Ngati v R

Court of Criminal Appeal (NSW)|2013-07-15|Before: Hoeben CJ, McCallum J, Schmidt J, Ms P, Callum J

Judgment 1HOEBEN CJ AT CL: I agree with Schmidt J. 2McCALLUM J: I agree with Schmidt J, for substantially the reasons her Honour has stated. As to the fact that the offence to which the applicant ultimately pleaded guilty was a table 1 offence, I would add that I doubt whether a judge of the experience of Berman DCJ would have overlooked that consideration. In my view, his Honour's starting point for the sentence on that charge was high by comparison with those of the co-offenders for the aggravated offence. For that reason, I would respectfully not join in Schmidt J's characterisation of the sentences as entailing considerable leniency. However, considerations of parity were informed in this case by the applicant's separate offending (in both the driving charge and the earlier assault) and the fact that he had committed the present offences whilst on bail. I have not been persuaded that the sentence for the s112(1) offence was manifestly excessive or that any justified sense of grievance should arise when the overall structure of the sentences is taken into account. 3SCHMIDT J: Johnny Ngati pleaded guilty to one offence of break, enter and steal contrary to s 112(1) of the Crimes Act 1900, the maximum penalty for which was 14 years imprisonment and a second police pursuit offence contrary to s 51B(1) of that Act, the maximum penalty for which was 3 years imprisonment. He seeks leave to appeal the sentence imposed for the s 112(1) offence. 4The offences were both committed on 21 September 2011, while the applicant was at liberty on bail in respect of an alleged offence of assault occasioning actual bodily harm. On 5 October 2012, when he was sentenced by Berman DCJ for his further offending, he was serving the sentence imposed upon him for that assault. His non-parole period for that offence was due to expire on 29 October 2012. By application of the principle of totality, his Honour took this into account by fixing 30 April 2012 as the start date for the s 51B(1) offence. In the result this sentence was made concurrent with the sentence imposed for the assault, by some 6 months. 5His Honour also imposed partially concurrent sentences for the two offences for which he sentenced the applicant by imposing:

Grounds of appeal 8The Crown did not oppose the leave sought. 9The grounds of appeal pressed were: 1. failing to give sufficient weight to the applicant's lesser role in the offence 2. failing to give any weight to his contrition 3. failing to give sufficient weight to the parity principle for the break enter offence 4. that the sentence imposed was manifestly excessive.

The entry of the plea 10The applicant originally pleaded not guilty to both the s 51B offence and to a count under s 112(2). His co-offenders both pleaded guilty to s 112(2) offences. That was the aggravated form of the break and enter offence, to which the applicant later pleaded guilty. It was on the second day of the trial, after his Honour raised with the Crown its difficulty in establishing the aggravation alleged, namely that the offence took place whilst the applicant was in company, that the Crown obtained approval to have the indictment amended to include a s 112(1) charge, that removing the circumstance of aggravation. The applicant then entered a plea to that lesser offence, as well as to the s 51B offence. 11Agreed facts were later tendered at the sentencing hearing. The applicant also gave evidence and tendered a psychologist's report.

