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Court of Criminal Appeal 16 November 2009

OM v R, MH v R, AA v R, AS v R

[2009] NSWCCA 267

Also reported as (2009) 212 A Crim R 532
Sexual offences
SENTENCING PARITY SEXUAL ASSAULT OFFENCES LATER OFFENDERS GIVEN LESSER SENTENCES

Citation: OM v R, MH v R, AA v R, AS v R [2009] NSWCCA 267
Court: NSW Court of Criminal Appeal
Date: 16 November 2009
Judge(s): Basten JA; Fullerton J; McCallum J

Background

Four juvenile co-offenders (identified only by initials due to publication restrictions under the Children (Criminal Proceedings) Act 1987) were convicted of sexual assault offences and sentenced by a District Court judge. Their sentences each included a 12-month non-parole period. Two other co-offenders involved in the same criminal venture were sentenced later, by different judges, and received lesser sentences.

The four earlier-sentenced applicants sought leave to appeal. They argued, first, that their original sentences were manifestly excessive, and second, that the disparity between their sentences and those of their co-offenders gave rise to a justifiable sense of grievance warranting appellate intervention.

The Crown conceded that the later, lower sentences imposed on the co-offenders were not so lenient as to themselves be appellable, yet the applicants contended that the resulting disparity nonetheless required the Court to reduce their non-parole periods.

  • Whether the sentences imposed on the four applicants were manifestly excessive
  • Whether the lesser sentences subsequently imposed on co-offenders by different judges created an unjustifiable disparity
  • Whether the parity principle applies where an applicant was sentenced before the co-offender with whom comparison is sought
  • Whether appellate intervention was warranted to reduce the non-parole periods in order to remedy the disparity

Decision

The Court rejected the manifestly excessive ground for all four applicants, finding the original sentences were appropriate when passed. The more substantial question was whether the subsequent, lighter sentences given to co-offenders required intervention on parity grounds.

Basten JA acknowledged the conceptual difficulty in disturbing otherwise sound sentences solely because a later co-offender received a lesser penalty, particularly where the lower sentence was not itself appellable. His Honour noted that the obligation to intervene nonetheless appeared to follow from the principles established in Lowe v The Queen and affirmed in Postiglione v The Queen, which ground the parity principle in the fundamental requirement of equal justice.

The Court confirmed that the parity principle is not limited to cases where the applicant was sentenced after the comparator. Relying on the High Court's rejection of a contrary position in Jones v The Queen (1993), the Court held that an applicant sentenced before a co-offender may still invoke disparity as a ground of appeal if the later sentence produces an unjustifiable inequality.

Having found that a justifiable sense of grievance did arise from the disparity with the co-offender KD's sentence, the Court reduced each applicant's non-parole period from 12 months to 9 months. The total length of each sentence remained unchanged; only the non-parole periods were reduced, with the balance of term extended correspondingly.

Orders Made

For each of AA, AS, MH (on both counts), and OM:

  • The existing non-parole period of 12 months was quashed
  • A non-parole period of 9 months was substituted, with adjusted commencement and expiry dates for each applicant
  • Each applicant was directed to serve their sentence in a juvenile detention centre
  • The sentencing judge's orders regarding release on parole and conditions of parole were left undisturbed
  • The total length of each sentence was not altered

Key Takeaways

  • The parity principle, rooted in the equal justice requirement confirmed in Lowe v The Queen, can oblige an appellate court to reduce an otherwise appropriate sentence where a co-offender's later, lower sentence creates unjustifiable disparity.
  • A sentence does not become immune from a parity challenge simply because it was imposed before the comparator co-offender was sentenced. The Court of Criminal Appeal confirmed, following Jones v The Queen (1993), that the temporal sequence does not defeat the ground.
  • The Crown's concession that the later, lower sentence was not itself appellable did not prevent the Court from intervening with the earlier sentences. The existence of disparity, not the appellability of the comparator sentence, drives the analysis.
  • Appellate intervention on parity grounds is directed at the non-parole period. Here, the Court reduced non-parole periods without disturbing the total sentence length, resulting in a longer balance of term to be served on parole.
  • Publication of the applicants' names remained prohibited under s 11 of the Children (Criminal Proceedings) Act 1987, notwithstanding that all offenders were adults by the time of the appeal.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- Jones v The Queen (1993) 67 ALJR 376
- Ellis (1993) 68 A Crim R 449
- South West Africa Cases (Second Phase) [1966] ICJR 6
- Street v Queensland Bar Association [1989] HCA 53; 168 CLR 461
- R v Armstrong [2001] NSWCCA 77
- R v Do [2005] NSWCCA 209
- R v Ismunandar [2002] NSWCCA 477; 136 A Crim R 206
- R v Kairouz [2005] NSWCCA 247
- R v Li [2005] NSWCCA 154
- R v LLM [2005] NSWCCA 302
- R v Pan [2005] NSWCCA 114
- Stanton v Regina [2008] NSWCCA 326
- Tatana v R [2006] NSWCCA 398
- Truong v R [2009] NSWCCA 122
- Reardon (1996) 89 A Crim R 180