Emanuele v The King

[2023] NSWCCA 316

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Emanuele v R [2023] NSWCCA 316

Hearing dates:

15 November 2023

Date of orders:

8 December 2023

Decision date:

08 December 2023

Before:

Basten AJA at [1];
Davies J at [13];
Cavanagh J at [14]

Decision:

(1)   Leave to appeal is granted.

(2)   The appeal is allowed.

(3)   The sentence imposed by Judge J A English in the District Court on 10 March 2023 is quashed.

(4)   The applicant is sentenced to a term of imprisonment for four years commencing on 6 October 2022 and expiring on 5 October 2026 with a non-parole period of two years and four months commencing on 6 October 2022. The applicant will be eligible for parole on 5 February 2025.

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal – parity – where applicant and co-offender received identical sentences – where co-offender convicted of a more serious offence – whether the applicant has a justifiable sense of grievance – appeal allowed – applicant resentenced

Legislation Cited:

Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases Cited:

Chiarlini v R [2023] NSWCCA 227

Elias v R (2013) 248 CLR 483; [2013] HCA 31

Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 29

Humphreys v R [2020] NSWCCA 144

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

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Narayan v R [2022] NSWCCA 163

R v Chandler; Chandler v R [2012] NSWCCA 135

R v Kelly (2005) 155 A Crim R 499; [2005] NSWCCA 280

Tan v R [2014] NSWCCA 96

The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39

Tuivaga v R [2015] NSWCCA 145

Category:

Principal judgment

Parties:

Philip David Emanuele (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Counsel:
P Boulten SC with S Jeliba (Applicant)
E Nicholson (Respondent)

Solicitors:
William O’Brien & Ross Hudson Solicitors (Applicant)
NSW Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2020/00021799

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

10 March 2023

Before:

J A English DCJ

File Number(s):

2020/00021799

HEADNOTE

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

The applicant sought leave to appeal from the sentence imposed on him in respect of one count of knowingly take part in the supply of a commercial quantity of cocaine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).

The applicant was sentenced to a term of imprisonment of five years with a non-parole period of three years. The sentence commenced on 6 October 2022. His co-offender received the same sentence.

The applicant raised three grounds of appeal, two of which related to parity (grounds 1 and 2) and one based on manifest excess (ground 3).

The point raised under grounds 1 and 2 was that, in sentencing the applicant and his co-offender to identical terms of imprisonment, the sentencing judge failed to have regard to the fact that the co-offender had been convicted of a more serious offence, leading the applicant to have a justifiable sense of grievance. The offence with which the applicant was convicted carried a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. The offence with which the co-offender was convicted carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

The Court (Basten AJA and Cavanagh J, Davies J agreeing with both) held:

Consistency in sentencing requires not only that like cases be treated alike but that different cases be treated differently: Basten AJA at [2].

The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28(1)]

An offender may suffer from a justifiable sense of grievance when, despite differing circumstances, the offender receives the same sentence as his or her co-offender: Cavanagh J at [51]; [54]-[55].

Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 29 at [31]

Although the sentencing judge referred to the issue of parity, her Honour considered that the roles played by the offenders were equal and their objective and subjective circumstances were similar. Her Honour assessed the objective seriousness in respect of both the applicant and co-offender as being below the mid-range. The similar findings in relation to the objective and subjective circumstances led to the imposition of identical sentences: Cavanagh J at [60]; [65].

To obtain similar sentences, there should have been different findings as to the respective levels of objective seriousness: Basten AJA at [11]. It followed that the sentencing judge erred in having no regard to the differences between the offences: Cavanagh J at [66]. The applicant was entitled to the benefit of the necessary disparity by way of a reduction of sentence: Basten AJA at [12].

JUDGMENT

1. BASTEN AJA: I agree that the present appeal must be allowed, for the reasons given by Cavanagh J. I also agree with the proposed resentencing. The following observations are directed to the apparent error in the sentencing judgment, and to the Director's proposition that, even if error be accepted, no different sentence is warranted.

2. There is a fundamental principle that requires consistency in sentencing of offenders. That means not only that like cases are to be treated alike, but that different cases are to be treated differently, as explained in The Queen v Pham. [1] One means of maximising consistency is for two offenders charged in relation to the same conduct to be sentenced by the same judge. That does not mean that they will receive the same sentence, and usually they will not, because two persons will rarely play the same role in relation to the offending conduct and have the same subjective circumstances. Nor, where an agreed statement of facts is negotiated in relation to a plea, will each necessarily be sentenced on the same basis as the other.

