Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Bahcekapili v R [2020] NSWCCA 296 Hearing dates: 21 September 2020 Date of orders: 13 November 2020 Decision date: 13 November 2020 Before: Hoeben CJ at CL at [1] Rothman J at [2] N Adams J at [10] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – sentence appeal – robbery in company – parity with sentence of co-offender – subjective circumstances – whether applicant had a justifiable sense of grievance – relevance of co-offenders brain injury – co-offender sentenced for multiple offences Legislation Cited: Crimes Act 1900 (NSW), s 97(1) Criminal Appeal Act 1912 (NSW), s 5(1) Cases Cited: Ayik v R [2013] NSWCCA 119 El-Helou v R [2014] NSWCCA 209 Kelly v R [2017] NSWCCA 256 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 Category: Principal judgment Parties: Batuhan Bahcekapili (Appellant) Crown (Respondent) Representation: Counsel: S Healey (Appellant) K Jeffreys (Respondent) Solicitors: Legal Aid Commission of NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2017/00286948 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Date of Decision: 23 August 2019 Before: Herbert DCJ File Number(s): 2017/00013295; 2017/00013747; 2017/00286948; 2018/00015960 Judgment 1. HOEBEN CJ AT CL: I agree with N Adams J and the orders which she proposes. 2. ROTHMAN J: I agree with the orders proposed by N Adams J. Her Honour sets out, in her reasons for judgment, the circumstances that apply to the applicant and his co-offender. I do not repeat them. 3. The norm of equal justice requires more than a result whereby persons who are, in law, relevantly equal are treated equally. It also requires that persons whose circumstances are, in law, relevantly different be treated differently and in such a way that the difference in treatment rationally reflects the relevant difference in their circumstances. 4. It is the second aspect of the principle with which the applicant is concerned in this appeal. Equal justice manifests in the sentencing of co-offenders as the principle of parity in sentencing. 5. The principle of parity in sentencing co-offenders requires that the relationship between the sentence imposed on each co-offender is rational. Where that occurs, there is parity between the co-offenders. 6. As such, while there must be, for co-offenders with different relevant features, a difference in the sentence imposed on each, such difference, if rational, will never amount to a "disparity". In the context of sentencing, the term "rational disparity" is an oxymoron, although it is sometimes, if not often, used. 7. Once a sentencing judge purports to apply the parity principle and establishes a relationship between sentences imposed on co-offenders, an appeal court will not intervene simply because it, or one or more of its members, would have differently reflected the difference in circumstances of the co-offenders. There is, in this area, as with sentencing generally, no one correct sentence and no one correct relationship. 8. Unless the applicant in this case can show that the relationship between the sentence imposed on him and that imposed on Mr Hijazi does not rationally reflect the relevant differences between them, there can be no "justifiable sense of grievance" and his appeal must fail. A justifiable sense of grievance is objectively determined. 9. The sentences, imposed on the co-offenders and, in relation to the applicant, impugned in this appeal, do not reflect an irrational difference and the applicant's appeal must fail. Leave to appeal should, nevertheless, be granted. 10. N ADAMS J: The applicant, Batuhan Bahcekapili, seeks leave under s 5(1) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him on 23 August 2019 by Judge Herbert in the District Court in Sydney. 11. On 29 May 2018, the applicant pleaded guilty at Central Local Court to one count of robbery in company contrary to s 97(1) of the Crimes Act 1900 (NSW). He was sentenced to imprisonment for 2 years and 3 months commencing on 21 August 2019 with a non-parole period of 1 year and 6 months to expire on 20 February 2021. He is eligible for release on parole on 20 February 2021. 12. The applicant's co-offender, Mr Hussein Hijazi, pleaded guilty on 26 March 2019 to the same offence. This plea occurred on the first day of his trial. 13. At the time of committing the offence, Mr Hijazi was already on parole for four armed robbery offences committed in 2015 as a juvenile. After the date of the subject offence (15 October 2017), he was returned to custody to serve the balance of his parole until 15 February 2018. This was the result of being arrested for three further offences, namely a police pursuit, driving recklessly/furiously or in a speed/manner dangerous, and driving under the influence of alcohol. In the Local Court, Mr Hijazi received a sentence of 18 months imprisonment for the police pursuit, with a non-parole period of 12 months. The other two driving offences attracted concurrent fixed terms of 6 months. 14. On 28 August 2019, Judge Herbert sentenced Mr Hijazi for the robbery in company he committed with the applicant. He received a sentence of imprisonment for 3 years and 1 month, with a non-parole period of 1 year and 10 months. The sentence was imposed such that 6 months of the non-parole period was to be served concurrently with the sentence imposed in the Local Court for the driving matters. 