Daw v R

[2017] NSWCCA 327

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Daw v R [2017] NSWCCA 327
Hearing dates:	27 November 2017
Date of orders:	21 December 2017
Decision date:	21 December 2017
Before:	Basten JA at [1]; Bellew J at [25]; Hamill J at [61]
Decision:	(1)   Leave to appeal granted.  (2)   Appeal dismissed.
Catchwords:	CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Asserted failure on the part of the sentencing judge to observe principles of parity – Where all offenders sentenced by the same judge – Where differences in sentences explicable by reference to the differing levels of criminality and the differing subjective circumstances of the offenders – No error established
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW), s 25 Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A Criminal Appeal Act 1912 (NSW), ss 5, 6
Cases Cited:	Afu v R [2017] NSWCCA 246 Cameron v R [2017] NSWCCA 229 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 House v The King (1936) 55 CLR 499; [1936] HCA 40 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Miles v R [2017] NSWCCA 266 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 Ramos v R [2015] NSWCCA 313 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30
Category:	Principal judgment
Parties:	Kylie Ann Daw – Applicant Regina – Respondent
Representation:	Counsel: A Francis – Applicant B Baker – Respondent   Solicitors: Bannisters Solicitors – Applicant Solicitor for Public Prosecutions (NSW) – Respondent
File Number(s):	2013/240468
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 11 February 2016 Before: Sides QC DCJ File Number(s): 2013/240468

Judgment

1. BASTEN JA: The applicant, Kylie Ann Daw, sought leave to appeal from a sentence imposed on her by Sides QC DCJ in the District Court at Parramatta on 11 February 2016. A notice of application for leave to appeal was filed on 3 October 2017.

2. Although there were two grounds of appeal, they did not raise independent issues. Each sought to compare the sentences and criminality of the applicant and a co-offender, Brad Kowalin. The applicant was charged with three offences; Kowalin with one principal offence. The offence for which Kowalin entered a plea of guilty was the supply of 6 kilograms of methylamphetamine, being a large commercial quantity of the drug; the applicant was charged with being knowingly concerned in the supply of the same quantity.

3. The first ground of appeal alleged that the judge had erred in concluding that Kowalin’s criminality “was less than the applicant’s because his was ‘an isolated aberration’ and the drugs were ‘not being stored or processed in his garage’.” The second ground alleged an unjustified disparity in that the sentence imposed on Kowalin for the supply offence was 6 months less than the individual sentence for being knowingly concerned in the same supply, as indicated by the sentencing judge in fixing an aggregate sentence for the applicant.

4. So far as the first ground is concerned, each of the factors was a material consideration relevant to the assessment of the respective criminality of the offenders. Neither the ground of appeal, nor the submissions in support thereof, demonstrated any arguable error which would warrant the intervention of the Court.

5. With respect to ground 2, it was not entirely clear whether there was a real basis for the complaint of disparity in the event that ground 1 were to be rejected. There were further difficulties with ground 2. First, it was by no means clear how the indicative sentence fed into the aggregate sentence. Secondly, this was a case in which (i) the judge sentenced all three offenders involved in the supply offence together; (ii) the judgment on sentence covered 64 pages and gave careful consideration to all material circumstances, including those the subject of submissions in this Court; (iii) much of the reasoning was addressed to factors which were directly material to comparative culpability, and (iv) the judgment expressly addressed the question of parity, identifying specific aspects relevant to each offender. In a careful and comprehensive judgment, no House v The King error was established.

6. Leave to appeal should be refused.

7. In my view, it is not necessary to say more. The full flavour of the reasoning of the sentencing judge cannot be fully reproduced by selective quotation or in summary form. Nor is it necessary to set out the facts or the reasoning: both are well known to the parties to the appeal who have access to all relevant documents, including the judgment under appeal. The case raises no issue of principle. However, because it is common practice for the Court to give full reasons in such circumstances, it is appropriate that I should spell out my reasons for considering that approach unnecessary. Further, because there has been some disagreement as to the correct approach to grounds raising unjustified disparity, it is convenient to say something more about that issue.

Refusing leave to appeal

8. There is no doubt that the demands made on sentencing judges have multiplied over recent decades. That is partly a function of the increased regulation of the process through statutory prescription of various kinds. It is also a function of the increasingly sophisticated reasoning adopted by appellate courts. Nevertheless, most exercises in sentencing can be undertaken by reference to three principles, namely determining whether (i) the severity of the sentence is proportionate to the objective seriousness of the offending and the subjective circumstances of the offender; (ii) equal justice has been achieved, having regard to the range of sentences imposed on others for like offending and any sentences imposed on co-offenders, and (iii) transparency has been adequately achieved in what is an inherently evaluative process through the giving of reasons for judgment.

9. It is not necessary to say anything further about the first and third principles in this case. With respect to the third, the reasons were comprehensive. With respect to the first, it is well understood that the evaluative assessment of the seriousness of the offending and the subjective circumstances of the offender are very much matters for the sentencing judge, with which this Court should be slow to interfere. [1] That consideration is, however, directly applicable with respect to ground 1.

   1. Ramos v R [2015] NSWCCA 313 at [33]-[41], [72] and [83].

10. It is the second principle, relied on for ground 2, alleging “disparity”, which calls for further comment.

11. The scheme for criminal appeals in indictable matters (and indeed summary matters) is entirely statute-based. Relevantly for this matter, a right of appeal, with leave, against sentence is provided by s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The Act sets out no particular grounds, s 6(3) merely providing that on such an appeal, the court shall quash the sentence “if it is of opinion that some other sentence, whether more or less severe[,] is warranted in law and should have been passed”. If not so satisfied, the court is required to dismiss the appeal.

