Tasdik v R

1. [1]

   BELL CJ: I agree with Wright J.

2. [2]

   DAVIES J: I agree with Wright J.

3. [3]

   WRIGHT J: The applicant, Mr Sameen Tasdik, seeks leave, under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), to appeal against the aggregate sentence of imprisonment imposed on him on 12 February 2024 in the District Court at Parramatta.

Background

1. [4]

   After a trial before Girdham SC DCJ and a jury, on 16 October 2023 the jury returned verdicts of guilty against the applicant on four counts:

   1. (1)

      Court 1: Specially aggravated detain with intent to obtain an advantage, being in company and occasioning actual bodily harm contrary to s 86(3) of the Crimes Act 1900 (NSW);

   2. (2)

      Count 3: Common assault contrary to s 61 of the Crimes Act; [1]

   3. (3)

      Count 4: Aggravated detain with intent to obtain an advantage, being in company, contrary to s 86(2)(a) of the Crimes Act; and

   4. (4)

      Count 5: Aggravated detain with intent to obtain an advantage, being in company, contrary to s 86(2)(a) of the Crimes Act.

2. [5]

   The sentence proceedings were heard on 5 December 2023 and, on 16 February 2024, the learned sentencing judge delivered her remarks on sentence. Her Honour imposed an aggregate sentence of imprisonment for 4 years 3 months, commencing on 21 December 2023 and expiring on 20 March 2028, with a non-parole period of 2 years 4 months expiring on 20 April 2026.

3. [6]

   In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), the sentencing judge recorded the sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence, as set out in the table below.

Application for leave to appeal and ground of appeal

1. [7]

   By a notice of appeal filed within time on 11 July 2024, the applicant seeks leave to appeal against the aggregate sentence, relying on one ground of appeal if leave is granted, namely:

2. [8]

   There was no ground asserting that the aggregate sentence was manifestly excessive.

3. [9]

   To consider this proposed ground of appeal, it is necessary to review in some detail the remarks on sentence.

Remarks on sentence

1. [10]

   The sentencing judge commenced her remarks by noting that the applicant was aged 26 at the time of sentencing, but was only 22 when the offences were committed, and had no previous convictions. The four counts in respect of which the applicant was to be sentenced were then identified along with the applicable maximum penalties. Girdham SC DCJ then noted the Crown and defence cases at trial and the jury’s verdicts. The principles relating to findings to be made for the purposes of sentencing were then set out.

2. [11]

   Her Honour’s account of what happened in relation to the offending included that the victim, Mr Justin McLannen, and one of the co-offenders, Mr Olee Akanda, had previously been friends but had fallen out on the afternoon before the offending. Later that evening, Mr McLannen, Mr Wakeling and Ms Sese travelled in Mr McLannen’s newly acquired Mazda 6 to Mr Akanda’s home at Bankstown [2] so that, according to Ms Sese, she could get drugs. On their arrival, the three persons left the Mazda parked on the street and walked down the side path to the granny flat in which Mr Akanda lived. Mr McLannen went to the door and when Mr Akanda opened it, their earlier argument was resumed.

3. [12]

   Ms Sese sat on a chair outside the granny flat. Mr Wakeling walked back towards his car and, from there, he saw the applicant and another man arrive in a Honda vehicle and park. Soon after, another vehicle with a number of male occupants arrived. Mr Wakeling watched as the occupants of the vehicles, including the applicant, walked down the side path towards the granny flat. Mr Wakeling followed them.

4. [13]

   At the granny flat, Mr McLannen was surrounded by no less than eight men, of whom Mr Akanda was the main protagonist who initiated a physical attack on Mr McLannen, threatened him and demanded money from him.

5. [14]

   Ms Sese saw the men surround Mr McLannen, run at him and throw punches, while some of the men were holding knives. During what the sentencing judge described as “the melee”, Ms Sese was pushed to the ground and punched. When she yelled out, the assault stopped. This conduct in relation to Ms Sese was the subject of count 3. Later in the remarks, it was said that, as a result of this assault, Ms Sese suffered a sore shoulder and back, and grazes to her knees.

6. [15]

   Her Honour’s findings in relation to the conduct the subject of count 1 included that, in the initial stages, Mr Akanda smashed a broomstick over Mr McLannen’s head which caused the broomstick to break and Mr Wakeling saw the applicant strike Mr McLannen on the head with the top end of the broken broomstick. Mr Wakeling also saw the applicant holding a silver knife with a black handle in one hand and a fishing knife in the other. In addition, Mr Akanda pressed a flaming silver lighter against Mr McLannen’s face saying “I’m going to torture you” and threatened to kill him. While holding a bottle in a menacing manner, Mr Akanda asked the others to “pull their phones out and record it” and demanded that Mr McLannen kiss his girlfriend’s feet and also the feet of the applicant. The video recording of the incident was found by her Honour to depict the following:

7. [16]

   A subsequent video recording was found to depict Mr Akanda demanding Mr McLannen remove his clothing and threatening him with a bottle of Coca-Cola. After removing his pants and shoes and as he was going to remove his singlet, Mr McLannen seized the moment to make good his escape. He ran from the scene chased by six men who tried to trip him and kicked at him. After falling over, he got up and ran to a nearby street where he hid.

