R v Chandler; Chandler v R

Judgment 1BATHURST CJ: I agree with Hoeben JA. 2BASTEN JA: The circumstances underlying this application have been fully explained by Hoeben JA, with whose conclusions I agree. I would add the following reasons. 3The principle of parity called in aid by the applicant is not a principle which allows a broad review by an appellate court of the sentences imposed on two persons involved in a single criminal activity, in order to determine whether each is proportionate to the other. Rather, it is one of a number of principles or objectives to be applied by the sentencing judge in determining the appropriate sentence. It is one of those fundamental principles which more readily lend themselves to expression than to practical application: OM v R [2009] NSWCCA 267 at [3]. Being a principle, rather than a rule, it identifies a factor to be weighed in the process of determining the appropriate sentence. It is, in effect, no more than a specific application of the equality principle, in relation to offenders involved in the same criminal activity: Green v The Queen; Quinn v The Queen [2011] HCA 49; 86 ALJR 36 at [28] (French CJ, Crennan and Kiefel JJ); Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610-611 (Mason J); R v Green and Quinn [2010] NSWCCA 313; 207 A Crim R 148 at [3] (Allsop P and McCallum J). 4In Green in the High Court at [105], Bell J noted that "[t]he principle of parity in sentencing, stated by this Court in Lowe v The Queen, applies to the sentencing of co-offenders whose culpability for the offence and whose antecedents are comparable". For that assessment to be carried out, it is preferable that co-offenders be sentenced at one time by the same judge. The sentencing judge will then routinely take into account, and determine, the individual levels of culpability and the antecedents of each offender, so as to achieve sentences which reflect elements of comparability and difference. If, for example, persons involved in the same events are charged with different offences, the range of penalties available will be fed into the weighing process as mandatory, but disparate, considerations. Similarly, despite being involved in the same conduct, each may be sentenced by reference to agreed facts (or facts as found) which differ and may even be inconsistent. Parity does not entail identical outcomes, nor disregard of relevant differences. 5Parity usually becomes an issue only when, for example, co-offenders are sentenced by different judges. The question then is the weight the second judge should give to the sentence imposed by the first. In short, the earlier sentence becomes a mandatory element in the process of assessment to which appropriate weight should be given, depending on all the circumstances. This involves no inflexible rule, breach of which constitutes error, but is merely part of the evaluative exercise to be reviewed under the principles articulated in House v The King [1936] HCA 40; 55 CLR 499. To treat disparity as a form of error in itself is to risk departing from a proper understanding of the sentencing process, as discussed in Markarian v The Queen [2005] HCA 25; 228 CLR 357, one result of which may be to inflict a further level of complexity on the sentencing process. 6A second fallacy apparent from the submissions in this case is that because both the applicant and his co-offender were involved in the same conduct, parity required that they receive broadly similar sentences. Courts act upon findings of fact as agreed by the parties or made by the Court. There are often discrepancies between the facts upon which each offender is sentenced. That was so in the present case. The applicant complained that a much more serious view should be taken of his co-offender's role than that taken by English DCJ, who sentenced the co-offender. That submission may be accepted, but it does not assist the applicant. First, had English DCJ taken a more serious view of the co-offender's conduct, she would no doubt have imposed a greater sentence and the resultant disparity would have been reduced. Secondly, the evidence before English DCJ was indeed quite different from that tendered on the applicant's sentencing. The disparity was justified by the differing findings of their respective culpabilities. 7A second factor explaining the disparity was that the co-offender was charged with lesser offences. In Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540, it was accepted that the parity principle applied in such circumstances, but that the differential charging could give rise to "practical difficulties": at [106]. That is a somewhat artificial way of viewing the issue. The judge sentencing each offender, whether the same judge or different judges, must sentence for the offence for which each offender stands convicted or to which each has pleaded. If one offence bears a lower level of culpability, as reflected in the maximum penalty, that is an important factor to be weighed in the sentencing. It may not be decisive: the same conduct may be a low range example of the more serious offence, but a high range example of the less serious offence. Taking such factors into account is only a "difficulty" if one starts with a presumption of equal outcomes: such a presumption is not in conformity with the process which involves a weighing of different and often conflicting factors. 8In truth, the applicant's complaint was of differential treatment by the prosecuting authority. In terms of broad principle, such a complaint may be valid. Prosecuting authorities should not "play favourites" or treat differentially those who are similarly situated, without justification. It is possible that, in the exercise of a broad power to prevent abuse of process and to ensure the fair administration of justice, a sentencing court may be able to take steps to address such a complaint. But to accept the possible existence of such a power is to say little about its operation in particular circumstances. Thus, for the applicant to assert that his co-offender had received preferential treatment without justification, not only raised unaddressed questions as to how the assertion might be made good, but also an unaddressed question as to how he should benefit from a finding to that effect. In its terms, such a finding would not self-evidently result in him receiving lesser sentences than those warranted by his convictions and pleas, which sentences were not themselves excessive. 9Subject to these additional reasons, I agree with Hoeben JA. 10HOEBEN JA: Offences and sentence Because there is an appeal by the Crown and an application for leave to appeal by the offender, I propose for ease of reference, to refer to the offender as "the applicant". 11The applicant was found guilty after a trial of four offences: Count 1: On 22 March 2009 at Blaxland being armed with an offensive weapon, namely a knife, did rob Stanley Clark, contrary to s 97(1) Crimes Act 1900, for which the maximum penalty is imprisonment for 20 years. Count 2: On 22 March 2009 at Blaxland did drive a motor vehicle knowing the said vehicle had been taken without the consent of the owner, contrary to s 154A(1)(b) Crimes Act 1900, for which the maximum penalty is imprisonment for 5 years. Count 3A: On 22 March 2009 at Cabarita being armed with an offensive weapon, namely a knife, did assault Reg Addison with intent to rob him, contrary to s 97(1) Crimes Act 1900, for which the maximum penalty is imprisonment for 20 years. Count 4: On 22 March 2009 at Cabarita being in company with Susanna Leota-Lu did assault Moira Addison with intent to rob her, contrary to s 97(1) Crimes Act 1900, for which the maximum penalty is imprisonment for 20 years. 12After having been convicted of these offences, the applicant pleaded guilty to a further armed robbery offence on 17 April 2009 at Werrington. The victim was a delivery driver (Dezshun Su Doo). The applicant admitted his guilt to an offence of aggravated carjacking, arising from the same incident, and requested that offence be taken into account on a Form 1. 13The applicant came before Judge Armitage for sentence on 8 November 2011. His Honour sentenced the applicant as follows: Count 3A - Assault with intent to rob whilst armed with an offensive weapon - the applicant was sentenced to a fixed term of 3 years commencing 22 July 2009 and expiring 21 July 2012. Count 4 - Assault with intent to rob whilst in company - the applicant was sentenced to a fixed term of 3 ½ years commencing 22 January 2010 and expiring 21 July 2013. Count 1 - Armed robbery at Blaxland - the applicant was sentenced to a non-parole period of 2 years commencing 22 January 2011 and expiring 22 January 2013 with a balance of term of 2 years expiring 21 January 2015. Count 2 - Driving a conveyance knowing it was taken without consent - the applicant was sentenced to a fixed term of 12 months commencing 22 January 2011 and expiring 21 January 2012. 