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Court of Criminal Appeal 10 June 2011

Thaver v R

[2011] NSWCCA 106

Theft & property
CRIMINAL LAW SENTENCE PARITY PRINCIPLE 3 OFFENCES OVERALL DISPARITY OF 3 MONTHS NO JUSTIFIABLE SENSE OF GRIEVANCE.

Citation: Thaver v R [2011] NSWCCA 106
Court: Court of Criminal Appeal, New South Wales
Date: 10 June 2011
Judges: McClellan CJ at CL, Blanch J, Davies J

Background

The applicant and his co-offender committed three armed robberies of taxi drivers in the Western Sydney area between December 2007 and January 2008. All three offences followed a similar pattern: the pair would book a cab, direct the driver to an isolated location, and then rob him, in some instances with significant violence.

The sentencing history was complex. The applicant was sentenced by Judge Knight in December 2008 for the second and third offences. The co-offender was sentenced for all three offences together by Judge Graham. The applicant was then sentenced separately by Judge McLoughlin for the first offence (the 31 December 2007 robbery), which gave rise to this appeal.

The applicant did not challenge the length of his sentence on ordinary grounds. His sole ground of appeal was that Judge McLoughlin had breached the parity principle by imposing a sentence that left him with a justifiable sense of grievance when compared with the sentence received by his co-offender.

  • Whether the parity principle was breached when multiple judges sentenced the applicant and his co-offender for overlapping offences in separate proceedings
  • Whether any overall disparity between the applicant's total sentence and his co-offender's total sentence gave rise to a justifiable sense of grievance
  • Whether an error in the expiry date of the additional term imposed by Judge McLoughlin required correction

Decision

The Court acknowledged that the parity question was complicated by the fragmented sentencing history. The applicant had been sentenced by two different judges for two of the three offences, while the co-offender was sentenced for all three offences by a single judge. Comparing individual sentences in isolation risked producing a misleading picture, so the Court examined the overall sentences served by each offender across all relevant offences.

Davies J undertook a careful comparison of the total effective sentences for each offender. The co-offender received a slightly longer overall sentence, which reflected aggravating factors personal to him, including additional offending and a worse criminal history. When the respective sentences were compared in their totality, any disparity was modest, amounting to approximately three months. The Court found this did not give rise to a justifiable sense of grievance on the applicant's part, applying the principle stated in Lowe v R.

On the parity ground, the appeal was dismissed. However, the Court identified an arithmetical error in the expiry date of the additional term imposed by Judge McLoughlin. The Crown conceded the error, and the Court corrected the expiry date of the additional term accordingly.

Orders Made

  • Leave to amend grounds to seek leave to appeal against sentences imposed by Judge Knight: refused
  • Leave to appeal against sentences imposed by Judge McLoughlin: granted
  • The additional term of 15 months imposed by Judge McLoughlin corrected to expire on 9 July 2014, with the applicant to be released to parole on 9 March 2013
  • Appeal otherwise dismissed

Key Takeaways

  • The parity principle requires a comparison of overall effective sentences across all relevant offences, not a sentence-by-sentence comparison in isolation, particularly where co-offenders have been sentenced in separate proceedings before different judges.
  • A disparity of approximately three months between co-offenders' total sentences did not, in the circumstances of this case, give rise to a justifiable sense of grievance sufficient to establish a parity error.
  • Where individual offending histories, criminal records, or personal circumstances differ between co-offenders, those differences can justify what might otherwise appear to be unequal treatment in sentencing.
  • Arithmetical errors in the calculation of sentence expiry dates are amenable to correction on appeal, particularly where the Crown concedes the error and the sentencing judge's remarks create ambiguity about the intended sentence structure.
  • The Court of Criminal Appeal confirmed that the parity principle, as articulated in Lowe v R, remains the governing framework for assessing whether co-offenders have been treated unjustly relative to one another.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)

Cases
- Lowe v R (1984) 154 CLR 606