8. [17]

   It was found that the assault on Mr McLannen occurred between 3:18 am and 3:53 am. This was apparently the period of Mr McLannen’s detention by the applicant for the purposes of count 1.

9. [18]

   As to the conduct which was the subject of counts 4 and 5, it was found that Mr Akanda then approached Mr Wakeling and asked him about the Mazda and was told that the car was in fact in Mr Wakeling’s wife’s name. The keys for the Mazda were taken from Mr Wakeling. Then, the applicant approached him and stated, "[t]he car gets signed over or I'll stab you". Ms Sese heard Mr Akanda say that they were taking Mr McLannen’s car. Mr Akanda directed Ms Sese and Mr Wakeling to get into the Honda and they did so. Mr Akanda drove off in the Mazda with his girlfriend. It was then found that:

10. [19]

    In the meantime, Mr McLannen had returned to the property in Bankstown where he had been assaulted to retrieve his clothing and was located by police there. He was taken to hospital and his injuries included multiple skin abrasions to the face, left leg, knee and ankle. In addition, he had a laceration to his head, a black eye, a 3 cm bruise to his left cheek, under his eye and ear and bruising to his nose which was broken on both sides. He also had abrasions on his shoulder and a fracture to the tip of his finger.

11. [20]

    The sentencing judge noted that the applicant had given an account during his recorded interview with police as follows:

12. [21]

    Her Honour’s findings then included the following which appear to relate principally to count 1:

    1. (1)

       Mr Akanda was the instigator and ringleader, summoning others, including the applicant, to attend, appreciating that Mr McLannen, alone or with Ms Sese and Mr Wakeling, presented no physical threat;

    2. (2)

       the applicant, out of a sense of loyalty, attended the premises on request;

    3. (3)

       on arrival outside the granny flat together with others, the applicant could only have appreciated that it was Mr McLannen who was vulnerable, being well outnumbered;

    4. (4)

       the applicant held a knife and took up makeshift weapons with which he struck at, and connected with, Mr McLannen and directly participated in an ongoing assault;

    5. (5)

       the applicant did not cause the victim to crawl or kiss his feet or demand that he take his clothes off, but the applicant’s involvement in the overall venture contributed to the fear and suffering of the victim during the length of the detention; and

    6. (6)

       the applicant was angry with the victim by reason of the victim having contact with and threatening the applicant’s younger brother.

13. [22]

    Her Honour summarised the episode the subject of count 1 as:

14. [23]

    As to counts 4 and 5, her Honour found that the applicant “had presented the knife” and remained with each victim during the course of their detention. The intended benefit of the enterprise was to obtain the registration papers for the Mazda, which was in Mr Wakeling’s wife’s name, but understood to belong to Mr McLannen. Any benefit realised would, it was found, most likely have been under the control of Mr Akanda.

15. [24]

    Her Honour then considered aspects of the applicant’s subjective case. It was noted that the sentence assessment report did not include any major concerns in relation to the applicant’s mental health, other than that he suffered stress in the year preceding the relevant events due to his parents’ divorce. It was said that he had pro-social support from his mother and brother and had previously studied full-time and held casual employment but at the date of the report he was not participating in education or employment.

16. [25]

    It was also recorded that the sentence assessment report contained information as to the applicant’s attitude to, and understanding of, the offending conduct and his having some insight into the impact of the offending. It was noted that the applicant denied involvement with drugs, while acknowledging the involvement of Mr Akanda in drug use, and that the applicant was assessed as presenting a “medium-low risk of reoffending”.

17. [26]

    The sentencing judge then referred to the evidence given by the applicant as to his background, his lack of any previous convictions and his previous university studies and employment.

18. [27]

    It was recorded that the applicant spent 57 days in custody on remand prior to bail being granted. On bail he was subject to daily reporting and a curfew between 8:00 pm and 6:00 am.

19. [28]

    The sentencing judge then returned to the circumstances of the offending, in particular in relation to count 1, and made further findings as follows.

    1. (1)

       The offending involved a degree of humiliation, compounded by the fact that the conduct was filmed so that there was a permanent record of the victim’s degradation. The victim was forced to take off his clothes. Contrary to what the applicant had told police in his interview, by that time, the victim had indeed sustained injuries.

    2. (2)

       The offence arose out of a spontaneous agreement amounting to a joint criminal enterprise.

20. [29]

    At this point, her Honour noted that the focus of the plea in mitigation was the fact the applicant had no previous convictions, was a capable student, was a gentle person and fallen in with a “bad bunch” and was at low risk of reoffending with good prior character.

21. [30]

    The sentencing judge then summarised what was involved in making an assessment of objective seriousness and noted the aspects set out below.

    1. (1)

       The length of the detention in count 1 was about 30 minutes and occurred as a result of the ongoing and violent attack committed by many more than was necessary to establish that it was committed in company. The attack comprised multiple acts of violence, which was said to be an aggravating factor, such as slapping, punching, being struck with makeshift weapons and being threatened with a knife and with bottles.

