R v Latter[2025] QCA 70

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 23 May 2024, the applicant was sentenced to 10 years imprisonment with the declaration of a serious violent offence pursuant to s 161B of the Penalties and Sentences Act 1992 (Qld) for the manslaughter of Mr Jacob Opacic.  The applicant was also sentenced to two years imprisonment for the offence of stealing $9,200 in cash from the deceased, after he had run him down with a motor vehicle.  The two years was ordered to be served concurrently with the 10 year manslaughter sentence.  Pursuant to s 182(2)(a) of the Corrective Services Act 2006 (Qld), the applicant is eligible to apply for parole after having served 80 per cent of his term of imprisonment.
2. [2]
   The applicant’s friend and co-accused, Johnson, was sentenced to nine years imprisonment for the manslaughter of Mr Opacic.  The sentencing judge did not set any parole eligibility date, with the statutory consequence under s 184(2) of the Corrective Services Act 2006 (Qld) that Johnson was eligible for parole the day after he had served half of the period of imprisonment.
3. [3]
   The applicant seeks leave to appeal on the sole ground that the learned sentencing judge erred in law and failed to apply the principle of parity in sentencing.  The applicant argues that as the applicant is unable to apply for parole for eight years and his co-accused is able to apply for parole after four and a-half years, there is a disparity between the sentences of the two co-accused, such as to give rise to a justifiable sense of grievance.
4. [4]
   The parity principle is discussed in Green v The Queen (2011) 244 CLR 462 per French CJ, Crennan and Kiefel JJ at [31], as follows:

“[31] Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may ‘reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender’. The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: ‘the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.’ The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.”  [footnotes omitted]

