C v R

Case •

[2022] NSWCCA 285

•

16 December 2022

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: C v R [2022] NSWCCA 285
Hearing dates: 11 July 2022
Date of orders: 16 December 2022
Decision date: 16 December 2022
Before: Bell CJ at [1]
Mitchelmore JA at [2]
Yehia J at [80]
Decision:

(1) Grant leave to appeal.

(2) Appeal allowed.

(3) Quash the sentence imposed in the District Court on 1 December 2020 (as corrected on 2 December 2020).

(4) In lieu thereof, sentence the applicant to a term of imprisonment comprising a non-parole period of 3 years and 6 months, backdated to commence from 18 March 2020, with a balance of term of 2 years.

(5) The effect is that the earliest date on which the applicant will be eligible for release to parole is 17 September 2023, with the balance of term expiring on 17 September 2025.

Catchwords:

CRIME – appeals – appeal against sentence – parity – criminal drug syndicate – manufacture large commercial quantity of prohibited drug, 3,4-Methylenedioxyamphetamine, contrary to Drug Misuse and Trafficking Act (NSW), s 24(2) – reckless dealing with proceeds of crime on Form 1 – motivation for offending to repair financial damage caused by others – whether justifiable sense of grievance in light of the sentence imposed on co-offenders

Legislation Cited:

Crimes Act 1900 (NSW), s 93T

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 54A, 54D

Drug Misuse and Trafficking Act 1985 (NSW) ss 24(2), 33(3)(a)

Cases Cited:

DS v R [2014] NSWCCA 267

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Huckstadt v R [2016] NSWCCA 22

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lewis v R [2021] NSWCCA 108

Lloyd v R [2017] NSWCCA 303

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Miles v R [2017] NSWCCA 266

Postiglione v The Queen (1997) 189 CLR 295

Rodriego (a Pseudonym) v R [2021] NSWCCA 237

SF v R [2022] NSWCCA 216

SY v R [2020] NSWCCA 320

Young (pseudonym) v R [2021] NSWCCA 163

Z v R [2022] NSWCCA 286

Category:Principal judgment
Parties: C (Applicant)
Regina (Respondent)
Representation:

Counsel:
Ms G Bashir SC and Ms R McMahon (Applicant)
Ms M Kumar and Mr M Clark (Crown)

Solicitors:
William O’Brien & Ross Hudson Solicitors (Applicant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2018/91934
Publication restriction:

(1) Pursuant to s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Act”), there be no publication of the reasons for judgment on or before 20 February 2023, other than to:

(a) the parties and their legal representatives; and

(b) the Commissioner of the NSW Police Force and her legal representatives.

This order is to apply throughout the Commonwealth of Australia.

(2) On or before 10 February 2023, the parties and the Commissioner of Police are to notify the Court of any redactions sought to be made to the reasons for judgment for the purpose of compliance with the non-publication orders made by the Court pursuant to the Act on 11 July 2022, noting that on 16 December 2022 the parties have been provided with a copy highlighted to show proposed redactions (the “Highlighted Reasons”).

(3) For the purposes of Order 2, the Crown is to provide a copy of the Highlighted Reasons to the legal representatives of the Commissioner of Police.
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Citation:

N/A

Date of Decision:
1 December 2020 (corrected on 2 December 2020)
Before:
Turnbull SC DCJ
File Number(s):
2018/91934

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, C (a pseudonym), sought leave to appeal against his sentence imposed for one count of manufacturing not less than a commercial quantity of 3,4-Methylenedioxyamphetamine (“MDA”) (in an amount not less than 24 kilograms), contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”). One count of reckless dealing with proceeds of crime, not linked to the s 24(2) charge, was taken into account on a Form 1.

C was sentenced in accordance with a Statement of Agreed Facts which detailed his participation in a criminal drug syndicate, operating across several properties, between September 2017 and March 2018. The purpose of the syndicate was to manufacture MDA. C was directly involved in the manufacture, and in transporting items to the properties.

C pleaded guilty and was sentenced in the District Court to a period of imprisonment of 6 years and 10 months, with a non-parole period of 4 years and 5 months, the sentencing judge having found special circumstances.

In addition to C and two directors, there were five other offenders involved in the syndicate. The sentences imposed on “Z”, “H”, and “P” who also pleaded guilty to charges under s 24(2) of the DMT Act (and other charges) were relevant to the parity aspect of C’s appeal. Z was involved in the process of manufacture on multiple occasions, in addition to being involved in organisation and transport. H was involved in the diversion of chemicals and was also directly involved in the manufacture of MDA on multiple occasions. P was also directly involved in the manufacture of MDA.

C and Z each had physical and mental health conditions. C suffered from coronary heart disease that required specialised treatment. Z suffered from cystic fibrosis, which required ongoing treatment and which the sentencing judge found was “life shortening”.

C appealed on two grounds: that he had a justifiable sense of grievance in light of the sentences imposed on Z, H, and P (“Ground 1”); and that the sentence imposed was manifestly excessive (“Ground 2”).

The Court (Mitchelmore JA, Bell CJ and Yehia J agreeing), granting leave to appeal, upholding Ground 1, and resentencing C to imprisonment comprising a non-parole period of 3 years and 6 months with a balance of 2 years, held:

On Ground 1:

  1. The notional starting point for C’s sentence was reasonably explained by Z suffering from cystic fibrosis, together with C’s involvement in the offending as found. Bearing in mind the qualitative and discretionary judgments required of the sentencing judge and specific findings his Honour made regarding the extent to which prison would be onerous for Z in light of his illness, his Honour’s adjustment of the starting point was reasonably justified: [1], [45], [80].

  2. P and H were lower in the organisational hierarchy than C and Z. Nonetheless, having regard to his Honour’s assessment of the objective seriousness of the conduct of C, P, and H, the significant difference in the starting point for C’s sentence as compared with the starting points for P and H was not reasonably explained by the objective seriousness as found by his Honour or C’s subjective case: [1], [62]-[65], [80].

    Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; Miles v R [2017] NSWCCA 266; Lloyd v R [2017] NSWCCA 303; DS v R [2014] NSWCCA 267; Huckstadt v R [2016] NSWCCA 22 applied.

