Horne v The Queen

[2014] NSWCCA 133

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Horne v R [2014] NSWCCA 133

Hearing dates:

15 May 2014

Decision date:

23 July 2014

Before:

Basten JA at [1];
R A Hulme J at [2];
Campbell J at [3]

Decision:

(1) Leave to appeal granted.

(2) Appeal allowed.

(3) Quash the sentence imposed in the District Court on 8th March 2013 and instead sentence the applicant to a term of imprisonment having a non parole period of 4 years and 2 months commencing on 19th February 2013 and expiring on 18th April 2017, and an additional term of 2 years and 6 months commencing on 19th April 2017 and expiring on 18th October 2019. The earliest date upon which the applicant will be eligible for parole is 19th April 2017.

(4) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the Court orders the information contained in the confidential judgment of the sentencing court delivered on 8th March 2013, the references to the evidence taken in closed court and the submissions about the subject matter of that judgment not be published.

(5) Order (4) is made on the grounds identified in paragraphs (a) and (c) of s 8 of the Act as necessary to prevent prejudice to the proper administration of justice and the safety of the applicant.

Catchwords:

CRIMINAL LAW - appeal - sentencing - discount for guilty plea - discount for assistance to authorities - whether error in calculation
CRIMINAL LAW - appeal - sentencing - parity between co-offenders
CRIMINAL LAW -appeal - sentencing - whether failure to take into account relevant considerations - remorse - delay - rehabilitation

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8
Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
Criminal Appeal Act 1912 (NSW), s 6
Criminal Case Conferencing Trial Act 2008 (NSW) (repealed), ss 4, 16, 17 and 62D
Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases Cited:

Burns v R [2010] NSWCCA 279;
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462;
JMS v R [2010] NSWCCA 229;
Lowe v The Queen (1984) 154 CLR 606;
Lowndes v The Queen (1999) 195 CLR 665;
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1;
R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415;
R v NP [2003] NSWCCA 195;
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383;
SZ v R (2007) 168 A Crim R 249;
Waterways Authority v Fitzgibbon & Ors. [2005] HCA 57; 79 ALJR 1816

Category:

Principal judgment

Parties:

Adam John William Horne (Applicant)
Regina (Crown)

Representation:

Counsel:
T A Game SC (Applicant)
S Herbert (Crown)
Solicitors:
The Law Practice (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2008/255210

 Decision under appeal 

Date of Decision:

2013-03-08 00:00:00

Before:

Woods QC DCJ

File Number(s):

2008/255210

Judgment

1. BASTEN JA: I agree with Campbell J.

1. RA HULME J: I agree with Campbell J.

1. CAMPBELL J: The applicant seeks leave to appeal from a sentence of imprisonment passed on him in the District Court of New South Wales on 8th March 2013. The term of imprisonment consists of a non-parole period of 5 years commencing on 19th February 2013 and expiring on 18th February 2018 with an additional term of 3 years commencing on 19th February 2018 and expiring on 18th February 2021.

1. The applicant's crime was supplying not less than 250 grams, a commercial quantity, of heroin, a prohibited drug, between 1st November 2008 and 2nd December 2008. This offending was contrary to the provisions of s 25(2) Drug Misuse and Trafficking Act 1985 (NSW), carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.

1. The applicant was arrested on 2nd December 2008 and held in custody for 16 days before being granted bail on 18th of December 2008. He was not arraigned in the District Court until 6th of December 2012, when he entered a plea of guilty. Notwithstanding this apparent long delay between arrest and entry of guilty plea, the Crown accepted at first instance that the plea of guilty was entered "at the earliest possible opportunity" (Tcpt 01/03/13, p 3(35)). A plea of guilty had earlier been entered in the Local Court on 13th April 2011 (see [36]-[40] below).

Explanation for delay

1. Much of the evidence against the applicant was in the form of recordings of lawfully intercepted telephone conversations. The Crown informed the sentencing Judge both on 6th December 2012, when the applicant was arraigned and again on 1st March 2013, during proceedings on sentence, that there had "always" been an indication from the applicant that he would enter a plea of guilty, but the delay was due to the difficulty "in quantifying the actual amount of drugs that the Crown [said] he was liable for" (Tcpt p 3(40)). This calculation required police officers to conduct a thorough analysis of all that had been recorded for the purpose of estimating quantities discussed as being supplied, which was time consuming.

1. I am not suggesting that anyone has been less than frank, but this cannot provide the whole explanation as that process was apparently completed prior to a co-offender, Mr Shellabear, being sentenced on 16th December 2011.

