Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ith v R [2013] NSWCCA 280 Hearing dates: Friday 18 October 2013 Decision date: 18 November 2013 Before: Hoeben CJ at CL at [1] Johnson J at [65] Bellew J at [66] Decision: Application for extension of time dismissed. Catchwords: CRIMINAL LAW - sentence appeal - robbery in company causing grievous bodily harm - applicant sentenced in March 2009 - whether decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 entitled applicant to an extension of time for leave to appeal against sentence - importance of principle of finality - "Muldrock error" established - whether substantial injustice would result if an extension of time were refused - application of s6(3) of the Criminal Appeal Act 1912 - re-exercise of sentencing discretion by Court of Criminal Appeal - whether miscarriage of discretion in commencement date of sentence - whether parity principle applied - no lesser sentence warranted in law - application for extension of time dismissed. Legislation Cited: Crimes Act 1900 - s98 Crimes (Sentencing Procedure) Act 1999 (NSW) - s54A(2) Criminal Appeal Act 1912 (NSW) - s6(3) Cases Cited: Abdul v R [2013] NSWCCA 247 Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 Duncombe v R [2013] NSWCCA 271 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Ith v R [2012] NSWCCA 70 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 301 R v Chandler; Chandler v R [2012] NSWCCA 135 R v DW [2012] NSWCCA 66; 221 A Crim R 63 R v Kaiva (CCA, unreported, 9 November 1998) R v Kitchener [2003] NSWCCA 134 Category: Principal judgment Parties: Samban Ith - Applicant Regina - Respondent Crown Representation: Counsel: Mr C Smith - Applicant Ms M Cinque - Respondent Crown Solicitors: S O'Connor, Legal Aid NSW - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2007/13722 Decision under appeal Date of Decision: 2009-03-06 00:00:00 Before: Sorby DCJ File Number(s): 2007/13722 Judgment 1HOEBEN CJ at CL: Offence and sentence 2The applicant was found guilty by a jury of one count of robbery in company causing grievous bodily harm, contrary to s98 of the Crimes Act 1900. The maximum penalty is imprisonment for 25 years. By virtue of s54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act) that offence attracts a standard non-parole period of 7 years. 3On 6 March 2009 the applicant was sentenced by Sorby DCJ to a non-parole period of imprisonment for 6 years with a balance of term of 3 years. The applicant is eligible for release to parole on 9 November 2014. 4In addition to the s98 offence, an offence of having custody of a knife in a public place was placed on a s166 Certificate. This offence related to the applicant being in possession of a knife at the time of his arrest on 6 February 2007. The applicant was sentenced to a concurrent fixed term of 6 months imprisonment for this offence. 5The applicant seeks an extension of time within which to apply for leave to appeal against the severity of that sentence. The applicant relies upon the following grounds of appeal: Ground 1: His Honour erred in his approach to the standard non-parole period legislation in the light of the principles identified in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Ground 2: His Honour's discretion miscarried in his consideration of the commencement date of the sentence. Ground 3: His Honour erred by finding that parity was not in issue. Ground 4: The applicant has a justifiable sense of grievance when considering the sentence imposed on the co-accused Dharma. 6It was common ground between the applicant and the Crown that "Muldrock error" had occurred in the sentencing process and that as a result Ground 1 had been made out. On that issue generally this judgment should be read with that of Abdul v R [2013] NSWCCA 247. The Crown, however, did not accept that, pursuant to s6(3) of the Criminal Appeal Act 1912 (NSW), any lesser sentence to that imposed by his Honour was warranted in law. Factual background to the offence 7The victim, Mr Nguyen, was in the poker machine section of the Cabramatta Inn Hotel between 1.30am and 3.25am on 1 February 2007. Sena Dharma was in the poker machine section of the hotel between 1.30am and 3.30am. The applicant, who had short dark hair, was also in the hotel in the poker machine area. 8At about 1.47am Dharma approached the victim, who was still at a poker machine, and asked him for a light which he gave to him. The victim described Dharma to the police as having spoken in Vietnamese with a Northern Vietnamese accent. At 2.05am Dharma approached the victim again and asked him for a cigarette. The victim refused to give him one and told him to buy his own. 9The applicant then approached him and said in Vietnamese, spoken with a Cambodian accent, "What do you want, do you want a fight or not?" At 2.09 am the applicant can be seen on the CCTV footage standing behind the victim and appearing to watch him playing a poker machine for some minutes. 10At about 2.13am the victim won $1,000 while the applicant was still standing behind him. He was paid out that amount in $50 notes by a cashier at 2.16am. At the same time, Dharma walked past and looked down at the victim as the cashier handed him the money. The victim then left the hotel, went to a nearby ATM and withdrew $1000 and put it in his front pocket. He went back into the hotel and continued playing the poker machines. 