PARITY BETWEEN CO-ACCUSED16-Oct-2010 Law Article by: Geoff Harrison | Sydney Criminal Barrister | Sydney Criminal Lawyer | Published 16/10/2010
In the sentencing of co-accused the principle of parity will often loom large – essentially the principle of parity being that ‘like should be treated alike’ to avoid any justifiable sense of grievance to a co-accused who receives a harsher sentence. Whilst the principle itself is fairly straight forward, where the co-accused have been charged with the same offence and have similar backgrounds. However, the principle in it’s application raises more difficult questions where the accused are part of a common criminal enterprise and are charged with different offences. This later issue was judicially considered in the case of Jimmy v R  NSWCCA 60 by His Honour Campbell JA (Howie and Rothman JJ agreeing in general) where His Honour not only set out the background of the principal relating to parity but reviewed the case law as it related to the expanded application of the principle. His Honour held that, subject to certain limitations (that are set out in para 203 below) the court can take into account principals of parity or proportionality where the accused are part of a common criminal enterprise - but have been charged with different offences.
The relevant portions of the judgement of Jimmy v R  NSWCCA 60 as it relates the application of parity are set out below:
47 The legal principle that the Applicant invokes was stated by the High Court in Lowe v The Queen  HCA 46; (1984) 154 CLR 606. It was a case that concerned co-offenders – the lookout man, and the man who had actually taken the money, in an armed robbery. Gibbs CJ at 610 (Wilson J agreeing), Mason J at 611 and 613, and Dawson J at 623 (Wilson J also agreeing), all expressed the same thought, that sentences imposed upon co-offenders should not have such a marked disparity as to give rise to a justifiable sense of grievance, or give the appearance that justice has not been done.
48 Postiglione v The Queen  HCA 26; (1997) 189 CLR 295 likewise involved the sentences of two co-offenders. The co-offenders in question were both parties to the one conspiracy to import drugs. The principle laid down in Lowe v The Queen was reiterated. Dawson and Gaudron JJ said, at 301-2:
“The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them: see Lowe v The Queen  HCA 46; (1984) 154 CLR 606 at 610-611, per Mason J. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error: Lowe v The Queen  HCA 46; (1984) 154 CLR 606 at 617-618, per Brennan J. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen  HCA 46; (1984) 154 CLR 606, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’: Lowe v The Queen  HCA 46; (1984) 154 CLR 606, esp at 610, per Gibbs CJ; at 613, per Mason J; and at 623, per Dawson J. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.”
BETWEEN WHOM DOES THE PARITY PRINCIPLE APPLY?
High Court Authority
53 Considering whether Huang and Siu are actually co-offenders with the Applicant, for the purpose of the parity principle, must start with closer consideration of what previous authority has said about the types of people whose sentences can be compared under the parity principle.
54 In Lowe the factual situation being considered was that of two people who had co-operated in the one criminal enterprise, though playing different roles in it.
55 Gibbs CJ (with whom Wilson J agreed) said, at 609:
“The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.” (emphasis added)
56 Throughout his judgment, Gibbs CJ spoke of the parity principle as one that applied between co-offenders. Mason J at 611 approved the principle that “marked disparity in sentences imposed on co-offenders whose circumstances are comparable is itself a ground for reducing the more severe sentence”. He refers, at 612, to “harshness of the sentence in comparison with that imposed on the co-offender”. At 613 he talked of “the sentencing process as it affected the co-offender”.
57 Wilson J at 616 agreed with both Gibbs CJ and Dawson J.
58 Brennan J took a different view to other members of the Court, in that he did not regard the existence of marked disparity as in itself a ground for altering the sentence of one offender. However, his statement of the relevant principle is likewise expressed in terms of co-offenders. He said, at 617:
“The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust.”
59 Brennan J also said, at 617-18:
“... an inappropriately lenient sentence imposed on one co-offender is not in itself a ground for interfering with a more severe sentence imposed on another. Of course a marked disparity between the sentences imposed on co-offenders sharpens the interest of an appellate court, not because it establishes appealable error but because there must be an error if the lesser sentence is found to be appropriate and no sufficient ground exists for distinguishing between the co-offenders.”
60 Dawson J, at 623, referred repeatedly to co-offenders. He stated a relevant principle as being:
“... any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or give the appearance that justice has not been done ... This has led to the variation of sentences by courts of appeal in order to reduce the disparity between sentences separately imposed upon co-offenders even where the sentence varied was not in itself excessive.” (citations omitted)
61 Thus in Lowe, all the members of the High Court spoke of the principle as one applicable between co-offenders. While not all the judges spelt out who counted as co-offenders for the purpose of the principle, Gibbs CJ (with whom Wilson J agreed) spoke of them at 609 as “persons who have been parties to the commission of the same offence”. Similarly, Dawson J (with whom Wilson J agreed) spoke of them at 623 as being “co-offenders for the same offence”. In Lowe both offenders had committed the “same offence” in both the sense that they were involved in a common criminal enterprise, and also the sense that each had been charged with a contravention of the same provision of the criminal law – notwithstanding their different roles in the enterprise, each was charged with armed robbery.
62 The next time the question of parity came before the High Court was in Jones v The Queen (1993) 67 ALJR 376. The facts of the case emerge somewhat more fully from the judgment in the Court of Criminal Appeal (Jones, (NSWCCA, 16 April 1992, unreported)) than from the High Court’s ex tempore judgment. The applicant was char
ged with supplying an indictable quantity of cannabis leaf on a particular date. She had two people who were described as “co-offenders” in both the Court of Criminal Appeal and in the High Court, without any argument or explanation as to the attribution of that description to them. One was a man who had sent the drug from a country area to Sydney, where it was collected by the applicant and her other co-offender (a woman). The applicant and the female co-offender were to sell the drug in Sydney for a particular price, of which a particular proportion was to go to the male co-offender. The High Court reversed the Court of Criminal Appeal in holding (at 377):
“It is erroneous to regard the principle of comparability of sentences laid down in Lowe as incapable of application in favour of the first of two or more co-offenders to be sentenced.”
63 The brief judgment in the High Court does not purport to be doing anything other than applying Lowe. While the facts do not emerge with complete clarity from the reports, it appears as though the people described as “co-offenders” were all people who played a role in the one act of supply, namely supply of the drug by the applicant to her retail customer.
64 In Postiglione v The Queen the principle stated by Dawson and Gaudron JJ, at 301-2, (that I have quoted at para  above) was cast in terms of co-offenders.
65 Kirby J was the other member of the majority. He accepted, at 327, that the appellant “feels a grievance about the way in which he has been punished following conviction of his latest offences when compared to the punishment imposed on a co-offender ...”. As one reads Kirby J’s statement of “Applicable sentencing principles”, at 335-342, one can be in some doubt about what his Honour regards the “parity principle” as being. At 338 he says:
“The problem of disparity will ordinarily arise not so much out of a suggested departure from the requirement to punish equally like offenders convicted of like offences (R v Goldberg  VR 311), as out of the disparate punishment of co-offenders or offenders in a situation demanding comparison and contrast (R v Beaumont  SASR 110; R v Ball (1951) 35 Cr App R 164). It is in these cases, where discrimination has occurred in the sentences imposed on two or more offenders said not to be justified by the facts either of the offence or of the circumstances of the offender, that the problem of alleged disparity in sentencing presents itself in sharp focus (R v Tiddy  SASR 575 at 577). It is then that the appellate court must apply the tests which have been propounded and decide whether it should intervene.”
66 That passage appears to contemplate that the “problem of disparity” can arise not only in relation to co-offenders, but also where there is “disparate punishment of ... offenders in a situation demanding comparison and contrast”. At 340, his Honour said:
“The parity principle, properly applied, will help to avoid the kinds of disparities which occasion the conclusions spoken of in Lowe.”
67 That could be read as suggesting that Lowe was merely an example of the “disparities” with which the parity principle was concerned. Similarly, at 341, his Honour spoke of “the parity principle requiring that normally like cases should be treated alike.” That likewise could be read as regarding the parity principle as extending wider than beyond the situation of co-offenders. However, any doubt about whether his Honour may have regarded the parity principle as extending beyond co-offenders is dissipated by his remark at 342 that “essentially, the parity principle remains that stated by this Court in Lowe”.
68 A difference of opinion within the court in Postiglione arose from the fact that the two men who were clearly co-offenders in relation to an offence of conspiracy to import drugs, were both in gaol at the time of commission of that offence and at the time of being sentenced for it. The offences for which they were already in gaol were ones concerning which they were not co-offenders. The problem of principle that lead to the grant of special leave in the case concerned whether the parity principle had any role to play when a court came to apply the totality principle to the sentences of each of the offenders. The majority took the view that in that situation the parity principle could legitimately be used to compare the extra sentence that each offender came to serve in consequence of having committed the second crime, concerning which they were co-conspirators. McHugh and Gummow JJ, in separate judgments, decided, respectively, that any disparity was explained by the application of the totality principle, and that the parity principle had no role to play in that situation. McHugh J said, at 306:
“... where the totality principle is relevant in the sentencing process and the application of that principle requires different sentences for each offender, no breach of the parity principle occurs.”
69 To similar effect, Gummow J expressed his conclusion at 323-4:
“The appellant bases his case for disparity on a comparison between the amounts by which the respective non-parole periods of [the co-offender] and the appellant were increased following sentence on the federal charges of conspiracy. These non-parole periods depended respectively on the non-parole periods that each offender was already serving for previous offences with which the other offender was not involved. In other words, the appellant submits that the court should apply the parity principle to the total custodial sentence of the two offenders. That total custodial sentence is the product not only of convictions upon conspiracy counts, applying to both offenders, but also convictions of each for prior offences in which the other was not involved. Like is not being compared with like.”
70 Of present relevance are the circumstances in which the minority judges saw the parity principle as having a role to play. McHugh J, at 309, adopted a statement of the Court of Criminal Appeal of South Australia in R v Tiddy  SASR 575 at 577:
“Where other things are equal persons concerned in the same crime should receive the same punishment; and where other things are not equal a due discrimination should be made.” (emphasis added)
71 Gummow J, at 322, stated the principle as follows:
“Lowe determined that disparity in sentencing of co-offenders may call for intervention by a Court of Criminal Appeal and that the Court may intervene even in cases where the challenged sentence, standing alone, would be regarded as appropriate.”
72 Gummow J stated explicitly at 325 “The disparity principle in Lowe only applies to co-offenders”.
73 In accordance with this High Court authority, the parity principle is a principle that must be taken into account in sentencing in addition to other sentencing principles. All the factual circumstances in which their Honours have held that the parity principle applies were ones in which the person whose sentence was being considered on appeal had committed the same crime as another person had committed. The Court held that the sentence imposed can differ from the sentence imposed on the co-offender only if, after taking into account all objective circumstances concerning their respective roles in commission of the crime and all differences in their respective subjective circumstances, there is not such a marked disparity as to give a justifiable sense of grievance, or give the appearance that justice has not been done. If there is a marked disparity of that type, it is in itself a ground for reducing the sentence that is in question, and is not merely symptomatic of some error having occurred in the sentencing process.
Intermediate Appellate Court Authority
74 The first of the Crown’s submissions on this appeal is that, as the Applicant did not commit the self-same crime as Huang and Siu, there is no scope for the application of the parity principle. Whether that submission is correct will depend on whether what is meant by “co-offenders” for the purpose of the principle, extends beyond the circumstances of the cases that have come before the High Court, where the co-offenders in question have all committed the self-same crime. As the High Court has not pronounced on that question, it is necessary to turn to intermediate court of appeal authority. While a complete survey of intermediate court of appeal authority on the circumstances in which the parity principle can apply is not practicable, I shall survey enough to ascertain the trend of authority.
