Bree v The Queen

[2006] NSWCCA 124

CITATION:	BREE v R [2006] NSWCCA 124 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	1 March 2006
JUDGMENT DATE:	13 April 2006
JUDGMENT OF:	McClellan CJ at CL at 1; Rothman J at 10; Smart AJ at 39
DECISION:	1. Leave to appeal granted; 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - SENTENCE - parity of sentence - drug syndicate - levels of criminality - disparity with one of nine co-accused - no legitimate sense of grievance - not compound error
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 Crimes Act 1900
CASES CITED:	R v Kelly (2005) 155 A Crim R 499 R v Maherr (2005) 154 A Crim R 457 R v Wilkie (2003) 140 A Crim R 78 R v Chen (2003) 138 A Crim R 433 R v Inamata (2003) 137 A Crim R 510 R v Schultz [2002] NSWCCA 462 R v Ismunandar (2002) 136 A Crim R 206 R v Van Hoang (2002) 135 A Crim R 244 Man Kong Ho (2002) 133 A Crim R 340 Lim Yok Peng (2002) 130 A Crim R 293 MacDonnell (2002) 128 A Crim R 44 Halls and Halls (2002) 127 A Crim R 209 Richards (2001) 123 A Crim R 14 Cimone (2001) 121 A Crim R 433 Uzabeaga (2000) 119 A Crim R 452 Doan (2000) 115 A Crim R 497 Liu v Regina [2005] NSWCCA 450 Livas v R [2006] NSWCCA 54 Jones v The Queen (1993) 67 ALJR 376 Postiglione v The Queen (1997) 189 CLR 295 Waters v PTC (1992) 173 CLR 349 Lowe v The Queen (1994) 154 CLR 606 R v Boney [2001] NSWCCA 432 R v Doggett, NSWCCA, 24.3.96, unreported R v Ilbay [2000] NSWCCA 251 R v Tiddy [1969] SASR 575 R v Diamond, NSWCCA, unreported 18.2.93 R v Isumander [2002] NSWCCA 477 R v SY & Anor [2003] NSWCCA 291 R v Harmouche [2005] NSWCCA 398
PARTIES:	A: Shannon James BREE R: The Crown
FILE NUMBER(S):	CCA 2005/2253
COUNSEL:	A: H Dhanji R: P Ingram
SOLICITORS:	A: William O'Brien R: S Kavanagh (Public Prosecution)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0784 & 04/11/0766
LOWER COURT JUDICIAL OFFICER:	Woods QC DCJ
LOWER COURT DATE OF DECISION:	01/03/2006

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2005/2253

McCLELLAN CJ at CL
ROTHMAN J
SMART AJ

13 April 2006

Shannon James BREE v REGINA

Judgment

1 McCLELLAN CJ at CL: I have had the benefit of reading in draft the judgments of Rothman J and Smart AJ.

2 This Court has had many occasions to emphasise the statement by Mason J in Lowe v The Queen (1994) 154 CLR 606 at 610 that an appellate court can only intervene if the sentence of a co-offender engenders a “justifiable sense of grievance” (see R v Kelly (2005) 155 A Crim R 499 at 502-3 and at 513-4; R V Maherr (2005) 154 A Crim R 457 at 464-6; R v Wilkie (2003) 140 A Crim R 78 at 81; R v Chen (2003) 138 A Crim R 433 at 443; R v Inamata (2003) 137 A Crim R 510 at 523; R v Schultz [2002] NSWCCA 462; R v Ismunandar (2002) 136 A Crim R 206 at 215; R v Van Hoang (2002) 135 A Crim R 244 at 248; Man Kong Ho (2002) 133 A Crim R 340 at 350; Lim Yok Peng (2002) 130 A Crim R 293 at 298; MacDonnell (2002) 128 A Crim R 44 at 53 - 4; Halls and Halls (2002) 127 A Crim R 209 at 216; Richards (2001) 123 A Crim R 14 at 28; Cimone (2001) 121 A Crim R 433 at 437; Uzabeaga (2000) 119 A Crim R 452 at 459; Doan (2000) 115 A Crim R 497 at 500).

3 The sentence complained of must be such that there is an appearance of injustice to the “objective bystander.” In Liu v Regina [2005] NSWCCA 450 I said:

“Although the High Court has stressed the need for consistency in punishment, particularly of co-offenders, this does not have the consequence that if in all the circumstances a co-offender should have received a greater sentence than the other offender, the latter may complain of a justifiable grievance requiring intervention by this Court. If the error has been made when sentencing another offender the co-offender’s grievance may not require the intervention of this Court.”

4 In the present case, as Smart AJ explains the applicant can point to the sentence of the co-offender De Marco and submit that having regard to their respective roles in the drug operation the applicant’s sentence should have been less than De Marco.

5 However, before he can sustain a justifiable sense of grievance this Court would need to be satisfied that the sentence imposed on De Marco was appropriate having regard to the offence for which he was being sentenced and the sentences imposed on the other co-offenders.

