Eakin v R [2020] NSWCCA 294

Eakin v R [2020] NSWCCA 294 · Read the judgment on AustLII

Catchwords: Parity principle – where co-offender’s sentence reduced on appeal – where appellant already had a lower sentence

In this decision the CCA has held that where a sentencing judge sets up a parity relationship between offenders, and a co-offender subsequently gets their sentence reduced, then that might give rise to a justifiable sense of grievance – even if you already had a lower sentence – allowing an appeal to reinstate the original parity between the offenders.

The applicant was a Customs Officer. He was paid $100,000 by the co-offender (herself a former Customs Officer) to shepherd a consignment of cigarettes through customs, evading the payment of more than $6 million in duty. Each was charged with aiding and abetting the importation of tobacco products with the intention of defrauding the revenue; respectively either bribing a public official or receiving a bribe as a public official; and the co-offender had an additional charge of dealing with proceeds of crime. When they were first sentenced in the District Court, the applicant’s sentence had been about 73% of his co-offender’s sentence. But the co-offender successfully appealed her sentence on grounds presently not relevant. After her sentence was reduced, the applicant’s sentence was now 89% of his co-offender’s. In other words, the difference between the two sentences was reduced because of the co-offender’s successful appeal – notwithstanding that, for example, the co-offender had an additional charge to be dealt with.

The applicant appealed. His argument was that, following the reduction of the co-offender’s sentence, there was now a disparity in their sentences. He sought a reduction of his original sentence (4 years, with a non-parole period of 2 years) to correct for the disparity which the co-offender’s successful appeal had created; in effect he wanted his sentence reduced by about the same percentage that the co-offender’s sentence had been reduced, to re-establish the original ratio between their sentences.

By majority (Price J, Rothman J agreeing with additional reasons; Basten JA dissenting) the CCA allowed the appeal. In the kind of outcome that causes headaches for authors of case summaries, each judge provided different reasons for their position.

Price J considered that the ‘kernel’ of the applicant’s justifiable sense of grievance could be seen by reference to their undiscounted starting points after the co-offender had been resentenced. Even though he had lower overall criminality, after the co-offender’s appeal the applicant had a higher undiscounted head sentence, and a non-parole period which was only two months shorter (at [132]-[134]). In Price J’s view, the parity principle does not apply only to the offender who receives the more serious sentence (at [123]). How then, his Honour asked rhetorically, can the notion of equal justice be fulfilled by a higher undiscounted aggregate sentence being imposed on the offender with the lesser total criminality (at [136])? In his Honour’s view, it could not – with the consequence that there had been an error (at [137]).

In joining Price J as to the outcome, Rothman J set out his reasons somewhat differently. His Honour considered that where a judicial officer has established a parity [by which, presumably, his Honour means a ratio between offenders] that is not plainly wrong, it should not be disturbed except for a good reason (at [51]). In this case, the sentencing judge arrived, intuitively, at an appropriate relationship between the sentences between the offenders which was correct, notwithstanding the issues which gave rise to the successful appeal against the co-offender’s sentence (at [69]), and that should be maintained.

Basten JA was in dissent. His Honour considered that the CCA decision in the co-offender’s matter may have been wrongly decided (at [36]). However, on the assumption that it was correct, there were said to be five reasons why the successful appeal in the co-offender’s case should not affect this offender, the most obvious of which was that the CCA must have already considered parity when it came to resentence the co-offender (at [29]-[33]).

As a practical consideration, this decision has the potential to be very important in matters where there are co-offenders. It means that if practitioners are representing an offender who is early in the queue of offenders to be sentenced, they will need to monitor the outcomes in the subsequent matters to see whether their outcomes might not give rise to appeal after-all – even once they have eventually been sentenced and potentially appeal.