    2. (2)

       The count 1 offending involved injuries which were serious examples of assault occasioning actual bodily harm, as well as humiliation which was filmed.

    3. (3)

       As a result of the count 1 offending, the victim genuinely feared for his life and his detention only ended because he managed to escape, even though he was chased.

    4. (4)

       Mr Akanda was the controlling presence in that he summoned others and then orchestrated the detention by commencing the physical attack and inflicting injuries which made it difficult for the victim to resist his detention.

    5. (5)

       The offence was not planned, but rather erupted and was precipitated by the fact that the victim turned up at 2:00 am in the morning when he well knew he was not welcome.

    6. (6)

       The applicant was no peacemaker, contrary to his statements in his interview and the position taken at trial, and he was an active participant in the attack which involved prolonged cruelty.

22. [31]

    As to the detention the subject of counts 4 and 5, her Honour found that:

    1. (1)

       the advantage sought, the ownership of the Mazda, would most likely have been for Mr Akanda’s benefit;

    2. (2)

       each of the two victims was detained in a mostly moving motor vehicle for a not inconsiderable period of time;

    3. (3)

       the applicant held a knife and threatened Mr Wakeling at the commencement of the detention and so ensured the victim’s compliance;

    4. (4)

       the applicant remained in the motor vehicle during the entirety of the detention;

    5. (5)

       the applicant knew that Ms Sese was fearful as a result of being assaulted and each victim was in great fear having seen what occurred to Mr McLannen;

    6. (6)

       the offending was spontaneous with little or no planning; and

    7. (7)

       the applicant played a substantial role in the offending at the behest of Mr Akanda.

23. [32]

    Her Honour assessed that the count 1 offending was “a moderately serious one of its kind, albeit that the length of the detention was not lengthy”.

24. [33]

    The offences in counts 4 and 5 were assessed as being “moderately serious examples of their kind, but not as serious as those often seen in these courts.”

25. [34]

    Finally, as to count 3, her Honour noted that the applicant was not involved in any direct way and the injury inflicted was not serious and the offence was assessed as being “one of low-range gravity”.

26. [35]

    On this appeal, there was no challenge to any of her Honour’s assessments of objective seriousness.

27. [36]

    The sentencing judge recorded that the applicant had not pleaded guilty but said that the sentence to be imposed was in no way increased because of that but there was no discount. It was accepted that he expressed regret as to his involvement in relation to count 1 and had shown some empathy and appreciation of the impact of his offending, especially on Ms Sese and on Mr McLannen. Her Honour proceeded on the basis that the applicant had good prospects of not reoffending, had no convictions, was supported by his mother and brother and had shown a capacity to be a good student. These matters were accepted as being favourable in relation to mitigation.

28. [37]

    It was accepted that, despite maintaining that his acts were “barely criminal”, his prospects of rehabilitation were good and he was most unlikely to reoffend. Her Honour noted that the applicant was 22 years of age at the time of the offending and “so promotion of the [applicant’s] rehabilitation warrants significant weight”. Although this was so, it was said to be not such as to obviate the need for a sentence to punish adequately, and to denounce, the applicant’s conduct and to recognise the harm done to the victims of the crime and indeed the community.

29. [38]

    Next, the sentencing judge specifically addressed the issue of parity, having regard to the sentences imposed on two of the other persons involved in the relevant events, Mr Akanda and Mr Khan.

30. [39]

    Her Honour noted that the sentencing exercise in the present case was “complicated by reason of the practical difficulties in the application of the parity principle”. It was recorded that the maximum penalties to which the applicant was exposed were three times more in the case of count 1 or two times more in the case of counts 4 and 5 than those faced by Mr Akanda, where he was the instigator. It was also noted that Mr Akanda was dealt with on the basis of different charges arising out of the relevant events and received discounts for his pleas of guilty.

31. [40]

    The sentencing judge referred to the aggregate sentence imposed by Gartelmann SC DCJ on Mr Akanda and the indicative sentences. It was also noted that, unlike the applicant, Mr Akanda was a regular user of methamphetamine and a psychological report opined that he had symptoms consistent with a diagnosis of major depressive disorder and generalised anxiety disorder which led to his Honour finding Mr Akanda’s mental conditions made his case somewhat less suitable for general deterrence and would likely contribute to his experience in prison being more onerous. Her Honour also noted that on his plea of guilty, Mr Akanda had expressed shame for his offence, expressed insight and accepted responsibility for the offending and its consequences. Finally, it was recorded that the aggregate sentence imposed on Mr Akanda was imprisonment for 2 years 4 months with a non-parole period of 1 year 2 months.

32. [41]

    As to Mr Khan, the sentencing judge recorded:

    1. (1)

       his role was subordinate to that of the applicant;

    2. (2)

       he had received indicative sentences of imprisonment for 10 months for the offence of assault on Mr McLannen occasioning actual bodily harm and imprisonment for 1 year 4 months for the offence of demanding property from Mr Wakeling in company with menaces, as well as a community correction order for the common assault on Ms Sese;

    3. (3)

       like the applicant, he had no previous convictions; and

    4. (4)

       his aggregate sentence was 1 year 5 months 28 days, ordered to be served by way of an intensive correction order.