1. The applicant was represented throughout the period and part of the delay, perhaps only the additional period of delay, may relate to negotiations on behalf of the applicant about the agreed facts forming the basis for his plea of guilty, and also over an issue of particular significance in this appeal, the degree of benefit he would obtain in return for assistance he provided to law enforcement agencies in respect of other, unrelated offending. I will return to this point.

The facts relevant to the applicant's offending

1. The relevant facts were succinctly set out in the sentencing judge's reasons (ROS 1-3) in the following terms:

Horne and others were involved in a heroin distribution network around the Rozelle area. Horne was the local manager of the syndicate, although no doubt there were others above him in the network to whom he would pass on the profits from sales.

Police surveillance showed that Horne would regularly attend at the house of John Shellabear and regularly pick up money proceeds of sales from Shellabear. Shellabear packed the heroin into balloons, which were sold on the street. The most commonly used quantity was 0.2 of a gram, selling it for $100.

Shellabear employed a driver whom he would direct to various locations to make deliveries. Various runners and assistants were employed by Shellabear, although sometimes Shellabear would do the deliveries himself.

The delivery run took place from about midmorning until 9pm or so, mainly in and around the Rozelle and Balmain area.

The payments for the deliveries would go to the runners, thence to Shellabear, then to Horne once Shellabear's own costs had been met.

The activities of the offender Horne involved him in supplying 250 grams of heroin between the dates set out in the indictment - a period of just over one month. The actual quantum supplied is the minimum for designation as a "commercial" quantity, but I regard the structure of the overall operation as more significant than the actual amount attributed to the offender. Of course, I bear in mind the principle against double punishment but it is impossible to isolate the actual quantity specified from the broader picture of Horne's role in the network.

There were roughly eighty regular customers for the heroin.

The role played by Horne, particularly in his relationship with Shellabear, is revealed in various intercepted conversations, some of which are set out in exhibit SA. For example, on 5 November, Shellabear says: "...that stuff's tops". Horne says: "Yeah, we will sell it". Shellabear says: "Yeah, I am selling it". Horne says: "Put some brown with it, sell it, put some brown with it". (The "brown" was heroin sourced from Afghanistan.)

....

Again, for example, on 22 November 2008, a conversation at Shellabear's unit was recorded where Horne says, "I guesstimate I have a hundred grand in stock, so that puts me two grand in front..."

Horne worked closely with Shellabear in the operation. On the afternoon of the 22nd, there was another conversation at the Terry Street unit where there was talk about supplying some amount of heroin to a person called Doug - a runner or user or both. Horne says: "What's uggy Dougy usually have... an ounce?" Shellabear says" "Oh mate, just make him fucking one of each, three points".

Horne is present when or soon after "Dougy" injects himself: "How's that feel mate?" Doug says: "Oh, clean ... it felt the same going in ... Nice, yeah, nice."

Horne and Shellabear were arrested simultaneously on 2 December 2008.

The applicant's personal circumstances

1. The applicant was born on the 23rd of May 1978, making him 30 years old at the time he offended and 34 when he was sentenced. He had no criminal record. The sentencing Judge accepted he was genuinely contrite. This finding was based upon the view the sentencing Judge formed of the significance of the guilty plea; the assistance given to authorities; the evidence of a character witness (John Chalk) who was a local businessman and respected member of the community; and the evidence of the applicant's wife. The character witness gave evidence that the applicant was regretful.

1. From the evidence of the character witness, the applicant's wife and Mr Watson-Munro, a psychologist, the sentencing Judge accepted that the applicant had a sad, difficult and disrupted childhood. There were difficulties with his parents. His father was a shift worker and his mother was an absent alcoholic who abandoned him when the applicant was two and a half years of age. Because of the trouble with his parents, his grandparents took him in at that early age.

1. The applicant had a good record of work as a merchant seaman. When he offended, apparently, he was in a financial position to live off his investments. He and his wife had been together for 13 years and had one child. Since his release on bail, the applicant had been working in the business of his father-in-law, which work would be available to him upon his release from prison.

1. Good family support, a strong marriage, the prospect of employment upon release, and his genuine remorsefulness indicated to the sentencing judge good prospects of rehabilitation. But his Honour was not persuaded by the evidence of Mr Watson-Munro, and a specialist neurologist, that the applicant was suffering from a significant brain injury or any relevant mental illness.

Assistance to the authorities

1. Part of the proceedings on sentence on 1st March 2013, were conducted in a closed Court. Oral evidence was called, exhibits tendered and argument addressed to the assistance the applicant had rendered authorities. I have carefully read the confidential exhibits, the transcript of proceedings, and the sentencing judge's supplementary confidential judgment on sentence regarding this matter.

