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Court of Criminal Appeal 10 June 2022

Chandler v R

[2022] NSWCCA 124

Assault & violenceFirearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE PRINCIPLE OF PARITY WHERE APPLICANT AND CO APPEALS

Citation: Chandler v R [2022] NSWCCA 124
Court: New South Wales Court of Criminal Appeal
Date: 10 June 2022
Judges: Bell CJ (principal judgment); Button J and N Adams J (agreeing)

Background

The applicant pleaded guilty in the District Court to discharging a firearm with intent to cause grievous bodily harm (s 33A(1)(a) of the Crimes Act 1900 (NSW)), an offence carrying a maximum penalty of 25 years' imprisonment and a standard non-parole period of nine years. The plea was entered on the first day of trial, attracting only a 5% discount. The applicant was sentenced to six years and seven months' imprisonment with a non-parole period of four years and three months.

His co-offender had lured the victim to a position where the applicant could shoot him in the leg, but pleaded guilty to the lesser offence of firing a firearm in a manner likely to injure (s 93G(1)(c) of the Crimes Act), on the basis of joint criminal enterprise. That offence carried a maximum of 10 years with no standard non-parole period. The co-offender received two years and nine months with a non-parole period of one year and nine months, reflecting a 25% discount for an early guilty plea.

The applicant sought leave to appeal on two grounds: that there was an unjustifiable disparity between his sentence and his co-offender's, and that the sentencing judge wrongly treated the offence being committed "in company" as a statutory aggravating factor.

  • Whether the sentencing judge properly applied the parity principle when the applicant and co-offender pleaded guilty to different offences arising from the same facts, but carrying significantly different maximum penalties and reflecting different levels of culpability.
  • Whether the fact that the applicant committed the offence "in company" with his co-offender was properly treated as an aggravating factor under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW), or whether it was instead an element of his offending.

Decision

On the parity issue, the Court held that the sentencing judge correctly applied the parity principle. The principle requires that co-offenders not receive sentences so different as to be unjustifiable, but it does not demand mathematical equality where the offenders are convicted of different offences reflecting meaningfully different levels of criminal responsibility. The applicant was the shooter, harboured the animosity toward the victim, arranged the meeting, and brought the rifle. His moral and criminal culpability was considerably higher than that of the co-offender, who was convicted of a lesser offence carrying less than half the maximum penalty.

The Court also noted that the applicant received a smaller guilty plea discount (5%) than the co-offender (25%) because his plea came far later. Taking all these factors together, the sentencing judge was found to have properly accounted for the differences and committed no error of principle.

On the "in company" issue, the Court distinguished the present case from Tabbah v R [2019] NSWCCA 324. In Tabbah, joint criminal enterprise formed the basis of the offender's liability, making the presence of others integral to the offence itself, so "in company" could not be double-counted as an aggravating factor. Here, the applicant's liability was entirely independent of joint criminal enterprise principles. He was the principal actor in every respect, and the co-offender's presence was an additional circumstance rather than a founding element of his liability. It was therefore open to the sentencing judge to treat acting "in company" as a statutory aggravating factor.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle does not require equivalent sentences where co-offenders plead guilty to different offences that genuinely reflect different levels of moral and criminal culpability, particularly where the maximum penalties differ substantially.
  • A significantly greater guilty plea discount obtained by a co-offender is a legitimate factor in explaining sentencing disparity; it does not of itself render the comparison unjustifiable.
  • Under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999, the "in company" aggravating factor is not available where joint criminal enterprise forms the very basis of the offender's liability, making the presence of another person an element of the offence rather than an additional circumstance.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that Tabbah v R turns on its specific facts: where an offender's liability rests on their own direct conduct rather than joint criminal enterprise, the "in company" factor remains available to a sentencing judge.
  • A late guilty plea, entered on the first day of trial, can produce a materially different sentencing outcome compared with an early plea, even where the underlying facts of the offending are largely the same.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 33A, 93G
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 10(1)(a), 21A(2), 25D, 25E
- Criminal Procedure Act 1986 (NSW) s 166
- Firearms Act 1996 (NSW) s 65(3)

Cases:
- Kadwell (a pseudonym) v R [2021] NSWCCA 42
- Daw v R [2017] NSWCCA 327
- Tabbah v R [2019] NSWCCA 324 (distinguished)
- Gaggioli v R [2014] NSWCCA 246
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- R v Birchell [2020] NSWDC 69