15. The applicant relies on the sole ground of appeal that he has a justifiable sense of grievance by reason of the lack of marked disparity between his sentence and the sentence imposed upon Mr Hijazi. To put this another way, the applicant contends that his sentence should have been much lower than that imposed on Mr Hijazi. Factual background 1. On 15 July 2017, at around 4:00am, the applicant and Mr Hijazi called for a taxi to pick them up in the Brighton Le Sands area. The taxi arrived at 4:10am. After having some difficulty locating the offenders, the taxi driver picked them up outside a supermarket in Brighton Le Sands. Mr Hijazi sat in the front seat and the applicant sat in the rear passenger seat. Both offenders left their car doors open. 2. After sitting down, Mr Hijazi held out a 10-13 centimetre bladed knife about 30 centimetres from the drivers' abdomen, facing towards the windscreen. The driver held out $30-$40 cash. The applicant took this money by leaning forward from his position in the rear passenger seat. Both offenders then exited the vehicle and ran away. 3. The driver reported the robbery to police immediately. A forensic examination of the taxi identified the applicant's DNA from fingerprints on the rear passenger side door handle. Police also obtained the CCTV footage from inside and outside the taxi which showed both of the offenders trying to disguise their appearance and conceal their faces while committing the offence. 4. Police later executed a search warrant at the applicant's home at which time his iPhone and the clothing worn during the offence were located. The applicant subsequently participated in an ERISP during which he identified himself in the CCTV stills taken from inside and outside of the taxi at the time of the offence. Proceedings on sentence 1. The proceedings on sentence for both offenders were conducted on 16 August 2019 before Judge Herbert. The Crown sentence bundle tendered in relation to the co-offender was marked Exhibit A. The Crown sentence bundle tendered in relation to the applicant was marked Exhibit B. It included Crown sentence summary, Notice of Committal, Court Attendance Notice, the Agreed Facts dated 28 May 2018, the applicant's criminal and custodial history, two Court Attendance Notices in relation to breaches of bonds, a sentencing assessment report dated 30 November 2018 and an updated sentencing assessment report dated 6 August 2019. An email from the officer in charge of the investigation was further tendered and marked Exhibit C. 2. The applicant had a short criminal history. On 14 February 2017, he was dealt with for a number of driving related offences, received a s10A conviction for not stopping at the stop sign, two s 9 bonds for a period of 2 years for driving whilst disqualified and driving a conveyance without consent of the owner. These offences were all committed on 14 January 2017. On the same day, the applicant was also fined in relation to offences of damaging property and enter vehicle or boat without consent of the owner committed on 20 January 2017. On 21 July 2017, the applicant received another s 10A conviction for the offence of enter enclosed land without lawful excuse, which was committed on 17 July 2017. He was also fined and disqualified for the offence of driving a motor vehicle while suspended, which was committed on 20 August 2016. 3. A bundle was also tendered on behalf of the applicant and marked Exhibit 1. This was comprised of a report of Sam Borenstein, Clinical Psychologist, a letter from Dr Michaela Davies, Psychologist, a letter from Dr David Norus and a letter from Dr Mohsen Gerges. It also contained a number of character testimonials and a copy of the applicant's Forklift Licence. 4. The applicant gave evidence at his proceedings on sentence. He lived with his mother and looked after his two younger brothers on occasion. He explained that on the night of the offence he had consumed alcohol and taken a Xanax tablet. He described having a longstanding anxiety issue prior to the offending. He acknowledged that he had not been honest in his first interview with police about what had occurred but explained that this was because he was "ashamed" and "embarrassed". 5. The applicant stated that since being arrested he had been taking the drug Zoloft to deal with his anxiety, had been engaging in physical activity and had volunteered in his uncle's telephone shop. He stated that his "family [was] going through a lot of stress" because of what he did. 6. The applicant acknowledged that he had committed prior offences for which he had been placed on bonds and had completed community service (60 hours) for breaches of those bonds. He stated that his anxiety had made his performance "borderline" when completing community service. In cross-examination, the applicant admitted that he continued to use marijuana to ease his anxiety. At the time of the sentencing proceedings, he was working one to two days per week. 7. Mr Hijazi did not give evidence. His sister gave evidence in his case instead. She stated that she was currently studying community services fulltime at St George TAFE. She had attended several meetings which dealt with alcohol, narcotics and crystal methamphetamine addiction. She gave evidence of a traumatic brain injury that had been suffered by her brother. She indicated that she could be his sponsor in terms of addiction services. She was willing to support, accommodate and assist him when he was released from custody. Remarks on sentence 1. Judge Herbert sentenced both offenders on 23 August 2019. After outlining the facts summarised above at [16]-[19], her Honour made findings in relation to the objective criminality of the offence. She noted that the use of a knife was an aggravating factor and that the offence was carried out "with at least a limited degree of planning and pre-meditation". Her Honour classified it as being within the mid-range of objective seriousness. 