12. While the statutory language would leave the court at large to determine the bases on which it will intervene in the exercise of a discretionary power, the scope of the appellate function is confined by well-established principles which are not in doubt. The commonly cited source for those principles is House v The King and, although the principles should be well known, they bear repetition:[2]

“It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

2. (1936) 55 CLR 499 at 505; [1936] HCA 40.

13. In a case such as the present, in which the judge expressly referred to the parity principle and made a comparative assessment of the offending of the applicant and her co-offenders, it cannot be said (nor was it said) that the judge acted upon a wrong principle nor that he allowed extraneous or irrelevant matters to guide him, mistook the facts, or failed to take some material consideration into account. The question can only be whether, if the last limb of the test is applied, it can be said that “upon the facts” the sentence imposed was “unreasonable or plainly unjust”.

14. This is a principle of restraint; the question is not what sentence the appellate court may think appropriate, but whether the sentence in fact imposed can properly be said to be unreasonable or plainly unjust.

15. The relevant injustice in a case of alleged disparity is a breach of the principle that all must be treated equally under the law. In applying that principle, no different test should be adopted than that of an outcome which is unreasonable or plainly unjust, in the terms identified in House v The King. Further, that test does not involve a fixed criterion or standard, but rather envisages a range of outcomes outside which the sentencing judge could not reasonably stray. The range may be imprecisely defined and there will be room for different views as to where the outer limits should be placed. However, the exercise is not different because the alleged error is unjustified disparity, rather than, for example, a challenge to the objective seriousness of the offending.

16. As explained in Green v The Queen; Quinn v The Queen, [3] “[u]njustifiable disparity is an infringement of the equal justice norm.” In a passage directed to resentencing, but equally applicable to a sentencing judge at first instance, the joint reasons continued:

“If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight.”

3. (2011) 244 CLR 462; [2011] HCA 49 at [32] (French CJ, Crennan and Kiefel JJ).

17. On the other hand, although, in the language of Lowe v The Queen,[4] it has become commonplace to ask whether the “disparity is such as to give rise to a justifiable sense of grievance”, that phrase was used in Lowe to refer to “the appearance that justice has not been done.”[5]

    4. (1984) 154 CLR 606 at 610 (Gibbs CJ); [1984] HCA 46.

    5. Ibid.

18. There is no basis in the authorities to treat unjustifiable disparity as identifying a different category of appeal ground, not subject to the approach dictated by House v The King. At least that is so in a case, such as the present, where the same judge has sentenced the relevant co-offenders on the one occasion; the approach taken may need to differ where those conditions are not fulfilled and the question of disparity arises, in effect, for the first time on appeal.

19. Different language has been used on occasion to describe the kind of disparity which may justify intervention. Hamill J has addressed below the statement in Afu v R,[6] that a ground based on disparity between co-offenders must identify a disparity which is “gross, marked, or glaring in order to justify such intervention.” I agree that those words should not be read as marking out some independent, if imprecise, criterion or standard. [7] To the extent that such language “may distract from the underlying principle”, I also agree with the scepticism expressed by Leeming JA in Miles v R. [8] Nevertheless, the use of such language in the present case is not always misplaced.

    6. [2017] NSWCCA 246 at [15].

    7. See Cameron v R [2017] NSWCCA 229 at [86] (Hamill J).

    8. [2017] NSWCCA 266 at [9] (Rothman J at [38] and Hamill J at [67] unsurprisingly agreeing).

20. Afu was a case, like the present, in which the sentencing judge had been responsible for sentencing the relevant co-offenders, on the same occasion. It is convenient to set out the full passage from which the impugned phrase has been extracted: [9]

“In the present case, the same judge sentenced all of the offenders. He was therefore fully aware of the circumstances of the offending, as well as the respective subjective cases. Where a sentencing judge recognises the importance of the parity principle and ostensibly gives effect to it, this Court will be cautious to intervene. Any disparity must be gross, marked, or glaring in order to justify such intervention.”

9.    Afu at [15] (citation omitted).

21. If attention has been paid by the sentencing judge to parity, which in such circumstances will usually be the case, and where none of the more specific errors identified in House v The King has been established, this Court should not intervene unless the circumstances bring the case within the residual category where it can be said that the result is so plainly unreasonable or unjust that the Court may infer error. Then the Court may intervene “on the ground that a substantial wrong has in fact occurred.”

22. As was said by Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu:[10]

“Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as ‘illogical’ or ‘unreasonable’, or even ‘so unreasonable that no reasonable person could adopt it’. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.”

Referring to that passage in Applicant S20/2002, Gleeson CJ added:[11]

“If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.”

10. (1999) 197 CLR 611; [1999] HCA 21 at [40].

11. Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 at [5].

23. When an appellate court is operating within the residual category of undefinable error, applying principles not dissimilar to those which operate in relation to judicial review, such language as “gross, marked or glaring” is not intended to provide a standard, but rather constitutes a reminder that something palpably wrong has occurred, which may require correction. If the language does “heighten the test”, that is appropriate in circumstances where appellate restraint is required. On the other hand, it would be wrong to take such language out of context and apply it as a standard of general application.

Conclusion

24. If this approach is erroneous, I agree with Bellew J that the appeal must be dismissed, and with the reasoning for reaching that conclusion. Bellew J has concluded, with respect to ground 1, that “[t]he findings of the sentencing judge were completely justified”; [12] and, with respect to ground 2, that “there is no basis on which to conclude that the applicant has a justifiable sense of grievance.”[13] These are strong findings; while my view that they should lead to a refusal of leave to appeal will provide no different result for the applicant, the reason for refusing leave is to discourage offenders and their legal advisors from bringing unmeritorious applications.

