Thaver v R [2011] NSWCCA 106

Thaver v R [2011] NSWCCA 106

The parity principle was not offended. For the 31 December 2007 offence, the Applicant received the same 2 year sentence as Peters and was eligible for parole after 9 months, so there was no marked disparity against him. Considering the January 2008 offences and the overall sentences, any disparity was explained by matters including subjective factors favouring Peters and the Form 1 offence taken into account for the Applicant. The overall additional 3 month non-parole period for the Applicant did not amount to a marked disparity or a justifiable sense of grievance. Leave to amend was refused because the Crown would be prejudiced by the late application.

Jurisdiction
Australia
Judgment Date
10 June 2011
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Amend to Seek Leave to Appeal Against Sentences Imposed by Judge Knight; Application for Leave to Appeal Against Sentences Imposed by Judge Mc Loughlin
Outcome
Leave to amend refused; leave to appeal against the sentences imposed by Judge McLoughlin granted; appeal otherwise dismissed; additional term corrected as to dates.
Legal Topics
['parity Principle' 'co Offenders' 'robbery in Company' 'leave to Appeal Against Sentence' 'totality' 'non Parole Period']
['criminal Law' 'sentencing'] ['parity Principle' 'co Offenders' 'robbery in Company' 'leave to Appeal Against Sentence' 'totality' 'non Parole Period']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Amend to Seek Leave to Appeal Against Sentences Imposed by Judge Knight; Application for Leave to Appeal Against Sentences Imposed by Judge Mc Loughlin

Legal Issues

  1. 1 ['Whether the sentence imposed by Judge McLoughlin for the 31 December 2007 robbery breached the parity principle when compared with the sentence imposed on co-offender Frederick Peters.' 'Whether leave should be granted to amend to seek leave to appeal against the sentences imposed by Judge Knight.' 'Whether the overall sentences for the Applicant and the co-offender produced a marked disparity or a justifiable sense of grievance.' 'Whether the expiry date of the additional term imposed by Judge McLoughlin required correction.']

Ratio Decidendi

The parity principle was not offended. For the 31 December 2007 offence, the Applicant received the same 2 year sentence as Peters and was eligible for parole after 9 months, so there was no marked disparity against him. Considering the January 2008 offences and the overall sentences, any disparity was explained by matters including subjective factors favouring Peters and the Form 1 offence taken into account for the Applicant. The overall additional 3 month non-parole period for the Applicant did not amount to a marked disparity or a justifiable sense of grievance. Leave to amend was refused because the Crown would be prejudiced by the late application.

Court Disposition

Leave to amend refused; leave to appeal against the sentences imposed by Judge McLoughlin granted; appeal otherwise dismissed; additional term corrected as to dates.

Orders

  • ['Leave to amend to seek leave to appeal against the sentences imposed by Judge Knight refused.' 'Leave to appeal against the sentences imposed by Judge McLoughlin granted.' 'The additional term ordered by Judge McLouglin of 15 months imprisonment commence on 10 March 2013 and expires on 9 July 2014. On this...