On Ground 2:

  1. Given the conclusion on Ground 1 called for resentence, it was unnecessary to consider Ground 2: [1], [4], [80].

Judgment

  1. BELL CJ: I agree with the reasons of Mitchelmore JA and agree with her Honour’s resentence of the offender.

  2. MITCHELMORE JA: The applicant, to whom I will refer in these reasons as “C”, seeks leave to appeal against the sentence imposed on him for one count of manufacturing not less than a large commercial quantity of 3,4-Methylenedioxyamphetamine (commonly known as “MDA”) (in the amount of not less than 24 kg), contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”). A further charge of reckless dealing with proceeds of crime ($19,450) was taken into account on a Form 1.

  3. An offence under s 24(2) of the DMT Act, involving not less than the large commercial quantity of the prohibited drug concerned, is punishable by life imprisonment; the standard non-parole period is 15 years: see DMT Act, s 33(3)(a) and Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A and 54D. C was sentenced in the District Court to a period of imprisonment of 6 years and 10 months, which comprised a non-parole period of 4 years and 5 months and a balance of 2 years and 5 months, the sentencing judge having found special circumstances. He received a 25% discount for the utilitarian benefit of entering a plea at the first reasonable opportunity in the Local Court. [Redacted].

  4. C appeals on two bases. By Ground 1, C contends that he has a justifiable sense of grievance having regard to the discrepancy between his sentence and the sentences imposed on three of his co-offenders. Ground 2 is that his sentence is manifestly excessive. For the reasons outlined below, I would grant leave to appeal and allow C’s appeal in relation to Ground 1. Given my conclusion on Ground 1 calls for resentence, it is unnecessary to deal with Ground 2.

  5. C’s application for leave to appeal was heard by the Court on the same day as it heard an application by one of his co-offenders, known by the pseudonym “Z”. Z’s application has been separately determined: Z v R [2022] NSWCCA 286. There is an inevitable degree of repetition of material as between my reasons in the two matters, but they can and should be read independently.

The syndicate

  1. C was sentenced in accordance with a Statement of Agreed Facts. The Crown tendered the same set of Agreed Facts against C and three of his co-offenders; and the same judge sentenced those four offenders.

  2. According to the Agreed Facts, in 2017, investigators attached to the North-West Region Enforcement Squad of the NSW Police Force identified that “R” was directing a criminal syndicate, along with “CC”, for the purpose of manufacturing illicit drugs. R owned a warehouse at Wetherill Park, which was used for the storage and diversion of precursors to the manufacture of MDA. Another property that R owned at Mount Rankin was used for the same purpose. The MDA was manufactured at a rural premises in Neville.

  3. From September 2017, Police conducted covert surveillance of R’s properties, including through audio- and visual-recording devices; and they obtained telephone intercept warrants for the mobile phones used by a number of participants in the syndicate. On 22 March 2018, Police executed a search warrant at the Neville property and arrested C and P (who were at Neville that day). One shed on the property was found to contain a laboratory with multiple reaction flasks, heating mantles, water baths, and other items associated with the manufacture of MDA. Another shed on the property was used for storage and also contained a tablet press.

  4. The precise quantity of MDA manufactured by the syndicate was unknown. However, the opinion of a forensic chemist, which was included in the Agreed Facts, was that it was not less than a commercial quantity, based primarily on two factors: the amounts of the drug found at the Neville premises, and the duration of the offending (between September 2017 and March 2018).

  5. In addition to R and CC, C’s co-offenders in the enterprise were (using their respective pseudonyms) “Z”, “H”, “P”, “Y”, and “W”. Like C, each of Z, H and P pleaded guilty to a charge under s 24(2) of the DMT Act. Y pleaded guilty to a variation of that charge, namely, that he knowingly took part in the manufacture of a commercial quantity of MDA (not less than 500g and substantially exceeding that amount). W was sentenced on that varied charge following a trial by judge alone. Each of Z, H, P, and Y also pleaded guilty to a charge under s 93T of the Crimes Act 1900 (NSW); and W was convicted on that charge. C was charged with that offence but in his case it was permanently stayed.

  6. I will address C’s offending in more detail below, but for present purposes it is sufficient to note that he was described in the Agreed Facts as being “directly involved in the manufacture of MDA at the Neville premises”, and was also involved in transporting items to the Neville and Mount Rankin properties. The roles of his co-offenders and the sentences imposed upon them were as follows:

  1. Z was involved in the manufacture of MDA at the Neville premises on multiple occasions, and in organising with other group members to attend the premises and transport items to the Neville and Mount Rankin properties. He was sentenced the day after C, to a term of imprisonment of 7 years and 4 months, with a non-parole period of 3 years and 8 months and a balance of the same period (his Honour having found that special circumstances justified a reduction of the statutory ratio to 50%). As noted above he has appealed that sentence.

  2. H was involved in the diversion of chemicals and was also directly involved in the manufacture of MDA at the Neville premises on multiple occasions. He was sentenced on 19 October 2020 to a head sentence of 7 years, with a non-parole period of 4 years and 6 months. An application for leave to appeal against that sentence (in which he was known as “SF”) was heard by this Court on 8 April 2022. The Court allowed the appeal and resentenced him to the same head sentence but reduced the non-parole period to 4 years and 2 months: SF v R [2022] NSWCCA 216.

  3. P was also directly involved in the manufacture of MDA at the Neville premises. The sentencing judge also took into account, on a Form 1 attaching to the s 24(2) charge, charges of deemed supply of a prohibited drug (41.43 grams of cocaine) and recklessly deal with the proceeds of crime ($24,195). P was sentenced at the same time as H to imprisonment for 7 years and 6 months, comprising a non-parole period of 5 years and a balance of 2 years and 6 months.

  4. Y was sentenced on the basis that he was also directly involved in the manufacture of MDA at the Neville premises and transporting chemicals to Neville. He was sentenced to an aggregate term of 2 years and 10 months, to be served by way of an intensive correction order.

  5. W was an employee of R and CC. W was found to have been involved in the manufacture of MDA at the Neville premises on multiple occasions and to have organised other group members to attend the various premises and transport items to the Neville and Mount Rankin properties. He was sentenced to a head sentence of 4 years and 3 months, comprising a non-parole period of 2 years with a balance of 2 years and 3 months.

The sentencing of C

  1. The Agreed Facts set out in significant detail the various activities that C and his co-offenders undertook as part of the enterprise. It commenced with reference to activities at the Wetherill Park premises and delivery of chemicals from Wetherill Park to Mount Rankin and Neville, before moving to activity associated with MDA manufacture.

