Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McMullen v Regina [2013] NSWCCA 261 Hearing dates: 19 September 2013 Decision date: 12 November 2013 Before: Latham J at [1] Schmidt J at [2] Beech-Jones J at [81] Decision: 1. Leave to appeal granted. 2. Appeal dismissed. Catchwords: CRIMINAL LAW - appeal - leave to appeal against severity of sentence - parity - discounts - no error established - parity with co-offenders - no disparity in sentences - leave to appeal granted - appeal dismissed Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Firearms Act 1996 Cases Cited: Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145 England v R; Phanith v R [2009] NSWCCA 274 Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 R v Tran [1999] NSWCCA 109 Wong v R [2001] HCA 64; (2001) 207 CLR 584 Category: Principal judgment Parties: Chase Andrew McMullen Regina Representation: Counsel: Ms N Carroll (Applicant) Ms H Wilson (Crown) Solicitors: M Sten - George Sten & Co Solicitors (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Crown) File Number(s): 2011/29340 Publication restriction: None Decision under appeal Date of Decision: 2012-11-29 00:00:00 Before: Quirk DCJ File Number(s): 2011/29340 Judgment 1LATHAM J: I agree with Schmidt J. 2SCHMIDT J: The applicant seeks leave to appeal against the severity of sentences imposed upon him by Quirk DCJ on 29 November 2012 for three offences committed in December 2010 and January 2011, to which he entered pleas of guilty at the commencement of the trial, before the jury was empanelled. 3After certain discounts for his pleas, the total term of imprisonment imposed on the applicant was 6 years, with a minimum non-parole period of 4 years commencing from 28 July 2011 and expiring on 27 July 2014 and a balance of term of 2 years expiring on 27 July 2017. The individual sentences imposed were: Count 1 - accessory before the fact to robbery armed with a dangerous weapon - s 97(2) and s 346 of the Crimes Act 1900 - maximum penalty 25 years - sentenced to: Total term of 4 years, with a minimum non-parole period of 2 years, 6 months commencing from 28 July 2011 to expire on 27 January 2014 and a balance of term of 1 year, 6 months expiring on 27 July 2015. Count 2 - conspiracy to commit robbery armed with a dangerous weapon - common law - penalty at large - maximum penalty for statutory offence 25 years under s 97(2) - sentenced to: Total term of 5 years, 6 months, with a minimum non-parole period of 3 years, 6 months commencing from 28 January 2012 to expire on 27 July 2015 and a balance of term of 2 years expiring on 27 July 2017. Count 3 - possess unauthorised pistol - s 7(1) Firearms Act 1996 - maximum penalty 14 years - 3 year standard non-parole period - sentenced to: Total term of 3 years, 5 months, with a minimum non-parole period of 2 years, 3 months commencing from 28 January 2012 to expire on 27 April 2014 and a balance of term of 1 year, 2 months expiring on 27 June 2015. 4Two further offences were taken into account in the sentences imposed for counts 2 and 3 under a Form 1: Count 2 - steal motor vehicle - s 154F of the Crimes Act 1900 - maximum penalty 10 years. Count 3 - possess a firearm, a Gap self-loading pistol - s 7(1) of the Firearms Act 1996 - maximum penalty 14 years. 5While the grounds of appeal as originally pleaded raised a complaint of manifestly excessive penalty for count 1, the amended grounds of appeal finally pressed were: 1. In relation to Count 1, the court has erred in not giving effect to the principles of parity. The disparity between the sentences should have been substantially greater. 2. The applicant's participation was found to be equal to that of his co-conspirator Jamie Oatley, but the sentence imposed on the applicant was significantly greater. The court has erred in not giving effect to the principle of parity. 6The facts were agreed. The applicant gave evidence, as did his uncle and a psychiatrist's report was tendered, as well as letters from his uncle and girlfriend, a reference from a former employer, who described him as a hard and enthusiastic worker, recordings of telephone conversations between the applicant and a co-offender and the applicant's case notes and records. The sentencing judgment 7At trial there was a dispute as to the appropriate discount for the pleas which the applicant had entered. The applicant had been arraigned on an indictment which charged him with 14 counts. The trial was estimated to take about six weeks. After legal argument, one count was amended and pleas were then entered to the three counts pressed. The Crown conceded that in the circumstances the applicant was entitled to a reasonably significant discount, which her Honour determined should be 20% for count 1 and 15% for counts 2 and 3. 8Her Honour explained that count 1 related to a robbery at the West Pennant Hills Sports Club, during which two co-offenders, Justin Bourke and an unidentified male, who were armed with pistols, stole some $87,064 after staff members were threatened with a Glock pistol. The applicant provided the motor vehicle used in that robbery, a stolen Mitsubishi Lancer, which he knew was to be used in the robbery. 9The conspiracy the subject of count 2 involved the stealing of a Mitsubishi Evolution, the purchase of various items, such as balaclavas, hooded jumpers and track pants and a high speed chase, when police sought to arrest the applicant and a co-offender. 