   1. (2015) 256 CLR 550; [2015] HCA 39 at [28(1)] (French CJ, Keane and Nettle JJ).

3. In this case the applicant and his co-offender, Scott Biber, were sentenced together. The relevant point of difference was that the applicant entered a plea to an offence involving a maximum penalty of 20 years imprisonment, and subject to a standard non-parole period of 10 years, whilst his co-offender pleaded to a more serious offence (involving a greater quantity of the drug) carrying a life sentence and affected by a standard non-parole period of 15 years. However, the sentencing judge acknowledged this and correctly stated these facts in her judgment.

4. The amount of cocaine which was transported by the co-offender to the applicant's premises was only fractionally over the minimum for the large commercial quantity. However, the co-offender accepted that he had a sufficient knowledge of the amount of drug to engage the more serious offence. With respect to the applicant, the agreed facts merely stated that he knew the amount of cocaine was not less than 250 grams, being 25% of the minimum for the large commercial quantity. That, taken in isolation, justified a significant disparity in the appropriate sentences. Why that did not occur is puzzling, but there are two possible explanations.

5. The first is to be found in a proposed statement of agreed facts prepared by the Director and signed by the applicant, which included the following proposition:

"The Crown accepts that [the applicant] knowingly took part in the supply of a commercial quantity of cocaine close to the threshold of a large commercial quantity (that is less than, but close to 1,000 grams of cocaine).”

6. If the quantity referred to in that statement had been an agreed fact, it would have justified a small disparity in the sentences, or perhaps none at all. However, as is not uncommon with such statements, what was included was not the fact, but the prosecution allegation. Why a "proposed statement of agreed facts" includes such matters is obscure. It is apt to give rise to confusion and misunderstanding where the applicant signs the document. That may have happened in this case.

7. Secondly, as the Director pointed out, there was a degree of ambivalence in the applicant's submissions on sentence in relation to this matter. At one point, the written submissions for the applicant stated:

"While it is agreed that it was known there was a commercial amount and that amount was close to a large commercial amount, there is no evidence and no agreed fact that the Offender knew of the exact drug and exact quantity being transported by Mr Biber." [2]

2. Written submissions, 1 February 2023, par 17(a).

8. With similar ambiguity, in addressing objective circumstances, the applicant's written submissions on sentence appeared to acknowledge that "the agreed quantity of the drug in respect of the offence is at the high end of the range for this offence", but noted that quantity was not determinative. [3]

   3. Ibid at par 14.

9. The oral submissions on sentence placed emphasis on the significant disparity between the maximum penalties faced by the applicant and his co-offender, a matter which it was said could not be put to one side as "a sort of happenstance and sort of good luck charm or something". [4] That language may have been understood to imply the applicant's acceptance that his conduct fell only marginally below the threshold for the more serious offence.

   4. Tcpt, 03/02/23, p 26(3).

10. It is not clear that the sentencing judge resolved this matter in her own mind. Had she done so, she might have treated the objective seriousness of the applicant's offence as closer to that of the co-offender because each understood that the amount of the drug was near the borderline between the two offences. However, the judge concluded her assessment of objective seriousness with the following statement: [5]

"When one has regard to the roles each offender played, I find these are offences which fall below the mid-range of objective seriousness but certainly not at the lower end of the range."

5. Sentencing judgment, p 12.

11. Taken literally, the co-offender should have received a significantly higher sentence than the applicant, because of the disparity in the seriousness of the offences. To obtain similar sentences, there should have been different findings as to the respective levels of objective seriousness.

12. It must be accepted that the sentencing judge fell into error in this regard, although it is easy to see why that happened. On the other hand, if the applicant were to be resentenced on the basis that he was aware that the amount of the drug transported by Mr Biber was close to 1 kilogram, the correction of that error might not result in a sentencing differential. However, as senior counsel submitted, the proper understanding of the agreed facts does not permit that approach. There being no evidence relied on by the prosecutor with respect to the knowledge of the applicant, other than that he understood the amount to exceed 250 grams, he is entitled to the benefit of the necessary disparity by way of a reduction of sentence.

