Wood v R

Court of Criminal Appeal (NSW)|2022-04-11|Before: Macfarlan JA, Adamson J, Dhanji J, MacFarlan JA

Solicitors: Legal Aid Commission of NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2020/120647 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 23 April 2021 Before: Harris DCJ File Number(s): 2020/120647

Judgment

MACFARLAN JA: I agree with Dhanji J.
ADAMSON J: I agree with Dhanji J.
DHANJI J:

Introduction

On 8 November 2021, Mr Brendan Gilbert Wood ("the applicant") filed an application for leave to appeal the severity of the sentence imposed on him by Harris DCJ sitting in the Downing Centre District Court on 23 April 2021. The application and any subsequent appeal are brought pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).
The applicant seeks leave to appeal on the ground that he "has a justifiable sense of grievance arising from disparity between the sentence he received and that imposed upon [his co-offender] George Layton".
The application raises the principle of parity in the sentencing of co-offenders. The issue arises for consideration in the context of the sentence of imprisonment imposed on the applicant for a single offence and an aggregate sentence imposed on his co-offender, Mr George Layton, for multiple offences. The situation is further complicated by the fact that, by the time the sentences were imposed, Mr Layton was serving a substantial period of imprisonment and his aggregate sentence was ordered to be served partially concurrently with that pre-existing sentence. The application consequently gives rise to an issue of parity as between the sentence imposed on the applicant and the indicative sentence pronounced in relation to Mr Layton for the common offence, and, additionally, to an issue as to how the principle of parity is to apply having regard to the applicant's sentence and the (apparent) effect of the indicative sentence on the period in custody to be served by Mr Layton. This second context gives rise to the need to consider the interplay between the principles of totality and parity.

The sentence imposed on the applicant

The applicant pleaded guilty in the Central Local Court on 25 November 2020 to one offence of armed robbery in company, contrary to s 97(1) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 20 years imprisonment and there is no applicable standard non-parole period.
The applicant was sentenced to a term of 4 years imprisonment commencing on 22 April 2020 with a non-parole period of 2 years and 6 months. The applicant is eligible for parole on 21 October 2022.

The sentences imposed on Mr Layton

Mr Layton was sentenced at the same time as the applicant in relation to the following offences: 1. Robbery armed with offensive weapon contrary to s 97(1) of the Crimes Act on 17 January 2020 (maximum penalty of 20 years imprisonment) ("the common offence"); 2. Robbery armed with offensive weapon contrary to s 97(1) of the Crimes Act on 21 January 2020 (maximum penalty of 20 years imprisonment) ("the McDonald's armed robbery"); and 3. Knowing police were in pursuit, not stopping and driving in a dangerous manner contrary to s 51B(1) of the Crimes Act on 19 January 2020 (maximum penalty of 3 years imprisonment).
The following ten offences were taken into account on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in relation to the police pursuit offence: 1. Stealing a motor vehicle contrary to s 154F of the Crimes Act (maximum penalty of 10 years imprisonment); 2. 6 counts of drive while licence was cancelled contrary to s 54(4)(a) of the Road Transport Act 2013 (NSW) (maximum penalty of 30 penalty units or 6 months imprisonment or both for the first offence; 50 penalty units or 12 months imprisonment or both for the subsequent offences); 3. 2 counts of having goods in custody suspected of being stolen contrary to s 527C(1)(a) of the Crimes Act (maximum penalty of 6 months imprisonment or a fine of 5 penalty units or both); and 4. Knowing police were in pursuit, not stopping and driving in a dangerous manner contrary to s 51B(1) of the Crimes Act (maximum penalty of 5 years imprisonment for the subsequent offence).
The maximum penalties referred to above, are of course, only applicable in the event an offender is to be sentenced for the offence. The nature and number of the offences is however relevant in considering the impact of the Form 1 on the sentence to be imposed when applying the principles in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518.
At the time the above sentences were imposed Mr Layton was serving an effective sentence of 5 years with a non-parole period of 3 years, commencing on 5 April 2019 for the following offences: 1. Robbery armed with offensive weapon and take and drive conveyance, for which he was sentenced by Syme DCJ on 20 May 2020; and 2. Possess unauthorised pistol, for which he was sentenced by Stewart LCM on 9 December 2020.
Harris DCJ sentenced Mr Layton to an aggregate term of imprisonment of 5 years and 3 months commencing on 5 February 2020, with a non-parole period of 3 years and 2 months. The indicative sentences were 4 years and 3 months for the common offence, 4 years for the McDonald's armed robbery and 18 months for the police pursuit (taking into account the Form 1).
The total effective sentence imposed on Mr Layton as a result of the combination of the sentences imposed by Harris DCJ and the pre-existing sentence is one of 6 years and 1 month with a non-parole period of 4 years. The sentence imposed by Harris DCJ effectively extended his non-parole period by 12 months (from 4 April 2022 to 4 April 2023) and his total sentence by 13 months (from 4 April 2024 to 4 May 2025). The sentences imposed on Mr Layton are set out in the form of a graph attached as an annexure to these reasons.

