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Court of Criminal Appeal 26 June 2020

Greaves v R

[2020] NSWCCA 140

Assault & violenceTheft & property

Citation: Greaves v R [2020] NSWCCA 140
Court: Court of Criminal Appeal, NSW
Date: 26 June 2020
Judges: Hoeben CJ at CL, Hamill J, Cavanagh J

Background

The applicant, a man aged 26 at the time of offending, pleaded guilty to a series of offences committed over roughly 12 hours on 11 and 12 July 2018. The offending involved a shoplifting incident, a violent assault on a taxi driver, and a break, enter and steal at a vacant apartment. Two co-offenders, Atkinson (the applicant's partner) and Senico-Young, participated in various parts of the offending.

The applicant was sentenced in the District Court to an aggregate term of 4 years and 6 months' imprisonment with a non-parole period of 3 years. His co-offenders had been sentenced earlier in the Local Court, receiving significantly lesser sentences. The sentencing judge in the District Court did not address the question of parity between the applicant's sentence and those of his co-offenders.

The applicant sought leave to appeal on two grounds: that the sentencing judge erred by failing to consider parity when imposing sentence, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to consider parity when the applicant's sentence was significantly higher than those imposed on his co-offenders in the Local Court.
  • Whether the failure of defence counsel to raise parity at the original sentencing hearing should be taken as a concession that parity had a limited role to play.
  • Whether the applicant experienced a justifiable sense of grievance arising from the disparity in sentences.
  • Whether the sentence imposed was manifestly excessive.

Decision

On parity: The Court upheld the first ground of appeal. The sentencing judge made no reference to parity despite the applicant and his co-offenders having been sentenced for the same course of offending. That omission constituted an error, and the Court proceeded to resentence. The Court rejected the prosecution's argument that defence counsel's failure to raise parity at first instance should be treated as an acceptance that it had little relevance. The parity principle does not depend on counsel raising it, and a sentencing judge retains an obligation to consider it.

On justifiable sense of grievance: The Court acknowledged that the co-offenders were sentenced in the Local Court, which carries lower maximum penalties for individual offences, and that there were genuine differences in the roles and subjective circumstances of the offenders. In particular, Atkinson had a lesser role in the assault, and Senico-Young had entered a plea at a later stage. Nevertheless, taking those differences into account, the Court found the disparity between the sentences was sufficient to give rise to a justifiable sense of grievance on the applicant's part.

On resentencing: The Court gave weight to the applicant's improved prospects of rehabilitation and his need for drug treatment, which called for an extended parole period. While the applicant was found to be the instigator of the assault on the taxi driver (throwing the first punch), the Court considered a reduced sentence was appropriate when proper regard was paid to parity, subjective circumstances, and the full 25 per cent discount for early guilty pleas. Given the finding on parity, the Court did not separately address the manifest excess ground.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The sentence imposed in the District Court quashed.
  • The applicant resentenced to an aggregate term of 3 years' imprisonment with a non-parole period of 20 months, commencing 27 March 2019.
  • First eligible for release on parole: 27 November 2020; head sentence expires: 26 March 2022.

Key Takeaways

  • A sentencing court is obliged to consider parity with co-offenders even where defence counsel does not raise the issue at the sentencing hearing. Counsel's silence on parity cannot be treated as a concession that the principle is inapplicable.
  • Where co-offenders are sentenced in different courts (here, the Local Court and the District Court), the parity principle still applies. The different sentencing jurisdictions and their respective maximum penalties are relevant contextual factors, but do not eliminate the obligation to consider disparity.
  • A justifiable sense of grievance can arise even where there are genuine differences in the roles and subjective circumstances of co-offenders, if the resulting sentencing gap remains disproportionate after accounting for those differences.
  • Improved prospects of rehabilitation and the need for drug treatment are factors that may support a longer parole period relative to the non-parole period, reflecting the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • In resentencing, the Court of Criminal Appeal applied a full 25 per cent discount for early guilty pleas across all charges, reducing the aggregate sentence from 4 years 6 months to 3 years.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59, 112, 117, 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 53A
- Criminal Procedure Act 1986 (NSW), s 268

Cases:
- Postiglione v The Queen (1997) 189 CLR 295 (parity principle)
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Dinsdale v The Queen (2000) 202 CLR 321
- Markarian v The Queen (2005) 228 CLR 357
- Park v R [2020] NSWCCA 90
- R v Doan (2000) 50 NSWLR 115
- R v McNaughton (2006) 66 NSWLR 566
- Re Attorney-General's Application (No 1); R v Ponfield (1999) 48 NSWLR 327 (break and enter guideline judgment)
- Scicluna v R [2008] NSWCCA 24; Tobia v R [2016] NSWCCA 99
- Zreika v R [2012] NSWCCA 44
- Shortland v R [2013] NSWCCA 4
- R v Tisalandis [1982] 2 NSWLR 430
- Pecora v The Queen [1980] VR 499