The circumstances of the offence 12The evidence established that it was in the early hours of the morning of 21 September 2011 that the applicant drove his co-offenders, Peter Ofo and Daniel Sirol, to a Coles supermarket at Illawong in a white Nissan Pintara. At 3 am, Mr Ofo forced entry through a side fire door of the supermarket, using a crowbar. Mr Sirol entered the store with Mr Ofo. They were carrying a large grey and white doona cover and a crowbar. The applicant remained in the vehicle outside. 13An employee saw the co-offenders, who were both wearing balaclavas, enter the store. He called the police. CCTV footage captured the offenders entering the cigarette kiosk area where Mr Ofo used a crowbar to break the locks on a cabinet and Mr Sirol loaded a large quantity of cigarettes worth about $14,000 into the doona cover. They then left the store by the fire exit door and were driven away by the applicant. 14A few minutes later police sighted the vehicle. They activated lights and sirens and attempted to stop the vehicle. The applicant failed to stop. A 65-minute police pursuit ensued. About six other police vehicles became involved. 15During the pursuit the applicant drove through many suburbs in a manner which his Honour found was dangerous to the public. At times he exceeded the speed limit, on one occasion driving at 165 kilometres per hour. He crossed onto the wrong side of the road and drove through seven red traffic control lights. His Honour found that he drove at grossly excessive speed during this pursuit, during which he had risked the lives and safety of many people. 16The applicant lost control of the vehicle on a gravel road in a cul-de-sac, where he was cornered. He then turned back and rammed into a police vehicle, which was stationary at a one lane bridge. He then reversed and rammed into another police vehicle, which had stopped behind. 17The offenders then attempted to leave the vehicle, but all were arrested, with the applicant still in the driver's seat. Mr Sirol was still wearing the balaclava, gloves and other clothing depicted in CCTV footage. Mr Ofo was still wearing gloves and other clothing depicted in that footage. The applicant was wearing bright pink rubber cleaning gloves on both hands. The doona cover containing approximately 820 packets of cigarettes was found in the vehicle, together with a crowbar. 18On arrest the applicant took part in a recorded interview. He denied having any knowledge of the break and enter and also denied being the driver of the vehicle during the police pursuit.

Sentencing remarks 19Berman DCJ noted the circumstances in which the plea had been entered. His Honour considered that the sentence that would otherwise be imposed should be reduced by only a relatively small amount, to reflect the utilitarian value of the plea, given the time it was entered. 20After considering the circumstances of the offences, his Honour turned to consider the applicant's subjective circumstances. He found that the applicant was an extreme example of people appearing before the court, who had had a difficult upbringing. The applicant did not have an opportunity to be brought up with good role models, but was exposed to a lifestyle where committing crimes was commonplace, as was acting violently. He was one of 14 children and was raised by his grandparents, having limited contact with his parents and when he did have such contact, it was not to his benefit. He had been badly beaten by his father and had modelled his life on criminality and violence, believing that committing regular crimes was normal. His Honour accepted that his decision to begin and continue to commit crimes had to be looked at in that light. 21He found that the applicant had a significant criminal history for someone of 20 years of age. He had spent time in juvenile detention and was only able to remain free in the community for a few months, before committing these offences. This was his first time in adult jail. 22In custody he had been able to complete year 10. He was in a relationship and had children. His daughter being taken away from him by DOCS had been a contributing factor to the commission of these offences, that being a time when he began using heroin, by which he was affected when the offences were committed. 23His Honour referred to the evidence that the applicant had given, that since he had been in custody, he had come to understand what he had missed out on in life, by spending his time in custody, and what he needed to do, to stay out of trouble. His Honour accepted that he was genuine in what he had said, but observed that things would not be easy for the applicant and that he had a substantial way to go. For those reasons a finding of special circumstances was made. 24His Honour also accepted that the applicant was a young man when he committed these offences, who did not have the maturity that an adult would. This was taken into account in his favour. 25His Honour also considered the issue of parity, having regard to the remarks of the co-offenders' sentencing judge, Garling DCJ. His Honour concluded that Mr Ofo's criminal history was not quite as bad as that of the applicant. Mr Sirol had no criminal history. 26His Honour noted that the co-offenders both received a 25% discount for an early plea to the aggravated form of the offence which carried a higher maximum penalty of 20 years. His Honour observed: "I have fashioned a sentence in order to ensure that Mr Ngati does not have a justifiable sense of grievance when he compares the sentences I will impose upon him with the sentences imposed upon his co-offenders." 27His Honour concluded that both of the applicant's offences were serious. He had regard to the applicant's manner of driving, the significant numbers of people he had put at risk, given the length of the police pursuit and the way in which he drove during the pursuit, a pursuit which only came to an end after the applicant trapped himself, after which he still continued to drive dangerously, by ramming two police cars in an attempt to get away. His Honour observed that "to say that his driving was seriously criminal is something of an understatement." 28His Honour also found that the break, enter and steal offence was serious. He observed: "He was part of a scheme which involved significant intrusion to the legitimate property rights of the supermarket in which cigarettes were taken. It is a fundamental rule in sentencing that the objective gravity of the crime must be reflected in the sentencing imposed. That fundamental rule is a significant constraint on the leniency that I can offer the offender."