6 Having regard to his role in the enterprise the sentence imposed on De Marco was lenient to the point that the applicant’s complaint of a lack of parity has little substance. When consideration is given to the fact that the applicant was sentenced for multiple offences and, although a minor matter, consideration was also given to the matter on a Form 1 he cannot complain of a justifiable sense of grievance.

7 The sentencing judge said of the applicant that his “criminality is extensive and nothing other than a significant penalty of imprisonment is appropriate.”

8 In my opinion this finding is correct and no sentence other than that which his Honour imposed was required.

9 I agree with the orders proposed by Rothman J.

10 ROTHMAN J: Shannon James Bree seeks leave to appeal the sentence imposed by His Honour Judge Woods QC DCJ on 15 October 2004, on the basis that the applicant has a justifiable sense of grievance by virtue of the disparity between the sentences imposed upon him and those imposed upon his co-offenders.

11 The effective overall sentence imposed upon the applicant was a term of imprisonment of three and a half years non-parole period and a head sentence of four years and eight months. The sentences which bring about that aggregate were:

Count 1 and Count 2 : supply prohibited drug (ecstasy in the case of Count 1 and methylamphetamine in the case of Count 2) in each case by operation of s.29 of the Drug Misuse and Trafficking Act 1985 , a contravention of s.25(1) of that Act, which provides for a maximum penalty of 15 years imprisonment and/or a $220,000 fine. The applicant was sentenced on each Count to a non-parole period of two years and three months to commence on 16 December 2003 and to expire on 15 March 2006. In each case there was fixed a parole period of nine months to commence on 16 March 2006 and to expire on 15 December 2006; a total term of three years.

Count 3 : Supply prohibited drug (cannabis, in the vicinity of 20kg) contrary to s.25(1) of the Drug Misuse and Trafficking Act 1985 , the date of offence being between 2 October 2002 and 16 October 2003, for which a maximum penalty is fixed of 10 years’ imprisonment and/or a $220,000 fine and for which the applicant was sentenced to a term of imprisonment for a non-parole period of three years and six months to commence on 16 December 2003 and expire on 15 June 2007 and a parole period of 1 year and two months to commence on 16 June 2007 and expire on 15 August 2008, bringing about a total term of 4 years and 8 months. The sentence for the foregoing offence took into account a matter included on a Form 1, being goods in custody (date of offence: 21 October 2003) contrary to the Crimes Act 1900 , s.527C for which there is a maximum penalty of 6 months’ imprisonment and/or a $550 fine.

Facts

12 The applicant was charged with and pleaded guilty to trafficking in prohibited drugs, namely ecstasy, methylamphetamine and cannabis and, in the case of the cannabis, in an amount not more than the commercial quantity.

13 The applicant was a member of the Scott Syndicate. That syndicate was concerned with trafficking in cannabis. I take the facts from the sentencing judge’s remarks on sentence:

“Police in May 2003 searched premises of the offender, Shannon James Bree, at 5 Wentworth Street, Gunnedah. That was preceded by surveillance and on 13 May at 9.25 am police saw Bree drive into the driveway. He went inside for a short time and then returned to his car and then police spoke to him. He admitted possessing 6.8 grams of cannabis, he was arrested and cautioned. The search warrant was explained to him and the search was commenced. There were several large ugly dogs running around the place, one of them tied up – obviously, dogs designed to keep respectable citizenry away from the premises. He told police that it wasn’t his house but he owned the dogs and was attending the residence to feed them. He had a key to the premises, which were unoccupied. Inside the premises a lot of items relating to drugs were found – cannabis seeds, a bong, documents in the name of Brett BREE, the offender’s brother, hydroponic equipment which was not in use but none the less the offender admitted that the equipment was his. Resealable bags were found in the kitchen, a safe was found and seized. Digital scales were found, floor boards appeared to be loose and underneath the floor boards a vacuum sealed plastic bag was found with another bag in it containing a large amount of high quality cannabis. The offender said that he had seen it previously when the dogs had disturbed the loose floor. He said he replaced the cannabis back where he found it because he did not know who owned it. That bag contained approximately 485 grams of cannabis. Under further floor boards, there were two more heat sealed bags, similar in kind and in quantity of cannabis they contained. Police had the safe opened and the offender stated that he placed items in the safe before police attended the premises. He told police in an interview that he had been approached a number of weeks previously to supply the dogs for protection and he attended the house daily to feed the dogs. While in the house he looked at the freezer and saw a number of items inside: he found a plastic bag containing an amount of cannabis and two other resealable bags. He said that he saw beige powder and a bag of beige pills. He said he noticed a cupboard door containing the safe and the door of the safe open. He assumed the items in the freezer belonged in the safe so he placed them in the safe before closing the door. He said that the cannabis located in his pocket was going to be a gift to his girlfriend. The safe was opened, and contained a plastic bag of cannabis, 408 grams in weight, and other bags, one containing a number of white and beige coloured tablets and another bag containing 10 tablets. The offender stated he had also found those in the freezer but had forgotten about them. Those facts are relevantly the basis for counts on the indictment. …
… the offender Bree was involved with Scott. Scott was a major coordinator of an organised syndicate involved in the packaging and distribution of cannabis into New South Wales from South Australia. The cannabis was delivered into New South Wales by couriers who packed the cannabis into four storage compartments within the four wheel drive motor vehicle supplied by Scott. Those couriers had delivered to persons in New South Wales who in turn supplied it to Bree. Police investigations identified Bree receiving cannabis on a regular basis. He would take it from the man, De Marco, and return with it to Gunnedah to sell.
… Numerous telephone calls record conversations between Bree and Scott, conversations detailing when and how deposits of large sums of cash were made by Bree on a regular basis into back accounts in the name of Jason Scott’s wife, Melissa Robbins and another account in the name of Dubioso.
… Calls show that Bree paid Scott around $3,000 per pound of cannabis delivered. Banking records obtained for the period 2 October 2002 to 28 July 2003 show deposits and cash payments totalling in excess of $115,000. Shannon Bree, or his associates, made these deposits and/or cash payments to Jason Scott as payments for cannabis.
Based on the purchase price per pound, it is calculated (the Crown accepts and I will sentence on the basis) that the amount of cannabis purchased by Bree between 2 October 2002 and 16 October 2003 was in the vicinity of 20kg. This includes the period between 24 July 2003 and 16 October 2003 when Bree is recorded in conversations with Scott and his associates as having paid or owed Scott $115,800 for cannabis received. There is no doubt that Bree did, in fact, owe Scott the money: conversations indicate that.
On 21 October 2003, a search warrant was executed on premises associated with Shannon Bree in Gunnedah. $5,000 in cash was found and he gave no satisfactory explanation for that. There is no doubt that it was associated with drugs.
… As to the role played by Bree, it might be said that he was a franchisee in the syndicate in the town of Gunnedah. He was not one of the principals of this overall operations but nonetheless, so far as Gunnedah was concerned, he was the principal distributor for those above him in the chain. The criminality is extensive and nothing other than a significant penalty of imprisonment is appropriate.”

14 As can be seen from the above extensive quote, the applicant was engaged in a syndicate for the trafficking of drugs, which syndicate was substantial. The syndicate was essentially concerned with trafficking in cannabis and the offences in relation to ecstasy and amphetamine were offences detected as a result of the execution of the search warrant which was issued primarily for the purpose of obtaining evidence in relation to the cannabis syndicate.

15 As already stated, the fundamental issue raised by the applicant in this Court is the issue associated with parity. The sentences imposed on the offenders caught in the net of this investigation are as follows:

OFFENDER	ROLE/~ quantity	SENTENCED BY	SENTENCE (NPP/Total term)
Scott	Principal (900kg)	Woods QC DCJ, 15/10/04	6½ yrs/9 yrs
Palanca	Senior – packing and supply to couriers (> 100kg)	Hoskings SC DCJ, 08/04/04	3 yrs 8 mths/5 yrs 5 mths
De Marco	Mid-level (100kg)	Woods QC DCJ, 03/12/04	3 yrs/4 yrs
Elersly	Mid-level (100kg)	Hoskings SC DCJ, 08/04/05	2 yrs 10 mths/4½ yrs
Bree	Franchisee (20 kg)	Woods QC DCJ, 15/10/04	3½ yrs/ 4 yrs 8 mths
Wood	Courier (>100kg)	Woods QC DCJ, 03/12/04	2 yrs/3 yrs
Vanderstaak	Courier (52kg)	Woods QC DCJ, 15/10/04	1 yr 3 mths/ 3 yrs
Gosling	Purchaser for supply (7.13 kg)	Hock DCJ, 15/10/04	9 mths/18 mths
Livas	Purchaser for supply (2.26 kg)	Hosking SC DCJ 08/04/05	6 mths fixed term On appeal, sentence suspended.

16 For relevant purposes the co-accused Livas can be wholly discounted as relevant in this exercise. The evidence in relation to Mr Livas was that he was caught in the net during a particular purchase in circumstances where he otherwise had no connection with the syndicate (see Livas v R [2006] NSWCCA 54).

Principles applicable to Parity

17 As can be seen from the above table, his Honour Judge Woods QC DCJ sentenced five of the nine persons charged from material obtained in the investigation of the syndicate. Most relevantly, he sentenced the principal, Scott, and Mr De Marco as well as the current applicant. Indeed, the accused, Jason Scott, Shannon Bree and Eugene Vanderstaak were sentenced at the one time and the remarks on sentence, except where the sentencing judge expressly differentiated, relate to all of them. Mr De Marco was sentenced almost two months later. The major thrust of the argument of the applicant before this Court was that, especially by comparison with the sentence imposed on Mr De Marco, there is a justifiable sense of grievance in the applicant who received, relatively, a heavier sentence than was deserved.

