This page was last updated on 24 April 2023.

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Dib v The King [2023] NSWCCA 243 — where co-offender’s sentence reduced on appeal and relative culpability between offender and co-offender not challenged, offender left with justifiable sense of grievance permitting appeal.

1. Meaning of Parity

The parity principle is the principle that offenders who have engaged in the same type of criminal conduct should typically receive similar sentences.¹

It is a well-established principle taken into account as part of the instinctive synthesis approach applicable to sentencing federal offenders.

The differences in sentences of compared offenders should not be so marked as to give rise to a legitimate sense of grievance or injustice, as this leads to an ‘unjustifiable discrepancy’ which may be remedied on appeal: Lowe v The Queen [1984] HCA 46.

1.1 Rationale of the Parity Principle

Parity stems from the general principles of equal justice and consistency in federal sentencing that like cases should be treated alike: Green v The Queen [2011] HCA 49, [28]; Lowe v The Queen [1984] HCA 46. In 2006, the Australian Law Reform Commission’s Same Crime, Same Time: Sentencing of Federal Offender report stated the origins of the parity principle as:

The principle of parity between co-offenders is essentially a subset of the principle of consistency, although it is often referred to as a sentencing principle in its own right. Parity stipulates that offenders who have jointly engaged in the same type of criminal conduct should ordinarily receive similar sentences. However, courts are able to have regard to any relevant differences in the level of culpability of each offender, and to take into account differences in the subjective circumstances of the offenders. Differences in sentences imposed on co-offenders should not be so marked as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence. Parity is best achieved when the same judicial officer determines the sentences of all co-offenders.²

[5.20]. [Citations omitted]

2. Application of the Parity Principle 

2.1 Co-offenders Charged with the Same Offence

It is uncontroversial that the consideration of parity applies to co-offenders who are sentenced for the same offence. Courts are to take into account both objective and subjective features when considering parity and comparing co-offenders. Gibbs CJ held in Lowe v The Queen [1984] HCA 46 at [3] that:

It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. 

The High Court affirmed the parity principle as considered in Lowe v The Queen in Postiglione v The Queen [1997] HCA 26:

The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated.

…

different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison. And, of course, it is necessary when applying the parity principle that like be compared with like. There may be some aspect of one offender’s criminal history or custodial situation which has no counterpart in the case of his or her co-accused. If so, it may justify the imposition of a different sentence or the structuring of the sentence in such a way that it results in some difference in the period actually spent in custody.

2.2 Co-offenders Charged with Different Offences

The consideration of parity can apply to co-offenders who have been involved in the same criminal enterprise but are charged with different offences.

In Jimmy v The Queen [2010] NSWCCA 60,³ the Court held that parity can apply to co-offenders charged with different offences but noted significant limitations. Campbell JA (Howie and Rothman JJ agreeing) conducted an extensive review of High Court and intermediate appellate court authority considering ‘between whom does the parity principle apply’.⁴

His Honour held at [136]:

There is clear High Court authority that the principle applies to the sentences imposed upon co-offenders, in the sense of people who have both committed the one crime. As cases discussed both above and below show, there is a stream of authority in intermediate courts of appeal recognising that, within limits, it can have a role to play in comparison of sentences for different crimes committed by people involved in a common criminal enterprise. Outside its proper scope of application it cannot apply at all. In accordance with the principles that Johnson J quoted from Morgan, R v F, George and Singh the sentencing of people who have not committed crimes to which the parity principle can be applied must be carried out by direct application of the principles of sentencing.

Campbell JA discussed further the ‘significant limitations’ on the use of parity when sentencing co-offenders charged with different offences in the same criminal enterprise at [203]:

There are significant limitations, however, on reducing a sentence on the basis of that of a co-offender who has committed a different crime. At least some of the limits on the use of the parity principle in such a case are:

1. It cannot overcome those differences in sentence that arise from a prosecutorial decision about whether to charge a person at all, or with what crime to charge them: Howard; Wurramarbra; Formosa
2. If it is used to compare the sentences of participants in the same criminal enterprise who have been charged with different crimes, there can be significant practical difficulties. Those practical difficulties become greater the greater the difference between the crimes charged becomes, and can become so great that in the circumstances of a particular case a judge cannot apply it, or cannot see that there is any justifiable sense of grievance arising from the discrepancy: Gibson; Howard; Formosa
3. It cannot overcome differences in sentence that arise from one of the co-offenders having been given a sentence that is unjustifiably low: Armstrong; Diamond; Rexhaj; Isamundar
4. There are particular difficulties in an applicant succeeding in a disparity argument where the disparity is said to arise by comparison with the sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the applicant: Krakouer; Pham; Woodgate. See also R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at [127]–[134]. However Nguyen stands as one example where that result arose. [Emphasis added]

Howie J agreed with Campbell JA at [245]–[246]:

The principle of parity should not be confined to a consideration of the sentences imposed upon co-offenders in the strict sense, that is persons involved in and charged with the very same crime. There is nothing in the decisions of the High Court that so confine it.

The principle… should be applied to bring about a just result in the sentences imposed upon persons who have been engaged in the same criminal enterprise regardless of the charges that have actually been laid against the offenders. [Emphasis added]

In DPP (Cth) v Gregory [2011] VSCA 145, two co-offenders were involved in a common criminal enterprise but were convicted of slightly different conspiracy charges. The Court held that differences in the objective seriousness of offending could not be ignored but present a practical difficulty when comparing co-offenders from the same enterprise. Warren CJ, Redlich JA and Ross AJA held at [27] that:

His Honour viewed the fact that they had been charged with different offences attracting different maximum penalties as irrelevant to the question of parity. With respect, that was not a distinction that could be ignored. The parity principle may be applied to reduce the sentence of one of the participants in a common criminal enterprise even though they have not been charged or found guilty of committing precisely the same crime. Practical difficulties in the application of the principle will often arise where they have not been charged with or convicted of the same crime. The greater the differences in the nature and seriousness between the crimes charged, the more difficult the application of the principle will become, to the point where the differences are so great that the principle can no longer be applied.

2.3 Non-co-offenders

In some jurisdictions, a principle akin to parity can apply to non-co-offenders who are not members of a common criminal enterprise where there is a sufficient nexus between the offenders and the offending: Farrugia v The Queen [2011] VSCA 24, [31] (Redlich and Bongiorno JJA).

In the state case of Farrugia v The Queen [2011] VSCA 24, Redlich and Bongiorno JJA applied this principle to a pair of sibling offenders who robbed the same person independently of each other, but in a similar manner: at [27]. Because the appellant had stolen a materially lesser amount than his brother, he had a justifiable sense of grievance when imprisoned for only 4 months less: at [28], [32]. Redlich and Bongiono JJA stated at [25]–[27]:

The appellant’s alternate argument was that, even if the brothers were not in a common criminal enterprise, there was a sufficient nexus between, and such important common features of the brothers’ offending that the principle of equal justice required that Matthew’s sentence should have been given significant weight in fixing the appellant’s sentences.

There is considerable force in that submission. While the general principle of consistency of sentencing is achieved by a consideration of comparable cases which inform the range of sentences applicable, the essential and different characteristic of the parity principle requires the alteration of one sentence to conform with that of a related offender. But there will be circumstances in which the principles of consistency and parity become so closely related that the principles of equal justice may dictate that the sentence under question should be brought into line, or more closely conform, with the sentence imposed on an offender for a related crime. Such reasoning need not be confined to co-offenders or a common criminal enterprise.

…

If there are offenders whose offending is very similar and is in some way related, the sentence imposed on one offender may be a relevant factor to take into account in the exercise of the sentencing discretion for the other. The connection between the offenders may not fit within the rubric of a common criminal enterprise. Their offending may involve the same victim or the same subject matter, or there be some other connection. The weight to be attributed to the sentence which is the subject of comparison will depend upon such things as the nexus between the offenders, the degree of similarity between their conduct, and factors personal to each offender. Depending on those circumstances, the principle of equal justice may require a sentencing judge to give the specific sentence imposed on the other offender substantial weight. [Citations omitted; emphasis added]

Although the principle is distinct from parity, it enlivens the same considerations and sentencing considerations. Redlich and Bongiono JJA stated in Farrugia at [31] that:

Where the principle of parity is enlivened, or as in the present case, the principles of consistency of sentencing and parity coalesce, the Court’s discretion is not fettered so as to require it to impose a sentence on an offender which exactly equates with the sentence imposed on the other offender. Where the co-offender’s sentence is inappropriately low, the appellant’s sentence is not to be reduced to the point where it too is manifestly inadequate.  [Citations omitted]

The approach in Farrugia v The Queen [2011] VSCA 24 has been adopted in federal sentencing cases in Victoria: see Tran v The Queen [2022] VSCA 44, [31]. The principle has been approved in Western Australia in  Apkarian v Western Australia [2015] WASCA 67, [45]–[49] (in which the offenders being known to each other and targeted by the same law enforcement operation was not a sufficient nexus) and Stoyish v Western Australia [2014] WASCA 208, [45]–[46] (where a sufficient nexus was found where the offender had assisted in two separate drug transactions, involving two other offenders, with similarities in the circumstances of each instance of offending).

The Queensland Court of Appeal in the state case of R v Leathers [2014] QCA 327 has declined to apply Farrugia and highlighted the unique circumstances in which the extension in Farrugia developed. Gotterson JA (Fraser and Morrison JJA agreeing) stated at [23], [26]–[27]:

For reasons which I shall explain, I do not consider it necessary or appropriate in this case to take up the applicant’s invitation and consider whether the Farrugia extension ought to be applied in Queensland.  These reasons have to do with both the unusual factual circumstances in Farrugia and anomalies in applying the parity principle in this case were it held to be applicable to it by extension.
…
The coincidences in victim and type of offending against him in Farrugia stand in stark contrast with victim-less offending committed by offenders independently of each other.  Here, Roberts, Eves, Burton, the applicant and others, though supplied by the same wholesaler, were not co-offenders.  The identity of the wholesaler was not critical to their offending by trafficking at street level.  The fact that there was a commonality of wholesale supplier was not an element of their respective offending.

It may be acknowledged that in Farrugia their Honours stated that the parity principle had not uncommonly been applied by Victorian courts to multiple street traffickers and distributors who had dealt with the same supplier.  That statement is in the nature of an observation of what courts sometimes have done.  As I read it, the statement was not intended to be taken as a statement of legal principle to the effect that the parity principle is to be applied universally in sentencing street-level drug traffickers who have been supplied by the same wholesaler.

The position in Leathers was affirmed in the state case of R v Hughes [2017] QCA 178, [25] (Morrison JA, Philippides JA and Brown JA agreeing).

In Baladjam v The Queen [2018] NSWCCA 304, offenders were sentenced for different terrorism offences where separate conduct comprised each offence. Although they were initially charged as co-conspirators, they were not sentenced as such. Bathurst CJ (Hoeben CJ at CL and Fagan J agreeing) held that the parity principle could not apply beyond co-offenders or members of a joint criminal enterprise: at [147]–[149].

Superior courts in the Australian Capital Territory, Northern Territory, South Australia, and Tasmania have not (as at the date of this update) considered the Farrugia approach.

3. Determining Parity

3.1 Objective Assessment 

The consideration of parity involves an objective comparison with a compared offender’s sentence, not whether the offender has a subjective sense of grievance. In Green v The Queen [2011] HCA 49, French CJ, Crennan and Kiefel JJ held at [31] that:

The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise [Citations omitted].  

3.1.1 Where Compared Offenders are Sentenced on the Basis of Different Facts

Co-offenders may plead guilty to different agreed facts or trial judges may make different factual findings in compared offender’s sentences. In Tran v The Queen [2020] NSWCCA 310, the Court made clear that disparity in compared sentences can be justified by reason of different findings of fact or the subjective factors of the individual offender. Hoeben CJ at CL (Price and Fagan JJ agreeing) stated at [35]:

Mere disparity of sentence is not a ground for such a complaint and an objectively justifiable sense of grievance must be apparent. Differences in sentences can be properly grounded in different findings of fact. Such differences can also be based on different findings as to the character and antecedents of persons being sentenced [citations omitted; emphasis added].

