R v Kelly [2005] NSWCCA 280 | Case summary

This statement has been adopted recently by this Court with respect to the protection of citizens who use public transport late in the evening, thereby placing themselves in a position of some vulnerability: R Ibrahimi [2005] NSWCCA 153 at paragraphs 22-24. Similar considerations apply to the present case. 7 On their face, the sentences imposed by Delaney DCJ were reasonable and were not excessive. 8 On 23 March 2005, Ellis DCJ sentenced Rebecca Hookey, the co-offender. As Rothman J has stated, the sentence imposed by Ellis DCJ was more lenient than that imposed upon the Applicant. It is that discrepancy which gives rise to the principal argument advanced by the Applicant in this case. The Parity Principle 9 The Applicant submits that she has a justifiable sense of grievance in view of the lesser terms of imprisonment imposed on the co-offender. 10 The parity principle is capable of application in favour of the first of two or more co-offenders who were sentenced at different times: Jones v The Queen [1993] 67 ALJR 376 at 377. Accordingly, it is open to the Applicant to invoke the parity principle although she was sentenced first in time in this case. 11 The elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community - the issue is whether the particular sense of grievance or injustice is a legitimate one: Lowe v The Queen (1984) 154 CLR 606 at 611 per Mason J. The test for determining the legitimacy of a sense of grievance is objective not subjective. What has to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved, but that a reasonable mind looking overall at what has happened would see that the offender's grievance is justified: R v Doggett (Court of Criminal Appeal, 24 March 1996, unreported) per Sully J; R v Ilbay [2000] NSWCCA 251 at paragraph 6. 12 Where there is a degree of disparity so as to invite a reduction in the sentence imposed, it is not necessary for the Court of Criminal Appeal to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved: R v Boney [2001] NSWCCA 432 at paragraph 15. It is a matter for this Court, in the exercise of its discretion, to determine whether there is disparity of a kind which should attract appellate intervention: R v Rexhaj (Court of Criminal Appeal, 29 February 1996, BC9600975 at page 7); R v Steele (Court of Criminal Appeal, 17 April 1997, BC9701297 at pages 11-12). A stage can be reached at which the inadequacy of the sentence imposed upon the co-offender is so great that the sense of grievance engendered can no longer be regarded as a legitimate one: R v Diamond (Court of Criminal Appeal, 18 February 1993, unreported, BC9302054); R v Boney, above, at paragraph 16. 13 In the course of considering the parity issue in the case before him, Ellis DCJ examined, in some detail, the points of similarity and difference as between the two cases (remarks on sentence, 23 March 2005, pages 6-8). Following that analysis, Ellis DCJ concluded (remarks on sentence, 23 March 2005, page 8.3): "It seems to me, having regard to those differences that I have just pointed out, that whilst on the one hand some of them, such as the plea discount, put this offender in a worse position than Ms Kelly, the other factors that I have mentioned place her in a significantly better position and it seems to me that there is justification in distinguishing the actual sentence to be imposed, albeit that it is in fact clear to me that a full-time custodial sentence must be imposed." 14 It is clear that submissions were made to Ellis DCJ by reference to the judgment of Wood J in R v Fernando (1992) 76 A Crim R 58. Ellis DCJ said in this respect (remarks on sentence, page 5.2): "I have been referred to the principles set out by the Chief Judge at Common Law, Wood J, in Fernando (1992) 76 A Crim R 58 at 62 to 63. To some degree those principles apply, although she does not fit classically within the description set out by Wood J, but no doubt there are aspects of her background which the Aboriginality and substance abuse issues are relevant in the manner set out by his Honour." 15 In the course of listing points of similarity and difference as between the two offenders, Ellis DCJ observed (remarks on sentence, page 7.4): "On the other hand, this offender has the advantage that the Court needs to have regard to the principles set out in Fernando in relation to Aboriginal accused persons and problematic backgrounds within Aboriginal societies." 16 In the present case, no submission was advanced before Delaney DCJ that the Fernando principles had application to the Applicant. There was reference in the pre-sentence report to the Applicant being an "Aboriginal woman". The Applicant was represented before Delaney DCJ by legal representatives from the Aboriginal Legal Service. Although the sentencing proceedings extended over three days, 12 and 24 November and 8 December 2004, no Fernando submission was made. Delaney DCJ had regard to the Applicant's history of alcohol abuse and her efforts to undertake rehabilitation in that respect in his Honour's remarks on sentence, including a finding of "special circumstances" for the purposes of s.44 Crimes (Sentencing Procedure) Act 1999 (remarks on sentence, 8 December 2004, pages 5-7, 8-9, 10). 