Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Newman v R [2012] NSWCCA 69 Hearing dates: 17 April 2012 Decision date: 23 April 2012 Before: Basten JA at [1] Blanch J at [9] Beech-Jones J at [31] Decision: (1) Grant leave to appeal. (2) Allow the appeal to the extent that the sentence on count 2 of a non-parole period of two years and nine months with a balance of term of one year and nine months should commence on 28 July 2010. (3) In consequence he will be eligible for parole on 27 April 2013 and the total sentence will expire on 27 January 2015. Catchwords: CRIMINAL LAW - sentencing - disparity of sentence with co-offender - whether difference in charges precludes application of equality principle CRIMINAL LAW - sentencing - whether sentence excessive - whether extent of accumulation excessive Legislation Cited: Crimes Act 1900 (NSW) Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; 86 ALJR 36 Jimmy v Regina [2010] NSWCCA 60; 77 NSWLR 540 Jones v The Queen [1993] 67 ALJR 376 Lowe v The Queen [1984] HCA 46; 154 CLR 606 OM v R [2009] NSWCCA 267 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1996-1997) 189 CLR 295 R v Armstrong [2001] NSWCCA 77 R v Kairouz [2005] NSWCCA 247 R v Taudevin (1996) 2 VR 402 Stanton v Regina [2008] NSWCCA 326 Category: Principal judgment Parties: Darryl Lee Newman (Applicant) Regina (Respondent) Representation: Counsel: I Nash (Applicant) F Veltro (Respondent) Solicitors: B Sandland (Applicant) S Kavanagh (Respondent) File Number(s): 2010/25092 Decision under appeal Jurisdiction: 9101 Citation: Regina v Darryl Lee Newman Date of Decision: 2010-12-20 00:00:00 Before: Woods ADCJ File Number(s): 2010/25092 Judgment 1BASTEN JA: In the early hours of 23 January 2010, the applicant, a co-offender (David Chatfield) and others were engaged in a fracas at the house in Bundy Street, Gilgandra, occupied by David Prout, his cousin Christopher Prout and Christopher's girlfriend. 2The first confrontation occurred on the front lawn of the house, apparently between the applicant and David Prout. Having been punched a number of times, Mr Prout retreated into the house, being followed by the applicant and co-accused, Chatfield. The reason for the original confrontation did not appear from the statement of agreed facts tendered at the sentencing of each of the offenders, nor from other material. The applicant was charged with common assault, based on the punches administered to David Prout outside the house. As indicated in more detail by Blanch J, both he and Mr Chatfield were charged with offences of demand money with menaces, in each case in company with the other, in respect of David and Christopher Prout respectively. Each faced a separate and more serious charge in respect of the events inside the house. In the case of the applicant, it was a charge of assault with intent to rob David Prout, using corporal violence, contrary to s 95(1) of the Crimes Act 1900 (NSW). In the case of Mr Chatfield, it was an offence of robbery of Christopher Prout whilst armed with an offensive weapon, namely a glass bottle, contrary to s 97(1) of the Crimes Act. The offence under s 95(1) carried the same maximum penalty (20 years imprisonment) as did s 97(1). Neither is subject to a standard non-parole period. 3A challenge based on disparity of sentences in the circumstances of this case gives rise to a number of difficulties for the applicant. First, in relation to the two offences with which he and Mr Chatfield were jointly charged, they received identical sentences. Secondly, he was charged with an additional offence, although the sentence for that offence was to be served entirely concurrently with one of the offences of demand money with menaces. Thirdly, the third and most serious offence in each case was not an offence committed jointly, nor was it a contravention of the same provision of the Crimes Act, but in fact each received the same sentence. 4There have, in past years, been doubts as to how precisely a principle of disparity might apply in such circumstances. When the principle, being "a reflection of the notion of equal justice", was articulated in Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610-611 (Mason J), it operated in respect of co-offenders jointly indicted for the one offence. That a reference to co-offenders was not so limited appeared from the later decision of the High Court in Jones v The Queen [1993] 67 ALJR 376. That case suggested that such a principle might operate in circumstances where one offender was charged with supplying a drug, the co-offender being a recipient. In OM v R [2009] NSWCCA 267 I referred to a number of other cases in which the concept of a 'co-offender' had been treated as extending beyond those jointly charged with the same offence: "[10] ... In R v Armstrong [2001] 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. [11] In Stanton v Regina [2008] 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. [12] 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." 5The Court returned to the issue in Jimmy v Regina [2010] NSWCCA 60; 77 NSWLR 540. After an exhaustive review of the case law, Campbell JA concluded at [202]: "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." 6The issue has been resolved by the High Court in Green v The Queen; Quinn v The Queen [2011] HCA 49; 86 ALJR 36. The offenders in that case had been participants in a common criminal enterprise involving the cultivation of a significant number of cannabis plants. The majority (French CJ, Crennan and Kiefel JJ), stated at [30]: "In Lowe v The Queen and in Postiglione v The Queen, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged." 7There are factors in the present case which preclude intervention by this Court. The equality of the overall sentencing in each case, the equal sentences imposed in respect of the two joint offences, the equal sentences imposed in respect of the two most serious offences, combined with the fact that the sentencing judge dealt with each offender, fully conscious of the norm of equality, militate against such intervention. In effect, the applicant must establish that he was entitled to a lesser sentence than Mr Chatfield, despite the fact that he was the instigator of the fracas (so far as appears from the statement of agreed facts) and despite the fact that he was charged with an additional offence, albeit the least serious of the four counts. The only factors militating clearly in favour of a lesser sentence in his case are the greater criminal record of Mr Chatfield and some personal circumstances of the applicant, to which Blanch J refers below. They do not, however, give rise to the justifiable sense of grievance required for intervention on this ground. 