    12. See below at [49].

    13. See below at [59].

25. BELLEW J: Kylie Ann Daw (“the applicant”) pleaded guilty in the District Court to the following offences:

1. between 19 and 20 December 2012 knowingly took part in the supply of a prohibited drug, namely methylamphetamine in an amount of 540 grams, being not less than a commercial quantity applicable to that drug, contrary to s. 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the Act”) (count 1);

2. on 13 June 2013 did supply 7 grams of methylamphetamine contrary to s. 25(1) of the Act (count 2);

3. on 7 August 2013 knowingly took part in the supply of a prohibited drug, namely methylamphetamine in an amount of 6 kilograms, being an amount not less than the large commercial quantity applicable to that drug, contrary to s. 25(2) of the Act (count 3).

26. The maximum penalty in respect of count 1 is 20 years imprisonment and a standard non-parole period of 10 years imprisonment is prescribed for that offence. The maximum penalty in respect of count 2 is 15 years imprisonment. The maximum penalty in respect of count 3 is life imprisonment, with a standard non-parole period of 15 years imprisonment.

27. The applicant appeared for sentence with two co-offenders, Robert John Richards (“Richards”) who is her husband, and Brad Kowalin (“Kowalin”). Richards and Kowalin were each charged with the supply which was the subject of count 3 against the applicant. That was the sole count against Kowalin. Richards pleaded guilty to two further counts involving:

1. the supply of 540 grams of methylamphetamine between 19 and 21 December 2012; and

2. the supply of 120 grams of methylamphetamine between 3 and 4 June 2013.

28. Pursuant to s. 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge gave the following indicative sentences in respect of the three counts against the applicant:

1. count 1 - 5 years imprisonment with a non-parole period of 2 years and 6 months;

2. count 2 - 18 months imprisonment;

3. count 3 - 8 years imprisonment with a non-parole period of 4 years.

29. The sentencing judge imposed an aggregate sentence of 10 years imprisonment with a non-parole period of 5 years and 6 months commencing on 22 December 2015. The applicant will be eligible for release on parole on 22 June 2021.

30. Kowalin was sentenced to imprisonment for 7 years and 6 months, with a non-parole period of 4 years.

31. An aggregate sentence of imprisonment for 12 years, with a non-parole period of 8 years, was imposed on Richards.

32. The applicant now seeks leave to appeal against the sentence imposed on the grounds set out below.

THE FACTS OF THE OFFENDING

33. The offending in count 1 involved the applicant’s participation in the transportation, from Sydney to Townsville, of 531.3 grams of methylamphetamine secreted in the roof lining of a rented motor vehicle driven by her father. The applicant had booked flights for her brother and Richards to travel from Sydney to Townsville for the purposes of taking receipt of the methylamphetamine on arrival. The vehicle carrying the drugs was subsequently intercepted by police. When the applicant became aware that her father had been arrested, she sent a text message to Richards advising him that he should dispose of his phone because an earlier message that she had sent him contained her father’s contact number.

34. The offending in count 2 was detected as a consequence of the lawful interception by police of telephone calls between the applicant and her brother involving the supply of drugs to an associate. The evidence established that the applicant had attended the associate’s home and supplied him with 7 grams of methylamphetamine.

35. In respect of the offending in count 3 (which is the focus of the present application for leave to appeal) the sentencing judge found the facts to be as follows [14] :

    14. Commencing at sentencing judgment 8.

On 28 June, police obtained a surveillance device warrant authorising the installation of a surveillance device at the home of the Offenders Daw and Richards located in St Clair and hereinafter referred to as the premises. Pursuant to the warrant, the police installed an optical surveillance device in the garage of the premises, the Court will refer to it as the garage, that captured the activities of the three Offenders in the garage between 6 and 7 August. Due to a technical problem, there is no available sound recording from the surveillance device.

At about 7.38pm on Thursday 6 August, the Offenders Kowalin and Richards entered the garage. The Offender Kowalin who was carrying a black sports bag went to about the centre of the garage and placed the sports bag on the floor in a clear space. The Offender Kowalin then unzipped the sports bag and removed a rigid looking item approximately the size and shape of an empty manila folder. It appeared to be wrapped in black plastic sheeting. The

Offender Kowalin then proceeded to remove the outer layer of the black plastic wrapping from around the item. Meanwhile, the Offender Richards who was sitting on a nearby lounge seat put on a pair of plastic gloves. The Offender Richards then picked up a knife or similar implement. After the Offender Kowalin handed the Offender Richards the item wrapped in plastic, the Offender Richards used the implement to remove further layers of black plastic wrapping from the item.

Once opened, the Offender [Richards] poured the white powder contents of the item into a silver coloured pot, silver coloured two handled pot, hereinafter called the pot, located on the floor. The Offender Richards then tipped the contents of the pot into a large resealable plastic bag that he then handed to the Offender Kowalin who examined it closely.

After a while, the Offender Kowalin placed the large resealable plastic bag on the floor and, from another part of the garage, fetched a set of electric scales. The Offender Kowalin then placed the electric scales on the floor and weighed the large resealable plastic bag containing the white powder and then appeared to examine the weight by reading the display on the scales.

The Offender Kowalin then sat astride a quad bike and appeared to talk to the Offender Richards who was still seated on the lounge seat.

At about 9.08pm, the Offender Kowalin got up and poured the contents of the large resealable plastic bag into a cylindrical metal pitcher that had a capacity of about 1.75 [litres]. The Court will refer to this as the pitcher. Then the Offender Kowalin went to another part of the garage, obtained a large plastic bottle with the capacity of about 5 litres and poured some liquid from the large plastic bottle into the pitcher containing the white powder. After doing that, he shook the pitcher and then placed it on the floor in the centre of the garage.

