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Lowe v R [1984] HCA 46; (1984) 154 CLR 606 (2 August 1984)

CATCHWORDS

Criminal Law - Sentence - Co-offenders - Disparity between sentences - Interference by appellate court - Principles - Imprisonment - Parole - Relationship between sentence and minimum time after which offender eligible for parole - Offenders Probation and Parole Act 1980 (Q.), s. 53(3).

HEARING

DECISION

2. This Court has consistently held that it will not grant special leave to appeal simply because a sentence appears to it to be excessive: Colefax v. The Queen (1962) ALR 399. Although it would be unwise, if not impossible, to attempt to define exhaustively the circumstances which make a case "special", it is true to say, at least speaking generally, that to warrant the grant of special leave to appeal against a sentence when there has been no want or excess of jurisdiction, it must appear that the case involves some question of law or principle of general importance or that there has been a gross violation of the principles which ought to govern discretion in imposing sentence: White v. The Queen [1962] HCA 51; (1962) 107 CLR 174; Veen v. The Queen [1979] HCA 7; (1979) 143 CLR 458, at pp 461, 467, 473, 492, 497; Neal v. The Queen [1982] HCA 55; (1982) 149 CLR 305, at pp 309, 320-321.

3. The question whether special leave to appeal should be granted in the present case is not without difficulty. On behalf of the applicant it was submitted that the case raises an issue of general importance in the administration of the criminal law, namely the manner in which the court should proceed when it is established that there is a gross disparity between the sentences imposed on co-offenders. There is no doubt that a disparity did exist between the sentence imposed on the applicant and that imposed on his co-offender, Smith; that was the reason why the Court of Criminal Appeal interfered with the sentence to the extent of reducing the period after which the applicant could be considered for parole. The approach to be adopted by a court of criminal appeal when it appears that the sentences imposed on co-offenders exhibit disparity is not always stated in the authorities with complete uniformity. It is unnecessary for me to discuss in detail the cases which are cited in other judgments. The true position in my opinion may be briefly stated as follows. 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 fact that one co-offender has received a sentence which is more severe than that imposed on a co-offender whose circumstances are comparable would provide no reason in logic for reducing the former sentence, if the only question were whether that sentence, viewed in isolation, was manifestly excessive. However, the Court of Criminal Appeal in Queensland, on an appeal against a sentence, may quash the sentence imposed and substitute another "if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed": s.668E of the Criminal Code (Q.). The same or similar words appear in the statutes of the other Australian States, and they are wide enough to empower the court in its discretion to reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender. It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. The decision whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the court of criminal appeal.

4. It seems to me that the Court of Criminal Appeal in the present case recognized and applied these principles, which do not appear seriously to have been in dispute before that court.

5. It was then submitted that the sentence imposed on the applicant was such that the interests of the administration of justice required the consideration of the case by this Court. The submission was that it was erroneous to resolve the disparity simply by reducing the non-parole period, and leaving intact the sentence of six years' imprisonment. The proper course, it was submitted, was also to reduce the sentence itself.

6. No doubt there should be an appropriate relationship between the sentence imposed on an offender and the minimum term after which he becomes eligible to be released on parole. What is appropriate must depend very much on the circumstances of the case, and the exact relationship between those two periods is something that has to be determined in the exercise of a wide discretion. With great respect to those who may take a different view, I am unable to say that the relationship of six years to one is so unreasonable as necessarily to bespeak error. Although the view might well be taken that the sentence of six years' imprisonment was a heavy one in the circumstances of this particular case, and that it might have been appropriate to reduce the head sentence proportionately with the non-parole period, the failure of the Court of Criminal Appeal to reduce the head sentence cannot, in my opinion, be described either as an error of law or an error of principle or as a violation of settled sentencing principles.

7. A case in which the sentence imposed appears to be a heavy one necessarily excites some sympathy but for the reasons I have given I consider that the case is not one in which special leave to appeal should be granted.

MASON J. Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community. And it is against this background that the present application for special leave to appeal - one which reveals an exceptionally glaring example of discrepancy in punishment - has to be considered.

