PG v R [2017] NSWCCA 179
PG v R [2017] NSWCCA 179 · Read the judgment on AustLII
Catchwords: Parity – where agreed facts differ between offenders – discounts where aggregate sentence is imposed
In this decision, the NSW Court of Criminal Appeal (‘CCA’) has held that different facts between different offenders call for different sentences – even if that result might look illogical or frustrate attempts for equal justice. It also, by a majority, held that when an aggregate sentence is imposed, only the individual indicative sentences are discounted, not the final aggregate sentence.
Unusually, there is only scattered detail in this judgment about the facts. The best that can be discerned, there was a serious assault on a person and at the end of the assault the victim’s house was set on fire, starting from the garage. The applicant pleaded guilty to nine charges with seven more taken into account on a Form 1, covering two different dates. He was sentenced to an aggregate term of 9 years with a non-parole period of 6 years, 9 months, having received a total discount on sentence of 50% (25% for his plea of guilty, and 25% for assisting authorities).
The appeal raises two issues: parity of sentences between co-offenders where the facts are different for each offender; and how to discount aggregate sentences.
In relation to parity, the issue arose in this case in part because, although each of the offenders was dealt with by the same judge and parity was front-of-mind for both the bench and advocates, the offenders were each sentenced subject to different agreed facts. For example, there was a dispute between the applicant and his co-offender about whether the co-offender had tried to assault the victim by trying to insert a sheathed sword into the victim’s ‘arse’ (choice of language – and quotation marks – from the original). There was also a dispute about whether it had been the applicant or his co-offender who had splashed petrol around and set fire to the house (the sentencing judge eventually found she was unable to determine who was responsible).
On appeal the court (Basten JA, Button and N Adams JJ agreeing on parity point) held that each sentencing exercise must be considered by reference to the evidence before the court in sentencing the particular offender. Differences in facts justify, and may demand, differences in the sentences imposed (at [48]). Sentencing does not take place on the basis of a single objective established truth, but on the basis of the particular evidence before the judge. Although that may frustrate the urge for equal justice where co-offenders are dealt with differently, it does not give rise to a basis for appellate intervention (at [24]). In addition to being useful as authority for the proposition that different facts can (contrary to everyday logic) apply to the same situation, Basten JA’s review of the cases relating to parity as an appellate point is helpful (at [10] to [22]).
The other question which arose was how to deal with discounts for aggregate sentences. Readers will remember that the law requires indicative sentences to be expressed for each offence before a judge announces the aggregate sentence. But do the discounts apply before, or after, the sentences are aggregated?
Button and N Adams JJ (Basten JA dissenting on this point) held that the discount(s) are to be imposed on the indicative sentences, but not on the aggregate sentence. The primary that Button and N Adamss JJ came to that conclusion was that it was implicit in appellate authority since a decision in JM v R [2014] NSWCCA 297 (at [76] of this decision). The balance of their reasoning was set out in nine relatively pithy (but still too long for a summary) points (at [78] to [92]). The conclusion was that, having indicated a discount for each individual count, in the last step when the aggregate sentence is announced, there is a kind of instinctive synthesis (this author’s choice of language) which takes account of what might be widely varied discounts for different counts in a global way, but without averaging the discounts from individual counts, or by imposing some other discount. That is, although there is room for doubt (at [96]) the balance of authority supports the conclusion not a two-stage discounting process and is not plainly wrong (at [77]).
The practical consequence for practitioners is that it remains vital to submit on the different discounts for each count. For example, if one count involved a plea in the Local Court, and another on the first day of trial, then (all other things being equal), the first would normally receive a discount of 25% and the second 10% (reflecting the differing utilitarian values of the pleas). When the aggregate sentence is imposed, the judge deals with the issue of accumulation / concurrency of the sentences and announces the final sentence without revisiting the discounts.