33. [42]

    Her Honour then said:

34. [43]

    Her Honour went on to find that the applicant’s time spent on bail did not amount to quasi-custody but it was a matter which was given some weight in the exercise of her sentencing discretion, as was the delay in the matter being finalised and that this had caused the applicant to feel apprehensive.

35. [44]

    Her Honour expressly addressed the question of totality and found that a degree of concurrence was called for since, if the sentences were largely accumulated, the resulting sentence would “wholly exceed what totality would permit as appropriate in all the circumstances”.

36. [45]

    The sentencing judge then, in effect, repeated in summary form some of her findings in relation to the involvement of the applicant in the offending.

37. [46]

    A finding of special circumstances was held to be warranted given the applicant’s youth, that it would be his first term of imprisonment and that he would require supervision and assistance on release from custody. It was accepted that his age and isolation from his prosocial family would mean that his sentence would be onerous and he would benefit from an extended term on parole in order to further galvanise his rehabilitation. On this basis it was held that the non-parole period would “reflect about 55% of the aggregate term” and the sentence would be backdated to take into account the 57 days spent on remand.

38. [47]

    The aggregate sentence of 4 years 3 months with a non-parole period of 2 years 4 months was then imposed and the indicative sentences referred to in the table set out after [7] above were recorded.

Ground of appeal - parity

1. [48]

   The applicant’s sole ground of appeal raised the parity principle and was formulated as being that he has a justifiable sense of grievance in respect of the disparity between the sentence imposed on him and the sentences imposed upon Mr Akanda and Mr Khan.

2. [49]

   The applicant’s submissions referred to relevant authorities concerning the parity principle and contended that practical difficulties and limitations in comparing co-accused charged with different offences arising out of a single course of criminal conduct did not exclude the operation of the principle. Indeed, it was submitted that, in the present case, the parity principle should be given “full weight”.

3. [50]

   The applicant submitted that, while the different charges and maximum penalties were factors to be taken into account, where it was accepted that Mr Akanda was the instigator of all the relevant conduct, the disparity between Mr Akanda’s sentence and the applicant’s sentence was “difficult to reconcile”. This was said to be so, since the parity principle is governed by considerations of substance rather than form. The disparity was also in effect said to be more marked because Mr Akanda’s sentence took into account offences which occurred when he was on bail and serving an intensive correction order.

4. [51]

   In particular, it was noted that her Honour had said that the higher applicable maximum penalties in the applicant’s case “necessarily” resulted in the applicant’s sentence being greater than that imposed on Mr Akanda and Mr Khan and this was effectively submitted to be the only qualitative distinction made by the sentencing judge in applying the parity principle. It was contended that to proceed on the basis that simply because the applicant was sentenced for more serious offences that necessitated a sentence with a non-parole period that was twice as long as Mr Akanda’s was an appellable error.

5. [52]

   Furthermore, it was submitted that the differences in sentences would not be justified by reference to the age, background, criminal history, general character or the part played by each offender in the relevant criminal conduct.

6. [53]

   In these circumstances, it was submitted that the applicant should be resentenced to reflect properly the consideration of the substance of the applicant’s criminality rather than the form of the charges brought against him as compared to his co-offenders.

7. [54]

   The Crown referred to relevant authorities and submitted that there were a number of significant differences, as set out below, between the cases which justified the differences in the sentences.

   1. (1)

      In relation to the offending against Mr McLannen (count 1) in which the applicant held a knife and used makeshift weapons, the maximum penalty for the offending by the applicant was 25 years but the maximum penalty for Mr Akanda’s and Mr Khan’s offending was only 7 years.

   2. (2)

      In relation to Ms Sese’s and Mr Wakeling’s detention (counts 4 and 5), the applicant was more aggressive than the co-offenders, saying that “[t]he car gets signed over or I’ll stab you”. Mr Akanda and Mr Khan were not charged with or sentenced for any offence in relation to Ms Sese’s detention (count 4), while the offence for which the applicant was sentenced had a maximum penalty of 20 years and involved the applicant holding a knife, remaining with Ms Sese throughout and driving the vehicle in which she was detained, resulting in the offending being assessed as “a moderately seriously example”. In relation to Mr Wakeling’s detention (count 5), the applicant’s conduct was essentially the same as for Ms Sese’s detention, and he was charged with an offence that carried a maximum penalty of 20 years, while the co-offenders were charged with a different offence with a maximum penalty of only 14 years.

   3. (3)

      Unlike the co-offenders, the applicant was not entitled to any discount for a plea of guilty. In addition, although the applicant did not have any criminal record, other findings in relation to his subjective case were less favourable than those made in relation to the co-offenders.

   4. (4)

      While Mr Akanda was found to be the instigator, he was sentenced for less serious offences and Mr Khan was found to have been clearly subordinate to the applicant.

8. [55]

   As to her Honour’s comment that the higher applicable maximum penalties in the applicant’s case would “necessarily” result in the applicant’s sentence being greater than that imposed on Mr Akanda and Mr Khan, this was submitted to be no more than an acknowledgement of the more limited application of the parity principle in circumstances where the offenders had been charged with different offences. It was noted that the difficulties involved in applying the parity principle included the inability to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions.

