It seems logical that if two people commit a crime together, they should face the same or similar punishment.
However, different sentences can certainly be handed-down on the basis that one of the offenders has a more serious criminal history, or was on bail or a good behaviour bond at the time of the offence, or was more culpable than the other; in other words, committed more unlawful acts, or more serious ones.
In the recent case of Chen v R, the Supreme Court of NSW was called upon to decide whether the difference between sentences handed down to two co-offenders was so great that it caused an injustice.
Mr Wei Zhong Chen was sentenced to eight years in prison, with a non-parole period of 4.5 years, while his co-offender Mr Ke Yang Chen was given three years, with a non-parole period of 18 months.
Wei Chen appealed to the Supreme Court on the basis that he had a ‘justifiable sense of grievance’ that his punishment far exceeded his co-offender’s.
The men were involved in a scheme to produce false driver licences and documents using fake names and information.
Wei Chen pleaded guilty to 13 charges of ‘dealing with identification information’ under section 192J of the Crimes Act 1900 (NSW) (‘the Act).
Ke Chen pleaded guilty to eight charges under sections 255 and 256 of the Act. Unlike Wei, Ke did not deal with the identification information.
Each offence carries a maximum penalty of 10 years imprisonment.
The Principle of Parity
The principle of parity essentially requires like cases to be treated alike, and different cases to be treated differently; Green v The Queen (2011) 244 CLR 462. It is a common sense rule which aims to ensure consistency and equality before the law.
As pointed out by High Court Justice Mason in Lowe v The Queen:
“Consistency in punishment … is a fundamental element in any rational and fair system of criminal justice.”
The application of the principle is ‘required or permitted to be taken into account by the court’ under section 21A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
If there is a departure from the principle, the aggrieved party can appeal on the basis of a ‘justifiable sense of grievance’.
Applying Parity to the Case at Hand
The Supreme Court noted significant differences between the subjective and objective circumstances of the co-offenders; that is, between their personal features and the nature and extent of their criminal conduct.
Objectively, the court pointed out that Wei Chen pleaded guilty to a greater number of charges than Ke Chen, and that unlike his co-offender, actually dealt with the fake items. In the court’s view, Wei Chen:
“… may be seen as the master printer of cards of varying kinds, credit cards and cards identifying fictitious people…”
Subjectively, Wei Chen was on a good behaviour bond for assault and contravening an Apprehended Violence Order at the time of the offences, and:
“… has previous convictions for dishonesty and minor violence and in particular was sentenced in Queensland to two and a half years imprisonment for involvement in a similar scheme.”
Wei Chen also lacked strong ‘mitigating factors’; that is, matters that can lead to a reduced sentence.
By contrast, Ke Chen pleaded guilty to fewer charges and did not actually deal with the fraudulent items.
Subjectively, he had no prior criminal history and very good prospects of rehabilitation. His period on remand was the first time he was ever in custody, and it was found that he committed the offences “in a condition of demoralisation and hopelessness”
Taking those factors into account, the Court concluded that the principle of parity had not been contravened, and that the difference in sentences was warranted.
Accordingly, Wei Chen’s appeal failed and his original sentence was confirmed.