Henderson v R

[2012] NSWCCA 65

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Henderson v R [2012] NSWCCA 65
Hearing dates:	23 February 2012
Decision date:	19 April 2012
Before:	Macfarlan JA at [1] R S Hulme J at [2] R A Hulme J at [3]
Decision:	Leave to appeal granted. Appeal dismissed.
Catchwords:	CRIMINAL LAW - Sentence appeal - unauthorised possession of a prohibited firearm - whether sentence was manifestly excessive - parity - whether there is a justified sense of grievance arising out of sentence imposed on another offender in relation to same firearm - differences in nature of the offences and personal circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drugs Misuse and Trafficking Act 1985 Firearms Act 1996 Poisons and Therapeutic Goods Act 1966
Cases Cited:	Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Green v The Queen; Quinn v The Queen [2011] HCA 49; (2012) 86 ALJR 36 House v The King [1936] HCA 40; (1936) 55 CLR 499 Jimmy v Regina [2010] NSWCCA 60; (2010) 77 NSWLR 540 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 Meager v R [2009] NSWCCA 215 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v Moore [2012] NSWCCA 3
Category:	Principal judgment
Parties:	Luke Andrew Henderson (Applicant) Regina (Respondent)
Representation:	Counsel: Mr G Wendler (Applicant) Ms S Dowling (Respondent) Solicitors: S. El-Hanania (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2009/192730
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2010-11-04 00:00:00 Before: Walmsley DCJ File Number(s): 2009/192730

Judgment

1. MACFARLAN JA: I agree with R A Hulme J.

1. R S HULME J: I agree with the orders proposed by R A Hulme J and with his Honour's reasons.

1. R A HULME J: This is an application for leave to appeal in respect of one of two sentences imposed by his Honour Judge Walmsley SC in the Sydney District Court on 4 November 2010.

1. The applicant had pleaded guilty to two offences and asked that further offences be taken into account on sentence.

1. In respect of an offence of supplying ecstasy ("the drug supply offence"), the applicant asked that offences of supplying cocaine, dealing with the proceeds of crime and possessing cannabis be taken into account.

1. In respect of an offence of possessing an unauthorised and prohibited firearm (a shortened 12 gauge pump action shotgun) ("the firearm offence"), the applicant asked that offences of possessing an unregistered firearm (a rifle), not keeping a firearm safely and possessing ammunition without a licence or permit be taken into account.

1. For the drug supply offence there was a maximum penalty of imprisonment for 15 years and/or a fine of $220,000: s 25(1) Drugs Misuse and Trafficking Act 1985.

1. For the firearm offence there was a maximum penalty of imprisonment for 14 years and a standard non-parole period of 3 years: s 7(1) Firearms Act 1996 and Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

1. For the drug supply offence the judge imposed a fixed term of imprisonment for 18 months. For the firearm offence there was a sentence of 2 years 6 months with a non-parole period of 1 year. A period of partial accumulation was ordered so that the sentence for the firearm offence commenced 8 months after the commencement of the sentence for the drug supply offence. Accordingly, the aggregate sentence was one of 3 years 2 months with 1 year 8 months to be served before release on parole.

1. The applicant relies upon 3 grounds of appeal, each relating to the sentence for the firearm offence. There is no complaint about the sentence for the drug supply offence and nor, in my view, could there be when the judge found that it was "a little less than mid-range", the maximum penalty was imprisonment for 15 year, and the sentence was 18 months.

Facts

1. There was a statement of agreed facts tendered before the judge. It revealed that some of the items the subject of the charges were found in the applicant's car when it was seen by police parked outside the clubhouse of the Nomads outlaw motorcycle gang in Marrickville on 8 August 2009. Further items were found on 13 August 2009 when the police investigation led them to the home of a friend of the applicant in Maroubra, and on 17 September 2009 when the applicant was arrested at Cronulla. In aggregate, the applicant was in possession of the following:

• 125 tablets (34.16 grams) of ecstasy (drug supply offence).

• 7 plastic resealable bags containing 7.96 grams of cocaine (Form 1 drug supply offence).

