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Court of Criminal Appeal 27 November 2015

Glover v R

[2015] NSWCCA 293

Public order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE OFFENDERS PRINCIPLE OF PARITY OFFENDER

Citation: Glover v R [2015] NSWCCA 293
Court: Court of Criminal Appeal, NSW
Date: 27 November 2015
Judge(s): Macfarlan JA, Button J, Fagan J

Background

The applicant and a co-offender were jointly tried and convicted in the District Court of conspiring to pervert the course of justice, contrary to s 319 of the Crimes Act 1900 (NSW). The conspiracy involved threatening a witness who was due to give evidence against the applicant's brother in armed robbery proceedings. The threats were found to be real and direct, and the trial judge rejected any suggestion that either man believed he was simply helping an innocent person.

At sentence, Acting Judge Phegan imposed on the applicant a short term of full-time imprisonment, which in practice extended his mandatory incarceration by approximately one year and three months. The co-offender received a suspended sentence. The applicant sought leave to appeal on the sole ground that the disparity between the two sentences was erroneous.

The applicant was already serving an aggregate sentence of 11 years and 6 months for nine counts of armed robbery. The conspiracy offence had been committed before those robberies but was sentenced after them.

  • Whether the sentence imposed on the applicant demonstrated erroneous disparity when compared with the sentence imposed on the co-offender, applying the parity principle from Green v The Queen; Quinn v The Queen (2011) 244 CLR 462.
  • Whether the differences in the subjective circumstances of the two co-offenders were sufficient to justify the markedly different sentencing outcomes.

Decision

Button J (with Macfarlan JA and Fagan J agreeing) identified substantial differences between the two men's subjective circumstances. The applicant appeared before the sentencing judge with a significant criminal record, including nine convictions for armed robbery committed after the conspiracy offence. The co-offender had no criminal record at all. The applicant tendered almost no subjective evidence on his own behalf, whereas the co-offender provided extensive material including character references, a psychological report, a letter of apology, and oral evidence.

The court found the contrasts between the two men were extensive and well-founded. They extended to prior criminality, educational and employment history, character evidence, the effect of incarceration, family circumstances, emotional health, and prospects of rehabilitation and reoffending. In the co-offender's case, the sentencing judge had found genuine remorse, very good prospects of rehabilitation, and an otherwise law-abiding life before the offence. The applicant's conduct in custody, including five prison discipline offences involving violence, drug testing failures, and setting fire to his cell, stood in sharp contrast.

Button J held that the differentiation between the two sentences was well within the sentencing discretion and did not give rise to any justifiable sense of grievance on the part of the applicant when assessed objectively. No error of the kind required to establish erroneous disparity under Green was made out.

The Court also noted that the applicant's appeal against the convictions underpinning his armed robbery sentence had been dismissed by the Court of Criminal Appeal shortly beforehand, meaning there was no occasion to revisit or adjust the sentence for the conspiracy.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle does not require identical sentences for co-offenders; it requires that differences in sentences be explicable by reference to the relevant circumstances of each offender, so that a co-offender does not experience an objectively justifiable sense of grievance (Green v The Queen).
  • Substantial disparities in subjective circumstances, including criminal history, character evidence, conduct in custody, and prospects of rehabilitation, can justify markedly different sentencing outcomes even where the objective seriousness of the offending was treated as equivalent.
  • No error was established where the sentencing judge imposed full-time imprisonment on one co-offender and a suspended sentence on the other, given the volume and quality of evidence favourable to the co-offender compared with the near-total absence of such material for the applicant.
  • A conspiracy at common law to commit a statutory offence carries a penalty at large, but the Court confirmed the well-established principle that sentences for such conspiracies will rarely exceed the maximum applicable to the substantive offence.
  • In dismissing the appeal, the Court declined to adjust the conspiracy sentence in light of the earlier dismissal of the applicant's conviction appeal for the separate armed robbery offences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 319 (doing an act with intent to pervert the course of justice; maximum 14 years)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 14, 15
- Crimes (Appeal and Review) Act 2001 (NSW), s 59

Cases
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 (parity principle)
- Glover v R; Stuart v R [2015] NSWCCA 285 (dismissal of the related conviction appeal)