18 The fact that De Marco was sentenced later in time than the applicant is not a bar to the application of parity principles to the applicant (see Jones v The Queen (1993) 67 ALJR 376 at 377). The parity principle recognises, in relation to sentencing, a consistent theme throughout the law. It recognises that equality, and the perception of equality, is a necessary concomitant of the objective application of law and principle. It applies in a number of areas. Applying the same principles of consistency of approach, the courts have held that unequal treatment of persons who are relevantly equal is discrimination. So, too, is the equal treatment of persons who are relevantly unequal. (see Waters v PTC (1992) 173 CLR 349 at 402, per McHugh J.)

19 The principle found expression as a recognised factor in fixing an appropriate sentence. The application of the principle requires that like should be treated alike and that, where there are relevant differences, due allowance should be made for them (see Postiglione v The Queen (1997) 189 CLR 295, especially per Dawson and Gaudron JJ at [301]).

20 In Lowe v The Queen (1994) 154 CLR 606, Mason J (as he then was) said:

“The justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander.”

21 Mason J had earlier said:

“Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.”

22 The fundamental essence of the principle, especially in relation to sentencing, is that any discrepancy should be justifiable. Of course, sentencing an individual offender is not like setting a generally applicable wage rate or determining whether, by comparison to others not in a particular class, a person has been treated unequally or inappropriately. Every offence and every offender is unique. The arithmetic precision which may apply in other areas of the law cannot apply to the sentencing of an individual offender. Where co-accused and their role within a criminal enterprise is the same, then the objective factors associated with the offence are relevantly the same, however, objective factors in the commission of the offence are not the only factors to be taken into account in sentencing. Since no two individuals are identical, the determination of exact relativity in the sentencing of individuals is an impossibility. Some of the measures that are utilised in order to minimise a lack of transparency is, as Dawson J encouraged, the sentencing by one judge of co-accused in a joint criminal enterprise. That was largely achieved in relation to the Scott Syndicate, of which this forms part. Certainly it was achieved in relation to the sentencing of Mr De Marco, Mr Scott and the applicant.

23 When a prisoner appeals the sentence imposed on the ground of disparity, it would be a mistake to determine the appeal on the basis of the misleading nature of the short hand title it is given. It is not truly an appeal on the basis of “disparity” or even on the basis of the “parity principle”. It is an appeal on the basis that there is a legitimate and/or justifiable sense of grievance or injustice at the discrepancy in sentencing between two or more co-accused. The test for determining the legitimacy of a sense of grievance is objective not subjective. An applicant for leave to appeal on the basis of such a ground must demonstrate, not that the applicant feels aggrieved, but that a reasonable mind looking objectively and overall at what has occurred would see justification in the applicant’s grievance (see R v Doggett, NSWCCA, 24 March 1996 unreported, per Sully J and R v Ilbay [2000] NSWCCA 251 at [6]).

24 Further, there are a number of qualifications which, themselves, are based upon the application of transparent justice to the principle in question. It is, for example, not appropriate for an appeal court to intervene by reducing a sentence if the result is to produce a sentence disproportionate to the culpability (both objective and subjective) of the offender in question (see R v Boney [2001] NSWCCA 432).

25 I turn then to the application of the principle to the facts in this case. His Honour the sentencing judge said of the role played by Bree:

“… it might be said that he was a franchisee in the syndicate in the town of Gunnedah. He was not one of the principals of the overall operations, but nonetheless, so far as Gunnedah was concerned, he was the principal distributor for those above him in the chain. The criminality is extensive and nothing other than a significant penalty of imprisonment is appropriate.”

26 It is clear that his Honour, informed in relation to the totality of the operations of the syndicate, took the view that the criminality of the applicant was significant and at a higher level than the submission made by and on behalf of the applicant before this Court. As well as dealing with De Marco, the applicant dealt directly with Scott, as did De Marco. The judge also held, particularly in relation to the applicant’s criminal history, that he had a “bad history” but not a “remarkably bad history”. As to parity, his Honour made clear that the applicant:

“does not bear the same culpability as Scott, and perhaps others equivalent to Scott. … It is nonetheless a very serious criminality. He clearly was involved extensively in the distribution of this illegal substance and the criminality continued over a long period of time.”

27 After taking into account the subjective elements associated with the applicant, his Honour then sentenced the applicant. The sentence, of course, was for three offences, not simply the offence relating to cannabis. Further, all of the sentences are concurrent and his Honour was clearly concerned to ensure that the totality of the sentence reflected an appropriate figure.

28 The applicant seeks to separate out the cannabis charge, which was the most serious charge, but it seems, at least in part, that the sentence on Count 3 reflects his Honour’s desire to ensure an overall sentence which reflects the totality of the criminality involved.