9. [56]

   Thus, it was submitted that the applicant could have no justifiable sense of grievance regarding his sentence compared to that of the co-accused and the ground of appeal had not been made out.

10. [57]

    There was no dispute in this Court that, since the applicant, Mr Akanda, Mr Khan, Mr Klim (also spelt Klym) and others were co-offenders involved in the same criminal conduct or enterprise, the parity principle applied. That was also the position that was accepted by the sentencing judge. The issue was, in essence, what effect was required to be given to that principle in the particular, difficult circumstances of the present case.

11. [58]

    The application of the parity principle is governed by a number of considerations. First, the test to be applied has been stated as being “whether any disparity between sentences engenders a justifiable sense of grievance and an appearance of injustice to ‘that impassive representative of the community, the objective bystander’”: Hiron v R [2018] NSWCCA 10 at [50] (Johnson J with Leeming JA and Adamson J agreeing) citing Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 613 (Mason J); [1984] HCA 46 and Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green) at [31] (French CJ, Crennan and Kiefel JJ). Thus, the sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria and does not involve a judgment about an offender’s subjective feelings of grievance: Green at [31].

12. [59]

    Secondly, the application of the principle is concerned with considerations of substance rather than form, so that formal identity of charges against the offenders whose sentences are to be compared is not a necessary condition of its application: Green at [30].

13. [60]

    Consequently, the parity principle requires the avoidance of objective “unjustifiable disparity” between the sentences imposed upon offenders involved in the same criminal conduct or a common criminal enterprise, even if they are not being sentenced for exactly the same offences. It is an aspect of “equal justice” inherent in the rule of law: Green at [19] and [28]. It applies in New South Wales by virtue of s 21A of the Sentencing Procedure Act which specifies in effect that the matters which a court is required to take into account include “any other matters that are required or permitted to be taken into account by the court under any Act or rule of law”: Green at [19].

14. [61]

    Thirdly, equal justice and thus the parity principle do not require the same outcome for all offenders involved in the same criminal conduct. Parity requires different outcomes in cases that are different in some relevant respect or respects: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [65] (Gaudron, Gummow and Hayne JJ); Green at [28]. At a somewhat abstract level, the “relevant respects” have been described as co-offenders’ “different degrees of culpability or their different circumstances”: Postiglione v The Queen (1997) 189 CLR 295 at 301 (Dawson and Gaudron JJ); [1997] HCA 26. Some of the potentially relevant types of differences were identified in Green at [31] as including “age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise”, citing Lowe at 609 (Gibbs CJ). It is evident, however, that that list is not an exhaustive statement of potentially relevant differences.

15. [62]

    Fourthly, in determining whether there has been a disparity of a kind sufficient to give rise to a justifiable sense of grievance, it is appropriate to consider all of the facts and circumstances applicable to the relevant individuals involved and not just the aggregate or head sentence but also all the components, including the non-parole period, any indicative sentences and the total effective period of imprisonment: Nguyen v The King [2024] NSWCCA 178 (Nguyen) at [84] (Ierace J, with Harrison CJ at CL, and Faulkner J agreeing), quoting Rees v R [2012] NSWCCA 47 (Rees) at [50] (Garling J, with Macfarlan JA and R S Hulme J agreeing) and the authorities there cited.

16. [63]

    Fifthly, in order to succeed on the basis that a sentence imposed gives rise to a justifiable sense of grievance, it is not necessary to show that the sentence is manifestly excessive: Dib v R [2023] NSWCCA 243 (Dib) at [132] (Simpson AJA, with Garling and Ierace JJ agreeing). Moreover, in Nguyen at [84], it was accepted that, as had been stated in Rees at [50], this Court ought not intervene to reduce a sentence below a level, which would mean that the sentence would be wholly inadequate having regard to the offence involved and the criminality of the offender, where such a result would be an affront to the proper administration of justice. By way of contrast, there have been statements such as that by Mason J in Lowe at 613-4 that “a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate”. These two positions are not, however, inconsistent, as was explained in Green at [33]:

17. [64]

    The High Court has, however, expressly accepted that the application of these principles in relation to parity can involve significant practical difficulties: Green at [30] endorsing the observations of Campbell JA in Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60 (Jimmy). After a thorough review of the authorities, Campbell JA said, in Jimmy at [203]:

18. [65]

    Thus, as accepted in Green at [30], where the participants in the same criminal enterprise have been charged with significantly different offences, there can be considerable practical difficulties in comparing the sentences for the purposes of the application of the parity principle. The greater the differences of substance between the offences, the greater the practical difficulties; particularly, where disparity is said to arise out of a sentence imposed on a co‑offender who has been charged with an offence that is less serious than that of the person seeking to establish unjustifiable disparity. Furthermore, in cases where there are two participants in the same criminal enterprise but only one is charged with an offence relating to certain conduct which forms part of the criminal enterprise and the other participant in that conduct is not charged with any offence in that regard, the practical difficulties in making any valid parity comparison become even greater. These difficulties arise, at least in part, out of the inability of a Court of Criminal Appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions.

