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Court of Criminal Appeal 26 February 2025

Charnley v R

[2025] NSWCCA 20

Assault & violenceTheft & propertyFirearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE ARMED ROBBERY WHERE CO PARITY

Citation: Charnley v R [2025] NSWCCA 20
Court: NSW Court of Criminal Appeal
Date: 26 February 2025
Judges: Basten AJA, McNaughton J, Weinstein J

Background

Three co-offenders were sentenced in the Lismore District Court in late 2022 and early 2023 for armed robbery and use of an offensive weapon with intent to commit an indictable offence, arising from a robbery at a small IGA store in Buxton on 5 December 2021. The offenders had approached the store's owners as they closed up for the night, threatened them with a weapon, and took a bag containing $1,700 in cash along with a wallet, phone and keys. One victim lacerated two fingers on a knife held by one of the offenders during the incident.

The sentencing judge imposed identical sentences on all three co-offenders: an effective total term of 5 years and 3 months with a non-parole period of 3 years and 3 months. This reflected the judge's finding that the three had equal roles in the offending and similar ages, backgrounds, and criminal histories.

One co-offender, Mr Whipp, successfully appealed his sentence to the Court of Criminal Appeal (Whipp v R [2024] NSWCCA 79). The Court found the sentencing judge had failed to account adequately for the extent to which Mr Whipp's mental health would make a full-time custodial sentence more onerous, and reduced his sentence accordingly. The applicant, Mr Charnley, then sought leave to appeal his own sentence on parity grounds, arguing that the disparity created by Mr Whipp's reduced sentence gave rise to a justifiable sense of grievance.

  • Whether the extension of time to file the notice of appeal should be granted.
  • Whether the disparity between the applicant's sentence and the reduced sentence imposed on Mr Whipp, following the latter's successful appeal, gave rise to a justifiable sense of grievance warranting a reduction in the applicant's sentence.

Decision

The Court granted the extension of time to file, noting the delay was properly explained by the timing of the Whipp appeal. Leave to appeal was also granted.

On the substantive ground, the Court dismissed the appeal. McNaughton J, with whom Basten AJA and Weinstein J agreed, held that the reasons for Mr Whipp's reduced sentence were unique to his circumstances and did not apply to the applicant. The critical issue in the Whipp appeal had been the sentencing judge's failure to account for the additional burden that custody placed on Mr Whipp given his mental health. The applicant's mental health material, while significant, had been considered and applied by the sentencing judge.

The Court identified two further distinctions that reinforced this conclusion. First, on resentencing, the Court in Whipp v R had found some cautious optimism about Mr Whipp's prospects for rehabilitation, whereas the original sentencing findings in respect of the applicant described his rehabilitation prospects as "guarded" and his likelihood of reoffending as "high." Second, although both men had lengthy criminal histories, only the applicant had multiple prior offences of the same type as the current offending.

The Court acknowledged the applicant's genuinely tragic background and accepted remorse, which had been taken into account at first instance, but found those matters did not alter the analysis on parity. The different sentences were amply justified by the differences between the two men's circumstances, and no justifiable sense of grievance was established.

Orders Made

  • Leave granted to extend time for filing the Notice of Appeal to 7 November 2024.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A successful appeal by a co-offender does not automatically create a justifiable sense of grievance for other co-offenders sentenced to the same term, particularly where the grounds for the successful appeal were specific to that co-offender's circumstances.
  • The parity principle requires a comparison of the actual circumstances of each offender. Where differences in those circumstances justify a sentencing disparity, no grievance arises from the differential outcome.
  • In dismissing the appeal, the Court of Criminal Appeal identified two key distinctions: the applicant's significantly less favourable rehabilitation prognosis compared to Mr Whipp, and the applicant's prior record of offences of the same type.
  • Where a sentencing judge has properly considered a co-offender's mental health and subjective circumstances at first instance, the mere fact that another co-offender later receives a reduction on appeal for analogous reasons does not mean an error occurred in the original sentencing of the remaining offender.
  • Parity arguments grounded in a co-offender's successful appeal require careful examination of why that appeal succeeded, not merely the fact of the sentencing disparity itself.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B, 97
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Whipp v R [2024] NSWCCA 79
- Elmir v R [2023] NSWCCA 260
- Hemsworth v R [2025] NSWCCA 2
- Hung v R [2023] NSWCCA 172
- Jones v The Queen (1993) 67 ALJR 376
- Vassiliou v R [2022] NSWCCA 91
- Zreika v R [2012] NSWCCA 44