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10
Court of Criminal Appeal 8 November 2013

R v Clarke

[2013] NSWCCA 260

Theft & property
CRIME SENTENCING AGGREGATE SENTENCES PARITY WHERE SENTENCE IMPOSED ON CO R V QUINN

Citation: R v Clarke [2013] NSWCCA 260
Court: Court of Criminal Appeal, NSW
Date: 8 November 2013
Judges: Hoeben CJ at CL, Rothman J, McCallum J

Background

The applicant was convicted in the District Court of two counts of break, enter and steal in company, offences carrying a maximum penalty of 20 years' imprisonment and a standard non-parole period of five years. The offences were described as coolly planned, professionally executed break-ins carried out for commercial gain as part of a criminal gang. The applicant's father's car was used in both offences.

A co-offender, Mr Raman, was sentenced separately for his participation in one of the same offences. His sentence was notably lighter. The applicant sought to rely on this disparity, arguing that parity principles required his own sentence to be reduced.

The Court of Criminal Appeal had previously considered the applicant's sentence in Clarke v R [2012] NSWCCA 272, and the matter came before the Court again on the question of whether the sentence imposed by Williams DCJ in the District Court ought to be reduced on parity grounds, and whether the aggregate sentencing approach revealed error.

  • Whether the sentence imposed on the co-offender Mr Raman was erroneously lenient, and what consequences followed from that finding.
  • Whether the parity principle was engaged, given the differences between the applicant and Mr Raman.
  • Whether, even if parity was engaged, the Court should exercise its discretion to reduce the applicant's sentence where doing so would produce an inadequate result.
  • Whether the aggregate sentence imposed by the District Court revealed error in the indicative terms assigned to individual counts.

Decision

The three judges reached different conclusions on the parity question, producing a majority outcome in favour of allowing the appeal, albeit on narrow grounds.

Hoeben CJ at CL concluded that Mr Raman's sentence was not merely lenient but erroneously so, applying reasoning analogous to that used in R v Nguyen. His Honour also found that parity was not properly engaged because the differences between the applicant and Mr Raman were significant: the applicant was older, was involved in two serious planned offences, and played a more substantial role. Accordingly, no justifiable sense of grievance arose. Even if parity had been engaged, his Honour held it would have been wrong to reduce the applicant's sentence to a level that would be inadequate, citing the majority in Green v The Queen; Quinn v The Queen.

Rothman J agreed that Mr Raman's sentence was erroneously lenient, but reached a different conclusion on whether parity should nonetheless produce a remedy. His Honour reasoned that the principle of parity, as an incident of equal justice, retained force even where a co-offender's sentence was inadequate. After examining the aggregate sentence structure and the indicative terms underlying it, Rothman J concluded that the indicative term for one of the counts revealed unjustifiable disparity with the sentence passed on the co-offender. His Honour was persuaded the Court should intervene, describing the result as imperfect but not so anomalous as to preclude relief.

McCallum J agreed with the conclusions on manifest excess and aggregate sentencing, and her reasons on parity differed from Hoeben CJ at CL. The precise content of McCallum J's reasons on parity is not fully reproduced in the available text, but the majority (Rothman J and McCallum J) favoured allowing the appeal and re-sentencing the applicant.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The sentence imposed in the District Court quashed.
  • In lieu thereof, the applicant sentenced to an aggregate term of imprisonment with a non-parole period of 3 years commencing 21 July 2011 and expiring 20 July 2014, and a balance of term of 2 years expiring 20 July 2016.
  • First eligible date for release on parole: 20 July 2014.

Key Takeaways

  • A co-offender's sentence may be found to be not merely lenient but erroneously so, and that finding bears directly on whether a parity argument can succeed: where relief would reduce the applicant's sentence to an inadequate level, the Court may decline to grant it.
  • Under Green v The Queen; Quinn v The Queen, a court is not obliged to reduce a sentence to a level that would be "an affront to the proper administration of justice," even where unjustified disparity is established. The existence of a discretion to remedy disparity does not create an obligation to exercise it at any cost.
  • Significant differences between co-offenders in terms of age, role, and the number and nature of offences can defeat a parity claim entirely by establishing that no justifiable sense of grievance arises.
  • After Muldrock v R, the standard non-parole period remains a relevant sentencing guidepost. Where objective seriousness is assessed as mid-range and little else operates in an offender's favour, the standard non-parole period carries greater significance and its displacement requires articulated reasons.
  • Aggregation of sentences under the Crimes (Sentencing Procedure) Act 1999 does not cloak or dissolve a parity problem arising from an indicative term assigned to a particular count; the perception of unjustifiable disparity survives mathematical dissection of the aggregate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A, 54B

Cases
- Clarke v R [2012] NSWCCA 272
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
- Muldrock v R [2011] HCA 39; 244 CLR 120
- R v Brown [2012] NSWCCA 199
- R v Nguyen [2013] NSWCCA 195
- R v Nykolyn [2012] NSWCCA 219