Factual background

The following summary is derived from the statement of agreed facts tendered on sentence.
At about 3:30pm on 17 January 2020, the applicant and his co-offender, Mr Layton, attended the premises of "Kelly's Asian Flower" brothel ("the brothel"). The applicant was wearing a grey hooded jacket, blue trousers and white sneakers. Mr Layton was wearing a black hooded jacket, light-coloured trousers and black, white and grey sneakers. Mr Layton was carrying a black and white bag.
They walked upstairs to the premises and rang the doorbell, posing as customers. The receptionist let them in and took them to a waiting area where they were left alone. Meanwhile, they put on face coverings and gloves and Mr Layton removed a black machete and axe from his duffle bag. The applicant armed himself with a similar black machete.
The applicant and Mr Layton left the waiting area and approached the receptionist who was with some of the other staff. They threatened the staff with the weapons and said "Don't move, just don't move. Just give us all the money." The receptionist handed the applicant $1,500 in cash. Mr Layton asked where the business' safe was located, and the receptionist walked Mr Layton to the staff room, where Mr Layton forced open the safe using the machete and axe he was holding and took $15,000 in cash. He ran back to where the applicant was and said "let's go". They left the premises and were observed by witnesses to get into a white SUV.
Police attended the premises and recovered closed-circuit television footage which showed the applicant's face and the vehicle which was established to be a stolen RAV4.
On 4 February 2020, police observed Mr Layton driving the stolen RAV4 to the applicant's then residence at Darlington. At about 5:40pm Mr Layton was observed walking from that residence carrying a Henley's Luxury sports bag. On 5 February 2020, the police searched the premises of an associate of Mr Layton. A blue headed axe identical to the one used during the robbery was recovered. DNA recovered from the axe's handle matched that of the applicant.
The applicant was arrested on 22 April 2020 and has remained in custody since.

Mr Layton's other offences

As noted above, the applicant and Mr Layton were sentenced together on 23 April 2021 following a joint hearing on 9 April 2021. In respect of Mr Layton, the Crown tendered on sentence the notice of committal, the charge certificate, s 166 certificate, Form 1, agreed facts, criminal history and custodial history.
At that time Mr Layton was also sentenced in relation to another armed robbery offence committed on 21 January 2020 (four days after the common offence) and a police pursuit offence committed on 19 January 2020, with a further ten offences taken into account on a Form 1 attached to the police pursuit offence.
The armed robbery offence occurred at about 2:00am on 21 January 2020. Mr Layton drove the stolen RAV4 with another male to the McDonald's Restaurant in Croydon. Mr Layton entered the restaurant wearing a black balaclava and carrying the same type of machete used in the robbery on 17 January 2020. They threatened the staff with the machetes and demanded cash from the registers. Mr Layton, at one point, walked behind the counter and tapped the machete he was holding on the manager's back. The manager opened all the registers, including the "drive through" register when demanded to do so. They left the premises after taking the money.
The police pursuit offence occurred at about 3:30pm on 19 January 2020. Mr Layton was in the driver's seat of the stolen RAV4. Upon seeing the patrolling police, Mr Layton reversed away from police and accelerated away when police activated warning lights and began to approach him. Thereafter, police commenced a pursuit, with lights and sirens activated, for approximately 3km before terminating the pursuit due to the danger posed to other road users. During the pursuit, he wove in and out of traffic, travelling at speeds in excess of the signposted speed limit and failed to stop at the red light on at least one occasion. This police pursuit occurred while his licence was cancelled, which constituted one of the "drive while licence cancelled" charges on the Form 1.
In terms of the Form 1 offences, between 21 January 2020 and 4 February 2020, Mr Layton was observed driving the stolen RAV4 while his licence was cancelled. Stolen licence plates were found on the vehicle on 22 January 2020. These formed the basis of four of the "drive while licence cancelled" charges and one of the goods in custody charge on the Form 1. A police pursuit on 5 February 2020, where Mr Layton "almost [collided] with one of the police cars, nearly [lost] control of the vehicle while navigating a roundabout, and [proceeded] through numerous red lights without stopping" formed the basis of a further "drive while licence cancelled" charge and a police pursuit charge. Car keys were seized during a search of Mr Layton later that day, which constituted the other goods in custody charge on the Form 1.
The defence tendered a psychological report of Alison Cullen, a forensic psychologist, dated 22 March 2021, a psychological report of Nihal Kucuk, a psychologist, dated 1 March 2021 and clinical notes relating to his admission to Royal Prince Alfred Hospital on 16 January 2019 to 22 February 2019. Mr Layton also relied on two chapters of the Bugmy Bar Book prepared by the Bugmy Bar Book Committee, titled "Childhood Sexual Abuse" and "Early Exposure to Alcohol and Other Drug Abuse", which outline the effects of these experiences in the context of the criminal justice system.