2. However, this Court has traditionally been reluctant to grant special leave to appeal against sentence. The powerful reasons which underlie this reluctance have been expressed on previous occasions and by other members of the Court on this occasion. The consequence is, as Gibbs C.J. observes, (a) that the Court will not grant special leave merely because the sentence appears to be excessive and (b) that, in general, special leave will not be granted unless it appears that the case involves some question of law or principle of general importance or that there has been a gross violation of the principles which ought to govern the exercise of the judicial discretion in imposing sentence. But I would emphasize that the discretion to grant or refuse leave cannot be reduced to a formula or to rigid categories and that the Court must always make allowance for the exceptional case of manifest injustice or manifest public importance which may not readily fall into one of the categories already mentioned. The recent reform of our jurisdiction and the projected reform which is designed to ensure that this Court is the sole ultimate court of appeal for Australia makes it imperative that we do not, by the adoption of too rigid an approach, exclude appeals in cases which have significant consequences for the administration of justice or for public confidence in it. Even if the present application does not involve an important issue of principle arising from a manifest disparity in the penalty imposed on co-offenders in respect of convictions for the one offence - as I think it does - it certainly raises a case of manifest public importance.

3. The authorities do not speak with one voice on the question whether marked disparity in sentences imposed on co-offenders whose circumstances are comparable is itself a ground for reducing the more severe sentence or whether such marked disparity is merely indicative of the presence of an undisclosed error in the process of sentencing. As a matter of general principle it is important that this Court should declare unequivocally that marked disparity is itself the ground. The reasons for taking this course are expressed later in this judgment.

4. It has been urged with some force that a sentence which is appropriate to the offence should never be reduced on the ground of discrepancy because there can be no acceptable basis for substituting a lesser sentence for one which is appropriate. On this approach the tendency of a particular sentence to engender a justifiable sense of grievance in the offender and an appearance to the community of unfairness or injustice, by reason of the harshness of the sentence in comparison with that imposed on the co-offender, is immaterial, so long as it is appropriate to the circumstances of the case. It is said that the proper method of correcting the discrepancy is to increase the penalty of the co-offender if it is inappropriate or inadequate. The difficulty with this approach is that a court of criminal appeal is from time to time unable to avoid that sense of grievance and the appearance of injustice by increasing an inadequate penalty imposed on the co-accused simply because there is no Crown appeal against that penalty. It has therefore been generally accepted that it is preferable to err on the side of leniency and eliminate or diminish the sense of grievance and appearance of injustice by reducing the more severe penalty in appropriate cases. So the courts have on many occasions reduced a sentence to bring it more into line with the co-offender's penalty, though it is well established that there is no principle of law that sentences must strictly compare (Reg. v. Coe (1969) 1 All ER 65; Ball (1951) 35 Cr App R 164; Pitson (1972) 56 Cr App R 391; Street (1974) Crim L.R. 264).

5. The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty. Accordingly, a court of criminal appeal confronted with the problem of discrepancy can substitute for a severe but appropriate sentence a lesser sentence which nevertheless falls within the order of what is appropriate. But the critical question is whether a court of criminal appeal can go further by reducing a sentence, which considered apart from disparity is otherwise appropriate, to a level where it is inadequate or might be regarded as inadequate.

6. In England it has been held that a court should not interfere in such a case on the ground of disparity unless there is "such a glaring difference between the treatment of one man as compared with another that a real sense of grievance would be engendered in the case of the man suffering the more serious penalty" (Stroud (1977) 65 Cr. App. R. 150, at p.153). In New South Wales different approaches were pursued by the members of the Court of Criminal Appeal in Reg. v. Tisalandis (1982) 2 NSWLR 430. Street C.J. observed (at pp 431-432) that in the interests of justice it had been thought necessary at times in eliminating or diminishing disparity to "reduce a sentence to a level which could probably be criticized as inadequate." But he considered that, though disparity was not itself a ground of intervention, it was indicative of the presence of error in the sentencing process. Nagle C.J. at C.L. adopted a similar approach (p.441). On the other hand, Moffitt P. concluded that it was not permissible in a case of disparity to reduce a proper sentence to an improper sentence, though it might be that "in special circumstances some reduction in an otherwise proper sentence by an amount which would leave the substituted sentence a proper one would be warranted" (p.440). And in Victoria the Court of Criminal Appeal has stated that "an applicant who contends that a difference between two sentences is excessive must show that the difference is manifestly not merely arguably excessive" (Pecora v. The Queen (1980) VR 499, at p 504).