75 Sumner v R (1985) 19 A Crim R 210 is a decision of the Victorian Court of Criminal Appeal. It concerns sentences imposed on men who had handled, at different times, the one consignment of stolen cigarettes. It appears that they were all charged with a contravention of the same provision of the criminal law. Some appealed against sentence “by reason of a disparity between his and that imposed on one or more of his co-offenders” (218). Hampel J, delivering the judgment of the Court, said at 218:
“The acts performed and the parts played by different offenders to some extent find in one transaction parallels in the other and, of course, each was handling a part of the same goods which were stolen at the time of the armed robbery. It would seem also that the two parcels of stolen cigarettes housed at the Pakenham cool store were not only part of the proceeds of the same robbery, but were also unlawfully ‘handled’ by each of the groups of men convicted under counts one and two respectively at the same level in the distribution process from original theft to the ultimate user.”
76 There were significant differences in the roles that different participants had played in the respective handlings, in their criminal histories, in whether or not they had pleaded guilty, and in their subjective circumstances. The judge concluded, at 222:
“Had any one of the applicants been sentenced as he has been but with there having been no other co-offender to whom punishment was also to be given, we do not think that the sentence so passed could be said to be beyond the range of options open to the judge. But when the sentences of each applicant – or at least some of them – are viewed in the context of the sentences passed upon all other offenders, it appears to us that there is a number of instances of unacceptable disparity.”
77 Sumner thus presents an example of the parity principle being used to alter a sentence by reference to the sentence imposed on someone who had not committed the self-same crime, but who was involved in the same criminal enterprise. It is to be noted, though, that as they had all been charged with a contravention of the same provision of the criminal law there was no complication arising from the charges against the men being of crimes of differing degrees of seriousness (emphasis is mine).
78 R v Gibson (1991) 56 A Crim R 1 is a decision of this Court on a Crown appeal against sentence. The Respondent had been convicted of possession of a traffickable quantity of cocaine contrary to section 233B Customs Act 1901 (Cth), and of concealing money that may reasonably be suspected of being the proceeds of crime contrary to the Proceeds of Crime Act 1987 (Cth). The amount of cocaine in his possession was part of a larger quantity that had been brought into Australia. The importer, and various other distributors of the imported goods, all came to be charged and sentenced. Some of the distributors were charged under section 233B Customs Act 1901, while some were charged with supplying a traffickable quantity of cocaine, contrary to section 25 Drug Misuse and Trafficking Act 1985 (NSW). The latter Act attracts a “much lower maximum penalty” (p 5) than the former Act. The amounts of cocaine involved in the various charges differed substantially. The subjective circumstances of the various men differed. Some pleaded guilty, some did not. Some provided assistance to the police, some did not. The importer had been sentenced in South Australia by Mohr J, on the basis (different to the principle applicable in New South Wales) that cocaine was a less serious drug than heroin. The judge had sentenced the respondent by taking the sentences that had been imposed on two of the other participants in the criminal enterprise, in relation to which no Crown appeal was then current, “as representing the appropriate scale” (p 5).
79 Carruthers J (with whom Clarke JA and Loveday J agreed) said, at 7:
“... there is nothing in the various judgments of the High Court in Lowe which requires a sentencing judge in a situation such as that which presented itself to Judge Shadbolt, where the participants in the importation, distribution and possession of this particular cocaine played such diverse roles and were charged with different offences, to undertake a balancing exercise in order to achieve a mathematical equation. There were far too many objective and subjective variables to permit such an exercise to be undertaken.”
80 Carruthers J said, at 8:
“I think that his Honour erred specifically in taking the sentences imposed on Navarro and Colclough as ‘representing the appropriate scale’, to use his Honour's words. I repeat, that there were too many subjective and objective differences between the three cases. Specifically, his Honour appears to have overlooked the fact that Mohr J treated cocaine as a significantly less harmful drug than heroin. Another specific aspect of his Honour's approach, with which I am unable (with respect) to agree, is his attempt to estimate the sentence which Colclough in all probability would have received if he had, like the respondent, pleaded not guilty. An exercise of that nature takes the search for parity to unacceptable limits. Disparity can only arise from a comparison of equals and not a comparison of unequals.”
81 The second of the factors on which his Honour relied as showing that the exercise of comparison of sentences was not possible, will often not apply these days, when courts regularly act in the manner urged by R v Thomson & Houlton  NSWCCA 309; (2000) 49 NSWLR 383 and quantify the effect of the guilty plea on the sentence. In particular, in the present case, the discounts that each of Huang and Siu received for pleas and other matters were quantified by this Court when re-sentencing them.
82 Relevantly for present purposes, Carruthers J did not say that parity would in principle be inapplicable between the people charged with supplying and those charged with possession, nor that it would be inapplicable between the people charged with supplying as those charges related to different acts of supplying. Rather, the difficulty in taking into account all the differences between the factors that had lead to the differing sentences defeated, at a practical level, any attempt to apply the principle.
83 R v Howard (1992) 29 NSWLR 242 was an appeal by four young men who had participated in the killing of a Mr Johnson. Three of them had been found guilty of murder, while the fourth had been convicted of manslaughter following the trial on a charge of murder. Four other young men had also participated in the killing, and had pleaded guilty to manslaughter. The three men who had been convicted of murder appealed unsuccessfully against that conviction. Their contention was that they should have been convicted only of manslaughter, particularly in light of the fact that the Crown had once been willing to accept a plea of manslaughter from them. This Court (Gleeson CJ, Sheller JA and Lee AJ) noted at 252 that the distinction between the functions of prosecutor (an officer of the executive branch of the government) and court (part of the judicial branch of the government) was “a matter of constitutional importance”.
84 What I take their Honours to there be referring to is this. In Australia, the criminal process is an adversarial one which involves the Crown bringing a case against the accused before a court. It is the executive branch of the government that is responsible for apprehending and charging the accused. But it is the court, exercising judicial power, that convicts and sentences. The nature of judicial power was described by Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead  HCA 36; (1909) 8 CLR 330 at 357 as:
“... the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.”
A critical aspect of judicial power is that the court “is called upon” to decide the case. It does not formulate the case itself.
85 In Howard the Court noted, at 253, that it could not reasonably be argued that the evidence against the three appellants who had been convicted of murder did not justify a finding of murder. They said:
“The unfairness (or, it may be argued, oppression) involved lies in the comparison between the outcome of the processes of criminal justice in relation to those offenders who got in early with pleas of guilty and to those who decided (at their ultimate cost) to take a harder line. The real problem may be, not that the latter were dealt with too severely, but that the former were dealt with two leniently. As was observed in Hui Chi-Ming [v The Queen  1 AC 43], unless all co-offenders are dealt with at the one trial, there is always a possibility of differing outcomes in relation to different offenders, and, if this be unfairness, it is not ordinarily regarded as the unfairness of a kind that attracts judicial intervention.”
86 An appeal against sentence by all three men convicted of murder likewise failed. Their Honours said, at 254: “Issues of parity are obviously important in this matter.” Their Honours said, at 258 that at the trial:
“... a submission was made at his Honour had an overall discretion to do justice to meet the ‘unfairness inherent in the Crown’s conduct’ and it was also put to his Honour that since the abolition of mandatory sentences for murder it was not possible to say that the worst cases of manslaughter call for a lesser sentence than murder. It was put that each applicant’s position was comparable to that of the co-offenders who pleaded guilty to manslaughter and that the principle in Lowe v The Queen  HCA 46; (1984) 154 CLR 606 should apply and proportionate sentences be imposed. That submission was not accepted.
His Honour held, correctly, that he was bound, by reason of the jury’s verdict, to sentence the three appellants convicted of murder on the basis that their conduct was significantly more culpable than that of the co-offenders who was sentenced for manslaughter. They intended to do grievous bodily harm; the co-offenders were sentenced on the basis that they did not.
When allowance is made for that difference between three of the offenders and the remaining five, and for the discounts given for co-operation with the police, the various sentences that were imposed, when considered both individually and in relation to each other, are appropriate. In the circumstances of this case we see no error in the quantification of the minimum terms and additional terms. We do not consider that, consistently with principle, the Court can intervene in the sentencing process to correct the apparent anomaly that results from the fact that some of the co-offenders were found guilty of murder and others were found guilty of manslaughter. They were all accorded due process of law and, for sentencing purposes, effect must be given by the Court to the outcome of that process.”
87 An application for special leave to appeal to the High Court was dismissed, on the basis that “The Court is not persuaded that there was any error on the part of the Court of Criminal Appeal in arriving at its decisions in these matters”: Alex Mihailovic v The Queen (High Court of Australia, 3 February 1994, noted  1 Leg Rep page C3).
88 R v Howard is authority for the proposition that people who participate in a common criminal enterprise, but are charged with different offences concerning that enterprise, cannot have their sentences compared in a way that seeks to undo or correct for any anomaly that there might appear to be as a consequence of the different charges that the people faced (emphasis is mine).
89 Any recounting of the history of the parity principle in this State must make mention of Ellis v The Queen (1993) 68 A Crim R 449. It contains a blazing disagreement between Kirby P and Hunt CJ at CL about the circumstances in which direct comparison is possible between a sentence that is being reviewed on appeal and a sentence imposed on another person for a crime that is not the identical crime but is in some respects similar. However, as the third member of the bench (Studdert J) saw no need to resolve the disagreement, the respective views of Kirby P and Hunt CJ at CL on that topic are all dicta.
90 The case involved an appeal against sentence concerning an offence of armed robbery. The ground on which leave to appeal was sought was severity of the sentence (not parity). While the applicant had had an accomplice in committing the robbery, the identity of that accomplice was never established (at 462). In the course of submissions, counsel for the applicant referred to a decision in Thorley (NSWCCA, 5 February 1991, unreported) that related to an unconnected armed robbery. Studdert J, who wrote the initial judgment, simply said, at 464:
“I do not find that case to be particularly helpful in determining the upper limit in the exercise of the sentencing judge’s discretion. It depended upon its own facts and whilst there were similar features between that case and the present one, there were distinguishing features, one of which was that was that although his companion was armed the applicant in that case was not.”
91 Studdert J proposed granting leave to appeal but dismissing the appeal. That passage contains an implicit concession that one function that can be performed by a comparison of a sentence under consideration with another sentence for a different crime is to help (though not be determinative) in determining the upper limit of the sentencing judge’s discretion. Studdert J does not purport, however, to state exhaustively what use can legitimately be made of such a comparison.
92 Kirby P favoured granting the application for leave to appeal, and re-sentencing. He wrote his judgment in two parts, at different times. In the course of considering Thorley, Kirby P said 451:
“Inherent in the applicant’s submission was the suggestion that there was such a disparity between the sentence in this case and the sentence in Thorley as to involve unequal treatment under the law.
The High Court of Australia has pointed out that such inequality of treatment, in apparently like cases, is a ‘badge of unfairness’ which erodes public confidence in the integrity of the administration of justice. It is an unfairness which this Court is authorised, and required, to correct: see Lowe  HCA 46; (1984) 154 CLR 606 at 611;  HCA 46; 12 A Crim R 408 at 410.”
93 That was the only mention of Lowe or its principles in the first part of Kirby P’s reasons.
94 Kirby P listed 10 points of similarity, and one point of difference, between the respective situations of Mr Ellis and Mr Thorley. He said, at 452:
“Consideration of Thorley, and what was said by the Court in that case, inclines me to the view that the sentence imposed by Judge Mitchelmore was too severe for the objective facts of this case.”
He went on to consider subjective factors.
95 Kirby P said (at 453) that error in the sentence under appeal was shown “by measuring that sentence against the sufficiently similar circumstances of Thorley and like cases”, and another factor.
96 Hunt CJ at CL also wrote his judgment in two parts at different times. In the first part of his judgment he explained why he did not agree with the “approach” of Kirby P. Evidently, that referred to the significant reliance placed on the comparison between the sentence under appeal and that in Thorley. He emphasised the inherently discretionary nature of sentencing. He said, at 460:
“The sentencing judge is nevertheless required to give full weight to the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature; that collective wisdom is manifested in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand: Oliver (1980) 7 A Crim R 174 at 177, quoted in Visconti  2 NSWLR 104 at 107.