2. In terms of the applicant's subjective circumstances, her Honour noted that at about the time of the offending, the applicant was consuming drugs on a regular basis. On the night of the offence, he had consumed upwards of six standard drinks, two Xanax tablets and marijuana. 3. Her Honour noted the applicant's feelings of remorse and his reduction in marijuana usage to 1 gram per week. She also noted his attendance at psychological counselling. She then stated: "It was noted that the offender's criminal history dates to his parent's [sic] separation and eventual divorce. He said that he maintains regular contact with his father and spoke about the fact that when his father left the family home the offender had more freedom to sneak out at night. He had run amuck, meet up [sic] with girls and take [sic] drugs." 1. Her Honour also observed Mr Borenstein's view of the applicant's emotional and behavioural problems. She stated: "In his opinion of Mr Bahcekapili on reviewed the material is [sic] he did note the differences between adolescence and adults in relation to the neurobiological differences and the development of the adult brain. He noted that there would still be time before the offender's brain is fully developed, which allows for significant positive change and noted the positive changes that have been implemented since the time of the offence. He spoke about adolescence being a time where there is an increased incident of risk taking behaviours.[sic] And said that the offender appears to have self corrected in ways detailed in the report. [sic] That he was pursuing cognitive behaviour therapy and mood and affect regulation strategies. He said, Mr Bahcekapili's acquired symptoms of anxiety and depression are in response to the events which bring him before the Court, and spoke about him continuing his psychological treatment, together with the positive changes that would mean that the likelihood of him reoffending would be low." 1. Her Honour noted similar observations in the material before her from Dr Davis, Dr Norus and Dr Gerges. Her Honour did not accept that the offender was seeking to self-medicate for anxiety with that Xanax. Rather, he was using it in a social context as a recreational drug with cannabis. 2. Her Honour accepted the applicant's expression of remorse as genuine. Given his efforts to be more pro-social, the ongoing support from his family and his attempts to find employment, she was satisfied that he would not commit further offences. 3. In terms of Mr Hijazi, her Honour noted a previous criminal record which did not entitle him to leniency. This record included prior convictions as a juvenile for offences of dishonesty, violence and armed robbery. He was also involved in a police pursuit after committing the subject offence. 4. Mr Hijazi's substance use history included the use of cannabis from the age of 14. Over time he came to smoke cannabis daily. He started using MDMA and cocaine from the age of 15 or 16. This quickly developed into a daily cocaine habit of more than a gram a day. Her Honour noted that the applicant had withdrawn from cocaine while in juvenile custody and was abstinent for 18 months whilst in detention. She also accepted that his expression of remorse was genuine. 5. In relation to Mr Hijazi's brain injury, her Honour noted the following: "As the psychologist noted, there is a clear history of premorbid behavioural problems and low intellectual functioning. But the brain injury is significant and will have played a role in further impairing his appraisal (?) [sic] and exacerbating his tendency to impulsive action without due consideration of consequences. The offender's history shows significant childhood conduct disorder, later complicated by the acquired brain injury. The evidence suggests an onset of a mood disorder post injury, which is a common sequelae to a brain injury. The offender told him that he was treated with anti-depressant medication whilst in juvenile justice but he didn't continue with this post release. He was referred to a psychologist in April 2017, and it was noted that the offender's mood was worsening in the period after his release from juvenile justice. When he spoke to the psychologist he told him the medications he was taking with Justice Health and he rated his mood as a three or four out of ten. He spoke about presenting a facade to his peers and he feels "shit inside". It is noted that his long history would meet a criteria for substance use disorder being a Polysubstance Use Disorder. The fact that he had a clear history of a childhood Conduct Disorder developing into an Antisocial Personality Disorder, was aggravated by the acquired brain injury and a combination of these personality pathology and the brain injury are primary areas of prognostic concern." 