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Court of Criminal Appeal 20 April 2022

Wood v R

[2022] NSWCCA 84

Assault & violenceTheft & property
CRIME APPEALS APPEAL AGAINST SENTENCE PARITY PRINCIPLE TOTALITY PRINCIPLE OFFENDER’S NON

Citation: Wood v R [2022] NSWCCA 84
Court: NSW Court of Criminal Appeal
Date: 20 April 2022
Judge(s): Macfarlan JA, Adamson J, Dhanji J (unanimous)

Background

The applicant pleaded guilty to a single count of armed robbery in company, committed on 17 January 2020. He and his co-offender attended a brothel in Sydney, armed themselves with machetes, threatened staff, and stole approximately $16,500 in cash. The applicant was sentenced in the District Court to 4 years imprisonment with a non-parole period of 2 years and 6 months.

The co-offender was sentenced at the same hearing for three offences: the shared armed robbery, a second armed robbery at a McDonald's restaurant four days later, and a police pursuit offence. Ten further offences were taken into account on a Form 1. The co-offender was already serving a pre-existing sentence of 5 years with a non-parole period of 3 years when these new sentences were imposed.

The District Court sentenced the co-offender to an aggregate term of 5 years and 3 months with a non-parole period of 3 years and 2 months, ordered to run partially concurrently with the existing sentence. The indicative sentence for the shared armed robbery was 4 years and 3 months, only 3 months more than the applicant received. The applicant sought leave to appeal on the ground that the overall sentencing outcome gave him a justifiable sense of grievance under the parity principle.

  • Whether the applicant had a justifiable sense of grievance arising from disparity between his sentence and the sentence imposed on his co-offender.
  • How the parity principle applies where one offender is sentenced for a single offence and a co-offender receives an aggregate sentence for multiple offences.
  • How the parity and totality principles interact when the co-offender's aggregate sentence is ordered to run partially concurrently with a pre-existing sentence.
  • Whether, in assessing parity, the court should focus on the indicative sentence for the common offence alone, or examine the total effective custodial impact of all sentences on each offender.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, holding that the applicant did have a justifiable sense of grievance. The central difficulty was that comparing only the indicative sentences for the shared armed robbery (a difference of 3 months) gave a misleading picture of the actual disparity between the two offenders' positions.

Dhanji J, with whom Macfarlan JA and Adamson J agreed, reasoned that a proper parity analysis requires examining the total effect of all sentences being served by each offender, not merely the sentence pronounced for the common offence in isolation. When the co-offender's aggregate sentence was set against his pre-existing sentence, the practical result was that his non-parole period was extended by only 12 months and his total sentence by only 13 months. Both offenders had strong subjective cases. The 3-month difference in indicative sentences for the shared offence was sufficient to reflect the differences in their subjective circumstances, but the overall picture, when totality was applied to the co-offender's multiple sentences, meant he was serving a total effective sentence far less burdensome relative to his criminality than the applicant's sentence was relative to his.

The Court confirmed that a sentencing court cannot confine its parity assessment to the indicative sentence for the common offence when the co-offender is serving an aggregate term partially concurrent with pre-existing imprisonment. All components of all sentences for all offenders must be brought into account. In those circumstances, the total effect of the sentences on the applicant was not proportionate to their respective criminality when compared to the co-offender.

On resentencing, the Court took into account the serious nature of the armed robbery, the applicant's strong rehabilitation motivation, the difficulties he experienced in custody during the COVID-19 pandemic, and the deterioration of his mother's health. The Court reduced the applicant's sentence to 3 years and 6 months with a non-parole period of 2 years.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Harris DCJ in the District Court quashed.
  • In substitution, a sentence of imprisonment of 3 years and 6 months imposed, commencing 22 April 2020 and expiring 21 October 2023, with a non-parole period of 2 years expiring 21 April 2022.
  • Earliest date eligible for release on parole specified as 21 April 2022.

Key Takeaways

  • The parity principle requires courts to examine the total effective impact of sentences on each co-offender, not merely the indicative sentence for any shared offence. Focusing only on the indicative sentence for a common offence can obscure genuine disparity.
  • Where a co-offender's aggregate sentence runs partially concurrently with a pre-existing sentence, the practical extension to that co-offender's actual time in custody must be weighed against the sentence imposed on the comparator offender to assess whether disparity is justified.
  • A justifiable sense of grievance can arise even where there is a surface-level difference in the number and gravity of offences between co-offenders, if the total sentencing outcome does not proportionately reflect the difference in their respective criminality.
  • The Court of Criminal Appeal confirmed that the principles of parity and totality are not applied in isolation from each other. When totality operates to reduce the practical effect of a co-offender's sentence, this must be factored into a parity comparison.
  • Both offenders having strong subjective cases does not, of itself, preclude a finding of unjustifiable disparity. The nature of each offender's subjective circumstances must be weighed against the overall custodial outcome.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1900 (NSW), ss 51B(1), 97(1), 154F, 527C(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Road Transport Act 2013 (NSW), s 54(4)(a)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- Bahcekapili v R [2020] NSWCCA 296
- Kelly v R [2017] NSWCCA 256
- Usher v R [2016] NSWCCA 276