  2. The premises at Wetherill Park was used primarily for storing chemicals diverted to the production of MDA, and group members were observed at the premises loading and unloading chemical containers and transporting them to the Mount Rankin or Neville properties. C was at Wetherill Park on various dates:

  1. On 6 September 2017, he met with Z and CC at Wetherill Park before driving on to Neville.

  2. On 13 September 2017, he met with W, CC, and R at Wetherill Park before driving to Neville. In a telephone call with Z, C was told that he needed to “wet the cement” that evening and would need to keep wetting it for a few days.

  3. On 29 September 2017, he was observed at Wetherill Park with W and R.

  4. On 9 October 2017, he was at Wetherill Park before driving to Neville with Z, having spoken to R the day before and asked for four drums of ethanol to be ready for pick up the next morning.

  5. On 19 October 2017, he met R, Z, and CC at Wetherill Park before driving to Neville.

  6. On 23 October 2017, he met R, W, and H at the Wetherill Park before driving to Neville.

  7. On 20 November 2017, he met R and H at Wetherill Park before driving to Neville; he had spoken to R on two occasions in the days leading up to 20 November about W and what he had been asked to do.

  8. On 6 December 2017, he met W, H, and R at Wetherill Park.

  9. On 5 and 9 January 2018, he had discussions over the phone with W who referred to knowing the layout of the Mount Rankin property and where the chemicals were placed.

  10. On 28 February 2018, he met W at Wetherill Park before driving to Neville.

  11. On 19 March 2018, he was with H at Wetherill Park before driving to Neville.

  1. C was also recorded in the Agreed Facts as involved in the manufacture of the MDA at Neville on various dates, including:

  1. 24 October 2017 (entering storage shed at Mount Rankin before returning to Neville), 25 October 2017 (exiting the drug laboratory carrying buckets with Z), and 29 October 2017;

  2. 1 November 2017 (with Z, H, and Y, entering and exiting the drug laboratory carrying chemical drums and buckets);

  3. 21 and 23 November 2017 (with H, entering and exiting the drug laboratory);

  4. 1 and 2 December 2017 (with H and Z, entering and exiting the drug laboratory carrying items including 20-litre containers);

  5. between 9 and 11 December 2017 (entering and exiting the drug laboratory, H present on 10 December);

  6. 10 and 11 February 2018 (with Z in the drug laboratory mixing chemicals with solids in measuring cylinders, moving buckets and measuring cylinders containing chemicals around the laboratory. They were also recorded setting up equipment used in the manufacture of MDA and discussing the manufacturing process. C also entered the tablet press shed, removing containers, uncovering the tablet press and removing a part);

  7. 28 February, 1 and 2 March 2018 (in the laboratory with H, decanting chemicals, moving buckets and pouring chemicals; joined by Z in evening of 1 March);

  8. 4 March 2018 (arranging, by phone, for P to attend Neville the following day);

  9. 6 March 2018 (in the drug laboratory with H, discussing formation of crystals, reference to about 20 kg in crystals once dried);

  10. 12 March 2018 (with H at Neville, no description of activity);

  11. 15 and 16 March 2018 (with P in the laboratory, decanting chemicals);

  12. 19 and 20 March 2018 (with P and H in the laboratory, decanting chemicals; C, P and H were recorded as discussing “24 kilograms” as they completed the manufacture process);

  13. 21 March 2018 (with P inside the laboratory, in the process of converting MDA oil into MDA hydrochloride).

  1. The sentencing judge noted that role was always important for the purposes of assessing objective culpability, but it was “also important to achieve parity in sentencing as between co-offenders; the focus of what is actually required is that this man be sentenced for what it is he has done”. The sentencing judge found that each of C, Z, P, and H, along with the two principals, “were in this organised enterprise together” and were to obtain a not insubstantial financial reward, either directly or indirectly through the receipt of drugs or money. His Honour found that each “must have been well aware of the scale and nature of the crime they were all committing”, and were trusted, and trusted each other, to perform their respective roles. His Honour referred to aspects of the crime, such as its well organised nature, the planning involved, and being for financial reward. Although these aspects of the offending were inherent, his Honour found that “[t]his was a serious example of a serious crime”, noting the maximum penalty and the conduct evidenced by Agreed Facts.

  2. The sentencing judge accepted that R and CC were the principals and the most culpable. They financed the operation, determined the amounts of drug to be manufactured, received the profits, and decided what to pay to the others. It was common ground that the other participants were lower in the organisational hierarchy. The Crown submitted that C’s role was equivalent with Z’s role, while counsel for C submitted that his role was significantly less than Z’s, and similar to that of P and H. Ultimately, his Honour assessed C as “somewhat less than [Z] in terms of his involvement”, while P was “somewhat less than [H]” and H was “somewhat less than [C] and [Z]”. However, his Honour said the consequences of that finding was “not ... as grave as their counsel would urge” given the remarks he had already made about the organisation generally and the perpetration of the crime.

  1. Specifically in relation to C, the sentencing judge noted that on the Agreed Facts there were a number of occasions where C was involved independently of any co-accused, including Z. He was involved throughout the period from September 2017 to March 2018, and he was commonly present at Neville, being the site of manufacture. His Honour considered it significant that C was at Neville for a “good part of March 2018” and was there when the 24 kg of MDA was being finalised. Z was not at Neville at that time, H and P were.

  2. The sentencing judge described C as “hands on” and that he “[c]learly” understood the chemistry. He found that C was “trusted and he trusted himself to undertake the role of chemist or reaction overseer, directing and supervising [P] and [H], for example, at Neville”. His Honour acknowledged that Z may have had “a greater knowledge of the detail of the chemical and logistical processes”, but concluded that C’s role approximated, if not equated to, Z’s for practical purposes. Nonetheless, Z was “seemingly quite closely involved from time to time and associated with [CC] and [R]”, which led his Honour to conclude that Z’s role was “somewhat but not substantially greater in terms of objective culpability” than that of C.

  3. In relation to the Form 1 offence, his Honour noted that C’s possession of the significant amount of money was unexplained. The link, if any existed, between the money and the s 24(2) charge was unable to be made out adversely to C beyond reasonable doubt. Nonetheless, it was a crime of consequence and his Honour dealt with it as a matter “demonstrating an additional need for personal deterrence and retribution”.