Ground 1 - failing to give sufficient weight to the applicant's lesser role in the offence 29The applicant submitted that his Honour had failed to give apparent consideration to the applicant's relatively minor role, compared to that of his co-offenders, who had planned and executed the robbery, while he was engaged by them at the last moment, in order to drive the getaway car. It was argued that insufficient consideration had been given by his Honour to the fact that the applicant had not taken any part in the robbery itself, that he had been approached to take part in an offence already planned, and that he had been under the influence of heroin, when he made the decision to participate. 30In my view these submissions must be rejected. 31The degree of an offender's participation is a relevant factor to be taken into consideration on sentencing (see Lowe v R [1984] HCA 46; (1984) 154 CLR 606 per Gibbs CJ at 609). Such an assessment is to be approached in the way discussed by Woods CJ at CL in R v Goundar [2001] NSWCCA 198; (2001) A Crim R at [28] - [34]: 30 In Breedon NSWCCA 3 December 1992 this Court considered the case of a similar offender who had been the driver of a motor vehicle and who had been charged with the same offence as the present respondent. That offender received the same sentence as the co-offender who had entered the various premises where the offences had been committed and had there threatened the victim with a weapon. 31 This Court approved the observation of the sentencing judge, when assessing the objective criminality of the offenders, as "being of the same quality" upon the basis that they had involved themselves "in a course of criminal conduct which could be described as a joint criminal enterprise". 32 This does not automatically mean that every participant in such an enterprise shares the same degree of objective criminality. The assessment does, however, begin or should begin with the proposition that each intended the crime and each set out to carry it into effect. 33 On some occasions cause will arise for differentiation between them, for example, if one offender stands out as the obvious ring-leader, or abuses some inside knowledge or connection with the premises to carry the crime into effect, or is the person who actually elects to carry out the threat of violence by using the weapon offensively to cause injury to the victim. 34 The present case, however, was not such a case since the robbery went according to plan, without violence beyond that contemplated and threatened by the presence of the weapon." 32This was a similar situation. On the evidence, his Honour's view that the applicant was involved in "a scheme which involved significant intrusion onto the legitimate property rights of the supermarket in which the cigarettes were taken" was not only open, but correct. The evidence did not leave open the conclusion that his was a minor role in that scheme. To the contrary, its importance was revealed by the agreement that the applicant was to receive one third of the proceeds of the robbery. The applicant's role was a critical one, albeit it was one which the prosecutor finally accepted should be reflected by the lesser form of the s 112 offence. 33On the evidence it was open to his Honour to consider that the fact that the applicant was not much involved in planning, did not reveal lesser objective criminality on his part, than that of his co-offenders (see the discussion in R v Cornwall [2007] NSWCCA 359 at [56]). The assistance and encouragement which he provided his co-offenders was plainly considerable. 34That the applicant was affected by heroin when he decided to participate was also relevant on sentencing, as the applicant submitted. As discussed in Bourke v R [2010] NSWCCA 22; (2010) 199 A Crim R 38 at [26], however: "There was evidence before the sentencing judge which clearly indicated that it was probable that the applicant's intake of alcohol was the most significant cause of the applicant's behaviour. Intoxication, whether by alcohol or drugs may explain an offence but will ordinarily not mitigate the penalty save where the intoxication is the result of an addiction and the original addiction did not involve a free choice. An offender cannot expect a reduction in sentence merely because they have committed an offence while intoxicated: R v Rosenberger (1994) 76 A Crim R 1." 35Here the applicant told the psychologist that he was affected by heroin when he decided to participate in the scheme. The extent to which he was affected by that drug also has to be considered. The evidence was that he not only agreed to participate in the scheme, but he agreed to drive the getaway vehicle. He was plainly then capable of driving, with the result that during the police pursuit, he drove at high speed, for a considerable time, over considerable distances, before being cornered by police. It follows that in this case, the applicant's use of heroin can not be accepted as mitigating the seriousness of this offence.

