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Court of Criminal Appeal 30 March 2012

Rees v R

[2012] NSWCCA 47

Assault & violenceTheft & property
CRIMINAL LAW SENTENCING PARITY PRINCIPLE OFFENDERS CONVICTED OF SAME OFFENCE IDENTICAL SENTENCES IMPOSED FOR OFFENCE OFFENDER

Citation: Rees v R [2012] NSWCCA 47
Court: NSW Court of Criminal Appeal
Date: 30 March 2012
Judges: Macfarlan JA, RS Hulme J, Garling J

Background

The applicant was one of three men who broke into a nightclub at The Entrance on the NSW Central Coast in the early hours of 7 November 2009. Armed with a hammer, the applicant led the forced entry, threatened staff, struck the manager with a pole, and caused significant property damage. He and his co-offenders were arrested at the scene.

The applicant pleaded guilty in the District Court to aggravated break, enter and commit a serious indictable offence (maximum 20 years, with a standard non-parole period of five years) and intentional or reckless destruction of property in company (maximum six years). Judge King SC sentenced the applicant to a total of four years and eight months, with a non-parole period of three years and six months.

One co-offender, Mr Boyd, received identical sentences for the same offences but also carried separate sentences for additional offences committed while on bail. Those earlier sentences were made partially concurrent with the shared sentences, producing a marginally longer overall effective sentence for Boyd. The applicant sought leave to appeal on the basis that Boyd's overall effective sentence was less than his own, arguing this created a justifiable sense of grievance under the parity principle.

  • Whether the partial concurrency applied to Mr Boyd's sentences, as a consequence of the totality principle, gave rise to a "marked" disparity that would justify reducing the applicant's sentence under the parity principle.
  • Whether the sentencing judge erred in the manner in which the sentences for Mr Boyd were structured and overlapped.
  • Whether any reduction to the applicant's sentence was warranted having regard to the overall sentencing range.

Decision

Garling J, with whom Macfarlan JA agreed, found there was a clear and good reason for the apparent difference in effective sentences. The concurrency applied to Mr Boyd's sentences was the direct result of the totality principle operating on his additional offending committed while on bail. That principle had no bearing on the applicant's sentencing because the applicant had no such additional offences.

Garling J emphasised that the actual sentences imposed on both men for the common offences were identical. The modest overlap created by the partial concurrency of Boyd's sentences reflected a proper exercise of the sentencing judge's discretion, within an appropriate range, to account for the totality of Boyd's separate criminal conduct.

The court held that any discrepancy was not "marked" and would not, viewed objectively, give rise to a justifiable sense of grievance. RS Hulme J agreed with the orders but expressed some reservation about apportioning the effect of the concurrency between the two groups of sentences, preferring to assess the overall picture. Looking at total sentences and non-parole periods as a whole, Hulme J was also not persuaded a marked disparity existed.

Garling J added a further reason for dismissing the appeal: the sentence already imposed on the applicant was at the low end of the appropriate range. Any reduction to the non-parole period would have produced a sentence so low as to be entirely inadequate for what were described as very serious offences.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle does not automatically entitle a co-offender to benefit from concurrency granted to another co-offender where that concurrency flows exclusively from the totality principle applied to that other offender's separate and additional criminal conduct.
  • A "marked" disparity, giving rise to a justifiable sense of grievance viewed objectively, is required before the parity principle justifies intervention on appeal. Identical head sentences for the common offence, with a modest overlap attributable to unrelated additional offending by a co-offender, did not meet that threshold.
  • In assessing parity, the Court of Criminal Appeal confirmed that the overall picture of both total sentences and non-parole periods should be considered, consistent with the approach of Dawson and Gaudron JJ in Postiglione v The Queen.
  • Where a co-offender's lower effective sentence results from the totality principle applied to separate bail offending, there is a good and adequate reason for the discrepancy, and parity does not require equalisation.
  • Even where a parity argument might otherwise have some force, a reduction that would render the remaining sentence inadequate for the gravity of the offending constitutes an independent reason for the appellate court to decline intervention.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), ss 112(2), 195(1A)(a)

Cases
- Postiglione v R [1997] HCA 26; 189 CLR 295
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Green v R; Quinn v R [2011] HCA 49
- Mill v The Queen [1988] HCA 70; 166 CLR 59
- House v The King [1936] HCA 40; 55 CLR 499
- R v Chen [2002] NSWCCA 174; 130 A Crim R 300
- R v Kelly [2005] NSWCCA 280; 155 A Crim R 499
- DGM v R [2006] NSWCCA 296
- R v Taudevin [1996] 2 VR 402
- R v M (CA) (1996) 105 CCC (3d) 327