10Her Honour noted the applicant's evidence as to his role in this conspiracy to be that he had agreed with the co-offender, Oatley, while in Wellington jail, that he would help him on release. They had become very close whilst in the same pod, which her Honour considered understandable, given the applicant's youth and his lack of contact or family support during his five years in custody. 11Her Honour noted the applicant's evidence that because of his known expertise with stealing motor vehicles, which she observed was evident from the applicant's criminal history, he agreed to steal a car for the purposes of a robbery to be conducted by Oatley and some of his friends. He also agreed to buy various pieces of clothing and other items found on his arrest, because they had no money. That was consistent with the transcripts of the recordings of conversations between the applicant and Oatley. 12The firearms offence the subject of count 3 related to a bag found on the applicant's arrest to contain a Glock pistol, with an attached magazine containing 17 (9mm) Luger rounds and a Gapkal 8 military pistol, with an attached magazine which contained no ammunition. The bag also contained balaclavas, packets of washing up gloves, hooded jumpers, track suit pants, one litre of turpentine, one litre of kerosene, three pairs of shoes, bolt cutters, mobile phones and $5,080 cash. The Crown accepted that there was a reasonable doubt as to whether it was the applicant or his co-offender who had brought the firearms found in the joint possession of both offenders, to the scene. 13Her Honour noted that the applicant was cross-examined vigorously about his assertion that he did not intend to participate in the actual robbery and accepted that misplaced loyalty to his friend was the motivation for participating in this conspiracy. Her Honour considered that the applicant's evidence was for the most part straightforward and unembellished, but could not accept his evidence that he had no intention of participating in the actual robbery. 14Her Honour did accept the applicant's evidence, which was consistent with other evidence, that Oatley collected the firearms in a bag from his home and placed them on his lap and although he did not see the firearms, Oatley had informed him that there were firearms in the bag. Her Honour thus accepted that while the firearms belonged to Oatley, contrary to the applicant's case, the participation of each of the co-conspirators was equal, as the Crown submitted. 15Her Honour observed that the applicant was aged 26 at the time of the offences and 28 on sentencing. His parents had separated when he was young and he had not known his father, who he knew had perpetrated domestic abuse and violence against his mother in his early years, forcing them to relocate and change telephone numbers over a period of several years, in order to escape from his harassment and violent actions. His mother entered a new relationship when he was aged about 8 or 9, from which three younger half siblings resulted. He had enjoyed going to work with his stepfather, who worked in the excavation industry, but this relationship broke up when he was in his late teens. The applicant had since fallen out with his mother over his re-imprisonment and other issues. He had no contact with his brother and sisters. 16In 1999 the applicant was diagnosed with attention deficit disorder and conduct disorder and was placed on medication. He was referred to the St Vincent's adolescent care program, a residential program for young males with serious behavioural difficulties. He resided there for approximately 12 months prior to his arrest on earlier matters. He responded to that highly structured program and successfully completed year 10. He had employment in the past as a roof tiler for 12 months, which he enjoyed, as a labourer and an electrician's assistant. He had no post-high school education or trade qualifications. 17At the age of 18 he was imprisoned in June 2005 for an offence of robbery in company while armed with a dangerous weapon, for which he received a total term of 7 years, 6 months. He was released in June 2010 after serving his non-parole period of 5 years. He had spent all but 10 months of his adult life in custody. He lived with his mother after she collected him from jail, but after a few days she left him and moved away to northern New South Wales. His primary supporter since then was his maternal uncle, who gave evidence. 18The applicant was exposed to a criminal subculture when growing up and had been desensitised to crime, given his involvement from age 15. In the past he had found it easier to cope in custody without emotional ties and had discouraged any visits. He considered his fellow inmates as his family. 19In September 2010, while at liberty, he formed a relationship with his partner, the sister of an old friend. She is three years older than him and has a daughter, then aged 7. He had known her for over 10 years and they had been living together. He had formed a strong emotional attachment to her and her daughter, which he believed to be reciprocal. He reported that she was a stable person with a healthy lifestyle. In hindsight he was very self-critical for his failure to recognise and respond appropriately to the relationship she had offered him. The letter she wrote was strongly supportive of the applicant, but he was uncertain of his future relationship with her, believing that it would depend on the length of his sentence. 