Sentencing Bench Book — Sentencing procedures generally

The parity principle is an aspect of the systemic objectives of consistency and equality before the law — the treatment of like cases alike, and different cases differently: Green v The Queen (2011) 244 CLR 462 at [28]. The avoidance of unjustifiable disparity between the sentences imposed upon offenders involved in the same criminal conduct or a common criminal enterprise is a matter that is “required or permitted to be taken into account by the court” under s 21A(1) Crimes (Sentencing Procedure) Act 1999: Green v The Queen at [19]. The principle is applied at first instance and on appeal (see below). An assertion by an offender of unjustified disparity can be a separate ground of appeal: Green v The Queen at [32].

Sentencing courts, prosecutorial bodies and defence counsel should take steps to ensure related offenders are sentenced by the same sentencing judge, preferably at the same time: Dwayhi v R [2011] NSWCCA 67 at [44]–[45]. As a matter of practice, it is in the highest degree desirable that co-offenders be sentenced by one judge: Postiglione v The Queen (1997) 189 CLR 295. If this occurs, the judge is then in a position to consider the interrelationship between the objective and subjective features of the offenders in an overarching way: Usher v R [2016] NSWCCA 276 at [73].The desirability of this practice has been repeatedly emphasised on the basis that it serves the public interest in consistent and transparent sentencing of related offenders: Dwayhi v R at [33]–[43], [46]; Ng v R [2011] NSWCCA 227 at [77]–[78]; Adams v R [2018] NSWCCA 139 at [81]; R v Lembke [2020] NSWCCA 293 at [55]. Many of the parity problems that arise on appeal could be avoided if co-offenders were sentenced at the same time by the same judge.

If co-offenders are not sentenced by the same judge, questions may arise as to whether the second judge is bound by the findings of fact made by the first judge. Where sentenced by different judges, any discrepancy between the offenders’ sentences must be judged by reference to the specific evidence, submissions and findings made in relation to each — different sentences may be explicable on that basis: PG v R [2017] NSWCCA 179 at [24], [48]; Piao v R [2019] NSWCCA 154 at [3]–[6]; [45]–[46]; Tran v R (Cth) [2020] NSWCCA 310 at [37]; see also Rae v R [2011] NSWCCA 211 at [54]. In Baquiran v R [2014] NSWCCA 221, the court held that although the parity principle applied, the second judge was not bound by the findings made by another judge in different sentencing proceedings: at [27].

In R v Rosenberg [2022] NSWCCA 295, the court stated that in such cases, leaving aside any consideration of parity and absent agreement to the contrary, each offender is to be sentenced on the content of the statement of facts tendered against them without regard to what might be said about them in any other statement of facts tendered against a co-offender: at [10]. The court in R v Dyson [2023] NSWCCA 132, applying R v Rosenberg, found a sentence to be manifestly inadequate as the sentencing judge had regard to a co-offender’s sentence imposed in the Local Court in respect of different facts: at [55]. Sweeney J (Button and Hamill JJ agreeing) summarised the relevant principles in respect of such cases: R v Dyson at [54].

Lastly, the parity principle is not concerned with the comparison of sentences imposed on persons who were not co-offenders: Kiraz v R [2023] NSWCCA 177 at [43]; Malouf v R [2019] NSWCCA 307; Baladjam v R [2018] NSWCCA 304 at [148]–[149]; Why v R [2017] NSWCCA 101; Meager v R [2009] NSWCCA 215; R v Araya [2005] NSWCCA 283 at [66].

The decision of Lowe v The Queen (1984) 154 CLR 606 is cited as the principal source of the parity principle. Dawson J, with whom Wilson J agreed, summarised the parity principle as follows at 623:

See also Gibbs CJ at 609, Brennan J at 617 and Mason J at 610. There is also an exposition of the principle by Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295 at 301. In Green v The Queen (2011) 244 CLR 462, the High Court considered the application of the parity principle in sentence appeals (see further below).

Inconsistency in the sentencing of co-offenders gives rise to a justifiable sense of grievance. Thus, in Lowe v The Queen, Mason J at 610 (as he then was) said:

The test of unjustifiable disparity is an objective one: Hiron v R [2018] NSWCCA 10 at [50]; Green v The Queen at [31].