  4. The sentencing judge assessed the conduct constituting the s 24(2) offence as “in the mid-range of objective seriousness when considered as an enterprise”. The amount of drugs was not determinative but was “nonetheless a material consideration”. C played “an important, but not indispensable, role” which placed his culpability “towards the lower part of [the] mid-range”, his Honour subsequently describing it as “the very low point of the midrange, the bottom of that midrange”. I note that a submission had been made on behalf of C in writing that his objective criminality was below the mid-range by a discernible margin, but the submission advanced orally was that it fell in the margin between the midrange and the period below the midrange.

  5. His Honour accepted the Crown’s submission that specific and general deterrence loomed large. In relation to C’s subjective case, his Honour noted that he was 46 years old, married with two children, and had a “limited criminal record” which afforded him some leniency. His Honour was “inclined to see his position as a man of previous good character who has turned to this crime motivated by financial reward”, so as “to return to some financial stability given his age, responsibilities and history of being defrauded and bankrupted”. His Honour canvassed the last point in some detail because it was “a significant aspect of his subjective case”. In summary, C and his brother had been defrauded by the accountant they had engaged to manage their financial affairs with respect to several businesses, leaving them with a significant debt to the Australian Taxation Office. One of their businesses was also destroyed by fire and was underinsured. Calls were made on business and home loans, leading to a collapse in C’s mental health, his hospitalisation following an attempted suicide, and ongoing subsequent treatment for depression. Additionally, C was threatened by a barrister in relation to the non-payment of his fees; the barrister was ultimately found by the Civil and Administrative Tribunal to have engaged in professional misconduct in this regard.

  6. His Honour accepted that “C’s likely motivation was financial in order to repair the damage done to his financial position over many preceding years likely through no fault of his own”, and that he had an apparent vulnerability which may have impaired his judgment. Nonetheless, it was clear to his Honour that C was more than capable of performing his role in the enterprise, which was certainly not a passive role. The surrounding circumstances “temper[ed] his moral culpability, to an extent, but cannot excuse his choice”.

  7. Although the sentencing judge did not accept that C was an inappropriate vehicle for general deterrence, his Honour did accept that C would have “more than the usual difficulty in custody”. In addition to his depressive disorder, C had a cardiac condition which had led to his hospitalisation on three occasions while he was on remand. His Honour noted the circumstances in which C grew up, his history of “hard work”, and the absence of drug or alcohol abuse. His Honour accepted that C had expressed “considerable remorse” for his offending, as evidenced by the plea and his post-offence conduct, although his Honour expressed reservations as to whether C was “frankly and fully taking responsibility for his offending behaviour”. His Honour accepted that C was a low risk of reoffending and that this lesson had led him well on the way to rehabilitation.

  8. In finding special circumstances, his Honour noted C’s age, it being his first time in custody, his psychological vulnerabilities and his heart disease, which required specialised treatment. His Honour considered that C would need a longer than usual period of parole and support in returning to the community, and thus made a “marginal variation”. Specifically in relation to parity, his Honour said the following:

“It is a usual vehicle of justice. As I say I have had to sentence three other people, two have already been sentenced, and another one will be sentenced tomorrow in relation to this offence. Like should be treated as like, and relevant differences between co-offenders should be recognised and be evident in the terms imposed. Green v The Queen; Quinn v The Queen [2011] HCA 49 makes that explicit. I have already placed this offender in a putative hierarchy of involvement and importance in the organisation. I do not intend to repeat that. But I also must note, as I would emphasise that I do consider, in light of all I know about this matter, that there is a plain chasm of culpability between the principals, the two principals, and between the people in this group I am to sentence and, likely, others mentioned in the agreed facts. I cannot say that as between these four men, although I have set out above and have in the sentences I have imposed and in the sentence I am about to impose tomorrow an analysis which endeavours to identify relevant similarities and differences in their roles and culpability.”

  1. Ultimately, his Honour found that “evident differences relate to role, but it is marginal here”. As to other matters, his Honour stated:

“… there are medical issues, there is a significant issue in relation to one of these offenders [Z], [redacted], some criminal record of relevance in relation to other offenders. There is the presence or absence of a Form 1, and subjective circumstances. There is an additional offence [being the offence alleged under s 93T of the Crimes Act, referred to at [10] above], although that has no bearing, in my view, given the imposition of a stay and my acceptance of the persuasive reasoning of Judge Priestley SC. Those differences are best left to speak for themselves in the various judgments but as a blunt summary of the matters that have been prominent, that list serves an immediate purpose.”

  1. Finally, his Honour took into account the years between the offending conduct and sentence due to the pandemic. His Honour also acknowledged the period of time that C spent on remand before bail was ultimately granted, with it being well known that remand prisoners did not have access to the same kind of conditions and opportunities that are available to sentenced prisoners.

  2. [Redacted].

  3. [Redacted].

  4. [Redacted].

  5. [Redacted].

  6. On 2 December 2020, his Honour apologetically reconvened the Court to correct C’s sentence due to an “inadvertent calculation error”. His Honour then imposed the sentence described at [2] above.

Ground 1: The applicant has a justifiable sense of grievance from the sentence imposed on him having regard to the discrepancy between his sentence as compared with the sentence imposed on his co-accused [Z] and/or [P] and/or [H] taking into account the relevant similarities and differences between the facts and circumstances of each of the offences and offenders informing the respective sentences

  1. 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”: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31] per French CJ, Crennan and Kiefel JJ, quoting Lowe v The Queen (1984) 154 CLR 606 at 609-610; [1984] HCA 46 per Gibbs CJ. The principle is an aspect of equal justice, which requires that there be consistency in punishment; unequal treatment under the law is likely to lead to an erosion of public confidence in the administration of justice: Green at [28], [30]; see also Lowe at 610-611 per Mason J; Postiglione v The Queen (1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ.