20Her Honour noted that the applicant told the psychologist, Ms Robilliard, that in committing the offences he was helping out mates, one of whom he had known since childhood. The psychologist noted that the applicant bore the hallmarks of institutionalisation, describing a set of maladaptive behaviours invoked by the pressures of living in an institutional setting. 21Her Honour observed that the applicant had spent critical years in custody, when most young people in the community were acquiring vocational and other skills, training and experiences which enabled them to become independent and self sufficient. He had minimal family support post-release, except for the relationship he was developing with his uncle and his family prior to his arrest. The psychologist noted that the most positive, yet confusing experience of his period in the community was the formation of his relationship. His primary motivation for changing his behaviour was the possibility of preserving and re-negotiating a relationship with his partner. The psychologist also considered that the applicant showed some signs of reconsidering his current attitudes and values in relation to the offers of professional assistance. 22The psychologist found the applicant to be cognitively intact and of sound average intelligence. He was a tall, athletically built young man of good appearance, who she considered could benefit from vocational training and further education, as well as individual psychotherapy, to isolate causative factors of his criminal lifestyle. Her Honour also noted that the applicant had expressed some doubts as to whether the counsellors and psychologists employed by the Department of Corrective Services were "really on his side". 23The applicant had told the psychologist that since his return to remand in January 2011 he had gained some insight into his antisocial thinking, attitudes and behaviour and was distressed and disturbed by his circumstances. The psychologist considered that his attitudes, values and behaviour were indicative of thoroughgoing institutionalisation and an antisocial personality disorder. 24Her Honour considered that he was at a crossroads situation. She referred to Mr Wisnewski's pre-sentence report, which observed that the applicant had expressed no remorse for his offending and said that he could steal any car. There were no financial motivations or drug or alcohol issues and the applicant considered that rehabilitation is a personal choice, but did not see the benefit in programs. Mr Wisnewski considered him to have little insight and that the applicant did not equate his actions as being directly linked to a victim. Her Honour observed that that accorded with his evidence at the sentencing hearing, that he did not think of the consequences of his actions, when committing the offences. 25In the pre-sentence report the applicant was described by Mr Wisnewski as arrogant, something which her Honour observed was not noted by the psychologist and an impression that she did not form of him. Her Honour considered that the applicant was not arrogant, but rather someone who had adapted and been forced to adopt protective mechanisms during his long periods of incarceration at an impressionable and vulnerable age. 26The applicant did tell Mr Wisnewski that he would like to change his behaviour for the purpose of his relationship. Her Honour also noted that he told the psychologist that he found it easier to acquire money through illegal means, but that he was making a concerted effort to behave in prison, unlike his behaviour during earlier periods of incarceration. Her Honour considered that his desire to rehabilitate himself and redirect his future had been borne out by corrective service records, which demonstrated that during earlier periods of incarceration he was punished for numerous breaches, for a variety of matters, one of them being a failed urine test. 27The psychologist assessed the applicant to be at high to moderate risk of re-offending. Her Honour noted the applicant's evidence that his attitude to offending had completely changed because of his relationship; that he did not like custody; that he was now standoffish with other prisoners, trying to work and play sport to keep himself occupied, as well as working at the metal shop and developing a number of skills. The applicant also said he now liked working and that he would participate in programs, if asked. 28Her Honour also noted his explanation for the failed urine test to be an inability to produce urine in front of other prisoners and efforts to address that issue via letters sent to the Attorney General. There was no suggestion that the applicant is a drug user or that this failure had anything to do with illicit drug taking. 