Chandler v R

1. [1]

   BELL CJ:

Introduction

1. [2]

   Count 1 carried a maximum penalty of 25 years’ imprisonment with a standard non-parole period of nine years.

2. [3]

   The Applicant also consented to the sentencing judge dealing with a further offence of possessing ammunition without holding a licence, permit or authority, contrary to s 65(3) of the Firearms Act 1996 (NSW), on a certificate issued pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) (the s 166 offence). But for the certificate, that offence would ordinarily be dealt with in the Local Court of New South Wales. The s 166 offence carried a maximum penalty of a fine of 50 penalty units.

Agreed facts and proceedings on sentence

1. [4]

   The Applicant was sentenced on the basis of a statement of agreed facts, which was relevantly summarised by the sentencing judge as follows: [1]

2. [5]

   The Applicant was sentenced to a term of imprisonment of six years and seven months, commencing on 17 February 2020, with a non-parole period of four years and three months. The Applicant’s sentence will expire on 16 September 2026 and he will be eligible for parole on 16 May 2024. The sentencing judge “would have sentenced [the Applicant] to a term of imprisonment of seven years” but for the Applicant’s “very late” guilty plea, which entitled him to a discount of 5% in accordance with s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). [2]

3. [6]

   In the remarks on sentence, the sentencing judge also found the Applicant guilty of the s 166 offence, pursuant to s 10(1)(a) of the Sentencing Act, but by reason of the sentence to be imposed in relation to Count 1, his Honour was satisfied that it was “inexpedient to impose any penalty”. [3]

4. [7]

   The sentencing judge considered that the objective seriousness of Count 1 was “slightly below [the] mid-range”. [4] However, his Honour found that the offence was aggravated by the fact that the Applicant was on bail on 2 October 2018 and, importantly for the purposes of the second ground of appeal, the fact that the Applicant committed the offence “in company” (for the purposes of s 21A(2)(e) of the Sentencing Act). [5]

5. [8]

   In relation to Count 1, there were two co-offenders, Mr David Birchell and Mr Daniel Owusu-Ansah (Owusu-Ansah). As noted in the statement of agreed facts, Mr Birchell was responsible for driving the Applicant and Owusu-Ansah to the victim’s home and was described by the sentencing judge as a “completely innocent person in relation to this activity” until he was notified by the Applicant that the victim had been shot in the leg. [6] At this point, he became an accessory after the fact of the Applicant’s offence, for which he was made subject to a community correction order for a period of two years.

6. [9]

   Owusu-Ansah was responsible for meeting the victim at the front gate to his unit block and “lur[ing] him into position” [7] so that the Applicant could shoot him in the leg. Notwithstanding that Owusu-Ansah did not discharge a firearm, on 18 June 2020 he pleaded guilty to the offence of firing a firearm in a manner likely to injure, contrary to s 93G(1)(c) of the Crimes Act 1900 (NSW) (the s 93G offence), which carried a maximum penalty of 10 years’ imprisonment with no standard non-parole period. This plea must have been entered on the basis of a joint criminal enterprise, meaning that Owusu-Ansah had entered into an agreement with the Applicant to carry out the offence.

7. [10]

   For the s 93G offence, Owusu-Ansah was sentenced by Townsden DCJ, on 25 September 2020, to two years and nine months’ imprisonment with a non-parole period of one year and nine months. This sentence incorporated a 25% discount for an early offer of a guilty plea, in accordance with s 25E(2) of the Sentencing Act. [8]

8. [11]

   The agreed facts on which Owusu-Ansah was sentenced were “essentially the same” as those in respect of the Applicant, save for the Crown’s concession that Owusu-Ansah “did not share the intent to cause [grievous bodily harm]”. [9]

9. [12]

   In his remarks on sentence in respect of the Applicant, the sentencing judge said: [10]

Grounds of appeal

1. [13]

   Ground 1 of the Notice of Appeal was that:

2. [14]

   The second ground of appeal concerned the sentencing judge’s finding that the offending in Count 1 was aggravated by the fact that it was committed “in company” with Owusu-Ansah. Ground 2 was expressed as follows:

Ground 1: parity

1. [15]

   In Kadwell (a pseudonym) v R (Kadwell), [11] Leeming JA made the following observations in relation to the principle of parity:

2. [16]

   When a question of parity arises on appeal but, as in the present case, that principle has been the subject of attention by the sentencing judge, error of the kind identified in House v The King [12] must be established. [13]

3. [17]

   Whilst Leeming JA, in Kadwell, made plain that the “the fact that [a] co-offender … has been charged differently in relation to the same offending” does not prevent the operation of the parity principle, [14] by the same token, the prosecutorial discretion to determine the charges to be preferred against an offender or offenders is not susceptible to judicial review. [15] The more significant the difference in maximum penalties between the offences charged, the more difficult it becomes to give effect to the principle of parity because of the “yardstick” role played by maximum penalties in the sentencing process. [16]

4. [18]

   In the present case, it will be recalled that the Applicant was sentenced to a period of six years and seven months’ imprisonment, whilst Owusu-Ansah was sentenced to a period of two years and nine months’ imprisonment, a difference of three years and 10 months between the terms of their respective head sentences.

5. [19]

   The points of difference highlighted by the sentencing judge, as set out in the extract from the remarks on sentence reproduced at [12] above, were not challenged by the Applicant. They reflected the following passage of argument from, and concessions made in the course of, the sentencing hearing: [17]

6. [20]

   One key matter which emerged from the different charges levelled against each of the co-offenders was that it was an element of the offence to which the Applicant ultimately pleaded guilty that he had intended to cause grievous bodily harm. In contrast, this did not form an element of the s 93G offence with which Owusu-Ansah was charged and to which he pleaded guilty. This provides some explanation for the candid and proper concessions made by the Applicant’s counsel in relation to the question of parity during the sentencing hearing.

7. [21]

   Subject to appeal ground 2, dealt with at [24]–[28] below, another factor contributing to the disparity between the two sentences was the sentencing judge’s finding that the Applicant’s offending was aggravated by the fact of his being “in company” with Owusu-Ansah. For reasons explained below, this was a matter legitimately taken into account in the case of the Applicant, but which could not have been taken into account in Owusu-Ansah’s case because the fact that he was in the Applicant’s company was integral to his liability, on the basis of a joint criminal enterprise, whereas the converse was not the case.

8. [22]

   In addition to these matters, the disparity between the two sentences was magnified by the difference between the 5% discount the Applicant obtained and the 25% discount afforded to Owusu-Ansah for his early guilty plea. When that matter is taken into account and “corrected”, for comparison purposes, the apparent disparity between the sentences reduces significantly.

9. [23]

   Taking these matters into account together with the differences properly identified by the sentencing judge, and bearing in mind the proper constraints dictated by House v The King, there was no relevant disparity to invite appellate interference.

Ground 2: “company” as an aggravating factor

1. [24]

   This ground can be dealt with in short compass.

2. [25]

   The s 33A offence to which the Applicant pleaded guilty was undoubtedly carried out “in company”, and this is an aggravating factor which s 21A(2)(e) of the Sentencing Act requires to be taken into account.

3. [26]

   The apparent basis of the Applicant’s complaint is that both the Applicant and Owusu-Ansah were participating in a joint criminal enterprise to shoot and injure the victim, and the fact that the Applicant was in company could not therefore constitute an additional aggravating factor as it was integral to the offence. Reliance was placed on Tabbah v R, [18] in which Johnson J (with whom Bathurst CJ and Fullerton J agreed) said:

4. [27]

   Whilst joint criminal enterprise was the basis upon which the charge against Owusu-Ansah was no doubt maintained (given that it was the Applicant who discharged the firearm; see [9] above), the same could not be said in relation to the Applicant. As the Crown correctly submitted, principles of joint criminal enterprise were not relied upon and did not form the basis of the Applicant’s liability. It was he who harboured animosity towards the victim, he who arranged the meeting at which the victim was shot, he who brought the rifle to the crime scene and he who called out to the victim and shot him.

5. [28]

   In these circumstances, it was open to the sentencing judge to find that, in committing the s 33A offence, the Applicant’s conduct was aggravated by the fact that he was in the company of Owusu-Ansah.

Disposition

1. [29]

   For these reasons, I would grant leave to appeal but dismiss the appeal.

2. [30]

   BUTTON J: I agree with the Chief Justice.

3. [31]

   N ADAMS J: I agree with Bell CJ.