13. DAVIES J: I agree with Cavanagh J.

14. CAVANAGH J: The applicant seeks leave to appeal against the sentence imposed upon him in the District Court sitting at Lismore by her Honour Judge J A English on 10 March 2023.

15. Prior to sentence, the applicant pleaded guilty to one count of knowingly take part in the supply of a commercial quantity of cocaine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”). The maximum penalty in respect of that offence is 20 years imprisonment with a standard non-parole period of 10 years.

16. The applicant was sentenced to a term of imprisonment of five years with a non-parole period of three years. The sentence commenced on 6 October 2022.

17. Her Honour took account of two additional drug possession matters on a Form 1 but stated in her remarks on sentence that they were minor matters which did not call for an increase in the penalty.

18. Upon sentencing the applicant, her Honour also sentenced a co-offender, Scott Biber, to the same term of imprisonment, with the only difference being that his term commenced at an earlier time, having regard to his pre-sentence custodial period and his involvement in a residential drug treatment program.

19. The applicant relies on three grounds of appeal, being:

1. the sentencing judge overlooked the significance of the different offences committed by the applicant and the co-offender including the different maximum penalties that applied to those offences;

2. the sentencing proceedings miscarried in that the sentencing judge left the applicant with a justifiable sense of grievance given the sentence that was imposed upon the co-offender; and

3. the sentence is manifestly excessive.

20. As observed on behalf of the applicant during the appeal hearing, the appeal involves a relatively discrete issue about parity. The central point raised on behalf of the applicant is that the co-offender was convicted of a more serious offence with a higher maximum penalty which the sentencing judge could not have taken into account when imposing the sentences on the applicant and the co-offender.

Circumstances of the offending

21. A statement of agreed facts was signed by both the applicant and his co-offender and relied upon at the sentencing hearing. The applicant does not challenge any material finding of fact, although he points to some small errors in the remarks on sentence which are not material to this appeal. Her Honour determined the facts having regard to the statement of agreed facts.

22. In August 2019 the police were investigating the supply of prohibited drugs in the Northern Rivers region on the north coast of New South Wales. Surveillance was being conducted on the co-offender, which led to the police becoming aware of his communication with the applicant and other known persons. The applicant resided in Lennox Head and the co-offender resided in Suffolk Park in the Northern Rivers. The applicant’s father resided in Coogee in Sydney.

23. On 13 December 2019 the co-offender drove from Coffs Harbour to Sydney. The next day he drove to the applicant’s father’s house in Coogee before travelling back to the applicant’s house in Lennox Head.

24. Between 14 and 15 December 2019 the applicant and the co-offender were in constant contact. Telephone intercepts from that period reveal the co-offender suggesting to his partner that he would be going straight to the applicant’s house and asserting that he, the co-offender, wanted “a piece of the pie too…”. No charges arise from anything that occurred between 13 and 15 December 2019.

25. However, during the period 8 to 9 January 2020 the applicant and the co-offender used encrypted messaging applications to coordinate the co-offender’s attendance at the applicant’s father’s home at Coogee. The co-offender was physically monitored at the father’s address by police. He was seen to leave his vehicle, remove a black case from the rear of the vehicle and hand it to an unknown male. He was also seen to remove a red fire extinguisher from the rear of the vehicle and carry it towards the premises. Another vehicle arrived and a second unknown male got out of the vehicle carrying a brown paper bag. They both walked into the premises.

26. At approximately 9.30 am the co-offender carried a red fire extinguisher and a yellow and black tool bag from the premises, placing them into his vehicle. He re-entered the premises and then finally left the premises. His vehicle was monitored travelling back to the Northern Rivers area. His telephone calls and messages were also monitored.

27. At approximately 8.25 pm on 9 January 2020 the co-offender’s vehicle was stopped at Ballina. He was cautioned and placed under arrest for the supply and possession of prohibited drugs. He denied any knowledge of drugs on his person or in his vehicle. The vehicle was towed and examined. Two red fire extinguishers which were located in the rear of the vehicle were seized.