29Her Honour noted the close relationship developed with his uncle after his release from custody in 2010 and the support and accommodation which his uncle offered him on release. Her Honour found the applicant's uncle to be an impressive witness, whose evidence she accepted as truthful and objective. He described the applicant's mother as having a number of significant problems and attracting a lowlife crowd to her house, which he described as always being a place of conflict, whether it be over drugs, money or relationship issues and not the best place for a young mind to be nurtured. She noted the good relationship which the applicant had developed with his uncle, who considered that he had matured quite a lot and was becoming more family oriented, as a result of his relationship. His uncle also gave evidence that the applicant had expressed remorse to him and had been in tears as to how his offences had affected others, not just himself. 30His uncle had encouraged the applicant to be positive in custody and to plan for his future. He had offered him work and accommodation on release and hoped that he would become involved with his football club, where he would have an opportunity to meet and interact with a different group of associates and friends. 31Her Honour also noted the applicant's acknowledgement that his offences were very serious, but that he did not think they were serious at the time he had committed them, not then thinking of the consequences. She concluded that there was a marked difference in the applicant's behaviour; that he had expressed remorse; and had prospects of rehabilitation, although that conclusion had to be approached cautiously, given the psychologist's opinion. Nevertheless, her Honour accepted that the applicant intended to redirect his life and not to re-offend, but considered that rehabilitation would require the applicant receiving considerable assistance in custody, as well as in the community. 32Her Honour also considered the question of parity, referring to Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540. After referring to the Crown's case that parity with the co-offender Oatley was relevant to the sentence for counts 2 and 3, but with reservations, given the different charges and maximum penalties involved; the lesser discount which the applicant ought to receive for his plea; and the offenders' different subjective circumstances, her Honour concluded: "Although, of course, it is not impossible that strict parity may arise with co-offenders charged with different offences, I do not think Jimmy is authority for the proposition that it must follow, as seems clear from [203] of Campbell JA's judgment. What is sought to be achieved in parity, or proportionality principles, is justice before the law." 33Her Honour accepted that the question of rehabilitation had to be approached with caution, but that there had been remorse expressed; insight gained; a measure of maturity achieved in custody; relationships developed with his uncle and partner and their families; and a demonstrated change in attitude. Oatley, her Honour observed, had only very recently demonstrated any change in attitude. 34Her Honour also noted that both Oatley and the applicant had breached their parole by the commission of the subject offences. The balance of parole which was revoked for Oakley was a period of 8 months and 14 days and for the applicant, a period of 2 years, 3 months and 15 days. She also considered a significant difference between Oatley and the applicant to be that Oatley was convicted at Port Macquarie Local Court on 15 April 2012 of recklessly causing grievous bodily harm in company. This offence was committed in custody and he received a sentence of 12 months for that matter, with no parole period. 35Oatley was sentenced on 24 April 2012 for two offences: count 1 - possession of an offensive weapon whilst in company with intent to commit an armed robbery, which had a maximum penalty of 15 years, with no standard non-parole period. A charge of larceny of a motor vehicle was taken into account on a Form 1, the same matter to be taken into account on count 2 in the applicant's case. Count 2 in Oatley's case was possession of a Glock pistol without authorisation by licence or permit, the same charge as the applicant's count 3. Oatley pleaded guilty four months before the trial and was given a discount of approximately 15% for his plea. 36Her Honour noted that Oatley was approximately two years younger than the applicant, but that he had a somewhat more extensive criminal history and that in his case the sentencing judge was satisfied that there was a pattern of disobedience to the law involving offences of violence and dishonesty, that had commenced shortly after he turned 17. She considered that the applicant had more serious offences on his record, the most serious of which was robbery in company while armed with a dangerous weapon. She noted however that in Oatley's case a pattern of violence had continued even while in custody. 37She also noted that in Oatley's case, as to totality and the balance of parole, the sentencing judge concluded it to be appropriate to accumulate the sentences for the subject offences by 12 months. In the result Oatley was sentenced to: Count 1 - a non-parole period of 3 years and 4 months and a total term of 5 years, to commence on 28 January 2012, one year after he was arrested for the offence and taken into custody. Count 2 - a non-parole period of 33 months in a total term of 51 months to commence from the same date, 28 January 2012. 