penalty to be imposed. This is the corollary of the whole notion of instinctive synthesis in sentencing, and the proposition explained by Miles and Von Doussa JJ in Steer, that a sentencing judge cannot be concerned with any sense of grievance occasioned to a co-offender who has already been sentenced. On the other hand, a sentencing judge may take into account previous sentences imposed on co-offenders in assessing sentencing practice, and may explain why the sentence to be imposed is more severe than other sentences by reference to differences in the relevant conduct and circumstances.
The statements of principle in Steer and Nguyen are directed to the risk that, in passing a sentence, a sentencing judge will permit the discretionary assessment made by a different judge, in relation to a different offender, to usurp his or her own discretionary process of instinctive synthesis. That risk is equally present in any case where a prosecutor seeks to rely upon comparable or related sentences, not only to "reason up from" from a lower sentence, but also to urge the imposition of a similarly severe sentence (or indeed to indicate any kind of yardstick or sentencing pattern by which a sentence should be determined). It is axiomatic that, while sentences imposed in previous cases may provide guidance in achieving consistency in sentencing, a sentencer must make an individual and independent assessment of the particular case before them: De La Rosa at [305].
That is precisely what the sentencing judge did in the present case. In my view, the sentencing judge's remarks reproduced at [45] above should not be understood to mean that his Honour was relying upon the sentences imposed upon co-offenders to justify the imposition of a heavier sentence than he otherwise would have imposed. That is, I am not satisfied that his Honour made an error of the kind contemplated in Steer and Nguyen.
In this regard, undue focus should not be placed upon the sentencing judge's choice of the words "should be" rather than "is" in that passage of his Honour's remarks. Notwithstanding that the sentencing judge reserved his judgment and later revised his formal reasons, the reasons under challenge should not be examined with a fine-tooth comb, but read as a whole and considered fairly: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 444; Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [65]; McClain v R [2011] NSWCCA 191 at [17].
To the extent that a close textual analysis of the passage extracted at [45] above is helpful, it may be observed that the words "should be higher than the others" are qualified by the words "to reflect my findings relating to the assessment of the objective gravity of his offending and to reflect his paramount role." (emphasis added). That is, although his Honour "considered all the factors" on sentence for each of the co-offenders (as he was entitled to do), the statement about the relative severity of the sentences is justified by reference to his assessment of the Applicant's offending. This indicates that the sentencing judge was not "reasoning up" from the sentences previously imposed, but rather his Honour was explaining that he had formed the view that, on the basis of his own assessment of the Applicant's conduct and "paramount role", the sentence to be imposed would inevitably be more severe than those of his co-offenders.
This conclusion is supported by a number of other matters. First, the section of the remarks on sentence addressing the principle of parity came towards the end of the remarks, after the sentencing judge had engaged in a detailed assessment of the facts and objective seriousness of the Applicant's and AH's respective offending, as well as their subjective circumstances, prior criminal convictions, expressions of remorse and prospects of rehabilitation.
Second, in addition to having the remarks on sentence for each of the co-offenders at his disposal, the sentencing judge had presided over a lengthy trial of the Applicant and AH, and had also previously sentenced NA for his role in procuring the false affidavit to be filed in this Court. Accordingly, his Honour was intimately familiar with the details of the criminal scheme conducted by the Applicant, and was well placed to make an independent assessment of the relative criminality and moral culpability of each of its key figures. As in Nguyen, his Honour was "in a good position to appreciate, on the basis of sworn evidence, the roles of the various participants": see at [60].
Third, there is no indication in the remarks on sentence that, had it not been for the sentencing judge's consideration of the parity principle, his Honour would have imposed a sentence which was less than or equal to the longest of the sentences imposed on the co-offenders. Indeed, having regard to the seriousness of the Applicant's offending, his role in the hierarchy of the criminal scheme, his relatively unremarkable subjective case, and the sentence ultimately imposed, it is inherently improbable that such a sentence was in consideration.
Fourth, in circumstances where parity had been raised on the Applicant's behalf in his written submissions on sentence, there was a particular rationale for the sentencing judge to explain why he had decided to fix a sentence which was more severe than that imposed on the Applicant's co-offenders.
I therefore do not accept the submission that the sentencing judge invoked the parity principle impermissibly to increase the sentence otherwise to be imposed on the Applicant.