1. Her Honour noted that any rehabilitation attempts should be taken by persons who were knowledgeable about brain injuries. She also noted that his risk factors were ongoing drug usage and association with criminal associates. Her Honour assessed him as a having "guarded prospects of rehabilitation". 2. In terms of moral culpability, her Honour noted that both offenders were on conditional liberty at the time of the offence. Mr Hijazi was on parole and the applicant was on two bonds. 3. Her Honour did not accept that the applicant was suffering from anxiety at the time of the offence, although she accepted that he was affected by anxiety at the time of sentence. This meant that any custodial sentence would be more onerous on him. Mr Hijazi had a history of behavioural issues including impulsivity and aggression prior to his significant head injury. As such, Mr Hijazi was less of a "suitable vehicle" for specific deterrence. 4. On the issue of parity, her Honour stated the following: "The offence was one involving a joint criminal enterprise and each offender bears criminal responsibility for the actions of the other. That does not mean that each has the same moral culpability. In this matter I am satisfied that the role played by Hijazi was more serious in that he produced the weapon and made the demand, but Bahcekapili took the victim's money following the demand and implicit threat. I am also satisfied that there was a degree of pre‑meditation between the offenders. The criminal record for Hijazi is for offences of greater criminality, being offences of a similar nature of the present offence, even if committed as a juvenile. However, Hijazi has reduced moral culpability due to the impact of his brain injury. The finding as to prospects of rehabilitation is more positive for Bahcekapili." 1. Her Honour found special circumstances in relation to both offenders. For Mr Hijazi she observed that questions of totality and accumulation had to be considered, especially in light of his head injury. She imposed the sentence on Mr Hijazi such that the first six months of it was to be served concurrently with the non-parole period imposed on him for a prior sentence of being involved in a police pursuit. The parties' submissions The applicant's submissions 1. The applicant submitted that the sentencing judge correctly identified that the parity principle was applicable and that the totality principle was also a relevant consideration for Mr Hijazi. However, the applicant submitted that her Honour erred in failing to consider the additional period of custody that was warranted for Mr Hijazi. The applicant drew attention to the fact that he was entitled to a 25% discount on account of his early guilty plea, whereas Mr Hijazi was only entitled to 10% as he had entered a late plea of guilty. 2. It was further submitted that Mr Hijazi's moral culpability was higher because he had produced the weapon and demanded money from the victim. 3. Reliance was placed on the fact that her Honour was satisfied that Mr Hijazi had "poor impulse control" as a result of his brain injury, was more of a risk to the community, had "more guarded" prospects of successful rehabilitation, had "a long history of poor social adjustment" and "would gravitate towards antisocial influences and make poor choices". By contrast, the applicant was assessed as having good prospects of rehabilitation. 4. As such, the applicant submitted that her Honour erred in imposing a non-parole period on the applicant which was longer than that imposed on Mr Hijazi. Crown submissions 1. The Crown submitted that there was no erroneous disparity. The applicant's sentence only appeared longer when the concurrent six month sentence for Mr Hijazi's previous offending was disregarded. 2. The Crown relied upon the decision in Ayik v R [2013] NSWCCA 119 as authority for the proposition that when determining the starting date for Mr Hijazi's sentence, the sentencing judge was not bound to ensure proportionality between the non-concurrent portion of the sentence and the sentence imposed on the applicant. 3. Furthermore, the Crown pointed out that the sentencing judge expressly considered the question of parity in the extracts quoted above at [40]. The applicant's more favourable findings in terms of his role in the offence, criminal history and prospects of rehabilitation were reflected in both his lower head sentence and lower non-parole period. Consideration 1. The sole ground of appeal is a claim that the sentencing judge erred in her application of the parity principle. Beech-Jones J summarised this well-known sentencing principle in this way in Kelly v R [2017] NSWCCA 256 at [21]: "The parity principle is an aspect of equal justice before the law. It holds that as between co-offenders there should not be a marked disparity between the sentences imposed such as to give rise to 'a justifiable sense of grievance' in one of them (Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 610 per Gibbs CJ, at 613 per Mason J and at 623 per Dawson J; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan and Kiefel JJ). The totality principle requires that sentencing judges ensure that the aggregation of sentences for multiple offences is a 'just and appropriate' measure of the total criminality involved in their commission (D A Thomas, Principles of Sentencing, (2nd ed 1979, Heinemann) at 56-57, as cited in Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 63)." 