17 There have been a number of decisions of the Court of Criminal Appeal which have considered the circumstances in which the Fernando principles are to be applied: R v Powell [2000] NSWCCA 108 at paragraphs 23-24; R v Ceissman [2001] 119 A Crim R 535 at paragraphs 29-33; R v Pitt [2001] NSWCCA 156 at paragraphs 19-21; R v Fernando [2002] NSWCCA 28 at paragraphs 66-69; R v Morgan (2003) 57 NSWLR 533 at paragraphs 20-22; R v Newman and Simpson (2004) 145 A Crim R 361 at paragraphs 57ff. In Newman and Simpson, Howie J (McColl JA agreeing) said at paragraph 61 by reference to the cases just listed: "It has been pointed out on numerous occasions by this Court, including those benches of which the Chief Judge has been a member, that the principles and statements set out in Fernando have to be read in context. It is not every case of deprivation and disadvantage suffered by an offender of Aboriginal race or ancestry that requires, or even justifies, the special approach adopted in that case." 18 In the present case, no argument was advanced before Delaney DCJ by reference to the Applicant's Aboriginality and the Fernando principles. As was the case in Newman and Simpson (paragraph 67), the Applicant was represented by the Aboriginal Legal Service and her legal representatives did not apparently think that the decision was sufficiently relevant to refer to it. 19 In my opinion, the Applicant's argument before this Court can rise no higher than that the Applicant's Aboriginality was not pressed before Delaney DCJ as a factor to be taken into account in mitigation of sentence and that his Honour failed to have regard to this factor in passing sentence. The decisions of this Court have stressed that Aboriginality, of itself, is not a factor in mitigation of sentence: Powell at paragraph 23; Pitt at paragraphs 20-21; Fernando (2002) NSWCCA 28 at paragraph 67; Morgan at paragraph 20. In Newman and Simpson, Howie J (McColl JA agreeing) said at paragraph 68: "The background of the applicant, while lamentable, is not in any way unique nor is it restricted to any particular community group. Those in society who abuse alcohol and drugs are almost invariably persons who have suffered some type of deprivation or abuse early in life and, as a result, suffer from low self-regard, depression and pessimism." 20 On the material before this Court, I do not consider that the Fernando principles are of assistance to the Applicant. It is clear that an argument was advanced before Ellis DCJ that the Fernando principles applied to the co-offender. It is apparent, from his Honour's judgment, that Ellis DCJ did not consider that the Fernando principles applied, to the full extent, to the co-offender. It is not clear from the material before this Court (which is confined to the remarks on sentence of Ellis DCJ) whether the attention of Ellis DCJ was drawn to the series of decisions of this Court in which the Fernando principles have been further considered and explained. Of course, the present proceeding is not an appeal from the decision of Ellis DCJ with respect to the co-offender. 21 I am not satisfied that a justifiable sense of grievance, founded on reasonable grounds, is available to the Applicant in this case. In my opinion, the argument based upon the parity principle should not lead the Court, in the exercise of discretion, to impose a different sentence upon the Applicant. I do not consider that any lesser sentence was warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912; Johnson at paragraph 33. 22 I would grant leave to appeal and dismiss the appeal. 23 ROTHMAN J: This matter comes before the Court pursuant to the terms of s.5(1)(c) of the Criminal Appeal Act 1912. The applicant agitates leave to appeal and the appeal against the sentence imposed by his Honour Delaney DCJ on 8 December 2004. 24 The applicant was charged with one count of aggravated robbery (use corporal violence) contrary to s.95(1) of the Crimes Act 1900 and one count of dispose of stolen property contrary to s.189 of the Crimes Act 1900. 25 The applicant pleaded guilty to each charge. The first count, aggravated robbery, carried a maximum penalty of imprisonment for 20 years and the applicant was sentenced in relation thereto to imprisonment for 2 years and 6 months to commence from 2 September 2004 and to expire on 1 March 2007, with a non-parole period of 12 months to commence from 2 September 2004 and to expire on 1 September 2005. Count 2, dispose of stolen property, carried a maximum penalty of imprisonment for 3 years and the applicant was sentenced to imprisonment for a fixed term of 6 months to commence on and from 2 September 2004 and to expire on 1 April 2005. 