After the Offender Kowalin and Richard[s] appeared to talk for some time, the Offender Kowalin left the garage.

Shortly after his departure, the Offender Daw entered the garage. Whilst her husband, the Offender Richards, remained seated on the lounge chair, she picked up the discarded black packaging from the item and, using a knife or similar implement, scraped at remnants of white powder. She then assisted the Offender Richards to put the collected amounts of white powder into a black bowl. They both then left the garage. Nothing further happened in the garage on that day.

At about 1.36am the next day, Wednesday 7 August, the Offender Richards entered the garage and sat on the lounge. After smoking a cigarette, he left without touching or examining the black sports bag, the pitcher or the black bowl.

At about 10.15am, the Offender Kowalin entered the garage and used a sieve to sieve some of the white powder into a container. The Offender Richards then entered the garage, sat on the lounge seat and took over the sieving process from the Offender Kowalin. Whilst the Offender Richards sat watching him, the Offender Kowalin then emptied the contents of the metal pitcher into the pot. The Offender Kowalin used a spatula like implement to stir the content of the pot.

At about 10.30am, the Offenders Kowalin and Richards exited the garage. They returned about eight minutes later and both examined the contents of the pot. After sitting in the lounge chair, the Offender Richards placed the pot on his lap. Using both hands, he rubbed the white powder contents of the pot between his fingers and then used a sieve to sieve the contents.

The Offender Kowalin left the garage and returned with a clear plastic Tupperware type container with a capacity of about 4 litres. After removing the lid, he weighed the empty container minus the lid on the electric scales, apparently examining the result.

Meanwhile, the Offender Richards used two sieves, one larger and one smaller, to sieve the white powdered contents of the pot. He then left the garage and returned shortly after with a gas fuelled camp stove. After putting

the camp stove on the floor in front of the lounge chair, he lit it and placed the pot and its white powder contents over the flame. The Offender Kowalin watched him heating the pot. Occasionally, the Offender Richards removed the pot from the flame and used a spatula like implement in a scraping motion against the inside bottom of the pot.

During this process, the Offender Kowalin left the garage and returned with an empty bowl that he weighed on the electronic scales, apparently examining the result. The Offender Kowalin then handed the empty bowl to the Offender Richards who filled it with an amount of the white powder from the pot. He then returned the bowl to the Offender Kowalin who weighed it and its contents on the electric scales, apparently examining the result.

Both male Offenders then exited the garage, the time being 12.35pm. They returned to the garage at 1.54pm and the Offender Kowalin weighed an empty plastic container on the electronic scales, apparently examining the result. He gave the empty plastic container to the Offender Richards.

The Offender Kowalin then removed another item the size and shape of a manila folder and apparently covered in black plastic wrapping from the black sports bag and gave it to the Offender Richards who then sat in the lounge seat and put on a pair of gloves. Whilst the Offender Kowalin retrieved the large resealable plastic bag from the floor where he had left it, the Offender Richards removed the layers of black plastic wrapping from the item and poured the white powder contents into the pot that he placed on the floor at his feet.

The Offender Kowalin then left the garage and went to the local Woolworths store where he purchased a number of items, including a pack containing 40 Hercules brand zip lock plastic bags and a packet of garbage bags.

After the Offender Kowalin left the garage to go to Woolworths, the Offender Daw entered the garage with a small green coloured plastic container about the size and shape of a standard butter container. After the container was filled with white powder from the pot, the Offender Daw placed the small green coloured plastic container into a drawer within a chest of drawers and left the garage.

After some time, the Offender Daw returned to the garage and, whilst the Offender Kowalin was still absent, removed another item from the black sports bag and handed it to her husband who remained seated in the lounge seat. He then used an implement to remove the black plastic wrapping from the item and emptied the white powder contents into the pot.

The Offender Daw then left the garage and returned with a clear plastic container. After weighing that empty plastic container on the electronic scales,

apparently examining the result, she gave it to her husband who put a quantity of white powder from the pot into the container and returned it to his wife. She then weighed the container and the contents on the electric scales, apparently examining the results.

On a number of further occasions, the Offender Daw removed further items from the black sports bag and handed them to her husband who remained seated in the lounge seat. After unwrapping those further items, the Offender Richards emptied the contents, being white powder, into the pot. On a number of occasions, the Offender Daw assisted her husband to transfer the contents of the pot into the plastic container after which she weighed the plastic container and contents on the electric scales, apparently examining the result.

The Offender Daw again left the garage and, after returning, she picked up a plastic container and examined it. After further assisting her husband, she left again.

Shortly after 2.33pm, the Offender Richards stopped removing black plastic wrapping from items and, at 2.50pm, left the garage. At 3.03pm, both males returned to the garage, the Offender Kowalin carrying a plastic shopping bag containing a packet of 40 Hercules brand zip lock plastic bags and a packet of garbage bags.

The Offender Richards sat in the lounge seat and put on a pair of plastic gloves. The Offender Kowalin then transferred the white powder from the large plastic container into a large resealable plastic bag and returned the now empty plastic container to the Offender Richards who, after removing the black plastic wrapping, poured more white powder into the container.

The Offender Kowalin then went to another part of the garage and, after fetching what appeared to be a paint tray, he returned and gave it to the Offender Richards who poured white powder from yet another item from which he had removed the black plastic wrapping into the tray. Then the Offender Kowalin weighed the empty bowl on the electronic scales, apparently examining the results. He then weighed the large plastic container in a similar fashion and then the paint tray containing the white powder. In each case, he appeared to examine the relevant reading on the electronic scales.

The process of the Offender Kowalin removing items from the black sports bag, handing them to the Offender Richards who removed the plastic wrapping, emptied the white powder contents into a container, the weighing of

the container on the electronic scales and then transferring the white powder into a large plastic bag was repeated on a number of further occasions.