It is therefore not to the point to say that, merely because one judge has imposed a sentence which is more severe or more lenient than that imposed by another judge (or even by this Court) in similar circumstances, error has been established in relation to one or the other. What must be looked at is whether the particular sentence which is challenged is outside the general pattern of sentencing by the criminal courts (both at first instance and on appeal).”
97 Hunt CJ at CL at 461, said that though Kirby P had said:
“... he perceived error by measuring the challenged sentence ‘against the sufficiently similar circumstances of Thorley and like cases’, no such like cases were cited at the hearing of the appeal, and I am not aware of any which would alter the limits of the range to which Studdert J referred.” (Original emphasis)
98 He want on to say that Lowe was concerned with an appellate court intervening:
“... where a justifiable sense of grievance had been engendered on the part of one accused where his co-accused has received a lighter sentence than he did, even though the sentence imposed upon the aggrieved accused was itself a perfectly appropriate sentence.” (Original emphasis)
99 He continued:
“The ‘consistency in punishment’ to which Mason J referred (at 610-611; 410) may, of course, be interpreted as being applicable as the ideal to be achieved in sentencing generally, and not just in relation to the sentencing of co-offenders. But his Honour did not suggest that the approach to be taken in relation to the sentences imposed upon co-offenders – when one sentence is compared directly to the other – is similarly appropriate in relation to offenders with similar characteristics who have committed similar crimes. Indeed, he suggests to the contrary (at 612; 411):
‘The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.’
What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range. There is nothing in Lowe to suggest otherwise.”
100 That prompted Kirby P to write the second part of his reasons, in which he identified seven cases “chosen without intense research” that he said concluded (at 459):
“... suggests that the sentence in this case is so high as to show error. In the name of consistency in punishment – which the community also understands – the Court should reduce the sentence.”
101 Of particular relevance for present purposes is that Kirby P said at 459:
“Lowe certainly addresses a different issue of comparison. But just as one can compare (as there) sentences of co-offenders, this Court has the duty to compare sentences of separate offenders in what are said to be analogously similar cases. It does this to guard against the same problem of injustice and to prevent the same badge of unfairness from eroding confidence in the criminal justice system.”
102 The upshot is that Hunt CJ at CL and Kirby P agreed that the principle in Lowe concerned the comparison between sentences of co-offenders. Their difference of opinion concerned the legitimacy of comparing directly sentences for crimes that are similar, but not committed by co-offenders (emphasis is mine).
103 In Wurramarbra v The Queen (1979) 28 ALR 176; 1 A Crim R 291, the appellant had pleaded guilty in the Supreme Court to burglary and sentenced to 4 years’ imprisonment. The appellant had committed the burglary in question in conjunction with Bara. Bara pleaded guilty to break, enter and steal before a magistrate and was sentenced to 14 months’ imprisonment. An appeal from the Supreme Court of the Northern Territory was heard in the Full Federal Court by St John, Fisher and Gallop JJ. Their Honours said, at ALR 177-8; A Crim R 292-3:
“... it is perfectly clear that looking at the overall situation, Bara and the appellant were equally culpable. The Crown, however, chose to charge Bara with a lesser offence because of lack of evidence and the question is whether or not the appellant is entitled, within the terms of the principle, to feel a sense of injustice or grievance that gives rise to the application of the rule. It appears to us that the sense of injustice or grievance that the appellant would feel in the instant case would be in the same category as that he would feel if his co-offender escaped detection and was not brought to trial. We are of the opinion that, although the facts may be identical or similar, where there are convictions on different charges, the principle cannot operate. Where, of course, the person convicted of the more serious offence receives a sentence which is less than the person convicted of the less serious offence, all other aspects being approximately equal, different considerations apply. Break, enter and steal is punishable by a maximum of eight years’ imprisonment with hard labour and burglary is punishable by life imprisonment.
In our view the application of the principle is confined to those cases where there is a true comparison of like with like, where the same offence is proved against both, and the principle is not applicable where there is a great variation in the penalties provided for in the two offences.”
Though that case preceded Lowe, the analysis is consistent with it. In particular, it supports the parity principle applying only between people who have committed the same crime (emphasis is mine).
104 Watson v The Queen (NSWCCA, 25 February 1992, unreported) was an application for leave to appeal against sentence in which the applicant had pleaded guilty to being an accessory after the fact of stealing a motor vehicle, and sentenced in the District Court. A man called Corrigon had also been involved in the theft of the motor vehicle. Though initially charged with stealing the vehicle, no evidence was offered against him on that charge, and he pleaded guilty to receiving certain parts from the vehicle. He was sentenced in the Local Court, where he received a fine and a bond.
105 Gleeson CJ (with whom Sheller JA and Loveday J agreed) referred to a question of parity between the sentences as one that was “obviously raised”. After referring to Wurramarbra, Gleeson CJ said:
“... considerations of parity insofar as they are of legal significance are difficult to apply in cases where co-offenders have been dealt with on the basis of the significantly different charges.
As their Honours pointed out in that case, one co-offender may feel a sense of grievance if another co-offender has escaped detection and has not been brought to trial. That, however, has nothing to do with the kind of sense of grievance that is relevant in relation to considerations of sentencing parity.
The present applicant might have a sense of grievance about the fact that the police could not prove that Corrigon stole the motor vehicle in question. That is not a relevant sense of grievance for present purposes. In my view, the proceedings taken in relation to Corrigon are so different from those that were taken in relation to the applicant that the argument based on parity is one that should not succeed.”
106 That passage seems to accept that parity considerations could be applied between people who had been involved in the one criminal enterprise, though found guilty of different crimes concerning it, but to also recognise that there could be practical difficulties in the application. However, there was no question squarely raised for decision, in the way it is in the present case, about whether parity can apply in circumstances beyond that of two people who commit the one crime.
107 Krakouer v R  WASCA 147; (1999) 107 A Crim R 408 is a decision of the Court of Criminal Appeal of Western Australia. The applicant had been convicted of conspiring with one Calder to possess a quantity of methylamphetamine with intent to sell or supply to another, and of an attempt, again with Calder, to possess a quantity of methylamphetamine with intent to sell or supply to another. Though it does not appear from the report, the respective maximum sentences of imprisonment for those crimes at the time were 20 years, and 12½ years respectively (sections 33 and 34 Misuse of Drugs Act 1981 (WA)). One of the grounds of his application for leave to appeal against sentence was that he had a justifiable sense of grievance as a result of the sentence imposed on a John Higgs by the County Court of Victoria. Higgs was the mastermind of the organisation from which the applicant and Calder had obtained their methylamphetamine. Higgs was sentenced for an offence under the Victorian legislation, namely conspiring to traffic (by manufacture) in a drug of dependence. The maximum penalty for that offence was 15 years imprisonment. Higgs was sentenced to 6 years imprisonment, with a minimum of 4 years before being eligible for parole. By comparison, the applicant was sentenced to 16 years.
108 White J, (with whom Ipp and Heenan JJ agreed) ruled that the parity principle was not applicable because, at :
“Foster and Higgs were sentenced for different offences, being contraventions of a different Act. Accordingly, they were not sentenced as co-offenders with the applicant, or for an offence of the kind in respect of which the applicant was sentenced.”
109 R v Kerr  NSWCCA 234 (unreported) concerned the sentencing of participants in a single criminal enterprise, who had different roles in that enterprise and were charged with different offences. The criminal enterprise involved was a robbery. The applicant was convicted of robbery in circumstances of aggravation, namely using corporal violence and maliciously inflicting actual bodily harm. One of his accomplices was charged with robbery, but with no circumstances of aggravation. The other accomplice, who had driven the car, had been charged with concealing a serious indictable offence. The applicant had been sentenced to 13½ years’ imprisonment, with a non-parole period of 10½ years. The accomplice charged with concealing a serious indictable offence, Oliver, was given an 18 month suspended sentence. The accomplices had been sentenced before the applicant was sentenced, but the judge who sentenced the applicant took the view that no issue of parity arose.
110 On the appeal Miles AJ (with whom Beazley JA and Adams J agreed) said, at -:
“However the principle of parity in sentencing, or rather the policy behind it, was not so easily dismissed, in my view. The policy behind the principle is not to be avoided by the prosecuting authority simply charging co-operative offenders with less serious offences. The whole of the circumstances need to be examined.
Clearly neither of the other two was treated as a co-offender but at the same time each was implicated in the events which gave rise to the aggravated robbery.
There are two aspects to the principle. Like has to be and may only be compared with like and any imbalance must be enough to justify on objective analysis a sense of grievance on the part of the offender who complains of the heavier sentence: Postiglione v The Queen  HCA 26; (1997) 189 CLR 295. As to the first aspect, the principle is difficult to apply in the present case since neither of the two co-offenders was charged with the offence of aggravated robbery. ...”
111 He noted, at , that the fact that one of the accomplices had been charged with robbery, with no mention of aggravation “appears explicable on the basis of his co-operation with the authorities rather than his actual participation in the events.”
112 Miles AJ said, at -:
“... It is also recognised that the parity principle is of wide application and is not to be applied or withheld in a technical or pedantic way. It is indeed part of or a reflection of the wider principle that consistency in sentencing by the courts overall is to be aimed at as desirable in the public interest. Perfect consistency is a goal that can never be reached because of the infinite variety of the circumstances of offences and offenders. However there is a danger that it may be compromised by the selection of differing charges so that one offender may be charged with a serious offence and given punishment at the top of an acceptable range for that offence, and a co-offender charged with another less serious offence and dealt with at the very bottom of the acceptable range for that other offence. There may be no impropriety in that course, which will often arise from negotiation between co-offenders and law enforcement authorities. Sometimes, however, and it is not necessary to put it higher than that, the result may have the appearance of injustice.
In other words when it is known that a person implicated in the offence for which an offender is being sentenced has already been convicted and sentenced, care needs to be taken to ensure that as far as possible the sentence about to be imposed is not so severe as to generate, not only a sense of grievance in the offender but also a sense of disquiet in the disinterested observer. ...”
113 It was the comparison between the applicant’s sentence and that of Oliver on which the appeal turned. Miles AJ concluded, at :
“... it was necessary to give proper consideration to the way in which Oliver had been charged and dealt with and it was not enough to say that no issue of parity arose. Had the appellant been represented it is almost certain that the sentencing judge would have been asked to give consideration to that factor. Had consideration been given, it is likely that the sentence imposed would not have been so far towards the top of the range. Furthermore it must be concluded that whilst Oliver had to be sentenced for the less serious offence under s 94, he received a very lenient sentence on any view, and so lenient that it should have alerted the judge sentencing the applicant to the need to avoid a sentence of gross disproportion. That also is a factor which should have been taken into account on the sentencing of the appellant and was not. In my view these matters are sufficient for this Court’s jurisdiction to be enlivened and for the Court to proceed to sentence on the material now available.”
114 Upon a re-sentence, the applicant’s sentence was reduced to 9 years and 8 months, with a non-parole period of 7 years and 3 months.
115 The Applicant placed reliance upon Kerr, and in particular the statement that “it is also recognised that the parity principle is of wide application and is not to be applied or withheld in a technical or pedantic way.” I note that no authority was cited in Kerr in which that proposition was “recognised”.
116 Kerr supports the application of the “parity principle” as a basis for reduction of a sentence if it is disproportionate to the sentence imposed on a person with whom the applicant has been engaged in a common criminal enterprise, but who has been charged with contravention of different provisions of the criminal law, and in that sense has not committed the same crime as the applicant (emphasis is mine).
117 However, in my view there is a serious problem for the persuasiveness of Kerr in that it did not consider the decision in Howard. The statement of Miles AJ at  (para  above) is in my view directly inconsistent with Howard. The constitutional significance of the difference between the function of the prosecutor and the court, provides a reason, that in my respectful view is sound in principle, for the parity principle not being able to correct for apparent differences in sentence that arise from offenders involved in a common criminal enterprise being charged with different offences (emphasis is mine).