26 The applicant pleaded guilty to both charges and, following a short hearing, was sentenced by his Honour below. It is against the sentence in each of those matters that the applicant now appeals. In relation to the sentence imposed for the matter charged in Count 2, the sentence has already expired. Each of the sentences are the subject of application for leave to appeal and the application and/or the appeal itself is based upon three errors Delaney DCJ is said to have made in the sentencing process: taking account of the use of violence as an aggravating factor under the provisions of s.21A of the Crimes (Sentencing Procedure) Act 1999 in the circumstance that the use of violence was an element of the crime; taking account of a record of previous convictions in an impermissible manner; and, given the sentence imposed upon the applicant's co-offender, a justifiable sense of grievance suffered by the applicant. Facts 27 The facts found to exist by Delaney DCJ in his remarks on sentencing derive from the fact sheet which forms part of Exhibit A tendered by the Crown and the facts in Exhibit A were agreed, as was the criminal history. 28 At or about 10.45 pm on Friday, 2 May 2003, the victim attended the Toongabbie Railway Station. The victim walked down the stairs and onto the platform. As she walked along the platform she saw the applicant and the co-offender, who were also waiting for a train. 29 As the victim passed the applicant and co-offender, there was an exchange on which there are some different versions, but in accordance with the facts agreed, one of the co-accused called out to the victim "Excuse me" which the victim ignored and kept walking along the station. The victim stopped some distance away and turned around. There was then an exchange in which the co-offender verbally abused the victim. At that point the applicant in these proceedings walked towards the victim and punched her in the face with a closed fist. The co-offender thereafter joined in the attack which lasted approximately 4 minutes and during which time the victim was punched, kicked, pushed and bitten. 30 The applicant removed a gold diamond and sapphire ring from the victim's left hand and a rose gold ring with sapphires from her right hand. The victim pleaded with the applicant not to take the rings. Once the rings had been taken, the two co-offenders left the railway station on foot. The victim sustained a bleeding nose, soreness to the left of her face, a bite mark to her left hand and upper arm, minor abrasions to the back of her head and soreness to her left eye. 31 The incident was captured on closed circuit television and police were able to identify positively the two co-offenders. The police attended on the premises of the co-offender and spoke with her and the applicant who was also at her premises. Both co-offenders were placed under arrest. 32 In the police interview with the applicant, the applicant provided her version of the incident making full admissions to the assault and the taking of the rings. The applicant also admitted to instigating the assault and, on her version, doing so after the victim called her a "slut". The applicant pawned one ring and sold the other and, at least during her interview with the police, showed no remorse for what had occurred. 33 The co-offender was also interviewed and also made admissions giving her version of the incident. Her version did not significantly differ from that of the applicant and made clear that the co-offender was unaware that the applicant was going to take the rings and that she had no part in taking the victim's property. It is also clear that the co-offender did not, unlike the applicant, seek any profit arising out of the robbery or obtain any profit arising out of the robbery and, at the interview, showed remorse for her actions. 34 In his remarks on sentencing, his Honour gave the applicant significant leniency in a number of respects based upon the favourable view he formed of the applicant. 35 After finding that the extent of criminality of the offence was below mid-range (the maximum sentence being 20 years) his Honour took the view that the only sentence appropriate was one of imprisonment. The applicant gave evidence before the District Court on sentence during which she expressed remorse and contrition and his Honour accepted her evidence notwithstanding the comments made, and repeated above, as to her lack of remorse at the interview with the police. His Honour, below, took the view that the earlier lack of remorse may have been the result of the continuing effect of alcohol at the time of the interview. 36 It is clear from the remarks on sentence that his Honour took the view that the fundamental problem was the addiction to, and/or abuse of, alcohol by the applicant and seems to have been concerned to ensure that whatever sentence was imposed maximised the prospects of rehabilitation. 