11At 2.19am the applicant was again standing behind the victim, while the latter was playing a poker machine, and watched him for several minutes. At 2.29am Dharma and the applicant were seen to approach the victim at the poker machine and appeared to have an argument with him. Shortly after, a security officer, Mr Muagututia, approached Dharma and the applicant and tried to calm them down. They told Mr Muagututia that they had asked the victim for a lighter and he told them to "fuck off". 12At about 3.23am the victim was paid out another $460 from the poker machine by the cashier. CCTV footage showed the applicant walking past the victim at that time and looking towards him as he was being paid. Shortly thereafter, the victim left the hotel through the Railway Parade exit and walked towards Old Cabramatta Road. 13The applicant and Dharma followed the victim through the same Railway Parade exit. Both of them ran after the victim. As the victim walked along Old Cabramatta Road West, he heard a voice call out "Hey come back". He turned around and saw the applicant, who ran towards him and said "Do you want to fight?" 14The victim turned to run but before he could do so, the applicant attacked him. The applicant struck a strong blow to the left side of the victim's face, causing him to fall to the ground. The victim looked up and saw the applicant lift up his shirt and pull out a knife from the front part of his jeans. The applicant raised the knife and made a screaming-type noise. 15The knife was about 8 inches long and had a smooth edge and the blade was pointed. Upon seeing the knife, the victim became very scared and momentarily lost consciousness. When he came to, he got up and ran along Old Cabramatta Road West, towards Acacia Street. As he ran he heard someone following him and calling out in Vietnamese "Stop" and then he heard another voice calling out in Vietnamese "Hey, hey". He turned around and saw an object coming towards him and realised it was his wallet. He picked it up, checked that his cards were still in it, but saw that the $460 had gone. He continued running along Acacia Street towards Bolivia Street. As he did so, he turned around and saw the applicant in a crouching position. 16The victim continued to run along Acacia Street with the applicant running behind him. When he reached Bolivia Street, somebody grabbed him by the shoulder and he yelled out "Help" and threw his arms out to try to push the person away. He saw the person's legs and feet in front of him and then he felt himself being pushed from his right side by a second person. The victim fell to the ground and landed on all fours. At that point, he was kicked very hard to the right side of the face, around his eye, by the applicant. 17As a result of the kick to his right eye, the victim suffered a tear in the retina of that eye, which was subsequently repaired by laser surgery. That was the injury relied upon in the offence. 18The victim then received another kick to the head from the applicant who said "Why do you tell lies?" The victim then felt someone put a hand into his front, left jeans pocket and take his money - the $1000 he had withdrawn from the ATM machine and the $1000 which he had initially won on the poker machines. The victim then passed out. When he regained consciousness he was in the middle of the road on his own. He called triple O and managed to crawl home. When the police and an ambulance subsequently arrived, it was discovered that in addition to the retinal tear of his right eye, he also suffered a fractured left orbital socket, two black eyes, cuts around his left eye, facial swelling and bruising and bleeding from his ear and nose. 19The applicant and Dharma were subsequently arrested when they again attended the Cabramatta Inn some days later. 20The following matters are relevant to the applicant's subjective case. The applicant was 25 years old at the time of the offence and 27 at the time of sentence. He was born in a refugee camp in Thailand to Cambodian parents. When he was six, his parents moved to New Zealand and later to Australia where his parents separated. He completed school to year 10 but later obtained his Higher School Certificate and completed an Automotive Engineering course at TAFE. 21The applicant had a history of drug abuse. He completed two home detoxification programs. He denied his involvement in the offences and did not express contrition or remorse. The author of the pre-sentence report said that he would benefit from participation in intensive drug and alcohol programs. A psychologist's report stated that he would need extensive and regular counselling on his release. 22At the time of the offence, he was on parole for three counts of armed robbery, having received a sentence of imprisonment with a non-parole period of 2 years and a balance of term of 2 years and 3 months. He was released to parole on 9 October 2006, 4 months before this offence. It was accepted that this was a matter in aggravation of the offence. 