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District Court 18 January 2019

R v Burroughs

[2019] NSWDC 327

DrugsPublic order & justice offences
INTERLOCUTORY PARITY SENTENCING OF CO OFFENDERS BEFORE THE SAME JUDGE

Citation: R v Burroughs [2019] NSWDC 327
Court: District Court of New South Wales
Date: 18 January 2019
Judge(s): Montgomery DCJ

Background

The offender appeared in the District Court for a scheduled sentence hearing on two charged offences and a related Form 1 matter (a Form 1 lists additional offences taken into account at sentence without separate conviction). The offences were committed jointly with a co-accused, who had already been sentenced in the Local Court on 4 October 2018 by Magistrate Still.

Both parties accepted that the parity principle applied to the sentencing exercise. That principle requires courts to avoid unjustifiable differences in the sentences imposed on co-offenders involved in the same criminal conduct.

Two procedural obstacles prevented the sentence hearing from proceeding. No transcript of the co-accused's sentencing was available, and the question arose whether the same magistrate who sentenced the co-accused should also sentence the offender.

  • Whether sentencing could proceed without a transcript of the co-accused's sentence hearing
  • Whether the parity principle required the same judicial officer who sentenced the co-accused to also sentence the offender
  • Whether the proceedings ought to be referred to the Drug Court, as had occurred for the co-accused

Decision

Montgomery DCJ identified two independent grounds on which the sentence hearing could not proceed that day. First, the absence of a transcript of the co-accused's sentencing made it impossible to properly apply the parity principle. Without that material, the sentencing court could not assess how the offender's circumstances compared to those of the co-accused.

Second, the court noted the established principle that, where possible, the same judicial officer who sentenced a co-accused should sentence the remaining offender. In this matter, that officer was Magistrate Still of the Local Court. His Honour directed the parties to make any application for the proceedings to be listed before Magistrate Still.

The court also noted that the co-accused had been referred to the Drug Court, and that a similar application might be made in respect of the offender. However, no such application was before the court at that time, and His Honour expressly declined to consider it.

Orders Made

  • The sentence hearing was adjourned to 16 May 2019.
  • Transcript was directed to be obtained of the co-accused's sentence hearing before Magistrate Still on 4 October 2018.
  • The parties were directed to make any application, at or before the next occasion, to have the proceedings listed before Magistrate Still.

Key Takeaways

  • The parity principle requires that a sentencing court have access to the transcript of a co-accused's sentence hearing before proceeding; without it, meaningful comparison between co-offenders cannot be made.
  • Where a co-accused has already been sentenced, established principle favours the same judicial officer sentencing the remaining offender to ensure consistent application of parity.
  • A potential Drug Court referral was noted by the District Court but left entirely for the parties to pursue by application; the court made no determination on that question.
  • Procedural compliance with parity obligations can require adjournment even when all other aspects of a sentence hearing are ready to proceed.

Legislation and Cases Referenced

Legislation: None cited in the judgment.

Cases: None cited in the judgment.