28. On examination, it was found that one extinguisher had been modified with a large plastic base and a wide internal pipe had been cut. Located inside was a white fabric bag with a block of compressed cocaine wrapped in brown packing tape. The contents of the brown package were examined and found to be 1,001.7 grams of cocaine with a purity of 70.5%. The co-offender subsequently participated in an Electronically Recorded Interview of a Suspected Person (“ERISP”) during which he denied knowledge or possession of the prohibited the drugs.

29. The applicant and the co-offender communicated about the arrangements for the co-offender to attend at the applicant’s father’s house between 8 and 9 January 2020. Various communications were recorded between the applicant and the co-offender whilst the co-offender travelled south from the Northern Rivers towards the applicant’s father’s house in Coogee. Coded messages were exchanged.

30. On the co-offender’s journey back to the Northern Rivers, he again messaged the applicant using coded words.

31. Search warrants were executed on the applicant’s father’s premises in Coogee, as well as the applicant’s premises in Lennox Head. A clear plastic bag containing white powder (presumptively analysed as cocaine) was found at the applicant’s premises. On subsequent analysis, the cocaine weighed 1.43 grams. A safe in the bedroom contained a clear resealable bag containing a substance which was later analysed as 3,4-methylenedioxyamphetamine weighing 0.11 grams.

32. The sentencing judge accepted that between 8 and 9 January 2020 the co-offender couriered a large commercial quantity of a prohibited drug, namely, 1,007 grams of cocaine, from the applicant’s father’s house to Ballina where he was arrested and found in possession of the drug.

33. It was accepted that the applicant had knowingly taken part in the supply of a commercial quantity of cocaine close to the threshold of a large commercial quantity but less than the large commercial quantity of 1,000 grams. Her Honour found that the applicant did not have knowledge that the quantity was equal to or in excess of the threshold of a large commercial quantity. By his plea, he only acknowledged that the quantity exceeded 250 grams. The applicant and the co-offender were thus charged with (and pleaded guilty to) different offences.

34. Although both the applicant and the co-offender were involved in the supply of the same drugs, the co-offender was charged with a more serious offence: that is, supplying a large commercial quantity of cocaine, which attracted a higher maximum penalty (life imprisonment rather than 20 years imprisonment) and a higher standard non-parole period (15 years imprisonment rather than 10 years imprisonment).

Remarks on sentence

35. Her Honour found that the motivation for the offending conduct on the part of both offenders was financial gain. They were both recreational drug users. Both were employed and well-established in life. Her Honour accepted that they had become involved in the drug supply milieu as a result of their personal drug use. Her Honour observed that, in sentencing for drug offences, the quantity of the drug is not the sole or even principal determinant, stating “what is more important is the role and level of participation of each offender”.

36. Her Honour found that the applicant’s role was to facilitate the co-offender’s access to the applicant’s father’s house in Coogee so that the co-offender could meet with others to receive a quantity of cocaine for the purpose of driving it back to the Northern Rivers. Her Honour inferred that this was intended for supply once it arrived at the Northern Rivers. Her Honour accepted that the applicant and the co-offender intended to distribute the cocaine once it reached its destination. However, she observed that the applicant was not physically in possession of the drugs at any stage and there was no evidence that the applicant or the co-offender had financed the operation. Her Honour did not accept that either the applicant or the co-offender was high up in the chain of command.

35. Her Honour considered that there was a considerable degree of planning involved on the part of both offenders, although it was not particularly sophisticated. They communicated by way of encrypted messaging applications. Her Honour accepted that the steps taken to alter the fire extinguisher to hide the drugs inside required a degree of skill and forethought. Her Honour accepted that however the quantity of cocaine made its way into the community, there was the potential for significant financial gain to be made by criminals beyond those who were involved in this particular enterprise.

36. Her Honour found that, having regard to the roles played by both offenders, the offences both fell “below the mid-range of objective seriousness but certainly not at the low end of the range”. Her Honour then went on to find that as the matters fell below the mid-range as envisaged by the legislature and there had been pleas of guilty, she would depart from imposing the standard non-parole periods.

37. Her Honour then went on to consider the subjective circumstances of the applicant and the co-offender. It is not necessary that I merely set out all of her Honour’s findings in this respect. It is only necessary to say that the findings were similar. The offenders both had good prospects of rehabilitation and were found unlikely to reoffend. They were both entitled to a 25% discount on account of their early guilty pleas.