38As to the co-offender in relation to count 1, Justin Bourke, her Honour noted that he had been charged with two offences - robbery being armed with a dangerous weapon, namely a firearm, contrary to s 97(2) of the Crimes Act and possession of an unregistered firearm, and a pistol, contrary to s 36(1) Firearms Act, which has a maximum penalty of 10 years imprisonment. In addition, Bourke admitted his guilt in respect of four further offences, namely three offences of break, enter and steal contrary to s 112(1) of the Crimes Act and one offence of cultivate prohibited plant contrary to s 23(1)(a) of the Drug Misuse and Trafficking Act 1985. Those offences were committed in breach of a s 9 bond. 39Bourke's criminal history was described by the sentencing judge as 'not a significant record', which included possession of prohibited drugs, larceny, enter vehicle without consent of the owner, break, enter and steal, assault and robbery in company. Her Honour noted that Bourke had a long history of substance abuse, adjustment disorder and ADHD. He had good continuing support in the community including that of his sister, mother, stepfather and fiancée. It was concluded that he had reasonable prospects of rehabilitation. 40Bourke received a 25% discount for his plea, entered at the earliest opportunity. He was sentenced to a non-parole period of 2 years and 9 months to date from 11 May 2011, with a total term of 5 years and 3 months on count 1, taking into account the 4 offences of a Form 1. The starting point before discount was therefore 7 years. 41Her Honour noted the applicant's case that this offence fell within the lower category of offences of this kind, because the applicant was not involved in the actual planning; that his role was minor and not integral to the commission of the offence; that he provided the vehicle to use in the robbery; that while the situation was threatening, no actual violence was used; and that there were no bullets in a gun used by Bourke and no evidence of ammunition in the other weapon. 42Her Honour noted the Crown's concession that the applicant had a relatively minor role in this offence, although it submitted that his subjective features, including his more extensive criminal history and his breach of parole, pointed in the opposite direction. The Crown also relied on his prospects of rehabilitation. Its case was that given that Bourke was also being sentenced taking into account other significant offences, albeit they were old and given the applicant's relatively minor role, the sentence should be somewhat less than that of Bourke, despite the differences in their subjective features. 43Her Honour noted as to counts 2 and 3 that alcohol or drugs affected neither Oatley nor the applicant at the time of other offences. Her Honour considered that although the conspiracy offence may have been partly committed to help a mate, on the applicant's own admissions to the psychologist, it was also committed out of greed. The planned robbery could not be carried out because of the intervention of police. Her Honour accepted that the fact that no armed robbery actually occurred, no money was taken and no one was threatened or injured had some impact on reducing the level of the applicant's criminality, but she considered that impact to be quite minimal. 44The Crown conceded that because Oatley had received concurrent sentences, in the applicant's case the sentences for counts 2 and 3 should also be concurrent. As to count 1 her Honour accepted that some accumulation was necessary, given that there was considerable potential danger, given the rounds in the Glock pistol. As to count 3 she accepted that the applicant's criminality was somewhat less than that of Oatley, who owned the firearms and brought them from his home. 45Her Honour considered that the sentences had to reflect both personal and general deterrence, but because of the applicant's immaturity, somewhat greater weight had to be given to rehabilitation, as had been the case with Oatley. As to totality, the breach of parole was accepted to be an aggravating feature. The sentence was backdated 6 months after the date of arrest to reflect what was said in Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145. 46Special circumstances were found given the accumulation of sentences, the risk of institutionalisation and the need for greater than usual supervision and assistance on release to the community. Parity 47Both grounds of appeal finally pressed raised parity arguments. In my view neither ground was made out. 48The reason for the abandonment of the complaint that the penalty imposed was manifestly excessive, was well explained by the overall sentence imposed on the applicant and the date that sentence commenced - 6 months after his arrest. The evidence established that both general and specific deterrence had to feature in the sentences imposed. Given the nature of his offences and that they were committed while the applicant was on parole for another serious offence, a head sentence of 6 years and a non-parole period of 4, (not the 7 years and 4 and a half years advanced in the applicant's written submissions), was not a heavy sentence for these offences. 49A complaint as to parity accepts that the sentence imposed was otherwise appropriate (see England v R; Phanith v R [2009] NSWCCA 274 at [22]; Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [251]). It is for the applicant to demonstrate that the sentence imposed on him has left him with a justifiable sense of grievance. 