Thaver v R [2011] NSWCCA 106

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Thaver v R [2011] NSWCCA 106 Hearing dates: 24 March 2011 Decision date: 10 June 2011 Before: McClellan CJ at CL, Blanch & Davies JJ Decision: (1) Leave to amend to seek leave to appeal against the sentences imposed by Judge Knight refused. (2) Leave to appeal against the sentences imposed by Judge McLoughlin granted. (3) The additional term ordered by Judge McLouglin of 15 months imprisonment commence on 10 March 2013 and expires on 9 July 2014. On this sentence order that the Applicant be released to parole on 9 March 2013. (4) The appeal is otherwise dismissed. Catchwords: CRIMINAL LAW - sentence - parity principle - 3 offences - co-offender sentenced for all 3 by one Judge - Applicant sentenced for 2 offences by second judge - Applicant sentenced for third offence by third Judge - overall disparity of 3 months - no justifiable sense of grievance. Legislation Cited: Crimes Act 1900 Cases Cited: Lowe v R (1984) 154 CLR 606 Category: Principal judgment Parties: Krien Thaver (Applicant) Regina (Respondent) Representation: I McLachlan (Applicant) J Dwyer (Respondent) Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/73734 Decision under appeal Date of Decision: 2010-05-26 00:00:00 Before: McLoughlin DCJ File Number(s): CCA 2009/73734

Judgment 1McClellan CJ at CL: I agree with Davies J. 2Blanch J : I agree with Davies J. 3Davies J : On 18 March 2010 the Applicant pleaded guilty to a charge of robbery in company, contrary to s 97(l) Crimes Act 1900, that took place on 31 December 2007. The victim of the robbery was a taxi driver in whose taxi the Applicant and his co-offender had travelled. 4He was sentenced by Judge McLoughlin to a period of imprisonment for 2 years with a non-parole period of 9 months. The sentence was to commence on 10 June 2012 with the non-parole period expiring on 9 March 2013. The Applicant appeals only on the basis that the sentencing judge was said to have erred in breaching the principle of parity. 5The issue of parity is not a straight forward one because it involves other offences committed both by the Applicant and the co-offender. Further, it arises in a situation where the co-offender was sentenced for all the joint offences (together with another one where he alone was involved) by one judge (Judge Graham) and the Applicant was sentenced for 2 of the offences committed with the co-offender by another judge at an earlier time (Judge Knight).