Parity is the concept that like cases should be treated alike and different cases should be treated differently.
Best practise is that co-offenders should be sentenced at the same time by the same judicial officer so that they can consider any relevant similarities and differences between the offenders’ roles in an offence and their individual personal circumstances. This involves both an objective and subjective assessment.
Objectively, the bench accesses each parties’ role in the criminal conduct. Subjectively, the judicial officer looks at how the personal characteristics of each offender impacts the way they should be sentenced. This can include an assessment (and comparison) of each offender’s criminal history, remorse and various other features innate to them.
When sentenced by different judges, any discrepancy between the offenders’ sentences must be judged by reference to the specific evidence, submissions and findings made in relation to each.
There are many reasons that offenders could legitimately receive disparate sentences even if they are charged under the same factual matrix. It is up to your legal representatives to distinguish and differentiate between co-offenders. Factors that could lead to difference sentences could include, for example, one person having a substantial criminal record with the other none; one offender having significantly higher prospects of rehabilitation; or one offender being sentenced in the Childrens Court while the other is an adult. Different sentence regimes have different priorities so this can lead to substantially different outcomes.
Parity can apply even when at first blush the offences are quite different. For example, if someone is charged with a radically different offence but was part of the same criminal enterprise, parity can be an important factor.
There is generally no parity in bail. This means even if two co-offenders have bail, there is no guarantee the third will be released.
There is a high bar to appeal a matter on the basis of parity issues where a sentencing Judge is fully aware of the sentences imposed upon co-offenders and provides reasons for departing from those sentences. They key point is an offender must establish that they have a justifiable sense of grievance if they have not been sentenced on an equivalent basis to a co-offender. This means when there are points of differentiation that justify unequal sentences, parity does not operate such that the sentences should be equal.
It was noted in by the Court of Criminal Appeals that:
On any view of the authorities, merely pointing to some difference between the two subjective cases of co-offenders who committed the same crime and received the same sentence would not of itself establish a justifiable sense of grievance. Ultimately, this area of discourse is directed to determining whether or not the sentencing discretion miscarried and not whether or not this Court would have imposed a different sentence to that imposed at first instance.
Parity is important because the judicial system requires fairness and predictability. Offenders should be able to anticipate of the type of punishment they may face, and this is not possible when there are vasty different outcomes for similar offences. If there is a difference in sentence, it needs to be explainable and fair.
Rebecca Kriesler, Senior Lawyer
1 Green v The Queen (2011) 244 CLR 462; Lowe v The Queen (1984) 154 CLR 606.
2 Ooi v R [2023] NSWCCA 97 [2023] NSWCCA 97 at [26], Chamon v R [2020] NSWCCA 112 at [35]–[37]
3 Moran v R [2022] NSWCCA 217 at [29].