29 I have earlier stated that it is impermissible to compare the applicant with Mr Livas and given their respective roles it is impermissible to compare the applicant with any of the couriers or Mr Gosling. In his submissions counsel for the applicant paid particular regard to the sentence imposed on Mr De Marco. It is necessary to deal with this comparison because it is the one which has been the subject of the most telling submission and the concern of the applicant in relation to “unfair treatment”. Mr De Marco was sentenced by Woods QC DCJ on 3 December 2004, some 2 months or so after the sentencing of Mr Scott and the applicant. His Honour, in the remarks on sentence for Mr De Marco (and Byron Wood who was sentenced at the same time), recounted the issues associated with the Scott Syndicate and made the following comments:

“The matter relates to an extensive syndicate of marijuana distribution, one of the principals of which was a man called Jason Peter Scott. …
… He, in effect, ‘franchised’ various people such as the man, Bree, [the applicant], and such as the man, De Marco, to be the recipients of the drug for it to be on-supplied in due course. There were, as well, various people who were the drivers or couriers of the vehicles. The couriers are at the lowest level of the culpability although in all cases such as that of the man Wood, inevitably a prison sentence will be imposed. Higher up than that is the level of people such as Bree and De Marco. At the top level was the man, Scott and possibly various others.”

30 It is clear that, at least at the time he came to sentence De Marco, Woods QC DCJ took the view that De Marco and Bree were at a similar level of criminality. There are differences. As counsel for the applicant has pointed out, De Marco was convicted in relation to five times the amount of cannabis than was the applicant. However, given the nature of the syndicate and the factual findings by his Honour the sentencing judge, the amount of cannabis to which the charges relate may be more a question of timing than it is a reflection of the relative level of criminality of the two co-accused. That seemed to be the view of his Honour the sentencing judge. In sentencing Byron Wood his Honour said:

“There is a difference in the maximum penalty available as to supply of marijuana in terms of large commercial as against a commercial quantity, but in the circumstances of this case, it does not seem to me to be as significant as other considerations, and particularly the respective roles involved.”

31 In dealing with Mr De Marco, his Honour Woods QC DCJ said:

“In a case where there are multiple offenders and a syndicate is involved, sometimes difficulties arise in equating the sentences to be imposed upon various parties. Without engaging in an overly fine dissection of the comparabilities, this man’s culpability is approximately like that of the man, Bree [the applicant], although there may be slight differences and I bear in mind the necessity to avoid sentencing in a way that might excite legitimate concerns as to comparability of treatment.”

32 The fundamental basis of the submissions of the applicant was that he had been unfairly treated by comparison with De Marco in circumstances where De Marco received a lesser sentence yet should have received a greater sentence. It is a submission based upon the lack of “due discrimination” between the two offenders. In the joint judgment of Dawson and Gaudron JJ in Postiglione, their Honours cite with approval the following extract from R v Tiddy [1969] SASR 575 at 577:

“… where other things are equal, persons concerned in the same crime should receive the same punishment; and where other things are not equal, a due discrimination should be made.”

33 In this case, none of the offenders are “equal”.

34 His Honour the sentencing judge arrived at a sentence for De Marco based on his perception that De Marco was at or about the same level of culpability as Bree. That determination was made on the basis of the role of the two offenders, rather than the amounts of the drug involved. There are differences, of significance, between the role that De Marco played and the role that Bree played. I have already described Bree, in the words of Woods QC DCJ, as a “franchisee”. De Marco is probably best described as a “wholesaler” and was further up the chain of the syndicate than was Bree. Even taking account of the preference to look at the role rather than the amount of drugs involved, De Marco played a seemingly more significant role than did Bree.

35 As already stated, the first of two offenders is entitled to rely upon parity with the second, notwithstanding that the second was set by comparison with the first. (See Jones v The Queen, supra).

36 However, the difficulties, largely already mentioned, in this case are twofold. Firstly, the applicant was sentenced for more than one offence and there can be little doubt that the sentence in relation to cannabis was structured so as to take into account the sentencing judge’s view as to the totality of the criminal liability of the applicant. It also took into account the goods in custody matter on the Form 1. Secondly, and more importantly from the perspective of the submissions made on behalf of the applicant before this Court, the applicant’s sentence has an appropriate relativity to that of Scott and the various couriers. In the case of Palanca, he was described by Hosking SC DCJ as operating “below Scott” and above “Bree and De Marco” in objective criminality but because of subjective factors the particular sentence was imposed. The dilemma, therefore, for the applicant, is that, while it may look, at first blush, that the sentence in comparison to De Marco suffers from a disparity, making an alteration, favourable to the applicant to reflect relative seniority in the syndicate with De Marco, would put the applicant out of parity with all of the other members of the syndicate. Further, given the role that the applicant played in the organisation, his prior criminal record and the other offences (including the Form 1) for which he was sentenced a sentence any lower than the one imposed by Woods QC DCJ would take the applicant out of the range of appropriate sentences for the criminal conduct and subjective elements involved.