• $10,839 in cash (Form 1 proceeds of crime offence).

• 2.2 grams of cannabis (Form 1 cannabis possession offence).

• A 12 gauge pump action shot gun (firearm offence). It is not stated in the agreed facts but the applicant gave evidence that it was shortened (POS 43.28).

• A Sterling 15 rifle (Form 1 firearm offence).

• A magazine containing 5 rounds of .22 calibre ammunition loaded in the rifle together with a further 94 rounds of such ammunition (Form 1 ammunition offence).

• 2 mobile phones; SIM cards; and 6 unused prepaid mobile phone cards.

• A driver's licence in another name.

• A quantity of plastic resealable bags and plastic spoons, and a set of scales.

1. The police inquiries revealed that on 9 August 2009, the day after the applicant's car was searched by police, a man named Lawrence Lignow attended the applicant's home and removed a mattress. The firearms and ammunition were hidden inside the mattress. Mr Lignow was arrested and charged. He told police that he had an arrangement with the applicant that he would remove and secrete these items if ever the applicant got into trouble.

1. The applicant gave evidence in the sentence proceedings. He said that he bought the firearms in Townsville a long time ago and used them for hunting. His family had a farm. He had air rifles when he was small. In cross-examination he said that he bought the firearms in about 2002 or 2003 from a friend at a hotel (POS 25). He acknowledged that his acquisition of them was unlawful (POS 25.29). He kept the firearms at home while he was in Queensland and brought them with him when he moved to Sydney. They were left in his car parked outside his parents' home when he was overseas for six to eight months in 2008. Thereafter he hid them in a cupboard in his home (POS 25 - 27). It was Mr Lignow who put them in a mattress in order to secrete and take them away from the applicant's home (POS 28).

1. The applicant confirmed that he had used the firearms (plural) for hunting rabbits and the like (POS 29). Later, in response to questions by the judge, the applicant said that the shotgun was already shortened when he bought it. He then said that he had not used that gun for hunting but only the rifle. He said "the shotgun was never active, the trigger mechanism I never received for it your Honour" (POS 43). Why the applicant purchased and then retained for so many years a shortened shotgun that could not be used was not explained.

Findings made concerning the offences

1. In relation to the offence of supplying ecstasy, the judge noted that the indictable quantity prescribed for this drug is 1.25 grams and the commercial quantity is 125 grams. In this case there were 34.16 grams, which was about 27 times the indictable quantity.

1. His Honour said that there was "substantial evidence that the offender was involved in supply for financial gain" (ROS at [6]). He referred in this context to the drugs and the money found in the car as well as to the finding of re-sealable plastic bags, SIM cards, scales, plastic spoons, a customer list and the like. He found that the offence was "a little less than mid-range". Later, his Honour referred to the applicant's claim that he only sold drugs to feed his own consumption and said that he rejected it, saying that the customer list, drug paraphernalia and SIM cards indicated a form of activity greater than the applicant was prepared to concede. He also rejected claims that he did not know of the multiple phone cards in his car and that he had two mobile phones because he was seeing two girlfriends (ROS [10]).

1. In relation to the firearm offence, his Honour accepted the applicant's evidence that the shotgun did not function because the trigger mechanism had been removed before the applicant purchased it. The judge also noted that there was no ammunition for this gun and that there was no evidence that it had been used in the course of any drug offences. He noted that it was "an extremely significant offence" but nevertheless found that it was "a low range offence of its kind" (ROS [7]).

Subjective circumstances

1. The sentencing judge referred at some length to the applicant's personal circumstances. There is no complaint about the manner in which such matters were taken into account and so they require only brief mention.

1. The applicant was aged 26 at the time of the offences. He had no previous convictions which the judge said was a matter entitling him to "some leniency".

1. The applicant came from a close and supportive family. He left school after Year 11 and joined the Australian Army. He served in Australia and on peacekeeping missions in East Timor in 2001 and 2005 and in the Solomon Islands in 2003. He witnessed the death of a civilian in East Timor in 2001. He also experienced the deaths of members of his extended family. The judge noted that it seemed that the applicant sought refuge in drugs and alcohol as a result of these events.