50In Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 it was explained at [31]: "Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may "reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender."[Lowe v R (1984) 154 CLR 606 at 609-610 per Gibbs CJ] The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen [(1984) 154 CLR 606 at 610]: "the reason why the court interferes in such a case is that it considers that 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." The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity [Postiglione v R (1997) 189 CLR 295 at 323 per Gummow J, 338 per Kirby J]. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise [Lowe v R (1984) 154 CLR 606 at 609 per Gibbs CJ]." 51As discussed in Wong v R [2001] HCA 64; (2001) 207 CLR 584 at [65]: "Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect [original emphasis]." 52In this case, the applicant has not established an objective basis for his sense of grievance with the sentences imposed upon him. There is no 'marked disparity' in those sentences and the differences in the charges to which the respective pleas were entered, as well his circumstances, when compared to those of his co-offenders, all provide a proper basis for the differences in the sentences respectively imposed upon them. Discounts 53The applicant and one of his co-offenders received different discounts for their pleas, reflective of the time and circumstances in which the pleas were entered and the utilitarian savings which resulted. It is well settled that the earlier a plea is entered, the greater the discount, given the utilitarian savings which flow. The principles by which a discount is to be determined were discussed in R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32]: "1. The discount for the utilitarian value of the pleas will be determined largely by the timing of the plea so that the earlier the plea the greater discount: Thomson at [154]; Forbes [2005] NSWCCA 377 at [116]. 2. Some allowance may be made in determining the discount where the trial would be particularly complicated or lengthy: Thomson at [154]. 3. The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse: Thomson at [119] to [123]; nor is it affected by post-offending conduct: Perry [2006] NSWCCA 351. 4. The utilitarian discount does not take into account the strength of the prosecution case: Sutton [2004] NSWCCA 225. 5. There is to be no component in the discount for remorse nor is there to be a separate quantified discount for remorse: MAK and MSK [2006] NSWCCA 381; Kite [2009] NSWCCA 12 or for the "Ellis discount"; Lewins [2007] NSWCCA 189; S [2008] NSWCCA 186. 6. Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each offence: SY [2003] NSWCCA 291. 7. There may be offences that are so serious that no discount should be given: Thomson at [158]; Kalache [2000] NSWCCA 2; where the protection of the public requires a longer sentence: El-Andouri [2004] NSWCCA 178. 8. Generally the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: Stambolis [2006] NSWCCA 56; Giac [2008] NSWCCA 280. 9. The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain: Dib [2003] NSWCCA 117; Ahmad [2006] NSWCCA 177; or where the offender is waiting to see what charges are ultimately brought by the Crown: Sullivan and Skillin [2008] NSWCCA 296; or the offender has delayed the plea to obtain some forensic advantage: Stambolis [2006] NSWCCA 56; Saad [2007] NSWCCA 98, such as having matters put on a Form 1: Chiekh and Hoete [2004] NSWCCA 448. 10. An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian value: Oinonen [1999] NSWCCA 310; Johnson [2003] NSWCCA 129 11. The discount can result in a different type of sentence but the resulting sentence should not again be reduced by reason of the discount: Lo [2003] NSWCCA 313. 12. The amount of the discount does not depend upon the administrative arrangements or any practice in a particular court or by a particular judge for the management of trials or otherwise." 54Contrary to the case advanced for the applicant, here there was no error established in the discounts he received for either count 1 or counts 2 and 3. His pleas were not entered until after legal argument at the commencement of the trial, which led to an amendment which resulted in him being charged as an accessory before the fact, the entry of his plea to that offence and a 20% discount. That properly reflected the utilitarian saving flowing from entry of that plea and also had proper regard to the circumstances in which the charge was laid and the plea entered. 55The applicant was not entitled in those circumstances to a discount of 25%, as was argued for the applicant. 56There was no suggestion that beforehand, the applicant had indicated any preparedness to enter a plea to such a lesser charge, or indeed any charge. He always knew the nature of his criminality. Had he offered earlier to enter a plea he would have been entitled to a greater discount than those which he received. 57It follows that there was also plainly no error in the 15% discount which he received for his other two offences, having regard to the time and circumstances in which those pleas were entered and the utilitarian savings which resulted. Nothing prevented these pleas having been entered earlier. Ground 1 - parity with the offender Bourke 58The applicant's case was pressed on the basis that one of the most important considerations was that the applicant and Bourke had been charged with different offences, reflecting that the applicant's involvement had been confined to providing Bourke with a stolen vehicle used in the robbery. That reflected the Crown's concession that his role had been relatively minor. In the result he was entitled to greater leniency than he was afforded. 