19. [66]

    It is important to bear in mind, however, that notwithstanding those types of practical difficulties and limitations, the operation of the parity principle is not excluded in such cases: Green at [30]. Rather, the principle must be taken into account but the effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged.

20. [67]

    In the present case, the applicant’s co-accused included inter alios Mr Akanda and Mr Khan. [3] It is not clear whether other participants in the events, of whom there appeared to be a number, were charged or found guilty and sentenced in respect of their involvement in the events.

21. [68]

    Factors relevant to consideration of the applicant’s ground of appeal in the present case in so far as they related to the applicant, Mr Akanda and Mr Khan can be summarised as set out in the table below.

22. [69]

    In the present case, the sentencing judge was correct to state that the sentencing exercise was “complicated by reason of the practical difficulties in the application of the parity principle”. The significant practical difficulties in giving effect to the parity principle in the present case arose principally out of the following circumstances.

    1. (1)

       In relation to the offending the subject of count 1 (the detaining or assaulting of Mr McLannen at the granny flat):

    2. (2)

       In relation to the offending the subject of count 4 (the detention of Ms Sese in the Honda):

    3. (3)

       In relation to the offending the subject of count 5 (the detention of Mr Wakeling in the Honda):

23. [70]

    These differences in offences, elements and maximum penalties are matters of substance not mere matters of form. The criminality involved in the additional elements and the seriousness of the offences reflected in the higher maximum penalties were matters required to be taken into account by the sentencing judge in sentencing the applicant.

24. [71]

    In this context, the applicant contended that the sentencing judge made a specific error in stating in effect that the higher maximum penalties applicable to the applicant’s offences “necessarily” resulted in the applicant’s sentence being greater than that imposed on Mr Akanda and Mr Khan. If that statement were understood as meaning that simply because of the higher applicable penalties and without regard to other circumstances of each offender, the applicant’s sentence must necessarily be higher than that of Mr Akanda and Mr Khan, it would involve error, as it would amount to giving one relevant factor, namely the maximum penalty, determinative weight as to the relativity between sentences for co-offenders to the exclusion of other relevant factors. That is not, however, in my view, what Girdham SC DCJ meant.

25. [72]

    When the remarks on sentence are read fairly and as a whole, it is clear that her Honour was not saying that simply because the applicant was sentenced for offences carrying a greater maximum penalty that, by itself, necessitated higher sentences, including an aggregate sentence with a non-parole period that was twice as long as Mr Akanda’s. Rather, her Honour’s statement is to be understood as recording her assessment that the instinctive synthesis of all the relevant factors and considerations relevant to determining the appropriate sentence, including as an important yardstick the maximum penalties, required, and in that sense necessitated, that a higher sentence be imposed on the applicant compared that imposed on Mr Akanda or Mr Khan. In the passage from the remarks on sentence immediately following the comment criticised by the applicant, her Honour in effect summarised the factors taken into account as follows:

26. [73]

    Her Honour’s comment is to be seen as consistent with the observations of the High Court in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian) at [30] and [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ) that legislatures do not enact maximum available sentences as mere formalities and that:

27. [74]

    Thus, in my view, the applicant’s contention that the sentencing judge made the specific error asserted should not be accepted.

28. [75]

    It does not follow from that conclusion, however, that the applicant’s ground of appeal that there was a justifiable sense of grievance in respect of the disparity between the sentence imposed on the applicant and the sentences imposed upon Mr Akanda and Mr Khan, has not been made out.

29. [76]

    As far as Mr Khan was concerned, Girdham SC DCJ’s analysis included that his role was subordinate to that of the applicant and “like [the applicant], had no previous convictions” [4] and her Honour then recorded the indicative sentences for Mr Khan were 10 months for the offence of assault of Mr McLannen occasioning actual bodily harm and 1 year 4 months for the offence of demanding property from Mr Wakeling in company with menaces. These resulted in an aggregate sentence of 1 year 5 months 28 days, to be served by way of an intensive correction order. There was also a community correction order for the common assault on Ms Sese. In my view, Mr Khan’s very limited role in the offending, viewed in light of all other relevant circumstances including his subjective case and the offences to which he pleaded guilty, provided a sufficient justification of the disparity between his aggregate sentence and that imposed on the applicant.

30. [77]

    A similar conclusion cannot, however, be reached in relation to Mr Akanda’s involvement in the offending and his aggregate sentence compared to the applicant’s involvement and sentence.

31. [78]

    In Mr Akanda’s case, there is a marked disparity between the applicant’s aggregate sentence of 4 years 3 months (with a non-parole period of 2 years 4 months) and Mr Akanda’s aggregate sentence of 2 years 4 months (with a non-parole period exactly half the length of the applicant’s non-parole period). This disparity is exacerbated by the fact that Mr Akanda’s aggregate sentence was imposed not only in relation to the criminal enterprise in which the applicant was also involved but also in relation to other, unrelated offending in which the applicant was not involved and for which the relevant indicative sentence was 10 months. For the purposes of comparison, however, it appears reasonable to proceed on the basis that the fact that Mr Akanda’s aggregate sentence included unrelated offending is substantially offset by the fact that, in respect of the offending in relation to Mr McLannen, Mr Akanda received a discount of 25% for his plea of guilty, and a 10% discount in respect of the offending against Mr Wakeling. Accordingly, these differences should not be seen as providing a justification for the disparity.