14For the armed robbery at Werrington, the applicant was sentenced to a non-parole period of 2 ½ years commencing 21 January 2012 and expiring 21 July 2014 with a balance of term of 2 ½ years expiring 21 January 2017. The Form 1 matter of aggravated carjacking was attached to this offence. 15The effective sentence passed by his Honour was imprisonment with an aggregate non-parole period of 5 years commencing 22 July 2009 and expiring 21 July 2014 with a balance of term of 2 ½ years expiring 21 January 2017. 16The Crown has appealed pursuant to s 5D of the Criminal Appeal Act 1912 against the sentences imposed by his Honour on the following grounds. Ground 1 - His Honour erred in his approach to the issue of mental illness rendering each of the individual sentences manifestly inadequate. Ground 2 - His Honour erred in failing to adequately accumulate the sentences leading to a manifestly inadequate overall sentence. Ground 3 - The sentences imposed were manifestly inadequate in terms of individual sentences and overall sentence. 17The applicant seeks leave to appeal from his Honour's sentence on the following grounds: Ground 1 - Contrary to the submission of the Crown, Mr Chandler has a justifiable sense of grievance in light of the disparity between the sentence delivered by Armitage DCJ when compared with that delivered by English DCJ upon his co-offender, Ms Susanna Leota-Lu. Ground 2 - Concepts of "equal justice" should govern the sentencing procedures in New South Wales when issues of parity arise. Ground 3 - The substance of "equal justice" is based on the considerations raised in pars [28] - [34] of the High Court decision in Green v The Queen; Quinn v The Queen [2011] HCA 49 (6 December 2011). Ground 4 - Armitage DCJ failed to discern the anomaly between the leniency which had been extended to Ms Leota-Lu by English DCJ and the failure of the Crown to accept that leniency when sentencing Mr Chandler. Ground 5 - His Honour erred in failing to accept the defence submission that the sentence of Ms Leota-Lu could not be ignored in the sentencing of Mr Chandler. Ground 6 - The Crown prosecutor with the carriage of the matter should have ensured the solicitor who appeared on the sentence of Ms Leota-Lu before English DCJ was instructed to contest the proposition that Ms Leota-Lu was not an active participant in the robberies at Blaxland and Cabarita. Ground 7 - In the face of the Agreed Facts placed before English DCJ, the failure of the Crown to contest the proposition that Ms Leota-Lu was not an active participant gives rise to a justifiable sense of grievance on the part of Mr Chandler. Ground 8 - The concept of prosecutorial discretion cannot be utilised to neutralise the proposition that a convicted person in the position of Mr Chandler cannot have a justified sense of grievance when a fellow participant in a common criminal enterprise is charged with lesser offences. Ground 9 - The concept of prosecutorial discretion is justiciable in circumstances where, on the face of the record, the prosecution has treated co-offenders differently by vigorously prosecuting sentence proceedings against one co-offender while leaving self-serving evidence given by a co-offender unchallenged. Factual background 18The background facts to the Blaxland and Cabarita offences were agreed (ROS 4-7). In relation to the armed robbery offence at Werrington, an agreed set of facts was tendered. At the time of the Blaxland and Cabarita offences, the applicant was subject to a s 9 good behaviour bond. Blaxland offences 19On the afternoon of 22 March 2009 the applicant robbed an elderly gentleman (Stanley Clark) at knifepoint in a car-park at Blaxland. The applicant held a knife with about a 10 cm blade under the throat of Mr Clark and said words to the effect that he would be stabbed if he did not hand over money. The victim handed over his wallet which contained $300, some bank cards and other personal items. The applicant then left the scene in a car that had been stolen some time previously. His girlfriend, Susanna Leota-Lu, was a passenger in the vehicle. 20After the robbery, police were alerted to the existence of the stolen car which was sighted travelling at high speed along the M4. The police engaged in a chase but desisted because of the dangerous manner in which the car was being driven. Cabarita offences 21Later on the afternoon of 22 March 2009 the applicant discarded the stolen car in a car-park at Cabarita. While on foot with his girlfriend in the Cabarita area, he saw an elderly couple (Reg Addison and Moira Addison) opening a garage after driving home. Reg Addison turned around to be confronted by the applicant who was armed with a knife. The applicant demanded his car keys and lunged at him. Mr Addison twisted away from the knife which grazed his side causing a laceration. The applicant continued to wave the knife at Mr Addison and demanded the keys. 22While this was occurring, the applicant's girlfriend demanded that Mrs Addison give the car keys to her. She grabbed Mrs Addison by the shirt and started grappling with her. Mrs Addison broke free and ran to the roadway calling for help. The applicant's girlfriend followed her and grabbed her again. The applicant then walked towards Mrs Addison and struck her in the face, causing her to fall to the ground. Mrs Addison suffered fractures to her nose, which required surgery to reset, and bruising around both her eyes. 23The applicant and his girlfriend were chased from the scene. They returned to the car which they had discarded earlier in the car-park. Werrington offences 24On the evening of 17 April 2009 the victim Dezshun Su Doo (18 years old) was working as a delivery driver for a Chinese restaurant at Werrington and had placed some orders in the car that he used for deliveries. He was approached by the applicant and another unknown man. The applicant grabbed the victim and placed a knife to his throat, demanding his keys and money. 25The applicant took cash, car keys and a mobile phone from the victim. He punched the victim in the nose and upper lip area, causing the victim's nose to bleed. The applicant and the unknown male then jumped into the delivery car and drove away. 26The applicant and his girlfriend were arrested at the applicant's family property in Mudgee on 22 April 2009. Both were refused bail. Remarks on sentence 27His Honour reviewed the applicant's criminal record. The applicant was born in January 1976. Although there were a number of matters on his criminal record, none were as serious as those for which the applicant was to be sentenced. 28The most serious offences were: 1993 common assault; 1995 assault occasioning actual bodily harm and resisting arrest; 1997 malicious wounding; 1998 contravening AVO, shoplifting and resisting an officer in the execution of his duty (2 counts); 1999 assaulting an officer in the execution of his duty (2 counts) and resisting an officer in the execution of his duty; assaulting a person with intent to resist and prevent apprehension; resisting an officer in the execution of his duty. There were two convictions for shoplifting in 2010. 29There was an issue between the Crown and the applicant as to whether, and if so to what extent, the applicant's mental illness had contributed to the commission of these offences. In that regard, the applicant was seen by Dr Ellis, psychiatrist, on 6 November 2010. The applicant told Dr Ellis that he had no recollection of having committed the offences. 30Dr Ellis recorded that the applicant had first seen a psychiatrist at the age of 7. This was for head banging and Attention Deficit Hyperactivity Disorder (ADHD). He was first prescribed anti-depressants at the age of 18. The applicant told Dr Ellis of numerous admissions to psychiatric hospitals from the age of 18. Initially his admissions were for substance abuse, gambling and depression but later admissions were for depression and substance induced psychosis. On one occasion he was involuntarily admitted by the police to the Rozelle Hospital. The applicant had made a number of suicide attempts. There was a long history of scarring himself with razorblades. 