Where co-offenders agree to commit a crime, they will be liable for each other’s actions when committing the crime as well as additional offences they foresaw might be committed: see McAuliffe v The Queen (1995) 183 CLR 108 at 114–115; Criminal Trial Courts Bench Book at [2-740] Joint Criminal Liability.

Although participants in a joint criminal enterprise are equally liable for the same crime, different sentences may be imposed after considering objective and subjective factors. Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606 stated at 3:

In assessing the objective seriousness of the offence, it is often appropriate to differentiate between the relative culpability amongst co-offenders by reference to the conduct of each in the joint criminal enterprise: R v JW (2010) 77 NSWLR 7. However, there are limits to which this can occur with respect to the objective seriousness of the offence, because of the existence of the common purpose to commit the offence: R v Wright [2009] NSWCCA 3. In assigning roles to the specific participants, the sentencing judge should not lose sight of the fact that they were all participants in the crime: R v JW at [213]. Subjective features of individual offenders will result in differences — sometimes significant — in the sentences imposed between offenders: R v JW at [166]. However, there are always differences in the objective and subjective elements in cases involving multiple offenders. Consideration should be given to whether the sentence imposed on a co-offender is reasonably justified given those differences: Miles v R [2017] NSWCCA 266 at [9].

Some of these issues are highlighted in Rahman v R [2023] NSWCCA 148 where the offender was sentenced with a co-offender for two counts of specially aggravated kidnapping in company occasioning actual bodily harm pursuant to s 86(3) Crimes Act 1900 committed on the basis of a joint criminal enterprise to abduct and steal from the victims. The co-offender inflicted grievous bodily harm on one of the victims by striking them to the head with a handgun and it was accepted the applicant did not foresee this. Button J at [77]–[80] (McNaughton J agreeing) held that, as the injury was an objective feature of the offence’s consequences, and there was no “greater” offence (such as kidnapping occasioning grievous bodily harm) it was correctly taken into account in the offender’s case.

Whatever the consequences of an offence, the state of knowledge, belief, intention, recklessness, other form of foresight, or other states of mind (including complete inadvertence) on the part of an offender, constitute important matters on sentence feeding into the question of degrees of culpability, and appropriate punishment: Rahman v R at [79] (Button J (McNaughton J agreeing)).

In cases where a court cannot differentiate between the roles each offender played, the offender is to be sentenced on the basis they are criminally responsible for the full range of criminal acts, even though it is not known whether they personally performed them: Beale v R [2015] NSWCCA 120 at [59]; see also GAS v The Queen (2004) 217 CLR 198 at [22].

For a detailed discussion of the sentencing principles applied for joint liability see A Dyer and H Donnelly, “Sentencing in complicity cases — Part 1: Joint criminal enterprise”, Sentencing Trends and Issues, No 38, Judicial Commission of NSW, 2009.

The application of principles relating to the sentencing of offenders with joint liability is also discussed in the context of particular offences including: Detain for advantage/kidnapping at [18-730]; Drug Misuse and Trafficking Act 1985 (NSW) offences at [19-870]; Robbery at [20-290]; Murder at [30-070]; Manslaughter at [40-050].

Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of the application of the principle of parity: Green v The Queen (2011) 244 CLR 462 at [30]. Put simply, the parity principle is not confined to sentences imposed upon co-offenders who have committed the same crime; it can also be applied to sentences imposed upon persons who are co-offenders by virtue of having been engaged in the same criminal enterprise, regardless of the charges that have been actually laid against them: Quinn v The Queen (2011) 244 CLR 462 at [30]; Elias v The Queen (2013) 248 CLR 483 at [30]; Kiraz v R [2023] NSWCCA 177, at [42]; Green v The Queen at [30]; Jimmy v R (2010) 77 NSWLR 540 at [136]–[137], [202], [246]; Turnbull v The Chief Executive of the Office of Environment and Heritage [2018] NSWCCA 229 at [23]. The High Court held in Green v The Queen that the Court of Criminal Appeal had erred by discounting the sentence imposed upon Taylor who was convicted of a lesser offence “as a comparator of any significance”: Green v The Queen at [75].