Ground 2 - His Honour erred in failing to give any weight to the applicant's contrition 36The applicant submitted that his Honour had failed to undertake the important separation of the elements of contrition and the utilitarian value attaching to his plea, when sentencing him. 37It was conceded that the lateness of his plea, albeit to a lesser charge, and the nature of the proceedings meant that the discount given for the utilitarian value of the plea had to fall towards the lower end of the range. It was also accepted that it was always open to the applicant to have earlier offered to plead guilty to the lesser s 112(1) charge, but it was argued that there was no evidence that such an offer would have been accepted by the Crown, had it been sought. It was submitted that it could be inferred that such a plea would not have been accepted, because that was not offered to the co-offenders. 38It was further submitted that the question of remorse was different and ought to have been considered separately. In the absence of any reference to a discount being given for contrition, it ought to be inferred that none had been given. In the result, it would be concluded that the sentence imposed on the applicant was too high. 39In my view these submissions must also be rejected. 40It is settled that the utilitarian value of a delayed plea is less and that the reason for the delay is irrelevant (see R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510 and Nguyen v R [2008] NSWCCA 280). The discount for a plea is reduced even where there has been a plea bargain (see R v Dib [2003] NSWCCA 117 and Ahmad v R [2006] NSWCCA 177). 41Further, the utilitarian discount does not have regard to the strength of the prosecution case (see R v Sutton [2004] NSWCCA 225; (2004) 41 MVR 40), but the extent to which leniency can be afforded on the basis of remorse, does. Consideration must also be given to whether a plea resulted from a recognition of the inevitable (see R v Winchester (1992) 58 A Crim R 345). 42These are all relevant considerations in this case. 43While his Honour did not specify the precise amount of the discount which the applicant received for his plea, the conclusion that the sentence could only be reduced by a relatively small amount, given its limited utilitarian value, was plainly correct. Otherwise, given the sentence actually imposed, the inference that proper regard was not paid by his Honour to the issue of remorse, may not be drawn. 44Remorse is a mitigating factor available to be taken into account in sentencing under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act, only in particular circumstances. It provides: "(i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)" 45No separate discount is given for any expression of remorse. It is rather one of a number of mitigating factors which may taken into account in the general synthesis involved in the overall sentencing exercise (see R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1). 46The applicant was arrested with the two co-offenders, after a long, dangerous police chase. They both entered early pleas to the aggravated version of the s 112 offence. The applicant defended that charge and the s51B(1) charge. It was always open to the applicant to have offered to plead guilty to the lesser charge, as his Honour observed. Instead, he defended both charges. 47Given the strength of the Crown case, conviction on the driving charge was always inevitable. In the circumstances, a plea to that offence and an offer to plead to a s 112(1) offence could have been made at an earlier time than here emerged. The hearing before the jury commenced on 1 August 2012. The plea was entered to the lesser charge the following day. 48It follows that in the circumstances, little weight could be given to the remorse which the applicant finally expressed, by entry of the plea to the offence the subject of this appeal. 49The applicant was interviewed by the psychologist in September. The sentencing hearing took place on 5 October. The applicant gave evidence and the psychologist's report was tendered. 50The applicant himself then gave no evidence as to his remorse. Outlined in the psychologist's report was an account which the applicant had given, that at the time of the offence he was having difficulty functioning, because of his daily heroin use. He was affected by heroin when he decided to participate in the offence. He became involved as the result of the offer of a 'three way split', in order to finance his purchase of more drugs. 51The report referred to the applicant expressing regret for his offending. The psychologist considered this evidenced some maturity and a sense of empathy for his offending behaviour, which according to the applicant, he did not have following earlier offences. In his evidence on sentencing the applicant confirmed the accuracy of the account which he gave to psychologist. He was not cross-examined as to this aspect of the report. 52On all this evidence it was open to his Honour to accept that remorse had been demonstrated. Given the lenient sentence which his Honour imposed, which he explained was constrained by the need to impose a sentence which reflected the objective gravity of this serious offence, it must be inferred that his Honour took proper account of all available mitigating matters, including remorse.