Remarks on sentence

The sentencing judge summarised the agreed facts of the armed robbery offence at the brothel and the facts of the further offences for which Mr Layton was to be sentenced.
In determining the objective seriousness of the armed robbery offence at the brothel, the sentencing judge had regard to the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111. Her Honour found that common features between this robbery and Henry included a limited degree of planning, the use of weapons capable of killing or inflicting serious injury, and limited actual violence but a real threat thereof. However, this robbery differed from Henry in multiple respects adverse to the offenders, including that the offenders were not young, their criminal histories did not warrant leniency, the value of the stolen property was substantial, and the offenders were in company. Her Honour also found that, in contrast to the typical Henry case, the victims were not vulnerable in the sense envisaged in Henry, and the pleas of guilty were early. As to the respective roles of the offenders, her Honour said she did not find "a relevant difference in the roles played by the offenders in the robbery committed upon 'Kelly's Asian Flower'". Her Honour ultimately came to the view that the objective seriousness of this offence was, in the case of both offenders, at the midrange.
The sentencing judge then considered the objective seriousness of the further offences committed by Mr Layton. Her Honour found that the police pursuit offence was "below the midrange of objective seriousness but not at the low end". Her Honour compared the features of the McDonald's armed robbery offence against the Henry guideline but did not specify her finding as to the objective seriousness of that offence.
Her Honour then dealt with each offender's subjective case in some detail, which she found to be favourable to both offenders. In relation to the applicant, her Honour referred to the report of Megan Godbee dated 26 February 2021, which detailed the neglect and physical abuse he experienced as a child and his (related) alcohol and drug abuse since his teenage years. Her Honour noted that Ms Godbee believed he presented some post-traumatic stress disorder symptomology and "attributed his offending to emotional distress, anti-social influence, the disinhibiting effect of ice, a desire to fund his drug use, and a long-standing desensitisation to violence". Her Honour also had regard to a letter written by the applicant and was satisfied that his expressions of remorse in that letter were genuine, and said "while I remain optimistic I am guarded as to his prospects of rehabilitation".
Her Honour applied the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and found that the applicant has had a significantly deprived upbringing, leading to a longstanding desensitisation to violence and drug abuse, which reduces his moral culpability for the armed robbery.
Her Honour allowed a discount of 25% for the applicant's early plea.
In relation to Mr Layton, her Honour referred to the psychological report of Alison Cullen dated 22 March 2021, and the further psychological report of Nihal Kucuk dated 1 March 2021 that was tendered as corroboration of Ms Cullen's opinions. Her Honour outlined details of Mr Layton's troubled childhood, where he was exposed to crime, gun violence and drug use from a young age and reported being sexually assaulted by a Department of Community Services caseworker, which has led to suicidal ideations and drug abuse. Her Honour also considered his history of hospitalisation for drug-induced psychosis, his participation in rehabilitation programs, medical records and noted Ms Cullen's opinion that it is likely that the offender suffered from post-traumatic stress disorder and multiple disorders related to his drug use at the time of the offences. Her Honour was not satisfied on the balance of probabilities that Mr Layton's expressions of remorse to Ms Cullen were genuine. Her Honour said she was "guarded as to [Mr Layton's] prospects of rehabilitation".
As in the case of the applicant, in respect of Mr Layton, her Honour found that his moral culpability was reduced as a result of his substantially disadvantaged childhood and that the weight afforded to general and specific deterrence should be moderated. Her Honour also allowed some moderation for Mr Layton's underlying mental conditions as diagnosed by Ms Cullen. Her Honour then considered the principle of parity with respect to the common offence. While her Honour noted that the strengths of the offenders' subjective features were similar, her Honour also observed that Mr Layton had a "somewhat worse criminal history", his offences were committed while on bail for similar offences, including armed robbery, and he was not genuinely remorseful, unlike the applicant. Having identified these differences, and taking into account the discount of 25% for his early pleas, her Honour pronounced the indicative sentences and imposed the term of imprisonment set out above.
The ratio between the non-parole period and head sentence imposed on the applicant and Mr Layton were reduced to 62.5% and 60.3% respectively, as the sentencing judge was satisfied there were special circumstances. In the applicant's case, the finding was on the basis of the need for a longer period of supervision "during which his treatment and intervention for his chronic drug addiction and psychological symptomology can be monitored". In relation to Mr Layton, the finding was on the basis of accumulation, the risk of institutionalisation and the need to facilitate his transition back into society.

