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.

Harsh and outdated language

Last Friday, the Herald Sun and associated News Limited outlets run a story with this opening:

Appeal judge Justice Geoff Nettle said the sentence handed down to Brett Janson, 40, was so inadequate it would "shock the public consciousness".
By a 2-1 majority the court held that the sentence was "manifestly inadequate" and they re-sentenced him to a total of four years with a two-year minimum.

Over the weekend, Alan Howe, sentencing expert in chief at the Herald Sun (or so it seems), wrote an opinion piece with this opening line:

Perhaps she is a delicate petal, County Court judge Felicity Hampel. But it seems she might be among our worst judges.

The case itself, DPP v Janson [2011] VSCA 19, only became available on Austlii today.

Abolition of sentencing double jeopardy

One of the major reforms introduced by the Criminal Procedure Act 2009 was the abolition of the sentencing principle of double jeopardy. This principle historically acted as a fetter on Crown appeals against sentence and, in the words of the then-Attorney General:

This existing common-law consideration can distort sentencing practices because the sentence imposed by the Court of Appeal will not reflect the sentence that it considers should have been imposed in the first place. This can reduce the guidance provided by Court of Appeal sentences to other courts and the effectiveness of DPP appeals against sentence.

Further, this approach does not take into account other relevant and counterbalancing policy considerations, such as the interests of the community and the victim, in the courts sentencing offenders to appropriate sentences.

In DPP v Karazisis, Bogtstra and Kontoklotsis, specially convened court of five considered the operation of ss287, 289 and 290 of the Criminal Procedure Act 2009.