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Court of Criminal Appeal 23 July 2020

Downes v R

[2020] NSWCCA 167

Assault & violence
CRIMINAL LAW SENTENCE APPEAL ALTERCATION IN HOTEL EVENTS RECORDED ON CCTV APPLICANT MAJOR CONTRIBUTOR TO VIOLENCE WHETHER PARITY PRINCIPLE OBSERVED

Citation: Downes v R [2020] NSWCCA 167
Court: NSW Court of Criminal Appeal
Date: 23 July 2020
Judges: Hoeben CJ at CL; Rothman J; Hamill J

Background

The applicant pleaded guilty in the Local Court to three offences arising from a violent brawl at a Penrith hotel on 15 December 2018: affray, assault occasioning actual bodily harm, and reckless wounding. After the matter was committed for sentencing, the District Court imposed an aggregate sentence of three years' imprisonment with a non-parole period of two years.

A co-offender was separately sentenced in the Local Court for affray only and received 15 months' imprisonment to be served by way of an Intensive Correction Order, together with 200 hours of community service and a fine. The co-offender had no prior criminal history.

The applicant sought leave to appeal against his sentence on the sole ground that there was an unjustifiable disparity between his sentence and that of the co-offender, invoking what is known as the parity principle.

Legal Issues

  • Whether the disparity between the applicant's sentence and the co-offender's sentence was clearly unjustifiable, having regard to the differences in their respective conduct during the affray.
  • Whether the sentencing judge correctly identified and applied the parity principle.

Decision

Parity Ground:

The Court of Criminal Appeal dismissed the appeal, finding that the applicant had failed to establish any clearly unjustifiable discrepancy between the two sentences (at [46]).

The sentencing judge had carefully compared the applicant's conduct with the co-offender's conduct and found significant differences. The applicant re-entered the hotel premises unprovoked and immediately threw the first punch, escalating the violence (at [14]). He punched a woman in the face as she tried to protect an injured victim (at [18]). He picked up a pool cue and struck a victim across the face, breaking the cue and causing a wound requiring five stitches (at [20]-[21]). He also kicked and stomped on victims' heads while they lay on the ground, conduct the sentencing judge found was not merely attempted, as the applicant claimed (at [26]-[29]).

The co-offender, by contrast, was sentenced for affray only. While he participated in the violence, his conduct was materially less serious: he did not initiate the re-entry into the premises, did not use a weapon, and did not stomp or kick anyone in the head while on the ground (at [44]). Indeed, in the closing stages of the affray, the co-offender was attempting to pull the applicant away from a victim (at [43]).

Hoeben CJ at CL held that a simple comparison of the two men's actions made it clear the applicant's offending was considerably more serious, and that the applicant had no basis for a justified sense of grievance (at [44]-[46]). Rothman J added that where a sentencing judge has correctly identified and applied the parity principle to the correct facts, an appellate court cannot intervene merely because it would have reflected the principle differently; the discrepancy must be manifest (at [52]-[53]). Hamill J agreed that the difference in criminality justified the sentencing disparity, and that due and proper proportion between the sentences had been achieved (at [55]).

Orders Made

  • Leave to appeal granted.
  • The appeal is dismissed.

Key Takeaways

  • The parity principle does not require equal sentences for co-offenders; it requires that any disparity be justifiable by genuine differences in the offenders' culpability, criminal histories, and the offences for which each was charged. In dismissing the appeal, the Court confirmed that a substantial sentencing gap was appropriate where the applicant's conduct was, on the CCTV evidence, materially more serious than his co-offender's (at [44]-[46]).

  • A co-offender sentenced for a single offence in the Local Court, with no prior history, is in a materially different position to one sentenced in the District Court for three offences, one carrying a standard non-parole period, and with a prior conviction for the same type of offence (at [43]-[45]).

  • Rothman J clarified that parity errors may arise in two main ways: first, where the principle was never applied (for example, because different judges sentenced co-offenders); and second, where an identifiable error of the House v The King variety occurred, such as a mistake of fact or consideration of an irrelevant factor (at [51]).

  • Where the sentencing judge correctly identifies and applies the parity principle, an appellate court cannot substitute its own assessment of how the principle should have been reflected in the figures; intervention requires a manifest, not merely arguable, discrepancy (at [52]-[53]).

  • CCTV evidence recording the entirety of an affray can play a decisive role in assessing the comparative gravity of co-offenders' conduct, including by demonstrating the force of blows and the sequence in which violence escalated (at [41]-[42]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) – ss 35(4), 59(1), 93C(1)
- Criminal Appeal Act 1912 (NSW) – s 5(1)(c)

Cases
- Cameron v R [2017] NSWCCA 229
- Chamon v R [2020] NSWCCA 112
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
- Fenech v R [2018] NSWCCA 160
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26