3. Parity as a Ground of Appeal

4.1 Severity Appeal by Offender 

In Dwayhi v The Queen [2011] NSWCCA 67, Johnson J (Whealy JA and Hidden J agreeing) reviewed High Court and intermediate appellate court authorities regarding parity. Johnson J explained at [23], [25]:

It should be kept in mind that a ground of appeal asserting disparity is concerned with markedly and unjustifiably different sentences imposed on different offenders. In England v R; Phanith v R [2009] NSWCCA 274, Howie J (McClellan CJ at CL and Fullerton J agreeing) said at [61]–[67]:

• 61… A ground asserting disparity is concerned with such markedly and unjustifiably different sentences imposed on co-offenders that they give rise to a genuine feeling on the part of an impartial observer that justice has not been achieved because one offender has been unfairly treated having regard to the sentence passed upon the co-offender. Yet frequently, as in this case, the Court is asked to trawl through the sentencing remarks and the facts and circumstances of the two offenders in detail in order to dissect and weigh every aspect of their competing objective and subjective facts to see whether some variation, however minor, should be made to the sentence of the person who, it is asserted, has a grievance.
• 62 It should be borne in mind that the High Court’s decisions on this area of appellate intervention speak of ‘gross’, ‘marked’, ‘glaring’ or ‘manifest’ disparity. These terms are used throughout the judgments in Lowe v The Queen [1984] HCA 46; 154 CLR 606. Another way of considering the issue is to ask whether the two sentences give rise to an appearance that justice has not been done: per Gibbs CJ at 610 and Dawson J at 623. [Emphasis added]

4.1.1 Effect of a Co-offender’s Successful Appeal Against Sentence

Where a co-offender has been resentenced on appeal, the sentence imposed may in some circumstances be capable of giving rise to a justifiable sense of grievance on the part of a co‑offender who did not appeal their sentence. However, this will depend on the nature of the error that is determined on appeal, and whether that error informs the sentence imposed not only on the successful applicant, but on other co-offenders who were sentenced. An appeal by a co-offender based on a justifiable sense of grievance in such circumstances remains to be determined on the basis of the principle of parity between co-offenders: see Eakin v The Queen [2020] NSWCCA 294 at [53, [57]-[58] (Rothman J), [130]-[131] (Price J).  

4.2 Crown Appeal 

In Green v The Queen [2011] HCA 49, French CJ, Crennan and Kiefel JJ held that considerations of parity may give rise to a basis for the exercise of the residual discretion not to re-sentence, where resentencing would give rise to unjustifiable disparity between the new sentence and the unchallenged sentence imposed on a co-offender. Their Honours explained at [34], [36]–[37]:

These appeals are concerned with its application in appeals by the Crown against the inadequacy of sentences. The application of the parity principle in such cases is different. It is shaped by the content of the statutory jurisdiction and powers conferred on the court and by the purpose of Crown appeals which informs the exercise of that jurisdiction. Nevertheless, it is necessary that its application in Crown appeals not be logically inconsistent with its application in appeals by convicted persons.

…

The parity principle has been the focus of debate in these appeals. Its undisputed significance does not mean that the Court must dismiss a Crown appeal in every case in which allowing the appeal would give rise to disparity. Where disparity is apprehended, the residual discretion is enlivened. However, a powerful consideration against allowing a Crown appeal would be the resultant creation of unjustifiable disparity between any new sentence and an unchallenged sentence previouslyimposed upon a co-offender. The question would then arise: would the purpose of Crown appeals under s 5D [of the Criminal Appeals Act 1912 (NSW)] be served by allowing the appeal? If the result of doing so would be asentence ‘adequate’ on its face, but infected by an anomalous disparity which is an artifact of the Crown’s selective invocation of the Court’s jurisdiction, the extent of theguidance afforded to lower courts may be questionable.

1. Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [5.20].[↩]
2. Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [↩]
3. The analysis of parity in this case has been adopted in cases such as: DPP v Bowden [2016] VSCA 283, [53]; R v Illin [2014] QCA 285, [34].[↩]
4. See Jimmy v R [2010] NSWCCA 60, [53]–[204].[↩]