The Offender Kowalin then fetched a further second large resealable plastic bag and began to put white powder from the items the Offender had unwrapped into it. The two male Offenders stopped their activity and left the garage at approximately 3.30pm.

The two male Offenders returned to the garage at about 3.56pm and resumed the process described earlier. Ultimately, the Offender Kowalin wiped the remnants of white powder from the electric scales and from the plastic container into one of the two large resealable plastic bags. He then resealed both large resealable plastic bags containing white powder and left them on the floor of the garage.

Both male Offenders then took a garbage bag and began clearing the discarded black plastic wrapping from the garage. Once that was done, the pair exited the garage.

At around 5.35pm, police attended the premises to execute a crime scene warrant. After speaking to the Offender Daw, the police entered the garage where they found the two large resealable plastic bags of white powder. They also located a further smaller resealable plastic bag and a container containing white powder in the garage. The white powder from the two large resealable plastic bags, the smaller resealable plastic bag and the container weighed 6.33 kilograms of which 81.5% was pure methylamphetamine.

During the search of the garage, the police located two large bags each containing approximately 20 kilograms of white powder used as a cutting agent. When searching the house, the police located a further large bag containing approximately 20 kilograms of white powder used as a cutting agent.

In addition, during the search, the police located:

•   27.01 grams of Oxymethelone;

•   11.66 grams of Testosterone Enanthate; and

•   Testosterone Propioate.

that, in the case of the Offender Richards, gives rise to three matters on the form 1 schedule.

At around 5.35pm at the same time as police executed the warrant at the house, other police stopped the Offender Richards whilst he was driving a black Hummer on Frampton Avenue, St Clair and arrested him. After his arrest, he participated in an ERISP interview during which he answered "No comment" to questions in respect of the offences.

THE ROLES OF KOWALIN AND THE APPLICANT IN RESPECT OF COUNT 3

Kowalin

36. The sentencing judge was satisfied beyond reasonable doubt that Kowalin’s involvement in the offending was pre-meditated and that he had appreciated that he was “enmeshing himself in organised criminal activity”. His Honour then said [15] :

As with the other two Offenders in connection with their offence involving the large commercial quantity, the Offender Kowalin was involved at a wholesale level and because of the high purity, at a level close to the manufacturer.

15. Sentencing judgment at 21.

37. In terms of Kowalin’s role in the offending, his Honour said [16] :

There is no evidence that the Offender Kowalin instigated this offence or financed it. His role involved collecting the drug, transporting it to the garage and unwrapping, weighing and re-packaging the drug. There is no evidence that he had a planning or managerial role. However, his role only came to an end because of police intervention. As indicated, the purchase of the 40 bags and the presence of cutting agents satisfied the Court beyond a reasonable doubt that he and the other two Offenders were intending to cut the drug and divide it into a number of smaller lots before supplying to others. However, there is no evidence that he was involved in negotiating the on-supply of the methylamphetamine. The number of bags indicates that the supply would still be at a wholesale basis rather than to users. Whilst not at the bottom of the drug trafficking hierarchy, the Offender Kowalin is not at the top of it.

Taking into account only the objective factors affecting the relative seriousness of this offence in the case of the Offender Kowalin, the Court is of the view that it is below the middle of the range of seriousness as connoted by the standard non-parole period of 15 years prescribed for offences within this provision.

16. Commencing at sentencing judgment 22.

The applicant

38. As to the applicant’s role in the offending in count 3, his Honour said [17] :

    17. Commencing at sentencing judgment 34.

The last offence in the case of the Offender Daw is the most serious of her offences as it involves a large commercial quantity. There is no evidence that this Offender instigated or planned this offence. Unlike the other two who pleaded to supplying a large commercial quantity of methylamphetamine, she pleaded guilty to knowingly take part in the supply of it. That means that in her case the prosecution does not rely on her being in possession of the 6.33 kilograms of methylamphetamine for the purposes of supplying it.

In the Court's view her role in connection with this offence can be divided into two separate parts, one of which is an active role, the other being a more passive role.

Her active role involved interaction with some of the methylamphetamine whilst it was in the garage and which the Court accepts beyond a reasonable doubt involved her taking a step in the process of supply by dividing up into smaller quantities in readiness for supply. At some stage on the evening that the methylamphetamine arrived in the garage this offender entered the garage when her husband, the Offender Richards, was present. At this stage the Offender Kowalin was not in the garage. She [scraped] some remnants of white powder, which the Court accepts beyond reasonable doubt was methylamphetamine, from the discarded black packaging and then assisted her husband to collect [the] remnants of methylamphetamine and put [them] in a black bowl. This is the last activity concerning the methylamphetamine that day.

The next day, whilst the Offender Kowalin was away purchasing items at Woolworths, this Offender entered the garage carrying a green coloured plastic container. It was about the size and shape of a butter container. She held the container whilst it was filled with white powder, which the Court is satisfied beyond a reasonable doubt … was methylamphetamine, that came from the pot. Paragraph 44 of the facts in her case does not make clear who filled the plastic container with methylamphetamine. Obviously it was her or the Offender Richards. After it had been filled she placed the green plastic container into one of the drawers in a chest of drawers located in the garage. She then left the garage.