32. [79]

    It is evident from the remarks on sentence that the marked disparity resulted from the different and more serious offences for which the applicant was sentenced compared to the relevant offences for which Mr Akanda was sentenced. The disparity was not, to any significant extent, the consequence of differences in the subjective circumstances of each of the applicant and Mr Akanda, including in particular those summarised in the table after [69] above. Indeed, the age, background, criminal history, remorse, prospects of rehabilitation and similar matters, by themselves, would generally support the Mr Akanda’s aggregate sentence being higher than the applicant’s, if all other things were equal.

33. [80]

    One subjective factor relating to Mr Akanda received specific attention from the sentencing judge in the applicant’s case, as noted in her Honour’s remarks on sentence as follows:

34. [81]

    This difference in Mr Akanda’s subjective circumstances compared to the applicant’s was not, in my view, of such significance that it provided a sufficient justification for the disparity in aggregate sentences for each, especially having regard to the other circumstances to which her Honour referred, namely, Mr Akanda’s role, and the fact that unlike the applicant he had a criminal record and had committed subsequent offences while subject to an intensive correction order for unrelated offences.

35. [82]

    As noted above, where the participants in the same criminal enterprise have been charged with different offences, there can be significant practical difficulties in comparing the sentences for the purposes of the application of the parity principle. Nonetheless, the principle must be taken into account, but the effect given to parity may vary.

36. [83]

    In the present case, the practical difficulties were heightened because, although the applicant was charged with and sentenced for much more serious offences than Mr Akanda as well as one additional offence, the applicant’s role in the criminal enterprise was less serious than Mr Akanda’s. Furthermore, although Mr Akanda was also involved in having Ms Sese as well as Mr Wakeling detained in the Honda, only the applicant was charged and sentenced in respect of this offending against Ms Sese. The differences in the findings as to the roles and involvement the applicant and Mr Akanda are briefly summarised in the table after [69] above.

37. [84]

    While it was proper and in accordance with principle for the sentencing judge to have taken the maximum penalties for the offences with which the applicant was charged into account as yardsticks in determining the indicative sentences and thus the aggregate sentence for the applicant, she was also required to give effect to the parity principle having regard to the substance of the participation and role of the applicant in the criminal enterprise compared to that of Mr Akanda. The sentencing judge did state that her conclusion that no sentence other than a sentence of imprisonment was appropriate was made, inter alia, “having made allowance for the issue of parity on each offence other than count 3”. Otherwise, however, there did not appear to be any further engagement with the issue of how the parity principle should be given effect to in the very difficult circumstances before her Honour.

38. [85]

    Given the extent of the disparity and the fact that Mr Akanda’s subjective circumstances overall did not justify his receiving a significantly lower aggregate sentence than the applicant, in my view, it was necessary in order to avoid a justified sense of grievance for the sentencing judge to explain how, in determining the applicant’s aggregate sentence, the parity principle had been given effect to so as to recognise the fact that Mr Akanda’s role was more serious in all the relevant offending than the applicant’s role and that his overall criminality and moral culpability were greater than the applicant’s.

39. [86]

    As noted above, the sentencing judge did consider the relevance of the applicable maximum penalties to which the applicant was exposed and found that “the exercise of principle necessarily resulted in [the applicant’s] sentence being greater than that imposed on Mr Akanda and Mr Khan”. In all the circumstances, this conclusion may be correct. Nonetheless, there was no explanation of how the parity principle applied in the present case, even accepting that account had to be taken of the different charges and higher maximum penalties applicable in the applicant’s case. In particular, there was no express consideration of whether the marked disparity in sentences resulting from the different charges and higher penalties was justified given the more serious role played by Mr Akanda in all of the relevant offending and his greater criminality and moral culpability when compared to the applicant’s role, criminality and moral culpability.

40. [87]

    The absence of such an explanation, in my view, gave rise to an objectively justifiable sense of grievance in respect of the disparity between the aggregate sentence imposed on the applicant and the aggregate sentence imposed upon Mr Akanda, even though the applicant was sentenced for significantly more serious offences.

41. [88]

    In reaching such a conclusion, I should not however be taken to be being critical of the sentencing judge. Her Honour was faced with an exceptionally difficult sentencing exercise in relation to the application of the parity principle in the circumstances. The applicant’s aggregate sentence was not, in my view, close to being manifestly excessive. Apart from consideration of the parity issue, there was no legitimate basis for challenge to her Honour’s exercise of the sentencing discretion.

42. [89]

    Nonetheless, in my view, it should be concluded that the applicant has made out his ground of appeal. In these circumstances, leave to appeal should be granted, the appeal should be allowed and the aggregate sentence imposed on the applicant should be quashed. There was no challenge to the recording under s 10A of the Sentencing Procedure Act of a conviction with no further penalty in respect of count 3 and this should not be set aside.