31The applicant began drinking alcohol at the age of 16 and smoking cannabis from the age of 18. He was using speed intravenously on a daily basis from 2006 until he went into custody. He had been using heroin while in his 20's, up to the age of 27. 32Dr Ellis in his report gave the following diagnosis: "Axis 1 (Mental Disorders) He would meet criteria for Stimulant and Cannabis Dependence, with significant tolerance and salient use despite negative physical and psychological consequences. He has a history of dependence on opioids and alcohol in addition. He would meet criteria for Adjustment Disorder with Anxious Mood. This may develop into post traumatic stress disorder if symptoms persist in the future. He describes historical treatment for Attention Deficit Hyperactivity Disorder. This disorder is very difficult to diagnose in the presence of concentration altering substance dependence. I would prefer to defer this diagnosis at this point. He does not report any psychotic symptoms currently. I note there is a record of historical Substance Induced Psychosis. He was not able to describe what psychotic symptoms he experienced in the past at this interview. Axis 11 (Personality and Intellectual Function) He describes a history of unstable emotional regulation, difficulties in relationships, impulsive behaviour, and recurrent suicidal and self-mutilatory behaviour. He has an unstable self image and concept. This is consistent with the diagnosis of Personality Disorder. There was a history of Conduct Disordered behaviour in childhood. The Personality Disorder has mixed features of borderline and antisocial traits. There is no evidence for an intellectual disability ... Mental State at Material Time His mental state at the material time is difficult to determine as he reports a complete lack of memory for the period. It is plausible given the amount of substance use reported that he would remain amnestic for some periods of time. Amphetamines may impair the laying down of memory. Highly emotionally charged events may be poorly recorded in memory. It may be that over time his lost memory resolves. He reports that he was continuing treatment for Attention-Deficit Hyperactivity Disorder at this time. The effects of Dexamphetamine are likely to have been overwhelmed by the intravenous methamphetamine use at the time and unlikely to have significantly affected his mental state. It is most likely that the amount of intoxication with amphetamines and cannabis described impaired his ability to restrain impulses, concentrate, solve problems and increase use of aggression. It is possible that he was easily suggestible and easily talked into acting in an aggressive manner to other persons. His underlying personality is one of impaired impulse control compared to the general population and this would likely have been exacerbated by intoxication. His ability to focus and concentrate is possibly worse than the general population. (If his ADHD symptoms persisted to adulthood), and this cognitive performance would have been worsened by intoxication. It is possible that his inability to recall the events is due to an unwillingness to recall, rather than any specific psychopathology. He did not describe any psychotic symptoms (delusions or hallucinations) at the material time or in the months before hand. The description of events in the attached Facts Sheets do not indicate behaviour that is suggestive of psychotic symptoms. It is likely that his ability to form an intention was impaired but not totally deprived by the combination of substance abuse, personality disorder and possible ADHD at the index times. His ability to martial impulses, reflect on decisions, problem solve and restrain anger would likely have been impaired if intoxicated and therefore untreated for his underlying psychiatric conditions. The ability to use those cognitive and emotional skills was not likely however to have been absent. He has significant experience with intoxication with substances, including education regarding the effects of substance use while attending substance use rehabilitation and would have likely been able to foresee the effect of substance use on his mental state prior to engaging in that use." 33His Honour interpreted that report as indicating an impaired ability on the part of the applicant to form an intention and to understand the effects of his actions at the time of his offending. In the opinion of Dr Ellis this was due partly to his intoxication by drugs (which his Honour accepted was not a mitigating factor on sentence) and partly to his underlying mental illness. 34The applicant was also seen by Professor Greenberg, psychiatrist, in September 2011 while he was in custody. His Honour had a copy of Professor Greenberg's report (23 September 2011) before him. The history recorded by Professor Greenberg was similar to that recorded by Dr Ellis, i.e. that the applicant had a chronic life long problem with the use of illicit substances and alcohol. Professor Greenberg took a history of many admissions to private psychiatric clinics, as well as public hospital psychiatric facilities, including The Northside Psychiatric Clinic, St John of God in North Richmond, St Edmonds in Eastwood and the Rozelle Psychiatric Hospital. 35His Honour recorded the diagnosis of Professor Greenberg on p 6 of his report as follows: "Diagnostically Mr Chandler has a history of poly substance dependence associated with significant personality problems (personality disorder). He has a history of Attention Deficit Hyperactivity Disorder as a child and a history of anxiety and depression. Despite his parents' numerous attempts at seeking private and public resources to assist him in addressing his addiction problems and his psychiatric problems, he has had difficulties abstaining from illicit substances and addressing his other personality and lifestyle problems. Cognitively Mr Chandler has the capacity to understand his actions and the rightfulness and wrongfulness of such actions. He continues to suffer from depressive and anxiety symptoms. He is currently under the care of Justice Health Mental Health Services. He is currently receiving antidepressant medication and continues to be monitored for suicide risk. The writer contacted the Mental Health Nurse at the MRRC to inform them about Mr Chandler's threat that if he receives a lengthy sentence he will attempt suicide. At the time of my psychiatric assessment he currently remains on risk intervention procedures with regard to self-harming behaviour." 36On the basis of that expert opinion, his Honour concluded: "I have set out the matters relating to expert opinion in detail in order to make clear the basis upon which I have reached the finding that the offender was in fact substantially impaired by mental illness at the time of his offending, in relation to his ability to restrain the impulse to offend and form an intention to offend with full knowledge of his consequences. ... One very frequently sees cases where an offender is retrospectively diagnosed with a mental condition said to have existed at the time of his offending and said to have contributed to his offending in circumstances where he has never previously been treated or apparently showed any evidence of mental illness. This is not such a case. ... Nevertheless, I ask myself is there any reason why I should not accept Dr Ellis' expert view that the offender's capacity to form an intention to offend or perhaps more correctly to appreciate fully what he was doing in offending was impaired by mental illness, I find no such reason. ... I do find that the offender had impaired capacity to form an intention to offend at the time of the relevant offences albeit not to the extent where a jury could find and did find that such an intention was absent so as to acquit the accused of the offences for which he stood trial." (ROS 17-18) 37Similarly his Honour saw: "... no reason not to accept Dr Greenberg's multiple diagnoses of mental illness, coming as they do in sensibly and moderately argued report commissioned by the Crown. It seems to me that drug intoxication acted on these mental health problems to produce the offending, so that it was caused both by that intoxication and by those mental health problems. I think that is a correct view of the psychiatric evidence in this case." (ROS 19.8 - 20.1) 38His Honour concluded that a custodial sentence might weigh more heavily on the applicant because of his mental illness. In that regard, he referred specifically to the difficulties which the applicant had already experienced in prison and which had been referred to by Professor Greenberg. His Honour found, in addition, that the applicant's mental health problems could not be adequately dealt with while he was in prison and that was a matter which he was entitled to take into account (El Jalkh v R [2011] NSWCCA 236). 