The formal identity of charges against offenders whose sentences are being compared is not a necessary condition for the application of the principle of parity: Green v. The Queen (2011) 244 CLR 462, p. [30]. Simply put, the principle of parity is not limited to the punishment of accomplices who have committed the same crime; it may also apply to sentences imposed on individuals who are complicit because they were involved in the same criminal enterprise, regardless of the charges against them: Green v. The Queen, p. [30]; Jimmy V R (2010) 77 NSWLR 540 at [136], [246]; Turnbull v The Chief Executive of the Office of Environment and Heritage [2018] NSWCCA 229 at [23]. In Green v. The Queen, the High Court ruled that the Court of Criminal Appeal erred in refusing to convict Taylor, who had been convicted of a lesser offence “as a comparator of importance”: Green v. The Queen, p. [75]. The principle of parity is based on the concept that similar cases should be treated equally and different cases should be treated differently: Green v The Queen (2011) 244 CLR 462; Lowe v. Queen (1984) 154 CLR 606.

See [10-801], [10-805]. This does not mean that the sentence imposed on a person in the juvenile court, which would otherwise lead to gender issues, is irrelevant. It is for the reason that a person who has been convicted as an adult may well have a legitimate sense of complaint about precisely this difference in regime. In Dunn v R [2018] NSWCCA 108, the principle of parity did not apply if the offender had been convicted of a crime, but his accomplices had considered the same offence on a Form 1. No meaningful comparison can be made between a sentence imposed for a criminal offence and an unspecified increase in a penalty resulting from the inclusion of the charge on Form 1: Dunn v. R, [16]. State parity laws may also provide for additional rights beyond the federal parity law. To learn more about state parity laws and legislative efforts to improve those laws, click here. Lowe v The Queen (1984) 154 CLR 606 is cited as the main source of the principle of parity. Dawson J., Wilson J.

623 summarized the principle of parity as follows: If the Court of Criminal Appeal finds that the inadequacy of the impugned judgment is so pronounced as to constitute an “affront to the administration of justice” that threatens to undermine public confidence in the criminal justice system, the court is entitled to intervene in the sanction: regardless of the resulting discrepancy with an uncontested penalty imposed on an accomplice: Green v The Queen at [42] citing R v Harris [2007] NSWCCA 130 at [83], [86]. The principle of parity is one aspect of the systemic objectives of consistency and equality before the law – treating the same and different cases differently: Green v The Queen (2011) 244 CLR 462 at [28]. Avoiding an unwarranted divergence in penalties for offenders involved in the same criminal conduct or joint criminal enterprise is an issue that “must or may be considered by the court” under subsection 21A(1): Green v. The Queen, p. [19]. This principle is applied at first instance and on appeal (see below). An allegation of wrongful inequality by an abuser may be a separate ground of appeal: Green v. The Queen, p. [32].

Parity has special meanings in fields such as physics, mathematics, medicine, genetics and marketing. At a time when the Soviet Union and the United States were against the superpowers, there was often talk of parity in nuclear weapons between the two sides. We sometimes hear about parity between mental health and physical health in insurance coverage, or parity in college funding for men`s and women`s athletics. But parity may be more common in currency discussions. The exchange rate between two national currencies often changes daily as each rises or falls, and sometimes two similar currencies, such as the euro and the US dollar, reach parity, but this rarely lasts long. However, there are significant restrictions on the reduction of a sentence based on the sentence imposed on an accomplice who has committed another offence. At least some of the limitations to the application of parity in such cases are as follows: Criminal courts, prosecutors, and defence counsel should take steps to ensure that related offenders are convicted by the same judge, preferably at the same time: Dwayhi v R [2011] NSWCCA 67 to [44]–[45]. In practice, it is highly desirable that accomplices be convicted by a judge: Postiglione v The Queen (1997) 189 CLR 295.

In this case, the judge is able to examine the relationship between the objective and subjective characteristics of the authors exhaustively: Usher v R [2016] NSWCCA 276 to [73]. The appropriateness of this practice has been repeatedly emphasized as it serves the public interest in consistent and transparent sentencing of related offenders: Dwayhi v. R, at p. [33]–[43], [46]; Ng V R, 2011] NSWCCA 227 to [77]–[78]; Adams v. R, 2018 NSWCCA 139 to [81]; R v Lembke [2020] NSWCCA 293 to [55]. Many of the parity issues raised on appeal could be avoided if accomplices were convicted simultaneously by the same judge. The principles of parity when comparing with a juvenile offender were collected by Wood J. at CL in R v Boney [2001] NSWCCA 432. Several theories can be stated: the principle of parity is complementary to the individualization of the sentencing process. If a sentence is to be tailored to the person, similar circumstances must be treated in the same way, while different cases are rightly treated differently. [13] The sense of complaint necessary to initiate an appeal [on appeal] in relation to different judgments must be assessed on the basis of objective criteria. The application of the principle of parity does not imply passing judgment on the feelings of the person complaining about inequality.

The court refuses to intervene if differences between the accomplices, such as age, background, criminal record, general character and the role each played in the criminal conduct or enterprise in question, are justified. See also Gibbs CJ at 609, Brennan J at 617 and Mason J at 610. There is also a statement of principle by Dawson and Gaudron JJ. in Postiglione v The Queen (1997) 189 CLR 295 to 301. In Green v The Queen (2011) 244 CLR 462, the High Court considered the application of parity in criminal appeals (see below). The principle of parity applies when accomplices are charged with a different number of offences and when an offender has been sentenced to a total sentence but not another. In such cases, however, the application of the principle of parity is primarily based on the benchmark for the offence in question: R v Clarke [2013] NSWCCA 260 to [68]; Bridge V R [2020] NSWCCA 233 to [45]–[46]. Increasing minimum sentences has the effect of “displacement” or “inflating” the range of appropriate sentences. This is not considered a violation of the parity rule. [18] The application of parity in Crown appeals differs from that of serious complaints: Green v The Queen (2011) 244 CLR 462 at pages [34]–[36]. The purpose of Crown appeals – to establish principles for the conduct and direction of the courts – is a limiting principle: Green v. The Queen, p.

[34]–[36]. If a disparity is found, the remaining discretion to dismiss a Crown appeal is restored. The High Court took the following approach in Green v. The Queen, at [37]: However, the words “gross” or “flagrant” cannot be objected to when they are used to emphasize that, in cases where the same judge has convicted both offenders and considered the issue of parity, a court of appeal should exercise caution in intervening; To determine whether there is a clear discrepancy justifying an objective sense of complaint, qualitative and discretionary judgments are examined: Borg v R [2019] NSWCCA 129 at [88], [89] (Bathurst CJ; Hamill and N Adams JJ. agreed). Nor should the appeal procedure require that the discrepancy be blatant or blatant: at [90]. Whether an appellant has shown that there is an unjustified discrepancy between his sentence and that of an accomplice is a question of content rather than form: Kadwell v R [2021] NSWCCA 42 at [13]. In some cases, failure to perform a parity analysis may constitute an error of law. [22] . A strong factor against the Crown`s acceptance of an appeal would be the creation of an unwarranted discrepancy between a new sentence and an uncontested sentence previously imposed on an accomplice. The question then arises: Would the appeal be for Crown appeals under section 5D? If this were to result in what at first glance appears to be a “reasonable” but anomalously unequal judgment, which is an artifact of the Crown`s selective use of the Court`s jurisdiction, the extent of the direction given to the lower courts might be questionable.