Citation: Mir v R [2022] NSWCCA 132
Court: NSW Court of Criminal Appeal
Date: 17 June 2022
Judges: Gleeson JA, Bellew J, Hamill J (Hamill J delivered the principal judgment)
Background
The appellant was one of three men tried together for a series of violent offences committed on 1 July 2010. The offences included two armed home invasion robberies and the murder of a man who was attacked with meat cleavers during the second robbery. In 2013, Johnson J sentenced all three men following a joint sentencing hearing.
The appellant received a total effective sentence of 31 years with a non-parole period of 24 years. His two co-offenders, who held more senior roles in the criminal group, received heavier total sentences: 40 years (non-parole 32 years) and 37 years (non-parole 30 years) respectively.
The appeal turned on a single question of parity. The appellant argued that, although his total sentence was lighter, the individual sentences imposed on all three men for the two robbery counts they shared in common were the same (or near identical). Given that his co-offenders had played more senior organisational roles, he contended that equal individual sentences for those counts produced an unjust result.
Legal Issues
- Whether the Court should extend time to bring a sentence appeal lodged roughly nine years after sentence was imposed.
- Whether the individual sentences for the two common robbery counts, which were the same (or near the same) for all three co-offenders, gave rise to a justifiable sense of grievance on the part of the appellant by reason of a failure to apply the parity (equal justice) principle.
Decision
Extension of time: The Court granted an extension of time despite extensive delay and an incomplete explanation for why the matter had not moved between March 2017 and late 2019. Hamill J noted that the parity ground was arguable, the sentence was very long, and the applicant had not been warned that delay would prejudice a future application. Those factors weighed in favour of extending time, notwithstanding the unsatisfactory gaps in the explanation.
The parity argument: The parity principle requires that co-offenders sentenced for the same offences should not receive sentences so different as to create a justifiable sense of grievance in the more heavily sentenced person. Here, the argument ran in an unusual direction: the appellant complained not that he was sentenced more harshly than his co-offenders for the common counts, but that equal sentences were wrong given the differences in their respective roles and personal circumstances.
Hamill J accepted that the co-offenders held more senior positions in the criminal group. One was the group's leader and organiser, the other was a trusted lieutenant who recruited the appellant. However, the appellant himself played an active role inside the premises during both robberies, wielding a meat cleaver and threatening the occupants, and there was evidence he boasted about the offences afterwards. The differences in subjective cases were also not substantial enough to demand a materially lower sentence for the shared counts.
The Court found no error in the sentencing judge's approach. Johnson J had made individual assessments for each offender while remaining conscious of equal justice, and had then applied the totality principle in constructing the overall sentences. The Court held that the absence of disparity in the robbery sentences did not produce a justifiable sense of grievance in the appellant. The appeal was dismissed.
Orders Made
- Time to seek leave to appeal was extended.
- Leave to appeal against sentence was granted.
- The appeal was dismissed.
Key Takeaways
- The parity principle can be engaged where co-offenders receive the same sentence for shared offences, not only where one receives a harsher sentence than another. However, equal sentences will not automatically produce a justifiable grievance merely because co-offenders held different roles.
- In assessing parity, a court must weigh differences in role and subjective circumstances against other distinctions, including an offender's direct physical participation in the offences. An active, hands-on role may justify an equivalent sentence to a more senior but physically absent organiser.
- The Court of Criminal Appeal confirmed that individual sentences for shared counts must be read alongside the total effective sentences produced by the application of the totality principle. The overall sentencing exercise is the relevant frame of reference, not any single count in isolation.
- An extension of time was granted despite a delay of nearly nine years from the date of sentence, where the ground of appeal was arguable, the sentence was lengthy, and the applicant had not been put on notice that withdrawal of an earlier appeal would forfeit his right to return.
- No error was established where a sentencing judge had made individual findings for each co-offender, acknowledged the differences in their cases, and arrived at equal or near-equal sentences for common counts after a careful balancing exercise.
Legislation and Cases Referenced
Cases:
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Lowe v The Queen (1985) 154 CLR 606; [1984] HCA 46
- Postiglione v The Queen (1996) 189 CLR 295; [1997] HCA 26
- R v Karimi; R v Khoury; R v Mir (No 11) [2013] NSWSC 1761 (the primary sentencing judgment)
- R v MA; R v Byquar; R v Ramos [2012] NSWSC 1527
- R v Natuba; R v Tamapua [2012] NSWSC 1569
Legislation: No specific legislation was cited in the provided judgment text.