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Court of Criminal Appeal 9 May 2008

Holden v R

[2008] NSWCCA 100

Assault & violence
CRIMINAL LAW SENTENCING FORM 1 MATTERS PARITY

Citation: Holden v R [2008] NSWCCA 100
Court: New South Wales Court of Criminal Appeal
Date: 9 May 2008
Judge(s): Basten JA, Barr J, Buddin J

Background

The applicant pleaded guilty in the District Court to maliciously inflicting grievous bodily harm in company, an offence carrying a maximum penalty of 10 years imprisonment. Two further matters were taken into account on a Form 1 document: assault occasioning actual bodily harm in company, and common assault. The offending arose from two separate incidents involving a landlord-victim at shared premises in Manly.

The first incident occurred in April 2006, when the applicant and co-offenders subjected the victim to a sustained group assault inside the premises, involving punches, repeated kicks to the head and legs, and stomping on the victim's face. Two days later, the applicant approached the victim outside a hotel and threatened him. The principal charged offence arose from a later incident involving an attack with a broken bottle.

The sentencing judge in the District Court imposed a non-parole period of 2 years 6 months and a total term of 4 years imprisonment. The applicant sought leave to appeal, arguing primarily that his sentence was disproportionate compared to sentences received by his co-offenders.

  • Whether the sentencing judge erred by imposing a sentence on the applicant that was disproportionate to those imposed on his co-offenders, giving rise to a justifiable sense of grievance (the parity principle)
  • Whether differences in the factual bases on which co-offenders were sentenced could justify the sentencing disparity
  • Whether the sentencing judge's refusal to find that the applicant was the ringleader or had struck the victim with a broken bottle meant the applicant should have received the same sentence as his co-offenders

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Buddin J (with whom Barr J agreed) found that the applicant had not demonstrated a justifiable sense of grievance when the relevant distinctions between his case and those of his co-offenders were properly examined. Those distinctions included the applicant's lengthy criminal record, the relative seriousness of his Form 1 matters, and the overall assessment of his role in the offending.

Basten JA added observations on the parity principle more broadly. His Honour noted that co-offenders involved in the same joint enterprise may lawfully be sentenced on different factual bases, because the sentencing court can only act on facts agreed or found to the requisite standard. Aggravating circumstances must be proved beyond reasonable doubt, while mitigating or exculpatory circumstances need only be established on the balance of probabilities. This means one co-offender may be sentenced on materially different facts from another.

The Court acknowledged that the sentencing judge had not been satisfied to the required standard that the applicant was the ringleader or had personally struck the victim with a broken bottle. Even so, the trial judge was entitled to treat the applicant's overall involvement as more serious than that of his co-offenders without making that specific factual finding. Other factors, including the applicant's criminal history and the gravity of his Form 1 matters, independently justified the more severe sentence.

The co-offender Steel, for example, had a minor criminal record consisting solely of dishonesty offences, had his plea treated as entered at the first available opportunity, and was sentenced on a statement of facts that described a considerably less significant role. No error in the application of sentencing principles was established, and the sentence was within a permissible range.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The parity principle, as confirmed in this decision, requires that offenders who are parties to the same offence receive the same sentence only where other things are equal. Where other things are not equal, disparity between co-offenders may be entirely justified.
  • A sentencing court must be satisfied beyond reasonable doubt of any aggravating circumstance before taking it into account against an offender. Mitigating or exculpatory matters need only be established on the balance of probabilities.
  • Because different evidentiary standards apply to aggravating and mitigating matters, co-offenders in the same joint criminal enterprise may legitimately be sentenced on different factual bases, producing different sentences.
  • Where the facts presented against one co-offender are materially less serious than those presented against another, and where their criminal histories and plea circumstances also differ, a significant disparity in sentence does not necessarily give rise to a justifiable sense of grievance.
  • The Court of Criminal Appeal left open the broader question of how far the parity principle operates where co-offenders are sentenced in separate proceedings on materially different fact bases, citing divergent authority on the point.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37

Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Leach v The Queen [2007] HCA 3; 230 CLR 1
- The Queen v Olbrich [1999] HCA 54; 199 CLR 270
- Postiglione v The Queen (1997) 189 CLR 295
- Veen v The Queen [No 2] (1988) 164 CLR 465
- R v Jones (1993) 67 ALJR 376
- R v Howard (1992) 29 NSWLR 242
- R v Storey [1998] 1 VR 359
- R v Hammoud (2000) 118 A Crim R 66
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v Formosa [2005] NSWCCA 363
- R v MSS [2005] NSWCCA 227
- R v Spinks [2007] NSWCCA 52