1. Counselling assisted the applicant in respect of alcohol but he continued using drugs. The breakdown of a relationship exacerbated this problem.

1. The judge described the applicant's army career as "impressive". When he left the army in January 2008, the applicant travelled overseas and then worked in security, as a gym attendant and in the Army Reserve. At the time of sentencing he was employed as a labourer.

1. The judge noted that the applicant had a "great deal of support from his family", noting in this context that his parents, friends and partner were present in court.

1. The applicant gave evidence that the history he had provided to the author of a psychological report, Dr John Jacmon, was truthful. Dr Jacmon's opinion was that the applicant had symptoms of borderline personality disorder and that drug use made him aggressive and of poor judgment. The applicant's evidence was that he was willing to adopt Dr Jacmon's recommendations as to treatment.

1. The judge regarded it as a "significant part of the offender's subjective case" that his mother had advanced breast cancer and that the applicant had been playing a significant role in her care. She gave evidence about how helpful he had been. The judge acknowledged restrictions in the extent to which he could take family hardship into account. His Honour noted in this respect that it had not been established that care for the applicant's mother could not be provided by her husband or by friends.

1. Other matters that were taken into account included that the applicant was remorseful, although this was limited because he had not been completely candid about certain aspects of the offences. His Honour was satisfied that the applicant had good prospects of rehabilitation. A reduction of sentence of 25 per cent was allowed in recognition of the applicant's early pleas of guilty.

Grounds of appeal

1. There are three grounds of appeal. The first and second are concerned with the parity principle: whether the sentence for the firearm offence offended the parity principle and whether the judge erred by holding that "parity does not apply". The third contends that the sentence for the firearm offence is manifestly excessive. It is appropriate to first consider the third ground. If it is made out, the other grounds would be otiose.

Ground 3: The sentence imposed for the offence of unauthorised possession of a prohibited firearm was in any case manifestly excessive

1. A number of factors were adverted to in support of the submission that the sentence for the firearm offence was manifestly excessive. The sentencing judge accepted that the applicant had never used the shot gun. It was in an incomplete state because it had no trigger mechanism and was incapable of being discharged. There was no ammunition associated with it. There was no suggestion of the gun being associated with illegal drug supply activity and no suggestion of it finding its way into the hands of "the criminal underworld". The sentencing judge found that it was a low range offence.

1. Reference was also made to the applicant having entered an early plea of guilty and having no previous convictions. It was submitted that there was "demonstrated remorse and insight into his anti-social behaviour". Further, the sentencing judge found that there were special circumstances under s 44(2) Crimes (Sentencing Procedure) 1999 which justified a longer parole and shorter non-parole period.

1. The written submissions by counsel for the applicant concluded by stating, "It was open to mollify the sentence to be imposed upon the applicant".

1. Counsel for the Crown approached the matter by identifying the actual period the applicant would spend in custody referrable only to the firearm offence. The sentence for the drug supply offence was a fixed term of 18 months. Thereafter, the applicant would remain in custody solely in respect of the sentence for the firearm offence for 2 months.

1. With respect, I do not feel there is any merit in that analysis. It may, perhaps, be a relevant consideration if any of the grounds were upheld and the Court was contemplating intervention. The accumulation of a sentence, whether partially or wholly, upon another sentence does not mean that it is any less than what it is. The analysis engaged in by the Crown ignores the rationale for the principle of totality: see, for example, Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63. This was a matter that the judge was required to consider after first determining the sentences for the individual offences: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [45].

1. The Crown's analysis also ignores the fact that there is a subsequent period of 18 months during which the applicant will be on parole. As Simpson J observed in R v Moore [2012] NSWCCA 3 at [38], "a period of parole is in itself a sentence".

1. The imposition of a sentence is a discretionary decision that can only be interfered with by this Court on House v The King principles ([1936] HCA 40; (1936) 55 CLR 499 at 505). Intervention by an appellate court is not justified on the basis that it was "open to mollify the sentence".