38. The sentencing judge accepted that the applicant had demonstrated remorse but did not make such a finding in respect of the co-offender, although her Honour did think that there was an element of contrition contained within the early guilty plea. Her Honour accepted that both offenders were entitled to findings of special circumstances. Her Honour found that both would require a longer than normal period of supervision on parole to minimise the risk of drug addiction relapse, stating that this was “perhaps more so for Mr Emanuele, who has not undertaken any form of alcohol or drug use rehabilitation similar to that of Mr Biber”.

39. On the issue of parity, her Honour made the following observations:

“Whilst the further five month delay would not doubt have caused both of them anxiety as to the outcome of [the] proceedings, it is not so significant as to amount to [a] mitigating factor, but it is a matter I have taken into account.

As to the issue of parity, the offender Biber is facing sentence for an offence attracting a greater maximum penalty. He, of course, was the one who physically took possession of the drugs and drove them back to the northern rivers. However, it was Emanuele who was the facilitator and, without his input, the transaction would not have occurred.

Their subjective circumstances are very similar: Persons of otherwise good character who, up until this point in time, led exemplary lives, contributing to society, well respected. Both of them have taken steps to address their offending behaviour, Mr Biber more so than Mr Emanuele, in terms of his admission into residential rehabilitation and psychotherapy. There is hardship caused to an elderly parent and to their children.

It is difficult to differentiate between the relative culpability of the offenders in what really is a joint criminal enterprise. I find there is no justifiable disparity in terms of the sentences to be imposed. I find that the role each played was equal in terms of the offending, the subjective circumstances are remarkably similar, as I have said.

The fact that the offender Emanuele asks that additional matters be taken into account does not call for any significant increase in the penalty to be imposed in respect of his offending; they are minor matters. The only difference is that the offender Biber spent slightly more time in custody than his co-offender Emanuele and he spent time in residential rehabilitation, a quasi form of custody.”

Grounds 1 and 2

42. Grounds 1 and 2 are closely related and were addressed together.

The applicant’s submissions

43. The applicant does not challenge any of the factual findings made by the sentencing judge. Indeed, the applicant adopts them, submitting that her Honour’s finding that the applicant was the “facilitator” merely meant that her Honour accepted that it was the applicant who facilitated the co-offender’s access to the Coogee property. Specifically, the applicant refers to her Honour’s finding that “there is no evidence that the offender Emanuel [the applicant] was aware that the weight of the drug was equal to or in excess of a large commercial quantity…”. The applicant does not challenge the finding that the offending by the applicant and the co-offender “fell below the mid-range of objective seriousness but not the lower end of the range”.

44. The central point raised by the applicant is that the offence with which the co-offender was convicted was far more serious and carried a much higher maximum penalty. The applicant submits that, although the parties addressed the sentencing judge on the issue of parity (and although her Honour referred to the issue of parity in her remarks on sentence) her Honour must have failed to have regard to the difference in the offences and their respective penalties.

45. The applicant submits that her Honour’s remark that “the only difference is that the offender Biber spent slightly more time in custody than his co-offender Emanuel and he spent time in residential rehabilitation, a quasi form of custody” demonstrates the error, that is, her Honour must be taken to have overlooked the point of distinction: that the offences with which the co-offender was convicted carried a substantially higher maximum penalty.

46. The applicant submits that there is a justifiable sense of grievance arising from the identical sentences in circumstances where the applicant was convicted of a less serious offence. The justifiable sense of grievance is magnified having regard to the circumstances of the co-offender’s pre-sentence custody and “quasi-custody”. The co-offender spent 10 months in quasi-custody at Odyssey House. Due to the allowances made for the co-offender’s pre-sentence custody and quasi-custody, and if the offenders are both released to parole at the earliest opportunities, the co-offender will be released approximately nine months before the applicant.

47. The applicant submits that error has been demonstrated and he ought to be resentenced to a lesser sentence than that of his co-offender.

The Crown submissions

48. The Crown submits that on a proper reading of the sentencing judgment, the sentencing judge must be taken to have appreciated the different offences to which the co-offender had pleaded guilty and dealt with this issue when considering the issue of parity. The Crown relies on the observations of her Honour regarding the applicant being the “facilitator”. Further, the Crown submits that the applicant’s plea of guilty was explicitly stated on the basis that he knew that the quantity of the drug was close to 1,000 grams, being the statutory threshold for a large commercial quantity.