7. This brief review of the authorities raises two questions. The first is: Is discrepancy a ground for intervention in itself or is it merely indicative of undisclosed error in the sentencing process? Logic and reality combine to compel an answer in favour of the first alternative. The undisclosed error, as we have seen, may have occurred in the sentencing process as it affected the co-offender. The sentence under appeal may be free from error except in so far as discrepancy itself constitutes or causes error. And the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander.

8. What I have already said provides an answer to the second question: What is the correct principle to be applied in cases of discrepancy? It is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate.

9. It is not in dispute that there was a manifest discrepancy between the sentence originally imposed on the applicant (six years, with a non-parole period of two years) and the penalty imposed on the co-offender Smith (probation for three years, with performance of 200 hours community service). This much was recognized by the Court of Criminal Appeal when it reduced the applicant's non-parole period from two years to one year. But this still leaves a glaring discrepancy between the two penalties. The contrast between a sentence of six years and a non-custodial penalty remains unaffected. The sharpness of that contrast, though diminished by the non-parole period of one year, results in a discrepancy that can only be described as manifest, indeed glaring, having regard to the nearly equal participation in the offence by the applicant and Smith.

10. In the applicant's appeal, the Court of Criminal Appeal appears to have considered that he was "the prime mover" in the commission of the offence. However, this was not a fact established by proof or admission before the trial judge. All that the trial judge said in sentencing the applicant was that he and Smith were at least equally involved in the preparation of the crime and in the thought which was given to its execution. Although the Court of Criminal Appeal may have been entitled to proceed on the footing that the applicant's participation was in some degree greater than Smith's, they were not entitled to conclude that there was a marked difference between them.

11. If that were all, this would not be a case for special leave. But there is more to it than that. The sentence of six years imposed on the applicant, considered in the light of the circumstances of the offence - he was armed only with the handle of a spray gun (which was covered so as to convey the impression that it was a firearm) - and his age and the fact that he was a first offender, was itself excessive and should have been reduced on that account alone.

12. The recommendation by the Court of Criminal Appeal of a non-parole period of one year did not reduce the severity of the sentence. Section 63 of the Offenders Probation and Parole Act 1980 (Q.) provides that a prisoner on parole is regarded as still being under sentence and as not having suffered the punishment for which he was sentenced. Under s.67(1) the effect of the cancellation of a prisoner's parole is that the original warrant of commitment for his imprisonment again comes into force and no part of the time spent on parole is regarded as time served in respect of the term of imprisonment. The effect of a recommendation for a period of non-parole under s.53(3)(a) is relevantly indistinguishable from the specification of a non-parole period under s.4 of the Parole of Prisoners Act 1966 (N.S.W.) and s.4 of the Parole of Prisoners Ordinance 1971 (A.C.T.) considered by this Court in Power v. The Queen [1974] HCA 26; (1974) 131 CLR 623 except where there are special circumstances justifying an earlier release under s.53(4).

13. In Power the Court held that a non-parole period should be seen as a minimum period of imprisonment to be served because the sentencing judge considers the crime committed calls for such detention and should not be seen as the minimum time sufficient to enable the paroling authority to form a proper opinion of the prisoner's prospects of rehabilitation. The joint judgment of Barwick C.J., Menzies, Stephen and Mason JJ. points out, however, that while the object of the specification of a non-parole period is to provide for the mitigation of the punishment of the offender in favour of his rehabilitation, there remains in truth only one sentence which cannot be altered by the paroling authority (at pp.628-629). The consequence is that, although the recommendation of the non-parole period may operate in some circumstances to reduce the period of time which the applicant would spend in prison, it leaves the sentence unaffected as a judicial assessment of the gravity of the offence which he committed.