59The starting point for his co-offender's sentence for armed robbery with a dangerous weapon was 7 years. Bourke also had four other offences taken into account in that sentencing exercise, three of break, enter and steal and one of cultivate cannabis. After a discount of 25% he received a head sentence of 5 years, 3 months, having entered his plea in the Local Court. 60Bourke's offence was plainly serious, given the use of a weapon to threaten staff, the use of a stolen car and the theft of some $81,000, $30,000 of which he received, which had not been recovered. Here the sentence also had to be increased to take account of the other offences dealt with on the Form 1, as discussed in Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146, where Spigelman CJ observed at [42]: "The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another." 61Bourke was then on a good behaviour bond and had a significant criminal history. The sentence imposed upon him also reflected his subjective circumstances, which were different to those of the applicant, given his history of depression, anxiety and significant drug abuse, as well as a diagnosed adjustment disorder, found to have resulted in seriously impaired judgment a the time of this offence, committed in order to pay his drug debts. Strong feelings of remorse had been demonstrated, steps taken to cease drug use and reasonable prospects of rehabilitation were found. 62The applicant received a lesser sentence for his offence, reflective of his lesser role. It also had regard, however, to the maximum penalty applying to his offence, 25 years, the same as that applying to Bourke, and his plea. He was thus sentenced to a total term of 4 years, after a 20% discount. 63In written submissions the applicant's case was that his sentence was so severe, that it arguably represented a penalty that should have been associated with a participant at the scene of the robbery, such as a driver or lookout. In the result the sentence imposed was manifestly excessive. That was finally not pressed, given the amended grounds of appeal relied on, which were confined to a parity argument, which, as I have explained, proceeds on the basis of an acceptance that the sentence imposed was otherwise appropriate. Given the nature and seriousness of this offence and the maximum penalty of 25 years, that concession plainly had a proper basis. That the applicant was entitled to greater leniency than he was afforded by her Honour, is not apparent on the evidence. 64The applicant's offence was serious, albeit not as serious as that of Bourke. He was then on parole for a robbery in company, committed in 2006 while he was armed with a dangerous weapon. That was a matter of aggravation (see s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 and R v Tran [1999] NSWCCA 109 at [15]). He also had a more serious, violent criminal record than his co-offender. His subjective circumstances were also very different to those of Bourke, having no financial motivation to explain his offending, nor any drug or alcohol issues. While her Honour had proper regard to his circumstances and the problems resulting from his institutionalisation and family background, and accepted that he had shown genuine remorse, she had to conclude that his prospects of rehabilitation were not so clear and had to take into account that he was found to have a high to moderate risk of future offending. 65The applicant's sentence was some 15 months less than that imposed on Bourke. In the circumstances, that was not a marked disparity. In part it reflected a proper difference in the discount which the two offenders received. Otherwise it reflected the proper account which her Honour took of the question of parity, as her judgment revealed, given the distinguishing features of the offences and the offenders, which had to be taken into account in applying that principle. The differences in the outcome in the two sentencing exercises properly reflected the differences to which her Honour pointed. The resulting disparity is justified by the discount and the differences between these co-offenders, given their background, criminal history, general character and the part each played in the criminal conduct which led to the respective charges to which they entered their pleas. 66In the result this ground of appeal must be dismissed. Ground 2 - parity with the co-offender Oatley 67The applicant's case was that despite the different offences with which the co-offenders had been charged and the differences in the applicable penalties, it was unfair and artificial to characterise Oatley's charge and his offence as less serious than that of the applicant. Her Honour had found that they were equal conspirators and that had not been reflected in the sentences imposed on the applicant, with the result that the parity principle had been offended. There was no basis upon which he ought justly to have received a higher penalty than Oatley. It was Oatley who should have received a heavier penalty. 