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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
Judge(s): Hoeben CJ at CL; Rothman J; Hamill J

Background

The applicant pleaded guilty in the Local Court to three offences arising from a violent altercation at a hotel in Penrith on 15 December 2018: affray (s 93C(1), Crimes Act 1900), assault occasioning actual bodily harm (s 59(1)), and reckless wounding (s 35(4)). The events were captured on CCTV footage and the key facts were not in dispute. A co-offender, Mr Stuth, was dealt with separately in the Local Court for affray only.

The sentencing judge in the District Court imposed an aggregate sentence of three years' imprisonment with a two-year non-parole period on the applicant, after applying a 25 per cent discount for the utilitarian value of his guilty plea. Mr Stuth, who had no criminal history, received 15 months' imprisonment to be served by way of an Intensive Correction Order, plus 200 hours of community service and a $1,500 fine.

The applicant sought leave to appeal his sentence on a single ground: that the disparity between his sentence and Mr Stuth's gave rise to a justifiable sense of grievance, engaging what is known as the parity principle.

  • Whether the disparity between the applicant's sentence and that of the co-offender, Mr Stuth, was such that the applicant was left with a justifiable sense of grievance
  • Whether the sentencing judge properly applied the parity principle in circumstances where the co-offender faced only one charge and was dealt with in a different court

Decision

The Court of Criminal Appeal dismissed the application. The central question under the parity principle is whether a co-offender's lesser sentence produces a justifiable sense of grievance, not merely a mathematical difference in outcome. The Court found that the disparity in this case was fully explained by the significant difference in the objective seriousness of each man's conduct.

The CCTV footage made the contrast plain. The applicant was the primary instigator and aggressor throughout the incident. He re-entered the hotel to renew the confrontation, punched multiple people including a woman, stomped on a man's head while he lay on the ground, struck others with a pool cue, and attacked a security guard. Mr Stuth's involvement, while still criminal, was materially less serious: he intervened after the applicant had been tackled to the ground, shoved one person, and punched another victim once.

Hoeben CJ at CL noted that the applicant faced three charges compared to Mr Stuth's one, and that the nature and extent of the applicant's violence was of a far higher order. The difference in sentences accordingly reflected a rational and proportionate response to the difference in their respective criminality. Hamill J agreed that the sentencing judge achieved due and proper proportion between the two sentences. Rothman J added that, where a sentencing judge applies the correct principles to the correct facts, a court on appeal cannot intervene merely because it would have expressed the parity principle differently.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A disparity in sentences between co-offenders does not automatically engage appellate intervention. The parity principle requires a showing that the difference produces a justifiable sense of grievance, not simply an unequal numerical outcome.
  • Where the objective criminality of two co-offenders differs substantially, a significant difference in their sentences may be entirely appropriate and proportionate.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the fact a co-offender was sentenced in a different court (here, the Local Court) and for fewer charges does not, of itself, render a more severe sentence on the other offender unjust.
  • Rothman J noted that where a sentencing court applies the correct principles to the correct facts, an appellate court cannot intervene simply because it would have approached the parity analysis differently. There is not always one single correct outcome.
  • The extent and nature of an applicant's violence relative to a co-offender's is a central consideration in assessing whether any sentencing disparity is rationally justified.

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