Ground 4 - The sentence was manifestly excessive 53The applicant's case was that the sentence imposed was unreasonable or plainly unjust, so as to warrant this Court's intervention. 54It was submitted that relevant sentencing statistics showed that the sentence fell towards the upper end of the range for s 112(1) offences, but those imposed on the co-offenders fell within the middle of the range for s 112(2) offences. Comparative cases demonstrated that the applicant was dealt with more harshly than offenders in similar cases, given that his offending did not fall into the worst category, but towards the bottom of the range. It was also relevant that it was an offence which could properly have been dealt with in the Local Court. 55I am satisfied that these submissions must be rejected. 56Before the applicant could be re-sentenced, a basis for the opinion that some other sentence than that imposed is warranted in law and should have been passed, must be established (see s 6(3) of the Criminal Appeal Act 1912 and R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [79]). Absent demonstrated error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge, merely because it would have exercised the sentencing discretion in a different way to that which the sentencing Judge exercised that discretion (see Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]). 57Further, before it could be established that the sentence was manifestly excessive, the applicant would have to establish that it was unreasonable or plainly unjust (see Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 325). That was not established. 58That the s 112(1) offence to which the applicant entered the plea on the second day of his trial on the s 112(2) offence could have been dealt with in the Local Court, was not relied on at the sentencing hearing. It is only in rare circumstances that a factor which might operate in mitigation of penalty, which the material led on sentencing reveals may have been overlooked by defence counsel and the sentencing judge, can be raised for the first time on appeal. Further, as also discussed in Zreika v R [2012] NSWCCA 44 at [83]: "It is difficult to see how the possibility of summary disposal lies in this category. In reality, as will be seen, the possibility of summary disposal as a mitigating factor is to be confined to a rare and exceptional set of circumstances where the offender is being sentenced in the District Court for an offence which may be seen as a clear summary offence which ought otherwise have been prosecuted in the Local Court. In such circumstances, it might be thought that the argument is so obvious that defence counsel at first instance will advance a submission in the District Court to that effect. If that does not occur, then this may be a very practical barometer as to whether such an argument was realistically available in the circumstances of the case in the first place." 59Likewise in this case, given the nature and seriousness of the applicant's offence, that it ought to have been prosecuted in the Local Court was an argument which was not realistically available to the applicant, particularly when the circumstances in which he came to be sentenced for the s 112(1) offence in the District Court are considered. 60Neither the sentencing remarks nor the sentence imposed establish that his Honour took into account circumstances of aggravation which would have warranted a conviction for the more serious offence, for which the applicant's co-offenders were sentenced. The case advanced on appeal overlooked the applicant's own explanation of his role in the offenders' scheme, for which the offenders agreed that he would take a one third share of the proceeds of the robbery. 61It is also relevant that the applicant agreed to participate, so that he could fund his further drug taking. In arriving at this sentence his Honour was obliged to consider all of the applicant's conduct relevant to the offence to which he had entered his plea. His Honour was sentencing the applicant in circumstances where he had committed his offence while at liberty on bail. That was an aggravating factor which had to be taken into account in the sentence imposed on the applicant, which was not present in the case if his co-offenders (see s 21A(2)(j) of the 1999 Act). 62On the evidence the conclusion that the co-offenders' offences fell within the mid-range, while that of the applicant fell into the bottom of the range of their respective offending, was simply not open. The comparative cases on which the applicant relied certainly did not support that conclusion. The sentences imposed in those cases do not establish that the sentence imposed on the applicant was manifestly excessive.