The High Court acknowledged the statement in Jimmy v R, of Campbell JA at [203] which sets out “some of the limits” of the principle of parity. Howie J at [246] and Rothman J at [252] agreed. Campbell JA said at [203] [case references excluded]:

The majority in Green v The Queen acknowledged, at [30], the practical difficulties that can arise where there are great differences between co-offenders in the offences charged. In such cases, including where the offenders are charged with offences carrying different maximum penalties, the relevant comparison is more broad and impressionistic than might otherwise be the case: Dayment v R [2018] NSWCCA 132 at [65].

In Gaggioli v R [2014] NSWCCA 246, a co-offender pleaded guilty to a lesser charge with a lower maximum penalty. The court held that prosecutorial discretion is unreviewable and there could be no justifiable sense of grievance caused by the different approach taken by the prosecution regarding the two offenders.

In Dunn v R [2018] NSWCCA 108, the parity principle did not apply where the offender was sentenced for an offence but his co-offenders had the same offence taken into account on a Form 1. No relevant comparison can be made between a sentence imposed for an offence and an unspecified increase in a sentence resulting from the charge being taken into account on a Form 1: Dunn v R at [16].

The parity principle will apply where co-offenders are charged with a different number of offences and where an aggregate sentence has been imposed on one offender but not another. However, in such cases, a primary consideration in applying the parity principle will be the indicative sentence for the equivalent offence: R v Clarke [2013] NSWCCA 260 at [68]; Miles v R [2017] NSWCCA 266 at [59]–[60]; Bridge v R [2020] NSWCCA 233 at [45]–[46].The application of the parity principle can depend on findings of facts about the role of individual offenders in a crime and the subjective features of individual offenders: R v JW (2010) 77 NSWLR 7. See Co-offenders with joint criminal liability at [10-807].

See generally, A Dyer and H Donnelly, “Sentencing in complicity cases — Part 1: Joint criminal enterprise”, Sentencing Trends and Issues, No 38, Judicial Commission of NSW, 2009.

Where one offender is sentenced in the Children’s Court and the other in an adult’s jurisdiction, it is proper for the court to recognise that the sentencing takes place in very different regimes: R v Ho (unrep, 28/2/97, NSWCCA). In R v Colgan [1999] NSWCCA 292, Spigelman CJ, after referring to R v Govinden [1999] NSWCCA 118, held at [15] that, although parity considerations do not arise when comparing a person sentenced in the Children’s Court with adults:

In R v Wong [2003] NSWCCA 247, Kirby J said at [35]:

See further Subjective factors commonly relevant to robbery at [20-300].

In Postiglione v The Queen (1997) 189 CLR 295, the High Court considered the relationship between the principles of parity and totality. Dawson and Gaudron JJ pointed out that disparity is not simply the imposition of different sentences for the same offence but a question of disproportion between them. Parity is a matter to be determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability. Different criminal histories and custodial patterns may “justify a real difference in the time each will serve in prison” and “like must be compared with like” when applying the parity principle: at 878. Justice Kirby said that the parity and totality principles are in the nature of checks required out of recognition that the task of sentencing is not mechanical. The sentence may require adjustment because it is out of step with the parity principle or it may offend the totality principle because it is not “just and appropriate”, as in the case of a “crushing” sentence. Any adjustments to sentence, his Honour observed “involve subtle considerations which defy precision either of description or implementation”: at 901.

The analysis of Dawson and Gaudron JJ does not apply when one offender receives the benefit of the application of the totality principle because of committing multiple offences while another is only sentenced for the common offence: Kelly v R [2017] NSWCCA 256 at [32]. What ultimately must be considered is all the components of the sentence imposed on the co-offender including the facts and circumstances of the related and unrelated offences: at [40].

In the Court of Criminal Appeal decision consequent upon Postiglione, Hunt CJ at CL said the principle in Lowe v The Queen (1984) 154 CLR 606 remains unaffected by the High Court’s decision: R v Postiglione (1997) 98 A Crim R 134.

For the totality principle, see Application of totality principle at [8-210].