1. The applicant pleaded guilty to a robbery in company of a taxi driver in which his co-offender was armed with a knife. It was the applicant who took the money from the taxi driver. There was some planning involved. The applicant committed this serious offence whilst on two good behaviour bonds. A sentence of 2 years and 3 months imprisonment was imposed with a non-parole period of 1 year and 6 months. 2. The sentence imposed on the applicant was shorter than that imposed on Mr Hijazi for the robbery in company; Mr Hijazi received a sentence of 3 years and 1 month. The non-parole periods were also in the applicant's favour; he received a non-parole period of 1 year and 6 months imprisonment, whereas a non-parole period of 1 year and 10 months was imposed on Mr Hijazi. 3. The applicant makes no complaint about the sentence imposed on him per se. Rather, his complaint is that although he received a lesser sentence than Mr Hijazi, the degree of difference was not significant enough and was "swallowed up" by the fact that the first six months of Mr Hijazi's sentence was served concurrently with a previous sentence. This is said to have given rise to "a justifiable sense of grievance" on the applicant's part. 4. Although the parity principle requires that like offenders be treated in a like manner, as Gibbs CJ observed in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 609, "other things are not always equal". His Honour went on to state that matters such as "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." 5. All things were not equal as between the objective and subjective features of the applicant and Mr Hijazi in this matter. Some matters favoured the applicant and other matters favoured Mr Hijazi. The applicant was entitled to a 25% discount on account of his early guilty plea, whereas Mr Hijazi was only entitled to 10%. It was Mr Hijazi who produced the weapon. The applicant's prospects of rehabilitation were more favourable but Mr Hijazi had a significant brain injury, which reduced his moral culpability. Her Honour had regard to all of these differences and imposed a custodial sentence on the applicant which was shorter than that imposed on Mr Hijazi. I am not satisfied that her Honour erred in her application of the parity principle when the sentences imposed on the two offenders are compared. 6. The second aspect of the applicant's complaint is that although he received a shorter non-parole period and head sentence, this was altered by the application of the totality principle in relation to Mr Hijazi. It was submitted that the sentencing judge erred when the actual period to be served in custody as between the applicant and Mr Hijazi are compared. 7. The interplay between the parity principle and the totality principle was considered by the High Court in Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 ("Postiglione"). Contrary to the applicant's position in the present case, although the High Court by majority allowed Mr Postiglione's appeal on parity grounds (Dawson, Gaudron and Kirby JJ; McHugh and Gummow JJ dissenting), the majority did so on different bases. An analysis of the decisions of Dawson and Gaudron JJ, and Kirby J does not support the applicant's contention a sentencing judge is required to include any period of concurrency a co-offender might be serving when applying the parity principle, although it is a relevant factor to have regard to. Beech-Jones J considered this aspect of Postiglione in some detail in Kelly v R. 8. In Kelly v R, the applicant was sentenced for one offence of attempted armed robbery. He received a sentence of 5 years and 11 months imprisonment, with a non-parole period of 3 years and 6 months. His co-offender was sentenced on that offence as well as well as three other offences of robbery, aggravated enter dwelling and larceny. He received an aggregate sentence of imprisonment of 9 years and 6 months with a non-parole period of 7 years, 1 month and 15 days. Mr Kelly contended that an examination of the aggregate sentence imposed on his co-offender by reference to the indicative sentences meant that only 2 years of the sentence imposed on the co-offender was referable to the common offence. Mr Kelly relied on the principles derived from Postiglione to contend that the sentencing judge was required to have regard to the periods to be served solely in relation to the common offence when applying the parity principle. 9. Beech Jones J observed the following in Kelly v R at [26]-[30] regarding the principles to be derived from Postiglione: "26 By a majority the High Court upheld Postiglione's appeal (Dawson, Gaudron and Kirby JJ; McHugh and Gummow JJ dissenting). The judgments of the majority can be taken as establishing two related principles. First, in comparing two or more sentences for the purposes of applying the parity principle all the component part of the sentences must be compared, not just the head sentence (at 302 per Dawson and Gaudron JJ). Second, the fact that the application of the totality principle has resulted in one offender receiving a lesser sentence for a common offence or receiving extra gaol time for a common offence is not a complete answer to a claim by another offender that he or she has a justifiable sense of grievance (at 304.5 per Dawson and Gaudron JJ; 343 per Kirby J; cf McHugh J at 314 and Gummow J at 326; see Bell v R [2008] NSWCCA 206 at [37] per Price J; 'Bell'). 