Resentence

1. [90]

   Since, in my view, the applicant’s aggregate sentence should be quashed, it is necessary to exercise the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ, Gageler J agreeing). In so doing, regard is to be had to the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of post-sentence conduct: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9] (Bell, Keane, Nettle, Gordon and Edelman JJ).

2. [91]

   There was no challenge to any of the sentencing judge’s findings of fact, her Honour’s assessments of the objective seriousness of the offending or other relevant assessments. As to post-sentence conduct, there was no affidavit evidence but it was not in dispute that the applicant was presently at the prison farm in Muswellbrook and this was submitted to reflect in all probability the fact that the applicant had an unblemished record in custody.

3. [92]

   I have adopted her Honour’s findings. In addition, my assessments of objective seriousness, remorse, likelihood of reoffending, prospects of rehabilitation, special circumstances, and other relevant factors correspond with those of the sentencing judge. I was satisfied that no penalty other than imprisonment was appropriate. I also accepted that the applicant’s conduct in custody tells in favour of mitigation of sentence.

4. [93]

   In light of the applicant’s subjective case and the objective seriousness of his offending, the legislative guideposts of the maximum penalties in respect of the offences for which he is to be re-sentenced as well as the purposes of sentencing, the principle of totality in determining the aggregate sentence and other principles of and rules of law relating to sentencing, I would, if the parity principle were not engaged, have concluded that indicative sentences and an aggregate sentence appropriate in the applicant’s case would have been somewhat above or, at least, at about the same level as those imposed by the sentencing judge. In the present case, however, the parity principle is engaged and must be given effect to.

5. [94]

   Having regard to the relevant circumstances and considerations referred to above and in particular the more serious role of Mr Akanda in all of the relevant offending compared to that of the applicant, the parity principle, which requires attention to be given to the substance of what occurred in the criminal enterprise involving the applicant and the co-accused, would ordinarily require the applicant to be sentenced to an aggregate sentence that was more than minimally lower than Mr Akanda’s aggregated sentence.

6. [95]

   The present case was, however, unusual. The unusual features included most significantly that the applicant was charged with and sentenced for more serious offences than Mr Akanda, despite the applicant’s role being less serious. In addition, the applicant was sentenced for one offence for which there was no corresponding offence in Mr Akanda’s case. This Court is not able to review the prosecutorial charging discretions that gave rise to this situation. Nonetheless, application of the parity principle in this situation has the potential to lead to a sentence which falls well below the lower limit of an adequate aggregate sentence for the applicant’s offending. Parity with Mr Akanda’s aggregate sentence of 2 years 4 months, with a non-parole period of 1 year 2 months, might be thought to justify an aggregate sentence for the applicant as low as about 2 years with a non-parole period as low as about 1 year, if the different charges faced by each of them were disregarded completely. This would, however, in my view, not only be a sentence which was less than adequate in all the circumstances, it might also be thought to amount to an affront to the proper administration of justice.

7. [96]

   Sir Anthony Mason expressed the view in Lowe at 613-4 that a Court of Criminal Appeal is entitled to intervene when there is a disparity such as to engender a justifiable sense of grievance by reducing a sentence, which is not excessive or inappropriate considered apart from the disparity, to the point where it might be regarded as inadequate. Nonetheless, as explained in Green at [33], there is no obligation on the Court to do so. Nor is there a requirement to consider reducing the sentence to a level which would be an affront to the proper administration of justice.

8. [97]

   In the particular circumstances of the present case, I am of the view that it is appropriate to give effect to the parity principle by reducing the applicant’s aggregate and indicative sentences to a level below what would otherwise be considered adequate but not to such a level as to be an affront to the administration of justice.

9. [98]

   Giving effect to the parity principle in this way and taking into account all of the other relevant factors and principles applicable in the present case as part of the instinctive synthesis process of sentencing, I am of the view that the applicant should be re-sentenced to an aggregate sentence of 3 years 6 months commencing on 21 December 2023 and expiring on 20 June 2027.

10. [99]

    Having regard to my finding of special circumstances in light of the applicant’s youth, it being his first time in custody and the need for supervision and support on release to parole, I would maintain the same general ratio as the sentencing judge in relation to the non-parole period, which should be 1 year 11 months, expiring on 20 November 2025.

11. [100]

    The sentences that would have been imposed if an aggregate sentence had not been imposed are:

    1. (1)

       Count 1: - 3 years;

    2. (2)

       Count 4: - 1 year 9 months; and

    3. (3)

       Count 5: - 1 year 9 months.

Proposed orders

1. [101]

   Accordingly, for these reasons, I propose that the orders of the Court should be:

   1. (1)

      The applicant has leave to appeal.

   2. (2)

      The appeal is allowed.

   3. (3)

      The aggregate sentence imposed by the District Court at Parramatta on 16 February 2024 is quashed.

   4. (4)

      The applicant is sentenced to an aggregate sentence of 3 years 6 months commencing on 21 December 2023 and expiring on 20 June 2027, with a non-parole period of 1 year 11 months expiring on 20 November 2025.

2. [102]

   The applicant will be first eligible for release to parole on 20 November 2025.