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Issued: 8 June 2021
To successfully challenge severity of sentence on parity grounds, an offender’s sense of grievance about receiving a heavier sentence than a co-offender must be objectively justifiable.
An appellate court will be cautious to intervene where co-offenders were sentenced by the same judge.
The parity principle in sentencing requires like cases to be treated alike, and different cases to be treated differently: Green v The Queen (2011) 244 CLR 462 at . Any difference between sentences imposed upon co-offenders should not give rise to a justifiable sense of grievance or to an objective appearance of injustice. Li provides a useful illustration of the principle.
Li's sense of grievance on parity grounds
In Li, the applicant and his co-offender, Mr Tsang, pleaded guilty to offences of ongoing supply of a prohibited drug (cocaine), contrary to s. 25A of the Drug Misuse and Trafficking Act 1985. The applicant was sentenced to 4 years and 3 months imprisonment, with a non-parole period of 2 years and 9 months. Mr Tsang was sentenced to 3 years and 4 months, with a non-parole period of 2 years.
The applicant contended in the Court of Criminal Appeal (CCA) that he had a justifiable sense of grievance because he received a longer sentence than Mr Tsang. This was because Mr Tsang, as the ‘up-line supplier’, occupied a ‘significantly’ higher position in the criminal syndicate than did the applicant, a ‘money and drug runner’.
Where the same judge has sentenced related offenders, and has recognised the importance of the parity principle and given effect to it, an appellate court will be ‘cautious and not overly willing’ to intervene on the basis of an asserted departure from the parity principle (applying settled principles at ).
In Li, the CCA considered that:
If the same judge sentences related offenders, preferably at the same time, he or she will be better placed to give overall consideration to the relationship between the objective and subjective features of offenders. As such, the sentence will be less vulnerable to challenge on appeal on parity grounds.
Sarah-jane Morris, Director
02 9497 9390
Katrina Frearson, Senior Solicitor
02 9497 9558
Alexi Polden, Graduate Solicitor
02 9497 9276
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