118 As well, this aspect of Kerr has been poorly received in later cases in this Court. I will return to Kerr after discussing the next case in the chronological order.
119 In R v Formosa  NSWCCA 363, the applicant, together with Mr Colin Wood and another man, went at night to premises occupied by Wood’s sister and her boyfriend, a Mr Parry. Parry opened the door to Wood, whom he knew, and Wood went to see his sister elsewhere in the premises. The applicant and the other unknown man then attacked Parry very seriously. The applicant had previously lived with Wood’s sister, and resented her new relationship with Parry. The applicant pleaded guilty to maliciously inflicting grievous bodily harm whilst in company, and was sentenced to 4 years’ imprisonment with a non-parole period of 18 months. Wood pleaded guilty to a charge of being an accessory after the fact. He was sentenced to imprisonment for 6 months. That 6 months was a sentence that was cumulative on other sentences he was serving for some drug offences. Simpson J (with whom McClellan CJ at CL and Hoeben J agreed) expressed the view, at , that the facts put before the judge who had sentenced Wood would have supported a much more serious charge. One of the grounds of the applicant’s appeal was lack of parity between the applicant’s sentence and that of Wood. The applicant submitted (at ) that “The policy behind the principle of parity is not rendered otiose by the co-offender being sentenced to a lesser charge on election by the prosecuting authority to accept a plea to a lesser offence.” Simpson J gave detailed consideration to Kerr, and noted that in both Lowe and Postiglione the co-offenders whose sentences were in question had been charged with identical offences as that of the appellant. Her Honour said, at -:
“Nothing the High Court said was directed towards the application of the parity principle in cases where offenders were charged with different offences carrying different maximum penalties.
The decision in Kerr is capable of being read as extending the principle so that it applies even where co-offenders are charged with different offences. I do not wish to be taken as entirely rejecting the proposition that the principle can be so applied, but here, with the extremely wide divergence between the nature of the crimes charged against the co-offender and against the applicant it is difficult, if not impossible, to see how that principle can be applied.
The effect of the submissions made on behalf of the applicant (and the decision in Kerr is at least capable of giving them some support) is that the principle of parity in sentencing is broad enough to extend to redressing disparities or discrepancies in the charging process as well as in the sentencing process.”
120 She concluded at :
“I do not understand either Lowe or Postiglione to suggest that the parity principle extends to correcting any imbalance in the manner in which co-offenders are charged. I would be very cautious before proposing or adopting any such principle.”
121 Her Honour ultimately decided, at , that “the principles of parity not only do not require, they would not permit, this Court to intervene as suggested on behalf of the applicant”. There were two separate categories of reason for reaching that conclusion. The first, at , related to the way in which the decision of the prosecuting authorities was a substantial part of the reason for the difference between the two sentences:
“Here, the main reason for the discrepancy in sentences on the two co-offenders derives from the difference in the charges they faced. The applicant may have a sense of grievance, even a legitimate one, about that difference; but it is not a legitimate sense of grievance in the Lowe or Postiglione sense, concerning the sentences imposed; it is a sense of grievance engendered by the prosecutorial decision making process. That is not something over which this court has supervisory jurisdiction, even by the backdoor method of supervising sentencing.”
122 The second, at , was a collection of reasons relating to differences between the situations of the applicant and Wood that bore upon their respective sentences:
“... No finding was made that either of the offenders was the instigator of the offence, although there are hints that it might have been Colin Wood. Certainly it was the applicant’s grievance about the end of his relationship with Belinda Wood that was the precipitant for the offence. It is true, also, that Colin Wood had a relevant criminal record, which the applicant did not. This would ordinarily give rise to a more severe, rather than less severe, sentence. However, Colin Wood had also been sentenced on additional and different charges and the sentence imposed had to have regard to the principle of totality.”
123 While her Honour did not reject in principle the application of parity principles to a situation where two participants in a common criminal enterprise play different roles and are charged with different offences, the case provides no support for the parity principle having any role to play concerning the sentencing of people who are not part of a common criminal enterprise. I suspect that the reason for her Honour’s caution is that the Court in Formosa was not referred to the decision in Howard, which provides a reason of principle why the parity principle cannot correct for anomalies arising from participants in a common criminal enterprise being charged with different offences.
Returning to Kerr
124 There are other reasons that are related to the constitutional difference between courts and prosecutors that Gleeson CJ drew attention to, that also lead to the conclusion that courts are not in a position to correct for differences in the charges that are brought against people involved in a common criminal enterprise. At a level of broad policy, the law in sentencing aims to treat like cases alike, and unlike cases differently. But the policy underlying the law is not the same as the law itself. There are practical difficulties in carrying that policy into effect. One of no small significance is that sometimes there will be occasions when an offender is charged with a lesser crime than would have been justified if all the relevant facts had been discovered by the police, or than would have been justified if the police had admissible evidence, rather than information that does not meet the standards of admissibility. There is always, in one sense, unfairness if one person receives a heavier sentence than a person who if all the facts were known could be seen to be equally culpable but against whom the truth of what actually occurred cannot be proved by admissible evidence. A sentencing judge will usually not be in a position to know whether the reason for one person involved in a criminal enterprise being charged with a lesser offence than another is lack of evidence, rather than that the facts if fully known justified the difference in the charges. This is one particular consequence of courts acting only on the basis of admissible evidence or conceded facts.
125 There are other limitations on a judge being able to compare directly the sentences of people charged with different offences. There will be occasions when one person involved in a criminal enterprise is charged with a lesser offence than another in what might be called a comparatively clear exercise of prosecutor’s discretion. Such an occasion arises when, even though on the available admissible evidence it would have been open to charge the first of those people with a more serious offence than was actually charged, the prosecutor decided not to do so, perhaps as part of a plea bargain, perhaps as a trade-off for the person charged providing assistance, perhaps because of matters personal to that person like youth, perhaps for other reasons. There will be other occasions when one person involved in the criminal enterprise is charged with a lesser offence than another in circumstances where the available admissible evidence is such that even the most assiduous prosecutor could not realistically have expected to prove a more serious offence against the first of those people. There will be other occasions that have some elements of both of these factual scenarios. It will often be impossible for a judge to know whether the charging of two people with different offences is truly, or wholly, a matter of discretion on the part of the prosecutor. In comparing the sentences of co-offenders courts are well able to factor out the effect on the sentences of differences that the court knows about in the objective circumstances of involvement of the respective co-offenders in the crime, and in the subjective circumstances of the offenders. But it would not be practicable for a court to try to apply an extended version of the parity principle by comparing the sentences of two people involved in the common enterprise and factoring out the extent to which the difference in the sentences is a function of prosecutorial discretion. It cannot carry out that task when it does not know to what extent it is truly a discretion, rather than something else, that is the reason for the difference in the charges. In the result, to the extent to which differences in sentence arise from differences in the charges brought against two people involved in the one common criminal enterprise, those differences cannot be corrected for by an application of the parity principle.
126 The Court of Criminal Appeal does not regard itself as bound by its own earlier decisions: R v Johns  2 NSWLR 259 at 260-2 per Street CJ, with whom Nagle, Begg, Slattery and Sheppard JJ (at 264), Lee J (at 270) and Lusher J agreed; R v Mai (1992) 26 NSWLR 371 at 380-1 per Hunt CJ at CL (with whom Enderby and Allen JJ agreed); R v Arnold (1993) 30 NSWLR 73 at 77 per Hunt CJ at CL, 85 per Abadee J (with whom Gleeson CJ agreed); R v Jurisic (1998) 45 NSWLR 209 at 214 per Spigelman CJ (with whom Wood CJ at CL, Sully, BM James and Adams JJ relevantly agreed). However, as is made clear in R v Mai at 380, and also in R v Arnold at 74-75, 85, the power of departing from its previous decisions is exercised with caution and a due regard for the orderly administration of the law. As well, these days, it would be anomalous if this Court were to be restrained by Australian Securities Commission v Marlborough Gold Mines Ltd  HCA 15; (1993) 177 CLR 485 at 492 or by Farah Constructions Pty Ltd v Say-Dee Pty Ltd  HCA 22; (2007) 230 CLR 89 at 151-2  from departing from a decision of another intermediate Court of Appeal if in comparable circumstances it were free to depart from a previous decision of its own.
127 Consistently with Marlborough Gold Mines and Farah v Say-Dee, departure from a previous decision would require a strong conviction that the previous decision was incorrect: Gett v Tabet  NSWCA 76; (2009) 254 ALR 504 at . As well, however, John v Federal Commissioner of Taxation  HCA 5; (1989) 166 CLR 417 at 438-9, followed in Gett at , listed some practical considerations (drawn from the judgment of Gibbs CJ in Commonwealth v Hospital Contribution Fund  HCA 13; (1982) 150 CLR 49 at 56-8) that favoured reconsidering an earlier decision:
“The first was that the earlier decisions did not rest upon a principle carefully worked out in a significant succession of cases. The second was a difference between the reasons of the justices constituting the majority in one of the earlier decisions. The third was that the earlier decisions had achieved no useful result but on the contrary had led to considerable inconvenience. The fourth was that the earlier decisions had not been independently acted on in a manner which militated against reconsideration...”
128 In Queensland v The Commonwealth  HCA 60; (1977) 139 CLR 585 at 630 (relied on in Gett at ) Aickin J set out some other factors relevant to overruling a prior decision:
“The first is that there should be no inhibitions about overruling a decision, the error of which has been made manifest by later cases which however have not directly overruled it. The second is that the Court will be slow to overrule, or should refuse to overrule, cases which ‘go with a definite stream of authority’ and do not ‘conflict with well established principle’. The third is whether the prior decision can be confined as an authority to the precise question which it decided or whether its consequences would extend beyond that question. The fourth is whether the prior decision is isolated ‘as receiving no support from prior decisions and as forming no part of what in one metaphor is called a stream of authority and in another a catena of cases.’”
129 Though those practical considerations were stated as ones that the High Court applied to reconsideration of its own decisions, and there are some clear differences between the respective roles of the High Court and an intermediate appellate court, nonetheless they can provide some guidance to when it is appropriate for an intermediate appellate court to refuse to follow one of its own decisions: Gett at .
130 I am persuaded, for the reasons I have given, that Kerr was mistaken in extending the parity principle to apply to undo the extent to which differences in the sentences of people involved in a common criminal enterprise, but who are charged with different offences, arose from the charges being different. Kerr did not rest upon any principle carefully worked out in a series of cases – indeed it ignored the earlier and contrary decision in Howard. While there was no disagreement between the judges who decided Kerr, it has not been relied on in a series of cases thereafter. Rather, it has been the subject of repeated criticism that has not gone quite as far as actually deciding it is wrong. I would not follow the aspect of it that permitted the parity principle to undo the effect on sentence of different charges being brought against two participants in a common criminal enterprise (emphasis is mine).
131 R v Araya  NSWCCA 283; (2005) 155 A Crim R 555 was an application for leave to appeal against a sentence concerning five counts of obtaining a valuable thing by deception and one count of attempting to obtain a valuable thing by deception. Each of the charges related to obtaining (or attempting to obtain) an airline ticket after purportedly paying for it by charging it to a non-existent credit card. One of the grounds of appeal concerned what was said to be a lack of parity with a sentence imposed upon a Mr Chandra, who was said in a ground of appeal to be a “co-accused”. Mr Chandra lived at the same accommodation as the applicant (at ). He had pleaded guilty to four counts of obtaining a financial advantage by deception. Three of those charges related to obtaining air tickets by provision of false credit card information, while the fourth related to a purchase of air conditioners by provision of false credit card details. Though Chandra asserted that the purchase of the air conditioners was being carried out on behalf of the applicant, the applicant was not charged with any offence relating to air conditioners. One of the air tickets that the applicant had obtained by deception was issued in the name of a Mr J Chandra, but the applicant was not charged concerning that ticket. The argument placed before the Court was as follows:
“65 ... Senior Counsel for the Applicant accepts that Mr Chandra and the Applicant were not co-offenders and that the normal parity principle does not strictly apply. However, he contends that there are similarities between the criminal conduct of the two offenders, their related arrests and parallel criminal proceedings in such a way as to attract, by analogy, the parity principle. It is submitted that the Applicant has been left with a sense of grievance which, in all the circumstances, is justifiable.”