Parity isolated to the common offence

The principle of parity is well known. In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, French CJ, Crennan and Kiefel JJ said (at [28]-[29] and [31]): "[28] "Equal justice" embodies the norm expressed in the term "equality before the law". It is an aspect of the rule of law. It was characterised by Kelsen as "the principle of legality, of lawfulness, which is immanent in every legal order." It has been called "the starting point of all other liberties." It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen: "Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect." (emphasis in original) Consistency in the punishment of offences against the criminal law is "a reflection of the notion of equal justice" and "is a fundamental element in any rational and fair system of criminal justice". It finds expression in the "parity principle" which requires that like offenders should be treated in a like manner. As with the norm of "equal justice", which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. [29] General concepts of "systematic fairness" and "reasonable consistency" in sentencing, as an aspect of the administration of federal criminal justice, were discussed in Hili v The Queen. They apply to persons charged with similar offences arising out of unrelated events. The consistency they require is "consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence." That kind of general consistency is maintained by the decisions of intermediate courts of appeal. The consistency required by the parity principle is focussed on the particular case. It applies to the punishment of "co-offenders", albeit the limits of that term have not been defined with precision. … [31] Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may "reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender". The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: "the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done." The sense of grievance necessary to attract appellate 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 feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise." (Footnotes omitted.)
In the present matter the sentencing judge considered the respective roles played by the two offenders but ultimately found there was no relevant difference between the two. This finding was not the subject of challenge.
The primary differences between the respective offenders with respect to matters impacting on sentence are relatively few and were identified by the sentencing judge. In favour of the applicant and correspondingly against Mr Layton, are the fact that Mr Layton committed the offence whilst on bail (including for an armed robbery), Mr Layton's record was worse than the applicant's and he was not found to be remorseful. Conversely, at the time of the offence the applicant was 33, while Mr Layton was 26.
In the case of Mr Layton, the sentencing judge also considered and ultimately allowed "some moderation for the underlying mental conditions diagnosed by [the author of the psychological report] in a general way". However, her Honour in this context observed that Mr Layton's afflictions were not such as to impact his appreciation of the wrongfulness of his actions, and that to the extent that his problem-solving and decision-making were impacted by his consumption of methylamphetamine, he had done so deliberately or recklessly. It is apparent from the totality of her Honour's remarks on this subject, that any allowance was not great. Indeed, when her Honour specifically considered parity as between the two offenders she did not refer to this matter. I do not say this by way of any criticism, but rather it appears to reflect the fact that her Honour did not regard this as a matter of significance for the purposes of differentiating between the two offenders. This was understandable given that the various diagnoses were, with the exception of the post-traumatic stress disorder, related to the Mr Layton's drug use. There was, further, a connection between the various mental health issues and Mr Layton's background of profound disadvantage which was also taken into account.
The sentencing judge indicated she was "guarded" as to Mr Layton's prospects of rehabilitation. In relation to the applicant, she said, "whilst I remain optimistic I am guarded as to his prospects of rehabilitation". The optimism in the applicant's case was likely a manifestation of her Honour's findings as to the applicant's genuine remorse and his lesser record (which was also over a longer period, given his additional years).
In the result, her Honour having carefully considered the circumstances of each offender determined that the indicative sentence with respect to Mr Layton for the relevant armed robbery offence should be three months longer than the sentence imposed on the applicant. The extent to which the applicant was entitled to a greater degree of leniency is not capable of mathematical precision. As Rothman J (with whom Hoeben CJ at CL and N Adams J agreed) neatly put it in Bahcekapili v R [2020] NSWCCA 296, at [7], "[t]here is, in this area, as with sentencing generally, no one correct sentence and no one correct relationship". Thus, while intervention on the basis of parity is not dependent upon error in the House v The King (1936) 55 CLR 499; [1936] HCA 40 sense, the potential variability in the relationship between sentences imposed on co-offenders necessarily informs when a particular offender's sense of grievance is, or is not, justifiable.
In the present case it is relevant to observe that both offenders were sentenced by the same judge who carefully considered their respective cases: see Usher v R [2016] NSWCCA 276 at [73]. I am required to "have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions" between the applicant and his co-offender: Green v The Queen; Quinn v The Queen at [32]. Ultimately, I am not of the view that the degree of differentiation allowed in favour of the applicant was insufficient to reflect the relevant differences in the respective cases of the applicant and the co-offender. In other words, I am not of the view that the applicant has a justifiable sense of grievance simply based on his sentence when compared to the indicative sentence pronounced with respect to his co-offender for the common offence.