27 However, it is important to note that in determining whether Postiglione had a justifiable sense of grievance arising from the sentence imposed on Savvas, Kirby J on the one hand and Dawson and Gaudron JJ on the other adopted different approaches. Kirby J found that the difference between the extra time that each of Postiglione and Savvas were due to serve in custody for their common offences was 'offensive to the sense of justice' (at 343). Dawson and Gaudron JJ accepted that a comparison of the 'extra period' served by each of Postiglione and Savvas for the common offence was the 'real punishment' they suffered such that a 'due proportion' between their sentences could not be determined without 'taking it into account'. However, their Honours held that that was not the only matter to consider (at 303.2). Instead, as the sentences were set having regard to the previous (unrelated) sentences that both were serving, their Honours determined that the 'proper course … is to have regard to the total effect of the sentences imposed on them, not merely the period by which their prior sentences were increased' (at 303.8). Their Honours continued (at 303 - 304): 'The aggregate of the sentences imposed on Savvas is fifty years. Putting aside the question of parole, his sentence for the conspiracies to which he and Postiglione were parties operates so that he will spend a total of thirty years and ten months in prison. Or to put the matter another way, the total time he will spend in prison amounts to a little more than three-fifths of the aggregate of his sentences. Postiglione, on the other hand, was serving a sentence of twelve years and received a further sentence of eighteen years. Again leaving aside the possibility of parole, the consequence is that he will spend twenty-four years and two months in prison, or just over four-fifths of the aggregate of his sentences… ….. the difference between the effective total sentences - thirty years ten months in the case of Savvas, twenty-four years two months for Postiglione - and the different proportions that they bear to the aggregate sentences - three-fifths and four-fifths respectively - are, in our view, such as to give rise to a 'justifiable sense of grievance'. (emphasis added)' 28 The figure of 30 years and 10 months referred to in this passage is to the sum of the 5 years and 10 months that Savvas had already served for his unrelated offence at the time he was sentenced for the two conspiracies he entered into with Postiglione and the further 25 years he received for those offences. The fraction three-fifths is a reference to the ratio of that number to 50 years being the sum of the total sentences imposed on Savvas for the unrelated offence of 25 years and the sentence of 25 years he received for the conspiracies he entered into with Postiglione (see [23]). 29 The figure of 24 years and 2 months referred to in this passage is to the sum of the 6 years and 2 months that Postiglione had already served for his unrelated offence when he was sentenced for the two conspiracies he entered into with Savvas and the 18 years he received for those offences. The fraction of 'just over four-fifths' is a reference to the ratio of that number to 30 years being the sum of the total sentences imposed on Postiglione for the unrelated offence of 12 years and the sentence of 18 years he received for the conspiracies he entered into with Postiglione (see [22]). 30 Thus, the conclusion of Dawson and Gaudron JJ that there was a breach of the parity principle was not reached by comparing the extra period in custody that each of Postiglione and Savvas received as a consequence of committing the two conspiracies they entered into with each other. That was considered but only as an indicator that something was askew. Instead, Dawson and Gaudron JJ considered all the components of the sentences they received for the common offences and the sentences they were serving when they were sentenced for the common offences. The ultimate conclusion that there was a breach of the parity principle flowed from the very different application of the totality principle to each offender at the time they were both sentenced for the common offences. Savvas received a far more generous benefit from its application than Postiglione. It was this differential which led to the conclusion that Postiglione had a justifiable sense of grievance." 1. Beech-Jones J went on to conclude his analysis of Postigione as follows at [31]-[32]: "31 Two matters should be noted. First, the analysis of Dawson and Gaudron JJ has no application to a case such as this where a co-offender such as Steven Kelly receives the benefit of the application of the totality principle because he committed multiple offences and another offender, such as the applicant, is only sentenced for the common offence. 32 Second, it follows that Postiglione is not authority for the general proposition that a justifiable sense of grievance is established by merely identifying a substantial difference between the extra sentences that are served for the commission of a common offence by two equally culpable offenders where either both or one are also imprisoned for other unrelated offences. It was only Kirby J in Postiglione who approached the parity argument in that way and that was only in a context where both offenders were serving sentences for prior unrelated offences." 