132 Johnson J (with whom Simpson and Rothman JJ agreed) explained (at -) why the parity principle did not apply, in terms upon which I cannot improve:
“66 As the Applicant and Mr Chandra were not co-offenders, the parity principle reflected in Lowe v The Queen  HCA 46; (1984) 154 CLR 606 and Jones v The Queen (1993) 67 ALJR 376 has no application.
67 This Court has held that the parity principle is not to be applied when a ground of appeal invites comparison between sentences imposed upon two offenders, who are not co-offenders, simply because the two offenders may have similar characteristics and may have committed similar crimes. In R v Morgan (1993) 70 A Crim R 368 at 371, Hunt CJ at CL (Allen J and Loveday AJ agreeing) said:
‘It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range.’
68 In R v F  NSWCCA 320; (2002) 132 A Crim R 308, it was submitted on behalf of an offender that the Court should treat the sentence imposed in a different case upon a different offender as being a ‘benchmark’ which ought be followed. The Court rejected this argument. Simpson J said at 315:
‘Consistency in sentencing may be achieved by the slavish adoption, by a subsequent court, of a sentence selected by an earlier court when the facts are comparable. However, that would be consistency purchased at the cost of the sacrifice of the proper exercise of judicial discretion. Within the bounds of the appropriate range of sentences, each sentencing judge (either at first instance or following appeal) must bring to bear his or her own independent assessment of the particular case.
I do not find the argument in relation to the desirability of consistency in sentencing persuasive in this case. Consistency is not derived from a single case. Consistency in sentencing will be achieved from a range of cases involving similar features, and also variables. It depends upon the accumulated wisdom and experience of sentencing judges. In my opinion a single case is inadequate to enable a principled consistent approach.
Moreover, while consistency in sentencing is, no doubt, an important goal, equally important for the administration of justice is the public perception that sentences imposed by criminal courts are appropriate to the nature and seriousness of the crime committed.’
Meagher JA at 309-310 agreed with Simpson J, but preferred to use the words ‘more important’ rather than ‘equally important’ in the last quoted passage. Howie J expressed a similar view to Meagher JA in this respect at 316-317.
69 In R v George  NSWCCA 247; (2004) 149 A Crim R 38 at 47, the Court (Wood CJ at CL, Adams and Kirby JJ) approached a ground of appeal which invited comparison with sentences in other case[s] in the following way:
‘We are unable to gain any meaningful assistance from a reference to these cases. It is necessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority: see R v Morgan (1993) 70 A Crim R 368; R v Salameh NSWCCA 9 June 1994 and R v Trevenna  NSWCCA 43; (2004) 149 A Crim R 505 at  to  per Barr J. At the most, other cases can do no more than become part of a range for sentencing, which in the case of manslaughter is wider than for any other offence.
The difference in objective and subjective culpability, which is found in these decisions, is such that any search for a correlation between the case at hand and another decided case is to ignore the judicial discretion which is involved in the individual sentencing exercise required. As Barr J said in Trevenna, ‘Even if it were possible to say that the culpability in two unrelated cases was the same it would not be correct to say, if the sentences were different, that for that reason alone one of them must be wrong.’ Inter alia any such approach would have to assume that the other was correct, and that is an assumption which cannot logically be made.”
70 Similar sentiments have been expressed by this Court when arguments have been advanced on appeal comparing sentences imposed for offences of dishonesty or fraud committed by persons who are not co-offenders: R v Hawker  NSWCCA 148 at - ; R v Swadling  NSWCCA 421 at , ; R v Martin  NSWCCA 190 at . In each of those cases, the Court has emphasised that far greater assistance is derived from references to general sentencing policy.
71 In R v Singh  NSWCCA 424, an argument was advanced that an unjustified disparity existed between the overall sentence imposed upon the Applicant when compared with others who might be considered to be his co-offenders. It was submitted for the Applicant that he was one of a group of offenders, most of whom had been dealt with by different District Court Judges, in respect of the sale of amphetamines from a particular café in Kings Cross. In the course of rejecting this argument, Howie J (Grove J agreeing) said at :
‘The applicant was never charged with any offence in relation to the supply of drugs to, or by, the persons at the café. The applicant was not a co-offender of any person other than the unidentified person or persons who supplied him with the drugs that he on-supplied to the operative. The supply to the undercover officer was only in the most indirect way connected to the criminal conduct emanating from the café and for which other persons were sentenced. As Judge Woods noted, the applicant was not the target of the police operation and, in his Honour’s words, he ‘simply became roped in’. Regardless of what sentences the persons connected with the drug dealing from the café received, the applicant could not have a justifiable sense of grievance about them. The sentences of those persons are no more relevant than would be the sentences imposed upon other associates of the applicant for unrelated drug offences. Although Judge Woods said that he would bear in mind the sentence imposed upon one of the barmen at the café for supplying ecstasy, I cannot understand why he did so.’
72 It was accepted in this case that the Applicant and Mr Chandra were not co-offenders. Whatever may have been the position with the offences contained in the original indictment, it is the case that none of the offences to which the two offenders ultimately pleaded guilty were committed by them as co-offenders. As will be seen, it appears that there was some association between the two offenders and some overlap in their activities. However, I do not consider that this attracts the parity principle to the Applicant’s case. In my view, the correct approach to the present argument involves application of the principles referred to in Morgan, F, George and Singh referred to above.”
133 His Honour concluded, at -:
“The parity principle has no direct application to this case. It is true that the two offenders are not unrelated. This is not a case such as Morgan, F and George where the Court is asked to compare sentences for entirely unrelated offenders and offences. This case is closer to Singh where a parity-type argument was rejected.
The applicable principles, however, are those contained in Morgan, F, George and Singh. The issue is whether the sentences imposed upon the Applicant are outside the appropriate range of sentence for offences of this type. A comparison of the Applicant’s case with the sentences imposed upon Mr Chandra does not demonstrate error in this respect.”
134 His Honour then went on to consider what would happen “if the parity principle is considered by analogy”. He rejected that there would be any legitimate sense of grievance arising from a comparison between the two sentences, each considered in their appropriate context of circumstances.
135 This was not, as I understand it, a recognition that an extended version of the parity principle might apply in the case before him.
136 There is clear High Court authority that the principle applies to the sentences imposed upon co-offenders, in the sense of people who have both committed the one crime. As cases discussed both above and below show, there is a stream of authority in intermediate courts of appeal recognising that, within limits, it can have a role to play in comparison of sentences for different crimes committed by people involved in a common criminal enterprise. Outside its proper scope of application it cannot apply at all. In accordance with the principles that Johnson J quoted from Morgan, R v F, George and Singh the sentencing of people who have not committed crimes to which the parity principle can be applied must be carried out by direct application of the principles of sentencing.
137 It can be legitimate for a sentencing judge to look at sentences imposed in other cases as part of the sentencing judge’s own reasoning towards a sentence by direct application of those principles. But three things need to be borne in mind in so doing. The first is that the judge’s aim in so doing is not to achieve a fair comparison with any particular sentence, but to understand the range within which other judges have sentenced for somewhat similar crimes. The second is that it may be that some previous sentencing decision is itself, even if not wrong to an extent that would be corrected on appeal, still not a particularly good example of the application of sentencing principles, and thus would provide an unreliable guide. The third is that the “range” is not a reference to the range of sentences that are applied in fact – it is a reference to the range of sentences that are open to a judge in the proper exercise of a sentencing discretion.
138 The range of sentences that have been applied in fact is relevant in two different ways to the range of sentences open in proper exercise of the discretion. The first is as a way of educating or reminding the judge, by illustration or ostensive definition, of the range. In that way it provides some indication of the range of sentences open in proper exercise of the discretion, but is not determinative of it. That is shown by the way in which a guideline judgment could have the effect that the sentences that courts have in fact been applying are shown to have been, in general, too high, or too low to be the result of proper application of the sentencing principles.
139 The second is that the aim of achieving equality of treatment across the range of sentences, so far as is possible, is advanced if the sentence that a judge imposes in a particular case is not, without good reason, out of keeping with the sentences that have actually been imposed across the range for similar crimes. That one is writing a guideline judgment could be such a good reason. When the “range” consists of crimes that have considerable differences in both objective facts and subjective circumstances from the crime that is being sentenced for, this comparison with the “range” is done at a fairly impressionistic level, not by being guided by a close comparison of the facts of an individual crime that has already been sentenced for with the facts of the crime that the judge is in the process of deciding a sentence for. That the comparison is done in a fairly impressionistic way is a reason why the comparison is subordinated to the direct application of the sentencing principles in arriving at a sentence. The legitimacy of using a comparison with the “range” in this way was acknowledged by Hunt CJ at CL in Ellis. Comparison with the “range” in this way is not applying “parity by analogy”, because an essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence.
140 This accords with the statement of Howie J (with whom Tobias JA and Shaw J agreed) in R v Shepherd  NSWCCA 287; (2003) 142 A Crim R 101 at :
“In any event this exercise of comparing sentences imposed upon other offenders for different importations to support a submission that the applicant’s sentence was excessive has frequently been the subject of criticism in this Court; see for example R v Bushell (NSWCCA, 7 August 1998, unreported). There is a range of sentences available to a sentencing judge who has a wide discretion to choose a sentence that is appropriate to the facts and circumstances of the particular case. The comparison of sentences can be important to determine whether there is an established range of sentences for the offence for which sentence is being imposed or, in this Court, to determine whether the sentence imposed is unjustifiably outside that range. But ultimately the question for the sentencing judge and this Court is determined by the particular facts and circumstances of the matter before the court when viewed against the legislative regime for sentencing an offence of that type.”
141 In Kardoulias v The Queen  NSWCCA 456; (2005) 159 A Crim R 252 at , Johnson J (with whom Simpson and Rothman JJ agreed) reiterated that:
“... the parity principle is not to be applied when a ground of appeal invites comparison between sentences imposed upon two offenders who are not co-offenders simply because the two offenders may have similar characteristics and may have committed similar crimes”.
142 R v Nguyen  NSWCCA 362; (2005) 157 A Crim R 80 does not contain any analysis of the way in which the parity principle operates, but it provides an example of this Court using the parity principle as the basis for a reduction in sentence, when the people between whom the comparison is made have not all committed the same crime. A total of six people came to be sentenced by New South Wales courts for charges that arose from three separate drug importations. One of the importations was of MDMA, another was of heroin in a bottle labelled Baileys Irish Cream, and the third was importation of both heroin and methylamphetamine through the post.
It will facilitate explanation if information concerning the case is set out in tables. I shall identify the people sentenced by numbers, as follows:
||Pham Van Hau|
||Nguyen Thanh Hai|
||Vu Quang Huy|
||To Kam Pui|
||Nguyen Dinh Minh|
||Le Van Trung|
143 Those involved in the three importations are as follows:
144 The charges laid concerning the MDMA importation were:
||Importing a commercial quantity
||Knowingly concerned in importation of a commercial quantity
||Conveying a commercial quantity
||Possession of a commercial quantity
||Knowingly concerned in the supply of a commercial quantity|
145 The charges laid concerning the Baileys importation were:
||Knowingly concerned in importation of a traffickable quantity
||Knowingly concerned in importation of a traffickable quantity
||Knowingly concerned in importation of a traffickable quantity
||Importing a traffickable quantity
146 The charges laid concerning the postal importation were:
||Knowingly concerned in importation of traffickable quantities of heroin and methylamphetamine
||Knowingly concerned in the importation of traffickable quantities of heroin and methylamphetamine
147 Offenders 1-4 were all sentenced by the one judge in the Supreme Court. Offenders 5 and 6 were both sentenced by the same District Court Judge as each other.