1. No patent error was sought to be identified on behalf of the applicant. Accordingly, the question is whether, having regard to all of the circumstances of the offence and the offender, a sentence of 2 years 6 months is unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 at 371 [25]. It is not simply a matter for this Court to substitute its own opinion for that of the sentencing judge because it might have exercised the discretion in a different manner: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 672 [15]; cited in Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 339 [57]; and Markarian v The Queen at 371 [28].

1. The judge found that the offence was "a low range offence of its kind" and there were a number of favourable findings made in relation to the applicant's subjective case. However, the judge was also required to have regard to the statutory guideposts of a maximum penalty of 14 years and a standard non-parole period of 3 years. I am unable to conclude that the sentence, including the non-parole period, is manifestly excessive.

Ground 1: That the applicant has a justifiable sense of grievance arising out of the sentence imposed upon Lawrence Lignow for the same offence of possession of an authorised prohibited firearm.

Ground 2: The sentencing judge erred by holding "that parity does not apply".

1. Both these grounds are advanced by the applicant concerned with the parity principle. Ground 2 may be disregarded. If ground 1 is made good, ground 2 is unnecessary. If ground 1 is not established, then ground 2 serves no practical purpose.

1. Lawrence Lignow was charged with an offence concerning his possession of the shotgun. It was the same offence for which the applicant was sentenced: possession of an unauthorised prohibited firearm contrary to s 7(1) of the Firearms Act. Such an offence must be dealt with summarily unless the prosecutor elects to have the matter dealt with on indictment: s 260(2) and Part 4 of Table 2 to Schedule 1 Criminal Procedure Act 1986. For an offence against s 7(1) of the Firearms Act, the maximum penalty that may be imposed in the Local Court is imprisonment for 2 years and/or a fine of 50 penalty units: s 268(2)(e1) Criminal Procedure Act. 50 penalty units means $5,500: s 17 Crimes (Sentencing Procedure) Act 1999.

1. Mr Lignow was also charged with a large number of other offences: possession of prescribed restricted substances, contrary to the Poisons and Therapeutic Goods Act 1966 (9 offences); supply of a substance contrary to that Act; possession of cocaine (1 gram), contrary to the Drugs Misuse and Trafficking Act 1985; and receiving property stolen outside New South Wales (a set of speakers) contrary to s 189A of the Crimes Act 1900. He was also charged with possession of the applicant's rifle under both s 7A(1) and s 36(1) of the Firearms Act and not keeping a firearm safely under s 39(1)(a) of that Act.

1. Mr Lignow was convicted in the North Sydney Local Court on 22 December 2009. In each matter the presiding magistrate imposed fines ranging from $200 to $600 together with court costs of $76. The total imposition was $5,366. For each of the offences in common with the applicant, Mr Lignow was fined $250 (with court costs).

1. A variety of matters were put in mitigation by senior counsel who appeared for Mr Lignow. The magistrate said that he took them all into account but he had particular regard to the fact that Mr Lignow had no previous convictions; implicitly, that he had good prospects of rehabilitation; his early pleas of guilty; and genuine remorse. The magistrate also gave a "considerable benefit" for Mr Lignow's "considerable assistance to the authorities".

1. In relation to the firearms offences, the magistrate accepted that they were committed out of "misplaced and extravagant loyalty to friends". His Honour reproved Mr Lignow for having been "silly".

1. At the outset of the hearing before Judge Walmsley, the solicitor representing the Crown informed his Honour that Mr Lignow had been dealt with in the Local Court and that fines had been imposed. She said:

"I'd submit that parity doesn't apply as they are different charges and no strictly indictable offences and no supply prohibited drug offences" (POS 2.22).

1. Counsel for the applicant said in the course of her submissions:

"And I know my friend said parity was not [an] issue. The other gentlemen [sic] was given a $250 fine, but was not charged with exactly the same offence, as I understand it. Is that right, Madam Crown? But it was regarding the same guns."

1. The transcript records that the Crown representative responded, "Only one" (POS 54.5).

1. Clearly, his Honour was inadvertently misinformed. As indicated above, Mr Lignow was charged with precisely the same offence as the applicant concerning the shotgun. Further, he was charged in respect of both the shotgun and the rifle.

