R v Nicholas; R v Palmer [2019] ACTCA 36

[2019] ACTCA 36

Court of Appeal (ACT)|2019-12-05|Before: Murrell CJ, Mossop and Rangiah JJ

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Source facts

Court

Court of Appeal (ACT)

Decision date

2019-12-05

Before

Murrell CJ, Mossop and Rangiah JJ

Catchwords

APPEAL – CRIMINAL LAW – Appeal against sentence
– Crown appeal – Reduction of sentence for guilty plea – Late
guilty plea – Schedule
of offences taken into account – Two

Source

Original judgment source is linked above.

Catchwords

APPEAL – CRIMINAL LAW – Appeal against sentence– Crown appeal – Reduction of sentence for guilty plea – Lateguilty plea – Scheduleof offences taken into account – Twoco-offenders sentenced to the same head sentence – Co-offenders withdifferent subjectivecircumstances – Whether error in applying sentencediscount – Whether manifest inadequacy of sentence and nonparole period– Parity – Residual discretion – Resentence

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: R v Nicholas; R v Palmer

Citation: [2019] ACTCA 36

Hearing Date(s): 4 and 5 November 2019

Decision Date: 5 December 2019

Before: Murrell CJ, Mossop and Rangiah JJ

Decision: Appeal allowed. Respondents resentenced. See [133]–[137].

Catchwords: APPEAL – CRIMINAL LAW – Appeal against sentence – Crown appeal – Reduction of sentence for guilty plea – Late guilty plea – Schedule of offences taken into account – Two co-offenders sentenced to the same head sentence – Co-offenders with different subjective circumstances – Whether error in applying sentence discount – Whether manifest inadequacy of sentence and nonparole period – Parity – Residual discretion – Resentence

Legislation Cited: Crimes (Sentencing) Act 2005 (ACT) ss 33, 35, 57 Criminal Appeal Act 1912 (NSW) s 5D Criminal Code 2002 (ACT) ss 308, 310, 312, 403 Drugs of Dependence Act 1989 (ACT) s 169(1) Supreme Court Act 1933 (ACT) s 37O

On 10 July 2017, Mr Palmer hired a vehicle for the period of 10 to 25 July 2017. The vehicle was used in connection with the six principal offences that were committed prior to 25 July 2017.
Offences 1, 2, and 4 were committed in the early hours of 16 July 2017, within about 45 minutes of each other. The respondents drove between the affected premises in the hired vehicle.
Offences 6, 8, and 10 were committed in the early hours of 21 July 2017, within a little over two hours.
The seven offences of aggravated burglary occurred at clubs, newsagencies and a supermarket. For all counts, the aggravating feature was that the respondents were in the company of each other. Additionally, in relation to Counts 10 and 12, the respondents were armed with a sawn-off double barrel shotgun.
Primarily, the respondents targeted ATMs and/or cash redemption machines (CRMs) located within or outside premises. The respondents used a distinctive prybar both to force entry and to open the machines. In relation to the two scheduled offences of property damage, they placed hoses connected to oxyacetylene gas bottles into ATMs in an attempt to blow them open, causing extensive damage. In addition, all principal offences involved significant property damage.
Count 10 occurred in the early morning of 23 July 2017, when the respondents attended the Turner Rugby Union Club. Mr Nicholas attempted unsuccessfully to open a window with the prybar. He smashed a security camera with the prybar. The camera fell to the ground but continued to record. The respondents forced a door open with the prybar, ran inside and attempted to open a CRM. They were unsuccessful. They removed the CRM and placed it in the boot of their car. At the time of the offence, the respondents were in possession of an angle grinder, prybar, and sawn-off double barrel shotgun.
In relation to Count 12, at midday on 24 July 2017 Mr Palmer attended the German Club in the company of another man. The pair played poker machines. Prior to leaving the Club, Mr Palmer walked up to the ‘Next ATM’ within the Club, rocked it from side to side and looked behind it. Later, Mr Palmer sent text messages to Mr Nicholas, asking him to bring bolt cutters. At 3:55 AM, the offenders arrived at the Club. Mr Nicholas was carrying the prybar. Mr Palmer smashed a CCTV camera with the shotgun. The respondents forced entry to the Club using the prybar. Once inside, they ran straight to the ATM, carrying the prybar, bolt cutters, and shotgun. However, the ATM had been emptied and left open by Club staff.
In relation to Count 18, at 4:10 AM on 9 August 2017, the respondents entered the Hotel Kurrajong. Two employees were present. Mr Palmer was armed with a sawn-off double barrel shot gun, which he pointed at a staff member’s face, demanding that he lie on the ground. Mr Palmer then pointed the shot gun at the face of the second employee and directed him to open a cash safe. The respondents removed approximately $3,500 in cash, as well as other property and a small safe.
The value of the property that was stolen during each offence ranged from nothing to $7,700 (Count 4).
Mobile telephone location information and a shoe print linked Mr Palmer to the aggravated robbery offence at Hotel Kurrajong. On 9 August 2017, police executed a search warrant on a room occupied by Mr Palmer and seized a sawn-off double barrel shot gun and clothing. On 11 August 2017, at the home of Mr Palmer’s former partner, police located other items, including two bottles of oxyacetylene gas with hoses connected to the bottles.
From Mr Nicholas’ premises, police seized clothing that was consistent with the clothing that had been worn by a burglar during some of the offences.

