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Court of Criminal Appeal 12 February 2018

Hiron v R

[2018] NSWCCA 10

Assault & violence
CRIMINAL LAW SENTENCE APPLICANT APPEALS ON PARITY GROUND APPEAL DISMISSED

Citation: Hiron v R [2018] NSWCCA 10
Court: NSW Court of Criminal Appeal
Date: 12 February 2018
Judges: Leeming JA, Johnson J, Adamson J

Background

The appellant pleaded guilty on the first day of his scheduled trial to assault with intent to rob whilst armed causing wounding, contrary to s 98 of the Crimes Act 1900. The offence arose from a planned attack on the victim at a Colyton park in May 2014. The appellant lured the victim there under false pretences, armed himself with a knife beforehand, and stabbed the victim in the throat while demanding the keys to his car. The victim was hospitalised, placed in an induced coma, and required surgery for a bleeding vertebral vein, leaving him with lasting physical effects.

The appellant's co-offender, who attended the park at the appellant's invitation and was asked to "start a fight" as a diversion, was charged with the lesser offence of reckless wounding whilst in company under s 35(3) of the Crimes Act 1900. Both were sentenced by the same District Court judge on the same day. The appellant received six years and three months imprisonment with a non-parole period of four years and eight months. The co-offender received two years' imprisonment, later converted to an intensive correction order.

The appellant sought leave to appeal on two grounds: parity (arguing he had a justifiable sense of grievance compared with his co-offender's sentence) and manifest excess. The manifest excess ground was abandoned at the hearing, leaving the parity ground as the sole issue before the Court of Criminal Appeal.

  • Whether the disparity between the appellant's sentence and his co-offender's sentence gave rise to a justifiable sense of grievance, engaging the parity principle.
  • Whether the sentencing judge's differentiation between the two offenders was open in the exercise of her discretion, given the differences in the offences charged and the offenders' circumstances.

Decision

Johnson J, with whom Leeming JA and Adamson J agreed, dismissed the appeal. The court found there were obvious and marked distinctions between both the offences and the offenders, which fully explained the sentencing disparity.

The appellant faced a charge under s 98, which carries a maximum penalty of 25 years imprisonment and a seven-year standard non-parole period. The co-offender faced a charge under s 35(3), carrying a maximum of only 10 years and a four-year standard non-parole period. This structural difference in the offences was a fundamental starting point. The appellant was also the principal and sole planner of the attack: he selected the victim, organised the co-offender's attendance, armed himself, and delivered the stabbing. The co-offender's role was comparatively minor and peripheral.

The court applied the principle that the parity ground requires more than a numerical disparity in sentences. The relevant question is whether the appellant can point to an "objective legitimate sense of grievance," not merely a difference in outcome. The court noted that the sentencing judge had all objective and subjective considerations before her when sentencing both offenders together, and the differentiation she made was plainly open to her on those facts.

The court also observed, drawing on Zreika v R, that the absence of any parity argument raised at first instance was itself telling. It reflected an accurate understanding of the real issues: the offences and offenders were so clearly distinguishable that the parity principle had no meaningful role to play.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle does not require equal sentences for co-offenders. It requires an absence of unjustifiable disparity. Where the offences charged differ substantially in their nature, maximum penalties, and standard non-parole periods, a large sentencing gap will ordinarily reflect those differences rather than signal unfairness.
  • A co-offender's role as sole planner and principal actor is a legitimate and weighty basis for distinguishing that person's sentence from a more peripheral participant's sentence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that appellate courts do not second-guess a sentencing judge's differentiation between co-offenders. The operative question is whether the differentiation was within the range of the judge's discretion, not whether the appellate court would have drawn the line differently.
  • The failure to raise a parity argument at first instance can be a relevant consideration on appeal. The Court treated that omission as a reflection of the objective absence of any proper basis for a parity claim.
  • Under s 98 of the Crimes Act 1900, the maximum penalty is 25 years imprisonment with a seven-year standard non-parole period, compared with 10 years and four years respectively under s 35(3). These structural legislative distinctions directly informed the sentencing outcomes in this case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(3), 98

Cases
- Cameron v R [2017] NSWCCA 229
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Lloyd v R [2017] NSWCCA 303
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Miles v R [2017] NSWCCA 266
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Dennis [2015] NSWCCA 297
- Shortland v R (2013) 224 A Crim R 486; [2013] NSWCCA 4
- Wan v R [2017] NSWCCA 261
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44