However, she returned whilst the Offender Kowalin was still absent and removed one of the items containing methylamphetamine from the black sports bag and handed it to her husband who removed the wrapping and emptied some methylamphetamine into the pot. She then left the garage and returned with a clear plastic container that she weighed before giving it to her husband. The Offender Richards then put some of the methylamphetamine from the pot into the plastic container and she weighed the container and that methylamphetamine, apparently examining the results. Further, she assisted the Offender Richards by removing a number of other packages containing methylamphetamine from the black sports bag and handed them to her husband. It is not clear how many packages of methylamphetamine she removed from the black sports bag, however, on each occasion she removed packaging and emptied the white powder into the pot. On a number of occasions she assisted in putting some of the contents of the pot into a plastic container and weighing the container and contents. She then left the garage and returned shortly afterwards and picked up the black container and examined it. According to paragraph 51 of the facts in her case, she further assisted the Offender Richards before leaving the garage but the facts do not indicate what assistance she rendered during that time.

Her less active role involves her permitting or acquiescing in the garage attached to the premises of which she was a co-occupant being used for the storage and repackaging of the methylamphetamine. Whilst important, her role was not critical to the supply.

Whilst the facts do not allow the Court to quantify the actual amount of methylamphetamine she had a part in unpacking and repackaging in the garage, it was less than in the case of the Offender Richards and may have been less than in the case of the Offender Kowalin.

As in the case of the Offender Kowalin the Court is satisfied beyond a reasonable doubt this offence involved a wholesale transaction.

Whilst her role does not identify her as an individual in the upper echelons of the drug trafficking hierarchy, she was not at the bottom of it.

CONSIDERATIONS OF PARITY PRINCIPLES BY THE SENTENCE JUDGE

39. The sentencing judge specifically considered the question of parity as follows [18] :

    18. Commencing at sentencing judgment 60.

The Court considered parity as between the three Offenders and in doing so took into account the following differences that are established by the evidence:

•   the Offender Daw:

o   was not at conditional liberty;

o   did not have a substance abuse problem;

o   does not have a Form 1 schedule; does not in any way have involvement in supplying the 107.2 grams of methylamphetamine in June 2013;

o   was the only one of the trio involved in supplying 7 grams of methylamphetamine later that month; and

o   her prospects of rehabilitation are better than those of the Offender Richards put not as good as those of the Offender

•   the Offender Kowalin:

o   was only involved in one offence and has the benefit of it being viewed as an isolated aberration;

o   does not have the issue of totality;

has one parent of his children to care for them while in custody; and

o   of the three, has the best prospects or rehabilitation.

THE GROUNDS OF APPEAL

Ground 1 – The sentencing judge erred in the conclusion that the criminality of a co-offender, Brad Kowalin (“Kowalin”) in respect of count 3 was less than that of the applicant because his was “an isolated aberration” and the drugs were “not being stored or processed in his garage”.

Ground 2 – The sentence imposed upon the co-offender Kowalin for the supply of a large commercial quantity of methylamphetamine, being 6 months less than the indicative sentence arrived at in relation to the applicant for her offence, gives rise to a parity error.

40. Both grounds may be conveniently dealt with together.

SUBMISSIONS OF THE PARTIES

Submissions of the applicant

41. Counsel for the applicant submitted that there was no proper basis for the sentencing judge to find that Kowalin’s criminality was less than that of the applicant. It was emphasised, in particular, that the applicant’s “less active role” which his Honour had referred to was limited to permitting, or acquiescing in, the garage of her premises being used for the storage and repackaging of the drugs.

42. It was further submitted that in circumstances where the sentencing judge had found that neither the applicant nor Kowalin was remorseful, the “minor discrimination” in each offender’s prospects of rehabilitation did not justify a conclusion that Kowalin should be penalised in any significantly lesser way.

43. Counsel also submitted that the applicant was not to be sentenced for agreeing with Richards and Kowalin to supply a large commercial quantity of drugs, or as an accessory. It was emphasised that the applicant was in fact to be sentenced for taking steps in the process of drug supply. It was submitted that in all of the circumstances the applicant’s criminality was necessarily lower than that of both of the co-offenders and that both grounds of appeal were made out.

Submissions of the Crown

44. The Crown submitted that it was firstly necessary to bear in mind that the same judge had sentenced all three offenders and as a result, was in a position to properly consider the interrelationship between the various objective and subjective considerations in respect of each of them. It was submitted that in these circumstances, it was necessary for this court to adopt a cautious approach in determining whether the applicant had a justifiable sense of grievance in light of the different sentencing outcomes.

45. The Crown submitted that the sentencing judge was obviously mindful of parity principles, and had taken care to assess the differences in objective culpability, and the subjective circumstances, between each of the offenders. It was submitted that the applicant’s objective criminality was not less than that of Kowalin and that the sentence imposed the applicant was justified in light of the assessment which had been undertaken of the respective cases.

Consideration

46. In terms of ground 1, it was open to the sentencing judge to reach the conclusions that he did concerning the relative criminality of Kowalin and the applicant in respect of the supply which was the subject of count 3.

47. The sentencing judge properly emphasised that the methylamphetamine was being stored and processed in premises the applicant shared with Richards. In other words, the applicant had played a part in making those premises available for the purposes of conducting significant drug related activity. The submission that the applicant’s “less active” role was limited to permitting the use of her premises has a tendency to understate that aspect of her criminality. The fact is that by making her premises available, the applicant played a significant role in facilitating the commission of a serious offence.

48. Further, and in addition to making her premises available, the applicant also had a significant “hands on” role. As the sentencing judge outlined, she performed a number of activities which were directed towards preparing the drug for the purposes of actual supply.

49. It follows that, when viewed as a whole, the applicant’s criminality in respect of count 3 was greater than that of Kowalin. The findings of the sentencing judge were completely justified and ground 1 is not made out.

50. Ground 2 raises a parity issue. In Afu v R [19] this Court made the following observations regarding the operation of parity principles (citations omitted):

13. Consistency in the punishment of offences against the criminal law finds expression in the parity principle. That principle requires that like offenders be treated in a like manner, but also allows for different sentences to be imposed for the same offences to reflect different degrees of culpability and/or different circumstances. Unjustifiable disparity is an infringement of the equal justice norm.