The sentencing judge characterised the offences as “within the medium to high end of the range of objective seriousness”, noting that the robbery was “particularly serious especially when considering the effects on the staff who were present”: R v Nicholas; R v Palmer at [10].
We agree with the sentencing judge’s general characterisation of the objective seriousness of the offences. Each offence was associated with significant planning, albeit that the planning was not sophisticated. In relation to Counts 10 and 12, the respondents exchanged text messages in the period leading up to the offence. The respondents were disguised by balaclavas and gloves. On the other hand, some of their clothing was reasonably distinctive, particularly the footwear worn by Mr Palmer. In relation to the vehicle that was used in connection with some offences, Mr Palmer had used his own licence as proof of identification when hiring the vehicle. In relation to Count 10, members of the public had observed persons driving the hired vehicle with a CRM protruding from the boot. The respondents’ subjective circumstances
At the time of the offences, Mr Nicholas was 32 years old. He had a significant criminal history, but for less serious matters such as driving offences and possession of drugs. In May 2017, for an offence of possessing a drug of dependence, he had received a sentence of 12 months’ imprisonment, suspended after three months (in May 2017) on an 18-month good behaviour order. Subsequently, he had received several concurrent sentences, including a sentence of three months’ imprisonment for theft. At the time of the offences, he was serving the suspended part of the sentence that had been imposed for the drug offence.
Mr Nicholas lacked a supportive upbringing. The sentencing judge noted that he had generally worked in the building industry and had mixed with anti-social colleagues. He had been a drug user for at least 14 years and had committed crimes to finance his drug dependency. He had attempted suicide. He had expressed regret for his conduct, accepted responsibility and was motivated to better his position: R v Nicholas; R v Palmer at [13]. When interviewed for the pre-sentence report, Mr Nicholas had demonstrated insight into the impact of his drug use on his family relationships, employment, mental and physical health, and offending behaviour, and had accepted full responsibility for the offences. His desire to improve his lifestyle and behaviour was evident from a letter from the Chaplain of the AMC and certificates showing that he had completed courses while in custody.
At the time of the offences, Mr Palmer was 39 years old. On 23 October 2015, he had been sentenced to total period of two years and six months’ imprisonment (from 3 June 2015 to 2 December 2017), with a parole date in December 2016 for offences that included aggravated burglary (for which he had been sentenced to two years and three months’ imprisonment). There were many other convictions on his criminal record, but most were for significantly less serious matters, including offences of assault and property damage. At the time of the offences, he was on conditional liberty as he had been released to parole on 7 December 2016 and was subject to an intensive correction order for offences of dishonesty. The intensive correction order had been imposed by the Yass Local Court only weeks before the first aggravated burglary offence.
Mr Palmer was of Aboriginal background. He had a significant history of substance abuse. As a child, he had been exposed to domestic violence that was perpetrated by his stepfather. Consequently, he had become alienated from his mother. However, he enjoyed a good relationship with his father and stepmother. He had worked in the construction industry and as a courier, most recently in 2010. He had acknowledged his wrongdoing. He had been assessed as being at high risk of general reoffending: R v Nicholas; R v Palmer at [17]. Mr Palmer had been diagnosed with substance dependence, substance-induced psychosis, anti-social traits, and mental health issues. The sentencing judge found that a letter provided by Ms Tongs, Mr Palmer’s stepmother, was “particularly important”; not only did Ms Tongs have a close family relationship with Mr Palmer, but she also had “almost unparalleled experiences of the difficulties faced by Aboriginal men striving to live in the community”: at [18]. Approach of sentencing judge
During the sentence proceedings, counsel for Mr Nicholas submitted that his client’s pleas had been of higher utilitarian value than those of Mr Palmer as the case against Mr Nicholas had been weaker. The sentencing judge responded that he would “not sentence [Mr Nicholas] to more that he would have got if Mr Palmer hadn’t been here”.
In relation to both respondents, the sentencing judge considered that there was a significant need for general deterrence: at [14].
The sentencing judge accepted that the criminal record of Mr Nicholas was less significant than that of Mr Palmer. At [20], his Honour said:

Some of the considerations identified by Howie J in Borkowski at [32] were:
The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount. 2. Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy. 3. The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse; nor is it affected by post-offending conduct. 4. The utilitarian discount does not take into account the strength of the prosecution case. … 7. There may be offences that are so serious that no discount should be given … 8. Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced. … 10. An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value. … (citations omitted)
In Williams v The Queen [2018] ACTCA 4 at [47], this Court emphasised that, for public policy reasons, it is important that persons considering an early plea of guilty be justifiably confident that their plea will attract a substantial discount on sentence and also understand that, if they delay in entering the plea, the level of discount is likely to be significantly lower.
In Cranfield, the offender had pleaded guilty a week before the trial was due to commence. The Court increased the sentence discount from five to 10 per cent. In R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua), the offender had pleaded guilty after committal to the Supreme Court but before a trial date had been set. The Court of Appeal reduced the sentence discount from 25 to 17 per cent. In Zhao v The Queen [2018] ACTCA 38 (Zhao), the offender had pleaded guilty 12 days before the commencement of the trial as a result of successful negotiations regarding a rolled-up count. The Court confirmed the sentence discount of 10 per cent.
Among others, these decisions illustrate that, in circumstances such as the present, an accused person should confidently expect to receive a discount of 10 per cent—or, perhaps, slightly more if their plea was not entered “on the steps of the Court”. They should expect that, in the case of such a late plea, a larger s 35 discount will only be given where there are unusual circumstances, such as a very weak Crown case or an earlier offer by the accused to plead to the charges, which the Crown accepted at the last minute.
Ordinarily, a discount of 15 to 20 per cent is allowed for a plea entered before or in connection with criminal case conferencing and prior to the setting of the trial date. Absent unusual circumstances, 20 per cent would be the upper limit in relation to a plea of guilty entered at that stage. In Blundell v The Queen [2019] ACTCA 34 at [13] (Blundell), this Court said:

The converse is also true. It is vital that accused persons who choose to wait to the last minute to enter a plea of guilty appreciate that, absent unusual circumstances, they will not receive a discount that is as high as the discount that they would have received had they pleaded guilty at the criminal case conferencing stage, which usually occurs soon after a matter has been committed to the Supreme Court for trial.
In Lehn v The Queen [2016] NSWCCA 255; 93 NSWLR 205 (Bathurst CJ, Beazley P and Schmidt J agreeing), the NSW Court of Criminal Appeal held that a sentencing judge’s failure to apply a 25 per cent discount where a guilty plea had been entered at the earliest opportunity was a denial of procedural fairness that amounted to a miscarriage of justice: at [65]. The Court held that the sentencing judge had erroneously connected the plea discount to the objective seriousness of the offence as opposed to the utilitarian value of the plea: at [64]. At the sentence hearing, the Crown had not disputed that a 25 per cent discount was appropriate but the sentencing judge had failed to indicate that he was contemplating a lower discount, giving rise to a denial of procedural fairness. A 25 per cent discount was given on the resentence.
In the present case, the pleas were entered very late; less than a week before the commencement of the trial. The pleas may have been motivated by the fact that the trial was imminent and the Crown case (which was always reasonably strong against Mr Palmer) had been strengthened by the decision to admit coincidence evidence.
The sentencing judge did not explain the reasons for allowing a discount of 20 per cent. The comments at [23] of the sentencing remarks ([31] above) imply that, in his Honour’s view, there was reasonably high utilitarian value to the pleas entered by Mr Nicholas because the case against him was weak and, because the respondents were co-offenders, his Honour decided to give Mr Palmer the benefit of the high discount allowed to Mr Nicholas.
That approach was wrong.
We accept that, in relation to each respondent, the pleas had significant utilitarian value despite coming so late. The trial would have occupied three or four weeks.
However, the strength (or weakness) of the Crown case was not a factor that should have significantly influenced the discount for the pleas. The case against Mr Nicholas was not weak at the time when the pleas were entered; it was reasonably strong once the coincidence evidence was admitted, and Mr Nicholas did not oppose the admission of the coincidence evidence. There was no reason to give Mr Nicholas an exceptionally high discount for his pleas of guilty. The case against Mr Palmer was always reasonably strong. At the time when the pleas were entered, the Crown case against Mr Nicholas was not significantly weaker than the Crown case against Mr Palmer and did not call for a different discount.
In this case, the sentencing judge gave no reason for substantially deviating from the usual range for plea discounts, nor did the circumstances provide a reason for the deviation.
When determining the discount for the pleas of guilty, the sentencing judge erred in two respects that affected the outcome, each of which reflect an error within the scope of House v The King (1936) 55 CLR 499, 505. First, his Honour considered the strength of the Crown case at a time that was earlier than the time when the pleas were entered. Second, his Honour failed to consider “current sentencing practice” as required by s 33(1)(za) of the Sentencing Act, which—in the circumstances of the case—would have resulted in a discount of about 10 per cent. At the very least, such a substantial deviation called for an explanation.