8The second ground asserted that the sentencing of the applicant resulted in a manifestly excessive sentence in respect of the offence under s 95, or an excessive period of imprisonment due to the degree of accumulation. For reasons explained by Blanch J, the submission should be accepted, on the limited basis that the extent of the accumulation of sentences was inappropriate in the circumstances. The fact that the sentencing judge considered it appropriate to make the charge relating to the assault which occurred on the front lawn wholly concurrent with the first of the three counts arising from the conduct inside the house demonstrates that he approach the matter as involving one episode of criminality. Consistently, the conduct inside the house warranted a degree of accumulation of sentences, but not to the extent of 12 months, given the overall minimum period of imprisonment. I agree with the orders proposed by Blanch J. 9BLANCH J: The applicant appeals against sentences imposed at Dubbo District Court by Acting Judge Woods on 20 December 2010. The applicant entered pleas of guilty to the following four counts: Count 1: Common assault on David Prout contrary to s61 Crimes Act 1900 which has a maximum penalty of two years imprisonment; Count 2: Assault with intent to rob David Prout contrary to s95(1) Crimes Act 1900 which has a maximum penalty of two years imprisonment; Count 3: Demand money with menaces from David Prout contrary to s99(2) Crimes Act 1900 which has a maximum penalty of 14 years; Count 4: A further count of demand money with menaces from Christopher Prout. 10The applicant was sentenced as follows: As to count 1: A fixed term of nine months imprisonment from 28 January 2010; As to count 3: A total term of 18 months with a 12 month non-parole period also to date from 28 January 2010; As to count 4: A total term of 18 months with a non-parole period of 12 months to date from 28 July 2010; As to count 2: A total term of four years and six months with a non-parole period of two years and nine months to date from 28 January 2011. The total sentence was consequently a sentence of five years and six months with a non-parole period of three years and nine months. 11The application for leave to appeal against sentence asserts firstly that there is a justifiable sense of grievance arising out of the disparity in the sentence the applicant received and the sentence received by a co-offender Chatfield. It is secondly asserted the sentence was manifestly excessive. 12The sentencing judge summarised the facts as being that the victim David Prout lived with his cousin in Bundy Street, Gilgandra. He came home in the early hours of the morning and was sitting on his front lawn. He heard a group of people coming down the street and recognising one, he called out to say hello. He became aware of some of these people approaching him and the applicant came up and punched him a number of times. A co-offender Carr also punched the victim twice to the face. The victim went into the house and called for help from his cousin Christopher Prout but the applicant and the co-offender went into the house. 13Inside the house the co-offender Chatfield made threats to hit the victim with a bottle. At one stage the applicant while punching the victim to the face said "Where's your money, give us your wallet." The co-offender went out with one of the victims and they got some money. In the meantime the applicant was still demanding money from David's wallet and asking for his wallet while punching him. The applicant demanded money from both victims and threw more punches. 14Christopher Prout's girlfriend was able to dial 000 and the applicant and co-offender left. As a result of the assault Christopher Prout sustained a cut to the inside of his lip. David Prout was treated at the hospital for superficial grazing, a swollen face and some lacerations. 15The pre-sentence report in respect of the applicant indicates that he had consumed two cartons of beer and intravenously injected fifty dollars worth of amphetamine prior to the commission of the offences. The report also confirms his long history of abuse of alcohol and illicit drugs. 16The first ground of appeal is that "he has a justifiable sense of grievance arising out of the disparity between the sentence he received for the offence under s95(1) and the sentence received by Chatfield for the offence under s97." 17The co-offender Chatfield was sentenced in respect of the two demand money with menaces charges and a charge of armed robbery arising out of the same incident. He was not charged with common assault. He was sentenced to a total sentence of five years with a non-parole period of three years and nine months but that sentence was to date from 7 July 2010. He had, in fact, been in custody since 4 February 2010 having had his parole revoked. At the time of these offences he had breached his parole, it had been revoked and a warrant had been issued for his arrest. Accordingly, the sentence for these offences was largely cumulative on the revocation of his parole. 18In considering the question of disparity in Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301 in the joint judgment of Dawson and Gaudron JJ it was said: "However, the parity principle, as identified and expounded in Lowe v The Queen, 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'." 