14. The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. A court will refuse to intervene where disparity is justified by differences between co-offenders, such as age, background, criminal history, general character and the part that each has played in the relevant criminal conduct or enterprise.

15. In the present case, the same judge sentenced all of the offenders. He was therefore fully aware of the circumstances of the offending, as well as the respective subjective cases. Where a sentencing judge recognises the importance of the parity principle and ostensibly gives effect to it, this Court will be cautious to intervene. Any disparity must be gross, marked, or glaring in order to justify such intervention.

19. [2017] NSWCCA 246.

51. The written submissions of the Crown contained the following table summarising the sentences imposed upon each of the offenders, as well as aspects of their individual circumstances:

Applicant	Kowalin			Richards
Plea	25% discount	25% discount			25% discount
Sentence for 6kg of methyl	Indicative 8 years NPP 4 years	Imposed 7 1/2 years NPP 4 years (Form 1 - 4x PRS)			Indicative 9 years NPP 6 years (Form 1 - 3x PRS)
Indicative sentences for other offences	Supply 540g - 5 years NPP 21/2 years Supply 7g-18 months	n/a			Supply 540g - 6 years NPP 4 years Supply 120g - 3 years
Aggregate / imposed sentence	10 years NPP 5 ½ years	7 ½ years NPP 4 years		12 years NPP 8 years
Ratio NPP / Term	55%	53%		66.7%
Specific role (6kg of methyl)	Her role involved assisting her husband, whilst co-offender Kowalin was absent from garage, by scraping and collecting remnants of the drug, unwrapping some of the methylamphetamine packages, putting the contents into the pot and into plastic containers and weighing the container and contents (ROS 34) She permitted or acquiesced in the use of the garage for the storage and repackaging of the drug (ROS 36)	His role included collecting the drug, transporting it to the garage, unwrapping, weighing, sieving, mixing and re­packaging the drug into two resealable plastic bags (ROS 19) He purchased the 40 zip lock plastic bags for the purpose of dividing the drugs up into smaller quantities (ROS 20) He jointly exercise custody and control over the drug with Richards (ROS 21)		Most active hands-on role of all three offenders (ROS 52) His role in the garage included unpacking the drug, repacking them, sieving some white powder, mixing and heating some of the drug in a pot over the camp stove (ROS 52) He permitted the garage being used for repacking and restoring the drug for purposes of supply (ROS 53) He jointly exercise custody and control over the drug with Kowalin (ROS 21)
Objective seriousness (6kg of methyl)	below middle of the range (ROS 39)	below middle of the range (ROS 23)		below middle of the range (ROs 53)
Aggravating features	No finding	Offence committed whilst on s9 Bond (ROS 18)		Offence committed whilst on Bail (ROS 49)
Age (at offence)	30 years	29 years		30 years
Upbringing, education & employment	No evidence of dysfunctional upbringing (ROS 26) Obtained High School Certificate, worked in child care and retail sales until birth of her daughter in January 2011 (ROS 26)	Difficult upbringing -but no evidence of a lack of moral guidance (ROS 16) Obtained High School Certificate, worked for a number of years as a labourer in the building industry and, in 2008, established his own building and home improvement business (ROS 16)		No evidence of dysfunctional upbringing (ROS 46) Expelled from school at age 14 and did not obtain High School Certificate, worked at the age of 15, helping his father collecting items donated to the Salvation Army, continued in that work for many years, off and on, up to these offences (ROS 48)
Relationships	In a relationship with her co-offender Richards for about 8 years (not clear when they married), they have a 5 year old daughter (ROS 27)	Separated from his first partner in 2012, they have two children, boys aged 4 and 3 and a step daughter aged 9 years (ROS 16) Started another relationship in 2012, partner is supportive, has a daughter to an earlier relationship and the applicant discharges the role of father in connection with her (ROS 16)	Relationship with applicant which commenced in 2007, indicated strained relationship due to his criminal activity and was rarely at home and preoccupied, denied any violence towards his wife (ROS 48)
Drug use /Gambling Issues	No evidence of drug and alcohol issues or any gambling problem (ROS 29)	At age 17 began using steroids, In 2012, following breakdown of relationship used methylamphetamine and cocaine, became dependent on methylamphetamine, spending substantial amounts to maintain his addiction financed through his business income (ROS 17)	Began consuming alcohol at the age of 16, use became problematic as he was drinking spirits on a daily basis (ROS 48). At age 24 replaced alcohol with steroids (ROS 49) No evidence that substance abuse had a part to play in offending (ROS 53)
Psychological History	Although reporting a history of depression and anxiety - Court found no evidence she suffered these conditions at time of offending (ROS 28) Court satisfied that if imprisoned, her anxiety concerning her daughter's welfare will make her time in custody more burdensome (ROS 28)	Whilst in custody diagnosed with depression and prescribed medication (ROS 17) Court is satisfied that, because of his depression, his time in custody will be more burdensome (ROS 17)	No evidence of any intellectual disability (ROS 50) Suffered from depression, anxiety and stress when seen by the psychologist, but no evidence that he was suffering such mental health issues at the time offending (ROS 53)
Motive	Motivated by greed (ROS 44)	Motivated by greed (ROS 24)	Motivated by greed (ROS 59)
Hardship	Court not persuaded that there is exceptional hardship to her daughter justifying leniency on the discreet basis of hardship to a third party (ROS 29)	Court not persuaded that there is exceptional hardship to his children, stepchildren, partner and ex-partner justifying leniency on the discreet basis of	Court not persuaded that there is exceptional hardship to his daughter justifying leniency on the discreet basis of hardship to a third party (ROS 29)
However, taken into account as a subjective feature (ROS 29)	hardship to a third party (ROS 16) However taken into account as a subjective feature (ROS 16)	However, taken into account as a subjective feature (ROS 29)
Criminal History	In 2010 placed on a good behaviour bond for 2 years for offence of obtaining financial advantage (ROS 29)	In 2006 fined for drive whilst suspended and having custody of an offensive implement in a public place. In 2006 placed on s9 bonds for assault police and resist police. In 2007 received CSO for drive while disqualified. In 2012 placed on s9 bond for 12 months for assault (ROS 18)	In 2001 fined for offensive behaviour. In 2004 fined for drive whilst disqualified. In 2012 placed on s10 bond for possession of drug. In 2013 fined for possession of ammunition, fined and placed on s 9 bond for goods in custody and dealt with under s 10A for possession of proscribed restricted substance (ROS 48) In 2013 in OLD fined for committing a public nuisance and for contravening a banning order (ROS 49)
Conditional liberty at time	No	Yes - s9 bond for assault (ROS 18)	Yes - bail for drug offences allegedly committed in QLD in 2011 (ROS 49)
Prior good character	No (ROS 29)	No (ROS 17)	No (ROS 49)
Remorse	No - not genuine (ROS 44)	No - not genuine (ROS 26)	No - not genuine (ROS 60)
Prospects of Rehabilitation	Not more than reasonable (ROS 44)	Good (ROS 26) - of the three has the best prospects of rehabilitation (ROS 61)	Poor (ROS 60)
Assistance	n/a	Court took into account in his favour that he assisted the authorities by turning himself into the police once he knew they were seeking him out (ROS 26)	n/a
Special Circumstances	Yes - need for an extended period of supervised parole (ROS 62)	Yes - need for an extended period of supervised parole (ROS 62)