As to Counts 10 and 12, in relation to objective seriousness, the Crown observed that the burglaries had been attended by two aggravating features (the respondents were in company and there was an offensive weapon). Count 10 and 12 were not “typical” aggravated burglaries. In relation to Count 10, the respondents had forced their way into the premises while in possession of a shotgun, used an angle grinder to try to open a CRM, and then taken the entire machine and placed it in the boot of their vehicle. In relation to Count 12, the respondents had been in possession of a shotgun and had destroyed a CCTV camera, forced entry into the premises, and then removed a cash drawer.
The Crown’s observations are apposite. We accept that Counts 10 and 12 were objectively serious offences of their type and that, as observed in R v Miller [2019] ACTCA 25 at [37] (R v Miller), it is “a fundamental principle of sentencing” that a sentence should adequately reflect the objective seriousness of the offending conduct.
In relation to Count 18 (the offence of aggravated robbery), among other features establishing objective seriousness, the Crown relied upon the facts that there were two aggravating features—the respondents were in company and in possession of an offensive weapon (a shotgun), which was pointed at two staff members. Further, the sentencing judge was asked to take eight additional offences into account in relation to Count 18. Most of the additional offences were thefts associated with the aggravated burglaries, but two of these offences involved completely separate and serious offences of damaging property by attempting to “blow up” ATMs.
We accept that Count 18 concerned an offence of very significant objective seriousness. It was significantly more serious than the “typical” armed robbery that was the subject of the NSW guideline judgment in R v Henry (1999) 46 NSWLR 346 (Henry), which has been described as a persuasive authority in this jurisdiction: Hall v The Queen; Barker v The Queen [2017] ACTCA 16 at [49] (Hall and Barker). In Henry, the NSW Court of Criminal Appeal proposed a sentence of four to five years’ imprisonment for a “typical” offender (at [165]), where there had been a late plea of guilty and a maximum penalty of 20 years’ imprisonment applied.
The Crown relied upon Hall and Barker in support of an argument that, in the present case, the sentence for Count 18 did not fit with the guideline sentencing range in Henry.
Rather than concerning itself with a guideline sentencing range, the decision in Hall and Barker approves the usefulness of the features identified in Henry as “typical” of armed robberies in determining the objective seriousness of a case, in that the features of a specific case may be compared with those of a “typical” case.
The Crown relied on the decision in Miles v The Queen [2016] ACTCA 54 (Miles), in which this Court considered whether sentences imposed for aggravated robbery and other serious offences of dishonesty were manifestly excessive. One aggravated robbery offence had been committed in company. Both offenders had been armed (one with a rifle, the other with a knife). A sum of $51,000 had been taken. In dismissing the appeal, the Court described the sentence of 12 years’ imprisonment as “undoubtedly stern”, although “not unprecedented”: at [69]. The Court considered several somewhat comparable cases in which the sentencing starting point had been between eight and 12 years’ imprisonment. In Miles, the appellant had an appalling criminal history and there were no strong subjective circumstances, although the sentencing judge identified “a real possibility” that the appellant wished to change his life and rehabilitate, despite his “extraordinarily serious and continuing criminality” and past failures to rehabilitate following “many earlier periods of imprisonment”: at [34].
Miles does not provide a particularly helpful comparison; in that case, the offender’s subjective circumstances did not invite leniency and this Court considered that, while available, the sentence was very high. The ACT Sentencing Database statistics indicate that the 12-year sentence confirmed in Miles is the equal highest sentence imposed for an offence of aggravated robbery in the ACT since May 2013: see R v Munro (Unreported, ACT Supreme Court, Nield AJ, SCC No 178 of 2011, 14 May 2013) in which a sentence of 12 years’ imprisonment was imposed.
Although, objectively, each of Counts 10, 12, and 18 involved a very serious offence of its type, for three main reasons we consider that the sentences that were imposed were within the available range.
First, the respondents advanced strong subjective circumstances. Mr Nicholas had a criminal record that—while not inconsiderable—related to less serious matters, he was remorseful, and he had committed to rehabilitation. Mr Palmer adduced evidence of severe disadvantage in his upbringing: childhood domestic violence, social exclusion, and lost Aboriginal identity. Consistent with the decision in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy), evidence of childhood deprivation and social exclusion can mitigate sentence: Kentwell v R (No 2) [2015] NSWCCA 96 at [13], [92], and [94]. There was evidence that Mr Palmer wished to engage with psychological interventions through a culturally appropriate service that would assist him to rehabilitate: report of Ms Twala. We do not overlook the important consideration that, at the time of the offences, Mr Palmer was on conditional liberty, including for a serious offence of the type committed, and Mr Nicholas was also on conditional liberty.
Second, the sentences for all three counts appear to be reasonably consistent with the sentences imposed in other cases. For example, in R v Jacka [2017] ACTSC 225, the offender had pleaded guilty at the earliest opportunity to one count of aggravated burglary and five counts of aggravated robbery; all offences were committed in company. The aggravated burglary occurred at a club and involved an attempt to open a cash box. The aggravated robbery offences involved the offender or an accomplice wielding a shotgun at employees at premises around Canberra. For the aggravated burglary offence, the sentencing judge (Elkaim J) imposed a sentence of two years’ imprisonment (reduced from two years and eight months’ imprisonment for the plea). For each aggravated robbery offence, the offender was sentenced to three years’ imprisonment (reduced from four years’ imprisonment). The total sentence was seven years’ imprisonment. A four-year nonparole period was fixed.
In Rubino v The Queen [2015] ACTCA 22, the offender pleaded guilty in the Supreme Court before the allocation of a trial date to three offences of aggravated burglary and one offence of theft. Seven additional offences attaching to the principal offences were taken into account. The three aggravated burglary offences were committed in company and in the possession of a variety of weapons, including a sledgehammer, prybars, a demolition saw, and a hatchet. The offender and accomplices had entered premises after-hours with their faces covered and had targeted poker machines and cash-changing machines, removing large amounts of money and causing extensive damage. The offender’s subjective circumstances were strong. Murrell CJ imposed a sentence of four years and five months’ imprisonment for each aggravated burglary offence (reduced from five years’ imprisonment). The total sentence (including the sentence for theft) was seven years and 11 months’ imprisonment, with a nonparole period of four years and one month. The sentences were upheld on appeal.
Mr Rubino’s co-offender in two of the aggravated burglary offences and the theft offence was sentenced in R v Robertson (Unreported, ACT Supreme Court, Refshauge J, SCC No 53A of 2012, 25 October 2013). In addition to the offences committed with Mr Rubino, the offender had pleaded guilty to two further aggravated burglary offences and had asked the Court to take into account eight further sentences of theft, attempted theft, and property damage in sentencing. After the offender had completed a drug rehabilitation program, he was sentenced to three years’ imprisonment for each aggravated burglary offence and 12 months’ imprisonment for the theft. The total sentence was seven years’ imprisonment, suspended after two years upon the offender entering a good behaviour order.
Third, the sentence for Count 18 fell within the range suggested by the Crown materials. In relation to Count 18, the Crown—quite appropriately—referred the sentencing judge to the somewhat similar case of R v Thompson [2017] ACTSC 141 in which the offender had been sentenced to four years and six months’ imprisonment (reduced from six years’ imprisonment for his guilty plea) for the offence of aggravated robbery. There were two aggravating features: the offender was both in company and in possession of a firearm.
As to Count 18, the Crown further submitted that the sentence failed to adequately reflect the additional offences that the sentencing judge took into account when imposing the sentence.
When additional offences are taken into account on a sentence under s 57(3) of the Sentencing Act, the offender is not sentenced for the additional offences. Instead, the additional offences may indirectly affect the sentence by informing sentencing purposes such as rehabilitation: R v Campbell [2010] ACTCA 20 at [50]. There is nothing about this case that suggests that the sentencing judge failed to take the additional offences into account when considering relevant sentencing purposes, which in this case included personal deterrence, accountability and denunciation.

