Totality and Parity are Important Principles When It Comes to Sentencing Co-Offenders

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By Paul Gregoire and Ugur Nedim

At around 3.30 pm on 17 January 2020, Brendan Gilbert Wood and George Layton entered Kelly’s Asian Flower brothel posing as customers. 

Whilst alone in the waiting area, the pair donned face coverings, Layton armed himself with an axe and a machete, whilst Wood held a machete.

In threatening the receptionist and staff members with the weapons, the pair demanded the money on hand and were given $1,500. Layton then walked the receptionist into the office and demanded she open the safe, which secured the thieves another $15,000.

Viewed by police, CCTV footage revealed Wood’s face, and the pair getting into a white RAV4, which Layton had previously stolen.

NSW police saw Layton driving the SUV two days later, and a high-speed pursuit followed, with officers halting the chase after 3 kilometres due to the dangers being posed to other drivers.

With the help of another man, Layton went on to rob the Croydon McDonalds on the 21 January. Both were carrying machetes and again threatened staff. Layton forced the manager to open all the cash registers and the pair took off with the money inside them.

Layton had been driving the RAV4, whilst his licence was suspended. Stolen licence plates were found on the vehicle on 22 January. And he was arrested on 5 February, following another police pursuit involving the SUV. And as he was taken into custody, the car keys were found in his pocket.

As for Wood, he was arrested on 22 April that year, and was remanded in custody.

Sentenced for a single offence

Wood pleaded guilty on 25 November 2020 to one count of armed robbery in company, contrary to section 97(1) of the Crimes Act 1900 (NSW). This offence carries a maximum sentence of 20 years behind bars.

NSW District Court Judge Sharon Harris found the 33-year-old had reduced moral culpability due to his “substantially disadvantaged childhood”, which invoked the Bugmy principles. These stipulate that such social disadvantage doesn’t diminish overtime and must be given bearing in sentencing.

This then led her Honour to find special circumstances, which, under section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), allows a judge to sentence an offender to a parole period that is in excess of a third of the time of the overall non-parole period being handed down.

On 23 April 2021, Judge Harris sentenced Wood to 4 years imprisonment, with non-parole set at 2 years and 6 months. This meant the non-parole period was 62.5 percent of the head sentence, rather than the statutorily required 75 percent.

The sentence also reflected a 25 percent discount due to the utilitarian value of Wood’s early guilty plea in relation to the crime, which the judge found to be at the midrange of objective seriousness.

Sentenced for multiple offences

Sentenced on the same day and by the same judge, Layton was guilty of two counts of robbery armed with an offensive weapon, contrary to section 97(1) of the Crimes Act, with the 20 year maximum applying to both charges.

The 26-year-old was also guilty of knowing police were in pursuit, not stopping and driving in a dangerous manner, contrary to section 51B(1) of the Crimes Act. This was in relation to the high-speed chase two days after the brothel robbery. And it’s a crime that carries 3 years inside.

Ten other offences were taken on a Form 1. Section 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides that a number of charges that an offender is not found guilty of can be taken into account on a Form 1 when sentencing for a principal crime the offender has been convicted of.

The Form 1 consisted of one count of stealing a motor vehicle, under section 154F of the Crimes Act, which carries 10 years at most. It also contained a second count of failing to stop during a police pursuit, under section 51B(1) of the Crimes Act, which carries up to 5 years for subsequent offences.

Six counts of driving whilst his licence was cancelled, contrary to section 54(4)(a) of the Road Transport Act 2013 (NSW) were also included. This offence carries a $3,300 fine and/or 6 months inside, but for subsequent offences, the penalties rise to a $5,500 fine and/or 12 months in prison.

The Form 1 also contained 2 counts of having stolen goods in custody – that being the number plates and the car keys – contrary to section 527C(1)(a) of the Crimes Act. This offence can see a person put away for up to 6 months and/or receive a $550 fine.

Judge Harris sentenced Layton to an aggregate term of 5 years imprisonment, with non-parole set at 3 years. The non-parole period, which was only 60.3 percent of the head sentence, reflected a finding of special circumstances in terms of the Bugmy principles applying.

Contention around disparity

Wood appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 11 April this year, based on the ground that he had a “justifiable sense of grievance arising from the disparity between the sentence he received for one crime and that received by Layton in regard to multiples offences.

Indeed, at the time he was sentenced, Layton was already serving a 5 year sentence with a non-parole period of 3 years due to two different cases: one that took place in May 2020 and another in December that same year.

These cases involved convictions of armed robbery, driver conveyance and possession of an unauthorised pistol and these charges had no relation to the crimes that Judge Harris dealt with in court.

However, her Honour allowed Layton to serve the sentence she handed down in partial concurrence with his pre-existing sentences, which meant his head sentence was lengthened by 13 months and his non-parole period was extended by 12 months.

In his final findings, NSWCCA Justice Hament Dhanji made clear that this case “gives rise to the need to consider the interplay between the principles of totality and parity”.

The principle of totality stipulates that when a court sentences an offender for more than one crime, or when they are already serving an existing sentence, the aggregate sentence must be “just and appropriate” when taking into account the overall offending conduct.

The principle of parity requires that like cases be treated alike, and different cases be treated differently. The principle should avoid substantial disparity in the sentences of co-offenders involved in the same criminal activity where they have similar subjective factors.

Appeal upheld

Justice Dhanji pointed out that the outcome of the original sentencing exercise had ultimately arisen in Layton having to serve 6 years and 1 month over multiple crimes including three armed robberies, while in comparison Wood was serving 4 years in relation to a single armed robbery.

His Honour further outlined that in applying totality to Layton, the level of leniency that it bestowed upon him led to a justifiable sense of grievance for Wood, even though his actual sentence was not unremarkable given he’d committed such a serious crime.

On 20 April, Justice Dhanji told the court that taking into account the relative culpabilities of the co-offenders, along with the total criminality and sentences imposed on Layton, Wood was warranted a lesser sentence.

So, his Honour quashed the District Court sentence and resentenced Wood to 3 years and 6 months imprisonment, with non-parole set at 2 years.

NSWCCA Justices Robert Macfarlane and Christine Adamson both agreed with this outcome.

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