  2. In Miles v R [2017] NSWCCA 266 at [9], Leeming JA observed that there will always be differences in the objective and subjective elements in any case involving multiple offenders, such that mere difference in sentence alone cannot give rise to appellable error. The question, his Honour said, “is whether the sentence imposed on a co-offender is reasonably justified in light of those differences, bearing in mind the qualitative and discretionary judgments required of the sentencing judge”. See also at [39]-[40] per Rothman J; [67] per Hamill J. in Lloyd v R [2017] NSWCCA 303, R A Hulme J (Payne JA and Garling J agreeing) put the stated the question more bluntly at [97]: “was the differentiation made by the judge one that was open to her in the exercise of her discretion?” The Court will refuse to intervene when disparity is justified by differences between co‐offenders: Lewis v R [2021] NSWCCA 108 at [62] per Bellew J (Hoeben CJ at CL and N Adams J agreeing). Conversely, the Court will intervene “where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending”: DS v R [2014] NSWCCA 267 at [39] per the Court (Bathurst CJ, Fullerton, and Davies JJ).

  3. In order to determine this ground, it is necessary to canvass in some detail his Honour’s remarks on sentences for Z, P, and H. By the time his Honour came to sentence C, on 1 December 2020, his Honour had already sentenced P and H (on 19 October 2020); and his Honour sentenced Z on 2 December 2020. As his Honour noted in his remarks on sentence, by that point he had read the Agreed Facts that applied to all of these offenders on multiple occasions.

  4. It is apparent from his Honour’s remarks on sentence for each co-offender that his Honour was conscious of the need for parity, and that his Honour sought to give effect to that principle in circumstances where the Agreed Facts raised a vast number of considerations to balance. I have set out in [24]-[25] above what his Honour said in this regard when sentencing C. Common to the remarks for each co-offender was his Honour’s finding that this was a serious example of a serious crime, which was well organised. His Honour found that each co-offender was well aware of what he was doing, as a trusted member of the syndicate, and that each trusted the others to perform their respective roles, with the ultimate expectation of a financial reward, directly or indirectly. As I noted above, his Honour assessed the offence as in the “mid-range of objective seriousness when considered as an enterprise”, with the amount of drug not determinative but “nonetheless a material consideration”.

Sentencing of Z – 2 December 2020

  1. His Honour found that Z was involved in the manufacturing of MDA on a number of occasions, and had an ongoing role in the logistics, organising and directing others. He also participated in the “cook”, with his Honour describing his role in that respect as “in the centre of the manufacturing, inter alia handling chemicals, checking levels and organising for the disposal of identifiable waste”. Z was confident about the process and its consequences, and his activities were “hands-on and directive”.

  2. His Honour found that Z’s role was central but dispensable as Z was not always present and C and, to a lesser extent, P, were capable of many things within his purview. His Honour repeated his findings in respect of C as to the allocation of tasks within the syndicate and Z’s understanding of the chemistry. In distinguishing Z’s offending from C’s, his Honour said that the most important aspect was Z’s absence from the last cook; that said, his Honour stated that “everything seemed to have been established in advance in previous cooks”, and other cooks proceeded with Z’s “expertise and foreman-like role on display”.

  3. His Honour again emphasised that all of the men were in the enterprise together. However, his Honour considered that “the sentence for this offender and C must sit tangibly above [H] and [P] as a starting point reflective of their role and overall involvement, i.e. on the basis of objective seriousness”. His Honour stated that “inevitably” the starting points for C and Z “must be, and I confirm are higher”, noting that this was “before consideration of the relevant mitigating factors”. His Honour later stated that as a “general matter” the starting points appeared to be “in the low-to-mid teens”.

  4. As to what Z had done, his culpability placed him at the lower part of the midrange. His Honour considered that particular weight had to be given to general deterrence. In terms of Z’s subjective factors, he had given an affidavit in the proceedings and was not cross-examined. Nonetheless, his Honour did not give any real weight to Z’s childhood experience in Lebanon beyond accepting that it must have been traumatic for him at that time. His Honour also noted the adverse effect that Z’s incarceration would have on his family, including two young children and three others from a previous relationship, although his Honour did not assess that effect as exceptional. Z also had no criminal record.

  5. What was “fundamental” to Z’s subjective case was his having been diagnosed in 1989 with cystic fibrosis. That condition required ongoing treatment and was “life shortening”. His Honour found that Z’s diagnosis was a “significant matter”, which had exacerbated his depressive illness. These circumstances engaged the principle that “while the state of health of an offender is always relevant to consideration of the appropriate sentence for an offender”, the courts “must be cautious as to the influence which they allow this factor to have on the sentencing process”. His Honour stated that ill health would “be a factor tending to mitigate punishment only when it appears that imprisonment would be a greater burden on the offender by reason of his state of health, or when there is a risk of imprisonment having gravely adverse effects on an offender’s health”. An appropriate balance had to be struck between the criminality in question and any health or shortening of life. His Honour noted that courts were “urged to conclude, if gaol is significantly harder for the person who has difficulties due to health and age, this would be a relevant matter to take into account”.

  6. After referring to the need for parity, his Honour considered that Z “must face a further substantial term of imprisonment”, even though he was “remorseful, effectively rehabilitated through his own resolution, but also inevitably, as a result of his age and infirmity, and that means that the need for personal deterrence have [sic] reduced”. Accepting that the sentencing discretion must reflect all relevant factors, his Honour observed that Z had a terminal illness and required a host of specific treatments, and his time in custody was clearly going to be more difficult and onerous. After referring to the treatments Z required, his Honour stated that he had “resolved to reflect these unique considerations, unique to this offender in the finding of special circumstances”.

Parity as between C and Z

  1. The starting point of the head sentence for C was some 10 months more than the starting point of the head sentence for Z. C submitted that this difference in Z’s favour was not reasonably explained when the following factors were considered:

  1. Objective seriousness: In relation to C, his Honour described this as “towards the lower part of that mid-range” and “below the midpoint of that midrange and in my view to the very low point of the midrange, the bottom of that mid-range”. C submitted that there was a “modest” difference between that range and the range his Honour identified for Z, being “towards the lower part of that midrange … towards the bottom of that mid-range”.

  2. Role: Z’s role was “somewhat but not substantially greater” than C’s.

  3. Age and medical conditions: C was 46 and Z was 54 at the time of sentencing. C had a coronary heart disease that required specialist treatment. Z had cystic fibrosis. C accepted that Z’s medical condition was more acute than C’s, and that custody was likely to damage Z’s already failing health and shorten his life.

  4. Form 1: C had a Form 1 offence, which he submitted was towards the lower end of objective seriousness. Even in combination with the different weight afforded to the medical conditions, Counsel submitted that this did not justify the disparity in sentences.

