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Court of Criminal Appeal 28 June 2012

R v Chandler; Chandler v R

[2012] NSWCCA 135

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE APPEAL AGAINST SENTENCE BY APPLICANT PARITY DIFFERENT SENTENCING JUDGES

Citation: R v Chandler; Chandler v R [2012] NSWCCA 135
Court: NSW Court of Criminal Appeal
Date: 28 June 2012
Judges: Bathurst CJ, Basten JA, Hoeben JA, McClellan CJ at CL, Johnson J

Background

The applicant was convicted after trial of four offences committed on 22 March 2009, including two counts of assault with intent to rob whilst armed with a knife, one count of armed robbery, and one count of driving a vehicle without the owner's consent. He later pleaded guilty to a further armed robbery offence committed in April 2009. All offences involved a co-offender, Ms Leota-Lu.

The applicant was sentenced by Armitage DCJ in November 2011. His co-offender had been sentenced separately, by a different judge, on lesser charges arising from the same events. The sentences imposed on the applicant resulted in an effective total non-parole period of approximately four years, with a head sentence extending to January 2015.

Two appeals arose from that sentencing. The Crown appealed on the ground that the sentences were manifestly inadequate, particularly given the sentencing judge's treatment of the applicant's mental illness as it bore on deterrence. The applicant sought leave to appeal on the ground that his sentences were unjustifiably disparate compared with those received by his co-offender.

  • Whether the sentencing judge erred in his approach to mental illness as a factor bearing on specific and general deterrence, rendering the sentences manifestly inadequate
  • Whether the parity principle obliged the sentencing judge to take account of, and align with, the lesser sentences imposed on the co-offender by a different judge
  • Whether a later sentencing judge may, or must, go behind the findings of an earlier sentencing judge when assessing parity
  • Whether differential prosecutorial charging decisions are a matter that a sentencing court may or should address through the parity principle

Decision

Crown appeal: mental illness and deterrence

The sentencing judge accepted that the applicant had suffered lifelong mental illness, to which both his drug use and the commission of the offences were connected. While the Crown argued this approach diminished deterrence to a degree that rendered the sentences manifestly inadequate, the Court of Criminal Appeal rejected that submission. The sentences fell within the available range, and the judge's treatment of mental illness as a mitigating factor did not constitute legal error.

Applicant's appeal: parity

The Court dismissed the parity argument on several intersecting grounds. First, the co-offender had been sentenced on materially different agreed facts, reflecting a different and lesser assessment of her culpability. Second, she faced different and less serious charges, which carried lower maximum penalties. Those two factors together justified the sentencing disparity, and the applicant could not demonstrate a justified sense of grievance.

Parity across different sentencing judges

Basten JA, with whom the full Court agreed, provided a detailed analysis of the parity principle's proper operation. The principle is not a rule that mandates equal outcomes; it is one factor in a broader evaluative exercise. When co-offenders are sentenced by different judges, the earlier sentence becomes a mandatory consideration to which appropriate weight is given, but disparity is not an error in itself. The correct framework for appellate review remains that stated in House v The King.

Differential charging and prosecutorial discretion

The applicant also contended, in effect, that the prosecution had treated his co-offender more favourably by charging her with lesser offences. The Court acknowledged that prosecuting authorities should not differentiate without justification between similarly situated offenders. However, the Court observed that even if such a complaint were valid in principle, it remained unclear how any remedy would operate in practice. A finding of unjustified differential charging would not automatically reduce the applicant's sentences below those warranted by his own convictions.

Orders Made

  • Crown appeal dismissed
  • Leave to appeal granted to the applicant; appeal dismissed

Key Takeaways

  • The parity principle operates as one factor in the sentencing process, not as a freestanding rule requiring equal outcomes for co-offenders. It is a specific application of the equality principle and requires that courts weigh comparability alongside relevant differences in culpability, antecedents, and the offences charged.

  • Where co-offenders are sentenced by different judges, the earlier sentence is a mandatory consideration in the later sentencing exercise, but disparity between the outcomes does not constitute error in itself. Appellate review of that weighing exercise proceeds under the House v The King standard.

  • A later sentencing judge is not obliged to go behind the factual findings made by an earlier sentencing judge when assessing parity. Discrepancies in the factual bases on which each co-offender is sentenced can themselves justify sentencing differences.

  • Differential charging by the prosecution can give rise to practical difficulties when parity is invoked, but a sentencing court does not straightforwardly remedy alleged prosecutorial favouritism by reducing the more seriously charged offender's sentence below what those convictions warrant.

  • The Court of Criminal Appeal endorsed the view that co-offenders should, wherever practicable, be sentenced by the same judge and at the same time. Courts and prosecution authorities were encouraged to consider practice notes and prosecution guidelines to promote this outcome.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 59(2), 94, 97(1), 99, 154A(1)(b), 349
- Criminal Appeal Act 1912 (NSW): s 55D

Cases
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 86 ALJR 36
- House v The King [1936] HCA 40; 55 CLR 499
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
- OM v R [2009] NSWCCA 267
- R v Green and Quinn [2010] NSWCCA 313; 207 A Crim R 148
- Dwayhi v R; Bechara v R [2011] NSWCCA 67; 205 A Crim R 274
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- R v Henry & Ors [1999] NSWCCA 111; 46 NSWLR 346