Williams v The Queen [2016] ACTCA 15

[2016] ACTCA 15

Court of Appeal (ACT)|2016-05-13|Before: Refshauge, Penfold and Wigney JJ

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Source facts

Court

Court of Appeal (ACT)

Decision date

2016-05-13

Before

Refshauge, Penfold and Wigney JJ

Catchwords

APPEAL – Criminal law – appeal against sentence –
multiple offences committed – whether the sentence imposed by the
trial
judge caused disparity between co-offender’s sentences –

Source

Original judgment source is linked above.

Catchwords

APPEAL – Criminal law – appeal against sentence –multiple offences committed – whether the sentence imposed by thetrialjudge caused disparity between co-offender’s sentences –re-sentencing

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: Williams v The Queen

Citation: [2016] ACTCA 15

Hearing Date: 8 February 2015

Decision Date: 13 May 2016

Before: Refshauge, Penfold and Wigney JJ

Decision: 1. The appeal is allowed.

The orders made by Burns J on 5 June 2015 other than the Good Behaviour Orders in relation to the offences of proceed when traffic arrow red (CC14/05178) and exceed speed limit (CC14/5179) be set aside.
Derek Joseph Williams is re-sentenced as follows:

(i) for the offence of aggravated burglary (CC14/5180) he is sentenced to imprisonment for one year and eight months to commence on 5 March 2015 and end on 4 November 2016;

(ii) for the offence of theft (CC14/5181) he is sentenced to imprisonment for four months to commence on 5 August 2016 and end on 4 December 2016;

(iii) for the offence of driving whilst disqualified (CC14/5175) he is sentenced to four months imprisonment to commence on 5 September 2016 and end on 4 January 2017 and he is disqualified from holding or obtaining a licence from 13 May 2016 to 22 June 2017;

(iv) for the offence of furious/reckless/dangerous driving (CC14/05176) he is sentenced to four months imprisonment to commence on 5 October 2016 and end on 4 February 2017 and he is disqualified from holding or obtaining a licence from 13 May 2016 to 22 June 2016;

Mr Kelly was charged with and pleaded guilty to joint commission aggravated burglary (in company) and joint commission theft. He was not charged with any offences relating to the theft and driving of the motor vehicle, presumably because the appellant was the driver. Sentence proceedings and sentences imposed
Sentence proceedings for both the appellant and Mr Kelly were conducted before the primary Judge on 23 April and 2 June 2015, respectively. Neither the appellant nor Mr Kelly gave evidence. Pre-Sentence Reports and reports from the Court Alcohol and Drug Assessment Service (CADAS) in respect of both the appellant and Mr Kelly were tendered. Reports from Oolong House (a residential rehabilitation facility operated by the Oolong Aboriginal Corporation) were tendered in the appellant’s case. It is necessary to give some attention to those reports given findings made by the primary Judge in relation to the respective prospects of rehabilitation of the appellant and Mr Kelly.
Before dealing with those reports, it should also be noted that both the appellant and Mr Kelly had extensive criminal histories. The appellant had previously been convicted of numerous offences in both the Territory and New South Wales, including: common assault (numerous convictions); assault occasioning actual bodily harm (multiple convictions); maliciously inflict grievous bodily harm; trespass on premises; negligent driving; drive while licence suspended; aggravated burglary – intent to commit theft; dishonestly taking a motor vehicle without consent; driving while disqualified (multiple convictions); using unregistered/uninsured motor vehicle; possess drug of dependence; possess prohibited drug; dangerous driving; not stopping vehicle if signalled by police; using unregistered vehicle; larceny; receiving stolen property; goods in custody suspected of being stolen; possessing housebreaking implements; custody of an offensive implement in a public place; resisting or hindering police; and, destroying or damaging property.
Mr Kelly had previously been convicted of numerous offences in the Territory, South Australia and New South Wales including: using/driving unregistered/uninsured vehicle (multiple convictions); driving vehicle without licence; driving under disqualification or suspension (multiple convictions); driving or using motor vehicle without consent; disorderly behaviour; taking part in the production of a controlled substance; dishonestly taking property without consent (numerous convictions); carry offensive weapon; possessing a controlled drug; and, aggravated burglary with intent to cause harm.
Neither the appellant nor the Crown suggested that there was any material difference between the criminal histories of the appellant and Mr Kelly. Both had very poor records.
The material tendered in respect of the appellant suggested some link between his offending behaviour and drug use. The CADAS report relating to the appellant noted that the appellant had a history of alcohol, cannabis and “problematic” amphetamine use. The Pre-Sentence Report tendered in respect of the appellant assessed the appellant as having a medium risk of re-offending. It noted the following in relation to the appellant’s attitude to his offending:

The reference to the appellant’s attempt to address his drug use was a reference to his participation in a 16-week residential rehabilitation program at Oolong House in relation to his methamphetamine dependency. The appellant was granted bail to attend this program. Reports from Oolong House about the appellant’s participation in this program contained both positive and negative observations about the appellant.
On the one hand, whilst the appellant ultimately attended the program for the entire 16 weeks, he did not graduate because he did not “put in the effort required for a Graduation” and did not participate in any of the final “level 6” requirements. It would seem that, whilst the appellant initially “settled into the program and [was] doing well”, towards the end of the program his attitude changed. On one occasion he returned late from weekend leave and on another occasion he did not return at all from weekend leave until his solicitor was advised that the appellant had been discharged from Oolong House. Following a court appearance, the appellant was readmitted into the program. From that point, however, the appellant’s attitude became somewhat negative. The report noted that the appellant was “not focused on his recovery…instead choosing to ‘sit his time out’”. The appellant’s negative comments and attitudes were reported to have had an unfavourable effect on other residents.
On the other hand, however, the Oolong House report recorded that the appellant’s results in respect of his mental health, emotional well-being and strength in relapse prevention were “excellent” and “particularly pleasing to see”. No alcohol or drug usage was detected during the appellant’s time at Oolong House.
Evidence tendered in respect of Mr Kelly also suggested that he had some issues with drugs. There was, however, no evidence that Mr Kelly had sought or received any treatment in respect of his drug use. A CADAS report tendered in respect of Mr Kelly provided the following assessment outcome in relation to Mr Kelly:

It is clear from the primary Judge’s remarks on sentence that the principal sentencing considerations in respect of the appellant were personal deterrence, rehabilitation and the prospects of the appellant re-offending. The primary Judge noted the appellant’s lengthy criminal record and observed that, in the past, the appellant had been “subject to fines, Good Behaviour Orders, supervision, suspended sentences and periods of imprisonment, but none of these [had] been sufficient to deter [the appellant] from further criminal offending” (R v Williams [2015] ACTSC 150 at [12]).
The primary Judge referred to the assessment in the appellant’s Pre-Sentence Report that there was a “medium” risk of the appellant re-offending. The primary Judge, however, expressed the opinion that this would appear to be an underestimation of the risk of re-offending unless the Court could be satisfied that the appellant had appropriately addressed his drug addiction. In that regard, the primary Judge referred to the Oolong House reports and noted that, whilst the appellant’s participation in the program had assisted the process of his rehabilitation, it was “too early at this time to say with any confidence that [the appellant would] not return to drug abuse and further offending”. His Honour accepted that there were “reasonable prospects” for rehabilitation, but noted that the prospects for rehabilitation were inextricably linked to the appellant’s commitment to avoid illicit drug use which was “still questionable” despite the fact that the appellant had taken “some steps in the right direction” (at [21]).
In sentencing the appellant to an immediate term of imprisonment, the primary Judge also had particular regard to the fact that, at the time of committing the offences, the appellant was on parole for similar offences.
The primary Judge sentenced Mr Kelly on 12 June 2015. The fact that Mr Kelly was sentenced on a different day to the appellant apparently arose because the appellant had other court obligations on 12 June 2015 and therefore his sentencing was brought forward. The primary Judge imposed the following sentences in respect of Mr Kelly:

