Should those who commit the same crimes get similar punishments? The parity principle

At the heart of our criminal justice system are the fundamental principles of justice, fairness and equality.

Their application is especially important when it comes to imposing penalties upon people who are guilty of committing criminal offences.

Fairness and equality require that those who have committed the same or similar crimes should receive similar sentencing outcomes.

The principle of parity aims to avoid significant differences in penalties being imposed on ‘co-offenders’, who are those involved in a single criminal enterprise.

What is Parity?

Parity says that co-offenders should generally receive similar sentences.

However, parity does not mean that co-offenders will necessarily receive exactly the same sentence.

Rather, a sentencing magistrate or judge must consider a range of circumstances before arriving at the appropriate sentence in any particular case; including the position of the offender in the hierarchy of any criminal enterprise, the extent of their involvement, their actual conduct, whether they entered a plea of guilty, and personal features including their age, background, any mental conditions, any criminal history and so on.

So parity is not a binding principle that requires two co-offenders to receive exactly the same sentence, or even the same type of penalty.

Rather, parity requires that differences in the sentences must be justified; so, for instance, a court would need to explain why one offender is being sent to prison while the other is given a good behaviour bond.

Examples of How Parity Applies

Applying parity where two people are guilty of the same offence in similar circumstances may seem like a relatively straightforward exercise.

However, it is rarely the case that co-offenders will have the exact same level of involvement in an offence, as well as the same background, age, criminal history, plea and so on.

As stated, courts must be conscious of all the facts and circumstances that affect each offender, and must take all of those factors into account when handing down a just and fair sentence to each person.

For example, in the case of Lowe v The Queen (1984) 154 CLR 606, co-offenders Jonathon Lowe and David Smith were convicted of ‘armed robbery’ in respect of a petrol station robbery.

They each played different roles in the offence – Smith kept watch while Lowe carried out the actual robbery.

According to the law, a person is guilty of armed robbery if they play a role in the enterprise; including if they just stay outside and keep a lookout.

Lowe was sentenced to 6 years imprisonment while Smith was put on probation for 3 years and ordered to perform 200 hours of community service.

On appeal, the High Court found that judges are allowed to consider the different roles played by offenders when handing down sentences, as long as any large discrepancies are justified.

But what if they’re charged with different offences?

Applying parity can be more difficult when co-offenders are guilty of different offences.

The case of Green v The Queen [2011] HCA 49 involved several co-offenders who were charged in relation to an enterprise that was cultivating a large commercial quantity of cannabis.

Green and two others, including a man by the name of Taylor, were partners of the ‘principal’ offender, who was known as Quinn.

Taylor was convicted of supplying a commercial quantity of cannabis, and sentenced to 3 years imprisonment, with a non-parole period of 18 months.

A ‘non-parole period’ is the time someone must spend in prison before being eligible to apply for release from prison.

Green and Quinn were both convicted of cultivating a commercial quantity of cannabis.

Green received a sentence of 5 years imprisonment with a non-parole period of 3 years, while Quinn was sentenced to 8 years imprisonment, with a non-parole period of 5 years.

The prosecution appealed against Green and Quinn’s sentences, arguing that they were too light.

The prosecution also argued that the court should not have had any regard to the lesser sentence received by Taylor for the offence of supply, as it was different to the cultivation offence that Green and Quinn had been convicted of.

But the High Court ruled that the sentence of a co-offender engaged in the same criminal enterprise can be a relevant factor in determining the appropriate sentence of the other offenders, even when they are guilty of different offences.

In handing down its judgment, however, the High Court recognised that it is more difficult to apply parity where co-offenders have been charged with substantially different offences.

Case Study: The Importance of Getting Charges Downgraded

I was involved in a case in 2011 where my client and three of his friends committed an ‘aggravated break, enter and commit serious indictable offence’ on a home in Sydney.

My client drove the three others to the house, where two of them then broke into the house and stole a range of goods. My client and the remaining co-offender acted as ‘lookouts’.

They were all caught by police shortly thereafter.

My client participated in a police interview during which he admitted that he knew about the proposed plan and acted as a lookout. He also admitted knowing that a knife was being carried by one of the men.

The three co-accused all pleaded guilty to the principal charge. All four men were in their early 20s, had little or no criminal records and were from privileged families.

My client had been with another criminal defence lawyer for several months, before his father sought a second opinion from me. As is unfortunately often the case, the previous lawyer made no apparent attempt to negotiate a plea deal or to even have the proposed ‘facts’ of the case amended. The proceedings were just plodding along from adjournment to adjournment at great expense to my client’s family.

Despite my client being technically guilty of the offence charged, I suspected that I could use DPP policies to his advantage and secure a plea deal that could keep him out of prison.

DPP policy says that, where appropriate, cases are to be ‘expedited’ (sped up) and that regard must be had to the use of public funds when deciding whether to continue with any particular prosecution. I knew that if my client’s matter went all the way to a District Court jury trial, the DPP would need to expend considerable resources prosecuting only him, when they could ‘wrap up’ the entire case quickly and cheaply by accepting a plea offer.

I sent a detailed letter to the DPP outlining how they could properly accept a plea of guilty to ‘accessory after the fact’ only, which is far-less serious than the charge that had been brought. The DPP was initially reluctant but eventually accepted the offer.

The sentencing occurred before Parramatta District Court, where each of the co-offenders was represented by a solicitor and a prominent barrister, including a Queen’s Counsel and a Senior Counsel. I appeared independently for my client, as I normally do in District Court sentencing proceedings.

Each co-accused was ultimately sent to prison, including the one who only kept a lookout.

My client received a 2 year suspended sentence – and was therefore not sent to prison.

I have no qualms about relying upon my knowledge of DPP policy to help bring about the outcome. Rather, a good criminal lawyer should, in my view, take into account a range of factors additional to the law when fighting to keep their client out of prison.

The case is just one example of how defence strategy can make all the difference when it comes to the end result, and can even prevent being dragged down by the principle of parity.