1. His Honour referred to this issue in his remarks on sentence:

[2] ... A co-offender, Mr Lignow, was dealt with in the North Sydney Local Court for the possession of unregistered firearm, goods in custody and numerous possess restricted substance charges. He was convicted and received fines for all offences and the Crown put to me, and I think correctly, that parity does not apply and that seemed to be the view of his counsel because she made no submissions on the matter. (Emphasis added.)

1. It was submitted that the applicant "has a justifiable sense of grievance arising from the extreme disparity of his punishment compared to that of Mr Lignow" (AWS p.4). Both offenders were in possession of the same firearm and were charged with the same offence. It was submitted that "the fact that Mr Lignow harboured the shotgun for the applicant does not make him any less culpable than the applicant, just as a receiver of stolen goods is no less culpable than the thief who provided the goods to the receiver".

1. Counsel for the applicant referred in written submissions to the judgment of Howie J in Jimmy v Regina [2010] NSWCCA 60; (2010) 77 NSWLR 540 ("Jimmy"):

[246] The principle, whether it is called parity or proportionality or relativity between sentences, should be applied to bring about a just result in the sentences imposed upon persons who have been engaged in the same criminal enterprise regardless of the charges that have actually been laid against the offenders. (Emphasis added.)

1. Counsel's written submissions were filed prior to the High Court of Australia giving judgment in Green v The Queen; Quinn v The Queen [2011] HCA 49; (2012) 86 ALJR 36 ("Green and Quinn"). That case was principally concerned with a Crown appeal being allowed and respondents being re-sentenced, where there was a question of the new sentence creating unacceptable disparity with the sentence imposed upon a co-offender who was not the subject of the Crown appeal. In the course of dealing with that issue there was consideration of the principle of parity in a general sense.

1. It was Mr Wendler's submission on behalf of the applicant (23.2.12 at pp 1-2) that the effect of Green and Quinn was that the "strictures of the application of the parity principle" had been relaxed and that the "focus is upon the substance, not form". The fact that persons are not strictly co-offenders is not determinative. The issue is "arriving at a just result with some flexibility".

1. Asked as to whether the applicant and Mr Lignow were engaged in the "same criminal enterprise", Mr Wendler's submission was that they both had possession of the same firearm and, although their possession was for different purposes and in different situations, "the High Court's analysis ... wouldn't stop application of the parity principle". The question was whether it was a "just result" that one man received a sentence of 2 years 6 months while the other received a fine of $250 (23.2.12 at p 3).

1. It was accepted that the applicant should not have received the same imposition as Mr Lignow received, but it was submitted that "it shouldn't have been a head sentence of two and a half years" for an offence the judge described as "low range" (23.2.12 at p.4.20).

1. When pressed as to the extent to which there should have been an amelioration of the applicant's sentence, Mr Wendler submitted that it should have been "to the extent that he should be released or capable of being released on parole immediately" (23.2.12 at 5.10) or "almost immediately" (23.2.12 at 8.36). The applicant is presently due to be released when the non-parole period for the firearm offence expires on 26 April 2012.

1. For the Crown it was submitted that there were significant differences between the circumstances of the offence in relation to each of the applicant and Mr Lignow and there were also significant differences in their personal circumstances, including that Mr Lignow had given "considerable" assistance to authorities. Further, in the applicant's case, there were the additional offences to be taken into account on the Form 1. The disparity in the sentences was justified.

1. The majority in the High Court (French CJ, Crennan and Keifel JJ) made the following observations concerning the parity principle in Green and Quinn:

[28] "Equal justice" embodies the norm expressed in the term "equality before the law". It is an aspect of the rule of law. It was characterised by Kelsen as "the principle of legality, of lawfulness, which is immanent in every legal order." It has been called "the starting point of all other liberties." It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:

"Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect." (Emphasis in original.)

Consistency in the punishment of offences against the criminal law is "a reflection of the notion of equal justice" and "is a fundamental element in any rational and fair system of criminal justice". It finds expression in the "parity principle" which requires that like offenders should be treated in a like manner. As with the norm of "equal justice", which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.

