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44
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: Court of Criminal Appeal
Date: 28 July 2017
Judge(s): Basten JA; Button J and N Adams J

Background

The applicant was sentenced in the District Court in November 2014 for nine serious criminal charges arising from two home invasion incidents in October and November 2013. He received an aggregate sentence of 9 years imprisonment with a non-parole period of 6 years 9 months. He had pleaded guilty and received a 25% discount for his early plea and a further 25% discount for assistance to authorities, producing a total 50% discount.

The principal co-offender, Mr Green, was sentenced by the same judge in April 2016. He also received an aggregate sentence of 9 years imprisonment, but with a slightly shorter non-parole period of 6 years 4 months and only a 25% discount for his early plea, with no discount for assistance.

The applicant sought leave to appeal on the ground that, comparing the undiscounted sentences, his culpability had been assessed at 50% higher than Mr Green's, producing what he argued was an unjustifiable sense of grievance and a grossly disproportionate disparity.

Legal Issues

  • Whether the disparity between the applicant's sentence and Mr Green's sentence gave rise to a justifiable sense of grievance warranting appellate intervention under the parity principle.
  • Whether it is appropriate, when applying the parity principle, to compare undiscounted aggregate sentences.
  • Whether differences in agreed facts and evidence before the sentencing judge justify differences in sentences imposed on co-offenders.
  • Whether section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides for guilty plea discounts, applies to the determination of an aggregate sentence under section 53A, and if so, how.

Decision

Issue 1: Parity and the comparison of sentences

The Court unanimously held that the complaint of unwarranted disparity was without merit (at [49]). The applicant's approach of comparing the two undiscounted sentences was not appropriate. Once the applicant's additional 25% assistance discount (but not the common 25% plea discount) was factored out, the comparison showed a starting point for the applicant only 12.5% higher than Mr Green's, not the 50% differential asserted (at [7]).

Issue 2: Different agreed facts and evidence

The Court found that the two sentencing proceedings proceeded on materially different agreed facts and evidence. The applicant's agreed facts attributed to Mr Green serious acts, including an indecent assault using a sheathed sword and starting a house fire, which Mr Green denied in evidence at his own sentencing (at [34]-[43]). Had Mr Green been sentenced on the agreed facts accepted in the applicant's proceedings, he would have received a significantly longer sentence (at [43]). The Court confirmed that, where co-offenders are sentenced on different evidentiary bases, differences in sentences are justified and may be demanded by those differences (at [48]).

Issue 3: Section 22 discounts and aggregate sentencing (Basten JA, minority)

Basten JA concluded, as a matter of statutory construction, that section 22 is engaged in relation to the determination of an aggregate sentence and that discounts for guilty pleas should be applied explicitly both to the indicative sentences and to the aggregate sentence itself (at [65]). His Honour reasoned that Part 3 of the Act applies whenever a court imposes a penalty, that section 53A does not expressly or impliedly disengage section 22, and that transparency for offenders is best served by identifying the discount at the aggregate level (at [57]-[64]).

Issue 3: Section 22 discounts and aggregate sentencing (Button and N Adams JJ, majority)

Button and N Adams JJ disagreed with Basten JA on this point. The majority held that a proper construction of sections 22 and 53A does not require discounts to be applied both to indicative sentences and again to the aggregate sentence (at [77]). Section 53A(2)(b) expressly requires discounts to be applied at the indicative sentence stage, and the plea of guilty is thereby notionally taken into account in the aggregate sentence without requiring an explicit further discount (at [78]-[79]). The majority identified practical difficulties in averaging or combining discounts across offences pleaded at different times, and noted that requiring a further explicit discount on the aggregate sentence would introduce additional complexity contrary to the purpose of the aggregate sentencing regime (at [82]-[87]). The majority confirmed the approach adopted consistently since JM v R [2014] NSWCCA 297 and declined to depart from that line of authority (at [94]). Both Button and N Adams JJ acknowledged, however, that the question is not entirely free from doubt, and suggested legislative amendment to section 22 to clarify the position (at [96]).

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Where co-offenders are sentenced on materially different agreed facts and different evidence, those differences justify, and may demand, differences in the sentences imposed. A claim of unwarranted disparity cannot succeed simply by pointing to an arithmetical gap in outcomes (at [23]-[24], [48]).

  • Applying the parity principle to aggregate sentences requires a careful comparison that accounts for all discounts. Comparing raw undiscounted aggregate sentences without adjusting for discounts specific to one offender (such as an assistance discount) will produce a misleading picture of the sentencing disparity (at [7]).

  • Under the majority's construction of sections 22 and 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the discount for a plea of guilty is to be applied to the indicative sentences, and no further explicit discount is required at the aggregate sentence level. The discounting of indicative sentences is expected to flow through, reducing the length of the resulting aggregate sentence (at [78]-[79], [92]-[93]).

  • The Court of Criminal Appeal (majority) confirmed the approach established in JM v R [2014] NSWCCA 297 and followed consistently since: sentencing judges imposing aggregate sentences are not required to apply an additional global discount to the aggregate sentence on top of discounts already applied to the indicative sentences (at [94]).

  • Button and N Adams JJ noted the question of how sections 22 and 53A interact is not entirely free from doubt, and suggested that Parliament consider amending section 22 to expressly clarify that the plea of guilty discount applies once, at the indicative sentence stage, in the context of aggregate sentencing (at [96]).

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
- Bao v R [2016] NSWCCA 16
- Elsaj v R [2017] NSWCCA 124
- Glare v R [2015] NSWCCA 194
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hampton v R [2014] NSWCCA 131
- JL v R [2014] NSWCCA 130
- JM v R [2014] NSWCCA 297
- Khawaja v R [2014] NSWCCA 80
- Lowe v The Queen (1984) 154 CLR 606
- Martin v R [2014] NSWCCA 124
- Postiglione v The Queen (1997) 189 CLR 295
- R v Cahill [2015] NSWCCA 53
- R v Nykolyn [2012] NSWCCA 219
- R v SY and Anor [2003] NSWCCA 291
- R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- SHR v R [2014] NSWCCA 94
- Stoeski v Regina [2014] NSWCCA 161
- Subramaniam v R [2013] NSWCCA 159