148 Thus it can be seen that all four people sentenced in the Supreme Court were charged with a different charge concerning the MDMA.
149 Offender 1 received, in effect, life for the MDMA charge with a non-parole period of 23 years, and an additional 2 years to be served for the Baileys charge. Offender 2 received 25 years (with 16 years non-parole period) on the MDMA charge, and in effect an additional 2 years on the Baileys charge. Offender 5 received 22 years (with non-parole of 16 years 6 months) on the MDMA charge, with in effect an additional 2 years to be served for the Baileys and the postal charges. Offender 4 was sentenced on the MDMA charge to life, with a non-parole period of 20 years. Offender 6 received 6 years, with a non-parole period of 3½ years, on the only charge against him, the Baileys charge.
150 The appeal against sentence was brought by offenders 1-4. Each had his or her own complaint about parity with another sentence, as follows ():
|Person||MDMA disparity alleged with||Baileys disparity alleged with
||Postal disparity alleged with
|4.||1, 2, 3
151 For reasons unconnected with parity, Grove J decided it was appropriate to re-sentence appellants 3 and 4 (-).
152 Grove J (with whom Barr and Howie JJ agreed concerning this point) upheld an aspect of the submission based on disparity. His reasoning proceeded by considering the relative culpability of the various participants in the three criminal enterprises.
153 The complaint of offenders 1 and 2, of disparity with offender 6 concerning the Baileys charge, was rejected at :
“[Offender 6] was a recruited courier and his conduct and contribution to the criminal enterprise was different from, and much less culpable than, the other three who were organisers and intended sharers in any profit. No justifiable grievance could be harboured because he was treated more leniently than [offender 1] or [offender 2].”
154 Concerning the MDMA charges, his Honour said, at -:
“... [Offender 2] was involved in ‘bankrolling’ the importation for profit and actively involved to some degree in progressing the matter. That reflects participation at a very high level. [Offender 4] was a watchkeeper who reported what was being done to LAM in Hong Kong. It is difficult to perceive that [offender 4's] conduct is more culpable than that of [offender 2] who was to all intents one of the entrepreneurs.
... What is significant is, however, a prior conviction of [offender 4] in Hong Kong for a drug related matter. In that regard, his situation is somewhat analogous to that of [offender 5] who also had prior conviction whose non parole period for his MDMA offence was 3½ years less than that specified in the case of [offender 4].
In assessing sentence there should be reflection of the criminality of each offender in accordance with what each has done in pursuit of the crime, and, although [offender 4] and [offender 5] did materially different things, I conclude that they should be assessed as having approximately equal criminal responsibility as well as broadly equivalent subjective factors. I would resentence [offender 4] to a similar term as that received by [offender 5] for his MDMA charge.
I remain conscious of the relativity between the entrepreneurial activity of [offender 2] and [offender 4] but assessment of her sentences require attention to issues of totality whereas [offender 4] faces the single count and there is the deprivation of leniency consequent upon the existence of his prior conviction.”
155 Because of cumulation, the Baileys charges resulted in offenders 1 and 2 in effect receiving an extra 2 years imprisonment, but the actual sentence imposed on each of them for the Baileys charges was 15 years imprisonment to date from their arrests on 16 October 2001. The actual sentences received by offenders 5 and 6 were 10 years imprisonment and 6 years imprisonment with a non-parole period of 3½ years respectively.
156 The Crown accepted that offender 5 was a principal in the Baileys offence. Further, because he had a prior conviction for a drug offence, offender 5 was liable to life imprisonment on the Baileys charge. Grove J said, at :
“It is appropriate in all the circumstances that the terms of sentence of [offender 1] and [offender 2] for the [Baileys] offence should be coordinate with that received by [offender 5].”
157 As well, his Honour took into account considerations of parity, after various accumulations of sentence were taken into account. He said, at :
“However, the ultimate question in my view is whether the life sentence can stand in the light of the grounds already discussed and the circumstance that two others, one of almost equivalent culpability as a principal ([offender 5]), and the other an important supervisor on behalf of another principal ([offender 4]), should receive determinate sentences. The custody to be served by [offender 5] and that to be served by [offender 1] stands in such stark contrast that I have concluded that [offender 1’s] case for intervention is made out. The conclusion receives some emphasis when it is observed that [offender 5] participated in all three of the occurrences which I initially described, [offender 1] in two of them. In my view, the discrimination would entitle [offender 1] to harbour a justifiable sense of grievance and he should receive a determinate sentence although, as a reflection of his greater culpability (even if it was only marginally so) it should be a longer term than the others.”
158 Offender 1 had been charged with a more serious crime than had offender 5 concerning the MDMA importation, and the same charge as offender 5 concerning the Baileys importation. Thus Nguyen provides an example of a sentence being reduced by comparison (at least in part) with that of a co-offender who had been charged with a less serious crime.
159 In Rend v The Queen  NSWCCA 41; (2006) 160 A Crim R 178 the appellant had been convicted of robbery (ie, not of armed robbery), and sentenced to 4 years, with a non-parole period of 2 years. The conviction was after a trial at which the appellant had pleaded not guilty. The appellant had been the driver of a motor vehicle that had stopped in a suburban street for just long enough for a man called Wormleaton to get out of the vehicle, rob a passer-by, and get back into the vehicle before it drove off. Wormleaton had pleaded guilty to charges of armed robbery, stealing a motor vehicle and being in possession of implements capable of being used to enter and drive a motor vehicle (at ). He received a discount of 50% for his pleas of guilty and for assistance. The sentences imposed on him were a total sentence of 2 years 6 months, with a non-parole period of 1 year 6 months for the offence of armed robbery, and for the other two offences fixed terms of imprisonment of 1 year to be served concurrently with part of the non-parole period of the sentence for armed robbery (at ). The judge who sentenced the applicant said that because Wormleaton was sentenced for the more serious offence of armed robbery and because he had received a discount for his pleas of guilty and his assistance, “the principle of parity of sentencing does not apply”. One of the grounds of appeal was “the applicant has a justifiable sense of grievance by virtue of the disparity between the sentence imposed upon her and that imposed upon the co-offender, Wormleaton” (at ). James J (with whom Buddin and Hall JJ agreed) noted that Wormleaton had been convicted of a more serious offence and had received a discount. He continued, at -:
“... notwithstanding these differences between the appellant and the co-offender Wormleaton, I consider that it was still necessary for the sentencing judge to impose a sentence on the appellant such that there would be a due proportion between the sentence passed on the appellant and the sentence or sentences passed on Wormleaton Postiglione v The Queen  HCA 26; (1997) 189 CLR 295 at 301-302 per Dawson and Gaudron JJ. The principle of due proportionality in sentencing co-offenders was applied in Postiglione, notwithstanding a number of differences between Postiglione and the co-offender Savvas.
The judge who sentenced Wormleaton quantified a combined discount for Wormleaton’s pleas of guilty and assistance as 50 per cent, so that the sentence which would have been imposed on Wormleaton for the offence of armed robbery, absent the plea of guilty and the assistance, would have been five years.
I accept the submission by counsel for the appellant that the sentence imposed on the appellant of four years was unduly severe, when compared with a sentence of five years, which would have been imposed on Wormleaton but for his pleas of guilty and assistance. Wormleaton was sentenced for a more serious offence of armed robbery, whereas the appellant was sentenced for the less serious offence of robbery simpliciter. It is clear that Wormleaton took the leading role in the planning of the offence for which the appellant was sentenced, the preparation for the offence and the actual carrying out of the offence. At the time of committing the offence of armed robbery, Wormleaton was on bail and subject to a bond. The sentence imposed on Wormleaton was partly concurrent with the sentences imposed for the other offences committed by Wormleaton.
As, in my opinion, the challenge to the appellant’s sentence based on Postiglione v The Queen has been made good, it is unnecessary to consider the remaining grounds of appeal against sentence. ...”
160 Rend is a case on which the Applicant places particular reliance. Rend treats the parity principle as one of wider application than was actually decided by Lowe and Postiglione. It accepts that the parity principle is capable of applying to people involved in a common criminal enterprise, but who are charged with different offences, provided that in applying it the comparison takes as a given the different offences that the co-offenders have been charged with, and the consequent difference in the seriousness of their respective acts. There was no practical difficulty in taking the respective charges as a given in Rend, because the difference in the charges was part of the reason why the appellant had a justifiable sense of grievance. With respect, it is hard to see how the appellant would not have a justifiable sense of grievance when she had been convicted of a less serious crime than Wormleaton. Wormleaton had been the leader of the enterprise, had a criminal record, and was on bail at the time of the offence. Those differences clearly warranted a greater difference in the sentences than the difference between Wormleaton’s five years (undiscounted), and the appellant’s four years.
161 In Pham v The Queen  NSWCCA 25 the applicant had been convicted of knowingly taking part in the supply of a large commercial quantity of a prohibited drug. He was sentenced to a non-parole period of 7 years and 6 months with a balance of sentence of 2 years and 6 months. The offence of which he was convicted has a maximum penalty of life imprisonment, and a standard non-parole period of 15 years. The drugs in question had been imported from Vietnam in a single shipping container, hidden in the base of some gypsum statutes. Other men involved in the importation were Du, Ly and Lam. Du’s role involved attending the shipping company, handing over shipping documents relating to the container, paying the shipment fees, leasing (with Lam) a storage facility to which the container was eventually delivered, and on two separate occasions removing some packages from the container and taking them away. Lam’s role was co-operating with Du in leasing the storage unit, and on one occasion attending the premises with Ly, looking in the container, and having a conversation which disclosed their knowledge of the presence of drugs. Lam attended on another occasion with an offender called Nguyen, removed some of the boxes from the container and took them away. There were telephone intercepts showing that Du, Ly and Lam had been in frequent contact with each other, and Ly had been in regular phone contact with the applicant.
162 The applicant’s role involved arriving, with Ly, at the storage facility, unpacking the boxes, breaking the statues and removing the bases from about 177 of them, and taking them away. The remains of some of the bases of the statues were found at the applicant’s house.
163 One ground of appeal related to being “left with a justifiable sense of grievance due to the disparity between his sentence and the sentences imposed upon Du and Lam.”
164 Latham J (with whom Giles JA and Mathews AJ agreed) recorded (at -) the various sentences imposed:
“Du pleaded guilty to an offence of importation of Tier 1 goods in breach of s 233BAA(4) of the Customs Act 1901 (Cth). That is an offence for which the maximum penalty is imprisonment for 5 years. An offence against him of supplying the drug did not proceed. The Judge sentenced Du to imprisonment for 2 years but suspended that sentence.
Ly was convicted of an offence of supplying the drug. The Judge sentenced him to a term of imprisonment made up of a non-parole period of 9 years with a balance of term of 3 years.
Lam pleaded guilty to an offence of importation and an offence of supplying the drug. He was sentenced by her Honour Judge Morgan to imprisonment for 2 years 6 months on the importation offence and a term of imprisonment comprising a non-parole period of 8 years and a balance of term of 4 years for the supply offence. The sentences were to be served concurrently.”
165 Latham J first considered, and rejected, an argument that the sentence was manifestly excessive. She proceeded in that way “because an argument based upon parity accepts that the sentence imposed upon the applicant was otherwise appropriate” (at ).
166 (I think, with respect, that it is going too far to say that an argument based upon parity accepts that the sentence imposed upon an applicant was otherwise appropriate. One can envisage a situation where an applicant’s sentence could justifiably be reduced to a particular level by an appellate court on the ground that it was manifestly excessive, but where parity considerations led the appellate court to reduce the sentence to an even lower one.)