39By reference to the matters referred to in R v Hemsley [2004] NSWCCA 228 at [33] - [36] his Honour concluded that the first point of relevance had been established for the reasons set out in the medical reports, i.e. "Mental illness may be relevant on sentence where it contributes to the commission of an offence in a material way. In those circumstances, an offender's moral culpability may be reduced and there may not be the same call for denunciation and punishment warranted and may accordingly be reduced." 40For the same reasons, his Honour made a finding in accordance with the second point of relevance in Hemsley that "mental illness may render the offender an inappropriate vehicle for general deterrence and modify that consideration". In relation to the applicant, his Honour said: "I consider that general deterrence is still a relevant factor upon sentencing in this case, although somewhat less so than would have been the case had mental illness not contributed to the offender's offending." (ROS 21.3) 41His Honour found that the fourth consideration in Hemsley did not apply namely, "a fourth and countervailing consideration may arise, namely the level of danger which the offender presents to the community which may sound in special deterrence". His Honour found "there is no suggestion in the extensive psychiatric evidence as I read it that there is any greater likelihood that the offender will offend again as a result of mental illness" (ROS 21.7). 42His Honour went on to say: "[Professor Greenberg] did not couple these remarks with any suggestion that the offender is more likely to re-offend because of his mental illness although I have no doubt that if his mental health problems are not properly treated, both in gaol and in the community, there is a very significant risk of re-offending. There is no suggestion, however, that this particular offender presents in the sense described in Hemsley by Sperling J, a greater than usual risk of re-offending because of his mental illness unless it is untreated - which I propose to ensure does not occur - so I do not think that factor applies in this case." (ROS 21.9 - 22.3) 43Although neither psychiatrist directed his opinion to the offences at Werrington, his Honour concluded that given the extensive analysis by both doctors and the temporal closeness of those offences to the others, and because of the similarity in circumstances, he should take account of the applicant's mental illness in relation to those offences. This was a finding open to him on the evidence. 44His Honour concluded that his finding of mental illness on the part of the applicant, together with the need for a long period of parole supervision, justified a finding of special circumstances. 45Counsel for the applicant raised the issue of parity with his Honour. He submitted that the sentence received by the applicant's girlfriend, Ms Leota-Lu, should be taken into account when sentencing the applicant. His Honour rejected that submission. 46His Honour rejected the submission for the following reasons. "Mr Berwick submitted that Ms Lu's involvement at Cabarita was immediate and substantial and that is indeed the case as set out in the facts I find on the sentences set out above. Nevertheless it is also true as I observed at the time, that Ms Lu pleaded guilty to a different offence in relation to the Cabarita events as compared with the present offender." (ROS 23.9 - 24.1) "As to parity with Ms Leota-Lu, I observed at this point that the factors contraindicating this were firstly that Ms Leota-Lu got a discount for assistance, though unquantified, secondly that she pleaded guilty at a relatively early stage and received a 20 percent reduction in respect of that, and thirdly that she shares with the offender only the offence of assault with intent to rob Moira Addison. But even in relation to that offence she does not share the element of "in company" with him so it is still a different offence. Ms Leota-Lu's sentencing bundle was exhibit D before me and she was sentenced by her Honour Judge English in this court on 15 September 2011. Count 1 faced by her was that on 22 March 2009 at Blaxland knowing Benjamin Chandler committed the offence of being armed with an offensive weapon, namely a knife, and robbing Stanley Clark. ... she assisted Benjamin Chandler contrary to s 97(1) and s 349 of the Crimes Act. For that she received a fixed term of 10 months imprisonment, commencing 20 October 2009 and expiring 19 August 2010. The second count she faced was that on 22nd March 2009, in Cabarita in the State of New South Wales she assaulted Moira Addison with intent to rob Moira Addison contrary to s 94 of the Crimes Act. For that she received a fixed term of imprisonment of 14 months, commencing 20 April 2010 and expiring 20 June 2011. It was noted those offences had already been served by previous custody. The third count she faced was that on 22nd March 2009 at Cabarita, whilst in the company of Benjamin Chandler, she assaulted Moira Addison thereby occasioning to her actual bodily harm. In respect of that offence she requested that three matters be taken into account on a Form 1, namely being carried in a conveyance knowing it to have been taken without the consent of the owner, and two counts of attempting to obtain a benefit by deception. Those were to be taken into account in respect of the second count in the indictment set out above. In respect of the third count, Ms Leota-Lu received a non-parole period of eleven months commencing 20 October 2010 and expiring 19 September 2011. The fourth count in the indictment to which Ms Leota-Lu pleaded guilty was an unrelated offence which does not require attention here. The factors I have already mentioned, indicating that there is no precise parity with Ms Leota-Lu in respect of the present offender, suggests to me in fact there is little if any parity at all. That which weighs most heavily on my mind is that Ms Leota-Lu received a discount for assistance, though unquantified as is usual. Also significant is the fact that she faced different counts even that in respect of Ms Moira Addison, because although it was otherwise similar, the element of "in company" was not faced by her. I think I should simply say that I've taken her sentences into account on sentence here, but I do not think that they provide me with significant assistance in deciding on an appropriate sentence for the present offender in respect of the offences for which he faces sentence, nor do I think he would be entitled to have a justified sense of grievance as a result of a disparity between his sentences and those of Ms Leota-Lu in relation to the offences he committed with her. The Crown submitted there was no parity at all and in fact I am in essential agreement with that proposition, except that I think I should note the sentences she received as Mr Berwick suggests." (ROS 31.3 - 33.2) 47His Honour then summarised the Crown case and indicated why he was not prepared to accept a number of its submissions. 48The Crown took his Honour to the guideline judgment in R v Henry & Ors [1999] NSWCCA 111; 46 NSWLR 346. By reference to the specific criteria in Henry, the Crown submitted that these were individually more serious offences and that before taking into account considerations of totality, his Honour should consider sentences of 4 - 5 years for each of the robbery and intent to rob offences. The Crown stressed the vulnerability of three of the victims because of their age, the fact that the Blaxland and Cabarita offences were committed while the applicant was subject to a bond and that the Cabarita offences were committed at the home of the victims. 