23The applicant swore an affidavit on 16 October 2013 relating to his time in prison. The effect of that affidavit was that he was dealing with his incarceration reasonably well. His biggest issue was that he did not see very much of his family and was concerned about his mother who was not in good health. He said that he tried not to use drugs while in custody, but occasionally found it difficult when he was under stress. While in prison he had completed the Getting SMART program and a course in basic adult education. His custodial record recorded five urine test failures between December 2010 and January 2013. 24The findings by the sentencing judge were that this was an objectively serious offence. He characterised it as a vicious attack where general deterrence would be particularly important. His Honour characterised the offence as falling below the mid-range of objective seriousness, but close to it. His Honour did not regard his prospects of rehabilitation as being particularly good. His Honour did, however, find that the offence was not part of a planned or organised criminal activity. 25The co-accused Dharma pleaded guilty in the District Court to an offence of robbery in company, contrary to s97 of the Act. The maximum penalty for that offence is 20 years imprisonment. He was sentenced by Keleman DCJ on 31 October 2008 to imprisonment with a non-parole period of 2 years and 6 months with a balance of term of 1 year and 9 months. Background to this application 26After being sentenced on 6 March 2009 the applicant brought proceedings in this Court for an application for extension of time for leave to appeal against his conviction. That application was heard on 3 November 2011. On 26 April 2012 that application was refused (Ith v R [2012] NSWCCA 70). 27Paragraph [3] is instructive. There McClellan CJ at CL (with whom Adams J and I agreed) said: "3 A Notice of Application for Extension of Time to file a Notice of Application for Leave to Appeal was filed on 28 July 2011. It was accompanied by an affidavit sworn by the applicant's solicitor. The picture presented is of a failure by the applicant's original solicitor to prosecute the appeal with any expedition. The matter was assigned to the applicant's present solicitor by Legal Aid on 28 April 2010. Thereafter the matter has proceeded slowly. However, I am satisfied that the failure to prosecute the appeal in the appropriate manner was not occasioned by any action of the applicant. If I had been persuaded that the applicant had an arguable case on the appeal I would have granted leave to appeal. However, as I discuss below in my view the appeal is without merit and I would refuse leave to appeal out of time." 28That observation is consistent with an affidavit sworn by the applicant on 18 September 2013 where he said: "3 Within a few days of being sentenced, I lodged an appeal from the MRRC. I think I ticked that I wanted to appeal against my conviction only. I did not know that I could appeal against my sentence at the same time as appealing against my conviction. I thought I had to choose. My lawyer told me that if the conviction appeal succeeded, my conviction would be quashed and I would not need to appeal against my sentence." 29Although the applicant has not been well served by some of his legal advisors, and may have had an incorrect understanding of his appeal rights, that is not the case in relation to the solicitors who, with the assistance of Legal Aid NSW, brought his appeal against conviction. It would be most surprising if, having filed an application for an extension of time within which to seek leave to appeal against conviction, those solicitors had not also considered whether to make a similar application in relation to sentence. The fact that no such application was made allows an inference that those solicitors did not consider such an application had reasonable prospects of success. 30In December 2012 Legal Aid NSW contacted the applicant and advised him that as a result of a review of his file, based on Muldrock, a further application by him for legal aid was likely to succeed. It was as a result of that process that this matter is now before the Court. Delay 31The sentence was imposed on 6 March 2009. Accordingly, an extension of time of over 4 years is sought for this application for leave to appeal against sentence. 32The competing submissions in relation to delay, finality and the Court's consideration of those submissions are set out in Abdul v R at [31] - [59]. Those submissions and the Court's conclusions in relation thereto are incorporated into this judgment. 33The extent of the delay is substantial and it is only partly explained. The principle of finality stands against an extension of time. 34In those circumstances, an assessment of whether "substantial injustice" would follow if an extension of time were not granted is determinative in this matter. None of the other factors identified in the decided cases and discussed in Abdul v R favour the granting of an extension of time. Ground 1: His Honour erred in his approach to the standard non-parole period legislation in the light of the principles identified in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 35The substantial issue in this ground is whether material error having been established, this Court should in the re-exercise of the sentencing discretion, impose a lesser sentence because such a sentence is warranted in law (s6(3) of the Criminal Appeal Act 1912 (NSW)). 