37 There can be little doubt that his Honour in sentencing was impressed by the applicant and determined to provide a degree of leniency that might not otherwise have been granted. However, he also accepted the description given by the applicant herself of the crime as "a cowardly and intolerable attack on an innocent person". His Honour considered R v Henry (1999) 46 NSWLR 346 as a judgment which discusses similar, but not identical, issues relating to the sentencing of persons. As his Honour noted, R v Henry was a guideline judgment relating to armed robbery, which was not the charge faced by the applicant. His Honour provided a 25% discount for the utilitarian view of the plea of guilty and found special circumstances which justified a variation of the statutory relationship between non-parole period and the remainder of sentence. 38 Notwithstanding his Honour's description that the extent of criminality was "below mid-range" his Honour imposed a sentence which was significantly lower than mid-range and an even lower relative non-parole period. Argument on Appeal 39 As earlier stated, there were three grounds pressed on appeal. The first of them dealt with the inappropriate regard, as an aggravating factor, paid to the use of violence in the crime. 40 One of the unfortunate aspects of the prescription of aggravating factors in s.21A of the Crimes (Sentencing Procedure) Act 1999 is that it is used, from time to time, as an aide memoire or check list by those judicial officers called upon to sentence. It has been pointed out on a number of occasions that most of the relevant factors in s.21A of the Crimes (Sentencing Procedure) Act 1999 would, on general principles, have been taken into account in sentencing even before the enactment of the provision. The terms of the listed factors can, in their generality, be misleading if account is not taken of the qualifications necessarily inherent, and otherwise expressed, in this section. Even though a matter may be described as an aggravating factor, if it forms part of the elements of an offence or cannot, as a matter of law, be taken into account, then, notwithstanding the generality of description in s.21A of the Crimes (Sentencing Procedure) Act 1999, such a matter cannot be an aggravating factor in the determination of the sentence for the offence in question. 41 In the current sentence, before the Court on appeal, his Honour took into account the actual threatened use of violence as an aggravating factor in determining the appropriate sentence to be applied. The extent to which and the manner in which his Honour took that into account is not clear. 42 The use of violence was an integral element in the offence under s.95(1) of the Crimes Act 1900. The use of violence by the applicant was the aggravation which was a necessary part of the offence. In those circumstances, there can be no doubt that any regard, even minor, to the use of violence as an aggravating factor on sentence, would be an error. 43 The second ground raised in the appeal is that the sentencing judge took into account the record of previous conviction. The comments I have earlier made in relation to the use as a checklist of s.21A of the Sentencing Procedure Act are apposite. 44 Further, as has been said on a number of occasions, it is unsatisfactory to refer to the previous record as an aggravating factor without explaining precisely the manner in which it is taken into account. Whether it was adequately or appropriately taken into account is impossible to ascertain from the reference by his Honour. It is not clear whether his Honour has used the prior criminal history to increase the objective seriousness of the offence, which, if it were used in that way, would be impermissible, or whether, on the other hand, he has used it to lessen the leniency that might otherwise be shown to a first time offender whose conduct can be seen as aberrant. In Veen v The Queen (No. 2) (1998) 164 CLR 465 at 477, the joint judgment of Mason CJ, Brennan, Dawson and Toohey JJ discussed the distinction between the two different uses for a record of previous convictions. They said: "The antecedent criminal history is relevant … to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 45 In the instant proceedings, the prior criminal offence (and the only one) was use of offensive language in or near a public place or school for which the applicant was fined. How such an offence would illuminate the moral culpability of the offender or show a dangerous propensity or need to impose condign punishment is not clear. In other words, the criminality of the offence previously committed, for which a $200 fine was imposed, in the context of an otherwise unblemished record does not seem to be a matter which could appropriately be utilised, in the relevant allowable sense, as an aggravating factor in determining the sentence that is before the Court. 46 The third and final matter raised on appeal is the ground which agitates a justifiable sense of grievance on the part of the applicant compared to the sentence imposed on her co-offender. 