37 While the applicant may have a sense of grievance at the relative sentence imposed upon Mr De Marco, it is a sense of grievance derived from the leniency with which Mr De Marco has been treated. That sense of grievance is essentially one based upon the error, the applicant submits, of finding that Mr De Marco and Mr Bree were at the same level and ultimately, mistakenly, of giving Mr De Marco a sentence that was erroneously lenient. It is not every disparity which requires correction. There must be a disparity based upon a legitimate sense of grievance. In this case, the sense of grievance felt by the applicant is not legitimate because it is based upon a known situation where there has been a mistake in fact in the later sentence on relative criminality of only one of 8 co-accused. The sentence imposed on the applicant is an appropriate one and a lower sentence would be inappropriate and inadequate (see R v Tisalandis [1982] 2 NSWLR 430). Further, the disparity is not such that it warrants correction.

38 For these reasons I propose that:

a Leave to appeal be granted;

b The appeal be dismissed.

39 SMART AJ: Shannon James Bree seeks leave to appeal against non-parole periods totalling 3 years and 6 months with a parole period of 1 years 2 months on the sole ground that he has a justifiable sense of grievance by virtue of the disparity between the sentences imposed on him and those imposed on his co-offenders, in particular Elliott De Marco, Peter Palanca and Israel Gosling.

40 He was charged that on 13 May 2003 at Gunnedah he supplied a prohibited drug, namely, methylendioxymethylamphetamine (ecstasy) (Count 1) and that he supplied methylamphetamine (deemed supply of 36.5 grams) (Count 2). He was further charged with supplying cannabis, indictable quantity, between 2 October 2002 and 16 October 2003, being less than 25 kilograms (the commercial quantity). For convenience this is called Count 3. On the last mentioned charge there was taken into account a charge of on 21 October 2003 having goods in custody, namely $5000.

41 The maximum penalty on each of Counts 1 and 2 is 15 years imprisonment and/or a $220,000 fine whilst that on Count 3 is 10 years imprisonment and/or a $220,000. On Counts 1 and 2 the applicant was sentenced to terms of imprisonment, the judge setting a non-parole period of 2 years 3 months commencing 16 December 2003 and expiring 15 March 2006 and imposing a further period of imprisonment of 9 months expiring on 15 December 2006. On Count 3 the judge set a non-parole period of 3 years 6 months commencing 16 December 2003 and expiring 15 June 2007 and imposed a further period of imprisonment of 1 year 2 months expiring on 15 August 2008. The sentence on Count 3 was thus concurrent with that imposed on Counts 1 and 2. The total effective sentence was therefore 4 years 8 months with the applicant being eligible for release to parole on 15 June 2007.

42 The applicant entered pleas of guilty to the offences charged at an early stage. I would adopt the statement of facts extracted in the judgment of Rothman J, along with his table of offenders, their roles, the sentencing judges and the sentences.

43 It is not in doubt that all other factors being equal, co-offenders of approximately equal responsibility for the offence should be treated alike, nor that there must be due proportion between the sentences imposed on co-offenders: Lowe v The Queen (1984) 154 CLR 606 esp at 609 (Gibbs CJ) 610-611, 613-614 per Mason J; Postiglione v The Queen (1997) 189 CLR 295, esp at 301. The appellate Court has a discretion to intervene where there is a manifest discrepancy or disparity such to give rise to a justifiable sense of grievance. An appellate Court is not required to achieve parity with an erroneous sentence if to do so would amount to the imposition of another erroneous sentence. Error should not be compounded: R v Diamond NSWCCA, unrep., 18 February 1993, R v Isumander & Siregar [2002] NSWCCA 477 and R v SY & Anor [2003] NSWCCA 291 and R v Harmouche [2005] NSWCCA 398 at 68, and cases there cited.

44 I turn now to a comparison of the cases against the applicant and De Marco, their circumstances and their sentences.

45 De Marco was sentenced by the same judge as the applicant, but about seven weeks later. De Marco received a non-parole period of 3 years and a further period of imprisonment of 1 year. The quantity of cannabis supplied by the applicant was about 20kg and that supplied by De Marco was approaching 100kg. He was charged with, and pleaded guilty to supplying not less than the commercial quantity of cannabis. This offence carries a higher maximum penalty (15 years imprisonment and/or a fine of $385,000).

46 De Marco was a mid-level distributor in an extensive syndicate of marijuana distribution co-ordinated by Jason Peter Scott. The judge held that Scott, in effect, “franchised” various people such as the applicant and De Marco, to be the recipients of the drug to be on-supplied in due course. Beneath the applicant and De Marco were the couriers who made the deliveries from South Australia to New South Wales.

47 Like the applicant, De Marco had the benefit of an early plea of guilty.

48 In sentencing De Marco the judge took into account as matters of aggravation, that this was organised criminality and that he did have a record for drug offences in England which had put him in prison. For the purpose of the sentencing exercise the judge accepted De Marco’s explanation that he had “taken the rap” for his friends who, from time to time, shared the task of buying ecstasy for their use. De Marco’s record was not a long one.