49While generally recognising the force of the Crown's submissions, his Honour found that they did not adequately take account of the applicant's mental illness. His Honour was prepared to accept that in part the applicant's offending was caused by his intoxication by drugs, but said: " ... it does not affect the view that I have already formed that mental illness also played a substantial part in causing the offender's offences, both those for which he stood trial and those at Werrington in which he has pleaded guilty." (ROS 30.5) "This is not a case where I have moderated very substantially the penalty the offender would otherwise face in respect of any of the offences on account of mental illness. It has however transformed it from a case where the top of the Henry guidelines or something above it should still be appropriate, and indeed into one where I have imposed the sentences I have in fact imposed ...." (ROS 30.9) "This is a difficult case because the offender is drug dependent and suffers from mental illness which contributed to his offending, in the view I have taken. The proper approach is I think to moderate one's approach to sentence to a degree, recognising that there is a continuum in relation to mental illness and its contribution to offending, as indeed Dr Ellis suggested, particularly when drug dependence and intoxication, which is not a mitigating factor, applies as well, as it does here. That is the approach I have taken." (ROS 34.9 - 35.1) 50It was on that basis that his Honour imposed the sentences which he did with only limited cumulation. Crown appeal 51It is appropriate to deal with all three grounds of appeal together. In doing so, I do not wish to denigrate the detailed written submissions provided by the Crown. As was fairly conceded by the Crown in oral submissions, however, the real issue in the Crown appeal is whether his Honour gave undue weight to the applicant's mental illness so that both individually and in aggregate, the sentences imposed were manifestly inadequate. 52In making that submission, the Crown accepted that the sentencing exercise undertaken by his Honour was a difficult one. It was not open to his Honour to simply apply the Henry guideline judgment to each offence to which it was relevant. In order to avoid a crushing result, it was inevitable that a substantial level of concurrency would have to occur. The Crown accepted that the psychiatric evidence was such that it was open to his Honour to find that the applicant's mental illness made a substantial contribution to his offending. The Crown also accepted that with multiple offences of this kind, complicated by the effects of mental illness, it was very difficult to determine what was an appropriate range of sentences available to his Honour. 53Even allowing for those concessions, and the effect of the applicant's mental illness, the Crown submitted that the sentences did not adequately reflect the serious objective circumstances of the offences. In particular, the objective circumstances of three of the offences were more serious than those considered in Henry yet this was not reflected in either the individual sentences or the aggregate sentence imposed. In essence, the Crown submitted the sentences were inadequate because they did not reflect the totality of the criminality involved. 54The Crown submitted that even though it could not, except to a limited degree, identify patent error in his Honour's approach, the terms of the sentences, both individually and in aggregate, were indicative of error. The specific error to which the Crown referred was his Honour's finding that adequate treatment for the applicant's mental illness would not be available while he was in custody. 55The difficulty for the Crown is that his Honour made specific findings that the applicant was substantially impaired by mental illness at the time of offending. The nature of the impairment was its adverse effect on the applicant's capacity to form an intention to offend and to correctly appreciate fully what he was doing in offending. Both Dr Ellis and Professor Greenberg diagnosed the applicant as suffering from a number of psychiatric conditions at the time of his offending. There was a solid evidentiary basis for his Honour's findings and it was not submitted that these findings were not open. 56It is also true that the applicant's offending was in part due to his intoxication by drugs and that the effect of his mental illness on his behaviour was exacerbated by that intoxication. It is difficult to disentangle that combination of influences in the sentencing process but it was a task which his Honour had to undertake. 57Previous decisions have provided guidance as to the correct approach in such circumstances. In Henry, Wood CJ at CL said at [253] - [254]: "253 The relevant principle as stated in Letteri by Badgery-Parker J, in a passage adopted by Gleeson CJ in Engert is as follows: "... that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise." 254 The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice." 58That statement of principle was approved by Spigelman CJ (with whom Simpson and Blanch JJ agreed) in R v Israil [2002] NSWCCA 255 at [25] as follows: "25 Furthermore, mental illness may also lead to the conclusion in a particular case that the element of personal deterrence, not just general deterrence, is also entitled to less weight in the sentencing exercise than it may otherwise have because, as the Victorian Court of Appeal put it: "... specific deterrence may be more difficult to achieve and is often not worth pursuing as such." (Tsiaras, supra, at 400) 26 Finally, a custodial sentence may weigh more heavily on a mentally ill person and that may be a material consideration in determining the length of the sentence to be served. (See Tsiaras, supra, at 400). ... 27 Difficulties arise where there is an element of congruence of drug addiction and mental illness, in separating the effect of mental illness, see e.g. R v Alexander (2000) 118 A Crim R 350, esp at [41]-[45]; R v Pavlov [2001] NSWCCA 13 at [46]-[47]. 28 Her Honour made a number of findings of fact in this regard that I have set out above. She identified the mental illness as a relevant factor, both in terms of culpability and also in terms of rehabilitation. These findings were, in my opinion, open to her Honour. The mental illness involved in the present case was of a particularly high order and gave rise to issues of culpability, personal deterrence and general deterrence, as well as rehabilitation. In these circumstances, in my opinion, it was open to her Honour to conclude that a term of imprisonment of two years was appropriate. " 59Statements to similar effect were made by Beazley JA, with whom Howie J agreed, in Regina v Z [2006] NSWCCA 342; 167 A Crim R 436: "48 In circumstances where mental illness is not sufficient to constitute a defence, it remains a relevant consideration in the sentencing process. Typically, its relevance relates to the emphasis that will be given to deterrence: see R v Israil [2002] NSWCCA 255, in which Spigelman CJ noted at [18] and [22] that mental illness may mean that a court will place less emphasis on both specific and general deterrence. In R v Tsiaras [1996] 1 VR 398 at 400 the Victorian Court of Appeal said that "specific deterrence may be more difficult to achieve and is often not worth pursuing as such" where the offender is affected by a serious mental illness. In Israil, Spigelman CJ pointed out, however, that the relevance of mental illness in the sentencing process extends beyond the questions of general and specific deterrence. His Honour said at (23): "To the extent that mental illness explains the offence ... then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law."" 60More recently the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 said: "53 ... Young CJ, in a passage that has been frequently cited, said this: "General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others." In the same case, Lush J explained the reason for the principle in this way: "[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community." 54 The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community." 55 In this case, there was unchallenged evidence of the causal relation between the appellant's retardation and his offending in the reports of Dr Muir and Ms Daniels. The fact that the appellant possessed the superficial understanding of a mentally retarded adult that it was wrong to engage in sexual contact with a child and that he told childish lies in the hope of shifting the blame from himself were not reasons to assess his criminality as significant, much less to use him as a medium by which to deter others from offending." 61As his Honour pointed out, the mental illness from which the applicant suffered at the time of the offending was not something which had been diagnosed for the first time following his arrest and incarceration. The applicant had been subject to mental illness of various types from an early age. This was well documented, including many admissions to psychiatric hospitals. Even though the applicant's mental illness was complicated by his substance abuse, it was open to his Honour to find, as he did, that the mental illness itself had contributed to the offending. 