Parity in the context of the effect of the sentences imposed on Mr Layton for the entirety of his offending

As can be seen from the sentences set out above, and more clearly demonstrated in the graph annexed to these reasons, the sentence imposed by Harris DCJ of 5 years and 3 months with a non-parole period of 3 years and 2 months had the effect of extending his existing non-parole period by a year and the total sentence by 13 months.
The total sentence imposed on Mr Layton was the result of the application of the totality principle, which applied when sentencing Mr Layton as he was to be sentenced for multiple offences and was serving a pre-existing sentence. The totality principle requires that when sentences are imposed for multiple offences it is necessary that the aggregation of those sentences is a "just and appropriate" measure of the total criminality involved in their commission: D A Thomas, Principles of Sentencing, (2nd ed, 1979, Heinemann) at 56-57, as cited in Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 63; and see also Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 307-8; R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159.
As submitted by the applicant it is not sufficient in the circumstances of this case to determine the applicant's complaint simply by a comparison of the applicant's sentence with Mr Layton's indicative sentence for the common offence. That does not mean, however, that the applicant's sentence is to be compared with the additional one year imposed on Mr Layton with respect to the two armed robberies and the police pursuit. Even less does it mean that given the extension of Mr Layton's sentence related to two armed robberies, he should be regarded as having received punishment of only six months for each of them. On the other hand, nor is the application of the totality principle "a complete answer" to the complaint based on parity: Kelly v R [2017] NSWCCA 256 per Beech-Jones J (as his Honour then was) at [26] (Basten JA and Fagan J agreeing). A more subtle analysis is required.
In Postiglione v The Queen the applicant was sentenced along with a co-offender, Savvas both of whom were involved in two separate conspiracies to import prohibited drugs. He was sentenced to imprisonment for 18 years with a non-parole period of 13 years and 10 months. Savvas received a sentence of 25 years with a non-parole period of 18 years. The lesser sentence imposed on Postiglione reflected a lesser role in the offence together with discounts reflecting his plea of guilty and assistance. So far so good. However, at the time the sentences were imposed (and indeed at the time the offenders involved themselves in the conspiracies) both men were serving lengthy sentences. Postiglione was serving a sentence of 12 years with a non-parole period of 9 years. Savvas was serving a sentence of 25 years with a non-parole period of 18 years. The commencement date of the new sentence imposed on Postiglione was such that it extended his existing sentence by 12 years and 2 months, and his non-parole period by 11 years. The further sentence imposed on Savvas had the effect of extending his sentence and non-parole period by only 5 years and 10 months.
Dawson and Gaudron JJ, with Kirby J who gave separate reasons, made up the majority (although the majority did not speak with one voice, as pointed out by Beech-Jones J in Kelly v R). Dawson and Gaudron JJ said, in an oft quoted passage (at 301-2): "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. The different circumstances involved in this case, namely, the fact that Savvas was the principal organiser in both conspiracies and that Postiglione rendered significant assistance to police and prosecuting authorities, clearly require that Postiglione receive a markedly lesser sentence than that imposed on Savvas." (footnotes omitted)
This reflects what was later said in Green v The Queen; Quinn v The Queen, in the passage set out above in the context of the "simple" comparison between the applicant's sentence and Mr Layton's corresponding indicative sentence.
Importantly, for present purposes their Honours went on to observe (at 302): "If regard is had solely to the head sentences - twenty-five years in the case of Savvas, eighteen years in Postiglione's case - the difference may fairly be regarded as reflecting their different roles in the conspiracies in respect of which they were convicted and Postiglione's subsequent co-operation with police and prosecuting authorities. However, the head sentence is but one component of the sentences. A proper comparison involves a consideration of all components."
Their Honours continued (at 302-3): "So far as concerns the totality principle, the Court of Criminal Appeal proceeded on the basis that "Grove J was necessarily obliged to give effect to that principle in sentencing Savvas". Without mentioning any need to have regard to the principle in its application to Postiglione, it was then said that "when the sentences ... are viewed in the light of the well understood legal principle of totality, any sense of grievance which results is seen to be without justification". The approach adopted by the Court of Criminal Appeal in this case treats or has the effect of treating the total period to be served in custody and, more particularly, the actual period to be served in consequence of the offences committed as irrelevant to the proportion which the sentences imposed on Postiglione and Savvas should bear to each other. In the circumstances of this case, the real punishment for both Savvas and Postiglione is the extra period which they must spend in prison. Due proportion cannot be determined without taking it into account. However, that is not to say that it is the only matter to be taken into account."