14. The omission of the Court of Criminal Appeal to eliminate or diminish substantially the manifest discrepancy by reducing the applicant's sentence indicates either misunderstanding or gross misapplication of principle. That there may have been some such misunderstanding or misapplication is understandable. As we have seen, divergent views have been expressed as to the principle to be applied and it is the province of this Court by granting special leave to settle the controversy which has arisen. However, quite apart from this aspect of the case, the magnitude of the discrepancy is so great and the implications which flow from it so important as to warrant the intervention of this Court.

15. In the result I would grant special leave to appeal and allow the appeal. As a majority of this Court takes a different view, it is sufficient for me to say that the Court of Criminal Appeal could not properly have imposed a sentence of more than two years. A sentence of not more than two years should be substituted for the existing sentence of six years, with a recommended non-parole period of one year.

WILSON J. I have had the advantage of reading the reasons for judgement prepared by the Chief Justice and also those prepared by Dawson J. I agree with each of their Honours that this is not a case in which special leave to appeal should be granted and with the reasons advanced in support of that conclusion. There is nothing that I wish to add.

BRENNAN J. During the early hours of 26 January 1983, Jonathan Patrick Lowe, the applicant, and David John Smith held up a service station operator at Burpengary, a township north of Brisbane, and stole $404.83 the contents of his cash register. Neither of these young men (each was then aged 18) had a criminal record. Their crime was planned hastily. Smith kept watch outside the service station while Lowe went in pretending that he had a pistol. In fact he had only the handle of a paint spray gun. They spent the money in paying rent and in buying groceries and petrol. No money has been recovered; no restitution has been made.

2. In due course Lowe and Smith were arrested and charged with the crime of robbery while armed with an offensive weapon. The maximum punishment for that crime is imprisonment with hard labour for life with or without solitary confinement (The Criminal Code (Q.), s.411). Both offenders pleaded guilty before the Supreme Court of Queensland. Though they were jointly indicted, they were sentenced separately. On 21 September 1983 Lowe was sentenced by Kelly J. to imprisonment with hard labour for six years with a recommendation that he be eligible for release on parole after serving two years. Smith was sentenced on 11 November 1983 by Thomas J. On the facts placed before Thomas J., his Honour thought that Smith's position was "sufficiently different" from Lowe's position to allow him to order that Smith be admitted to probation for 3 years and that he perform 200 hours community service. Lowe sought leave to appeal against his sentence; the Attorney-General of Queensland appealed against the sentence imposed on Smith. The two matters were heard together by the Court of Criminal Appeal. The Court granted Lowe leave to appeal and varied the order made by Kelly J. by recommending that Lowe be eligible for release on parole after serving 1 year's imprisonment. The Attorney-General's appeal in Smith's case was dismissed. Lowe seeks special leave to appeal to this Court, contending that the Court of Criminal Appeal erred in principle in endeavouring to minimize a patent disparity between the sentences imposed on the co-offenders by reducing his non-parole period without reducing the head sentence.

3. The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case. To facilitate the comparison of conduct and antecedents it is desirable that, where practicable, co-offenders be sentenced by the same judge at the same time.

4. As regard must be had to the comparative gravity of the conduct of co-offenders and to their respective antecedents, an appealable error is not shown by an offender who merely points to a lesser sentence imposed upon his co-offender. To say that an appellate court is bound to take the lesser sentence as the norm even though it is inappropriately lenient is tantamount to saying that "where you have one wrong sentence and one right sentence (the) Court should produce two wrong sentences" - a proposition that cannot be accepted: per Roskill L.J. in Stroud (1977) 65 Cr.App.R.150, at p.152. I agree with Nagle C.J. at C.L. who said in Tisalandis (1979) 1 A.Crim.R.7, at p.17:

" ... to lay down as a principle of law that once
disparity was shown to exist a sentence appealed
against should be interfered with is so obviously
wrong that it needs no argument."

