Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." (internal references omitted)
39 In both Lowe and Postiglione the co-offenders whose sentences were in question had been charged with identical offences with that of the appellant. Nothing the High Court said was directed towards the application of the parity principle in cases where offenders were charged with different offences carrying different maximum penalties.
40 The decision in Kerr is capable of being read as extending the principle so that it applies even where co-offenders are charged with different offences. I do not wish to be taken as entirely rejecting the proposition that the principle can be so applied, but here, with the extremely wide divergence between the nature of the crimes charged against the co-offender and against the applicant it is difficult, if not impossible, to see how that principle can be applied.
41 The effect of the submissions made on behalf of the applicant (and the decision in Kerr is at least capable of giving them some support) is that the principle of parity in sentencing is broad enough to extend to redressing disparities or discrepancies in the charging process as well as in the sentencing process.
42 In Kerr, there were marked parallels with the present case. The facts suggested that both the applicant and Oliver had been actively involved in the actual assault, and, so far as the facts are recited in the judgment, to a comparable degree. Yet Kerr was charged with a significantly more serious offence than was Oliver. Quite apart from any other differences, which were recognised in the passage quoted in Postiglione as justifying different sentences, that alone imposed demands upon each sentencing judge that were different.
43 In the present case the divergence was even greater. While Colin Wood does not appear actively to have participated in the assault, he was undoubtedly present for the purpose of supporting the applicant. That he was charged only with an accessorial offence is mysterious and unexplained.
44 I do not understand either Lowe or Postiglione to suggest that the parity principle extends to correcting any imbalance in the manner in which co-offenders are charged. I would be very cautious before proposing or adopting any such principle.
45 Counsel who appeared for the applicant in this court urged that the sentencing judge ought to have had regard to the sentence imposed upon Wood. He placed considerable emphasis upon the known facts including what was know to be the participation of Wood in the entirely of the applicant's offence.
46 Wood could not properly have been sentenced on the basis of any fact which suggested he was guilty of participation in the assault - The Queen v De Simoni [1981] HCA 31; 147 CLR 383. Nor has any suggestion to that effect been made, indeed, it was expressly accepted by counsel for the applicant that he could not have been so sentenced.
47 What appears to be suggested on behalf of the applicant is that, because Wood was charged with a more minor offence, then the applicant should also have been sentenced proportionately to the sentence imposed upon him. In my opinion this is a distortion of the parity principle and, if adopted, would give rise to a distortion of the sentencing process. Reliance was also placed upon the decision of this court R v Ziggy Hauser, unreported, 11 December 1997. There, Dunford J, with whom Gleeson CJ and Barr J agreed, said:
"However, a justifiable sense of grievance may arise, not only because all the sentences are not equal but may also arise in cases where, even though the co-accused is sentenced on a different factual basis so as to justify unequal sentences, the sentences are disproportionate to the difference that is appropriate."
48 Again, in that case, both offenders whose sentences were in question had been charged with an identical offence, although the offender whose sentence was relied upon for parity purposes had also been sentenced in relation to a second offence. (Hauser had also been sentenced in respect of other offences, but of a different kind.)
49 As I understand what Dunford J was saying, it was no more than this: that, where it is not appropriate to sentence co-offenders equally by reasons of relevant differences in their circumstances, nevertheless the differences in sentences should properly reflect and be proportionate to the differences in circumstances. There is nothing novel about that proposition.
50 Here, the main reason for the discrepancy in sentences on the two co-offenders derives from the difference in the charges they faced. The applicant may have a sense of grievance, even a legitimate one, about that difference; but it is not a legitimate sense of grievance in the Lowe or Postiglione sense, concerning the sentences imposed; it is a sense of grievance engendered by the prosecutorial decision making process. That is not something over which this court has supervisory jurisdiction, even by the backdoor method of supervising sentencing.
51 In any event, there were other significant relevant differences. No finding was made that either of the offenders was the instigator of the offence, although there are hints that it might have been Colin Wood. Certainly it was the applicant's grievance about the end of his relationship with Belinda Wood that was the precipitant for the offence. It is true, also, that Colin Wood had a relevant criminal record, which the applicant did not. This would ordinarily give rise to a more severe, rather than less severe, sentence. However, Colin Wood had also been sentenced on additional and different charges and the sentence imposed had to have regard to the principle of totality.
52 In my opinion the principles of parity not only do not require, they would not permit, this court to intervene as suggested on behalf of the applicant.