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Court of Criminal Appeal 15 December 2022

El Katrib v R

[2022] NSWCCA 266

Assault & violencePublic order & justice offences
CRIME APPEALS APPEAL AGAINST SENTENCE PARITY JOINT CRIMINAL ENTERPRISE

Citation: El Katrib v R [2022] NSWCCA 266
Court: Court of Criminal Appeal, New South Wales
Date: 15 December 2022
Judges: Macfarlan JA, Button J (primary reasons), Wilson J

Background

The applicant was sentenced in the District Court on 11 March 2022 for one count of specially aggravated detaining a person for advantage, committed as part of a joint criminal enterprise with four co-offenders. The offending arose from a dispute over stolen prohibited drugs and involved the prolonged detention and brutal physical assault of a 44-year-old male victim over several hours. The maximum penalty for the offence is 25 years' imprisonment.

The applicant received a head sentence of 5 years and 3 months, with a non-parole period of 3 years and 6 months. His role differed from the other co-offenders in that he was not present at the initial location where violence was first inflicted, and the sentencing judge did not find that he personally struck the victim. However, the applicant drove a van that transported the still-detained victim and, critically, was the person who physically recaptured the victim when he attempted to escape on foot, preventing what may have been a successful escape.

The applicant sought leave to appeal on a single ground: that his sentence was disproportionate compared with those imposed on his co-offenders, giving rise to a justifiable sense of grievance. This concept, known in sentencing law as the "parity principle," is directed at ensuring that co-offenders are not sentenced in a way that produces an unjustifiable sense of grievance or injustice.

  • Whether the applicant's sentence gave rise to an objectively justifiable sense of grievance when compared with the sentences imposed on each of his co-offenders, having regard to differences in their respective roles and subjective circumstances.
  • Whether the sentencing judge's findings regarding the applicant's lack of insight and remorse were open on the evidence.
  • Whether the fact that a single judge sentenced all co-offenders is relevant to the difficulty of establishing erroneous disparity on appeal.

Decision

Button J (with Macfarlan JA and Wilson J agreeing) granted leave to appeal but dismissed the appeal. The court examined the sentences of each co-offender in turn, assessing whether the differences in outcome were explicable by legitimate distinctions in objective role and subjective features.

The co-offender who received the lightest sentence (head sentence of 3 years and 3 months, non-parole period of 1 year and 6 months) was a woman who had lured the victim to the scene but had a significantly more compelling subjective case, including profound mitigating personal circumstances. The court found the gap between her sentence and the applicant's was justified by the combination of her superior subjective case and different objective role. Comparisons with the two most violent co-offenders also did not support a finding of erroneous disparity, given the markedly more serious nature of their direct physical involvement.

The closest comparison was with one co-offender who had been involved in violence from the outset, including repeatedly stomping on the victim's head. The court acknowledged that a sentencing judge could have drawn the starting points of those two sentences a little closer together. However, the court held this was precisely the kind of evaluative, discretionary judgment that falls within the permissible range of sentencing outcomes. The applicant had a worse criminal record, demonstrated little or no insight into his offending, and had played what the sentencing judge described as a "vitally active" role in recapturing the victim at a critical moment.

The court also observed that where a single judge sentences all co-offenders together, that judge is uniquely positioned to engage with parity directly through the process of instinctive synthesis, making it harder for an applicant to demonstrate error on appeal.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • A parity challenge does not succeed merely because one co-offender received a lighter sentence; the court must identify an objectively justifiable sense of grievance that is not explained by differences in role, culpability, or subjective circumstances.
  • Where a sentencing judge has made factual findings about an offender's lack of insight and remorse that are open on the evidence, those findings will support a heavier sentence relative to co-offenders who demonstrated genuine remorse.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the sentencing of co-offenders in a joint criminal enterprise involves a discretionary, evaluative process, and the outcome need only fall within a broad range of permissible options.
  • The fact that a single judge sentences all co-offenders at the same time is a relevant consideration on a parity appeal: that judge is best placed to weigh the competing factors across the group, and appellate intervention is correspondingly more difficult to justify.
  • An applicant's objectively lesser degree of violence does not automatically produce a lower sentence when other factors, such as a critical role in recapturing an escaping victim, a poor criminal record, and an absence of insight, weigh against mitigation.

Legislation and Cases Referenced

Cases:
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 4 (parity principle)
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 (parity principle)

Legislation: No specific statutory provisions were identified in the metadata or the text provided.