5. There is a passage in the judgment in Pecora v. R (1980) VR 499, at p 504 where the Full Court of the Supreme Court of Victoria seems to say that manifest disparity in sentences may in itself be a ground for appellate interference. If that was their Honours' view, I would respectfully depart from it, for it is wrong to think that it is "more important that sentences should be proportionate to one another than that they should be proportionate to guilt". (R v. Robson and East (1970) Crim LR 354, at p 355, and see Coe (1968) 53 Cr App R 66, at p 71; O'Malley v. French (1971) 2 SASR 110, at p 114). In R v. D'Ortenzio and Burns (1961) VR 432, the Full Court rejected the view that an inappropriately lenient sentence imposed on one offender should be followed by a judge imposing sentence on a co-offender. It follows that an inappropriately lenient sentence imposed on one co-offender is not itself a ground for interfering with a more severe sentence imposed on another. Of course a marked disparity between the sentences imposed on co-offenders sharpens the interest of an appellate court, not because it establishes appealable error but because there must be an error if the lesser sentence is found to be appropriate and no sufficient ground exists for distinguishing between the co-offenders. I venture to repeat what I said in Lovelock v. The Queen [1978] FCA 7; (1978) 33 FLR 132, at pp 136-137, a case where comparable sentences were imposed on co-offenders whose respective circumstances warranted disparate sentences:

" Where offenders whose circumstances are
comparable receive disparate sentences, or where
offenders whose circumstances are disparate
receive comparable sentences, that circumstance
is not sufficient by itself to warrant
interference by an appellate court with the
sentence imposed on any of the offenders. The
court does not interfere with a sentence imposed
on one offender merely because 'a disparity has
been created by another sentence which was far
too lenient, and even though, as a consequence,
the appellant may be left with a sense of
injustice or grievance' (per Walters J. in
O'Malley v. French ((1971) 2 SASR 110, at
p 114); and see R v. Steinberg ((1947) QWN
27)). But if there be differentiating
circumstances which favour the case of an
appellant from the case of another offender who
received a comparable sentence in respect of the
same offence, the lack of disparity between the
sentences bespeaks an error of some kind."

" Marked divergence, whilst not in itself a ground
for appellate intervention, may disclose some
ground for finding error in one or other of the
divergent sentences."

6. In dismissing the Attorney-General's appeal against Smith's sentence, Campbell C.J., with whom Macrossan J. agreed, said that he was not in substantial disagreement with the sentence imposed on Smith and Derrington J. said he agreed with that sentence. Upon that view, Lowe's sentence must have been too severe and it should have been reduced unless his conduct was of significantly greater gravity than Smith's. There was nothing to distinguish their antecedents. Campbell C.J., in whose judgment in this respect Macrossan and Derrington JJ. agreed, found that there were "differences of considerable weight and significance between the two cases, particularly when one looks at the parts played and the material placed before each of the sentencing Judges in relation to each of the co-accused". The difference identified in the judgment of Campbell C.J. is that "Lowe was the prime mover in the commission of this offence". A reading of the application book does not satisfy me that their Honours were right to find that Lowe's conduct was so much graver than Smith's that both sentences can be supported. Before Thomas J., Smith's counsel had argued that Lowe was the main actor but it had not been part of the case alleged against or admitted by Lowe. Indeed Kelly J., in passing sentence on Lowe, had said "it does seem that you and Smith were at least equally involved in its preparation and some thought was clearly given to the carrying of it out". Although the Court of Criminal Appeal was entitled to give appropriate weight to the argument advanced in Smith's case that Lowe was the main actor, it seems to me that there is such a disparity between the sentences as to show that, if Smith's sentence was appropriate, the sentence imposed on Lowe was manifestly excessive. The Court of Criminal Appeal did not think so.

7. On the view adopted by the Court of Criminal Appeal, Lowe's appeal ought to have been dismissed outright. It was not. Instead, Lowe's sentence was varied for the reason stated by Campbell C.J. with the concurrence of Macrossan and Derrington JJ.:

" ... I am somewhat disturbed by the apparent
disparity between the two sentences, and it could
be, I think, that there could be engendered some
real sense of grievance as a result of this
apparent disparity."