36The applicant submitted that by reference to sentencing statistics, the sentence imposed on the applicant was at the top of the range and that this was not justified by his Honour's assessment of the objective seriousness of the offence, i.e. slightly below the mid-range of seriousness. The applicant submitted that the use of the standard non-parole period of 7 years as a guidepost only, rather than as a determinative consideration, made it clear on all the facts of this case that a lesser sentence was warranted in law. No other submissions were put by the applicant in support of this ground. 37The limits of statistics were clearly set out by the High Court in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520. Specifically the Court said: "54 ... a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits." 38Comments to similar effect were made by McClellan CJ at CL (with whom Price and RA Hulme JJ agreed) in Bourke v R [2010] NSWCCA 22; 199 A Crim R 38: "44 Although the statistics of the Judicial Commission may provide a useful guide they also make plain that the maximum penalty of 25 years may not have been afforded appropriate significance when sentencing for this offence. It is important to remember that the sentences which have been imposed and reflected in the relevant statistics must be approached with care lest they operate to confine the practical application of the full range of potential sentences provided by the statutory maximum." 39What the applicant's submission substantially ignores is the maximum penalty for this offence which is imprisonment for 25 years. In that regard, there is some incongruity in the legislature providing that the standard non-parole period for a "mid-range offence" is imprisonment for 7 years when compared with the maximum penalty. This Court commented upon the similar incongruity with offences under s33 Crimes Act 1900 in Duncombe v R [2013] NSWCCA 271 at [49] - [53]. 40 In any event, as a result of Muldrock, a sentencing court is not to focus upon the standard non-parole period but is to treat it as a guidepost just like the maximum sentence for the relevant offence. In accordance with Markarian v The Queen [2005] HCA 25; 228 CLR 357, all other relevant factors also have to be taken into account. 41As well as the matters identified by the sentencing judge there is the important matter of aggravation that this offence was committed only four months after the applicant had been released to parole for three offences of armed robbery. In addition, the applicant was clearly the principal offender, as he instigated the attack and was involved in all aspects of the offending. The victim was pursued over a period of time and over a distance while he tried to flee. The attack was vicious and the applicant has shown no contrition or remorse. The fact that the applicant appears to have made a reasonable recovery from his injuries does not greatly ameliorate these matters. 42In the circumstances of this case, I am firmly of the opinion that no lesser sentence is warranted in law than that which was imposed by the sentencing judge. Accordingly, although this ground of appeal has been made out, it does not produce any beneficial consequences for the applicant. Ground 2: His Honour's discretion miscarried in his consideration of the commencement date of the sentence. 43As already indicated the applicant was released to parole on 19 October 2006 for three offences of armed robbery. The present offence was committed approximately three and a half months later on 1 February 2007. The applicant was arrested for this offence on 6 February 2007. On 8 February 2007 the applicant's parole was revoked with effect from 7 February 2007. The balance of his parole expired on 9 November 2008. The sentencing judge fixed this sentence to commence after the expiration of that period, i.e. 10 November 2008. 44In the course of submissions, it became common ground that the question of whether his Honour should backdate the commencement date of this sentence to a date earlier than 10 November 2008 was raised in the sentence submissions, albeit not particularly clearly (sentencing transcript 27.2.09, pp 4-5). It was clear that his Honour was well aware that the commencement date fixed by him for the sentence involved it being fully accumulated on the balance of parole for the earlier robbery offences. 45It should be noted that when considering this ground and the remaining grounds of appeal different considerations apply to those which governed the consideration of Ground 1. In Ground 1 error was acknowledged so that the provisions of s6(3) were activated. That is not the case here. Before there can be any consideration of re-sentencing, error on the part of the sentencing judge has to be demonstrated. 46The applicant submitted (correctly) that the sentencing judge had a discretion to backdate the sentence to be concurrent with, or partly concurrent with the balance of parole (R v Kaiva (CCA, unreported, 9 November 1998), R v Kitchener [2003] NSWCCA 134, Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145). The applicant submitted, however, that at the heart of the discretionary decision on that issue was the notion of double punishment. The applicant relied upon the observation of Kirby J (with whom Simpson J agreed) in Kaiva: "Secondly, his Honour expressly took into account, as a circumstance of aggravation, the fact that the offence was committed whilst the applicant was on parole. That was entirely appropriate. The sentence which he then passed reflected that circumstance. Having taken that matter into account, to then not backdate the sentence gives the appearance of penalising the prisoner for a second time, in respect of the same matter. That, it seems to me, is also undesirable." The applicant noted that in Kaiva the breach of parole (like here) was referable solely to the commission of the offence for which the offender was being sentenced. 