Friday, August 19, 2011

One wrong leads to another

One sentencing principle that regularly makes an appearance in appellate judgments is that of parity, which states that it is appealable error where the sentences between co-offenders are so different (or not different enough) as to create a "justifiable sense of grievance". Where all co-offenders are sentenced at the one time, parity arguments seem to me to have particular potency, as it indicates that a single judge has failed to adopt a consistent approach to sentencing co-offenders, or alternatively, has failed to recognise the significant differences between the sentences that are appropriate for different co-offenders. But parity is not only relevant when all co-offenders are sentenced at once. It applies equally, though with more difficulty, when several co-offenders are sentenced by separate judges.

Recently though, courts have grappled with the question of how to deal with a parity ground of appeal when the comparison sentence is inadequate and the offender received an appropriate disposition. Can an offender be said to have a justifiable sense of grievance for not receiving a manifestly inadequate sentence, such as the one his co-offender received? Regrettably, the answer is yes.



Jacobs & Ross v R [2011] VSCA 238 concerned a particularly vicious assault following an incident at the Loft nightclub. The primary attackers each received head sentences of 5 years and non-parole periods of 3 years for intentionally causing serious injury. The two co-offenders, one of whom assisted with the initial attack and then stopped when the victim fell to the ground, and the other stopped a friend of the victim from assisting, were sentenced on the basis of aiding and abetting and received sentences of two and a half years wholly suspended for three years and three years imprisonment with 12 month non-parole period respectively. Those offenders who received sentences of 5 years imprisonment appealed on the basis of parity, with Hansen JA (Harper JA concurring) holding:
As I have said, I regard the sentences imposed on the appellants as appropriate. The difficulty is that, unfortunately, Pettingill and Young received sentences that were lenient to the point of being manifestly inadequate, particularly in the case of Pettingill. The result is that the disparity between those sentences and the appellants’ sentences is excessive, indeed disproportionate to their respective degrees of culpability and individual circumstances. It follows that the appellants’ sentences should be reduced, but only to the extent necessary to remedy the unjustified disparity. It would not, I consider, be correct to reduce the appellants’ sentences to the level of Young’s sentence for to do so may compound the error in a way which would be unacceptable to the public conscience
The issue of manifestly inadequate sentences for co-offenders has also been considered from the perspective of Crown appeals in New South Wales. In R v Green & Quinn [2010] NSWCCA 313, a five-member bench of the New South Wales Court of Criminal Appeal held, 3-2, that the fact that a co-offender received a manifestly inadequate sentence which the Crown did not appeal was not a valid reason for refusing to intervene to correct the manifestly inadequate sentences which it did appeal. Hulme J conducted an extensive analysis of all previous NSW decisions on this issue. However, for reasons of space, I think that McClelland CJ at CL best encapsulates the relevant principle: The High Court has allowed an appeal from Green & Quinn, though it is unclear what the basis for the decision is, as reasons have not yet been published. The case was complicated by the need to invoke the slip rule, because the formal orders did not match the orders proposed by Hulme J in one part of his judgment. Unitl the reasons for decision are published, we can only speculate on whether the court will provide some clarity to this issue.
It follows that I am of the opinion that the decision in R v McIvor [2002] NSWCCA 490. It must be remembered that the community has an interest in the sentencing of offenders and is entitled to expect that a just sentence will be imposed on all offenders. Where one offender has received a sentence which is so inadequate as to be erroneous the community is entitled to expect that the sentence of a co-offender when reconsidered by this Court will not be fixed by using the sentence imposed by error as the appropriate comparator.
What is most worrying about jurisprudence in this area is the risk that it will encourage the Crown to bring defensive appeals against inadequate sentences on co-offenders, to protect against the risk that a court will otherwise lower appropriate sentences to conform to those inadequate penalties. This would be inconsistent with the various of authorities that state that Crown appeals should be "rare and exceptional". More generally, this line of authority regarding the interaction between parity and manifestly inadequate sentences provides a strong reason why all co-offenders should be sentenced by the same judge. The question then becomes how to balance that against the need to ensure timely justice.

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