  5. Mental condition: Both C and Z had mental health conditions, but C contended that his was more serious in nature and impact, and was linked to the impairment of his judgment. Counsel for C submitted that this was a stronger subjective feature in C’s favour.

  6. Motive: C’s motivation was financial reward but against a background of financial misfortune that had befallen him through no fault of his own. Z’s motivation was financial reward with no similar explanation.

  7. Moral culpability: Unlike Z, C’s moral culpability was tempered “somewhat” by the surrounding circumstances that fostered his motive.

  8. Remorse: Both were found to have been remorseful.

  9. Antecedents: There was no appreciable difference in terms of record.

  1. Counsel for C submitted that Z’s cystic fibrosis, and the absence of a Form 1 offence in Z’s case, could not have justified the difference in C and Z’s sentences, in circumstances where all other subjective matters were equal or in C’s favour. Counsel submitted in this respect that his Honour took Z’s cystic fibrosis into account only in finding special circumstances and not in setting the head sentence, relying on his Honour’s express statement that he would reflect Z’s “unique considerations” in finding the former. The Crown, on the other hand, submitted that the sentencing judge did take Z’s cystic fibrosis into account in fixing the starting point, relying on the references his Honour made to sentence length when discussing the principles regarding the impact of ill health on sentence.

  2. I accept the Crown’s submission that the sentencing judge took Z’s cystic fibrosis into account in setting the sentence length. In the passages on which the Crown relied, his Honour was dealing expressly with the impact of ill health on the length of a sentence, and his Honour was specifically concerned with the terminal nature of Z’s illness and its impact on his life expectancy in the time he would spend in prison. As his Honour stated, with my emphasis: “[a] man with this condition who is being punished by being in prison will serve his time, in my view, in very difficult circumstances indeed, and it will be much more onerous for him than almost any other prisoner. It is a relevant matter.” His Honour’s resolve to reflect Z’s unique considerations in the finding of special circumstances was not, in my view, intended to imply that his Honour would not also reflect those circumstances in the length of the sentence, which it was open to him to do.

  1. Counsel for C submitted that even if the Court were to accept the characterisation of his Honour’s remarks for which the Crown contended, as I have, there was still a marked disparity, bearing in mind the differences and what was otherwise equal between them. Having regard to the comparison between the two co-offenders that the judge conducted and that I have summarised above, I accept that his Honour’s findings regarding Z’s illness provide a reasonable explanation for the 10-month difference. The difference is also explained by the judge’s findings about his ongoing presence at Neville, in particular during March 2018, at the point of finalisation of the 24 kg of MDA. Bearing in mind the qualitative and discretionary judgments required of the sentencing judge and in light of the specific findings his Honour made, including as to the extent to which prison would be onerous for Z in light of his terminal illness, I consider that his Honour’s adjustment of the starting point was reasonably justified. It was not so significant a margin as to give rise to a justifiable sense of grievance on C’s part.

Sentences of P and H

  1. [Redacted]. On any view, there is a significant difference between the starting points for P and H and the starting point for C.

  2. The sentencing judge sentenced P and H on the same day, just under two weeks before he sentenced C. Commencing with P, his Honour noted that it was common ground that P had a lesser role than C, Z, and H. Nevertheless, P was “a skilled and trusted labourer” and “an active participant throughout”. It was clear to his Honour, for example, that P was “involved in loading chemicals at Wetherill Park from a relatively early stage”, and was “present and participating in the manufacture”. In particular, P was present at Neville when the pills were being pressed. Although there was no evidence of his actual role there, it was the case that from 12 March 2018, P was alongside “more experienced ‘chemists’”, decanting and moving chemicals.

  3. The tasks P was performing did not involve a great deal of complexity, but he was “obviously committed to and trusted by his criminal cohorts”. Although P was “subordinate to C, Z and H” his Honour bore in mind that “they were all in it together”. P appeared “throughout the latter part of the narrative”; his role was described as “one which may well have been capable of being done by another so to that extent he was not crucial, but that does not mean the role was not important”. Ultimately, his Honour assessed the objective gravity of P’s conduct, “bearing in mind the significant difference between that and the conduct of the principals and the more egregious conduct of [Z] and [C], and the less egregious conduct of [Y] and [W]”, as “towards the bottom, if not at the very bottom, of that mid-range”. As with C, his Honour accepted that specific and general deterrence, and denunciation, all loomed large.

  4. As to P’s subjective factors, he was 46 years old at the time of sentence. His Honour noted his claims to have suffered physical and sexual abuse as a child. Following a traumatic event in which he attended on a dying friend following a plane crash, P developed post-traumatic stress disorder (PTSD). His Honour accepted that P’s PTSD was “complex and severe” in the lead up to and during the offending period, and that he had self-medicated with cocaine. However, his Honour found no causal link between the PTSD and P’s offending conduct. He accepted that P’s judgment was impaired by reason of his drug use and psychological ailments, but could not conclude that he “was anything but a willing participant who stood to gain, alongside access to drugs, financially”. His Honour also accepted that P was remorseful but could only give that limited weight.

  5. P had a “not insubstantial” criminal history, including a short time in jail for cannabis cultivation. His Honour found that P’s criminal history disentitled him to an aspect of leniency.

  6. P was responsible for the care of his wife, who was “very ill” and “principally bed bound and only moves around in a wheelchair”, but hardship to her from his imprisonment did not meet the “truly exceptional threshold” in R v Edwards (1996) 90 A Crim R 510. [Redacted]. Finally, in relation to parity, his Honour noted that P was “an older man” with a criminal record although he had “some salient conditions which assist in understanding the commission of the offence, if not mitigating it”.

  7. After making his remarks on P but before passing sentence, the sentencing judge addressed H’s case. His Honour noted that H was 53 years old. His Honour adopted the reasoning and analysis that applied to P in terms of the objective seriousness of the offence, and concluded that H “played not an indispensable role, but an important and significant role”. Specifically, H was at the clandestine laboratory in Neville from 1 November 2017 and he was there on a regular basis up to 20 March 2018. His Honour accepted the Crown’s submission that H was “actively involved in the process of manufacture”, although it seemed to his Honour that “to no small degree he was learning on the job”. His Honour also accepted that H “was involved in some logistical arrangements, for example the use of [an] excavator to dispose of waste from the manufacturing process”.