62When his Honour's finding to that effect is taken into account, the significance of the criminality involved in the offences is reduced, as is the importance of general deterrence. Such an approach is in line with the statements of principle set out above. 63There is, of course, the countervailing consideration to which the authorities refer, i.e. the protection of the public. In this case while it is correct to say that the sentence imposed by his Honour is at the bottom of the range of available sentences (to the extent that any appropriate range can be determined given the particular circumstances of the applicant), the aggregate sentence imposed is not insignificant. There are, as Dr Greenberg pointed out, appropriate treatment regimes available for the applicant while serving his sentence and a substantial period of supervision while on parole, has been built into the sentence. 64There is also this consideration. The episodes of offending took place over quite a short time. Apart from one incident many years before, there was nothing in the applicant's criminal history which matched the objective seriousness of these offences. Significantly, in the ten years leading up to these offences, the applicant's involvement with the criminal law had been sporadic and relatively minor. 65In the circumstances, it was clearly open to his Honour to be satisfied that the protection of the public did not require the imposition of a longer aggregate sentence. 66The Crown, in its submissions, did identify an error in his Honour's analysis of the facts. It was incorrect for his Honour to say that the applicant would not receive adequate treatment while he was in custody. The only evidence on the subject was that of Professor Greenberg and it was that adequate treatment was available for him. The reasoning behind his Honour's conclusion in that regard is obvious, i.e. during his time in custody leading up to the sentence proceedings, the applicant had not done well. Nevertheless, his Honour was not justified in making the specific finding which he did. 67Although that error has been identified, it is not an error of the kind which would justify the intervention of this Court so as to re-sentence the applicant. 68The conclusion I have reached is that the sentences passed by his Honour, both individually and in aggregate, although being very much towards the bottom of the range, were open to him. This is so because of the findings which his Honour made as to the applicant's mental illness. On the particular facts of this case, I am not satisfied that latent error has occurred so that the sentences imposed by his Honour should be regarded as manifestly inadequate. Accordingly, I would dismiss the Crown appeal. Applicant's appeal 69Before examining the applicant's submissions, it is necessary to set out the offences with which Ms Leota-Lu was charged, the findings which were made in her sentence proceedings and the sentences which she received. 70Ms Leota-Lu was charged with the following offences: Count 1 - On 5 March 2009 did demand by force from Storm Hayden a mobile phone with intent to steal it, contrary to s 99 Crimes Act 1900, for which the maximum penalty is imprisonment for 10 years. Count 2 - On 22 March 2009 at Blaxland knowing Benjamin Chandler to have committed the offence of being armed with a knife and robbing Stanley Clark of his wallet, did assist the said Benjamin Chandler, contrary to s 97(1) and s 349 Crimes Act 1900, for which the maximum penalty is imprisonment for 14 years. Count 3 - On 22 March 2009 at Cabarita did assault Moira Addison with intent to rob her, contrary to s 94 Crimes Act 1900, for which the maximum penalty is imprisonment for 14 years. Count 4 - On 22 March 2009 at Cabarita whilst in the company of Benjamin Chandler did assault Moira Addison thereby occasioning to her actual bodily harm, contrary to s 59(2) Crimes Act 1900, for which the maximum penalty is imprisonment for 7 years. 71Ms Leota-Lu asked the court to take into account three matters on a Form 1 - being carried in a conveyance knowing it was taken without the consent of the owner and two counts of attempting to obtain a benefit by deception. Those two counts related to an attempt to use credit cards taken from Mr Clark. 72The Agreed Facts were the same as set out for the applicant, except that in the case of the robbery of Mr Clark, Ms Leota-Lu while seated in the vehicle said words to the effect "Hurry up, take the whole bag". The factual background to Count 1 involved Ms Leota-Lu demanding that Ms Hayden hand over her phone and when she refused, attempting to grab the phone from her grasp. When Ms Hayden walked away, Ms Leota-Lu followed her and pushed her in the shoulder and grabbed her hair so that a struggle ensued until broken up by two of Ms Hayden's friends. 73Ms Leota-Lu was sentenced as follows: Count 1 - A fixed term of imprisonment for 10 months commencing 20 October 2009 and expiring 19 August 2010. Count 2 - A fixed term of imprisonment for 14 months commencing 20 April 2010 and expiring 19 June 2011. Count 3 - Imprisonment with a non-parole period of 11 months commencing 20 October 2010 and expiring 19 September 2011, with a balance of term of 13 months expiring on 19 October 2012. Count 4 - Imprisonment with a non-parole period of 10 months commencing 20 October 2010 and expiring 19 August 2011 with a balance of term of 4 months, expiring 19 December 2011. The aggregate sentence was imprisonment with a non-parole period of 1 year and 11 months, commencing 20 October 2009 with a balance of term of 1 year and 1 month, expiring 19 October 2012. 74Ms Leota-Lu pleaded guilty to the offences. She gave evidence at the sentence proceedings. English DCJ handed down sentence on 15 September 2011. Judge English made the following specific findings concerning Ms Leota-Lu: (i) She was aged 25 at the time of sentencing and had a lengthy criminal record. (ii) She had a disrupted childhood. She was born in New Zealand but when the family came to Australia, she was a victim of child sexual assault and physical abuse. She returned to New Zealand under the care of her grandparents for her own safety. She became addicted to drugs and alcohol at an early age. (iii) Her relationship with the applicant was violent. At the time of her arrest, she was observed to have injuries requiring hospital treatment following an assault upon her by the applicant. (iv) At the time of the robbery at Blaxland, she was unaware that the applicant used a knife to demand money from Mr Clark and she attempted to take money from the ATM using Mr Clark's card because the applicant had threatened her. (v) She was prepared to assist the police in the proceedings against the applicant, but ultimately her assistance was not required. (vi) In relation to the Blaxland offence, her Honour found: "I find that her role was limited. There is certainly no evidence to suggest she was involved in the planning of the robbery, indeed her unchallenged evidence is to the contrary as I have said she was not the driver of the get away car and nor did she dispose of the knife used. Her moral culpability therefore I find falls towards the lower end of the scale." (ROS 10.8) "Clearly in respect of the accessory after the fact at Blaxland, the offender was acting under a degree of duress. She was fearful of her co-offender as she had suffered violence at his hands previously. She says she was told by the co-offender to stay put and she did so." (ROS 13.1) (vii) In relation to the Cabarita offence, her Honour found: "There was clearly no planning on her part although she willingly engaged in the assault upon the older woman and facilitated the assault occasioning actual bodily harm committed by Chandler resulting in quite serious injury for an older person. It was I find a spontaneous offence on her part, rather than one involving planning or the targeting of the victims. It did not involve the use of a weapon and they are matters which reduce the seriousness of the offence committed." (ROS 11.7) (viii) Her Honour allowed a 20 percent discount to Ms Leota-Lu for her pleas of guilty and a further 20 percent for her assistance to the authorities (ROS 12.1). (ix) Her Honour made the following findings as to health issues: "I find she was someone suffering from borderline personality disorder as diagnosed by Dr Richard Furst, stemming from her unresolved issues arising out of her childhood, making her more vulnerable to the likes of her co-offender. I find she was someone who coped poorly with emotional stress and who was self-medicating on illicit substances. I find the reason she engaged in this type of criminal behaviour was to obtain funds to support her habit." (ROS 12.6) (x) In relation to parity, her Honour said: "The issue of parity does not arise her co-offender stood trial and was found guilty after trial. She had entered pleas of guilty and she is entitled to a discount for her assistance in addition to the discount for her pleas. I find on the facts before me she was morally less culpable in the offences than her co-offender in any event." (ROS 15.5) 75It is against that background that the applicant's submissions have to be considered. It would be fair to say that the grounds of appeal and the submissions are novel. 