1. The assistance supplied by the applicant related to the exposure of a corrupt public official. The applicant gave evidence at a commission of inquiry and provided a statement to police, but there was some delay in signing the statement. This delay was the subject of some debate before the sentencing judge and on appeal.

1. When the statement was eventually signed the applicant received an indemnity in respect of other offending involving the corrupt official.

1. It is clear from the confidential exhibits that the applicant attempted to negotiate a definite and agreed advantage relating to this present offending, which the law enforcement authorities refused. Those negotiations explain why the applicant delayed signing his witness statement and providing the undertaking he eventually gave to give evidence. No doubt he was attempting to use these considerations to his advantage in his dealings with the law enforcement agencies involved.

1. As a result, at least partially, of the applicant's assistance, including signing the statement and undertaking to give evidence, the corrupt official pleaded guilty. No trial was necessary and no future assistance is expected, or required.

Reasons for sentence

1. Notwithstanding the brief period covered by the applicant's offending, the sentencing judge found the charge to be serious "justifying nothing other than a significant sentence of imprisonment". It was planned criminality and the applicant's involvement called for an emphasis on both specific and general deterrence in the form of a "substantial prison sentence". The mitigating factors including the difficulties of the applicant's childhood "[do] not justify or even explain serious and socially damaging misconduct of this kind".

1. As I have previously recorded, the sentencing judge found that the applicant was the local manager of the heroin distribution network, he was not the principal, but he was senior to the identified co-offenders, including in particular Mr Shellabear. The other identified co-offenders were Rhook, who seemed to be the applicant's lieutenant, McGann, Hannah, Loule and Hunter. The latter four were "runners" in the operation and had received lesser sentences.

1. The sentencing judge found, at least implicitly, that the applicant's motivation for engagement in the enterprise was greed. However, he "was not the ultimate recipient of the lion's share of the proceeds". He "funnelled" profits to those above him. His Honour found there was no evidence of any grand lifestyle nor accumulated assets from his offending.

Parity

1. The sentencing Judge found that Shellabear was the most relevant comparator for parity purposes. He had been sentenced by Blanch J, CJDC, in December 2011. His offending involved a larger amount, 600 grams and he was involved for a longer period. Blanch J sentenced Shellabear on the basis that the applicant was running the operation. Part of Shellabear's involvement was explained by the need to feed his own addiction. He had remained in custody since his arrest and had already undertaken a number of courses which demonstrated remorsefulness and insight, supporting a finding that the prospects of rehabilitation were reasonable.

1. Shellabear's plea was regarded as "early" on the same basis as the applicant's. He was imprisoned for 8 years with a non-parole period of 5.

1. In assessing the question of parity, the sentencing judge did not mention the greater quantity of drugs or longer period of offending in the case of Shellabear.

Findings as to assistance

1. On the evidence received in the closed Court, the sentencing judge was satisfied that the applicant had discharged the burden of engaging s 23 Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act). His Honour accepted the applicant gave a belated, but significant undertaking to give evidence; he was legitimately fearful for his life; notwithstanding the delay in signing his statement, his co-operation "was real and significant"; and his assistance "was beneficial in securing a guilty plea" from the corrupt public official.

1. His Honour indicated that but for the guilty plea and assistance he would have imposed a head sentence of imprisonment of 13 years. He allowed "a combined discount of approximately 38 per cent" reducing "the hypothetical sentence" from 13 years to 8. He apportioned that reduction of 5 years between the plea and the assistance in terms of 2 years and 9 months for the former, and 2 years and 3 months for the latter.

1. The confidential judgment also recorded a finding of special circumstances based upon the combination of considerations that this was the applicant's first time in prison and the likelihood that his imprisonment would be harsher than usual because of his assistance.

1. As the applicant's submissions point out, his Honour's apportionment represents a discount of 21 per cent for the plea, and 17 per cent for the assistance. This was contrary to an indication his Honour had given during the proceedings that he would "allow him 25 per cent discount for the plea of guilty" Tcpt p12(20) -(25).

Grounds of appeal

1. The applicant raised the following grounds of appeal:

Ground 1: In providing a discount on sentence as a consequence of the applicant's plea of guilty and assistance to the authorities his Honour erred:

(a) in failing to provide a discount for the utilitarian value of the early plea of guilty; or,

(b) in the alternative, providing an inadequate discount for the utilitarian value of the plea by including a component for the applicant's contrition and his assistance in the administration of justice.

