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15
Court of Criminal Appeal 1 August 2018

Fenech v R

[2018] NSWCCA 160

Assault & violence
CRIME APPEAL SENTENCE PAROLE PERIOD PARITY PRINCIPLE APPLICANT AND FOUR CO

Citation: Fenech v R [2018] NSWCCA 160
Court: Court of Criminal Appeal, New South Wales
Date: 1 August 2018
Judge(s): Beazley P; R A Hulme J; Button J

Background

The applicant was one of eight co-offenders tried jointly in the District Court at Sydney. All were connected to the Blacktown chapter of a motorcycle club. The victim, the chapter's Sergeant-at-Arms, was lured to a smash repair workshop at night and subjected to a severe group assault. The attack left him with serious head injuries, including a fractured orbital floor requiring surgery, and he was restrained with cable ties during the incident.

The applicant was confined to a wheelchair and did not participate physically in the assault. However, the sentencing judge found that he had brought cable ties and a pick axe handle to the premises and had intentionally made those items available for use in the assault and the victim's restraint. That conduct established what the judge characterised as pre-planning and pre-concert.

Six of the eight co-offenders, including the applicant, were convicted of recklessly causing grievous bodily harm in company under s 35(1) of the Crimes Act 1900 (NSW). The remaining two were convicted of the more serious offence of causing grievous bodily harm with intent under s 33(1)(b). The sentencing judge imposed 3 years' imprisonment with a 2-year non-parole period on the applicant. The applicant sought leave to appeal on a single ground: that his sentence gave rise to a justifiable sense of grievance when compared with those of his co-offenders.

  • Whether the applicant suffered a justifiable sense of grievance under the parity principle when compared with the sentences received by his co-offenders
  • Whether the phrase "marked and unjustified disparity" is the appropriate formulation in applying the parity principle

Decision

R A Hulme J (with whom Beazley P and Button J agreed) dismissed the appeal after finding no justifiable sense of grievance on the facts. His Honour observed that the sentencing exercise was particularly complex given the involvement of eight offenders, each with distinct levels of participation and different subjective circumstances. The primary judge's remarks on sentence were commended for their detailed and careful treatment of both the objective seriousness of each offender's conduct and their individual mitigating factors.

On the question of the parity principle's formulation, Hulme J noted a degree of tension in the authorities about whether the test is properly expressed as requiring a "marked and unjustified disparity" or simply a "justifiable sense of grievance." His Honour acknowledged both formulations appear in the case law but treated the ultimate question as whether the applicant could point to a justifiable sense of grievance arising from the comparison.

The applicant's liability for the offence was found to be largely equivalent to that of the co-offenders who received the same sentence. Although he did not physically assault the victim, his role in supplying restraints and a weapon demonstrated meaningful pre-planning. The sentence of 3 years was described as relatively modest given the maximum penalty of 14 years and the standard non-parole period of 5 years. No error in the sentencing discretion was identified.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the central question under the parity principle is whether an applicant suffers a justifiable sense of grievance when comparing their sentence to those of co-offenders.
  • Where co-offenders receive identical sentences, the parity principle will not assist an applicant whose culpability is substantially the same as those co-offenders, even if the roles played differed in form.
  • A non-physical role in an offence does not necessarily reduce an offender's culpability where the sentencing court finds that the offender supplied weapons and restraints and participated in the planning of the assault.
  • In dismissing the appeal, the court affirmed the primary judge's approach of conducting a detailed, offender-by-offender analysis of objective and subjective circumstances as an exemplary method for managing sentencing in multi-offender proceedings.
  • The relative modesty of a sentence compared to the available maximum and standard non-parole period is a relevant consideration in assessing whether a sentence is disproportionately harsh by comparison to co-offenders.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33(1)(b), 35(1)

Cases:
- Cameron v R [2017] NSWCCA 229
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Leeth v The Commonwealth (1992) 174 CLR 455; [1992] HCA 29
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Miles v R [2017] NSWCCA 266
- Pecora v The Queen [1980] VR 499
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Potter [1977] Crim LR 112
- R v Stroud (1977) 65 Cr App R 150
- R v Tisalandis [1982] 2 NSWLR 430