47The applicant submitted that even if it were open to his Honour to date the sentence from the expiration of the balance of parole, the principle of totality required some reduction in the sentence imposed in the circumstances of the case. He submitted that the effect of the accumulation was to add nearly two years to the effective non-parole period. He submitted that this was not warranted in the circumstances of this case. 48The applicant's submission should not be accepted. Where parole is revoked as a consequence of the commission of a subsequent offence, whether the sentence for the subsequent offence should be backdated to the time the offender was taken into custody for the subsequent offence is a matter for the exercise of the sentencing judge's discretion. 49The relevant principles were set out by Simpson J in Callaghan. There Simpson J (with whom James and Hall JJ agreed) summarised the relevant principles: "21 That the matter is discretionary appears to be the prevailing view of members of this Court. Even in Andrews and Kelly, the court accepted that a judge might backdate a sentence where parole had been revoked by reason of the offence for which the offender is then to be sentenced. 22 I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule. 23 It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole. 24 However, I am also of the view that, particularly where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences. 25 Thus, I am of the view that the sentencing judge did have a discretion to make the sentences wholly or partly cumulative upon the sentence to which the applicant was, as a consequence of the revocation of parole, serving. That allowed her a period of six months. She could have specified the current sentences to commence at any time during that period." 50Similar statements of principle were provided by Basten JA and RS Hulme J in R v DW [2012] NSWCCA 66 at [35] and [79]; 221 A Crim R 63 as follows: BASTEN JA: "35 Although it was submitted that the commencement date for the sentences for the new offences should not properly have been backdated, the primary submission was that the extent of the backdating, to the commencement of custody relating to the new offences, was excessive. In circumstances where the offences constitute the reason for the revocation of parole, it is important not to double count the fact that the offences were committed whilst serving an incomplete sentence for an earlier offence, and whilst on parole for that offence. It is also necessary to consider whether there should be a degree of concurrency, to allow for the possibility that the respondent could have been re-paroled during the course of the balance of term on the earlier offence: Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 at [21]-[23] (Simpson J, James and Hall JJ agreeing). A further factor to be taken into account on the appeal is that the prosecutor's submissions on sentence accepted the backdating to the commencement of the new period of custody. That factor is not conclusive against intervention, but is a consideration which may persuade the Court not to intervene in the exercise of its residual discretion." RS HULME J: "79 There is no doubt that the decision as to when, within a period of revoked parole, another sentence should commence is a matter of discretion - see Callaghan v R (2006) 160 A Crim R 145. It may be at the beginning; it may be at the end; it may be somewhere in between. A number of matters are liable to inform the exercise of that discretion. Without attempting to be exhaustive, one is the fact that imprisonment for the period of revoked parole is, in its origins, due to the sentence pursuant to which the period when the offender was eligible for parole was granted. Revocation may have occurred because it has been demonstrated that an offender has been unable to adapt to normal community life. A second, although there will commonly be overlap with the first, may be as in this case, that the revocation arises in consequence of a new offence for which a fresh sentence is being imposed, rather than for some unconnected cause. A third and fourth are likely to be the period served with apparent adherence to the terms of parole and the periods of revocation and for which the revocation is liable to continue." 51In this case the new offending took place approximately three and a half months after the commencement of parole for the earlier offences. That does not assist the applicant. Similarly, the applicant had spent only a short time subject to parole conditions. The only consideration in his favour is that the balance of the parole period was substantial, i.e. 1 year and 7 months. 