I now turn to the fourth complaint made by the Applicant about the sentencing judge's application of the parity principle, which was to the effect that his Honour limited his consideration of parity to the Applicant's conduct. In particular, it was contended that his Honour impermissibly ignored the Applicant's subjective case, and failed to consider totality in the course of assessing parity.
There is no basis for concluding that the sentencing judge failed to take into account the Applicant's subjective case in his discussion of the parity principle. It should be observed that, in relation to Witness A, NA and IT, his Honour expressly stated that he had "considered all of the factors considered in the respective cases on sentence of each of the co-offenders", before expressing the view that the sentence imposed on the Applicant should be higher. This necessarily means that his Honour considered the subjective factors of each of the other co-offenders, implicitly by reference to those of the Applicant. There is no basis for thinking that his Honour would have had regard to the subjective features of the co-offenders whilst not also having regard to those subjective matters relied upon by the Applicant in the context of his Honour's consideration of parity.
It is true that, in justifying his statement that the Applicant's sentence would be more severe than those imposed on his co-offenders, the sentencing judge referred only to "the objective gravity of [the Applicant's] offending" and "his role" in the criminal scheme. It does not follow, however, for the reasons stated above, that his Honour did not have regard to the Applicant's subjective circumstances. No doubt his Honour considered the relative objective gravity of the offending as a key consideration driving the differential treatment of the Applicant and his co-offenders. That his Honour reached this view is entirely unsurprising, given that the Applicant orchestrated and stood to benefit the most from the criminal scheme, and that his subjective case was not particularly compelling.
For similar reasons, the fact that the sentencing judge did not expressly refer to the Applicant's subjective circumstances in discussing parity as between the Applicant and AH is not, in the circumstances of this case, demonstrative of error. The parity principle is directed to ensuring that differential treatment of co-offenders is justified by relevant disparities in their conduct and circumstances. Provided that a sentencing judge has otherwise had regard to the various considerations which must be taken into account in sentencing an offender, it will generally be sufficient that, in dealing with the parity principle, a sentencing judge expressly refers to the relevant disparities which bear upon or justify a difference between the sentences to be imposed as between co-offenders.
In many cases, this may require express reference to the differential subjective features of co-offenders, particularly where those features were relied upon by an offender in the context of parity. However, it would place far too stringent a burden upon sentencing judges in busy criminal courts to expect that, in addressing parity, express reference to every feature of each co-offender's case on sentence is made, regardless of whether those features are productive of any material difference for the purposes of the parity principle, or were relied upon as such in submissions on sentence.
In this context, it is relevant that counsel for the Applicant in the proceedings on sentence in the present case made no reference to the Applicant's subjective case in the context of the parity principle, in either written or oral submissions. Further, as I have noted, defence counsel raised no objection to the Crown's written submissions on parity, which addressed only the objective features of each co-offender's case. This course may well have reflected a strategic decision on the part of defence counsel, given the Applicant's relatively unremarkable subjective case.
The Applicant's fifth and final contention in support of his first ground of appeal was to the effect that the sentencing judge erred in failing to have regard to considerations of totality in his Honour's application of the parity principle.
Properly understood, this complaint was that his Honour did not have regard to the way in which totality had been taken into account in imposing the sentences of the co-offenders. The submission proceeded from the basis that, where co-offenders are already serving terms of imprisonment, a sentencing judge applying the parity principle must have regard to the period by which each co-offender's term of imprisonment is extended - that is, to the "net" or "additional" effect of their sentence.
In support of this proposition, the Applicant cited the judgment of Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295 at 302-303; [1997] HCA 26 (Postiglione). In that case, the relevant offending was committed in custody while both the applicant (Postiglione) and his co-offender (Savvas) were serving terms of imprisonment for unrelated offences. The crux of Postiglione's complaint was that the sentence which was imposed on him for the new offending had extended his effective term of imprisonment by some twelve years and two months, while the sentence imposed on Savvas had extended his term of imprisonment by only five years and ten months. By majority, the High Court upheld the appeal (Dawson, Gaudron and Kirby JJ; McHugh and Gummow JJ dissenting).