5. [5]
   In the present case, the court ought to refuse to intervene because the disparity in sentences is justified by differences in the co-offenders’ respective criminal histories and general character and, more importantly, by reference to the part that each played in the relevant criminal conduct.
6. [6]
   A brief history of the salient facts is that the applicant was a friend of Mr Johnson.  Mr Johnson shared children with Ms Rowe, however, their relationship had failed.  Mr Johnson wished to re-establish his relationship with Ms Rowe and for them both to obtain care of their children so that they could “be a family again”.
7. [7]
   The deceased, Mr Opacic, had commenced a relationship with Ms Rowe.  That relationship continued while Ms Rowe was an inmate at Numinbah Correctional Centre.  Ms Rowe was due for release on 2 July 2021.
8. [8]
   On the morning of Ms Rowe’s release, 2 July 2021, Mr Opacic rode his motorcycle from his residence at Caboolture with the intention of meeting Ms Rowe’s family in the prison car park at Numinbah Correctional Centre.  It was Mr Opacic’s plan to take Ms Rowe from the prison after she was released to the Gold Coast for the weekend.
9. [9]
   Mr Johnson was upset that Ms Rowe had pursued a relationship with Mr Opacic, and he planned to visit significant violence upon Mr Opacic before he arrived at the prison.  Mr Johnson’s plan was then to demand that Ms Rowe leave the prison with him.  Mr Johnson's plan was known to the applicant.  The applicant’s planned role was to watch and observe the fight between Mr Opacic and Johnson, and “… If things get out of hand and Benny starts losing, then I’ll step in”.  The applicant promised his friend Johnson that he would go with him and promised to have his friend Johnson’s “back” if there was a fight, with Johnson expressly asking the applicant “if he starts bashing me, you’ll step in,” to which the applicant agreed.
10. [10]
    As it happened, the Toyota Camry with Mr Johnson and the applicant suffered a breakdown near the prison.  After Ms Rowe’s family had collected her from prison with Mr Opacic following on his motorcycle, the vehicle in which Ms Rowe was a passenger had stopped to assist with the breakdown.  Mr Opacic joined the group on his motorcycle, and there was an incident of aggression with the deceased Mr Opacic and Mr Johnson making aggressive gestures and yelling at each other.  Mr Johnson attempted to attack Mr Opacic by collecting and wielding a star picket and so Mr Opacic rode his motorcycle away.
11. [11]
    The applicant started the Toyota Camry, Johnson got into the front passenger seat, and the motor vehicle commenced pursuing Mr Opacic’s motorcycle.  Mr Opacic’s motorcycle overtook one other motor vehicle at high speed, and then the Toyota Camry that the applicant was driving overtook the same vehicle at high speed, travelling over the double white lines to do so.
12. [12]
    An oncoming road user described the motorcycle passing him at high speed and with deafening noise and with the motor vehicle driven by the applicant pursuing five meters directly behind the motorcycle.  The Toyota Camry vehicle being driven by the applicant was halfway over the centreline, such that the oncoming road user had to move off to the left shoulder of the road.
13. [13]
    Physical evidence and the police traffic accident investigation revealed that the Toyota Camry struck the rear of Mr Opacic’s motorcycle.  This caused him to lose control on a slight bend, come off his bike, with the closely pursuing Toyota Camry moving over the top of his body.  The injuries to Mr Opacic were catastrophic, with fractures being sustained over the entire top part of his skull, his chest, a transection of his spinal column, and a flattening of his pelvis, as well as a complex fracture of the left leg.  After mortally wounding Mr Opacic, the applicant took Mr Opacic’s backpack, which contained $9,200.
14. [14]
    As to subjective factors, Johnson was 29 years of age and had a criminal history which commenced when he was 17 years old.  Johnson had been imprisoned and was on a suspended sentence for domestic violence at the time of the offending.
15. [15]
    As acknowledged in the applicant’s written submissions, the applicant had a worse criminal history than Johnson.  The applicant’s criminal history commenced when he was 20 with minor drug offending, moving to more serious offending over time.
16. [16]
    In 2017, the applicant was convicted of an offence of robbery and sentenced to 18 months imprisonment.  On 28 January 2021, the applicant was sentenced in the Maroochydore Magistrates Court for property offences, weapons offences, and domestic violence offences.  He was sentenced to three years imprisonment and released after having served four months on 27 May 2021.  The applicant therefore committed the subject offences after being on parole for five weeks.
17. [17]
    As to objective factors, the applicant was the driver of the motor vehicle that struck Mr Opacic’s motorcycle.  It was his driving, at high speed, in deliberate pursuit of Mr Opacic, that caused the death.
18. [18]
    Further the interpersonal issue between the applicant’s friend, Mr Johnson and the deceased Mr Opacic did not decrease the criminal culpability of the applicant.  Encouragement of the applicant by Mr Johnson to pursue Mr Opacic was not a mitigating factor.  The applicant had no cause personally to inflict harm to Mr Opacic.  He had agreed to be a backup for Mr Johnson, in the event he was attacked by Mr Opacic, not an active aggressor.  Nothing in those circumstances detracted from the seriousness of the applicant’s criminal conduct in causing the collision with the motorcycle and Mr Opacic’s death.
19. [19]
    The fact that the applicant was in charge of the motor vehicle which pursued and then struck Mr Opacic’s motorcycle, causing his death, having been released on parole but eight weeks earlier, justified the disparity in sentences.
20. [20]
    Once that conclusion is reached, there is no basis to conclude that the sentence of 10 years imprisonment was unjust.  The deferral of parole eligibility is until 80 per cent a consequence of that just sentence.
21. [21]
    The circumstance of the automatic declaration of a serious violent offence does not mean the parity principle is to be ignored.^[1]  However, the substantial differences between the respective parole eligibility periods is not the only relevant consideration.
22. [22]
    Although the time in custody is more onerous for the applicant, the difference between the sentences does not give rise to an unjustified disparity when the circumstances are looked at as a whole, given the difference in culpability between the applicant and Mr Johnson, the applicant’s offending while on parole and the operation of s 161B(1) of the Penalties and Sentences Act 1992 (Qld) as a consequence of the imposition of the sentence of 10 years imprisonment.
23. [23]
    There is no justifiable sense of grievance.  Leave to appeal should be refused.

Order

24. [24]
    The application for leave to appeal sentence is refused.