52As the authorities make clear, the commencement date of the sentence was a matter of discretion for the sentencing judge. The commission of such a serious offence shortly after the commencement of parole for three other significant offences shows considerable contempt for the justice system. As such it is properly taken into account as a matter of aggravation. Another significant feature is the similarity between the offences for which parole was being served and the offence presently under consideration. In the circumstances of this case, I do not regard the commencement date of this sentence as constituting some form of double counting. On the contrary, to have further backdated the commencement date of the sentence would have offended the principle of totality and would not have provided adequate punishment and denunciation of the present offence. 53It follows that I am not persuaded that his Honour erred in the exercise of his discretion in fixing a commencement date for this sentence. Ground 3: His Honour erred by finding that parity was not in issue. Ground 4: The applicant has a justifiable sense of grievance when considering the sentence imposed on the co-accused Dharma. 54The applicant submitted that the fact that Dharma had pleaded guilty to a different offence did not necessarily render parity irrelevant, nor did the fact that s97 did not attract a standard non-parole period. The applicant relied upon Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 where French CJ, Heydon, Crennan, Kiefel and Bell JJ said: "30 ... 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." 55The applicant submitted that the starting point for the sentence on Dharma before the 15 percent discount for the plea was 5 years imprisonment. While the applicant accepted that it was clearly appropriate that Dharma receive a lesser sentence than him he submitted that the discrepancy between the two sentences was marked and was not justified. 56The applicant's submission should not be accepted. The differences between the offending by the applicant and that of Dharma were substantial and justified the difference in sentences. The trial judge was quite correct to conclude that the parity principle did not apply. 57The applicant was charged with a more serious offence which had a longer maximum sentence and a standard non-parole period, i.e. different guideposts to those affecting the sentence imposed on Dharma. The role played by each in the offending was significantly different. Dharma's offending occurred towards the end of the sequence of events. The applicant participated in both attacks on the victim and it was he who inflicted the grievous bodily harm. This gives rise to a significant difference in moral culpability between the offenders. 58The evidence in the applicant's trial was that he was the principal participant in the second attack on the victim and it was he who removed the money from the victim's pockets. It was the applicant who kicked the victim in the right side of his face. The applicant's role was far greater than that of Dharma because he was involved in the first attack which included threatening the victim with a knife. 59Their subjective features also differed. The applicant was found to have shown no remorse, whereas the co-offender demonstrated some limited remorse. There was a significant difference in their criminal histories. Dharma had committed an armed robbery in 1995 whereas the applicant had been convicted of three armed robberies in 2005 for which he was still on parole at the time of this offence. 60The differences in the offending between the applicant and Dharma and in their subjective cases was such that any sense of grievance felt by the applicant could not be "justified" in the sense set out by Dawson and Gaudron JJ in Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 301. 61The observation by Basten JA in R v Chandler; Chandler v R [2012] NSWCCA 135 bears upon the applicant's submissions in relation to this ground: "6 A second fallacy apparent from the submissions in this case is that because both the applicant and his co-offender were involved in the same conduct, parity required that they receive broadly similar sentences. Courts act upon findings of fact as agreed by the parties or made by the Court. There are often discrepancies between the facts upon which each offender is sentenced. That was so in the present case. The applicant complained that a much more serious view should be taken of his co-offender's role than that taken by English DCJ, who sentenced the co-offender. That submission may be accepted, but it does not assist the applicant. First, had English DCJ taken a more serious view of the co-offender's conduct, she would no doubt have imposed a greater sentence and the resultant disparity would have been reduced. Secondly, the evidence before English DCJ was indeed quite different from that tendered on the applicant's sentencing." 62No error has been demonstrated in his Honour's treatment of parity. These grounds of appeal have not been made out. Conclusion 63It follows that to grant an extension of time for the application for leave to appeal against sentence would be futile. The grounds of appeal do not have sufficient prospects of success to justify the considerable extension of time which the applicant seeks. 64The order which I propose is that the application for extension of time be dismissed. 65JOHNSON J: I agree with Hoeben CJ at CL. 66BELLEW J: I agree with Hoeben CJ at CL. ********** 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: 18 November 2013