Williams v R

Parity 43It was the sentence imposed on Ms Louizos by this Court which is said to offend the parity principle and which is said to leave the applicant with a justifiable sense of grievance, given that after application of a discount of 45 per cent he was sentenced to a term of imprisonment of 10 years, comprised of a non-parole period of 7 years and a balance of term of 3 years such that, undiscounted, his head sentence was 18 years. Senior counsel for the applicant submitted that despite Ms Louizos' criminality as the person who solicited others to kill being greater than the applicant's and despite the gravity of his offending, the starting point for his sentence was significantly greater than hers thereby creating an unjust disparity. It was submitted that in light of the sentence finally imposed on Ms Louizos (who was not entitled to any discount), the starting point for his sentence should have been no higher than the 13 years 6 months term imposed upon her which, after applying the combined discount of 45 per cent to which he was entitled, would have resulted in a sentence of 7 years and 5 months. 44In our view, despite the difference in the sentences, the submission that the disparity attracts a justifiable sense of grievance should be rejected for the following reasons. 45While a maximum penalty of 25 years and a standard non-parole period of 10 years applied to both the s 27 and s 26 offences, the offences for which the applicant and Ms Louizos were sentenced at first instance, and in Ms Louizos' case on re-sentence, were different, one being a solicit to murder, the other being the infliction of injury with murderous intent. 46As Howie J discussed in Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [246]: "The principle, whether it is called parity or proportionality or relativity between sentences, should be applied to bring about a just result in the sentences imposed upon persons who have been engaged in the same criminal enterprise regardless of the charges that have actually been laid against the offenders. However, I agree with Campbell JA that the principle is subject to the limits stated in [203] of his judgment." [We do not consider the limitations to which Campbell JA referred to have any practical impact on the application of the principle of parity raised on this appeal.] 47For his part, Campbell JA said: "[202] Even though there was no issue squarely raised in the cases mentioned in the previous paragraph except AAH & AAG, as there has been in this, of whether as a matter of principle the parity principle can apply between people who have not committed the self-same crime, it is not to be supposed that the large number of judges who proceeded in this way did so by oversight. As the facts of Sumner, Nguyen, Rend, Shen, OM and Melikian illustrate, unequal treatment that is so great as to bring about a justifiable sense of grievance can sometimes arise between participants in a common criminal enterprise who have committed different crimes. In my view there is no obstacle of the type the Crown submits to the parity principle being applied simply because a case is one in which the sentence by comparison with which the sentence under appeal is sought to be reduced was for a different crime. [203] There are significant limitations, however, on reducing a sentence on the basis of that of a co-offender who has committed a different crime. At least some of the limits on the use of the parity principle in such a case are:

It cannot overcome those differences in sentence that arise from a prosecutorial decision about whether to charge a person at all, or with what crime to charge them: Howard; Wurramarbra; Formosa
If it is used to compare the sentences of participants in the same criminal enterprise who have been charged with different crimes, there can be significant practical difficulties. Those practical difficulties become greater the greater the difference between the crimes charged becomes, and can become so great that in the circumstances of a particular case a judge cannot apply it, or cannot see that there is any justifiable sense of grievance arising from the discrepancy: Gibson; Howard; Formosa
It cannot overcome differences in sentence that arise from one of the co-offenders having been given a sentence that is unjustifiably low: Armstrong; Diamond; Rexhaj; Isamundar
..." 48That said, and despite the fact that the offences in this case arose from the same criminal enterprise, there remain some practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes (see Green v R; Quinn v R [2011] HCA 49; 244 CLR 462; 214 A Crim R 152 at [30]). However, that practical limitation does not exclude the operation of the parity principle in an appropriate case, although the effect given to it may vary according to the circumstances of the case. 49In addition, in this case it should not be overlooked that a serious offence was taken into account on the Form 1, when the applicant was sentenced. Contrary to the arguments advanced on his behalf in this Court, that offence, which carried a maximum penalty of 10 years, necessarily resulted in an increase in the sentence imposed from what would otherwise have been appropriate were he to be sentenced only for the s 27 offence (see Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [42]). The law as it applied at the time of sentence was reviewed in Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115. As we see it, the Form 1 offence is an important point of distinction between the two offenders and, of itself, would not have warranted an undiscounted sentence of 13 years and 6 months as a starting point. 50It may be accepted that had the applicant complained about the disparity between his sentence and Ms Louizos' original sentence (and had his appeal been heard and determined before she was re-sentenced), an appeal based upon breach of the parity principle would likely have succeeded. However, after the successful Crown appeal against the inadequacy of her sentence, the position was materially different since the increase in her sentence, ameliorated significantly by the application of the principle of double jeopardy, operated to redress that disparity. It is also of significance that a complaint of disparity accepts that the sentence appealed from is otherwise appropriate (see England v R; Phanith v R [2009] NSWCCA 274 at [22]; Jimmy v R at [251].) 51It is also well settled and, as we see it, critical to the disposition of this appeal, that a relevant difference between the situations of an applicant for leave to appeal against sentence and another offender with whom a comparison is sought to be drawn for the purposes of a parity argument may be that the sentence of the co-offender was the result of a successful Crown appeal (see El Hassan v R [2003] NSWCCA 252 at [13]; Bowtell v R [2004] NSWCCA 17 at [35]; Kauwenberghs v R [2008] NSWCCA 98; (2008) 186 A Crim R 197 at [109]). That is this case. 52As noted above, on re-sentence Howie J considered that the sentence initially imposed on Ms Louizos was less than half of what should have been imposed upon her at first instance. Extrapolating from his Honour's view, on re-sentencing, but for the impact of the double jeopardy principle, the starting point for her sentence would have been 18 years. It was only the application of the double jeopardy principle which resulted in a sentence of 13 years 6 months being imposed. 53In our view it is this that stands in the way of the applicant succeeding in achieving a reduction in sentence to achieve parity with Ms Louizos' ultimate sentence. Again in Jimmy v R, Howie J said at [249]: "I also confirm the obita view I expressed in Osman v R [2008] NSWCCA 157, with which McClelland CJ at CL agreed, that an applicant should not be able to seek parity with a sentence imposed upon a co-offender after a successful Crown appeal simply on the basis that the sentence imposed upon the co-offender was reduced because of double jeopardy or for some other discretionary reason that does not apply to the applicant." 54In Osman v R [2008] NSWCCA 157, Howie J, with whom McClellan CJ at CL agreed, referred to R v Christie [2000] NSWCCA 354, where Fitzgerald JA had held at [19]: "In this difficult area, the law yields logic to justice. An otherwise appropriate sentence imposed on an offender is reduced if that is necessary to ensure that he or she is not treated unjustly compared to a co-offender, even a co-offender to whom leniency has been extended, unless the co-offender's sentence is unsuitable as a basis for comparison because of manifest error. When comparison is legitimate, it is necessary for the Court to decide whether, after due allowance has been made for all material differences, the sentence of the offender seeking a reduction is so much more severe than the sentence imposed on the co-offender that the resulting disparity gives rise to a justifiable sense of grievance." 55Howie J observed in Osman, at [37]-[38]: "In that case [referring to Christie] there was no issue of parity arising because of the difference between the criminality of the applicant and the co-offender and the different subjective considerations, including a plea of guilty by the co-offender. It was held that, even taking into account that the co-offender was treated leniently because of the Crown appeal, there could be no justifiable sense of grievance held by the applicant in all of the circumstances of that case. It is unnecessary in order to resolve this matter to consider the issue of parity in relation to a sentence imposed by this Court following a Crown appeal where that sentence was less than it might otherwise have been because of the effect of double jeopardy. For my part, and with respect to the members of the Court in Christie, I have some difficulty understanding why an offender should receive a reduced sentence because of the effect of double jeopardy on a co-offender... " 56In the result, we do not consider that the applicant has a justifiable sense of grievance, or that there is a breach of the objective of equal justice arising from the re-sentence of Ms Louizos, where she received a lenient sentence after a Crown appeal as a direct result of the operation of the principle of double jeopardy. In our view, the leniency of Ms Louizos' sentence by operation of law rendered her sentence unsuitable for comparative purposes. 57Further, assuming on re-sentence the applicant was entitled to a finding of special circumstances and the statutory ratio provided by s 44 of the Crimes (Sentencing Procedure) Act was applied, a non-parole period in the order of 5 years and 7 months would result. 58Given the nature and seriousness of the applicant's offending, a mandatory sentence of that duration would fail to reflect the nature and seriousness of the offences for which he was sentenced and would be productive of a sentence that would, in our view, be wholly inadequate. 59Finally, even if we were of the view that there was a relevant disparity in the sentences, which we are not, there is no obligation to reduce a sentence to one which is inadequate and for the reasons discussed above we would not in this case. In Green v R; Quinn v R, French CJ, Crennan and Kiefel JJ observed at [33]: "... the existence of a discretion, where unjustified disparity is shown, to reduce a co-offender's sentence to one which is inadequate does not amount to an obligation to do so... Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences." 60In Ng v R [2011] NSWCCA 227; 214 A Crim R 191 Bathurst CJ, James and Johnson JJ said at [82]: "Where there is a degree of disparity so as to invite a reduction in the sentence imposed, it is not necessary for this court to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective circumstances. This court will not necessarily intervene where the co-offender's sentence is so inadequate that the court should not take it into account: Lewins v R ; at [7]; Dwayhi at 280-281 [21]."

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