49 The judge found that when De Marco came to Australia he attempted to advance himself by a business enterprise which apparently resulted in financial failure with him, presumably, falling into debt. Under such pressure he fell prey to the temptation of easy money from drugs. The details are not stated. Nor is a great deal stated in the judge’s reasons as to the method of De Marco’s operation. It does seem that he operated over a much wider area than the applicant. That would be consistent with the quantities each of them handled.

50 The case of De Marco presented something of a puzzle. The judge was well aware of both aspects. On the one hand there was his extensive involvement in the drug trade. On the other hand he had innate decency and community spirit which were reflected in his work with the Rural Bushfire Brigade and in his work with handicapped children. The judge expressly took these into account. The judge described the personal material advanced in relation to De Marco’s family situation as distressing, but not something which the Court could take into account by way of mitigation.

51 In sentencing De Marco the judge was aware of parity considerations, stating:

“Without engaging in an overly fine dissection of the comparabilities, this man’s culpability is approximately like that of the man, Bree, although there may be slight differences and I bear in mind the necessity to avoid sentencing in a way that might excite legitimate concerns as to comparability of treatment.”

52 The applicant was obviously a principal distributor (and vendor) of cannabis in his hometown of Gunnedah over an extended period. He conducted an extensive business.

53 The applicant was born on 16 May 1975, married and with one child. The judge had regard to his criminal history. In February 1996 he was placed on recognisances and fined for cultivating prohibited plants and possessing them. In August 1996 he was sentenced to 2 months imprisonment for assault occasioning actual bodily harm. In November 1999 he was convicted of assault occasioning actual bodily harm and placed on a recognizance in the Newcastle District Court. There were other offences; some involved dishonesty and others were traffic offences. In September 2003 he was convicted of being in charge of an attacking dog, and fined. The judge commented that the applicant’s history was “not a remarkably bad history but it is a bad history.”

54 The judge pointed out that the marihuana offence was committed in part while the applicant was on bail in relation to Counts 1 and 2. His prospects of rehabilitation were guarded.

55 The judge made the sentences concurrent as the offences “were committed during the same general period of criminality and were related”.

56 De Marco did not commit his offence while on bail for other charges and there were no Form 1 matters to be taken into account.

57 The judge found, “… Police investigations identified Bree receiving cannabis on a regular basis. He would take it from the man, De Marco, and return with it to Gunnedah to sell”.

58 The sentences imposed on the applicant and De Marco lack due proportion. Both men were major distributors of drugs and both were appreciable operatives within a large-scale drug syndicate. Because of the much larger quantity of drugs handled by De Marco (approaching 100kgs as against about 20kgs) De Marco effectively disseminated much more cannabis into the community and over a wider area, even helping to supply the applicant. I can see no sound basis for imposing a greater sentence on the applicant (3 years 6 months non-parole and a balance of 1 year 2 months) than De Marco (3 years non parole and a balance of 1 year) especially when De Marco’s role was more widespread and he was disseminating into the community four times, and approaching five times, more cannabis than the applicant. The differences between them did not warrant the difference in the sentences imposed. Indeed, having regard to the more serious offence of De Marco, it would be expected that he would receive the greater sentence. The judge appears to have been influenced by the commendable community service of De Marco, but that could not be allowed to result in a major sentence reduction.

59 The judge recorded, correctly, at the start of his reasons as to De Marco, the offence to which he had pleaded guilty, but made no mention when comparing him with the applicant to De Marco facing a more serious charge. This was not a case where there was relatively little difference in the quantities the subject of these separate offences.

60 Having regard to the judge’s duty to determine a proper sentence for each offence and the judge evidently doing so, the applicant’s sentence on Count 3 cannot be assumed to be inflated because of the offences the subject of Counts 1 and 2. Whether the sentence on Count 3 should have been partially accumulated on those on Counts 1 and 2 is another issue.

61 Having concluded that there is disparity between the cannabis sentences imposed on the applicant and De Marco the question remains what course this Court should take.

62 The sentence imposed on the applicant on the cannabis count (Count 3) is a lenient one and one close to or at the bottom of the permissible range for that offence. The seriousness of the applicant’s offence lies in the substantial quantity of 20kgs of cannabis, the supply and distribution taking place over one year, the regular and systematic nature of the skilful operation and the payment by the applicant or his associates of $115,000 directly into the bank account(s) of Scott. This has all the hallmarks of a substantial business operation for profit.

63 The sentence imposed on De Marco was erroneous in that it was manifestly inadequate. De Marco was responsible for the supply and distribution of a quantity of cannabis approaching 100kgs. He knew from a previous custodial sentence that he should not be involved in supplying drugs. He was part of a well-organised drug distribution syndicate distributing by skilful means large quantities of drugs from South Australia into New South Wales. De Marco succumbed to the lure of easy money to recover from a failed business enterprise. To reduce the applicant’s sentence based on the manifestly inadequate one imposed on De Marco would involve the compounding of error.

