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The concept of parity in sentencing law is concerned with achieving the systemic objectives of consistency and equality through avoiding unjustified disparities between sentences imposed upon different offenders involved in the same criminal conduct or enterprise. Parity is underpinned by the principle that like cases should be treated alike and different cases should be treated differently: Green v The Queen (2011) 244 CLR 462 at .
To avoid grievances between co-offenders, judicial officers should ensure that related offenders are sentenced by the same sentencing judge at the same time.
Issues of parity usually arise when there are multiple 'offenders' the subject of a factual scenario which comes before a court in criminal law proceedings. In this sense, the term 'co-offenders' does not refer only to people who have committed the same crime, but also includes persons who are 'co-offenders' by virtue of having engaged in the same criminal conduct or enterprise.
In Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Salvestro, Dean Troy Salvestro pleaded guilty to five offences in breach of ss. 91G(2) and 60C(2) of the Water Management Act 2000 in the NSW Land and Environment Court. Four of the breaches involved contravening bore extraction limits and the fifth breach concerned taking water not in accordance with an access licence allocation.
Mr Salvestro was summonsed to attend court. However, other persons and entities that held the approval for the bore were instead issued with cautions and PINS. Mr Salvestro submitted that the parity principle should apply to any sentence imposed on him by the Court because those that held the approval for the bore were involved in the same criminal conduct the subject of some of Mr Salvestro’s charges.
The Court rejected this submission on the basis that:
The Court came to a similar conclusion in the more recent decision of Grant Barnes, Chief Regulatory Officer, Natural Resources Access Regulator v Commins  NSWLEC 43.
The Court’s approach to parity here, in circumstances where the regulator has considered that both PINs and prosecutions are appropriate enforcement mechanisms for certain offences committed contrary to provisions of the Water Management Act 2000, illustrates that a regulator’s approach taken in respect of one offender does not prevent a stricter enforcement approach from being taken in respect of another offender. Such offenders are not considered 'co-offenders'. There exists flexibility for a regulator in deciding how to respond to instances of offending without concern, depending on the particular circumstances of the alleged offending conduct, as to the impact it may later have on related sentencing exercises before a Court.
For more information on the application of the parity principle, see the previous issue of Regulatory & Environment Insights.
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The CSO's Regulatory & Environment practice group specialises in advising and representing agencies in relation to regulatory compliance and prosecutions, statutory interpretation advice in the environment and natural resources context, as well as criminal law, evidence and procedure.
25 Jul 2023
We acknowledge Aboriginal people as the First Nations Peoples of NSW and pay our respects to Elders past, present, and future.
Informed by lessons of the past, Department of Communities and Justice is improving how we work with Aboriginal people and communities. We listen and learn from the knowledge, strength and resilience of Stolen Generations Survivors, Aboriginal Elders and Aboriginal communities.
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