  8. H was described by his Honour as “an important associate” alongside Z and C. His Honour accepted that H’s role was slightly higher than P’s, and that H’s role “lay between the co-offenders, as submitted by the Crown”. His Honour rejected H’s submission that his criminality was at the bottom or close to the bottom of the range. Rather, his Honour considered that H “must be seen at the level within the operation of the crime”, as opposed to being a mere courier, labourer, warehouseman, or front man “who signed a lease and then disappeared”. In terms of objective seriousness, his Honour considered that H sat at about the same level, “for the purpose of the guidepost of the standard non-parole period, at or at about the same level as [P]”.

  9. In terms of H’s subjective case, the sentencing judge accepted that H was remorseful and contrite in his letter of apology to the Court. He also accepted that H saw “horrific and traumatic incidents in the civil war” in Lebanon during his childhood. His Honour noted that H’s parents were both aged and unwell, and that he had “played a tremendous role” in supporting them, although this did not rise to the exceptional level. His Honour also noted that H alleged “some aspects of a psychiatric condition” and that he suffered from a gambling addiction, although these were not matters to which his Honour gave significant weight. Ultimately, his Honour could only accept on the balance of probabilities that aspects of H’s judgment “had been likely affected by exposure to war as a child, a gambling disorder and depression”. The extent to which any of those issues reduced his culpability for his “committed involvement” in the criminal enterprise could only “be slight”.

  10. His Honour did accept that H was, at the time of sentence, working well and had seemingly turned his life around, and his Honour was satisfied that he was unlikely to reoffend. His “minor criminal record” did not disentitle him to leniency. [Redacted]. His Honour also found special circumstances, based on the time that H had spent waiting to be sentenced, noting that he was without the same access to programs as sentenced offenders.

Appeal and resentencing of H

  1. As noted above, on 7 October 2022, this Court found that the sentencing judge had failed to take into account the “future impact” that the Covid-19 pandemic would have on H’s conditions of imprisonment. Ground 2 was that he had a justifiable sense of grievance with the sentence imposed on W. Ierace J, with whom the other members of the Court agreed, concluded that a comparison of the objective and subjective features did not bear out H’s complaint of relative disparity: at [110]-[111]. Most importantly, there was no evidence that W was directly involved in the manufacturing process of the MDA; his role was to move chemicals and was restricted to the Wetherill Park premises, where he had been lawfully employed by R as a labourer “over many years”. By contrast, H was directly involved in the manufacture of the MDA. Ierace J concluded that those differences were reflected in the respective findings as to objective seriousness (at [113]) and the subjective cases (at [114]) and did not warrant appellate intervention.

Parity as between C and P and H

  1. In support of a justifiable sense of grievance in relation to the sentences that his Honour imposed on P and H, C submitted that although his Honour found that P and H were lower in the hierarchy, their conduct was ultimately assessed as being at the same or a substantially similar level of objective seriousness. Counsel for C submitted that in those circumstances, neither offender had subjective features which would justify the disparity in sentence.

  2. Specifically in relation to P, he had a number of Form 1 offences (see [11(3)] above). C accepted that there was evidence in P’s case of a severe mental health condition and impaired judgment at the time of the offence, that he had expressed remorse, and that his Honour found special circumstances. However, C submitted, P was motivated by financial reward without any contextual explanation; he had a criminal record which disentitled him to leniency; he had no mental health condition that was causally related to the offence; and his Honour expressed a guarded view as to P’s risk of reoffending.

  3. C advanced similar submissions in respect of H. Like C, aspects of H’s judgment were impaired by mental health conditions, he was unlikely to reoffend and he had accepted responsibility for his actions. Although C’s role was slightly higher, the objective seriousness of H’s role was not at the bottom of the range; and his motive was financial gain, without explanation.

  4. The Crown supported the lower starting points for P and H on the basis of their different roles and the differences shown in the facts. Further, it submitted that there was a conceptual difficulty in C’s emphasis on his Honour saying that the differences between the offenders in terms of hierarchy would not result in differences in sentences “as great as their counsel would urge” in order to argue disparity with P and H, whilst at the same time arguing for a greater difference between his sentence and that imposed on Z.

  5. As the Crown emphasised, the sentencing judge in this case had the advantage of sentencing each of the four co-offenders. The advantage to which the Crown refers is that hearing the sentence matters of co-offenders puts the judge in a position to consider the interrelationship between the objective and subjective features of the offenders “in an overarching way”: Huckstadt v R [2016] NSWCCA 22 at [90] per Button J (Johnson J and Fagan J agreeing). In undertaking the sentencing exercise for each offender, his Honour referred to the parity principle and sought to give effect to it.

  6. The Agreed Facts bear out his Honour’s finding, which is not challenged, that P and H were lower in the organisational hierarchy than C and Z. That finding explains some of the disparity between C’s sentence and that imposed on H and P, as does his Honour’s finding that Z and C were more criminally involved than H and P “and accordingly more culpable”.

  7. His Honour’s observation that the consequences of his finding as to hierarchy was not as significant as counsel would urge must be considered in the context of what counsel actually submitted. In C’s case, for example, the submission was put that the objective seriousness was below the mid-range (albeit not by much), while H sought a finding that objective seriousness was in the low range. In my view, by this comment his Honour sought to make clear that it did not follow from certain offenders sitting lower in the hierarchy that the objective seriousness of their offending was in a demonstrably lower range.

  8. Of greater significance for the purposes of this aspect of Ground 1 was his Honour’s statement that he did not consider there was “the same kind of chasm” as between Z, C, P, and H as there was between those four offenders and the principals, R and CC. As I have noted above, his Honour assessed the objective seriousness of the offending of C, H, and P as at or about the bottom of the mid-range, with each being “well aware of the scale and nature of the crime they were committing”, having their role in what was an organised criminal enterprise, and trusting the others to perform their role.

  9. His Honour did express the view, in sentencing Z, that Z’s sentence, and that imposed for C, needed to sit “tangibly above” the sentences for P and H. C also had an offence to take into account on a Form 1: H did not, while P had three offences on a Form 1. However, having regard to his Honour’s assessment of the objective seriousness of the conduct of C, P, and H, the significant difference in the starting point for C’s sentence as compared with the starting points for P and H is not reasonably explained by C’s subjective case. It was, in my view, no less favourable than that of H; and it was more favourable than P’s, particularly having regard to P’s criminal record. Answering the question posed by Leeming JA in Miles, the sentence imposed on C is not reasonably justified having regard to the differences in the objective and subjective elements of his case as compared to those of P and H.