8. Although intervention on the ground of disparity alone was erroneous, neither party complained of the Court's decision to intervene. In varying Lowe's sentence, the Court of Criminal Appeal allowed the head sentence of 6 years to stand while the non-parole period was shortened to 1 year. The resulting sentence does not conform to the principle which governs the specification of a non-parole period. Although s.53(3) of the Offenders Probation and Parole Act 1980 (Q.) provides for the sentencing court to recommend that a prisoner be eligible for release after serving a specified minimum period of imprisonment, an exercise of the court's power to specify the minimum period is governed by the principle considered in Power v. The Queen [1974] HCA 26; (1974) 131 CLR 623. The relevant principle was recently re-stated by this Court in Deakin v. The Queen (unreported, 16 May 1984)

" The intention of the legislature in providing for
the fixing of minimum terms is to provide for
mitigation of the punishment of the prisoner in
favour of his rehabilitation through conditional
freedom, when appropriate, once the prisoner has
served the minimum time that a judge determines
justice requires that he must serve having regard
to all the circumstances of his offence: see
Power v. The Queen [1974] HCA 26; (1974) 131 CLR 623, at
p 629."

9. Given that the circumstances of Lowe's offence make 1 year an appropriate minimum period to be served in custody, 6 years seems to be an excessive maximum period. There must be such a relationship between the head sentence and the non-parole period that it is appropriate for either period or for any intermediate period to be served in custody. Either the head sentence is too long or the non-parole period too short. In the present case the reduction of the non-parole period to 1 year by the Court of Criminal Appeal is accepted as an appropriate minimum period. On that footing, the period of the head sentence should have been reduced.

10. Although the decision of the Court of Criminal Appeal is, in my view, affected by two errors in sentencing principle, the applicant has had the benefit of one of those errors - intervention on the ground of disparity alone - in his favour. Should this Court grant special leave to appeal in order to correct the other? The cases in which this Court grants special leave to appeal to review a sentence imposed or confirmed by a Court of Criminal Appeal must be exceptional, but a factor in favour of granting special leave appears where an error in the judgment of a Court of Criminal Appeal is such as to require this Court to settle the true principle. In the present case, I think the principle relating to disparate sentences should be stated. As I do not share the view of the Court of Criminal Appeal that there was sufficient material before that Court to warrant the marked disparity between the sentences once Smith's sentence was found to be appropriate, I am unable to regard the error of that Court's intervention as an unmerited benefit for the applicant. The error with respect to the disproportion between the head sentence and the non-parole period reveals a further error in principle and adds weight to the application for special leave to appeal. I would grant special leave and allow the appeal. Ordinarily I would favour remitting the matter to the Court of Criminal Appeal for further consideration for reasons which I stated in Neal v. The Queen [1982] HCA 55; (1982) 56 ALJR 848, but in the present case the non-parole period fixed by the Court of Criminal Appeal is nearing its end and the sentencing standard to be applied in the applicant's case has been set by that Court in Smith's case. It is possible to fix a sentence representing what was the maximum that the Court of Criminal Appeal could properly have imposed in the circumstances, giving full weight to any difference in the gravity of the conduct of the co-offenders. I would grant special leave to appeal, allow the appeal and, using Smith's sentence as a legitimate reference point, I would reduce the head sentence to 2 years leaving the minimum non-parole period at 1 year.

DAWSON J. This is an application for special leave to appeal against a decision of the Court of Criminal Appeal of the Supreme Court of Queensland which resulted in the variation of a sentence imposed upon the applicant by the judge at first instance. There is also an application for an extension of time to enable the application for special leave to be made.