Ground 2: The nominated combined discount of 38% for the applicant's plea of guilty and assistance to the authorities was inadequate.

Ground 3: His Honour erred in failing to properly take into account:

(a) The applicant's genuine remorse;

(b) The relevance of the extensive delay in finalising proceedings; and

(c) The evidence of the applicant's rehabilitation.

Ground 4: His Honour erred in concluding that the appropriate sentence, but for the plea and the promised assistance, should have been imprisonment for 13 years.

Ground 5: The sentence imposed upon the applicant is manifestly excessive.

1. Although not so expressed, Ground 4 was argued as "a parity point".

Grounds 1 and 2 - the combined discount

1. The applicant argued these grounds more or less together. The essential points made on behalf of the applicant were that it was not clear that his Honour allowed an explicit discount for the "utilitarian value of the plea" given his reference to "genuine contrition and some assistance to the administration of justice". The latter concept is said to have been derived from s 22A Sentencing Procedure Act dealing with conduct different from the entry of a plea; it was wrong to include an express discount for the considerations of contrition or remorse; and the discount was less than his Honour had indicated during argument, leading to practical injustice.

1. Concerning ground 2, the applicant submitted that in the light of the sentencing Judge's other findings, if the discount for the utilitarian value of the plea should have been 25 percent, the combined discount should have been greater than 38 percent.

1. The Crown argued that his Honour's approach was consistent with the legislation; that if one made the stated discount for assistance first and then a discount for the plea, the reduction for the plea could be seen to be "slightly more than 25 percent". The Crown seemed to accept that his Honour had included the element of contrition in the stated combined discount. In the alternative, it was argued, that the indication given during argument of 25 percent for the plea was "generous" and there was no practical injustice in the sentencing Judge moderating that view in the sentence actually passed.

1. Section 22 Sentencing Procedure Act provides for a discount for a plea of guilty. The principles arising out of R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 and subsequent cases are conveniently summarised by Howie J in R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32]. Relevantly for present purposes they include that the actual discount for the utilitarian value of a plea is determined largely by its timing; and that there is no component in the discount for remorse, nor is there to be a separately quantified discount for remorse. At point 9 of [32] of his Honour's summary, Howie J said (omitting citations):

The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain; or where the offender is waiting to see what charges are ultimately brought by the Crown; or the offender has delayed the plea to obtain some forensic advantage; such as having matters put on a Form 1.

However, as explained at below (at [36]-[42]), these principles do not apply to this case.

1. It was permissible for the sentencing judge to arrive at a combined overall discount: R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415 at [11] per Basten JA; at [35] per Adams J. Reductions in sentence for assistance to the authorities are dealt with by s 23, Sentencing Procedure Act, the provisions of which, of course, must be complied with. However, as Basten JA pointed out at [11]:

........the inference (implicit though not expressed) that it is incorrect to add the discounts, so as to achieve a single global figure applied to the sentence which would otherwise have been imposed, should not be assumed without demonstration. No authority or statutory support for the adoption of one approach rather than another was relied on in the cases noted above. Nor does s 23 necessarily require either process to the exclusion of the other. For example, for the Court to state the penalty which it would "otherwise have imposed" no doubt refers to the appropriate penalty disregarding only the assistance to authorities. It says nothing as to the manner in which the discounting is to be achieved. Indeed, on one view, the manner in which it is achieved is irrelevant: the selected reduction can be expressed in a number of different ways, none of which is prohibited.

The Crown's argument that if his Honour were taken to have applied a separate discount for the guilty plea, and after the discount for assistance, the discount for the plea is 25 per cent should be rejected. If a sentencing Court decides to give effect to s 22 and s 23 separately, rather than in combination, a common practice is to apply the discount for the plea of guilty first: R v NP [2003] NSWCCA 195 at [30] per Hodgson JA and at [47] per Simpson J; SZ v R (2007) 168 A Crim R 249 at [9] - [11] per Howie J; Ehrlich at [70] per Johnson J (albeit in dissent). Ehrlich establishes that no one approach is to be preferred.

1. After judgment was reserved, the Court directed the Registrar to write to counsel drawing their attention to the provisions of the Criminal CaseConferencing Trial Act 2008 (NSW) ("the 2008 Act"), repealed on 13 March 2012 but with a continued limited operation under Schedule 2, cl 62D(1) of the Sentencing Procedure Act, which states:

62D Continued operation of sentencing discount arrangements

(1) Part 4 (Sentences-guilty pleas) of the repealed Act continues to apply (as if it had not been repealed) to and in respect of the sentencing of an offender on or after the repeal date in proceedings for an offence to which the repealed Act applied immediately before the repeal date ....