47 At the outset it should be recalled that the applicant before the Court was sentenced first. The co-offender had not been sentenced at the time that the sentence now under appeal was imposed and Delaney DCJ had no parity issue to consider. The sentence imposed upon the applicant was a matter that was adduced before his Honour Judge Ellis DCJ in sentencing the co-offender and was a matter which his Honour Ellis DCJ expressly took into account in determining the sentence that he imposed upon the co-offender. In light of that chronology, the submission on parity is, in effect, a submission, assuming that the applicant's sentence was not otherwise manifestly excessive, that Ellis DCJ erred in fixing a sentence that was too low in comparison with the applicant. 48 If, notwithstanding the above, there existed a justifiable sense of grievance, objectively determined, it should be corrected, if to do so would not produce a sentence disproportionate to the objective and subjective criminality involved. His Honour Ellis DCJ, in his remarks on sentence of the co-accused, after reciting issues of a subjective kind affecting the co-accused and the applicant, said: "The principle of parity requires that a court have regard to a sentence imposed on a co-offender, not for the purpose of necessarily imposing a mathematically identical sentence, but to ensure that neither offender objectively could have a sense of grievance as a result of the sentence imposed upon their co-offender. It seems to me, having regard to those differences that I have just pointed out, that whilst on the one hand some of them, such as the plea discount, put this offender in a worse position than [the applicant], the other factors that I have mentioned place her in a significantly better position and it seems to me that there is justification in distinguishing the actual sentence to be imposed, albeit that it is in fact clear to me that a full time custodial sentence must be imposed." 49 It is obvious from the above that the "disparity" is quite deliberate. The issue that must be addressed is whether the deliberate disparity imposed by Ellis DCJ gives rise to a justifiable sense of grievance in the applicant before this Court. The co-offender was sentenced to a non-parole period of 6 months' imprisonment which is to expire on 22 September 2005 and commenced on 23 March 2005. An additional term of 18 months dating from 23 September 2005 was fixed which will expire on 22 March 2007. In each case the sentence imposed was 6 months less (both at the non-parole and remainder level) than the sentence imposed on the applicant in this matter. However, counsel for the applicant points out that in the case of the non-parole period, this is half of the period imposed upon the applicant. Further, the applicant here was given the benefit of a 25% discount on account of the plea of guilty at the earliest possible opportunity, whereas the co-offender was given a 15% discount in relation to her ultimate plea. Factoring the discounts in to arrive at a head sentence, the applicant received a head sentence 50% more (1½ times) the co-offender. The non-parole period determined for the applicant is double the co-offender and, taking into account the discounts, almost 2½ times. 50 Counsel for the applicant lists four factors which Ellis DCJ relied upon to impose a lesser sentence on the co-offender than for the applicant. They are: " The co-offender was 2 years younger than the applicant; · The co-offender is an aboriginal person and thereby the principles set out in Regina v Fernando (1992) 76 ACrimR 58, applied; · The co-offender did not receive any property as a result of the robbery; · The co-offender had settled into motherhood and had responsibility for a 3 month old child." 51 An interesting aspect of the above points is that "aboriginality" is not a matter which distinguishes the co-offender from the applicant nor, in and of itself, does it invoke the principles in Fernando. The applicant is also of aboriginal descent, although Delaney DCJ does not advert to it in any part of the remarks on sentencing. It may be understandable, given that Ellis DCJ had before him the remarks on sentence of Delaney DCJ, that Ellis DCJ would take the view that the applicant was not of aboriginal descent. 52 As Wood CJ at CL pointed out in Fernando (1992) 76 ACrimR 58 at 62, the sentencing principles to be applied are the same in every case irrespective of the identity of a particular offender or his or her membership of an ethnic or other group. However, such a proposition does not mean that the sentencing court should ignore those facts which exist only by fact of the offender's membership of such a group. His Honour described the relevance of aboriginality and the principles associated in the following way: "(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group. (B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender. (C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment. (D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment. (E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects. (F) That in sentencing persons of aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender. (G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality. (H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part."