[29] General concepts of "systematic fairness" and "reasonable consistency" in sentencing, as an aspect of the administration of federal criminal justice, were discussed in Hili v The Queen. They apply to persons charged with similar offences arising out of unrelated events. The consistency they require is "consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence." That kind of general consistency is maintained by the decisions of intermediate courts of appeal. The consistency required by the parity principle is focussed on the particular case. It applies to the punishment of "co-offenders", albeit the limits of that term have not been defined with precision.

[30] In Lowe v The Queen and in Postiglione v the Queen, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged. (Footnotes omitted, emphasis added.)

1. Jimmy is authority for the proposition that the parity principle is not confined to co-offenders sentenced for "the self-same crime" and this was confirmed in Green and Quinn. The principal judgment in Jimmy was that of Campbell JA. In the course of, and following, a most extensive review of authorities in the High Court and intermediate courts of appeal, his Honour repeatedly referred to the issue being concerned with participants in a "common criminal enterprise" or the "same criminal enterprise". Howie J, who agreed with Campbell JA, used the term, "persons who have been engaged in the same criminal enterprise".

1. In Green and Quinn, the High Court was concerned with a comparison of the sentences imposed upon the appellants with the sentence imposed upon a third person, Taylor. The appellants were sentenced for cultivating a large commercial quantity of cannabis plants. Taylor was sentenced for knowingly taking part in the supply of a commercial quantity of cannabis. The majority judgment identified (at [8]) each of the three men as having been involved in "a commercial enterprise for the cultivation of cannabis plants and the production of cannabis leaf for supply".

1. In Jimmy the applicant and the offenders who were being compared, Huang and Siu, were charged with money laundering offences involving their transmission overseas of various sums of money on behalf of a man named Chen. Campbell JA explained the differences between the three offenders thus:

[204] There is no basis in the Agreed Facts for concluding that the Applicant knew of the existence of Huang or Siu. There is no basis in the Agreed Facts for concluding that the Applicant knew that Mr Chen had ever engaged another person to take money to the bank for remission to Hong Kong in parcels of less than $10,000. The period when the Applicant was taking money to the bank for Mr Chen did not coincide, or even overlap, with the periods when Siu and Huang were taking money to the bank for Mr Chen. The sums of money that the Applicant remitted to Hong Kong are different to the sums of money that each of Huang and Siu remitted to Hong Kong. Thus, the Applicant, Siu and Huang, did not commit the same crime. However, it is clear that the Applicant, Siu and Huang were all being used by Mr Chen as part of an enterprise involving the repeated commission of crimes of a similar character. That suffices, in my view, to make them participants in a common criminal enterprise. The Crown's submission that the parity principle cannot apply because they are not co-offenders in the relevant sense fails. (Emphasis added.)

1. In the present case, it is doubtful that there was a "criminal enterprise" at all, let alone one in which the applicant and Mr Lignow were both involved. Certainly, they were charged with the same offence in respect of the same shotgun. However, if one looks at "substance rather than form" (Green and Quinn at [30]), the applicant's offence was concerned with his ownership of the shotgun which he had purchased and illegally possessed for many years. Mr Lignow, on the other hand, had possession of the shotgun for 3 days in circumstances in which he was secreting it on the applicant's behalf out of "misplaced and extravagant loyalty" to a friend.

1. In these circumstances, it cannot be said, in my view, that there was a common (or the same) criminal enterprise in which each was engaged. It is as inappropriate to compare the sentences imposed on each as it was to compare the sentence imposed upon a supplier of heroin with the sentence imposed upon the offender from whom the heroin was sourced: Meager v R [2009] NSWCCA 215.

1. Even if the parity principle did apply, I am not persuaded that there can be any legitimate sense of grievance arising from the vastly more lenient outcome in Mr Lignow's case. The difference in the nature of the offences and the personal circumstances of the offenders justified a substantial difference in the sentence imposed in the applicant's case.

1. There is not merit in either of these grounds.

Orders

1. I propose that leave to appeal be granted but that the appeal be dismissed.

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Decision last updated: 19 April 2012