The first of these grounds of appeal does not expressly contend that the sentence imposed by the primary Judge was manifestly excessive in the sense that it was “unreasonable or plainly unjust” and was therefore the third type of error referred to in House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen (2000) 202 CLR 321 at 325-326; [4]-[6]. Nor did the appellant’s lengthy written submissions advert to the relevant principles in relation to the appeal ground that a sentence is manifestly excessive. Rather, the written submissions contained a somewhat rambling and not easy to comprehend list of “relevant issues” to which the appellant apparently contended the primary Judge either did not have regard, or did not give sufficient weight. It was, however, unclear whether that contention was advanced in support of the claim that the sentence was “too severe” or in support of the parity ground.
The lack of clarity of the appellant’s case on appeal in relation to the first ground of appeal was not remedied by the oral submissions that were advanced on the appellant’s behalf. Ultimately, when pressed as to whether the appellant contended that the sentence was manifestly excessive and, if so, on what basis, the appellant’s counsel confirmed that it was contended that the sentence was manifestly excessive, but was unable to articulate, in clear terms, the basis of that contention. Counsel appeared to concede that it could not be said that the sentence was “outside the range”, but maintained that there were specific errors of fact and law in the “construction” of the sentence. So far as the submissions were able to be understood, it appeared that the principal basis of that contention was that the primary Judge erred in relation to the findings concerning the appellant’s prospects of rehabilitation.
Despite the lack of clarity in the Notice of Appeal and the appellant’s written and oral submissions, the first ground of appeal has been taken to be a claim that the sentence imposed on the appellant was manifestly excessive. The contention that the primary Judge either failed to have regard to, or gave insufficient weight to, various considerations has been approached on the basis that the allegedly ignored or undervalued considerations were particulars of that contention: cf. Dinsdale v The Queen at 325; [5].
The appellant contended that the primary Judge failed to have regard to, or gave insufficient weight to, four relevant considerations.
First, it was contended that the primary Judge failed to have regard to the fact that the appellant’s drug addiction was the product of “self-medication” following the death of his father. It was also submitted that the appellant’s voluntary decision to attend and complete rehabilitation courses was evidence that he was “at the Cross Roads” and that the primary Judge failed to give sufficient weight to that matter.
Second, it was contended that the primary Judge failed to take into account the impact that the commission of the offences had on the appellant’s prospects of successfully applying for parole in respect of various sentences of imprisonment imposed in 2013. The factual basis for this submission, taken from the remarks on sentence of the primary Judge (at [7] and [9]), was as follows. In March and June 2013 the appellant was sentenced to a total of 18 months imprisonment for separate offences, with a non-parole period to expire on 13 March 2014. On 25 March 2015, the appellant was released on parole until 13 November 2014. As indicated earlier, the offences the subject of this appeal were committed whilst the appellant was on parole. The appellant was arrested for the those offences on 22 May 2014 and was remanded in custody. On 3 June 2014, the Sentence Administration Board cancelled the appellant’s parole for the 2013 sentences. That cancellation was not based on the fact that the appellant had committed the offences the subject of this appeal. Rather, the appellant’s parole was cancelled because he failed to enter and complete the Karralika Residential Rehabilitation Program, which was presumably a condition of his parole. The cancellation of the appellant’s parole meant that he was liable to serve a term of imprisonment until 21 January 2015. On 28 January 2015 the appellant was granted bail in respect of the offences the subject of this appeal.
The nub of the appellant’s argument was that the primary Judge should have taken into account the fact that, even though the cancellation of the appellant’s parole was not based on his commission of the offences the subject of this appeal, but for the commission of those offences the appellant might have successfully reapplied for parole. In the appellant’s submission, the failure to take that fact into account meant that there was an element of double punishment in the sentence imposed. The element of double punishment arose because the primary Judge also treated the fact that the offences were committed whilst the appellant was on parole as an aggravating factor. The appellant submitted that the primary Judge should have backdated the sentence to take into account the period the appellant was in custody as a result of the revocation of his parole. The appellant relied on the judgment of the New South Wales Court of Criminal Appeal in R v Walker [2004] NSWCCA 230 (Walker) in support of this submission.
Third, the appellant submitted that the primary Judge failed to take into account the appellant’s deprived background as an Aboriginal offender in accordance with the High Court decision in Bugmy v The Queen (2013) 249 CLR 571 (Bugmy).
Fourth, the appellant submitted that the primary Judge failed to give sufficient weight to the fact that his mother was seriously ill and that he was her carer prior to his incarceration.
The appellant’s submissions in support of the second ground of appeal, the lack of parity between the sentence imposed on him and the sentence imposed on Mr Kelly, were also somewhat lacking in clarity. The appellant’s principal complaint was that he was sentenced to a period of full-time custody, whereas Mr Kelly was ordered to serve his sentence of imprisonment by way of periodic detention. The appellant contended that there was nothing to distinguish between his culpability and the culpability of Mr Kelly in relation to the offences of aggravated burglary and theft, and that the disparity between the sentences could not be properly justified by either the primary Judge’s findings in relation to the prospects of rehabilitation, or by the fact that the appellant committed the offences whilst on parole. The appellant submitted that, in those circumstances, he had a “justifiable sense of grievance” with the heavier sentence imposed on him, and that there was an appearance that justice had not been done: Lowe v The Queen (1984) 154 CLR 606 at 623 (Lowe).

