Special Bulletin 3


Green v The Queen [2011] HCA 49


In Green v The Queen [2011] HCA 49, a majority of the High Court set aside orders of the NSW Court of Criminal Appeal (R v Green (2010) 207 A Crim R 148) allowing a Crown appeal and increasing the sentence imposed upon the appellants, Green and Quinn (the respondents in the CCA).

There was initially one ground of appeal argued in the High Court to the effect that the CCA failed to give adequate weight to the principle of parity in that the sentences imposed by the CCA created unjustified disparity with a co-offender who had not been the subject of a Crown appeal. It was further argued at the hearing before the High Court that the CCA took into account a matter which was not the subject of argument before it, being that the sentence imposed upon the co-offender was manifestly inadequate. It is significant that the co-offender, Taylor (who was not the subject of a Crown appeal), had been sentenced for a less serious offence arising out of the same general transaction that involved the respondents to the Crown appeal. The sentencing judge purported to take into account issues of parity between each of the offenders notwithstanding the differences in their criminality. In Jimmy v R (2010) 77 NSWLR 540 at [136], [246], it was accepted that the principle of parity is not confined to strict co-offenders, that is, persons charged with the very same offence.

The joint judgment of French CJ, Crennan and Kiefel JJ (Heydon and Bell JJ dissenting) contains general remarks on the operation of the parity principle in severity appeals by offenders that appear to accord with the principles that have operated in the CCA. They confirm that a complaint of disparity can be a separate ground of appeal: at [32]. This is notwithstanding statements in some decisions of the CCA that disparity is merely a particular in a complaint that a sentence was manifestly excessive (see for example R v Li [2005] NSWCCA 154 at [44]).

The majority acknowledges that a relevant consideration in the exercise of the discretion not to intervene to increase a sentence as a result of a Crown appeal was the imposition of unjustified disparity with the sentence imposed upon a co-offender even though the co-offender had been sentenced for a different and less serious offence: at [3].The majority judgment acknowledges that there may be cases where the sentence, which is the subject of the Crown appeal, was so wrong as to be “an affront to the administration of justice” so as to justify the court increasing the sentence despite the intervention creating a disparity between offenders: at [42]. However, this was not such a case: at [42]. In the circumstances of this case, the majority held that the intervention of the CCA created “unacceptable disparity”: at [4]. It was determined that the CCA ought to have exercised its residual discretion to dismiss the appeal having regard to the disparity and the “significant delays” which occurred in the appellate process: at [5].

In discussing the application of the principle of parity the majority referred to the discussion in Jimmy v R at [203], [246] concerning the difficulties in trying to achieve parity where offenders are charged with different offences and the inappropriateness of seeking to address the exercise of prosecutorial discretion under the rubric of parity.

However, the majority held that those difficulties do not exclude the operation of the parity principle: at [30]. How the parity principle applies in such cases is not made clear particularly when the majority held at [31] that [footnotes excluded]:

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. 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. [Emphasis added]

The majority did not hold that resultant disparity must cause the dismissal of a Crown appeal, but held at [37] that [footnotes excluded]:

Where disparity is apprehended, the residual discretion is enlivened. However, a powerful consideration against allowing a Crown appeal would be the resultant creation of unjustified disparity between any new sentence and an unchallenged sentence previously imposed upon a co-offender.

But the question would then arise as to whether the purpose of the Crown appeal would be served by allowing the appeal. Their Honours point to the different purpose of a Crown appeal from an offender’s appeal and the relevance that the creation of disparity has in the exercise of the discretion to intervene at the behest of the Crown: at [34], [37]. The judgment quotes with apparent approval the following passage from R v Borkowski (2009) 195 A Crim R 1 (at [70]) per Howie J:

... the purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong.

The majority rejected criticisms by the CCA of R v McIvor (2002) 136 A Crim R 366, Cvitan v R [2009] NSWCCA 156 and Borkowski: at [41]. The majority held that in considering whether to allow a Crown appeal the appeal court is to have regard to the issue of parity with a co-offender, just as the original sentencing court is required to do and notwithstanding that the co-offenders were sentenced for different offences.

The majority held that the CCA erred in failing to give adequate weight “to the purpose of Crown appeals and the importance of the parity principle”: at [4]. The CCA was found to have erred by discounting the sentence imposed upon Taylor “as a comparator of any significance”: at [75]. The CCA erred in taking into account its opinion that the sentence imposed upon Taylor was manifestly inadequate as that issue 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: at [76]. It was found to be a breach of procedural fairness to use the sentence of the co-offender to determine that the sentences imposed upon the respondents to the Crown appeal were manifestly inadequate: at [80].

In the minority judgment of Heydon J, his Honour was, at [88], critical of the decision by the CCA to overrule McIvor and Borkowski on the basis that there was no ground for those decisions to be set aside and that, strictly speaking, they did not apply because they dealt with persons charged with the same offences and whose personal circumstances were indistinguishable. According to Heydon J there was no basis for arguing that the CCA created unjustified disparity with the sentence imposed upon Taylor having regard to the different offences with which the co-offenders had been charged and the differing factual bases upon which the three men had been sentenced.

Bell J (with whom Heydon J generally agreed) distinguished, as Heydon J did, the decisions in McIvor and Borkowski on the basis that the co-offenders in those cases had similar charges and the circumstances were such that a real sense of injustice could be engendered by the fact that only one of two co-offenders was subject to a Crown appeal.

It is significant to note that Bell J referred with approval to statements in Jimmy at [130], [247], [267] that the decision in R v Kerr [2003] NSWCCA 234 should no longer be followed. That was a decision which sought to apply the principle of parity to address prosecutorial decisions as to what charges should be laid against particular individuals who were involved to some degree in a joint criminal enterprise.

It should be noted that there is no reference in the majority judgment in the High Court to Kerr or how it might be applied in seeking to achieve parity in sentencing.

Appropriate amendments will be made to the Sentencing Bench Book in the next update.