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43
Court of Criminal Appeal 28 July 2017

PG v R

[2017] NSWCCA 179

Also reported as (2017) 268 A Crim R 61
Fraud & dishonesty
CRIME SENTENCING PARITY PRINCIPLE WHETHER JUSTIFIABLE SENSE OF GRIEVANCE SENTENCING

Citation: PG v R [2017] NSWCCA 179
Court: NSW Court of Criminal Appeal
Date: 28 July 2017
Judge(s): Basten JA; Button J; N Adams J

Background

The applicant was sentenced in November 2014 in the District Court at Lismore on nine serious criminal charges, with seven further offences taken into account. He was sentenced to an aggregate term of 9 years imprisonment with a non-parole period of 6 years 9 months. He received a 25% discount for an early guilty plea and a further 25% discount for assistance to authorities, producing a total discount of 50%.

No appeal was brought at the time. The application for leave to appeal arose after the same judge sentenced the applicant's principal co-offender, Mr Green, in April 2016. Mr Green also received a 9-year aggregate sentence (with a slightly shorter non-parole period of 6 years 4 months) and a 25% discount for his guilty plea, but no discount for assistance.

The applicant argued that comparing the two undiscounted sentences revealed a substantial disparity: his undiscounted starting point was 18 years, compared to 12 years for Mr Green. He contended this difference was grossly disproportionate to any genuine difference in culpability. The application also raised a separate question about the proper method for applying guilty plea discounts when imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • Whether the applicant had a justifiable sense of grievance arising from the disparity between his sentence and that of his co-offender, sufficient to warrant appellate intervention under the parity principle.
  • Whether the correct comparison for parity purposes is between the undiscounted sentences, or between sentences adjusted to account only for the offender-specific discount (here, the assistance discount).
  • Whether, when imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the discount for a guilty plea under s 22 should be applied to the aggregate sentence directly, or instead to putative individual sentences before aggregation.

Decision

On parity: The Court refused leave to appeal on the parity ground. Both sentences were imposed by the same judge who had expressly considered the comparison between the two offenders. The Court held that the appropriate comparison was not between the two undiscounted sentences. Since both offenders received the same 25% guilty plea discount, that common discount should be stripped out before comparing starting points. Once only the applicant's offender-specific assistance discount was reversed, his effective starting point was 13.5 years against Mr Green's 12 years, a difference of approximately 12.5%. The Court found no identifiable error in the judge's evaluation of comparative culpability and declined to substitute its own assessment.

The Court also examined differences in the evidence before the judge at each sentencing. The applicant was found to have played a more active role in the offending on the first occasion, and there were factual matters, including the applicant's own evidence at his sentencing, that were not replicated at Mr Green's hearing. These differences provided a sufficient basis for the modest disparity that remained once the analysis was conducted correctly. No justifiable sense of grievance was established.

On aggregate sentences and guilty plea discounts: The Court considered whether s 22 requires the guilty plea discount to be applied to the individual indicative sentences that feed into an aggregate, or whether it may be applied to the aggregate figure itself. Basten JA reviewed the structure and history of ss 22 and 53A and concluded that the preferred approach is to apply the discount to the individual indicative sentences rather than to the aggregate. This ensures the discount operates transparently on each component offence and aligns with the statutory scheme, which requires indicative sentences to be set before aggregation. However, the Court noted genuine uncertainty in the legislation and indicated that amendment to s 22 would be desirable to place the matter beyond doubt.

Orders Made

No orders were made in this decision.

Key Takeaways

  • When applying the parity principle to co-offenders who both received a guilty plea discount, the correct comparison strips out the common discount and examines only the offender-specific adjustments. Comparing raw undiscounted sentences overstates any disparity where both offenders benefited equally from a common discount.

  • A justifiable sense of grievance is assessed by objective criteria, not by the subjective feelings of the applicant. Appellate intervention remains available only where a marked, objectively established disparity exists after properly accounting for legitimate differences in culpability, criminal history, and the evidence before each sentencing court.

  • Where the same judge sentences co-offenders in separate proceedings and expressly addresses the comparison, the appellate court faces a high bar: absent an identifiable error, it will not substitute its own evaluation of relative culpability.

  • Under ss 22 and 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court of Criminal Appeal expressed the view that a guilty plea discount should be applied to the individual indicative sentences rather than to the aggregate term, though the Court acknowledged the legislation leaves room for doubt and called for statutory clarification.

  • Differences in the evidence placed before a sentencing judge at separate proceedings can legitimately explain sentence disparities between co-offenders, even where those differences were not formally contested in each proceeding.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 4, 21A, 22, 24, 53A; Pt 2, Div 1; Pt 3
- Criminal Appeal Act 1912 (NSW), s 6
- Interpretation Act 1987 (NSW), ss 8, 33
- Crimes (Sentencing Procedure) Amendment Act 2010 (NSW), Sch 2 [14]

Cases:
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Elsaj v R [2017] NSWCCA 124
- R v Cahill [2015] NSWCCA 53
- Glare v R [2015] NSWCCA 194
- R v Borkowski [2009] NSWCCA 102
- JL v R [2014] NSWCCA 130
- JM v R [2014] NSWCCA 297
- Khawaja v R [2014] NSWCCA 80
- Martin v R [2014] NSWCCA 124
- SHR v R [2014] NSWCCA 94
- Stoeski v Regina [2014] NSWCCA 161
- Bao v R [2016] NSWCCA 16
- Hampton v R [2014] NSWCCA 131
- R v Nykolyn [2012] NSWCCA 219
- Subramaniam v R [2013] NSWCCA 159
- R v SY and Anor [2003] NSWCCA 291