Importantly for present purposes, Dawson and Gaudron JJ observed (at 302): "If regard is had solely to the head sentences - twenty-five years in the case of Savvas, eighteen years in Postiglione's case - the difference may fairly be regarded as reflecting their different roles in the conspiracies in respect of which they were convicted and Postiglione's subsequent co-operation with police and prosecuting authorities. However, the head sentence is but one component of the sentences. A proper comparison involves a consideration of all components." (emphasis added)
At 303, their Honours continued: "The approach adopted by the Court of Criminal Appeal in this case treats or has the effect of treating the total period to be served in custody and, more particularly, the actual period to be served in consequence of the offences committed as irrelevant to the proportion which the sentences imposed on Postiglione and Savvas should bear to each other. In the circumstances of this case, the real punishment for both Savvas and Postiglione is the extra period which they must spend in prison. Due proportion cannot be determined without taking it into account. However, that is not to say that it is the only matter to be taken into account." (emphasis added). Elaborating on the final sentence of the above extract, their Honours went on to say, "[i]n these circumstances, the proper course… is to have regard to the total effect of the sentences imposed on them, not merely the period by which their prior sentences were increased."
These statements of principle, and the interaction between the principles of totality and parity generally, were discussed more recently in Kelly v R [2017] NSWCCA 256 (Kelly) at [21]-[39] (per Beech-Jones J) and Wood v R [2022] NSWCCA 84 (Wood) at [44]-[56] (per Dhanji J). In both cases, it was noted that there was no clear statement of majority principle in Postiglione, as Kirby J adopted a slightly different approach to Dawson and Gaudron JJ in reaching the same conclusion. As was explained by Beech-Jones J (as he then was) in Kelly at [26]-[27]: "The judgments of the majority [in Postiglione] can be taken as establishing two related principles. First, in comparing two or more sentences for the purposes of applying the parity principle all the component part[s] of the sentences must be compared, not just the head sentence (at 302 per Dawson and Gaudron JJ). Second, the fact that the application of the totality principle has resulted in one offender receiving a lesser sentence for a common offence or receiving extra gaol time for a common offence is not a complete answer to a claim by another offender that he or she has a justifiable sense of grievance (at 304.5 per Dawson and Gaudron JJ; 343 per Kirby J; cf McHugh J at 314 and Gummow J at 326; see Bell v R [2008] NSWCCA 206 at [37] per Price J; 'Bell'). However, it is important to note that in determining whether Postiglione had a justifiable sense of grievance arising from the sentence imposed on Savvas, Kirby J on the one hand and Dawson and Gaudron JJ on the other adopted different approaches. Kirby J found that the difference between the extra time that each of Postiglione and Savvas were due to serve in custody for their common offences was 'offensive to the sense of justice' (at 343). Dawson and Gaudron JJ accepted that a comparison of the 'extra period' served by each of Postiglione and Savvas for the common offence was the 'real punishment' they suffered such that a 'due proportion' between their sentences could not be determined without 'taking it into account'. However, their Honours held that that was not the only matter to consider (at 303.8)."
After some further discussion of the judgment of Dawson and Gaudron JJ in Postiglione, Beech-Jones J continued (at [30]-[33]): "Thus, the conclusion of Dawson and Gaudron JJ that there was a breach of the parity principle was not reached by comparing the extra period in custody that each of Postiglione and Savvas received as a consequence of committing the two conspiracies they entered into with each other. That was considered but only as an indicator that something was askew. Instead, Dawson and Gaudron JJ considered all the components of the sentences they received for the common offences and the sentences they were serving when they were sentenced for the common offences. The ultimate conclusion that there was a breach of the parity principle flowed from the very different application of the totality principle to each offender at the time they were both sentenced for the common offences. Savvas received a far more generous benefit from its application than Postiglione. It was this differential which led to the conclusion that Postiglione had a justifiable sense of grievance. … … it follows that Postiglione is not authority for the general proposition that a justifiable sense of grievance is established by merely identifying a substantial difference between the extra sentences that are served for the commission of a common offence by two equally culpable offenders where either both or one are also imprisoned for other unrelated offences. It was only Kirby J in Postiglione who approached the parity argument in that way and that was only in a context where both offenders were serving sentences for prior unrelated offences. A number of cases in this Court have considered the circumstance under consideration here, namely a claim of a lack of parity between a sentence imposed on a co-offender who was sentenced for multiple offences and received the benefit of the totality principle and another offender who did not, including Bell, Tran v Regina [2006] NSWCCA 266 ('Tran'); Ayik v Regina [2013] NSWCCA 119 ('Ayik') and El-Helou. Consistent with Postiglione in each of these four cases the Court took into 'account' the actual gaol time served by each of the offenders solely referable to the common offence. However, the weight attributed to that factor varied, none of the cases considered that it was determinative and in each case, the Court did not engage in a strict mathematical comparison between the time served by the co-offender that was solely referable to the common offence and the non-parole period imposed on the applicant for leave to appeal (Bell at [40]; Tran at [24]; Ayik at [33] to [36]; El-Helou at [30]). Instead, the Court considered all the components of the sentences that were being served including the sentences being served for unrelated offences committed by the co-offender." (emphasis added)