Ground 3 - His Honour failed to give sufficient weight to the principle of parity 63The applicant submitted that the sentence imposed did not have necessary regard to the co-offenders' conviction of the more serious s 112(2) offence, which carried a maximum term of 20 years, rather than 14. It was argued that his Honour did not distinguish sufficiently between the offences, given his conclusion that the s 112(1) offence was a 'slightly less serious version' of the offence and in concluding that the applicant had been part of 'the scheme'. 64It was also submitted that his Honour had failed to give consideration to the applicant's relatively minor role in the offence, compared to that of his two co-offenders. It was the other two offenders who had planned and executed the robbery and the applicant who had been engaged by them at the last moment, to drive the getaway car. In dealing with parity, his Honour had not distinguished their roles as he ought to have. 65In the result no or insufficient weight had been given to the fact that the applicant took no part in the robbery itself, did not provide the vehicle, was not involved in the planning, was approached by the co-offenders to take part in the scheme once it was already planned and was under the influence of heroin, when he made the decision on that day to assist. 66It was also submitted that if his Honour had allowed only a 10% discount for the plea, the starting point for this sentence must have been a term of some 46 months, while that for the co-offender Mr Sirol was 48 months and the co-offender Mr Ofo 39 months. They were respectively aged 19, 37 and 27 years. Both Mr Ofo and the applicant were found to have had extensive criminal histories, Mr Ofo's not quite as bad as that of the offender. There was, however, it was submitted, little to distinguish between them. Nor had account been taken of the fact that Mr Ofo had been the product of a sound upbringing, whereas the applicant was the product of an abusive background, with little opportunity to escape from modelled behaviour of criminality and violence. 67In the result it was submitted that the applicant had a justifiable sense of grievance at the sentence imposed. 68In my view this ground of appeal has also not been established. 69A complaint as to parity accepts that the sentence imposed was otherwise appropriate (see England v R; Phanith v R [2009] NSWCCA 274 at [22]; Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [251]). It is for the applicant to demonstrate that the sentence imposed on him has left him with a justifiable sense of grievance. 70In Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462, French CJ, Crennan And Kiefel JJ observed at [31]: "Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may "reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender."[Lowe v The Queen (1984) 154 CLR 606 at 609-610 per Gibbs CJ] The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen [(1984) 154 CLR 606 at 610]: "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." 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 [Postiglione v The Queen (1997) 189 CLR 295 at 323 per Gummow J; at 338 per Kirby J]. 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 [Lowe v The Queen (1984) 154 CLR 606 at 609 per Gibbs CJ]." 71When sentencing the applicant, his Honour considered the sentences imposed on the co-offenders. The s 112(2) offence to which they entered their pleas carries a higher maximum penalty than the offence for which the offender was being sentenced, of 20 rather than 14 years. It also attracts a standard non-parole period of 5 years. Both the maximum penalty and the standard non-parole period had to be taken into account, when the co-offenders were being sentenced. 72In considering parity as between the co-offenders, Garling DCJ considered that they had an equal part in their serious offences. He had regard to the planning involved, that the offence was committed for financial gain, that they fled the scene and that there was an hour-long pursuit. In the result, his Honour considered that both general and specific deterrence were required to be given attention on sentencing. He observed that the difference between them was that Mr Sirol had no criminal record. (Mr Ofo's record was considered by Berman DCJ to be similar to that of the applicant.) Special circumstances were found in both cases. 73Garling JDCJ concluded that no sentence other than imprisonment for a term in excess of 2 years was warranted in each case. The starting point for Mr Sirol's sentence was 3 years and 3 months, reduced by 25% to result in a non-parole period of 1 year and 2 months and a total term of 2 years and 5 months. The starting point for Mr Ofo was 4 years, reduced by 25% to result in a non-parole period of 2 years and a total term of 3 years. 74In dealing with the question of parity when sentencing the applicant, his Honour also took account of the fact that the co-offenders had pleaded guilty to the aggravated from of the s 112 offence, receiving a 25% discount for their plea, as well as their respective personal circumstances, which he referred to. 75Having considered the resulting sentences imposed on the co-offenders, Berman DCJ sentenced the applicant to a non-parole period of 1 year and 6 months, 4 months of which was concurrent with the 1 year fixed term for the police pursuit offence. The total term for the offence was 3 years and 6 months, against the maximum penalty of 14 years. 