Citation: Belvie v R [2017] NSWCCA 36
Court: NSW Court of Criminal Appeal
Date: 14 March 2017
Judges: Meagher JA, Johnson J, Rothman J
Background
The appellant was an adult aged 21 at the time of the offence. He pleaded guilty to assault occasioning actual bodily harm in company under s 59(2) of the Crimes Act 1900 (NSW), carrying a maximum penalty of seven years' imprisonment. The offence involved a group attack on a 15-year-old victim at a reserve, where the victim was kicked and struck repeatedly to the head and stomach by the appellant and two juvenile co-offenders.
The District Court sentenced the appellant to a head sentence of three years and two months, with a non-parole period of two years and four months. The sentencing judge applied a 10% discount for a guilty plea and took into account that the appellant had committed a further offence while on bail, had prior convictions for violence, and had been on parole for a similar offence at the time of this one.
His two co-offenders, aged 16 and 17 at the time, were dealt with in the Children's Court. One received an 18-month good behaviour bond; the other received a suspended eight-month control order with community supervision. The appellant sought leave to appeal against his sentence, arguing that the disparity between his sentence and those of his co-offenders gave him a justifiable sense of grievance.
Legal Issues
- Whether the parity principle applied so as to give the appellant a justifiable sense of grievance when compared with co-offenders sentenced in the Children's Court under a different regime.
- Whether the parity argument could be raised on appeal when it had not been squarely put before the sentencing judge at first instance.
- Whether a lesser sentence was warranted in law (argued only as a discretionary factor relevant to resentencing, not as a freestanding ground).
Decision
The Court of Criminal Appeal unanimously refused leave to appeal. All three judges agreed that the parity argument could not succeed, though Meagher JA and Johnson J delivered brief concurring reasons, with the substantive analysis provided by Rothman J.
Rothman J explained that the parity principle is an expression of equal justice: it arises only where there is an unjustifiable difference between sentences imposed on co-offenders. The principle does not operate in a vacuum; a sentence comparison is meaningless without accounting for the reasons behind any difference. Here, the differences were clearly justified. The appellant was an adult with prior violence convictions who had offended while on parole and then again while on bail, whereas both co-offenders had no prior criminal histories and were subject to the entirely different sentencing framework under the Children (Criminal Proceedings) Act 1987 (NSW).
Rothman J also identified a procedural deficiency in the appellant's case. The parity argument had not been squarely raised at first instance. Importantly, the appellant had not placed before the sentencing judge the reasons for the co-offenders' sentences, which would have been necessary for a proper comparative assessment. The passing reference to parity at sentencing was insufficient to constitute a genuine invocation of the principle.
Meagher JA and Johnson J added that while the Children's Court outcomes are not entirely irrelevant to the question of whether an adult co-offender may have a justifiable sense of grievance, the very different sentencing regimes and the substantial differences in the appellant's subjective circumstances made the parity argument unarguable. The second ground, seeking a lesser sentence, was not pressed as a freestanding basis for appeal and was treated solely as relevant to any resentencing exercise, had error been established under the first ground.
Orders Made
- Leave to appeal refused.
Key Takeaways
- The parity principle requires an unjustifiable difference between sentences; where legitimate differences in offenders' circumstances and applicable sentencing regimes explain the disparity, no justifiable sense of grievance arises.
- Sentences imposed in the Children's Court are not irrelevant to a parity argument involving an adult co-offender, but the distinctly different regime applicable to juvenile offenders substantially limits the force of any such comparison.
- An appellant raising parity on appeal must have squarely invoked the principle at first instance and must have placed the reasons for the co-offenders' sentences before the sentencing court; a passing reference is insufficient.
- Substantial differences in subjective circumstances, including prior convictions for violence, parole status at the time of the offence, and offending while on bail, can independently defeat a parity ground even where the offending conduct is otherwise similar.
- Under House v The King principles, a ground arguing that a lesser sentence is "warranted in law" does not itself constitute an independent ground of appellate intervention; it remains relevant only to the resentencing discretion once error is otherwise established.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 59(2)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 33(1)(b), 33(1)(g), 33(1B)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases:
- House v The King (1936) 55 CLR 499
- Lowe v R (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- R v Govinden (1999) 106 A Crim R 314
- R v Colgan [1999] NSWCCA 292
- Green v R; Quinn v R (2011) 244 CLR 462
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Kentwell v The Queen (2014) 252 CLR 601
- Baxter v R (2007) 173 A Crim R 284
- Sheather v R [2009] NSWCCA 173
- Ruttley v R [2010] NSWCCA 118
- BP v R [2010] NSWCCA 159
- MJ v R; KT v R (2008) 182 A Crim R 571
- Kentwell v R (No 2) [2015] NSWCCA 96
- Abdelmeseeh v R [2016] NSWCCA 312