167 The applicant had argued, on the basis of Kerr, that parity can apply notwithstanding that the two offenders are charged with two completely different offences. Thus, the applicant argued, his sentence could be reduced because of its disparity with that of Du, notwithstanding the different charge of which Du was guilty. The particular argument that the applicant put was (at ) that Du’s criminality “seems more significant and indeed even more serious than the applicant’s”. Latham J set out the remarks of Miles AJ in Kerr and of Simpson J in Formosa.
168 After considering other authority in this Court that bore upon Kerr, her Honour concluded, at -:
“In my opinion, if Kerr has any applicability, it must be in a very limited class of case. This Court is not generally concerned with addressing the consequences of prosecutorial discretion as it impacts upon the sentences imposed upon offenders. As Miles AJ recognised, it could not be seriously argued that a person should receive a reduction in sentence because a co-offender is not charged or where, for some reason, the charge does not proceed. Why then should a sentence be reduced because another offender is charged with a less serious offence or a lesser number of offences? How does the court inform itself of the reasons why the prosecutor acted as he or she did? Does the court interfere even if the prosecutor’s actions were completely justified?
If the disinterested observer is to be consulted then that observer should understand the reasons why the prosecutorial discretion was exercised as it was. If this observer also understands that the courts do not generally supervise the legitimate exercise of prosecutorial discretion or seek to address the results of its exercise, then the observer would feel no disquiet about the different sentencing outcomes. But if such disquiet does arise, it is a result of the prosecutor’s actions and not the sentences imposed by the court.
In my opinion there is no justifiable sense of grievance arising from the proceedings against Du or the sentence imposed upon him.”
169 What one takes from this case must bear in mind the particular submission that the court was dealing with. The invitation for the court to regard Du’s criminality as more serious than that of the applicant could not be acceded to when the applicant had been charged with the more serious crime, and no way was suggested in which the court could perceive a disparity between the sentences that did not arise from the different crimes with which they were charged. Reaching that conclusion is quite consistent with Rend, where the court saw disparity between the sentence of an applicant and that of a person charged with a more serious crime.
170 It will be recalled that Lam had been charged with the same offence as the applicant, though also with an additional offence. The offences with which the applicant and Lam were charged arose from the one common criminal enterprise. In accordance with the decision in Postiglione, it was permissible to apply the principle of parity to compare the sentences imposed upon the applicant and Lam, notwithstanding that Lam’s sentence may well have been influenced to some extent by principles of totality. Thus, Latham J dealt with the parity argument in relation to Lam on its merits, by considering the extent to which there were similarities and difference between the respective actions and situations of the applicant and Lam, ultimately concluding that there was no disparity between the sentences imposed on the two men.
171 In Woodgate v R  NSWCCA 137, an applicant who had pleaded guilty to a charge of supply of a large commercial quantity of a prohibited drug, alleged there was a lack of parity between the sentence imposed upon him, and the sentence imposed upon a Mr Barton. Barton had pleaded guilty to a charge of being knowingly concerned in the supply of a commercial quantity of a prohibited drug. He had leased premises to Woodgate, became aware that Woodgate was using the premises for drug supply, and did nothing to stop it. Grove J (with whom Buddin and RA Hulme JJ agreed) noted that the applicant and Barton faced different charges. He said, at , concerning Kerr:
“To the extent that the decision in that case has been said to have possible applicability, it must be in a very limited class of case. It is not shown how the applicant’s situation falls within any such class, and no example of a case falling within such a class has been able to be identified or even hypothesized.”
172 He repeated with approval the remarks of Latham J in Pham concerning Kerr, and rejected the argument that the sentence should be reduced. It was, though, another case in which an attempt was made to use parity to reduce a sentence by comparing it with the sentence received by a co-offender on a less serious charge.
173 Shen v R  NSWCCA 251 was an application for leave to appeal against a sentence imposed concerning two offences. One was trafficking in a commercial quantity of a border controlled drug, namely MDMA, contrary to section 302.2(1) Criminal Code Act 1995 (Cth). The other was knowingly taking part in the supply of a large commercial quantity of MDMA contrary to section 25(2) Drug Misuse and Trafficking Act 1985 (NSW). The Commonwealth charge related to the distribution by the applicant of 230,000 MDMA tablets. The State charge concerned an agreement to supply 10,000 MDMA tablets. No supply actually took place under that agreement because the authorities intercepted the drug before the applicant obtained it.
174 The applicant was sentenced to 11 years imprisonment with a non-parole period of 7 years for the Commonwealth offence, and a non-parole period of 7 years 3 months with a balance of term of 2 years and 6 months for the State offence. There was partial accumulation of the sentences, resulting in an overall sentence of 13 years, with an effective non-parole period of 9 years.
175 The MDMA the subject of both charges had been imported into Australia by a syndicate of which one Matthew Reed was a member. Reed was sentenced by Douglas J in the Supreme Court of Queensland in April 2007, on four counts of importing a commercial quantity of a border controlled drug contrary to the Criminal Code (Cth). Two of those counts involved cocaine, while the other two counts involved MDMA. The whole of the amount that was the subject of the first of those MDMA charges had come into the applicant’s possession. The second charge against the applicant related to the supplying of 2.26 kgs of the 33 kgs of MDMA that Reed had imported in September 2006. Reed was sentenced to concurrent terms of imprisonment of 12 years with a non-parole period of 8 years on each count. The remarks on sentence in Queensland made clear that Reed’s sentence was reduced by 50% to take account of past and future assistance, and possibly also his plea of guilty. By comparison, the trial judge who sentenced the applicant had accepted a joint approach of prosecuting and defence counsel that the combined effect of the applicant’s plea of guilty and past assistance justified a discount of 35%.
176 The applicant’s submission was that, even allowing for the different offences with which he and Reed had been charged, and for the differences in sentencing practices between New South Wales and Queensland (most notably that wholly concurrent terms of imprisonment for all offences of the type and scale in which Reed was involved was contrary to New South Wales practice) the sentences were disproportionate. Reed was a senior member of the importation syndicate – indeed only one person was senior to him in it – and he had been personally involved in reasonably complex arrangements, involving international travel and importation of the goods concealed in ordinary items of commerce. As well, the applicant had agreed to supply only a small part of Reed’s second importation. Notwithstanding those matters, the applicant was sentenced to a significantly longer effective sentence than Reed.
177 Fullerton J (with whom Hodgson JA and Howie J agreed) upheld that submission.
178 After noting the principle in Postiglione and the remarks of Latham J in Pham, Fullerton J continued, at -:
“While it is true that the Commonwealth prosecuting authority in the present case laid different charges against Reed and the applicant (in part, it would seem, as a result of the fact that Reed was arrested in Queensland and the applicant in New South Wales) and that this had the effect of invoking different statutory sentencing regimes and different approaches of principle to the question of accumulation, the same statutory maximum of life imprisonment applied to all offences. In addition, it is important to emphasise that despite the differences in the objective criminality of the applicant and Reed the dominant offending of both was contrary to the Commonwealth Criminal Code, albeit that Reed was charged with importing the border controlled drug that the applicant was charged with trafficking there was a marked overlap and interconnection between their offending. In the particular circumstances of this case, to point to the different charges and the different State sentencing regimes as justifying the disproportion between the applicant’s sentence and Reed’s sentence understates the importance of the overriding principle of equal justice and its legitimate operation in this case.
Despite his Honour having said that he would ‘bear in mind’ the sentences imposed on Reed, I am satisfied that a greater allowance ought to have been made for relative parity in sentencing the applicant particularly since it was not suggested to his Honour (and not submitted to this Court) that the sentences imposed on Reed were manifestly inadequate, despite the fact that the sentences are markedly out of step with sentences imposed in this state for importing commercial quantities of a border controlled drug (see R v To  NSWCCA 200; 172 A Crim R 121 where Hulme and Hall JJ reviewed a number of recent sentences where commercial quantities of MDMA were imported and where significantly longer sentences were imposed). In circumstances where the Crown on the appeal does not advance a submission that the individual sentences imposed on Reed were manifestly inadequate, or that the overall sentence was extremely lenient given his repeated and serious offending over an extended period, it is not for this Court, of its own volition, to make such a finding and to refuse to intervene for that reason.”
179 Thus Shen provides another example of parity being applied when the applicant seeks to compare with the sentence of a person who has committed a different crime, but where the maximum penalty applicable to both of the crimes in question is the same (emphasis is mine).
180 OM v The Queen  NSWCCA 267 was an appeal against sentence by four of a group of six teenage boys who had committed a series of sexual assaults, against the one teenage girl, on the one day. Five of the boys had committed their respective assaults in each other’s company, at two separate locations. The complainant then travelled with two of the boys to a third location, where one of those boys had a conversation on his mobile phone and shortly afterwards OM (who had not been involved in the earlier events of that day) arrived and committed a sexual assault on the complainant.
181 The majority judgment of Fullerton and McCallum JJ allowed appeals by four of the boys (including OM) on the basis of disparity between the sentences imposed on them, and the sentences that were imposed upon the two other boys involved. Their Honours recognised that the ground of appeal invoking disparity in sentencing was one that applied only between co-offenders (at , ). They proceeded on what appears to be an unchallenged assumption that all the boys were co-offenders. Each boy had been charged with a contravention of the same provision of the criminal law, namely section 66C(2) Crimes Act http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/1900, which relates to aggravated sexual intercourse with a child under 14. The circumstance of aggravation in each case was that the offences were committed in company.
182 Because all the boys were charged with a contravention of the same provision of the criminal law, there was not the difficulty that was exhibited in Pham of seeing disparity between the sentence of the applicant and the sentence of a co-offender charged with a less serious offence.
183 It is well enough established that a case is not binding authority for something it assumes rather than decides: CSR Ltd v Eddy  HCA 64; (2005) 226 CLR 1 at 11 ; Markisic v Commonwealth of Australia  NSWCA 92; (2007) 69 NSWLR 737 at 748  and cases there cited. However, that experienced criminal judges proceed on a particular basis can provide some reason to believe that the assumption is justified, even though their decision is not binding authority that the assumption has been correctly made. Fairly clearly, the boys had not all committed the self-same crime, in the way that participants in a robbery all commit the same robbery – each had committed his own individual crime against the victim. They were co-offenders in the sense that, even though they were not charged with conspiracy, their actions were all part of the one criminal enterprise (though OM’s connection with that enterprise was more tenuous than that of the others).
184 Basten JA, who concurred in the result, similarly said that all the boys were co-offenders (at , , ). At , Basten JA referred to the judgments of Hunt CJ at CL in Ellis. He noted that while Hunt CJ at CL had:
“... referred to the principle as applicable to ‘co-offenders’, his Honour did not comment on whether the principle applied only to those who were put on trial together, to those who were charged with the same offence, or (more broadly) to those who were involved in a common criminal enterprise, whether or not they were charged with the same offence or tried together.”
185 Basten JA, at -, gave explicit consideration to who were “co-offenders” for the purpose of the parity principle:
“It is clear that the question of disparity need not arise only where offenders are tried (or sentenced) together. Indeed, most cases involving complaints of disparity arise in circumstances where the offenders are sentenced by different judges or at different times. In Lowe, the co-offenders were jointly indicted for the one offence (an armed robbery). However, in Jones, although both offenders were charged with supply of the same cannabis, the offences were not technically the same, one offender having supplied the drug to the other. Nevertheless, the judgment of the Court, delivered by Brennan J, used the term ‘co-offenders’.
The distinction between the comparison with a co-offender and the comparison with other offences in which the applicant played no part is a matter of critical importance in determining the limits of the application of the principle of parity. In R v Armstrong  NSWCCA 77, the language of disparity was used in relation to an applicant who was one of a number of ‘runners’ employed by an organisation distributing drugs in the Kings Cross area. The Court did not intervene to reduce the applicant’s sentence, but not because it concluded they were not co-offenders.
