Citation: Waterson v Regina [2007] NSWCCA 284
Court: NSW Court of Criminal Appeal
Date: 16 October 2007
Judge(s): Hodgson JA, Hislop J, Latham J
Background
The appellant pleaded guilty in the District Court to two counts of armed robbery with an offensive weapon, both arising from knife-point robberies of taxi drivers in Wagga Wagga on the same day. He and a co-offender had stolen knives from a supermarket and discussed the robberies beforehand. The sentencing judge found that both offenders played an almost identical role in each offence.
The sentencing judge imposed an aggregate sentence of six years with a non-parole period of three years and six months on the appellant. The co-offender received a shorter aggregate sentence of four years and three months, with a non-parole period of two years and six months.
The appellant sought leave to appeal, arguing that the difference in sentences gave rise to a justifiable sense of grievance on the parity principle, given that the two offenders had comparable objective and subjective circumstances.
Legal Issues
- Whether the disparity between the appellant's sentence and the co-offender's sentence gave rise to a justifiable sense of grievance, engaging the parity principle
- Whether the co-offender's discount for extraordinary assistance to authorities, combined with the co-offender's breach of conditional liberty, was sufficient to explain the difference in sentences
Decision
Latham J (with Hodgson JA and Hislop J agreeing) restated the governing parity principles from the High Court authorities. Equal justice requires that like offenders be treated alike, but where relevant differences exist between co-offenders, different sentences do not violate that principle. The task is to compare like with like.
The critical distinction in this case was the co-offender's assistance to authorities. The sentencing judge described that assistance as "extraordinary" and "exceptional," noting it had potentially saved a life. A 25% discount was applied to the co-offender's sentence for that assistance, on top of the discount for guilty pleas already applied to both offenders. The co-offender was also serving his sentence on protection, a more restrictive regime with no counterpart in the appellant's circumstances.
The Court accepted that the co-offender had committed the offences while subject to a recognisance (a form of conditional liberty), which was an aggravating factor against the co-offender and not against the appellant. However, the Court held that how much weight the sentencing judge gave to that factor was a matter within the sentencing discretion, and nothing indicated the judge had failed to account for it.
The resulting one-year difference in custodial time did not constitute marked disparity once the co-offender's considerable assistance was properly weighed. The Court also noted that, even if a marked disparity could be shown, intervention would be refused because reducing the sentence would produce a result disproportionate to the appellant's objective and subjective criminality.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- The parity principle requires comparing like with like: where a co-offender has circumstances with no counterpart in the appellant's case, different sentences do not produce a justifiable sense of grievance.
- A discount for extraordinary assistance to authorities is a recognised basis for differential sentencing between co-offenders of otherwise comparable culpability and background.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the weight given to an aggravating factor affecting only one co-offender (here, offending on conditional liberty) remains within the sentencing judge's discretion, and an appellate court will not interfere merely because an arguable discrepancy exists.
- Even where marked disparity is established, appellate courts may still decline to intervene if reducing the sentence would produce a result disproportionate to the offender's criminality.
- Concessions made by experienced counsel at first instance carry significant weight on appeal, particularly where the appellate court finds the concession was in any event open to the sentencing judge.
Legislation and Cases Referenced
Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Lovelock v The Queen (1978) 19 ALR 327
- Postiglione v The Queen (1997) 189 CLR 295
- R v Diamond, NSWCCA, 18 February 1993
- R v Reardon (1996) 89 A Crim R 180
- R v Steele, NSWCCA, 17 April 1997
- R v Boney [2001] NSWCCA 432
Legislation: No specific legislation was cited in the judgment.