Later in his reasons, his Honour referred to a passage from El-Helou v R [2014] NSWCCA 209, which concerned a sentence appeal on the basis that the applicant had a justifiable sense of grievance in light of a sentence imposed on a co-offender. In that case, Macfarlan JA said at [30]: "In comparing the sentences imposed upon the appellant and the co-offender regard must be had to the actual period that each is to serve by reason of his commission of the common offence (Postiglione at 301-2, 303 and 343). This does not mean that there should be a simple comparison between the appellant's head sentence of 12 years imprisonment and the additional period of 1 year and 9 months that the co-offender is required to serve by reason of the common offence. Such a 'merely arithmetical comparison' would not be appropriate (Tran v R [2006] NSWCCA 266 at [24] and see Ayik v R [2013] NSWCCA 119 at [33]). Nevertheless, the limited length of the additional sentence imposed upon the co-offender is a significant matter to consider in assessing whether the appellant would have a justifiable sense of grievance by reason of the sentences imposed upon him and the co-offender (see R v Freeman [2005] NSWCCA 460 at [20]-[23]; Bell v R [2008] NSWCCA 206 at [37]-[40])." (emphasis added)
After referring to this passage, Beech-Jones J said at [38]: "…that statement only reflects the effect of Postiglione and, as I have explained, Postiglione only requires that the actual period to be served by each offender for the common offence be 'taken into account'. Such a consideration might suggest that something is askew but it is not determinative." (emphasis added) To similar effect, at [39] his Honour said, "[i]n the end result what must be compared is all the components of the sentence for all the offences that each of the offenders is serving and the circumstances of the common and unrelated offending of the co-offender."
The Applicant's submissions properly acknowledged that the sentencing judge's remarks addressed the issue of totality and, it might be added, did so in some detail. That section of the remarks followed the consideration of the topic of parity. The Applicant submitted that the sentencing judge should have considered totality prior to considering parity but accepted that the sequence in which the topics were addressed in the remarks was not definitive. Rather, the Applicant contended that the sentencing judge's remarks "considered parity in setting the sentence without considering totality in assessing parity."
This argument cannot be accepted. In assessing parity, the sentencing judge indicated that he had taken into account "all of the factors considered in the respective cases on sentence of each of the co-offenders." In that section of the remarks, his Honour set out the table which has been re-produced at [46] above. An examination of that table reveals a number of references to totality in the context of the sentences imposed on Witness A and AH.
The sentence imposed on the Applicant was open to the sentencing judge, and the careful and at times subtle arguments advanced on the Applicant's behalf do not lead to the identification of error in the sentencing exercise. The reality was that the sentence imposed on the Applicant reflected not only the seriousness of his offending and the relativity of the criminality of that offending compared to co-offenders, but also the Applicant's lack of remorse and weak subjective factors. This first aspect of ground 1 must be rejected.

The asserted unjustified disparity in sentences

The second strand of argument advanced under the rubric of the first ground of appeal was to the effect that the disparity between the sentences imposed upon the Applicant and his co-offenders was such as to give rise to a justifiable sense of grievance on the part of the Applicant. This was in a sense a more conventional parity-based argument, which did not rely upon the identification of specific error in the reasoning of the sentencing judge, but rather was directed to the actual disparities between the sentences imposed on the offenders.
This line of argument was not referred to in the Applicant's written submissions on appeal, and was first raised, albeit only briefly, in oral argument. After the hearing on appeal, and in response to this contention, the Crown provided supplementary submissions addressing the circumstances of each co-offender's offending, and the relevant findings made in the various remarks on sentence. Annexed to those submissions was a table summarising various sentencing considerations as they applied to each co-offender.
Counsel for the Applicant provided a brief one-page document in reply to the Crown's supplementary submissions. That document did not dispute or address the Crown's summary of the objective and subjective circumstances of the co-offenders, but drew attention to "the marked disparity in the additional time [the Applicant] is required to serve for his role in the offences vis a vis the additional time his co-offenders were required to serve".
