Howard v The Queen

[2012] VSCA 83

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Sentence
4. › Parity
5. › Co-offenders
6. › Whether identical sentences open where sentencing judge identified material differences warranting significant disparity
7. › Whether breach of parole by co-offender required differentiation
1. Criminal Law
2. › Sentencing
3. › Parity principle
4. › Requirement to differentiate between unlike cases
5. › Whether totality principle explained lack of differentiation
1. Criminal Law
2. › Sentencing
3. › Specific deterrence and community protection
4. › Whether considerations applied equally to co-offenders with materially different criminal histories and parole status

Quick Take

Where a sentencing judge expressly identifies material differences between co-offenders warranting 'significant disparity' but then imposes identical sentences, the sentencing discretion miscarries. Breach of parole by a co-offender is a very serious aggravating factor that precludes a conclusion that both offenders are in the same position regarding specific deterrence and community protection. The principle of totality does not explain identical treatment unless the sentencing judge expressly states that totality considerations counterbalance the identified differences.