The last sentence is important. As to what, in addition to the actual effect of the sentences is to be taken into account, their Honours said (at 303), that in the circumstances of that case "the proper course … is to have regard to the total effect of the sentences imposed on them, not merely the period by which their prior sentences were increased." Their Honours then proceeded to analyse the aggregate of the individual sentences imposed on each offender noting that the degree of concurrency in Postiglione's case was such that the sentence imposed was four-fifths of that aggregate whereas in the case of Savvas it was three-fifths. Their Honours said of this (at 304): "…the difference between the effective total sentences - thirty years ten months in the case of Savvas, twenty-four years two months for Postiglione - and the different proportions that they bear to the aggregate sentences - three-fifths and four-fifths respectively - are, in our view, such as to give rise to a "justifiable sense of grievance"."
Their Honours ultimately considered the matter having regard to due proportion with respect to the total criminality of the two offenders and said this (at 304): "Even allowing a greater benefit to Savvas in application of the totality principle, the various factors which favour Postiglione require that his total effective sentence, ie, the actual period which he is liable to spend in prison in respect of the offences for which he was sentenced in this country, should be of the order of two-thirds of the total period which Savvas is liable to serve in consequence of his sentences."
In Kelly v R, Beech-Jones J, having undertaken a detailed analysis of the reasons of Dawson and Gaudron JJ in Postiglione v The Queen, went on to consider various judgments of this Court that have applied that decision in the context of claims of lack of parity by an offender against another offender who received the benefit of the totality principle. His Honour said, at [33]: "A number of cases in this Court have considered the circumstance under consideration here, namely a claim of a lack of parity between a sentence imposed on a co-offender who was sentenced for multiple offences and received the benefit of the totality principle and another offender who did not, including [Bell v R [2008] NSWCCA 206], Tran v Regina [2006] NSWCCA 266 ("Tran"); Ayik v Regina [2013] NSWCCA 119 ("Ayik") and [El-Helou v R [2014] NSWCCA 209]. Consistent with Postiglione in each of these four cases the Court took into "account" the actual gaol time served by each of the offenders solely referable to the common offence. However, the weight attributed to that factor varied, none of the cases considered that it was determinative and in each case, the Court did not engage in a strict mathematical comparison between the time served by the co-offender that was solely referable to the common offence and the non-parole period imposed on the applicant for leave to appeal (Bell at [40]; Tran at [24]; Ayik at [33] to [36]; El-Helou at [30]). Instead, the Court considered all the components of the sentences that were being served including the sentences being served for unrelated offences committed by the co-offender. This is illustrated by considering Ayik and El-Helou."
After a detailed analysis of the bases of the decisions in the cases referred to in the above passage his Honour concluded (at [39]), and consistent with the reasons of Dawson and Gaudron JJ in Postiglione v The Queen, what must ultimately be compared "is all the components of the sentence for all the offences that each of the offenders is serving and the circumstances of the common and unrelated offending of the co-offender".
Returning to the present case, the respondent in oral submissions agreed that what is required, consistent with the view of Beech-Jones J set out above, is for the Court to step back and consider all the offending and the sentences imposed on Mr Layton, for the purposes of determining whether this applicant has a justifiable sense of grievance. The respondent in oral submissions accepted that he did. The concession is, in my view, well-made. Mr Layton is ultimately subject to a sentence of 6 years and 1 month with a non-parole period of 4 years. That sentence encompasses the criminality involved in three armed robberies, a police pursuit, an offence of take and drive conveyance, and an offence of possession of an unauthorised pistol. In comparison the applicant is serving a sentence of 4 years with a non-parole period of 2 years and 6 months in relation to the single armed robbery he has in common with Mr Layton and for which he was found to be deserving of a slightly shorter sentence. While it is not possible to say the principle of totality was applied less favourably to the applicant, as occurred in Postiglione v The Queen, (given the principle did not apply to the applicant at all), it is possible to say that the application of that principle resulted in significant leniency being extended to Mr Layton with no corresponding amelioration of the sentence imposed on the applicant. The extent to which leniency has been afforded to Mr Layton is such that the applicant's sentence of 4 years with a non-parole period of 2 years and 6 months, while on its own unremarkable, is such as to give rise to a justifiable sense of grievance when compared against his co-offender Mr Layton.