There is no basis upon which to conclude that the sentence imposed on the appellant was unreasonable or plainly unjust.
The main two offences for which the appellant was sentenced were objectively serious offences. The maximum penalty for the offence of aggravated burglary is imprisonment for 20 years and a fine of $140,000. The maximum penalty for the offence of theft is imprisonment for 10 years and a fine of $140,000. The appellant did not contend that the primary Judge erred in characterising the particular offending conduct of the appellant as being in the “low to mid-range” of seriousness for burglary offences. The facts upon which the appellant was sentenced supported that characterisation.
The other offences for which the appellant was sentenced were also far from minor or trivial offences. All but the offences of proceeding through a traffic light with a red arrow and speeding had maximum penalties that included imprisonment.
The circumstances of the offending were aggravated by the fact that the offences were committed whilst the appellant was on parole for similar offences. There were not many mitigating circumstances. The appellant had a very lengthy criminal record, including multiple previous convictions for offences of the very type for which he was being sentenced. As the primary Judge observed in his remarks on sentence, sentences imposed on the appellant for previous offences had not deterred the appellant from reoffending. Personal or specific deterrence was undoubtedly an important consideration in sentencing the appellant. The appellant was assessed as at a medium risk of reoffending, though the primary Judge was of the view that this would be an underestimation of the risk unless the Court could be satisfied that the appellant had appropriately addressed his drug addiction. The primary Judge found, on the material before him, that the appellant’s commitment to avoiding illicit drug use was “questionable”, though his Honour accepted that the appellant had taken some steps in the right direction. The CADAS and Oolong House reports largely supported that conclusion.
When regard is had to each of these matters, it cannot be concluded that the sentence imposed on the appellant was unreasonable or unjust. The sentences were within the range of sentences that might follow from a proper application of sentencing principles. There is no basis for inferring any error in the application of those principles.
The appellant did not contend that any individual sentence imposed for any of the offences was unreasonable or unjust. Rather, the appellant appeared to submit that a proper application of the totality principle compelled a more lenient total sentence. This submission was put in very general terms. There was no express complaint that the primary Judge erred in ordering the sentences to be served partly cumulatively.
The effect of the appellant’s submissions in support of the contention that the sentence was unreasonable or unjust was (so far as they could be understood) that the primary Judge either ignored or gave insufficient weight to the four considerations referred to earlier: the fact that the appellant was at the “cross roads” in terms of rehabilitation; the potential double punishment arising from the fact that his parole had been revoked; the fact that he had a deprived background as an Aboriginal offender; and the fact that imprisonment would give rise to exceptional hardship to his ailing mother. The appellant contended, in effect, that those four considerations compelled a more lenient overall sentence. In particular, he appeared to contend that these considerations compelled a sentence that did not involve a full-time custodial sentence.
There are two difficulties for the appellant. The first is that none of the four reasons that he advanced for a more lenient sentence has any merit.
A fair reading of the primary Judge’s remarks on sentence does not support the appellant’s contention that the primary Judge ignored, or gave insufficient weight to, the fact that the appellant started taking drugs to deal with his grief when his father died. The primary Judge expressly referred to that fact in his remarks on sentence. Nor did the primary Judge ignore, or give insufficient weight to, the fact that the appellant had taken some steps to deal with his drug addiction. Whilst his Honour did not expressly use the expression “cross roads”, he found that the appellant’s prospects of rehabilitation hinged on whether he had dealt with his drug addiction. As already indicated, his Honour expressly accepted and acknowledged that the appellant had taken some positive steps in the right direction in that regard, but that his commitment was still questionable. Given the terms of the CADAS and Oolong House reports, this finding was at the very least open to his Honour.
The only issue that arises in relation to the primary Judge’s findings concerning rehabilitation is whether it was open to his Honour to find, on the material before him, that Mr Kelly’s prospects of rehabilitation were better than the appellant’s prospects. That issue properly arises in the context of the parity ground. It does not provide a basis for concluding that the sentence imposed on the appellant was manifestly excessive.
The second reason is more fundamental, in that whether the sentence was manifestly excessive is not in any way a function of whether the primary Judge gave insufficient weight to any particular aspect of the sentencing, be that the appellant’s reasons for starting to take drugs, his efforts to cease using drugs, the effect of the relevant offending on the appellant’s capacity to re-apply for parole under an earlier sentence, the needs of the appellant’s mother, or any other factor mentioned in the sentencing hearing.
A failure to have regard to a factor relevant to the appellant’s sentencing could have constituted a specific House v The King error, specifically that the judge “[did] not take into account some material consideration” (House v The King at 505). Alternatively, the various factors mentioned on behalf of the appellant could have provided grounds for a finding that the sentence was manifestly excessive (that is, that the sentence was manifestly excessive having regard to the specified aspects of the appellant’s circumstances, with or without reference to other aspects); such a finding, that “upon the facts [the sentence] is unreasonable or plainly unjust”, would have allowed an inference of unspecified error as permitted by the second limb of House v The King (at 505).
However, neither a specific error nor an inference of unspecified error arises from an assertion that a particular factor relevant in the sentencing was given inadequate (or for that matter excessive) weight; such a claim does not properly “invoke either category of appellate intervention” (see Bugmy, per Gageler J at 597-8; [53]; also French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ at 587-9; [22] to [24]).
The appellant’s contention that he was doubly punished because the primary Judge did not have regard to the time he spent in custody after his parole was revoked is not supported by the evidence. The main difficulty for the appellant is that, unlike the facts and circumstances in Walker, there was no evidence before the primary Judge (or this Court) that the appellant had reapplied for parole, let alone any evidence capable of supporting a finding that the continued revocation of his parole was attributable, in whole or in part, to the commission of the offences for which he was being sentenced. Indeed, it is readily apparent, as ultimately conceded by the appellant through his counsel, that this issue was first raised on appeal. The appellant did not advance any submission to the primary Judge, on the basis of Walker, that some regard should be given to the time he spent in custody whilst his parole was revoked.
The appellant’s arguments concerning double punishment, arising from the revocation of his parole and the fact that the primary Judge’s considation that the fact that the offences were committed whilst the appellant was on parole was an aggravating circumstance, have no merit and are rejected. The revocation of the appellant’s parole for earlier sentences provides no basis for concluding that the sentence imposed by the primary Judge was manifestly excessive.
A similar evidentiary deficiency also undermines the appellant’s submissions based on Bugmy. There was, in short, no evidence capable of supporting a finding that the appellant had a particularly deprived or problematic childhood, or an upbringing beset by problems of alcohol abuse or violence, either as a result of his Aboriginality or otherwise. Indeed, such evidence as there was before the primary Judge in relation to the appellant’s background and family history was to the contrary. The CADAS report included the following information under the heading “Psychological and Family History”:

The appellant’s Pre-Sentence Report included similar information. There was no suggestion in either report that any particular problems arose from the fact that the appellant was one of 11 children, or that he was Aboriginal. There was no suggestion in the reports that the appellant was raised in a household or community beset by alcohol or violence. Nor, indeed, is there any suggestion that any submission was advanced to the primary Judge to the effect that the appellant’s upbringing or family or social history provided a mitigating circumstance. These issues were first raised on appeal. They provide no basis for concluding that the sentence imposed was unreasonable or unjust.
Finally, in relation to hardship to the appellant’s family, there was some evidence before the primary Judge that the appellant’s mother was ill and that the appellant had cared for her. The evidence was, however, far from compelling or overwhelming. A one-paragraph letter from a doctor who examined the appellant’s mother in January 2015 reported that she suffered from “significant medical problems” and was “essentilly [sic] housebound”. The doctor did not elaborate on the nature of the medical problems. The letter also stated that the appellant was his mother’s “long term carer” and that “without [the appellant] her health care needs are sadly lacking”. The source of the statement that the appellant was his mother’s “long term carer” and the basis of the opinion concerning the mother’s health care needs was not further explained.
A letter from a different doctor, apparently from the same medical practice, reported on a consultation with the appellant’s mother in late April 2015. The doctor stated that the appellant’s mother was “quite unwell – an acute exacerbation of her chronic ill health”. The doctor again did not elaborate on the nature of the illness. The letter also recorded that the doctor “understood” that the appellant had visited his mother last week and had “stayed with her as he was concerned about her health”. The source of the doctor’s understanding was not explained.
The primary Judge did not expressly deal with this evidence in his remarks. It does not follow that his Honour erred. Still less does it follow that the sentence imposed was manifestly excessive. The fact that there is no reference to this material in the remarks on sentence does not mean that the primary Judge ignored or failed to have regard to it. It is equally consistent with the primary Judge not giving this material any significant weight. Given the deficiencies in the evidence to which we have already referred, that would hardly be surprising. Added to those deficiencies is the fact that there was no evidence that none of the appellant’s ten siblings would be able to care for their mother during any period during which the appellant was incarcerated. The evidence about the appellant’s mother’s health also did not feature prominently in the submissions made to the primary Judge on the appellant’s behalf. The only submission that was made in relation to the appellant’s mother’s health was in the following terms:

The principles that apply to a ground of appeal against sentence based on a disparity between the sentence and a sentence imposed on a co-offender derive from the so-called “parity principle”. The parity principle is founded on the notion of equal justice and in general terms requires that “like offenders should be treated in a like manner”: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at 472-3; [28] (Green). Parties to the same offence should, if other things are equal, receive the same sentence. However, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and different circumstances: Postiglione v The Queen (1997) 189 CLR 295 at 301 (Postiglione); Green at 472-3; [28]. Matters such as the age, background, previous criminal history, the general character of each offender, mitigating factors and the part each offender played in the commission of the offence have to be taken into account: Lowe v The Queen at 609; Postiglione at 323, 338. A court of criminal appeal considering an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary Judge in drawing distinctions between co-offenders: Green at 475; [32].
The consistency required by the parity principle is focused on the particular case and generally applies to the punishment of co-offenders: Green at 473; [29]. The application of the principle, however, is governed by considerations of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application: Green at 473-4; [30].
The justification for intervention in the case of disparity is that “disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander”: Lowe at 613. Because the sense of grievance necessary to attract intervention with respect to disparate sentences is to be assessed by objective criteria, the application of the parity principle does not involve a judgment about the actual feelings of the person complaining of disparity.
Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of an appellate court’s discretion to intervene that the sentence under appeal is otherwise excessive: Green at 475; [32]. Indeed, a “sentence which would otherwise be appropriate can be reduced …. to a level which, had there been no disparity, would be regarded as erroneously lenient”: Green at 475- 6; [33]; see also Lowe at 613-614. The court’s discretion does not, however, require it to consider reducing a sentence to a level which would be “an affront to the proper administration of justice”: Green at 475-6; [33]; see also R v Doan (2000) 50 NSWLR 115 at 120; [19]; R v Chen (2002) 130 A Crim R 300 at 383-4; [289]; R v Ismunandar; R v Siregar (2002) 136 A Crim R 206 at 217; [23]-[26] (Ismunandar); Rees v The Queen [2012] NSWCCA 47 at [50], [67]; Ngati v R [2013] NSWCCA 203 at [80]; El- Helou v R [2014] NSWCCA 209 at [25].
The inadequacy of the sentence imposed on a co-offender may be of such a degree that any sense of grievance engendered in the offender sentenced more severely cannot be regarded as legitimate: R v Diamond (unreported, New South Wales Court of Criminal Appeal, 18 February 1993); R v Borkowski (2009) 52 MVR 528 at 542-3; [69]; Josefski v R (2010) 217 A Crim R 183 at 199; [65]. In R v Rexhaj (New South Wales Court of Criminal Appeal, 29 February 1996, unreported), Gleeson CJ said, in a passage extracted in Ismunandar at [38] and Saraya v R [2015] NSWCCA 63 at [17]:

Putting aside, for present purposes, the offences that the accused was, but Mr Kelly was not, charged with or convicted of (drive motor vehicle without consent, drive disqualified, dangerous driving, proceed through red traffic arrow, exceed speed limit), there would appear to be a clear disparity between the sentences imposed on the appellant and Mr Kelly for the offences of aggravated burglary and theft. The primary Judge accepted, with respect correctly, that there was little to distinguish between the appellant and Mr Kelly in terms of responsibility for those offences, yet the appellant received an effective head sentence of 27 months imprisonment in respect of those offences (25 months for aggravated burglary and 5 months, 2 months cumulative, in respect of theft) and Mr Kelly received an effective head sentence of 21 months (20 months for burglary and 4 months, 1 month cumulative, in respect of theft). Thus, Mr Kelly’s effective head sentence for these offences was 5 months less than the appellant’s effective head sentence. Perhaps even more significantly, the primary Judge allowed Mr Kelly to serve his sentence by way of periodic detention.
Given this disparity, three questions arise. The first is whether this disparity is explicable on the basis of any differences in the antecedents and personal or subjective circumstances of the appellant and Mr Kelly or their respective participations in the offences such that there could be no legitimate sense of grievance or appearance of injustice arising from the disparity. The second question is whether the disparity arises as a result of any inadequacy of the sentence imposed on Mr Kelly, such that any sense of grievance that might arise is not legitimate. The third question, which, in some respects, is related to the second, and only arises if the first two questions are answered in the negative, is whether the Court should refuse to intervene because intervention would produce a sentence disproportionate to the objective and subjective criminality involved, such that it would be an affront to the proper administration of justice.
In relation to the first question, there was little to distinguish the personal or subjective circumstances of the appellant and Mr Kelly. Both had significant criminal records. Neither had any particularly compelling family or personal backgrounds or circumstances that would militate toward leniency. As has already been noted, the primary Judge justified the “different approach” to sentencing Mr Kelly on two bases. The first was that Mr Kelly’s prospects of rehabilitation were “somewhat better” than the appellant’s prospects. The second was that the appellant committed the offences whilst on parole.
As for the first of these justifications, with the greatest respect to the primary Judge, it is difficult to find any proper basis in the evidence for the primary Judge’s finding that Mr Kelly’s prospects of rehabilitation were better than the appellant’s prospects. As has already been noted, both men had very poor criminal histories. The risk of both men reoffending was assessed to be medium. The offending behaviour of both men appeared to be linked to their misuse of illicit drugs. The prospects of rehabilitation of both therefore appear to have been linked to whether they had, or would be likely to, deal with their drug addictions. In that regard, the appellant had voluntarily participated in rehabilitation programs. Whilst he had not graduated from the Oolong House program as a result of some negative attitudes displayed in the final stages of the program, there were nevertheless some positive results that emerged from his participation in the program. Mr Kelly, on the other hand, had declined any treatment options in respect of his drug use. There was no evidence that he had taken any other positive steps towards rehabilitation. There was no indication that he had any remorse or insight into his offending conduct.
In all the circumstances, the primary Judge’s finding that Mr Kelly’s prospects of rehabilitation were better than the appellant’s prospects was either not open on the evidence, or such differences as did exist did not warrant the imposition of different sentences.
That leaves the fact that the appellant committed the offences whilst he was on parole. Whilst that fact could properly be seen as an aggravating circumstance, it is, again, with the greatest respect to the primary Judge, difficult to see how that factor alone could properly account for the significant disparity between the sentences. It is perhaps sufficient to note that, when close consideration is given to Mr Kelly’s criminal record (which is not easy, given the appalling state of the documentary evidence tendered by the Crown in that regard), it can be seen that Mr Kelly committed the subject offences very shortly (about 3 months) after the expiry of Good Behaviour Orders made by the ACT Supreme Court following a conviction for aggravated burglary, and whilst he was subject to a 12 month suspended sentence bond ordered by the District Court of South Australia on 27 February 2014. Thus, the timing of Mr Kelly’s offending was not much better than the appellant’s and he was also in the community on conditional liberty at the time of the offending.