1. His Honour held that the correct approach where one offender has been sentenced for multiple offences and the applicant has only been sentenced on the common offence is that the "actual" amount served by the co-offender can be taken into account but it is not determinative of a parity issue. As his Honour observed at [40]: "It follows that the applicant's contention that a comparison of the 'actual effect' of the co-offender's sentence for the common offence with the applicant's sentence demonstrates a lack of parity must be rejected. That is a matter which must be taken into account and it may, but not necessarily will, indicate that something is askew. However, consistent with Ayik and El-Helou, what must ultimately be considered is all the components of the sentence imposed on the co-offender including the facts and circumstances of the related and unrelated offences." 1. Similar statements had earlier been made in Ayik v R [2013] NSWCCA 119 and El-Helou v R [2014] NSWCCA 209. 2. In Ayik v R the applicant's co-offender had an additional offence to the common offence and the sentencing judge partially accumulated the additional sentence. The applicant submitted that the sentencing judge had not adequately taken into account totality when addressing parity. On this issue, Hoeben CJ at CL commented at [36]-[37] that: "In the 'proportionality' submission, what the applicant has done is to focus upon the additional time in custody which C would spend as a result of the sentence imposed for the offence which they have in common. Another and more logical way of approaching the structure of the sentences imposed on C is that in accordance with the principle of totality, her Honour determined that only six months of the sentence imposed for the first and lesser count should be served by C, with the remainder of the sentence for that first count being subsumed by the sentence imposed for the second, more serious, count. In other words, her Honour concluded that a level of partial accumulation of six months was sufficient to reflect the additional criminality of the less serious offence in the first count. It is also of significance that the applicant's 'proportionality' submission in relation to the structuring of the sentences imposed on C ignores that there is a subsequent period of parole of 2 years, solely attributable to the offence in the second count. In Henderson v R [2012] NSWCCA 65 the Court observed: '32 ... The accumulation of a sentence, whether partially or wholly, upon another sentence does not mean that it is any less than what it is. The analysis engaged in by the Crown ignores the rationale for the principle of totality: see, for example, Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63. This was a matter that the judge was required to consider after first determining the sentences for the individual offences: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [45]. 33 The Crown's analysis also ignores the fact that there is a subsequent period of 18 months during which the applicant will be on parole. As Simpson J observed in R v Moore [2012] NSWCCA 3 at [38], 'a period of parole is in itself a sentence'." 1. Similarly, in El-Helou v R, the applicant was sentenced for only one offence whereas the co-offender was sentenced on more than one. At [30], Macfarlan JA observed that: "In comparing the sentences imposed upon the appellant and the co-offender regard must be had to the actual period that each is to serve by reason of his commission of the common offence (Postiglione at 301-2, 303 and 343). This does not mean that there should be a simple comparison between the appellant's head sentence of 12 years imprisonment and the additional period of 1 year and 9 months that the co-offender is required to serve by reason of the common offence. Such a 'merely arithmetical comparison' would not be appropriate (Tran v The Queen [2006] NSWCCA 266 at [24] and see Ayik v R [2013] NSWCCA 119 at [33]). Nevertheless, the limited length of the additional sentence imposed upon the co-offender is a significant matter to consider in assessing whether the appellant would have a justifiable sense of grievance by reason of the sentences imposed upon him and the co-offender (see R v Freeman [2005] NSWCCA 460 at [20]-[23]; Bell v The Queen [2008] NSWCCA 206 at [37]-[40])." 1. Having regard to these decisions, I cannot accept the applicant's contention that the sentencing judge was required to have regard to the actual terms of each sentence when applying the parity principle, although it was a relevant factor. 2. I have had regard to the actual terms to be served by both offenders as well as the differences as between the two offenders. I am satisfied that even having regard to the concurrence of six months that Mr Hijazi received, a comparison of the sentences is such as to not give rise to a justifiable sense of grievance. ORDERS 1. The orders I would propose are: 1. Leave to appeal granted. 2. Appeal dismissed. Amendments 17 November 2020 - [64] word "not" added between "to" and "give" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2020