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Court of Criminal Appeal 6 November 2024

Tasdik v R

[2024] NSWCCA 195

Assault & violence
CRIME APPEALS APPEAL AGAINST SENTENCE PARITY PRINCIPLE

Citation: [2024] NSWCCA 195
Court: NSW Court of Criminal Appeal
Date: 6 November 2024
Judges: Bell CJ, Davies J, Wright J (unanimous)

Background

The appellant was convicted after trial on four counts arising from a violent criminal enterprise: specially aggravated detention with intent to obtain an advantage (occasioning actual bodily harm and in company), common assault, and two counts of aggravated detention with intent to obtain an advantage (in company). The offending involved a group of at least eight men surrounding two victims at a Bankstown property, where threats were made, weapons were brandished, and physical assaults occurred. The appellant was aged 22 at the time and had no prior convictions.

The sentencing judge imposed an aggregate sentence of 4 years 3 months, with a non-parole period of 2 years 4 months. Two co-participants, Mr Akanda and Mr Khan, had pleaded guilty to less serious charges arising from the same events and received lighter sentences, including an intensive correction order for Mr Akanda. Mr Akanda was found to have been the instigator of the conduct, a more significant participant, and the intended beneficiary of it.

The appellant sought leave to appeal solely on the ground that the disparity between his sentence and those of his co-participants gave rise to a justifiable sense of grievance under the parity principle. No ground of manifest excess was raised.

  • Whether the parity principle applies where co-participants in the same criminal enterprise are charged with, and sentenced for, materially different offences
  • Whether the absence of a sufficient explanation of how the parity principle was applied to the sentencing exercise gave rise to an objectively justifiable sense of grievance
  • How the parity principle should be given effect to on resentencing, where its application would produce a sentence that is otherwise less than adequate

Decision

The Court of Criminal Appeal held that the parity principle is not excluded simply because co-offenders were charged with, and sentenced for, different offences. While the court cannot review the exercise of prosecutorial discretion in charging decisions, differences in the charges do not render the principle inapplicable. Rather, those differences may affect the weight to be given to the principle and the extent to which it influences the ultimate sentence.

The Court found that the sentencing judge had not sufficiently explained how the parity principle was applied when arriving at the aggregate sentence. In the absence of that explanation, an objectively justifiable sense of grievance arose from the disparity between the appellant's sentence and Mr Akanda's sentence. This was particularly so given that Mr Akanda was found to be the instigator, the more culpable participant, and the intended beneficiary of the offending, yet received a significantly lesser penalty.

On resentencing, the Court accepted that the unusual circumstances of the case required giving effect to the parity principle even if that produced a sentence that was otherwise less than adequate for the offending. The qualification is that the sentence must not be so low as to amount to an affront to the administration of justice. The Court reduced the aggregate sentence to 3 years 6 months with a non-parole period of 1 year 11 months, noting the appellant's youth, his status as a first-time prisoner, and the need for supervision and support on release.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Aggregate sentence imposed by the District Court on 16 February 2024 quashed
  • Appellant resentenced to an aggregate sentence of 3 years 6 months, commencing 21 December 2023 and expiring 20 June 2027
  • Non-parole period of 1 year 11 months, expiring 20 November 2025
  • Appellant first eligible for release to parole on 20 November 2025
  • Indicative sentences recorded: Count 1 (3 years), Count 4 (1 year 9 months), Count 5 (1 year 9 months), Count 3 (section 10A conviction, no further penalty)

Key Takeaways

  • The parity principle applies even where participants in the same criminal enterprise are charged with and sentenced for different offences. The differences in charges do not exclude the principle, but may affect the weight given to it and how it is applied.
  • Where a sentencing court does not adequately explain how the parity principle was factored into the aggregate sentence, an objectively justifiable sense of grievance may arise from the disparity, warranting appellate intervention.
  • A higher level of culpability in the co-offender who received a lesser sentence (being the instigator, principal actor, and intended beneficiary of the criminal conduct) can intensify the justifiable sense of grievance felt by a less culpable co-offender who received a heavier sentence.
  • In giving effect to the parity principle, a court may be required to impose a sentence that is otherwise less than adequate for the objective criminality, provided the sentence does not fall so low as to be an affront to the administration of justice.
  • The Court of Criminal Appeal confirmed that prosecutorial charging decisions are not subject to judicial review, but the consequences of those decisions for sentencing disparity remain a legitimate consideration under the parity principle.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 59(2), 61, 86(2)(a), 86(3), 99(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 21A, 53A(2)

Cases
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Lowe v The Queen (1984) 154 CLR 606
- DL v The Queen (2018) 265 CLR 215
- Kentwell v The Queen (2014) 252 CLR 601
- Markarian v The Queen (2005) 228 CLR 357
- Jimmy v The Queen (2010) 77 NSWLR 540
- R v Howard (1992) 29 NSWLR 242
- Nguyen v The King [2024] NSWCCA 178
- Dib v R [2023] NSWCCA 243
- Hiron v R [2018] NSWCCA 10
- Rees v R [2012] NSWCCA 47
- Pham v The Queen [2009] NSWCCA 25
- R v Nguyen [2005] NSWCCA 362
- R v Formosa [2005] NSWCCA 363
- R v Stanbouli [2003] NSWCCA 355
- R v Isamunadar [2002] NSWCCA 477
- R v Armstrong [2001] NSWCCA 77
- Krakouer v R (1999) 107 A Crim R 408
- R v Gibson (1991) 56 A Crim R 1
- R v Diamond (NSWCCA, 18 February 1993, unreported)