By Paul Gregoire and Ugur Nedim
Sean Charney, Peter Whipp and Scott Chandler parked a hired Toyota RAV4 outside an IGA store in the small town of Buxton, southwest of Sydney. The three men entered the store to look around, and several hours later, as the married couple who owned the store, closed up and approached their car with the cash takings held in a black bag, the three men jumped out from behind their vehicle.
One of the robbers held out a half-metre-long black object towards the woman, who fell to the ground in fear, and then the object was pointed at her husband. Another offender began yelling at the man, demanding he hand over the cash.
The owner then presented the robbers with the bag, which contained $1,700, as well as giving them his wallet and keys, as he was scared if he didn’t, he’d be injured. And when he handed the bag over, the owner cut his fingers slightly on blade of the knife that the offender was threatening him with.
The offenders were subsequently arrested in the RAV4 by NSW police, and they were found in possession of cash consistent with the robbery.
Sentenced in respect of two charges
The three co-offenders pleaded guilty early on to two charges at Lismore Local Court. The first was one count of use of an offensive weapon with intent to commit an assault in company, contrary to section 33B(2) of the Crimes Act 1900 (NSW), which is an offence that carries a maximum penalty of 15 years imprisonment.
The second charge was one count of robbery armed with an offensive weapon, contrary to section 97 of the Crimes Act, and it carries up to 20 years gaol time.
Her Honour determined that the armed robbery offence fell within the mid-range of objective seriousness, while the weapon offence was below mid-range.
Although the sentencing of all three men was conducted by NSW District Court Judge Jennifer English, Whipp and Chandler were sentenced at an earlier date, 12 November 2022, than Charnley, as the court had to wait for testimony from his psychologist, Mr Awit, and he wasn’t sentenced until 14 February 2023.
Mr Awit put to the court that Charnley had a “truly tragic upbringing”, as he’d been exposed to domestic and homicidal violence. He was sexually abused at the age of 15. He’d had a fractured education and commenced using alcohol and drugs at a young age. And Charnley was said to be remorseful, and he’d also been harmed whilst in custody.
Judge English sentenced all three men in Lismore District Court to 5 years and 3 months gaol time, with non-parole set at 3 years and 3 months, which was the sentence specifically for the robbery offence, while each of these men was to serve a fixed term of 2 years, in respect of the weapon offence, concurrently alongside the longer sentence.
These sentences reflected a 25 percent discount for the utilitarian value of the offenders’ early guilty pleas.
On sentencing Whipp and Chandler, Judge English determined that they should receive the same sentences, and after hearing from Charnley’s psychologist, her Honour came to the same conclusion in respect of his sentence. And the judge raised the principle of parity in setting these sentences.
Whipp then went on to appeal his sentence in 2024, which was subsequently upheld as Judge English had not considered how the offender’s mental health would make incarceration more onerous for him. And Whipp was resentenced to an overall 4 years and 6 months in gaol, with non-parole set at 2 years and 9 months.
A question of parity
In light of the reduced sentence that his co-offender Whipp received on appeal, Charnley appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA), on the sole ground that he had a “justifiable sense of grievance in light of the sentence imposed on” his co-offender.
Charnley put to the appeals court that it had departed from Judge English’s findings on determining Whipp’s appeal, and this was in regard to the offender’s deprived background having been found criminogenic and thus, this reduced his moral culpability, along with finding that Whipp’s time in custody would be more difficult due to his psychological problems.
The NSWCCA had found during Whipp’s appeal that the sentencing judge had been in error, as she had not taken into account the “past custodial hardship” he’d experienced when handing down his punishment, and her Honour had neither found that Charnley’s time inside would be more onerous.
On appeal, Charnley asserted that there was nothing distinguishing his harsh criminogenic background compared to that of Whipp’s. Both men had been suffering post-traumatic stress disorder. And while there were concerns that Whipp was to be returned to a facility where he’d been injured in the past, Charnley was stabbed in custody in 2016 and required surgery.
Charnley further put to the court that the disparity of nine months between the sentence that he received and that which Whipp ultimately received was not justified by “age, background, criminal history, character or the part each played in the offending, and the discrepancy between their sentences gives rise to a justifiable sense of grievance on the part of the applicant”.
The argument triggers the principle of parity, which applies to sentencing in NSW. Parity in sentencing means that cases similar in nature should be treated in a similar manner and result in similar sentencing outcomes.
So, when it comes to resulting sentences for co-offenders who’ve committed the same crime, there should not be great disparities between punishments.
The principle of parity was set out in the 2023 NSWCCA case Hung versus R, in which the court explained that it intervenes in cases where disparity in sentencing gives rise to a sense of grievance due to the appearance that justice has not been served. But the court will not intervene if the disparity is justified in terms of age, background, criminal history or general character.
Determinations of the court
“The sentencing judge further recorded that she accepted the psychological evidence in the applicant’s case, noting that it was tendered for a particular purpose, that is, for the purpose of demonstrating the applicant’s disadvantaged background,” said NSWCCA Justice Sarah McNaughton.
“As noted, the applicant did not rely… upon this evidence for the purpose of demonstrating hardship in custody or for a reduction in moral culpability based directly on a mental impairment.”
In her Honour’s opinion, the psychiatric assessment of Whipp and the explanation of the hardship he would experience in prison, was far different from that comprising Charnley’s psychological assessment. The report about Whipp tracked his traumatic interactions with the criminal justice system, commencing at the age of 14, along with his PTSD flashbacks in this regard.
Justice McNaughton then listed three reasons why Charnley’s claim of a justified sense of grievance is not made out, with the first being that his lawyers didn’t raise incarceration being “more onerous” at sentencing. And while Whipp could point to trauma in custody and PTSD in relation to this, Charnley couldn’t, as while he too had suffered trauma in gaol, this wasn’t followed by PTSD.
Her Honour then noted two further points. The first being that on appeal, it was heard that Whipp was making progress in terms of rehabilitation, while as for Charnley, the prospect of reoffending remains high. And the second was that while both men had lengthy criminal histories, only Charnley’s shows multiple prior offences of the same type involved in the current case.
Orders of the day
Justice McNaughton found on 26 February this year, that the differences she’d identified between the subjective circumstances of the cases of Charnley and Whipps justified “the different sentences imposed”, while there was “no basis for a justifiable sense of grievance on the part of” Charnley.
So, the appeal was dismissed, and NSWCCA Justices John Basten and Richard Weinstein agreed with their colleague’s reasoning and orders.
