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Court of Criminal Appeal 20 February 2023

MO v R

[2023] NSWCCA 26

Public order & justice offences
S ENTENCING APPEAL AGAINST SENTENCE OFFENDERS DISPARITY BETWEEN SENTENCES PROPER USE OF THE PARITY PRINCIPLE WHERE SEVERAL CO

Citation: MO v R [2023] NSWCCA 26
Court: NSW Court of Criminal Appeal
Date: 20 February 2023
Judges: Bell CJ, Davies J, Fagan J

Background

The applicant was a member of the criminal group Brothers for Life who, in 2013, was charged with involvement in a shooting. Before his 2016 District Court trial on the shooting offences, he paid a witness $25,000 to either stay silent or give false evidence. The witness gave false evidence, but the applicant was nevertheless convicted and imprisoned.

While in custody following that conviction, the applicant recruited a fellow inmate to prepare a false affidavit for use in an appeal to the Court of Criminal Appeal. The plan was that the inmate would be paid $80,000 for this. The scheme came to the attention of Corrective Services, the relevant ground of appeal was withdrawn, and the payment was never made.

The applicant was convicted by jury of two counts of doing an act with intent to pervert the course of justice. He was sentenced in March 2021 to an aggregate term of 7 years' imprisonment with a non-parole period of 4 years and 3 months. He sought leave to appeal, arguing the sentencing judge misapplied the parity principle and that the sentence was manifestly excessive.

  • Whether the sentencing judge impermissibly used the parity principle to increase the applicant's sentence beyond what it would otherwise have been, by reference to lower sentences received by co-offenders
  • Whether the Crown's submissions on parity amounted to the kind of impermissible submissions about sentencing ranges criticised by the High Court in Barbaro v The Queen (2014) 253 CLR 58
  • Whether the sentence of 7 years was manifestly excessive, particularly when compared to sentences imposed in other cases involving similar offending

Decision

On the parity ground, the Court found no error in the sentencing judge's reasoning. The sentencing judge's remark that the applicant's sentence "should be higher" than those of co-offenders was not a mathematical or proportional exercise. Rather, the judge had examined the circumstances of each co-offender and then explained why the applicant's greater culpability and paramount role warranted a more severe sentence. The remarks disclosed a legitimate process of comparison, not an impermissible inflation.

The Court also rejected the argument that the Crown's parity submissions fell foul of Barbaro. That High Court decision concerned prosecutors submitting that a sentencing disposition would constitute appellable error if it fell outside a specified range. The Crown's submissions here made no such claim. They were directed to the relative positions of the co-offenders, which is a permissible and recognised feature of sentencing submissions.

The Court confirmed the applicable principle: a sentencing judge must not invoke a co-offender's lower sentence to justify imposing a sentence more severe than would otherwise be warranted. However, a judge may legitimately refer to co-offenders' sentences when assessing sentencing practice and explaining why, on a proper analysis of the relevant conduct and circumstances, a heavier sentence is appropriate. The applicant bore the greatest responsibility and had the most direct self-interest in the criminal scheme. Combined with differences in subjective circumstances, there was no relevant disparity warranting intervention.

On manifest excess, the Court rejected the comparison with sentences imposed in other cases. The comparable cases the applicant relied upon involved significantly stronger mitigating factors, including no significant criminal history, early guilty pleas, and better subjective circumstances. The applicant's subjective case was materially weaker. The Court also emphasised the recognised gravity of offences that strike at the integrity of the justice system, noting that such offending warrants condign punishment regardless of whether the attempt to pervert the course of justice ultimately succeeded.

Orders Made

• Leave to appeal out of time granted
• Leave to appeal granted
• Appeal dismissed

Key Takeaways

  • The parity principle does not prevent a sentencing judge from imposing a higher sentence than a co-offender received, provided the judge does so based on a proper assessment of differences in culpability and circumstances, rather than by mechanically scaling up from the co-offender's sentence.
  • A sentencing judge errs only if the parity principle is used as the reason to increase a sentence beyond what it would otherwise have been. Referring to co-offenders' sentences as a cross-check on sentencing practice is permissible and distinct from that error.
  • Barbaro v The Queen (2014) 253 CLR 58 is concerned with prosecutors submitting that a particular disposition would constitute appellable error if it fell outside a nominated range. A Crown submission that one offender should receive a higher sentence than co-offenders does not engage that prohibition.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal reaffirmed that offences against the administration of justice are treated with particular seriousness, and that the severity of the sentence must reflect the importance of protecting the integrity of the justice system.
  • Comparing sentences across cases requires careful attention to differences in subjective circumstances. Where comparable cases involve stronger mitigating factors, such as early guilty pleas or limited criminal history, they provide limited assistance to an applicant with a weaker subjective case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 319, 328
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(5)

Cases
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
- Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Delaney v The Queen; R v Delaney (2013) 230 A Crim R 581; [2013] NSWCCA 150
- Anderson v R [2022] NSWCCA 187
- Matthews v The Queen (2014) 44 VR 280; [2014] VSCA 291
- Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
- McClain v R [2011] NSWCCA 191
- Issa v R [2017] NSWCCA 188
- Kerr v R [2016] NSWCCA 218
- El-Helou v R [2014] NSWCCA 209
- R v Pearce [2020] NSWCCA 61