The principles in Fernando were relied upon by counsel for the applicant in this appeal but were not the subject of submission to Delaney DCJ. Nor does the evidence disclose that the disadvantage, deprivation and poverty of the applicant were as a result of her Aboriginality. 53 As pointed out by the sentencing judge, the applicant's parents separated when she was eight years of age and she lived with her mother. At the time of the sentencing report she had no contact with her mother and although it is unclear precisely when she left home, it appears to have been in her early teens. 54 The offender left school after completing year eight and began drinking alcohol to excess at the age of 14 and has apparently consumed large quantities of alcohol on a daily basis for some time or at least had done so at the time of the pre-sentencing report. 55 There can be little doubt that her family background and socio-economic situation and the environment in which the offender has grown up is a factor that ought to have been taken into account as a mitigating factor and the sentencing judge did so. While the passage in the principles at paragraph (E) of Fernando, set out above, is, in my opinion, applicable, not only to rural or isolated communities with which Wood CJ at CL was dealing, but generally to members of aboriginal communities that have similar problems, the mere fact that a person is of Aboriginal descent and suffers disadvantage does not call for the application of the Fernando principles. 56 As was said by this Court in R v Newman (2004) 145 ACrimR 361, per Howie J: "[64] In R v Fernando [2002] NSWCCA 28, when allowing a Crown Appeal against the respondent who was an Aboriginal, the Chief Justice, with whom Wood CJ at CL and Kirby J agreed, stated: '[66] The sentencing principles to be applied by a sentencing court apply in every case, irrespective of the membership of the particular offender of an ethnic or other group. Nevertheless, when imposing sentences courts must take into account, pursuant to those very principles of general application, all of the facts relevant to the circumstances of the offence and of the offender, including facts which may exist by reason of the person's membership of a particular group. (See eg Neal v The Queen (1982) 149 CLR 305 at 326, 7 ACrimR 129 at 145.) [67] Aborigines who commit crimes of violence are not accorded special treatment by the imposition of lighter sentences than would otherwise be appropriate having regard to all of the relevant considerations, including the subjective features of a particular case. An offender is not entitled to any special leniency by reason of his or her Aboriginality. The principle of equality before the law requires sentencing to occur without differentiation by reason of the offender's membership of any particular racial or ethnic group. Nevertheless, particular mitigating factors may feature more frequently in some such groups than they do in others. (See Fernando as further explained in Hickey ; Stone ; Ceissman ; Pitt ). [68] The Criminal justice system has accurately been described as a 'hopelessly blunt instrument of social policy and its implementation by the courts is a totally inadequate substitute for improved education, health, housing and employment for Aboriginal communities' R v Daniel (1997) 1 Qd R 499 at 530, 94 ACrimR 96 at 126 per Fitzgerald P. His Honour outlined the difficulties that arise in this regard (at 530-532; 126-128). [69] The circumstances of the present case are, regrettably, repeated across the entire community. This Court frequently hears appeals from young people who have suffered deprivation in their personal life, have succumbed to addiction - usually first to marijuana and then to heroin - and committed crimes of burglary and armed robbery in order to acquire funds to feed the habit.' … [68] Even assuming that the applicant is of Aboriginal ancestry, this is not a case where any special consideration is due to the applicant on that account. The background of the applicant, while lamentable, is not in any way unique nor is it restricted to any particular community group. Those in society who abuse alcohol and drugs are almost invariably persons who have suffered some type of deprivation or abuse early in life and, as a result, suffer from low self-regard, depression and pessimism." 57 Too little regard has been paid to the effects of discrimination and disempowerment of minority groups, particularly those of Aboriginal descent, and some reactions to it which lead to alcoholism, drug addiction and related or unrelated crime. But the criminal justice system and, in particular, the sentencing of this individual is not the time so to do and there is no material, other than the fact of aboriginality itself, that the applicant suffered discrimination or that there were any relevant consequences of her aboriginality. 58 The application of non-discriminatory sentencing principles means that persons in equal positions are treated equally under the law. It also means that persons in relevantly unequal positions should not be treated equally. This is one of the bases for consistency of sentencing principles. 59 There are some aspects which do legitimately differentiate between the applicant on the one hand and the co-offender on the other. In particular, the co-offender seems to have had no knowledge that the applicant was to steal the property of the victim before it had occurred and received none of the property or the results of any sale of the property. The co-offender was two years younger than the applicant and had a three month old child, each of which were factors taken into account by Ellis DCJ. On the other hand, the applicant had committed the offence on 2 May 2003 and was sentenced on 8 December 2004 by which time she had shown some signs of rehabilitation and had entered into a current, more stable relationship which she had been in for approximately 12 months. Conclusion 60 The principles to be adopted by the Court of Criminal Appeal have been set out in a number of cases. In this regard, I refer, in particular, to Dinsdale v The Queen (2000) 202 CLR 321. While that particular proceeding concerned the Court of Criminal Appeal in Western Australia, there are no distinguishing features relevant to the principles established by the High Court which qualify their applicability to this Court. This Court has so held (see R v Simpson (2001) 53 NSWLR 704). 