68In this case it may not be overlooked that the applicant and his co-offenders were not charged with the same offences. In Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540, Campbell JA explained at [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: R v Howard; Wurramarbra; R v 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: R v Gibson; R v Howard; R v 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: R v Armstrong; R v Diamond; R v Rexhaj; R v 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 [2003] NSWCCA 355; 141 A Crim R 531 at [127]-[134]. However R v Nguyen stands as one example where that result arose." 69This was such a case. 70Oatley was charged with an offence under s 33B(2) of the Crimes Act of possess offensive weapon whilst in company with intent to commit armed robbery, which had a maximum penalty of 15 years and a possess firearm offence. The applicant was also charged with a firearms offence, but also with a more serious offence of conspiracy to commit armed robbery. It had no maximum penalty, but it was accepted for the accused that the maximum penalty imposed for the statutory offence under s 97 of the Crimes Act of 25 years, was relevant to be taken into account. There were several associated Form 1 matters also taken into account in both cases. 71It follows that in the sentencing exercise, the fact that the applicant was charged with a more serious offence than Oatley had to be taken into account in the sentencing exercise, as did her Honour's view of the evidence led in the applicant's case and what that showed as to the respective circumstances of the two offenders. 72The starting point for the applicant's sentence was 6 years and 6 months, while that of Oatley was 5 years and 10 months. They both received a 15% discount, with the result a head sentence in Oatley's case of only 5 years and in the applicant's case, 5 years and 6 months. In her sentencing remarks her Honour also explained that she had taken the starting point of the sentence into account in considering the question of parity, explaining: "You have been given a discount on the balance of parole that you are to serve, by which I was attempting to achieve a less crushing sentence." 73This was a reference to the start date of the applicant's sentence, which was backdated to 6 months after his arrest and revocation of his parole, he having on arrest still over 2 years, 3 months till his sentence expired, while Bourke, who was also on parole on arrest had only some 8 months still to serve. The sentences for counts 2 and 3 were accumulated by only 6 months. On the evidence, that was a favourable approach to the accumulation of the sentence for his further serious offending. 74Her Honour's judgment reveals the care which she took in considering the difficult question of parity as between these co-offenders. She reached the conclusion that the applicant must have a heavier sentence than that imposed on Oatley. There was in the result certainly a disparity between them, but that it was a marked disparity which objectively left the applicant with a justifiable sense of grievance, was not shown. 75Her Honour found that the applicant's involvement in the conspiracy was equivalent to that of Oatley and that he had been motivated by misplaced loyalty to Oatley. It was also relevant that while the co-offenders had acted together in obtaining items needed for the armed robbery, it was the applicant who had funded their purchase, Oatley having no funds. It was also the applicant who broke into the car and stole it, in Oatley's presence, having promised to do so when Oatley got out of prison. They had what had been so procured in their joint possession, as well as the firearms which belonged to Oatley, when they were arrested. . 76Her Honour did not accept the applicant's evidence that he had not intended to participate in the robbery which the arrest precluded. That conclusion was relevant to this sentencing exercise, as was the fact that at the time of this offence both offenders were on parole, the applicant in respect of the 2006 armed robbery. As discussed in Chaplin v R [2006] NSWCCA 40; (2006) 160 A Crim R 85 at [27], given that this was a similar offence, that was even a more severe aggravation than in respect of the offence the subject of count 1. 77There were again also relevant differences in the offenders' subjective circumstances. Oatley had been the victim of physical abuse by his parents and had suffered substance abuse problems since age 13. He, too, had a violent criminal record, including an offence in custody in 2012 of recklessly causing grievous bodily harm in company. He had been on parole for 17 days before the commission of this offence, his motivation being greed. There was pessimism about his risk of reoffending, despite signs of a desire to address his addiction. 78In the result in my view it cannot be concluded that there is a marked disparity in these sentences, not properly justified by differences between the co-offenders' backgrounds, criminal history, general character, the part each played in this criminal conduct and the offences to which they each entered their pleas. 79It follows that this ground of appeal must also be dismissed. Orders 80The orders I would propose are: 1. Leave to appeal granted. 2. Appeal dismissed. 81BEECH-JONES J: I agree with Schmidt 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: 13 November 2013