76In arriving at that sentence, his Honour did not indicate the amount of the discount which he gave the applicant for his very late plea. He was not obliged to do so (see R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 at 419 [160].) That it was as high as 10%, as was submitted for the applicant, seems unlikely in the circumstances. 77Even if it were, the end result of the sentencing exercise was a lenient one, given that only 14 months of the non-parole period for the s 112(1) offence was referable to this offence alone, 4 months being made concurrent with the sentence for the s 51B(1) offence. 78His Honour said he had arrived at this result, having in mind the principle of parity. I can see no error in the conclusion so reached. In my view the sentences imposed do not show either unjustifiable disparity, or an objective basis for any justifiable sense of grievance on the applicant's part. 79Unjustifiable disparity is an infringement of the equal justice principle involving appellable error. Even if, contrary to the view I have reached, it were concluded that such an error had occurred, that would not necessarily lead to this appeal being allowed (see Green at [32]). That is because, as was there explained at [33]: "There is a question whether a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would be regarded as erroneously lenient. In Lowe that question was answered explicitly in the affirmative by Mason J[(1984) 154 CLR 606 at 613-614] and less explicitly but to like effect by Dawson J, with whom Wilson J agreed[(1984) 154 CLR 606 at 623 per Dawson J, Wilson J agreeing at 616. And see R v Diamond (unreported, Court of Criminal Appeal (NSW), 18 February 1993) per Hunt CJ at CL, James J agreeing, which so interpreted the observation by Dawson J]. It has also been answered in the affirmative in a number of cases in the Court of Criminal Appeal of New South Wales[R v Tisalandis [1982] 2 NSWLR 430 at 435 per Street CJ; R v Anastasio (unreported, 21 November 1986) at 3; R v Smith (unreported, 5 December 1986); R v Draper (unreported, Court of Criminal Appeal (NSW), 12 December 1986) at 5 per Street CJ, Hunt and Wood JJ agreeing at 5; R v Diamond (unreported, Court of Criminal Appeal (NSW), 18 February 1993) at 5 per Hunt CJ at CL, James J agreeing at 11; R v Maslen (1995) 79 A Crim R 199 at 207-208 per Hunt CJ at CL, Sully and Smart JJ agreeing at 212.]. On the other hand, as Simpson J correctly pointed out in R v Steele [Unreported, Court of Criminal Appeal (NSW), 17 April 1997 at 8-11, Sheller JA and Grove J agreeing. See also Pecora v The Queen [1980] VR 499 at 503; R v MacGowan (1986) 42 SASR 580 at 583 per King CJ, Mohr and von Doussa JJ agreeing at 584; R v Cox (1991) 55 A Crim R 396 at 401 per Thomas J; R v Reardon (1996) 89 A Crim R 180 at 182 per Gleeson CJ; at 183 per Sully J; cf at 191 per R S Hulme J; R v Djukic [2001] VSCA 226 at [29]-[30] per Vincent JA, Brooking and Phillips JJA agreeing at [1] and [2]; Newburn v The Queen [2004] WASCA 108 at [44] per E M Heenan J, Templeman J agreeing at [1]; R v Hildebrandt (2008) 187 A Crim R 42 at 49-52 [51]-[65] per Dodds-Streeton JA, Ashley JA and Lasry A-JA agreeing at 43 [1] and 56 [93]], the existence of a discretion, where unjustified disparity is shown, to reduce a co-offender's sentence to one which is inadequate does not amount to an obligation to do so. Certainly, the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a level which would be, as Street CJ put it in R v Draper, "an affront to the proper administration of justice." [ R v Draper (unreported, Court of Criminal Appeal (NSW), 12 December 1986) at 5 per Street CJ, Hunt and Wood JJ agreeing at 5; R v Diamond (unreported, Court of Criminal Appeal (NSW), 18 February 1993) at 5-6 per Hunt CJ at CL, James J agreeing at 11; R v McIvor (2002) 136 A Crim R 366 at 371 [10] per Heydon JA, Levine J and Carruthers A-J agreeing at 372 [12] and [13]] Moreover, if the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on appeal to impose one [That proposition seems to have been implicit in the construction placed on s 6(1) of the Sentencing Act 1995 (WA) by Murray J in Goddard v The Queen (1999) 21 WAR 541 at 562 [61]. That sub-section required that "a sentence imposed on an offender must be commensurate with the seriousness of the offence"]. Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences." 80In this case the applicant has already received a lenient sentence for his serious offence. When it is considered that 4 months of the non-parole period imposed for this offence is to be served concurrently with the non-parole period fixed for the s 51A offence, any further reduction of his sentence would plainly result in an inadequate sentence for this offence. It follows that even if it were concluded that an objective basis for a justifiable sense of grievance had been established, any reduction in the sentence imposed could not be granted.

Orders 81The orders I would propose are:

Leave to appeal in relation to grounds 1 and 2 refused.
Leave to appeal in relation to grounds 3 and 4 granted.
Appeal dismissed.

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