The plurality in Green v The Queen (2011) 244 CLR 462 at [31]–[32] explained how the parity principle should be applied in severity appeals as follows:

The test for establishing disparity has been described as whether the asserted disparity is “gross, marked or glaring” (see such examples as Tan v R [2014] NSWCCA 96 at [39] and Wan v R [2017] NSWCCA 261 at [48]). In Cameron v R [2017] NSWCCA 229 at [83]–[90], Hamill J observed the use of that epithet did not reflect the test which is whether the principles of equal justice have been misapplied. That approach was endorsed in Miles v R [2017] NSWCCA 266 at [9], [37]–[40] and Daw v R [2017] NSWCCA 327 at [19]–[20]; [62]. Using such descriptors is intended to ensure the principle applies when the discrepancy in sentences is not reasonably explained by the degree of difference between co-offenders and their offending: Miles v R at [40]; Wan v R at [42]; DS v R [2014] NSWCCA 267 at [39]. The principle is not to be applied in an unduly technical way: Miles v R at [38]; Cameron v R at [82].

However, no objection can be taken to the words “gross” or “glaring”, if they are used to emphasise that in circumstances where the same judge sentenced both offenders and took the question of parity into account, an appellate court should be cautious to intervene; when considering whether there is a marked disparity to justify an objective sense of grievance, what is being reviewed are qualitative and discretionary judgments: Borg v R [2019] NSWCCA 129 at [88], [89] (Bathurst CJ; Hamill and N Adams JJ agreeing). It is not a further or additional requirement on appeal that the disparity be gross or glaring: at [90]. Whether an appellant has established that there is an unjustifiable disparity between their sentence and a co-offender’s is a question of substance rather than form: Kadwell v R [2021] NSWCCA 42 at [13].

A blunt way to describe the question for the appellate court is: was the differentiation made by the judge one that was open in the exercise of discretion: Lloyd v R [2017] NSWCCA 303 at [97].

The discretion to reduce a sentence to a less than adequate level would not require an appellate court to reduce the sentence to a level which would be, as Street CJ put it in R v Draper (unrep, 12/12/86, NSWCCA), “an affront to the proper administration of justice”: Green v The Queen at [33].

The application of the parity principle in Crown appeals is different than when it is applied in severity appeals: Green v The Queen (2011) 244 CLR 462 at [34]–[36]. The purpose of Crown Appeals — of laying down principles for the governance and guidance of courts — is a limiting principle: Green v The Queen at [34]–[36]. If disparity is apprehended the residual discretion to dismiss a Crown Appeal is enlivened. The High Court framed the approach as follows in Green v The Queen at [37]:

The High Court in Green v The Queen cited the following passage of Howie J in R v Borkowski [2009] NSWCCA 102 at [70] with approval:

If the Court of Criminal Appeal concludes the inadequacy of the sentence appealed from is so marked that it amounts to “an affront to the administration of justice” which risks undermining public confidence in the criminal justice system, the court is justified in interfering with the sentence notwithstanding the resultant disparity with an unchallenged sentence imposed on a co-offender: Green v The Queen at [42] citing R v Harris [2007] NSWCCA 130 at [83], [86].

In Green v The Queen, the High Court held that the Court of Criminal Appeal erred in failing to give adequate weight “to the purpose of Crown appeals and the importance of the parity principle”: Green v The Queen at [4]. The court also erred in taking into account its opinion that the sentence imposed upon a co-offender was manifestly inadequate. The sentence had not been raised by a Crown appeal and had not been the subject of argument by the parties at the hearing of the appeal: Green v The Queen at [76].

Generally, the Crown cannot rely on the parity principle in an appeal against sentence to argue that a sentence should be increased: R v Gu [2006] NSWCCA 104; R v Weismantel [2016] NSWCCA 204 at [9]; R v Lembke [2020] NSWCCA 293 at [56]–[59]; R v FF [2023] NSWCCA 186 at [63]–[65]. Although the Crown may argue a sentence imposed on a co-offender indicates the marked inadequacy of the sentence imposed on a respondent to the appeal, if approached in that way the Crown must persuade the court of the similarity of the facts on which the respondent and other co-offenders were sentenced, their comparable roles in the offences, and why the sentence imposed is, by reference to those features, inadequate: R v Lembke at [60]–[61].