Resentence

The applicant relied upon the following affidavits in the event of resentence: 1. Affidavit of Pip Hill, the applicant's solicitor affirmed 15 March 2022; 2. Affidavit of the applicant sworn 15 March 2022; and 3. Affidavit of Pip Hill affirmed 5 April 2022.
In short that material suggests that the applicant remains, at least motivated with respect to his rehabilitation. Further, his mother's health has deteriorated, adding to his anxiety and therefore the onerousness of his imprisonment. The affidavit material also established that the applicant's conditions have been difficult as a result of the COVID-19 pandemic, which has resulted in periods in isolation and cancellation of various courses in which the applicant has been enrolled. I am mindful of, and do not underestimate, the difficulties prisoners including the applicant have experienced in custody as a result of the pandemic. However, it is important to bear in mind that intervention in the present matter is based on considerations of parity. In this regard there is no reason to think that the applicant's conditions have been any more onerous than those endured by Mr Layton.
For the reasons set out above, there is no mechanical answer as to the sentence that should be imposed. It remains the case that the applicant committed, in company with the co-offender, a very serious armed robbery. In the circumstances, I am of the view that, taking into account the relative culpabilities of the applicant and his co-offender, together with the total criminality and sentences imposed on that co-offender, the appropriate term of imprisonment is one of 3 years and 6 months with a non-parole period of 2 years.

Orders

I propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. Quash the sentence imposed on Brendan Gilbert Wood in the District Court by her Honour Judge Harris. 4. In lieu thereof, impose a sentence of imprisonment of 3 years and 6 months commencing 22 April 2020 and expiring on 21 October 2023, with a non-parole period of 2 years expiring on 21 April 2022. 5. Specify that the earliest date the applicant will be eligible to be released on parole is 21 April 2022.

Sentences imposed on Mr Layton (100154, pdf)

Amendments 25 July 2022 - formatting amendment at [37] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 July 2022

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