61 In R v Simpson Spigelman CJ, after referring to Dinsdale and its reference to House v The King said: "Sentencing appeals in this court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'If it is of the opinion that error has occurred in the sentencing process'. That is not the statutory formulation. By s.6(3) this Court must form a positive opinion that 'some other sentence … is warranted in law and should have been passed'. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefor' is not satisfied. As the judgments in Dinsdale to which I have referred indicate, the exercise of the power in s.6(3) further requires the identification of error in the requisite sense." 62 As previously outlined, there is shown to be error in principle in taking into account factors that were impermissible or taking them into account in a manner that was impermissible. But error is not sufficient. As has been made clear, s.5(1)(c) of the Criminal Appeal Act is an appeal against the sentence imposed and the Criminal Appeal Act thereafter permits the Court to substitute another sentence "if it is of opinion that some other sentence … should have been passed". Once that opinion is formed, it matters not whether one can identify the precise nature of the error that has occurred in the sentencing. On the other hand, if that opinion is not formed, it matters not whether or not errors are discovered. 63 Bearing in mind my earlier comments, I am not satisfied that the errors in the application of s.21A of the Crimes (Sentencing Procedure) Act have manifestered an error in and of themselves. It seems that his Honour, notwithstanding the error, paid little regard, in increasing the sentence, to the matters about which complaint is made. 64 Further, the error in sentencing could not be described as making the sentence manifestly excessive or unjust. As earlier pointed out, the offence with which the applicant was charged was a serious one and carried a maximum penalty of 20 years' imprisonment. To the extent that the grounds of appeal raised that the sentence was manifestly unjust, although not pressed as a separate ground in written submissions, such ground is rejected. Indeed, on any view of the sentence imposed by Delaney DCJ, the sentence was appropriate and at the low end of the range, with one possible exception. 65 The possible exception turns on the parity argument and the extent to which Delaney DCJ paid insufficient regard to the subjective factors referred to above. This Court has oft expressed its strong resistance to tinkering with sentences and the importance of allowing as much flexibility as possible to judges exercising sentencing functions. So long as the Judges at first instance sentence in a manner consistent with the statutory regime under which the sentencing occurs, such flexibility as is "consonant with consistency of approach" ought not be the subject of interference by this Court. (See Johnson v The Queen (2004) 78 ALJR 616 at [26]). 66 Notwithstanding the above comments, the disparity between the sentence imposed upon the applicant and that on the co-offender (2½ times non-parole period taking account of discounts) is, in my opinion, greater than the objective and subjective factors associated with each offender would allow. It is not that the sentence imposed by Ellis DCJ is not within range given the peculiar subjective factors with which he was dealing. But it also can not be said that imposing a sentence which was more comparable with that imposed by Ellis DCJ would take the sentence imposed on the applicant to the level of being inadequate. 67 Obviously the principles applicable to the application of parity in sentencing must take account of the differences in the subjective situation of the offenders (Lowe v The Queen (1994) 154 CLR 606). In Lowe Gibbs CJ at 609 said: "It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender and the part which he or she played in the commission of the offence has to be taken into account." 68 The Crown submits that if the Court were to find an apparent disparity it is not one which would attract intervention. The Crown, in that regard, relies upon the statement of this Court in R v Diamond (NSWCCA 18 February 1992, unreported). In that case, Hunt CJ at CL said: "The entitlement of the Court of Criminal Appeal to reduce an otherwise appropriate sentence in order to avoid disparity engendering a justifiable sense of grievance is a discretionary one. There is a stage at which the inadequacy of the lower sentence is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one, and the reduction of an otherwise appropriate sentence to remove the error becomes an affront to the proper administration of justice." 69 The discretionary nature of the function of the Court of Criminal Appeal in dealing with an appeal based upon the principles of parity in sentencing can not be over emphasized. Indeed it is the issue on which I depart, with some reluctance, from the majority view. 70 Bearing in mind the greater role of the applicant in the act of robbery and the fact that the co-offender obtained no benefit from the act, there is good reason that one would come to a different view as to the culpability of each of the offenders. In all other respects, the applicant and co-offender are comparable although the recent birth, at the time of sentence, of a child to the co-offender is a distinguishing feature in the subjective circumstances and this Court is not aware of the circumstances which gave rise, in the case of the co-offender, to the application of the Fernando principles. 71 The exercise of discretion in altering a sentence to take account of parity does not require the sentence on appeal to be "manifestly excessive" and the discretion of the Court in adjusting a sentence ought not to be constrained. In the circumstances outlined, on a fine balance, I consider there is a justifiable sense of grievance with which, as a matter of discretion, the Court ought to interfere. I take account of the factors already mentioned in the manner described and continue the 25% discount for the early plea. 72 I propose the following orders: (i) Leave to appeal be granted;

R v Kelly

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