19At page 309 McHugh J said: "If a judge wrongly fails to give effect to the parity principle, an appellate court will intervene to correct what is an error in sentencing principle. In Lowe v The Queen, Gibbs CJ, with whom Wilson J agreed, said that an appellate court should intervene where 'the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done'. Mason J stated that an appellate court is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance. Dawson J, with whom Wilson J also agreed, was of the view that '[t]he difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice'." 20At page 323 Gummow J said: "The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done. In R v Taudevin (1996) 2 VR 402 at 404, Callaway JA said, in a passage with which I agree: 'The important words are 'manifestly', 'justifiable' and 'objective'. There is much to be said for the view that all three requirements are variations on the same theme, ie that only a manifest discrepancy in the sense of a difference that is clearly excessive will satisfy the other two requirements." 21And at page 335 Kirby J said: "The removal of serious and unjustifiable disparities in the treatment of like cases is a legitimate goal of the administration of criminal justice." 22It is evident from these authorities that a simple disparity is not enough and in order to attract appellate intervention it must be categorised as a manifest discrepancy in the sense of a difference that is clearly excessive. Moreover, in R v Kairouz [2005] NSWCCA 247, it was said this Court would reserve a discretion not to intervene or intervene to only a limited degree where it is apparent that the sentence under comparison was unjustifiably lenient - see also Green v The Queen [2011] HCA 49 at 33. 23In considering the respective cases of Chatfield and the applicant, it is noted that at the time of the offence Chatfield was 23 and the applicant was 24 years of age. Chatfield had a much more significant criminal history involving a number of charges of dishonesty and assault. On 29 July 2009 at Dubbo District Court a sentence of 16 months and six days with a non-parole period of ten months and four days from 13 January 2009 was confirmed on an appeal from the Local Court. On 18 December 2009 his parole was revoked and a warrant issued for his arrest which was executed on 4 February 2010. In his case the pre-sentence report said that his behaviour in custody was consistently poor and disruptive and he had been abusive to staff and tested positive to drugs. In his case the report is very pessimistic as to his prospects of rehabilitation. 24By comparison although the applicant has a criminal history, it is not as significant as that of Chatfield. The pre-sentence report noted he had formed a new relationship and a daughter was born shortly after his arrest. The report says that because of this relationship there may be some impetus for change, particularly in relation to his abuse of alcohol and drugs. 25In considering the question of disparity the sentencing judge correctly identified the applicant as the person who initiated an assault on one of the victims and who went into the house accompanied by the co-offender who at one stage sought to restrain the applicant. The co-offender was not charged with common assault and of his three offences one was armed robbery rather than assault with intent to rob. His total sentence was the same as that of the applicant, the difference being that Chatfield's sentence was cumulative on the balance of his parole. 26Bearing in mind the subjective and objective features of the case, I cannot conclude that any disparity was manifest. Accordingly, this ground of appeal fails. 27The second ground of appeal is that the sentence was manifestly excessive and this ground has been argued together with another ground of appeal added by leave asserting that the accumulation of the sentences has led to a total sentence which is excessive. 28In considering these grounds, it is noteworthy that all offences were committed as part of the one escapade when the applicant was well-affected by intoxicating liquor. Moreover, there is a clear distinction in the subjective cases of the two offenders relating to their criminal histories and prospects of rehabilitation. Although not giving rise to a disparity, these different circumstances might be expected to give rise to some reduction in the sentence of the applicant and I believe some reduction is justified. 29The applicant has submitted an affidavit indicating he has enrolled in courses while in gaol addressing his emotional behaviour and drug use. He has worked for five months packaging dog food and he intends to join his partner and daughter in Forster on release and obtain work in carpentry. 30I do not believe the individual sentences are in themselves manifestly excessive. It is rather the accumulation of the sentences that causes the overall sentence in the applicant's case to be excessive. To achieve an appropriate total sentence, I propose the following orders: (1) Grant leave to appeal. (2) Allow the appeal to the extent that the sentence on count 2 of a non-parole period of two years and nine months with a balance of term of one year and nine months should commence on 28 July 2010. (3) In consequence he will be eligible for parole on 27 April 2013 and the total sentence will expire on 27 January 2015. 31BEECH-JONES J: I have had the benefit of reading the judgment of Blanch J. Subject to one brief comment, I agree with His Honour's reasons. All of the applicant's offences were committed within a relatively short space of time and were part of the same drunken drug fuelled incident. In my view the basis for intervention in respect of the accumulation of the sentence imposed on him for the offence under s95 of the Crimes Act 1900 was the a failure of the sentencing judge to give proper weight to the totality principle when fixing the start date for that offence (Pearce v The Queen (1998) 194 CLR 610, per McHugh, Hayne and Callinan JJ at 624, [45]). 32I agree with the orders proposed by Blanch J. ********** 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: 23 April 2012