Prima facie, it was inappropriate to impose entirely concurrent sentences for Counts 1, 2, and 4, for Counts 6, 8, and 10, and for Counts 12 and 18. Counts 1, 2, and 4 were committed on the same day, as were Counts 6, 8, and 10, and each offence was of the same type. However, each offence involved a separate and serious instance of offending conduct, separate premises and separate victims. Consequently, it was highly desirable that there be some degree of accumulation between Counts 1, 2, and 4, between Counts 6, 8, and 10, and between Counts 12 and 18: R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159.
As the offences the subject of Counts 12 and 18 were committed on different days and were of a different type, it was even less appropriate to make the sentences for entirely concurrent with each other.
The sentencing judge’s approach to concurrency failed to clearly recognise the separate criminality involved in each of the eight offences.
However, the ultimate question is whether the manner in which the sentences were structured achieved an aggregate sentence that was “just and appropriate” having regard to the overall criminality that was involved: Mill v The Queen (1988) 166 CLR 59, 63, quoting D A Thomas, Principles of Sentencing (Heinemann Educational nd Books, 2 ed, 1979), pp 56–57.
In this case, the sentences that were imposed on Counts 6 to 10 commenced on 13 February 2019, 12 months after the sentences imposed on Counts 1, 2, and 4. While there was no accumulation as between Counts 1, 2, and 4, there was substantial accumulation as between the two groups of sentences. Similarly, while there was no accumulation as between Counts 6, 8, and 10, there was substantial accumulation as between the sentences for that group of offences and the sentences imposed for Counts 12 and 18.
The fact that all offences occurred within a short period of time (just over three weeks) and were of a similar nature demanded very substantial concurrency.
In those circumstances, it is perhaps unsurprising that, at the sentence hearing, the Crown suggested to the sentencing judge that there were “three batches of offences and concurrency would be available in relation to those three”.
In R v TW [2011] ACTSC 25 at [83], Penfold J said:

The Crown submitted that, having concluded that the objective seriousness of the criminal conduct of each respondent was the same, the sentencing judge had erred in reducing the sentence that he would otherwise have imposed on Mr Palmer for the purpose of ensuring that the respondents received identical sentences. The Crown contended that the resulting sentences failed to reflect the substantially different subjective circumstances of the respondents and the fact that, for each respondent, the relevant sentencing purposes differed or required a different emphasis.
The parity principle is concerned with like offenders being treated alike: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [28] (Green and Quinn). Where the subjective features of co-offenders are substantially different, the sentences imposed should reflect that difference: Lowe v The Queen (1984) 154 CLR 606 at 617 (Lowe). The principle acknowledges the need for consistency in punishment while recognising that sentencing is individualised and offenders present with different subjective circumstances that must be taken into account.
In this case, while for practical purposes the respondents’ offending conduct was objectively indistinguishable, there were significant differences in their subjective circumstances. Most importantly, Mr Nicholas’ criminal history was significantly less serious than that of Mr Palmer, and Mr Nicholas’ only prior offence of dishonesty was a minor theft matter. Further, while both respondents had committed the offences while on conditional liberty in the community, Mr Nicholas had been on conditional liberty in relation to a drug matter, whereas Mr Palmer had been on conditional liberty in relation to the very type of offence for which he was sentenced.
Otherwise, the respondents advanced different but moderately strong subjective circumstances. Mr Palmer had been assessed as at a higher risk of reoffending and had not demonstrated the remorse of Mr Nicholas, who was actively attempting to rehabilitate himself. However, Mr Palmer called evidence of severe childhood disadvantage. While Mr Nicholas was younger than Mr Palmer, both were mature men and the age difference could be seen as immaterial.
Ultimately, while we would take a different approach (see below), we are not persuaded that the sentencing judge’s approach to parity involved a wrong exercise of discretion. On first impression, Mr Nicholas’ subjective circumstances were stronger, but, in some respects, Mr Palmer’s subjective circumstances were also very strong. It is not apparent that the sentencing judge disregarded the differences in the respondents’ subjective features; in the exercise of his discretion, it was open to his Honour to place considerable weight on some of Mr Palmer’s subjective circumstances and to conclude that, having regard to both subjective and objective features, there was little to differentiate the respondents.