  10. Accordingly, I would uphold Ground 1 of the Notice of Appeal. Error having been established on this ground, it is necessary to resentence C unless, in the separate and independent exercise of my discretion, I conclude that no different sentence should be passed: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35] per French CJ, Hayne, Bell, and Keane JJ; Young (pseudonym) v R [2021] NSWCCA 163 at [88]-[95].

Ground 2: Manifestly excessive sentence

  1. In addition to alleging error on the part of the sentencing judge on the basis of parity, C also contended that the sentence imposed was manifestly excessive. As I have decided to uphold Ground 1, which calls for the resentencing exercise to which I have just referred, it is not necessary to deal with Ground 2.

Resentence

  1. Three [redacted] affidavits were read on behalf of C on the usual basis and without objection. There were two affidavits from C’s solicitor, Christopher Cole, which were affirmed respectively on 29 June 2022 and 11 July 2022. In addition to the affidavits of Mr Cole, the son of the applicant affirmed an affidavit on 11 July 2022. I have made reference to the content of these affidavits where relevant below. [Redacted].

  2. For the purpose of resentence I adopt the factual findings of the sentencing judge, which I have outlined above and to which no challenge was made. This was a serious example of a serious crime (noting the maximum penalty for an offence under s 24(2) of the DMT Act and the standard non-parole period). C played an important role in the enterprise. Although he was not a principal, he was involved to a significant degree including in the manufacture of the MDA and directing the activities of H and P. A large commercial quantity of a prohibited drug was the result their collective and coordinated efforts. I assess the objective seriousness of his offending as at the bottom of the mid-range, noting there was no challenge to the finding that the sentencing judge made in that regard, nor to his Honour’s finding that the objective seriousness of the offending was in the mid-range as an enterprise. There is also the Form 1 offence, which I have taken into account as demonstrating an additional need for personal deterrence and retribution.

  3. In relation to C’s subjective case, in addition to the affidavits which were tendered to this Court I have reviewed the material that was before the sentencing judge. C is now 48 years old. He is married and has two children of adult age. He grew up in Australia, with a period in Macedonia, with his parents and brother. His immediate and extended family continue to support C, describing his offending as completely out of character. C completed Year 10 and had a strong employment record. Before the offending for which he is now being resentenced, his criminal record contained only minor offending which does not disentitle him to leniency. From 2008, C experienced the financial hardship and associated stress to which I have referred above, leading to his mental health collapse and ongoing depressive illness and anxiety disorder. He has reported to his son and his solicitor that he continues to be of low mood and is depressed in custody, particularly given the numerous lock-ins associated with the Covid-19 pandemic. C reported to his solicitor that he has only seen a psychiatrist once during his time in custody, and was awaiting psychiatric review for any medication he might need.

  4. I accept that C’s financial circumstances provided some motivation for his offending although, as the sentencing judge said, that cannot excuse the choice he made to involve himself. I also accept that C’s psychological conditions may have impaired his judgment to a degree but, again, that should not be overstated. C does have a heart condition and there are likely disadvantages in his custody resulting from that condition. C has reported to both his solicitor and his son that this condition continues to ail him in custody.

  5. According to the NSW Department of Corrective Services’ Work Assignment Record for C, he has been consistently employed in custody since work first became available to him in January 2021. He is reported to be a very hard worker. He has had only one custodial infringement, relating to possession of tobacco in December 2021 which resulted in 14 days off all amenities. He has also participated in sessions of digital literacy and food safety programs offered in his correctional facility.

  6. In the reports prepared for sentence, and in his letter to the sentencing judge, C expressed considerable remorse for his actions. That remorse is reflected in his entering a plea of guilty at the first reasonable opportunity [redacted]. I consider that he has good prospects of rehabilitation. The affidavit of C’s son, and those of C’s solicitor, indicate that the pandemic has had an appreciable impact on C’s conditions of imprisonment. The pandemic is likely to continue to have an impact on those conditions, which I have considered and weighed in the sentencing process.

  7. Having regard to the purposes of sentencing that are identified in s 3A of the Sentencing Procedure Act and pursuant to s 5(1) of that Act, I am satisfied that only a sentence of imprisonment is appropriate. C is entitled to the full discount for his plea of guilty at the earliest practicable opportunity.

  8. [Redacted].

  9. [Redacted].

  10. I have considered the matter of parity and I have had regard to the respective roles and subjective circumstances of Z, P, and H. There is a need to reflect in the respective the sentences of Z, C, P, and H the relative culpability that the sentencing judge identified as between them (to which there was no challenge). I accept, as did the sentencing judge, that the difference should be tangible but not distinctive. It is also necessary to reflect the respective subjective circumstances of the co-offenders, which I have detailed above.

  11. In my view, a lesser sentence is warranted. I would set a head sentence of 5 years and 6 months, which should be backdated to commence from 18 March 2020, expiring on 17 September 2025. [Redacted]. The sentencing judge’s finding of special circumstances in respect of C was appropriate and should be adopted. I would set a non-parole period of 3 years and 6 months. C will be eligible for release to parole on 17 September 2023.

Conclusion

  1. I propose the following orders:

  1. Grant leave to appeal.

  2. Appeal allowed.

  3. Quash the sentence imposed in the District Court on 1 December 2020 (as corrected on 2 December 2020).

  4. In lieu thereof, sentence the applicant to a term of imprisonment comprising a non-parole period of 3 years and 6 months, backdated to commence from 18 March 2020, with a balance of term of 2 years.

  5. The effect is that the earliest date on which the applicant will be eligible for release to parole is 17 September 2023, with the balance of term expiring on 17 September 2025.

  1. YEHIA J: I agree with the reasons of Mitchelmore JA and agree with her Honour's resentence of the offender.

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Decision last updated: 10 March 2023

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Most Recent Citation
Ritchie v R [2023] NSWCCA 153
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Green v The Queen; Quinn v The Queen [2011] HCA 49
Miles v R [2017] NSWCCA 266
Lloyd v R [2017] NSWCCA 303