The relevant principles have been restated many times by this Court, and need not be discussed at length. The application of the parity principle in this context was explained by French CJ, Crennan and Kiefel JJ in Green at [28] in the following terms: "The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where 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."
In determining whether a disparity in sentences between co-offenders is justified by differing circumstances, an appellate court must have regard to the discretionary and qualitative nature of the process of drawing relevant distinctions between co-offenders: Green at [32]; Lloyd v R [2017] NSWCCA 303 at [96]. Accordingly, when a question of parity arises on appeal but it is a matter which, as in the present case, has been the subject of attention by the sentencing judge, House v The King error must be established: Daw v R [2017] NSWCCA 327 at [21] per Basten JA. As was said in Afu v R [2017] NSWCCA 246 at [15], "[w]here a sentencing judge recognises the importance of the parity principle and ostensibly gives effect to it, this Court will be cautious to intervene."
Having reviewed the remarks on sentence for each of the co-offenders, this separate strand of the Applicant's argument under ground 1 can be readily rejected. The Applicant's role in the perversion of the course of justice was plainly as the person with the most responsibility and self interest, and this was reflected in the greater sentence imposed on him as compared to his co-offenders. There were also other subjective matters bearing on the sentences imposed on co-offenders, which also contributed to the sentencing differentials. For example, witness A was himself the victim of the shooting; NA had been diagnosed with a number of psychological disorders, which were found to attenuate his moral culpability for at least some of his offending; and AH had a history of alcohol and substance abuse.
To the extent that the Applicant's argument relied upon the concept of the "net" or "additional" terms of imprisonment served by each offender by reason of the present offending, the additional term served by the Applicant does not give rise to any relevant disparity for the purposes of the parity principle. Because his sentence was made concurrent with a term of imprisonment which he was already serving, the practical effect of the sentence was to extend his non-parole period by some 3 years and 3 months (from 16 November 2021 to 15 February 2025), and to extend his total term of imprisonment by some 2 years and 8 months (from 16 March 2025 to 15 November 2027). Having regard to the sentences imposed on each of the co-offenders, and to the periods of concurrency with previous sentences (where applicable), this additional term is not out of proportion to the differences in each offender's conduct and subjective circumstances.
For the reasons I have outlined, I am satisfied that the difference between the Applicant's sentence and those imposed on his co-offenders is capable of being "justified by differences between… the part each has played in the relevant criminal conduct or enterprise": Green at [28]. This conclusion finds further support in a comparison of each offender's subjective case. Having regard to all the circumstances of each offender's case, and bearing in mind the discretionary nature of the sentencing process, I am not satisfied that there is any relevant disparity warranting appellate intervention.

Ground 2

The principles relevant to an appeal against sentence on the grounds of manifest excess were stated by R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill J and N Adams J agreed) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443], as follows: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this Court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
Where an offender has been sentenced by way of an aggregate sentence, the proper approach is that explained by Bathurst CJ in Kerr v R [2016] NSWCCA 218 at [114]: "As R A Hulme J pointed out in JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], the principal focus in the determination of a ground alleging manifest excess in the case of an aggregate sentence will be whether the sentence reflects the total criminality. Further, the indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive."
Counsel for the Applicant relied largely on his written submissions in support of Ground 2, referring to the ground only briefly in oral argument.
In written submissions, the Applicant contended that the aggregate sentence, being 7 years of imprisonment with a non-parole period of 4 years and 3 months, was excessive and indicative of latent error. He also placed reliance on the total effective term of imprisonment which would be served by the Applicant (including the sentences which he was already serving for the underlying shooting offence). That total term is approximately 11 years and 8 months, with a total effective non-parole period of 8 years and 11 months.
The Applicant did not challenge the sentencing judge's assessment of the objective seriousness of the offending, nor did he challenge any of the sentencing judge's findings about the Applicant's subjective circumstances. The crux of the argument in support of Ground 2 was that the Applicant's sentence was excessive by reference to sentences imposed in comparable cases for offences against s 319 of the Crimes Act. Particular reliance was placed upon the two decisions of this Court in Issa v R [2017] NSWCCA 188 (Issa) and PO v R [2020] NSWCCA 129 (PO), in which appeals against sentence were dismissed.
