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Court of Criminal Appeal 22 July 2016

Zuhaib Shahzad v R

[2016] NSWCCA 94

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW PARITY OF SENTENCE BETWEEN CO OFFENDERS JUSTIFIABLE SENSE OF GRIEVANCE LEAVE GRANTED APPEAL ALLOWED

Citation: Zuhaib Shahzad v R [2016] NSWCCA 94
Court: NSW Court of Criminal Appeal
Date: 22 July 2016
Judges: Hoeben CJ at CL, Campbell J, N Adams J

Background

The appellant was convicted alongside two co-offenders following a jury trial in the District Court. All three were found guilty of two counts of robbery armed with a dangerous weapon and one count of conspiracy to commit an armed robbery, arising from a series of offences committed over three days in March 2011. The offences involved coordinated, weapon-assisted robberies of a bottle shop and a hotel, and a surveilled but ultimately foiled plan to rob a third venue.

The sentencing judge found that the appellant and both co-offenders were equally culpable across all three counts. All three were sentenced on the same day. The appellant received an aggregate sentence of nine years and six months with a non-parole period of six years, while his co-offender Kherkhah received eight years and three months with a non-parole period of five years, and the juvenile co-offender received seven years with a non-parole period of four years and three months.

The appellant sought leave to appeal on a single ground: that the disparity between his sentence and those imposed on his co-offenders gave rise to a justifiable sense of grievance.

  • Whether the difference between the appellant's sentence and those of his co-offenders was sufficient to give rise to a justifiable sense of grievance, warranting appellate intervention on parity grounds.
  • Whether any differences in the co-offenders' individual circumstances (including age, additional offences on a Form 1, and firearms charges) adequately explained the sentencing disparity.
  • If error was established, what the appropriate re-sentence should be.

Decision

N Adams J, with whom Hoeben CJ at CL and Campbell J agreed, found that error had been established. The sentencing judge had determined that all three offenders were equally culpable for the core offences on the indictment. That finding was central to the parity analysis.

The Court examined whether the differences between the appellant and co-offender Kherkhah justified the gap in their sentences. Kherkhah had additional offences dealt with, including firearms charges and a separate armed robbery on a Form 1, which would ordinarily weigh toward a heavier sentence for him rather than a lighter one. The Court found no adequate explanation in the sentencing remarks for why the appellant received a significantly longer term than Kherkhah, given equal culpability and the added weight of Kherkhah's additional criminality.

The disparity between the appellant's sentence and Kherkhah's was found to be unjustified and capable of producing a justifiable sense of grievance in the appellant's mind. This met the threshold for intervention established by the High Court in cases such as Green v The Queen and the earlier authority in Lowe v The Queen.

On re-sentencing, the Court took into account the parity principle, the difference in ages between the appellant and Kherkhah (justifying some remaining disparity), the principle of totality, special circumstances arising from the appellant's post-traumatic stress disorder, and updated information about the appellant's rehabilitation progress while in custody.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Frearson DCJ on 20 March 2015 quashed.
  • Appellant re-sentenced to an aggregate term of eight years and nine months, dating from 13 March 2011 and expiring on 12 December 2019, with a non-parole period of five years and six months. The appellant became eligible for parole on 12 September 2016.

Key Takeaways

  • A justifiable sense of grievance arises where co-offenders of equal culpability receive materially different sentences without adequate explanation, and that principle applies even where the co-offender held to have lesser sentence also faced additional charges.
  • Where a sentencing judge expressly finds equal culpability across co-offenders, that finding anchors the parity analysis on appeal: departures from it require clear and sufficient justification in the sentencing remarks.
  • The Court of Criminal Appeal confirmed that additional offences dealt with by way of Form 1 or separate counts do not automatically explain a lighter aggregate sentence for a co-offender when those matters would ordinarily aggravate rather than reduce the overall criminality.
  • Special circumstances (here, the appellant's PTSD) may support a finding that the non-parole period should be reduced relative to the head sentence, allowing for greater time on supervised parole.
  • In re-sentencing after a successful parity appeal, the court may take into account post-sentence evidence of rehabilitation and medical management, in addition to the findings made by the original sentencing judge.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 97(2), 154A(1)(b)
- Crimes (Sentencing Procedure) Act 2001 (NSW), ss 3A, 32
- Firearms Act 1996 (NSW), s 7(1)

Cases
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Lam v R [2014] NSWCCA 50
- Loader v R; Dunn v R [2013] NSWCCA 215
- Tuivaga v R [2015] NSWCCA 125
- R v Voss [2003] NSWCCA 182