49. The Crown submits that the differing maximum penalties are not decisive. The maximum penalties are merely one of the factors bearing on the determination of the sentences: Elias v R (2013) 248 CLR 483; [2013] HCA 31 (“Elias”) per French CJ, Hayne, Kiefel, Bell and Keane JJ at [27].

50. The Crown also submits that the co-offender’s offending involved a quantity of the drug that was only 0.7 grams over the relevant statutory threshold. This was far removed from the most serious example of the supply of a large commercial quantity of a prohibited drug and, in those circumstances, the relevance of the maximum penalty is diminished: Chiarlini v R [2023] NSWCCA 227 at [30].

51. The Crown submits that focussing on the very small difference between the offenders’ relative knowledge of the exact quantity of the drug (and the associated difference in maximum penalty) would have had the effect of focussing on form rather than substance: Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 29 (“Green”) at [30]; Narayan v R [2022] NSWCCA 163 at [73].

52. Finally, the Crown submits that the offenders’ subjective cases operated with equal weight in the process of instinctive synthesis. The Crown submits that the identical sentences are justified having regard to the objective and subjective elements of each case.

Consideration

53. The point made by the applicant is not that he suffers from a sense of grievance because of any difference in sentence but, rather, that he suffers from a sense of grievance because he received the same sentence as the co-offender.

54. In Green, the Court (per French CJ, Crennan and Kiefel JJ) said at [31]:

“Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may “reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender.” The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v R:

the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.

The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.”

55. I accept that an offender may suffer from a justifiable sense of grievance when, despite there being differing circumstances, the offender receives the same sentence as his or her co-offender: Green at [30], Elias at [30].

56. The question is whether a sense of grievance or injustice is a legitimate one: Lowe v R (1984) 154 CLR 606 at 611; [1984] HCA 46 per Mason J. The test for determining this is objective rather than subjective. The question is not whether the applicant is subjectively aggrieved: R v Kelly (2005) 155 A Crim R 499; [2005] NSWCCA 280 per Johnson J at [11] (Simpson J agreeing).

57. Importantly, as was observed by Hoeben CJ at CL (with whom R A Hulme and Wilson JJ agreed) in Tuivaga v R [2015] NSWCCA 145 at [55]-[56], in circumstances in which the sentencing judge has recognised the importance of the parity principle and purported to give effect to it, appellate intervention should only occur where the disparity is “gross, marked or glaring” (referring to Tan v R [2014] NSWCCA 96 at [39]).

58. In my view, this is such a case. The sentencing judge was made aware of the importance of parity and sought to give effect to it. However, I am unable to accept that her Honour did so. Whilst the differing maximum penalties are not determinative, everything else being equal, it might be expected that co-offenders charged with different offences (that is, one being more serious) would receive differing penalties because each offender must be sentenced having regard to the offence for which they have been convicted.

59. As Basten JA said in R v Chandler; Chandler v R [2012] NSWCCA 135 at [7], “if one offence bears a lower level culpability, as reflected in the maximum penalty, that is an important factor to be weighed in the sentencing”. That is not to say that the maximum penalty is determinative. In some circumstances, there may be little difference between an offender who has committed a low range example of a more serious offence and a co-offender who has committed a high range example of a less serious offence: see Humphreys v R [2020] NSWCCA 144 per Johnson J at [145]-[146], with Simpson AJA and Hamill J agreeing.

60. On one analysis, that might have been the view taken by her Honour. However, that is not what her Honour said. Her Honour found that both offences were below the mid-range of objective seriousness, although not at the lower end of the range. Further, her Honour specifically found that the offenders’ subjective circumstances were very similar and that it was difficult to differentiate between their relative culpability, making a specific finding that there was no justifiable disparity in terms of the sentences to be imposed.

61. Her Honour’s ultimate finding was: “I find that the role each played was equal in terms of the offending, the subjective circumstances are remarkably similar, as I have said”. Further, her Honour also stated that the additional matters taken into account on the Form 1 did not call for any significant increase in the penalty.

62. Her Honour’s finding that it was the applicant who was the facilitator (see [41] above) and, without his input, the transaction would not have occurred may have been open to her Honour, but her Honour then went on to find that the roles played by the offenders were equal. It must follow that, in observing that the applicant was the facilitator, her Honour was not intending to ascribe a higher or more significant role to him.

