FEDERAL COURT OF AUSTRALIA oe NE... DISPRICT REGISTRY Generar od. DIVISION No of Action INTC EE, - Of IAA a TITLE OF ACTION .GfIe}. URE AMAZBEA le No Te | QUEEN Concetta ses ace vee e eer ee de oceeaee ener eer evnesee Date(s) of hearing ore A Date judgment delivered. 23..;74 |. Counsel and Me, BD. PARSONS cee eeetetecsereces wot! Insu Ted oy Solicitors for , ¢ / Caan Taam Tas ican iam ie iron . . . e e APPELLANT eee e reso es cvoee Counsel and mstructed seoceeee Tose tae secler eee asc esesee ses ser eneiosevrecenas Solicitors for RESPONDENT, C Depineys op ere : ON ERR ENN Signed ..... cece eccccrcoe ores veer eceeccere (Associate) 3, 12.79 Date: wero ete erate renee (NOTE: To be despatched to Principal Registry, Sydney for on-forwarding to law publishers) CATCHWORDS Criminal law - appeal against severity of sentence - disparity of sentence of co-offender charged with lesser offence -— principle that parity be taken into account not applicable. Gary Wurramarbra v. The Queen NTG No.14 of 1979. Coram: St.John, Fisher and Gallop JJ. Darwin 23 November, 1979, IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY OF AUSTRALIA Wo. NTG 14 of 1979 GENERAL DIVISION BETWEEN ; GARY WURRAMARBRA Appellant AND : THE QUEEN Respondent ORDER JUDGES MAKING ORDER : St.John, Fisher and Gallop JJ. DATE OF ORDER : 23 November, 1979. WHERE MADE : Darwin. The Court orders that: 1. The appeal is dismissed. IN THE FEDERAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY OF AUSTRALIA ) No. NTG 14 of 1979 ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA No. §.C.C. 181 of 1979. BETWEEN: GARY WURRAMARBRA Appellant ' AND: THE QUEEN , Respondent 23 November, 1979 ST.JOHN, FISHER AND GALLOP JJ. Gary Wurramarbra was on his own plea of guilty convicted of burglary on 5 June, 1979 and on 22 June, 1979 Mr Justice Muirhead : imposed a sentence of four years' imprisonment with hard labour to be served concurrently with a sentence of one year's imprisonment with hard labour for larceny in a dwelling house. ' Against the first-mentioned sentence he appeals to this Court ' on the grounds that that sentence is too severe and in particular complains of the disparity between that sentence and the sentence of a co-offender. The circumstances of the offence were that the appellant and one Bara stole goods from certain dwelling houses on Groote Eylandt on the night of 10 April, 1979. A record of interview was taken from Bara. He was incapable of specifying the time during which the burgled house was entered, but made all other admissions necessary to found and prove a charge of break, enter and steal. At the time of that offence he was in the company of the appellant in what was a joint enterprise. Bara entered a plea of guilty to break, enter and steal before a magistrate and was sentenced by that magistrate to fourteen months' imprisonment with hard labour and this fact was made known to Mr Justice Muirhead before he passed sentence on the appellant. Mr Parsons, who ably represented the appellant on the appeal, wisely confined his arguments to the disparity of the two sentences for the same exploit. We say wisely because it is perfectly apparent that there was no other available line of attack on the sentence imposed. Both the appellant and Bara have long criminal records even though they are comparatively young men, the appellant at the time of sentence being approximately twenty-two years of age. It was submitted on behalf of the appellant that it was a proper case for the sentencing judge to take into account the fourteen months' imprisonment awarded Bara in fixing the sentence for the appellant. We were referred to a number of authorities in which that principle was applied where co-offenders had been convicted of the same offence. We were also referred to a decision of Williams A.J. in Millbanks v. Joseph 1979) 21 S.A.S.R. 310 where a passenger in a motor car had been convicted of failing to wear a seatbelt and fined $20.00 and the driver of the same motor vehicle was convicted by a court differently constituted some time earlier and fined $80.00. Williams A.J. found in the decision of Walters J. in Wood v. Samuels (1974) 8 S.A.S.R. 465 some support for applying the principle in those circumstances. "It is important that as far as possible convicted persons should not be left with a sense of injustice or grievance, at least if there are reasonable grounds for such a feeling"; R. v. D'Ortenzio and Burns 1961) V.R. 432 at Page 433; R. v. Tiddy (1969) S.A.S.R. 575. It was urged upon this Court that the principle should be applied despite the difference in the offences to which the appellant, and Bara pleaded guilty. No authority in which circumstances on all fours with the present matter were considered was referred to us. Further it appears that there has been no exhaustive analysis of the considerations which are taken into account in determining whether the sense of injustice or grievance was soundly based. in the case under appeal 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 which 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. The appeal is dismissed. I hereby certify that the preceding four pages are a true copy of the Reasons for Judgment of Their Honours Mr Justice St.John, Mr Justice Fisher and Mr Justice Gallop in this matter. Dated this 23rd day of November, 1979. Associate to St.John J.