64 The applicant also relied on the sentence imposed on Palanca who received a sentence comprising a non-parole period of 3 years and a balance of term of imprisonment of 1 year 9 months, making a total sentence of 5 years 5 months. He pleaded guilty to supplying not less than the large commercial quantity of cannabis leaf which carries a maximum penalty in terms of imprisonment of 20 years.

65 Hosking DCJ, after describing the managerial role and skill of Scott in setting up the syndicate and operation, stated that Palanca was supplied with particulars of cannabis growers in South Australia by Scott. Once Scott had established Palanca with these contacts for a regular source of cannabis, Palanca gathered large quantities of cannabis for packaging in preparation for delivery to New South Wales. Between 25 October 2002 and 5 October 2003, Palanca supplied more than 100kg of cannabis to known couriers in the syndicate to transport to New South Wales and to known people in New South Wales. The total amount of cannabis supplies in New South Wales from South Australia was in excess of 900kg and purchases of cannabis in New South Wales yielded in excess of $5 million. This was at Scott’s behest, with Palanca involved in but a portion.

66 Scott had been previously sentenced to a non-parole period of 6 years and 6 months and a further term of two years 6 months imprisonment. Hosking DCJ found that Palanca stood significantly below Scott in terms of the level of involvement and the quantity of cannabis he pleaded guilty to supplying. Scott had a criminal record while Palanca did not have a criminal record. Palanca had a grim and loveless childhood. He left school at age 15, having passed Year 10. He has been with his partner for 20 years and they have two children, aged 19 and 16. Palanca began using cannabis from age 17 and his use gradually increased over the years. He entered into the arrangement earlier described to clear his cannabis debt.

67 Palanca was diagnosed as having a dysthymic disorder. Upon his release he will require ongoing psychological therapy to address his disorder. He has severe high blood pressure, high cholesterol, high triglycerides and a kidney condition. He was described by his doctor as a chronically ill man. He is about 40 years old.

68 The judge found that before his involvement in the subject offence Palanca was previously a man of good character and that he was unlikely to re-offend. He had good prospects of rehabilitation. Palanca received a discount of 25 per cent for his early plea of guilty.

69 Understandably, and unlike the cases of the applicant and De Marco, Hosking DCJ found special circumstances in Palanca’s case.

70 The narration of the facts in Palanca’s case demonstrates that there were major differences between his case and that of the applicant. While Palanca’s objective criminality was probably greater than that of the applicant, Palanca had a compelling subjective case. He had the benefit of a finding of special circumstances. The principles of parity and due proportion do not lead to the applicant having a justifiable sense of grievance as a result of the sentence imposed on Palanca.

71 The applicant also relied on the sentence imposed on Israel Nye Gosling. I do not regard that case as comparable with the applicant’s case. Gosling was stopped for a random breath test. On the back seat of his vehicle there was a large bag of green vegetable leaf and $6186. During his recorded interview he told the police that he intended to take the cannabis to Tweed Heads to supply his friends. The cannabis leaf had a net weight of 7.138kg. The indictable quantity is 1.00kg.

72 Gosling was born on 15 November 1977. He had virtually no criminal history. He had but one previous conviction, namely, stealing from the person in 1995 for which, as a juvenile, he was placed on probation. Judge Hock thought he had good prospects of rehabilitation if he maintained his present resolve. He had the support of his fiancée and his family. Since his arrest he had been in protection and could well remain there for the whole of his sentence. He received a discount of 25 per cent for his plea of guilty. Special circumstances were found.

73 Gosling’s sentence comprised a non-parole period of nine months and a balance of term of imprisonment of 9 months.

74 The applicant submitted that Gosling was, like him, an on supplier and that he (the applicant) should not have received a total sentence which was more than three times that imposed on Gosling and where the non-parole period was more than four times.

75 On the evidence Gosling was not a major distributor of cannabis over an extended period. His criminality did not approach that of the applicant. Less importantly, but nevertheless relevantly, Gosling’s subjective case was stronger than that of the applicant. It is not known what reduction in sentence Judge Hock made to allow for Gosling serving his sentence in protection.

76 The challenge made to the applicant’s sentence based on that imposed on Gosling must be rejected.

77 The applicant also took a more general approach, namely, that when regard was had to all the sentences mentioned he was dealt with more harshly than the other offenders. When the individual facts relating to the other offenders are examined, there are relevant differences in the roles played and the subjective features. The applicant was running the drug distribution operation in Gunnedah. He could be described as the syndicate’s manager in Gunnedah, although it is apparent that he was selecting the customers with whom he dealt and sent large sums of money to Scott, paying for the drugs he had received. He then “on-sold” the drugs.

78 For his criminality the applicant could not, correctly, have received a lesser sentence. As earlier stated, to reduce the applicant’s sentence because of the manifestly inadequate sentence imposed on De Marco would involve a compounding of error.

79 The applicant should be granted leave to appeal against sentence, but the appeal should be dismissed.

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25/05/2006 - Error in relation to date of parole - Paragraph(s) [11]