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22
Court of Criminal Appeal 20 October 2010

Gill v R

[2010] NSWCCA 236

Fraud & dishonestyTheft & property
CRIMINAL LAW APPEAL AGAINST SENTENCE PARITY PRINCIPLE

Citation: Gill v R [2010] NSWCCA 236
Court: New South Wales Court of Criminal Appeal
Date: 20 October 2010
Judge(s): McColl JA; Hulme J; Latham J

Background

The appellant was sentenced in the Sydney District Court in April 2009 following guilty pleas to four offences committed in 2006: entering a building with intent to steal, aggravated break and enter with arson, and two counts of malicious destruction of property by fire. The offences involved burning down a retail store (partly to destroy fingerprint evidence after a theft), a council-owned structure, and a demolition business. Total property damage and insurance payouts exceeded $600,000. A co-offender, Dale Nugent, participated in all four offences alongside the appellant.

The sentencing judge imposed a total effective sentence of 8 years and 3 months with a non-parole period of 6 years, after allowing a 12.5 per cent discount for the late guilty plea. Nugent received a different sentence, reflecting different findings about his individual circumstances. The appellant sought leave to appeal on the sole ground that the disparity between his sentence and Nugent's gave him a justifiable sense of grievance.

  • Whether the parity principle required appellate intervention because the appellant's sentence was unjustifiably disparate compared to his co-offender Nugent's sentence.
  • Whether the sentencing judge erred in failing to treat the need to preserve parity as a "special circumstance" under section 44 of the Crimes (Sentencing Procedure) Act 1999, which would have allowed adjustment of the ratio between the non-parole period and the balance of term.

Decision

The Court of Criminal Appeal granted leave to appeal but unanimously dismissed the appeal. McColl JA (with Hulme and Latham JJ agreeing) found that the sentencing judge had been acutely conscious of the need to ensure parity and had expressly addressed the differences in circumstances between the appellant and Nugent. Those differences were sufficient to explain and justify the disparity in the sentences imposed.

The Court examined whether parity considerations could themselves constitute "special circumstances" warranting a reduction in the non-parole period relative to the head sentence. It confirmed, drawing on earlier authority, that different non-parole periods across co-offenders do not of themselves constitute a breach of the parity principle where the difference is explained by different personal circumstances. The observation from prior case law that parity may in appropriate cases constitute a special circumstance operates as a reminder to sentencing judges to cross-check final sentences against those of co-offenders, not as a freestanding ground of appeal.

The Court also noted the appellant's concession that Nugent's sentence, particularly the relationship between the head sentence and non-parole period, could be seen as generous. That concession was properly made, and itself weighed against appellate intervention: a generous sentence imposed on a co-offender does not automatically require upward revision of the co-offender's sentence or downward revision of the appellant's to match it.

No error on the part of the sentencing judge was established, and the appeal was dismissed accordingly.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle requires that co-offenders not have a justifiable sense of grievance arising from unwarranted differences in sentence, but differences in individual circumstances between co-offenders can legitimately explain and justify sentencing disparity.
  • Under section 44 of the Crimes (Sentencing Procedure) Act 1999, the need to preserve parity between co-offenders may in appropriate cases constitute a "special circumstance" justifying an adjustment to the non-parole period, but this operates as a cross-check rather than an independent ground of appeal.
  • Different non-parole periods imposed on co-offenders do not, by themselves, establish a breach of the parity principle where the difference is attributable to different findings about each offender's circumstances.
  • Where an appellant concedes that a co-offender's sentence appears generous, that concession militates against appellate intervention: a below-par sentence imposed on a co-offender does not automatically entitle another co-offender to a reduction.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing judges must be vigilant to compare their final sentences against those of co-offenders, but the absence of any demonstrated error will defeat an appeal founded solely on the parity principle.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 112(2), 114(1)(d), 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54A
- Criminal Appeal Act 1912 (NSW)
- Rural Fires Act 1997 (NSW), s 100(1)(a)

Cases:
- Chen, Siregar, Ismunandar & Lau [2002] NSWCCA 174; (2002) 130 A Crim R 300
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- England v R; Phanith v R [2009] NSWCCA 274
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Josefski v R [2010] NSWCCA 41
- Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
- OM v R; MH v R; AA v R; AS v R [2009] NSWCCA 267
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- R v Do [2005] NSWCCA 209
- R v Rexhaj (NSW Court of Criminal Appeal, 29 February 1996, unreported)
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- R v Wahabzadah [2001] NSWCCA 253
- Tatana v R [2006] NSWCCA 398