76As a start point, the applicant submits that this Court should not only reject the findings of English DCJ in relation Ms Leota-Lu but should critically analyse the evidence which was before her Honour and determine for itself whether her Honour's findings were open and if this Court concluded that such findings were not open, to make its own findings. 77The applicant submitted that "Judge English's analysis of Ms Leota-Lu's situation was manifestly inadequate" (AWS 5) and "Her Honour has essentially accepted the proposition Ms Leota-Lu was an unwilling participant in both these robberies. That proposition cannot stand in the face of the objectively considered realities" (AWS 9). The "objectively considered realities" were not identified, but would seem to comprise an interpretation of the facts which favoured the applicant. 78One only has to follow through the implications of this submission for its erroneous basis and impracticality to become obvious. 79As was stated by the plurality in the High Court in Green v The Queen; Quinn v The Queen [2011] HCA 49, 86 ALJR 36, the principle of parity is an illustration of "equal justice". On that issue their Honours said: "28 ... [Equal justice] applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen: "Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect." Consistency in the punishment of offences against the criminal law is "a reflection of the notion of equal justice" and "is a fundamental element in any rational and fair system of criminal justice". It finds expression in the "parity principle" which requires that like offenders should be treated in a like manner. As with the norm of "equal justice", which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances." 80Findings were made in respect of Ms Leota-Lu after a hearing in which she was represented as was the Crown. Evidence was given and the findings made by English DCJ were based on that evidence. The sentence imposed by her Honour was based on those findings. In order to determine whether the parity principle applies, it is necessary to not only consider the factual background to the offences and the charges which were brought against the applicant and Ms Leota-Lu, but to also have regard to the findings made in each case by the sentencing judge. It does not involve a process by the later sentencing judge or this Court of going behind the findings to assess whether, and if so to what extent, those findings were available. 81The practical difficulties in such an exercise are substantial. It would involve the later sentencing hearing becoming a de facto appeal with respect to the earlier sentencing hearing. It would involve an analysis of all of the evidence and submissions in that earlier hearing. That exercise would take place without there necessarily being any contradictor in respect of the findings made in the earlier sentencing proceedings. The exercise becomes even more artificial if oral evidence was given in the earlier proceedings and, as happened here, credit findings were made by the first sentencing judge. There are other practical difficulties, but it is not necessary to enumerate them further. Suffice it to say that there are sound reasons why such an approach in relation to the principle of parity has not previously been adopted. 82I would reject that preliminary submission. 83Apart from the sentence imposed by his Honour, the other bases for the applicant's "justifiable sense of grievance" are: (i) That Ms Leota-Lu could have been charged with the same offences as the applicant. (ii) There was a failure by the Crown to properly cross-examine and challenge Ms Leota-Lu in her sentence hearing, which in turn led to a failure on the part of the sentencing judge to properly assess her culpability for the offences she committed with the applicant. 84I have already dealt with the second of those propositions. While the applicant may well have a sense of grievance in relation to how the Crown case was presented against Ms Leota-Lu, that sense of "grievance" is not justified, the test being an objective one (Green at [31]). 85It is the first of those two propositions which was substantially developed by the applicant in his written submissions and in argument. Those submissions can be summarised as follows: (A) There is an inconsistency between Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540 and R v Kerr [2003] NSWCCA 234. The inconsistency was said to be that Jimmy held that "one cannot go behind the exercise of a prosecutorial discretion to examine parity of treatment in regard to co-offenders who, although charged with different offences, are at least broadly equivalent in culpability". It was submitted that Kerr held that the whole of the circumstances leading to disparity needed to be examined and that the policy behind the parity principle could not be avoided by a prosecutor laying different charges. (B) The exercise of the Director of Public Prosecutions' discretion is now based on statute, not prerogative and should be amenable to judicial review in the same way as any other administrative decision. Thus the prosecutorial discretion should no longer count as a factor weighing in favour of the position in Jimmy. (C) The High Court's emphasis in Green on substance rather than form favours the approach in Kerr rather than that in Jimmy. (D) Comments to the contrary in Green at [30] are not binding on intermediate appellate courts because they were not "closely considered dicta" (Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89). 86In order to better understand the applicant's submissions, the relevant paragraph of the judgment of the plurality in Green needs to be set out: "30 In Lowe v The Queen and in Postiglione v the Queen, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged." 87Interesting though the issues raised by the applicant may be, and while I am of the view that the applicant's submission involves a misreading of par [30] of Green, there is another more basal difficulty confronting the applicant. It is this. The parity principle simply does not arise. This is not an appropriate case in which to consider the issues raised by the applicant. 88A fundamental difference between the position of Ms Leota-Lu and the applicant is that he went to trial in relation to four of the offences for which he was sentenced, whereas she pleaded guilty to her offences and agreed to provide assistance to the authorities. She thereby became entitled to a 40 percent discount in her sentences. When one has regard to that discount, the start point for the aggregate sentence imposed on Ms Leota-Lu was a head sentence of 5 years, with a non-parole period of 3 years and 2 months. Given the difference in the offences with which they were charged, a comparison of that sentence with the sentence imposed on the applicant does not indicate a significant disparity. 89When one then takes into account the findings of Judge English that Ms Leota-Lu was acting under duress in relation to the Blaxland offence, and that her culpability in relation to both the Blaxland and Cabarita offences was less than that of the applicant, and that psychologically she was a vulnerable person, the basis for the difference in sentences becomes obvious. 