2. It has been pointed out on many occasions that appeal to this Court in criminal cases is by special leave only and that this means that leave will be granted only where there is something sufficiently special about the case to justify leave being granted. Where the appeal for which leave is sought is against sentence, special leave will be granted only where there has been an error of law or a gross violation of the principles of sentencing. Moreover, the point involved must be one of general application. The jurisdiction of this Court is not to be exercised merely for the purpose of reviewing sentences and for that reason it has never been thought that excessiveness of sentence is of itself a ground for granting special leave: Colefax v. R (1962) ALR 399. Because sentencing is a discretionary process, special leave to appeal against sentence is seldom granted. Indeed, it appears to have been granted for the first time in Power v. The Queen [1974] HCA 26; (1974) 131 CLR 623. Not only is this approach entirely consonant with the principles which apply generally in dealing with applications for special leave to appeal, but it also gives recognition to the advantage which the Courts of Criminal Appeal in the States have because of their knowledge of local conditions and local sentencing practices: Neal v. The Queen [1982] HCA 55; (1982) 56 ALJR 848, per Gibbs C.J. at p 849 and per Brennan J. at p 856; Veen v. The Queen [1979] HCA 7; (1979) 143 CLR 458, per Aickin J., at p 497. It is important, I think, in this case to bear in mind the very limited circumstances in which this Court will entertain an appeal against sentence and to resist being deflected from a policy which has so clearly been established for so long. See also Whittaker v. The King [1928] HCA 28; (1928) 41 CLR 230; White v. The Queen [1962] HCA 51; (1962) 107 CLR 174.

3. The applicant, together with another young man, carried out the armed robbery of a service station in the early hours of the morning and stole a sum of $404.83. The applicant's co-offender, whose name was Smith, kept watch whilst the applicant held up the service station attendant with a spray-gun which he used in such a way as to make it appear that it was a fire-arm. Apart from the difference in the degree of participation of the two offenders, there were differences in the personal position of each of them but it is unnecessary to examine that in any detail.

4. On 21 September 1983, the applicant pleaded guilty to a charge of armed robbery before Kelly J. and was sentenced to imprisonment with hard labour for a period of six years with a recommendation that he be eligible for release upon parole after serving two years of that sentence.

5. On 9 November 1983, Smith pleaded guilty to the same charge before Thomas J. and, on 11 November 1983, he was admitted to probation for three years and was ordered to perform 200 hours of community service.

6. No explanation was given to us or, apparently, to the Court of Criminal Appeal of the reason why the applicant and Smith entered their pleas before different judges at different times. The result was that, although they were co-offenders, they fell to be sentenced by different judges. Such a situation always carries with it a risk that there will be an unwarranted disparity between the sentences imposed and is to be avoided if at all possible. If it cannot be avoided, then at least the judge imposing the later sentence should inform himself of the sentence already imposed and the circumstances in which it was imposed. I hasten to say that Thomas J. was so informed in this case.

7. The applicant appealed to the Court of Criminal Appeal against the severity of the sentence imposed upon him and the Attorney-General appealed to the same Court against the inadequacy of the sentence imposed upon Smith. The Court of Criminal Appeal heard both appeals together. It expressed the view that upon the material placed before both sentencing judges the applicant was the prime mover in the commission of the offence. It concluded that neither Kelly J. nor Thomas J. erred in imposing the sentences which they did. In reaching this conclusion clearly the Court put to one side any question of disparity between the sentences because it later expressed the view that the disparity was sufficient to engender a real sense of grievance. It was this view which led the Court of Criminal Appeal to allow the applicant's appeal and to vary his sentence by recommending that he be eligible for parole after serving twelve months of his sentence. No alteration was made to the length of the term of imprisonment to which the applicant was sentenced by Kelly J. The Attorney-General's appeal against Smith's sentence was dismissed and there is no application before this Court in relation to that result.

8. There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and it has come to be recognized both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done. See R v. Golding (1959) VR 311; Pecora v. R (1980) VR 499; The Queen v. Tiddy (1969) SASR 575; The Queen v. Kite (1971) 2 SASR 94; The Queen v. Ciccone (1974) 7 SASR 110; R v. Tisalandis (1982) 2 NSWLR 430; Stroud (1977) 65 Cr App R 150; R v. Potter (1977) Crim LR 112. See also R v. Kameka (1973) 2 NZLR 592. Cf. Ruane (1979) 1 A Crim R 284. This has led to the variation of sentences by courts of appeal in order to reduce the disparity between sentences separately imposed upon co-offenders even where the sentence varied was not in itself excessive. The cases suggest that there has been a greater reluctance in England than here to vary the longer sentence in such a situation. There is always the dilemma that in order to eliminate the disparity the Court may have to reduce a sentence which it regards as proper in itself because of an inadequate sentence imposed upon a co-offender. To do so, it has been observed, is to compound the error. The view has been expressed in England that a court should not interfere unless the disparity is gross or glaring and the circumstances are "most exceptional". See Stroud at pp.153-4; Potter at p.113. The decisions in this country do not appear to be quite as restrictive as this but on any view the interference of a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice; see Pecora at p.504; Tisalandis at p.438.