In Stanton v Regina  NSWCCA 326, the applicant was sentenced on a number of counts involving the supply of prohibited drugs. The question of parity arose in relation to another person sentenced in respect of what appear to have been similar drug offences arising out of the same ‘controlled operation’ conducted by police over a period of one month with respect to a motorcycle gang. The Court did not seek to identify whether the applicant and the co-offender were knowingly concerned in the same particular offences.
It thus appears that the disparity principle operates with respect to persons who may not have committed the same offence, but have been involved in a course of criminal activity through some kind of association over a limited period of time. It would require a departure from that approach (for which the Director did not contend) to avoid the application of the principle in the present case.”
186 It is not, with respect, clear to me that the account that Basten JA gives in  of the facts of Jones is correct. While it is true that the male offender in Jones had physically delivered the cannabis to the applicant in that case, the judgments in both the Court of Criminal Appeal and the High Court are consistent with the “supply” that was the subject of the charge against the male offender being the supply that the applicant made to her retail customer, concerning which the applicant and the male offender shared the proceeds (see para  and  above). On that view of the facts, the offences that the applicant and her male co-offender committed were indeed the same offence.
187 R v Armstrong  NSWCCA 77 was an appeal against sentence by a woman who had been a street seller of cocaine working for an organisation who engaged several such sellers. She alleged disparity with the sentence imposed upon another seller for the same organisation, not shown to have been known to her, who had received a much lighter sentence. The judgment of Barr J (with whom Studdert J agreed) proceeded on an assumption that the applicant and the other street seller were co-offenders. The ratio of the case, at , was that the sentence imposed on the other street vendor “was far less than a proper sentence” and “This Court is not bound to reduce a sentence by reference to another sentence passed upon a co-offender, if, in all the circumstances, it appears that that other sentence is unjustifiably low”.
188 One of the authorities that Barr J relied upon for that proposition was Diamond (NSWCCA, 18 February 1993, unreported) where Hunt CJ at CL said:
“The issue is whether the particular sense of grievance (or of injustice) is a legitimate one. There is, in my view, a stage at which the inadequacy of the sentence imposed upon the co-offender is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one.”
To similar effect are Rexhaj (NSWCCA, 29 February 1996, unreported) and R v Isamunadar  NSWCCA 477; (2002) 136 A Crim R 206 at 217 - , 220 -.
189 While Armstrong did not involve a decision that the two people whose sentences were being compared were co-offenders, it provides another example of a highly experienced criminal judge making the assumption that people related as the sellers were in Armstrong – participants in a common criminal enterprise, in that each is, unknown to the other, a seller for a common vendor – are co-offenders for the purpose of the parity principle (emphasis is mine).
190 Stanton v The Queen  NSWCCA 326 was a sentence appeal where the applicant had been convicted of one count of supplying a prohibited drug, and three counts of knowingly taking part in the supply of a prohibited drug. Three further offences of knowingly taking part in the supply of a prohibited drug were included on a Form 1. The man referred to as the applicant’s co-offender, called Keen, had pleaded guilty to two counts of ongoing supply of a prohibited drug, and three counts of supply of a prohibited drug. Concerning Keen, there were five matters of supplying a prohibited drug taken into account on a Form 1. The offence of ongoing supply of a prohibited drug has a maximum penalty of 20 years’ imprisonment, by comparison with a maximum penalty of 15 years’ imprisonment and/or a fine of $220,000 for the offence of supplying a prohibited drug. Both the applicant and the “co-offender” were involved in a drug distribution organisation that was connected with a motorcycle gang. The charges against the applicant related to supplies on 14 March 2007, 24 April 2007, and dates in between. The Form 1 items relating to the applicant also fell within that date range. The charges against Keen related to acts of supply occurring on 15 March 2007, 14 June 2007, and dates in between. Thus, the applicant’s act of supply on 14 March 2007 was a supply that the “co-offender” was not shown to be involved in.
191 There were five separate acts of supply that the applicant was involved in, between 15 March 2007 and 4 April 2007, that were also the subject of the five charges of ongoing supply against Keen. Three of those acts of supply were ones that were taken into account in relation to the applicant on a Form 1, each for the applicant knowingly taking part in the supply. The other two of those five acts of supply were ones where the applicant was actually convicted of knowingly taking part in the supply.
192 There was another act of supply of a particular drug on 24 April 2007, in relation to which Keen was charged with supplying the drug, and the applicant was charged with knowingly taking part in the supply. All the other charges against Keen were ones that the applicant was not shown to have had any involvement in. A table setting out the precise relationship between the various acts of supply, and the charges against the applicant and Keen in relation to each, appears at para  of the judgment.
193 It is only in a very small number of the 40 paragraphs of the judgment of Beazley JA that Mr Keen is not referred to as a co-offender. It appears from a Crown submission recorded at  that the Crown proceeded on the basis that the two men were co-offenders.
194 Thus, Stanton is another case where it was assumed, rather than decided, that the two people involved were co-offenders. The result in Stanton was that the applicant’s sentence was reduced. The fact that his “co-offender” had committed different crimes to the applicant was not seen as an obstacle to that result (emphasis is mine).
195 While the proposition that Basten JA states in para  in OM is consistent with the cases on which he bases it, it is not one compelled by them. However there are many other cases that are also consistent with it.
Huang and Siu
196 The Applicant reminded us that this Court’s judgment in Huang & Siu referred in para  to Huang and Siu as being co-offenders. That was a case in which the parity principle was not involved at all. When there was no occasion for the court either to assume or to decide whether they were co-offenders for the purpose of the parity principle, this reference to them as being co-offenders leads nowhere for present purposes.
Three Cases the Applicant Relies On
197 Three cases are relied upon by the Applicant as being recent examples of the application of the parity principle. One of them, Tuifua v The Queen  NSWCCA 224; (2008) 189 A Crim R 1, was a case involving co-offenders in the sense already recognised by the High Court, because each had pleaded guilty to a charge of conspiracy to commit (the one) armed robbery. Thus, it does not advance the present argument. The second, Melikian v The Queen  NSWCCA 156, proceeded on the basis that an applicant who had pleaded guilty to a charge of knowingly taking part in the supply of heroin, was a co-offender with someone charged with supplying heroin. They had acted together in acquiring the heroin that was to be supplied. The disparity that this Court (Spigelman CJ, Hidden and Price JJ) found resulted in the sentence being reduced. The third case, Hudson v The Queen  NSWCCA 59, is another case where it was assumed without deciding, that the parity principle applied, and the appeal was rejected on the ground that there was no marked disparity. The result means that the making of the assumption has the effect that it is of limited use for present purposes.
The Queensland View of Proper Scope of Parity Principle
198 The same conclusion as I have arrived at concerning the scope of operation of the parity principle has been arrived at in Queensland without reference to the New South Wales course of authority. R v AAH & AAG  QCA 321 concerned the sentences imposed on four men who had participated in a gang rape of a complainant D. Two of those men, the Hussein brothers had also, on another occasion, together raped another complainant, C, in circumstances that bore a marked similarity to the circumstances of D’s rape. The Husseins had been sentenced for their participation in both rapes before the applicants were sentenced. Chesterman JA (with whom Fraser JA agreed, at , in this respect) said, at -:
“The parity principle applies only to co-offenders: Postiglione v R  HCA 26; (1997) 189 CLR 295 at 325 per Gummow J: Lowe v R  HCA 46; (1984) 154 CLR 606 at 609 per Gibbs CJ, at 611 per Mason J and at 617–18 per Brennan J.
The applicants and the Husseins were only co-offenders with respect to the series of offences against complainant D. As to those offences the disparity in penalties imposed upon the Husseins and on the applicants is in the applicants’ favour and is explained by their co-operation with the administration of justice. The applicants were not co-offenders with the Husseins with respect to the offences against complainant C for which they were sentenced to 15 and 15 and a half years imprisonment. The comparison between those sentences and those imposed on the applicants does not invoke the parity principle.”
199 The “series of offences against the complainant D” were the various individual acts of rape that each of the men had committed. This case is authority, not just assumption, that the parity principle is capable of applying between people who participate in a common criminal enterprise even if they do not all commit the self-same crime.
Is This A type of Case to Which the Parity Principle Could Never Apply?
200 There is one case, namely Wurramarbra, that speaks as though as a matter of principle the parity principle is capable of applying only between people who have committed the same crime. The statement in Krakouer that I have set out at para  above might be read as suggesting that the principle can be applied only where the offenders in question are charged under the one Act, or (possibly) for the same “kind” of offence.
201 Gleeson CJ in Watson was not so emphatic – rather he said that when two offenders are charged with “significantly different crimes” considerations of parity are “difficult to apply”, and he decided that parity was inapplicable in the case before him because the particular charges involved were “so different”. Krakouer does not purport to give a test of when the parity principle does, and does not apply – rather, it gives a reason why the principle does not apply in that particular case. Krakouer might be explicable on the basis that it is a case of the same type as Pham and Woodgate, where the applicant sought to obtain the benefit of parity by comparison with the sentence of someone who had been charged with an offence less serious than his own, and no basis was provided on which the difference arising from the differing charges could be factored out of the difference between the sentences. Further, it is not clear what the judges intended in Wurramarba when they said that “different considerations apply” when “the person convicted of the more serious offence receives a sentence which is less than the person convicted of the less serious offence, all other aspects being approximately equal.” It is in precisely that situation that other judges have regarded the parity principle as capable of application. There are numerous examples of the parity principle being applied to reduce the sentence of one of the participants in a common criminal enterprise even though they have not all committed the self-same crime: Sumner; Nguyen; Rend; Shen; OM; Melikian; AAH & AAG. There are also cases where the judge has proceeded on the basis that the parity principle could apply between people who had participated in a common criminal enterprise but not committed the same crime, though in the result the sentence was not actually reduced: Armstrong; Hudson. As well, one aspect of Kerr was that parity with the sentence of a participant in the same criminal enterprise but who had been charged with a different crime was a legitimate consideration. In Formosa Simpson J was not prepared to reject that aspect of Kerr, though she recognised that there would be practical difficulties in its application in that circumstance.
202 Even though there was no issue squarely raised in the cases mentioned in the previous paragraph except AAH & AAG, as there has been in this, of whether as a matter of principle the parity principle can apply between people who have not committed the self-same crime, it is not to be supposed that the large number of judges who proceeded in this way did so by oversight. As the facts of Sumner, Nguyen, Rend, Shen, OM and Melikian illustrate, unequal treatment that is so great as to bring about a justifiable sense of grievance can sometimes arise between participants in a common criminal enterprise who have committed different crimes. In my view there is no obstacle of the type the Crown submits to the parity principle being applied simply because a case is one in which the sentence by comparison with which the sentence under appeal is sought to be reduced was for a different crime (emphasis is mine).
203 There are significant limitations, however, on reducing a sentence on the basis of that of a co-offender who has committed a different crime. At least some of the limits on the use of the parity principle in such a case are:
1. It cannot overcome those differences in sentence that arise from a prosecutorial decision about whether to charge a person at all, or with what crime to charge them: Howard; Wurramarbra; Formosa
2. If it is used to compare the sentences of participants in the same criminal enterprise who have been charged with different crimes, there can be significant practical difficulties. Those practical difficulties become greater the greater the difference between the crimes charged becomes, and can become so great that in the circumstances of a particular case a judge cannot apply it, or cannot see that there is any justifiable sense of grievance arising from the discrepancy: Gibson; Howard; Formosa
3. It cannot overcome differences in sentence that arise from one of the co-offenders having been given a sentence that is unjustifiably low: Armstrong; Diamond; Rexhaj; Isamundar
4. There are particular difficulties in an applicant succeeding in a disparity argument where the disparity is said to arise by comparison with the sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the applicant: Krakouer; Pham; Woodgate. See also R v Stanbouli  NSWCCA 355; 141 A Crim R 531 at - . However Nguyen stands as one example where that result arose (emphasis is mine).