In this case, the parties agreed that s 37O of the Supreme Court Act preserves a “residual discretion” that enables the Court to decline to interfere where error has been established.
Such a residual discretion may be exercised for any purpose that the appellate court considers appropriate. Matters that may influence an appellate court to exercise its residual discretion include a delay in prosecution of the appeal, the imminent or past occurrence of the respondent’s release on parole, and the likely effect of resentencing on the respondent’s progress towards rehabilitation: Green and Quinn per the plurality at [43].
The manner in which the Crown conducted itself at the sentence hearing may also be a matter of significance: CMB at [38], R v Flowers [2014] ACTCA 13 at [81]–[82]. As stated in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58, in sentence proceedings the role of the prosecutor is “to draw to the attention of the judge … the facts that should be found, the relevant principles that should be applied and what has been done in other (more or less) comparable cases”: at [39]. In circumstances where, during the sentence proceedings, the prosecutor has guided the sentencing judge into an error about which the Crown complains on appeal, it may well be appropriate for the appellate court to decline to intervene. While, on an appeal, the Crown is not bound by a concession made in the course of the sentence proceedings, to the extent that the Crown stance at the sentence proceedings has contributed to the imposition of a sentence that the Crown later claims to be inadequate, that stance is material to the exercise of the residual discretion: Bugmy at [48].
In Summerfield, the respondent had submitted that, if the Crown succeeded, the residual discretion not to intervene was enlivened for several reasons. One reason was that the Crown appeal had not raised any error of principle calling for correction for the purpose of providing governance and guidance of courts (the principal purpose of Crown appeals). A second reason was that, at the sentence hearing, the Crown had failed to properly assist the sentencing judge. At [131], the majority (Burns and Bromwich JJ, Loukas-Karlsson J dissenting on this point) found that the onus had been discharged, primarily because each of the identified sentencing errors involved “serious issues of principle”.
In R v Miller, the Court of Appeal upheld the Crown’s contention that a sentence of two years’ imprisonment that had been wholly suspended on a good behaviour order was manifestly inadequate to reflect the objective seriousness of the offence, which demanded a period of fulltime imprisonment. However, there was a difference of opinion as to the exercise of the residual discretion. The majority (Burns and Loukas- Karlsson JJ) was persuaded that the original sentence should stand, although it was “a very finely balanced question”: at [50]. Bromwich J considered that the need for systemic fairness in the criminal justice system demanded resentencing, particularly as the appeal had been prosecuted promptly and the Crown had made no contribution to the sentencing errors that had resulted in a manifestly inadequate sentence: at [64]–[66].
In this case, the respondents argued that the residual discretion should be exercised in their favour because the Crown had contributed to the sentencing judge’s errors, both by endorsing a wrong approach to accumulation and by suggesting to the sentencing judge that Thompson was a comparable case.
We do not accept that submission. The Crown did encourage the sentencing judge to accumulate the sentences in the manner that occurred, but the total sentence was not significantly affected by the way in which the individual sentences were accumulated. The case of Thompson was a relatively comparable case.
The Crown made no contribution to the errors associated with the inappropriately large discount for the pleas of guilty.
The respondents also argued that the residual discretion not to intervene should be exercised because the purpose of a Crown appeal is to lay down principles for the governance and guidance of sentencing courts and that object would be achieved by pronouncing that the sentences were manifestly inadequate.
Very recently, in HT v The Queen [2019] HCA 40 at [51], the plurality (Kiefel CJ, Bell and Keane JJ, with whom Nettle and Edelman JJ agreed regarding exercise of the residual discretion) said: There may be circumstances where the guidance provided to sentencing judges will be limited, in which case it may be appropriate for the appeal to be dismissed in the exercise of the residual discretion. This was such a case. Because of the existence of non-publication order no such guidance could be provided by a court exercising its powers under s 5D(1).
In the case of both respondents—but particularly Mr Nicholas—the resentencing exercise will result in a total sentence that is not substantially different from the original sentence in length or make up. Had the appeal related only to the sentence imposed on Mr Nicholas, we may have declined to intervene. However, the matter is complicated by the need to consider parity. Consequently, we are persuaded that we should resentence both respondents.

R v Nicholas; R v Palmer [2019] ACTCA 36

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