It follows that neither of the two matters relied on by the primary Judge to justify the different sentences imposed on the appellant and Mr Kelly provide a legitimate explanation for the disparity.
In relation to the second question, the Crown did not appeal against the sentence imposed on Mr Kelly on the basis that it was manifestly inadequate. In all the circumstances, however, the sentence imposed on Mr Kelly would appear to be extremely lenient. In particular, for the reasons already given, the evidence in relation to the prospects of rehabilitation for Mr Kelly did not appear to justify the “different approach” taken by the primary Judge in sentencing Mr Kelly, by which his Honour appears to have meant the order allowing Mr Kelly to serve his sentence by way of periodic detention. In sentencing the appellant, the primary Judge referred to the fact that, in the past, the appellant had been subject to fines, Good Behaviour Orders, supervision, suspended sentences and periods of imprisonment, but that none of those sentences had deterred him from further criminal offending. When regard is had to Mr Kelly’s criminal history, much the same could be said of him.
Whilst the sentence imposed on Mr Kelly may have been lenient, it does not follow that it was manifestly inadequate to the point where it could be concluded that any sense of grievance arising from the sentence disparity was not justifiable or legitimate.
The remaining question, then, is whether the Court should decline to intervene because intervention would produce a sentence disproportionate to the objective and subjective criminality involved, or a sentence that would be an affront to the proper administration of justice. The appellant’s primary submission was that the Court should intervene and order that any further imprisonment to be served by the appellant be suspended and that a Good Behaviour Order should be made. That submission was perhaps made in recognition of the fact that, given recent amendments to the Crimes (Sentencing) Act 2005 (ACT), it is no longer possible or feasible to order the appellant to serve any sentence of imprisonment by period detention, given that the periodic detention must end before 1 July 2016: see s 205 of the Crimes (Sentencing) Act 2005 (ACT).
Does the legitimate sense of grievance arising from the disparity warrant the Court’s intervention even though it is neither appropriate nor possible (in light of the absence of the availability of periodic detention) to re-sentence the appellant for the aggravated burglary and theft offences such that his sentence is effectively the same as Mr Kelly’s sentence for those offences? Whilst the Court was not referred to any authority directly on point, there would appear to be no good reason why the Court should decline to intervene in those circumstances. That is particularly so where the Court is able to reduce the appellant’s sentence to alleviate, to a degree, the sense of grievance without reducing the sentence to the point where it is manifestly inadequate or an affront to the administration of justice. That can be done here by reducing the appellant’s sentence for the aggravated burglary and theft offences so that the effective head sentence for those two offences is effectively the same as the sentences imposed on Mr Kelly, disregarding the order for periodic detention. There should also be some additional accumulation of the remaining offences, to give a total sentence of 25 months from 5 March 2015, a reduction of 8 months from the original sentence. In ordinary circumstances, a consequential reduction of the non-parole period would also be appropriate. However, given that the appellant’s current non-parole period of 16 months is to end on 4 July 2016, less than two months away, and that any reduction in his non-parole period is unlikely to have any impact given the extended processes involved in applying for and being granted parole, we consider that it would be appropriate to suspend the appellant’s sentence with effect from 16 May 2016.
The court will, therefore set aside the orders made by Burns J on 5 June 2015 other than the Good Behaviour Orders in relation to the offences of proceed when traffic arrow red (CC14/05178) and exceed speed limit (CC14/5179) and re-sentence the appellant as follows:

Williams v The Queen [2016] ACTCA 15

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