In Issa, the accused had been found guilty of eleven offences, including five counts of intentionally damaging property by means of fire, five counts of doing an act with intent to pervert the course of justice, and one count of recklessly causing grievous bodily harm in company. The perversion of justice offences related to five "firebombing" attacks which the accused had carried out on various properties, with the intention of intimidating former customers who had initiated proceedings against his construction and renovation business in either the District Court or the Consumer Trader and Tenancy Tribunal. The sentencing judge imposed an aggregate sentence of 12 years of imprisonment, with a non-parole period of 9 years. Indicative sentences of 7 or 8 years were indicated for each of the five perversion of justice offences.
In PO, the accused was sentenced after pleading guilty to one count of doing an act with intent to pervert the course of justice. The offence related to attempts by the accused to pervert the course of justice in criminal proceedings against his stepson, by intimidating the carer of a young girl who had made allegations of sexual assault against the accused's stepson. The accused had given a number of documents to the complainant's carer, containing a variety of threats to the carer and indirectly to the young complainant. A sentence of 3 years of imprisonment was imposed on PO, with a non-parole period of 18 months.
It should first be noted that there are constraints on the use of comparable sentences in determining whether a sentence was manifestly excessive. As was said in Barbaro at [41] (in the context of sentencing for federal offences): "…other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect."
Further, there are particular complexities involved in a comparison with the two cases relied upon by the Applicant, which differ in nature from the present appeal in a manner which makes a direct comparison difficult.
First, the means by which the offenders in Issa and PO sought to pervert the course of justice were not directly analogous to the mode of offending in the present case. Both offenders in those cases sought, in different ways, to intimidate parties or witnesses to proceedings in courts and tribunals. In the present case, the Applicant sought to induce two witnesses to give false evidence in criminal proceedings, both at first instance and on appeal, in order to secure an acquittal for a violent offence he had committed.
Second, neither of the offenders in Issa and Po were already serving sentences of imprisonment for other offences. As a result, they did not receive the benefit of a backdated commencement date, as the Applicant did. In this context, the Applicant contended that the aggregate sentence imposed in Issa, being 12 years, should be compared to the totality of the sentences being served by the Applicant - including those which he was already serving for the underlying offences - being 11 years and 8 months. It was submitted that "Issa's total conduct was objectively much worse than the applicant's and yet the totality of their sentences differs only by a few months." The attempt to draw a comparison with the total effective term of imprisonment being served by the Applicant (which comprises sentences that are not the subject of this appeal) illustrates the difficulty of this exercise.
Third, there were significant mitigating factors which operated in favour of the offenders in Issa and PO, particularly those relating to their subjective circumstances. Both had no significant criminal history, whereas the same is not true of the Applicant: see [27] above. PO had entered an early guilty plea, and Issa had entered a guilty plea to a statutory alternative offence to one of the counts for which he was sentenced. Issa was assessed to have reasonable prospects of rehabilitation, and, as was conceded by the Applicant in written submissions, "PO's subjective case was undoubtably much better than the applicant's".
I therefore do not consider the comparable cases relied upon by the Applicant to support the contention that the sentence under appeal was manifestly excessive.
In considering whether the Applicant's sentence was manifestly excessive, I have also taken into account the body of caselaw emphasising the gravity of offences against the judicial process (see above at [22]). As was acknowledged by the sentencing judge, offences of attempting to pervert the course of justice are rightly considered to warrant condign punishment, and the severity of penalties for such offences "reflect[s] the importance of protecting the integrity of the justice system". This is the case regardless of whether the attempt to pervert the course of justice is ultimately successful. To borrow the language of this Court in R v Pearce [2020] NSWCCA 61 at [4]: "As this Court has repeatedly said, an offence of this nature 'strikes at the very heart of the justice system', and the sentences imposed for such offending have not always reflected the seriousness of the conduct: Khoury v R [2011] NSWCCA 118 at [88]; R v Reid [2016] NSWCCA 151 at [45]."
The submission that the sentence imposed was manifestly excessive should be rejected.

Conclusion

The Applicant should be given leave to appeal out of time, and leave to appeal.
For the reasons set out above, however, the appeal should be dismissed.
DAVIES J: I agree with the Chief Justice.
FAGAN J: I agree with the Chief Justice.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2023

Crimes Act 1900(NSW)ss 319, 328

MO v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (17 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (55)

Cited By (1)