52. For a number of reasons, ground 2 is not made out.

53. Firstly, the differences in the objective criminality of the applicant on the one hand and Kowalin on the other which I have discussed when dealing with ground 1 go some way to explaining the different sentences which were imposed.

54. Secondly, the applicant’s offending in respect of count 3 was part of a significant and ongoing involvement in the supply of prohibited drugs. That alone raised the totality of her objective criminality substantially beyond that of Kowalin, whose offending was centred solely upon the circumstances giving rise to count 3. In those circumstances, Kowalin’s offending was properly described by the sentencing judge as an isolated aberration.

55. Thirdly, the sentencing judge sentenced all three offenders. In doing so, he specifically adverted to the necessity of considering parity principles.

56. Fourthly, the sentencing judge took into account the assistance rendered by Kowalin by surrendering himself to the authorities upon being made aware that they had sought his arrest. Whilst that may have been a relatively minor factor, it was not a characteristic of the applicant’s subjective case.

57. Finally, the sentencing judge found that Kowalin’s prospects of rehabilitation were greater than those of the applicant and indeed, were the best of all three offenders. In concluding that the applicant’s prospects were “not more than reasonable”, the sentencing judge highlighted:

1. the applicant’s failure to demonstrate insight into the harm done by illicit drugs;

2. her failure to accept responsibility for her offending;

3. her ongoing commitment to her relationship with Richards; and

4. the involvement of her close family members, in what was described as “the drug trade”.

58. The submissions of counsel for the applicant tended to suggest that the sole difference in the subjective cases of the applicant and Kowalin was the “minor discrimination” in each offender’s prospects of rehabilitation. For the reasons to which the sentencing judge referred, the “discrimination” was not minor but in any event, the differences in the two subjective cases were not limited to that factor.

59. In my view, there is no basis on which to conclude that the applicant has a justifiable sense of grievance. The sentence imposed upon her is completely explained by the circumstances which I have outlined. It follows that ground 2 is not made out.

ORDERS:

60. I propose the following orders:

1. Leave to appeal is granted.

2. The appeal is dismissed.

61. HAMILL J: I agree with the orders proposed by Bellew J and, with one qualification, with his Honour’s reasons.

62. The qualification arises from the reference at [50] to the decision in Afu v R and the observation in that case that “any disparity must be gross, marked, or glaring in order to justify such intervention”. [20] As I explained in Cameron v R, [21] I do not accept that this is the correct test when an applicant asserts unjustified disparity as a ground of appeal. There is no need to repeat what I said in Cameron v R on this issue. However, in Miles v R, [22] both Leeming JA and Rothman J adopted the approach I took in Cameronv R. [23] I maintain the view that the application of epithets such as “marked”, “gross” or “glaring” do not form part of any relevant legal test and is not justified by reference to High Court authority. I adopt the observation of Leeming JA in Miles v R that:

“[e]ach of the three adjectives bears a different meaning: what might fairly be regarded as ‘marked’ might fall short of being ‘gross’ or ‘glaring’, yet the collocation of the three is apt to heighten the test and may distract from the underlying principle.”

20. Afu v R [2017] NSWCCA 246.

21. Cameron v R [2017] NSWCCA 229 at [84]-[90].

22. Miles v R [2017] NSWCCA 266.

23. Supra at [9] (Leeming JA) and [37]-[38] (Rothman J).

63. I also note his Honour’s observation that the approach does not appear to be followed in other states.

64. However, I do not understand that Bellew J has applied such a test (if it be a test) in the present case. The application of the principles explained by the High Court in cases such as Lowe v The Queen,[24] Postiglione v The Queen,[25] and Green v The Queen [26] lead to the conclusion that the grounds of appeal in the present case cannot be upheld for the factual reasons explained by Bellew J.

**********

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

25. Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26.

26. Green v R; Quinn v R (2011) 244 CLR 463; [2011] HCA 49

Endnotes

Decision last updated: 29 January 2018