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Court of Criminal Appeal 13 November 2020

Bahcekapili v R

[2020] NSWCCA 296

Assault & violenceTheft & property
CRIMINAL LAW SENTENCE APPEAL ROBBERY IN COMPANY PARITY WITH SENTENCE OF CO OFFENDER SUBJECTIVE CIRCUMSTANCES

Citation: Bahcekapili v R [2020] NSWCCA 296
Court: NSW Court of Criminal Appeal
Date: 13 November 2020
Judge(s): Hoeben CJ at CL; Rothman J; N Adams J

Background

The applicant pleaded guilty in the Local Court to one count of robbery in company under s 97(1) of the Crimes Act 1900 (NSW), arising from an armed robbery of a taxi driver in the early hours of 15 October 2017. He and his co-offender approached a taxi, and while the co-offender held a bladed knife toward the driver, the applicant took the driver's cash from the rear seat. Both fled the scene. DNA, CCTV footage, and items seized during a search warrant led to the applicant's identification.

The applicant was sentenced in the District Court to 2 years and 3 months imprisonment with a non-parole period of 1 year and 6 months. His co-offender, sentenced five days later by the same judge, received 3 years and 1 month with a non-parole period of 1 year and 10 months, though 6 months of that non-parole period was served concurrently with a separate Local Court sentence for driving offences.

The applicant sought leave to appeal his sentence on the sole ground that the gap between his sentence and his co-offender's was not large enough, giving him a justifiable sense of grievance under the parity principle.

  • Whether the difference between the applicant's sentence and his co-offender's sentence was sufficient to reflect their materially different circumstances, including the co-offender's more extensive criminal history, his breach of parole at the time of the offence, and his additional driving offences.
  • Whether the applicant had a "justifiable sense of grievance" for the purposes of the parity principle in sentencing.
  • Whether the sentencing judge was required, when applying parity, to focus on the actual custodial terms served by each offender rather than the head sentences imposed.

Decision

N Adams J, with whom Hoeben CJ at CL and Rothman J agreed, dismissed the appeal. The Court accepted that the co-offender's circumstances were materially worse than the applicant's in several respects: the co-offender had committed the offence while on parole for four armed robbery offences committed as a juvenile; he had subsequently accumulated further offences (police pursuit and driving-related charges); and his guilty plea came on the first day of trial rather than at an early stage as the applicant's had.

The Court considered the appropriate approach to comparing sentences where one offender is sentenced for multiple offences and the other for only one. Relying on Postiglione v The Queen and the Court's earlier decisions in Ayik v R and El-Helou v R, the Court noted that a purely arithmetical comparison of head sentences is not appropriate. The actual period attributable to the common offence, including the effect of any concurrency, must be considered, though it is not the only relevant factor.

Rothman J emphasised the conceptual foundation of the parity principle: equal justice requires not only that relevantly equal offenders be treated equally, but also that relevantly different offenders be treated differently in a way that rationally reflects those differences. A "rational disparity" is, in that sense, a contradiction in terms. The relevant question is whether the relationship between the sentences rationally reflects the differences between the offenders, not whether the appellate court would have calibrated that relationship differently.

The Court found that, even accounting for the 6-month concurrent portion of the co-offender's sentence, the difference between the two sentences was rational and justified by the co-offender's significantly more serious background. No justifiable sense of grievance arose, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle in sentencing requires that differences in sentences between co-offenders rationally reflect the relevant differences in their circumstances. Where that rational relationship exists, no "disparity" arises in the legal sense, regardless of the numerical gap.
  • A justifiable sense of grievance is assessed objectively, not from the subjective perspective of the aggrieved offender. An appellate court will not intervene merely because it might have calibrated the relationship between sentences differently.
  • Where one co-offender is sentenced for multiple offences and another for only one, a simple arithmetic comparison of head sentences is not the correct analytical approach. The actual period each offender must serve in connection with the common offence, including any concurrency, is a relevant but not determinative factor.
  • Significantly worse antecedents, including a prior pattern of serious offending, a breach of parole at the time of the relevant offence, and a late guilty plea, can justify a materially longer sentence without any breach of the parity principle.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that once a sentencing judge has established a rational relationship between co-offenders' sentences, an appellate court's role is limited: there is no single correct sentence and no single correct relationship between co-offenders' sentences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)

Cases
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Ayik v R [2013] NSWCCA 119
- El-Helou v R [2014] NSWCCA 209
- Kelly v R [2017] NSWCCA 256
- R v Moore [2012] NSWCCA 3
- Tran v The Queen [2006] NSWCCA 266