90Even without taking into account the findings in favour of Ms Leota-Lu by Judge English, the objective circumstances of the offences would inevitably involve greater culpability on the part of the applicant. He was the active party at Blaxland while Ms Leota-Lu sat in the car. He was the person who made the threats with the knife at Blaxland. At Cabarita, he was the person with the knife who slashed Mr Addison and who subsequently punched Mrs Addison so severely that he broke her nose. 91Apart from the fact that the applicant was charged with significantly more serious offences than Ms Leota-Lu which carried larger maximum penalties, he was also sentenced for a serious offence which did not involve Ms Leota-Lu. That offence was the armed robbery at Werrington to which was attached the carjacking offence by way of a Form 1. There are accordingly quite significant factual and circumstantial differences between the criminality of the applicant and that of Ms Leota-Lu. 92Once one takes into account those matters together with the discounts which Ms Leota-Lu received, and keeping in mind that the test for a justifiable sense of grievance is an objective one, there is simply no basis for the applicant having a justifiable sense of grievance. That being so, there is no basis for the application of the parity principle. 93While the questions posed by the applicant in his submissions are interesting, they are moot and do not arise on the facts of this case. 94The genesis of the applicant's sense of grievance is that Ms Leota-Lu and he were sentenced by different judges. This Court and other appellate courts have, on a number of occasions, emphasised the benefits which accrue from co-offenders being sentenced by the same judge. In R v Nguyen, R v Pham [2010] NSWCCA 238, 205 A Crim R 106 Johnson J, with whom Macfarlan JA and RA Hulme J agreed, said: "13 Before embarking upon the substance of the appeals, it is appropriate to observe that these cases illustrate the strong desirability of sentencing proceedings concerning co-offenders going ahead before the same Judge, and preferably at the same time. 14 Separate hearings resulted before different Judges because application for an adjournment was made on 16 October 2009 by counsel for Ms Pham. ... 19 The practical consequences of the separation of the proceedings included the making of submissions by counsel for the co-offenders that the other offender had, in some respects, played a more significant part in the enterprise. It was left to the two sentencing Judges, following separate hearings, to make findings upon the basis of the evidence before that Judge. 20 It is, at the least, highly desirable that co-offenders appear for sentence before the same Judge, preferably at the same time. This is especially so when submissions may be made on behalf of one offender which seek to compare and contrast the role of that offender as against the co-offender, as an issue bearing upon an assessment of the objective seriousness of the relevant offences. 21 These observations are not intended to serve as criticism of the sentencing Judges in these cases. Their Honours proceeded to hear and determine the matters on the appointed hearing dates. Counsel for the relevant parties did not urge the Court to proceed only by way of a joint hearing of the sentencing proceedings before the same Judge." 95In Dwayhi v R; Bechara v R [2011] NSWCCA 67; 205 A Crim R 274 Johnson J, with whom Whealy JA and Hidden J agreed) said on the same subject: "32 It will be apparent from what has been said so far that each of the Applicant Dwayhi, the Applicant Bechara and Kertebani came before different sentencing Judges. The Applicant Dwayhi was sentenced in 2008. The Applicant Bechara was convicted after trial before a different Judge in 2009. Kertebani pleaded guilty before yet another Judge and was sentenced in 2010. 33 Different courts have emphasised the desirability of related offenders appearing for sentence at the same time before the same Judge, and the problems which may arise where that practice is not followed. 34 In Lowe v The Queen [1984] HCA 46; 154 CLR 606, Brennan J said at 617 that to "facilitate the comparison of conduct and antecedents it is desirable that, where practicable, co-offenders be sentenced by the same judge at the same time" . 35 In Postiglione v The Queen , Gummow J, at 320, referred to Brennan J's comment and, after mentioning the facts, observed that: "... this appeal does more than illustrate the problem that can arise in applying the parity principle to co-offenders where they are sentenced by different judges taking different views as to the relevant culpability of the two offenders in respect of those offences". 36 Dawson J said in Lowe v The Queen at 622: "No explanation was given to us or, apparently, to the Court of Criminal Appeal of the reason why the applicant and Smith entered their pleas before different judges at different times. The result was that, although they were co-offenders, they fell to be sentenced by different judges. Such a situation always carries with it a risk that there will be an unwarranted disparity between the sentences imposed and is to be avoided if at all possible. If it cannot be avoided, then at least the judge imposing the later sentence should inform himself of the sentence already imposed and the circumstances in which it was imposed. I hasten to say that Thomas J was so informed in this case." 37 In R v Mercieca [2004] VSCA 170, Winneke P observed at [6] that the sentencing of co-offenders by different judges "creates the potential for differing views being taken by different judges of sentencing facts which are common to all co-offenders" . 38 In R v Rodden [2005] VSCA 24, Vincent JA, at [28], stated succinctly the problems arising in this context: "Of course, it would have been more satisfactory if all of the persons involved in this matter had been tried and/or sentenced at the same time, and certainly by the same judge. This case demonstrates the kinds of tensions that can appear to arise in the criminal justice system when this does not occur. When a situation arises in which co-offenders are dealt with separately, there may and often are differences in the substratum of facts upon which the different sentencing judges act and the impressions formed by them with respect to the relative roles, levels of responsibility and prospects of rehabilitation of the individuals involved. This, of course, would flow, in part, from the different emphases which can be expected to be placed on aspects of the offending behaviour and the circumstances of the offenders concerned." ... 44 It is necessary for sentencing Courts and prosecutorial bodies to take steps to ensure, so far as it is reasonably possible, that related offenders are sentenced by the same Judge, and preferably at the same time following a single sentencing hearing. To reinforce this message, creation of relevant Practice Notes (by the Courts) and amendment to prosecution guidelines (by the Commonwealth and New South Wales Directors of Public Prosecutions) may be considered appropriate to give effect to the statements of Courts referred to above. 45 It ought be appropriate, as well, for sentencing and appellate courts to enquire of counsel for an offender, who seeks to rely upon the parity principle, as to the steps taken by that offender or his legal representatives to ensure that he or she was sentenced by the same Judge, and at the same time, as any related offender, if the case is one where there were different sentencing judges." 96This Court is, of course, sympathetic to the pressures affecting sentencing judges. What is preferable may not always be possible. Listing arrangements have to have regard to the availability of particular judges, illness and the need for sentencing proceedings to be expeditiously dealt with. Nevertheless, the issues which were sought to be raised in this case and which have certainly arisen in other cases involving the parity principle, would occur much less frequently if greater efforts were made to have co-offenders sentenced by the same judge and where appropriate, at the same time. 97For the above reasons, I have concluded that Armitage DCJ was not obliged to apply the parity principle by reference to the sentences imposed on Ms Leota-Lu. There were important distinguishing features between the criminal responsibility of Ms Leota-Lu and that of the applicant. This is apart from the fact that the applicant was charged with more serious offences, including one serious offence with which Ms Leota-Lu had no involvement. In all the circumstances, there was no basis for the applicant having a justified sense of grievance. 98I would grant leave to appeal to the applicant, but I would dismiss the appeal. 99I propose the following orders: (a) Crown appeal dismissed. (b) Grant leave to appeal to the applicant but dismiss the appeal. 100McCLELLAN CJ at CL: I agree with Hoeben JA. 101JOHNSON J: I agree with Hoeben JA.