9. Whether this Court would or would not have taken the same course as the Court of Criminal Appeal is not material in an application for special leave to appeal. The significant thing is that the course taken did not involve the application of any rule of law and insofar as it involved the exercise of a discretion there was no violation of the relevant principles. In the end, the question before the Court of Criminal Appeal was whether the sentence imposed upon the applicant was excessive having regard to the lesser, albeit later, sentence imposed upon Smith. The Court of Criminal Appeal properly addressed that question and the result is not something which attracts special leave to appeal.

10. It was also argued that the manner in which the Court of Criminal Appeal sought to reduce the disparity between the two sentences raises a question of sufficient general importance to require consideration by this Court. The argument, as we understand it, was that the Court did not succeed in reducing the disparity because the reduction in the non-parole period, which is all that was ordered, does not mean that the applicant may not have to serve the full term of his imprisonment if he is not released on parole or if, having been released, he fails to observe the terms of his parole. Moreover, it was submitted, a non-parole period of one year in a sentence of six years' imprisonment represents an imbalance between the non-parole period and the full term.

11. In Power, consideration was given to the nature of a non-parole period in relation to the full term of a sentence. It was pointed out that whilst the full term represents the period of imprisonment which the sentencing judge considers the offence warrants, there may be a point during that period when it is appropriate to release the prisoner on parole having regard to his prospects of rehabilitation. That point is not determined by the sentencing judge but will ultimately be determined by the Parole Board. What is determined by the sentencing judge is the minimum period during which, in the interests of justice, the prisoner should not be released at all having regard to the offence which he committed.

12. The relevant legislation in Queensland is the Offenders Probation and Parole Act 1980 and under s.53(3) of that Act the sentencing judge may recommend that a person sentenced to a term of imprisonment be eligible for release upon parole after a specified date during the term. It is that date which fixes the non-parole period, subject to the operation of other sections of the Act which permit an earlier release in certain circumstances. The non-parole period is, as it is in other States, that period during which, in the opinion of the sentencing judge, justice requires the prisoner to be kept in prison and not be released, even upon parole. But the sooner a prisoner is eligible for parole, the less severe will his punishment be even though he is not guaranteed his release after serving the minimum period and even though his release is conditional only until the expiration of the full term. As was pointed out recently in Deakin v. The Queen (unreported, 16 May 1984):

"The intention of the legislature in providing for
the fixing of minimum terms is to provide for
mitigation of the punishment of the prisoner in
favour of his rehabilitation through conditional
freedom, when appropriate, once the prisoner has
served the minimum time that a judge determines
justice requires that he must serve having regard
to all the circumstances of his offence: see Power
v. The Queen at p 629".

13. Having regard to the purpose to be served by the fixing of a non-parole period, it is obvious that it should not be made disproportionate to the full term. It nevertheless remains very much a matter within the discretion of the sentencing judge and may be contrasted with the error involved in a failure to fix any minimum term at all when the legislation requires it; cf. Deakin, above. Whilst the order of the Court of Criminal Appeal reduces the minimum term to be served by the applicant to a period which is shorter than would ordinarily be appropriate having regard to the full term, it does have the effect, as we have explained, of reducing the severity of his sentence. Any disproportion may perhaps be explained by the fact that the variation of the applicant's sentence was to diminish the disparity between that sentence and Smith's sentence rather than to correct the sentence because it was otherwise inappropriate. Even if that is not a sufficient explanation, the exercise was a discretionary one and no gross violation of principle was involved.

14. I would grant the extension of time and refuse special leave to appeal.

ORDER

Application for special leave to appeal refused.