63. I accept the submission made by the applicant that the reference to the applicant being a facilitator could not be taken as indicating that he was higher up the criminal enterprise. All her Honour was suggesting was that the applicant had facilitated the co-offender’s attendance at his father’s premises in Coogee. This does not mean that he had some greater role in the criminal enterprise.

64. A finding of a higher culpability on the part of the applicant might have dispelled any sense of grievance but, on my analysis of the sentencing judgment, her Honour found that the applicant and co-offenders’ cases were very similar, both in terms of the objective and subjective features.

65. The similar findings on objective seriousness, subjective circumstances and the roles each offender played led to the imposition of identical sentences. In those circumstances, it must follow that, despite referring to the issue of parity, her Honour had no regard to the differing maximum penalties. As I have said, they may not have been determinative, but they were an important factor to be considered.

66. As such, I accept that the applicant has a justifiable sense of grievance arising from the findings of the sentencing judge and the imposition of identical sentences, despite the fact that he had been convicted of a less serious offence.

67. I am satisfied that the applicant is entitled to succeed on grounds 1 and 2 and the appeal should be allowed. It is not necessary that I consider the “manifest excess” ground of appeal.

Resentence

68. The applicant does not dispute any of the sentencing judge’s material factual findings. I have referred to them earlier in this judgment. I thus adopt those findings. Further, I accept her Honour’s characterisation of the respective roles of the applicant and the co-offender.

69. There is no challenge to any of the findings on subjective circumstances. I have regard to the further material relied upon by the applicant on resentence, being the affidavit of Shane Vincent dated 1 November 2023 and the affidavit of Christopher John Cole dated 2 November 2023.

70. Mr Vincent is in contact with the applicant on an almost-daily basis. He refers to the hardship associated with Covid-19 “lock-ins” and the difficulties the applicant is experiencing being separated from his son. Further, the health of the applicant’s father has continued to deteriorate. He has recently been discharged from hospital, having had a fall at his home, and was placed into respite care at Little Bay. No person has been available to provide the required level of care for him at home.

71. As the applicant is in custody, he is unable to care for his son, who is 18 years old. I am satisfied that the applicant’s son, who had been living with the applicant’s father, is now experiencing difficulties without the appropriate care and support. I am also satisfied that the applicant’s son has been suffering from his own mental health problems, which is making the applicant’s time in custody more onerous.

72. Further, since being incarcerated, the applicant has endeavoured to make the best of his time in custody. He has been well-behaved and has been involved as a ground maintenance/general hand and machine operator.

73. I accept that the applicant was a person of prior good character and that his criminal history is not relevant to the imposition of this sentence. He comes from a stable background. There is no basis on which his moral culpability for the offending might be reduced. I accept, as the sentencing judge did, that his concern for his father and son will weigh heavily on his time in custody and this must be taken into account. Indeed, as is evidenced by the recent material, the situation with his father and son has worsened whilst he has been in custody.

74. The applicant has demonstrated remorse and has good prospects of rehabilitation. He is unlikely to reoffend.

75. He is entitled to a 25% discount on the sentence due to his early guilty plea.

76. It is important that the applicant be sentenced for the offence for which he has been charged. The maximum penalty is a guidepost as to how the legislature regards an offence (see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25). I take into account the two additional sentences on the Form 1, being two offences of possessing a prohibited drug contrary to s 10(1) of the DMT Act.

77. In considering parity, I have regard to the fact that the co-offender has been convicted of a more serious offence with a higher maximum penalty but, otherwise, their cases are somewhat similar.

78. In respect of the offence of knowingly take part in the supply of not less than the commercial quantity of a prohibited drug (cocaine) contrary to s 25(2) of the DMT Act, I impose a sentence of four years imprisonment. I set a non-parole period of two years and four months.

79. The orders I propose are:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The sentence imposed by Judge J A English in the District Court on 10 March 2023 is quashed.

4. The applicant is sentenced to a term of imprisonment for four years commencing on 6 October 2022 and expiring on 5 October 2026 with a non-parole period of two years and four months commencing on 6 October 2022. The applicant will be eligible for parole on 5 February 2025.

**********

Endnotes

Decision last updated: 08 December 2023