Ground 3 - The applicant has a justifiable sense of grievance by virtue of the disparity between the sentences imposed upon him in relation to the offences of stealing and malicious damage and those imposed upon his co-offender, Louis Basic
40 Louis Basic pleaded guilty in the Local Court to the offences of malicious damage and stealing committed in company with the applicant on 11 October 2003. He was sentenced in the Local Court to concurrent terms of 3 months imprisonment for those offences. He was also sentenced to concurrent terms of 3 months imprisonment in relation to four other stealing and malicious damage offences which occurred on 2 March 2003. These were unrelated to the applicant. It is the lack of parity between that sentence and the 2 year sentence with a non-parole period of 18 months imposed on the applicant for the offences of 11 October 2003 which is relied upon to support this ground of appeal.
41 The 3 months sentence of imprisonment imposed on Louis Basic was specifically brought to the attention of his Honour. At ROS 12.9 and 13.1 his Honour said:
"As to the offences of 11 October 2003, Louis Basic was charged with the offences of malicious damage to property and stealing and Irene Basic was charged with some driving offences. Louis Basic pleaded guilty to the offences and he was dealt with by a magistrate in the Local Court, being sentenced to imprisonment for a fixed period of 3 months for each offence with the sentences to be served concurrently. I do not know the criminal record, if any, of Louis Basic … and as to the offences of 11 October 2003, the offender must suffer a more severe punishment than Louis Basic, albeit that I do not know of his criminal record, if any, as the offender is being dealt with in the District Court whereas Basic was dealt with in a Local Court."
42 The question of parity was thus specifically raised. His Honour erred in dealing with that issue by simply referring to the different courts before which the offenders appeared. Both offenders were to be sentenced pursuant to the provisions of the Crimes (Sentencing Procedure) Act and in particular ss 3A and 21A. The upper limit available to a magistrate is a jurisdictional maximum and not a maximum penalty (R v Doan [2000] 50 NSWLR 115 at para 35). The sentence imposed on Louis Basic could not be disregarded for the purposes of parity.
43 The question then arises as to whether his Honour's error in this regard should lead to a reduction in the applicant's sentence. Can his Honour's sentence be supported on other grounds?
44 There were a number of distinguishing features between the applicant and Louis Basic. The applicant had a significantly more serious criminal record which included a 6 months period of imprisonment.
45 While both offenders had committed these offences whilst on conditional liberty, the circumstances of the applicant involved significantly more aggravating features than those which applied to Louis Basic.
46 Not only was the applicant on bail for the robbery in company offence, but he was subject to two s9 good behaviour bonds. By far the most aggravating feature was the fact that these offences occurred whilst the applicant was participating in the sentencing procedure in relation to the robbery in company offence. He had in fact given evidence in those proceedings on the day before the offences occurred. The commission of the offences in those circumstances, as his Honour appreciated, demonstrated utter contempt for the criminal justice system.
47 As his Honour also appreciated, the commission of the offences in the circumstances described demonstrated that the applicant was without contrition and remorse and was not motivated towards ceasing his criminal conduct. Successful rehabilitation was unlikely.
48 The circumstances in which these offences occurred required a sentence which included a significant element of both general and personal deterrence. The sentence needed to make it clear to other offenders that court processes are not to be abused in this way. Similarly, the sentence had to be sufficiently heavy to deter the applicant from re-offending. This was particularly so since the circumstances of the offences were almost identical to those associated with the robbery in company except for the aggravating features which converted that offence into a robbery.
49 Those distinguishing features make it clear that the circumstances surrounding the commission of the offences by the applicant were significantly more serious than those which applied to Louis Basic. Even without knowing all of the facts, the 3 months sentence of imprisonment imposed on Louis Basic does appear to be unduly lenient. There is certainly no basis for reducing the sentence of imprisonment of the applicant to something similar to that of Mr Basic.
50 Having said that, the principle of parity is an important concept in the sentencing process and is not lightly to be disregarded.
"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a "justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
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." ( Postiglione v The Queen (1997) 189 CLR 295).
51 In this case the sentence imposed by his Honour in respect of the malicious damage and stealing offences was appropriate and within the permissible range of sentencing options. It is only when that sentence is compared to that of Louis Basic that the need for intervention by this Court becomes apparent. The disparity between the sentence of 2 years imprisonment with a non-parole period of 18 months and a sentence of 3 months imprisonment is simply too great to be wholly explained by the distinguishing features surrounding the commission of the offences by the applicant on the one hand and Louis Basic on the other.
52 In my opinion, error has been disclosed in the sentences imposed by his Honour in relation to the malicious damage and stealing offences of 11 October 2003 in that sufficient regard was not had to the principle of parity.