1. In supplementary submissions, the parties acknowledged that the 2008 Act applied, and continues to apply, to these proceedings. However, its provisions were not drawn to the attention of the sentencing judge by counsel appearing on the proceedings on sentence, nor referred to in his Honour's reasons.

1. In cases to which it applies, ss 16 and 17 of the 2008 Act provided for the allowance of a discount on sentence for a guilty plea. These sections provided, so far as is relevant:

16 Sentencing for certain indictable offences taking into account guilty plea

(1) In passing sentence for an indictable offence on an offender who has pleaded guilty, a sentencing court:

(a) must indicate to the offender, and make a record of, the penalty it would have imposed but for the guilty plea, and

(b) must allow a discount on the sentence for the guilty plea in accordance with section 17(1) and may allow a discount in accordance with section 17(2) or (4).

(2) A discount for a guilty plea, in relation to an offence, means a discount for:

(a) the saving in resources and time that would otherwise be expended in a trial for the offence but for the guilty plea, and

(b) the avoidance of the additional trauma to the victim that might be caused by a trial for the offence, and

(c) the contrition that the sentencing court considers that the offender demonstrates by pleading guilty, and

(d) any other benefit associated with or demonstrated by the guilty plea.

...

(8) Sections 21A (3) (k) and 22 of the Crimes (Sentencing Procedure) Act 1999 do not apply to the passing of a sentence to which this section applies.

(9) A discount for a guilty plea is not to exceed the applicable limits provided in section 17.

17 Discount for guilty plea

(1) If an offender pleaded guilty to an offence at any time before being committed for sentence, the sentencing court must allow a discount for the guilty plea calculated as follows:

(a) if the court imposes a sentence of imprisonment for a term-a term that is 25% less than the term the court would otherwise have imposed....

1. Both parties accepted that s 17(1)(a) left no room for discretionary reduction in the amount of the discount allowable: a discount of 25% was fixed by the express terms of the statute and was mandatory. Further, there was no error in referring to contrition as an element of the discount: s 16(2)(c).

1. The Act applied to this case because, as JusticeLink records, a plea of guilty was accepted in the Downing Centre Local Court on 13th April 2011, and on that day an order was made committing the applicant for sentence in the District Court. By s 4 of the 2008 Act, it applied only to indictable offences for which committal proceedings were heard in the Local Court sitting at the Downing Centre, Sydney, and Central, Sydney.

1. His Honour's expression of the discount for the guilty plea as in part "representing ... genuine contrition" was perfectly proper, even if he did not expressly refer to the 2008 Act. As defined by s16(2) of the 2008 Act a discount for a guilty plea extended to contrition, and Borkowski did not apply. A consideration of his sentencing reasons as a whole shows that his Honour must have had the provisions of ss 16 and 17 in mind. However, by dint of s 17, the sentencing judge was required, in the circumstances of this case to allow a 25 percent discount and he did not do so. It is clear from his reasons that his Honour allowed only a 21 percent discount "attributable to the plea of guilty". The Crown argument that the judgment can be construed as making an allowance for a discount of 25 percent should be rejected. As the sentencing judge "was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording steps that were in fact taken in arriving at that result": Waterways Authority v Fitzgibbon & Ors. [2005] HCA 57; 79 ALJR 1816 at [130] per Hayne J. Given what is made explicit in his Honour's reasons no question of construction arises. Moreover, contrary to the argument on behalf of the Crown, given the requirements of the statute, no question about a 25 percent discount being "generous" can arise.

1. It follows that Ground 1 has been made out.

1. It is not necessary to address the argument that fixing a discount less than that indicated in argument involved procedural unfairness.

1. The applicant's complaint about the discount allowed for assistance to authorities is largely consequential upon the error (which I accept) in relation to the discount for the plea of guilty. Once it is recognised that the sentencing Judge allowed 21 percent and not 25 percent, the total permissible discount should have been higher. Assuming for the moment that a discount equivalent to 17 percent of the notional starting sentence was warranted for assistance then the total discount in real terms ought to have been 42 percent.

1. The Crown relied upon the passage from SZ referred to above. The Crown also pointed to the delay in the applicant providing his signature to the statement and his undertaking to give evidence, and to the benefit he otherwise received by way of indemnity, to argue that a combined discount of 38 percent was appropriate. No error was disclosed.

1. I accept that there was no error in an additional discount in the order of 17 percent for assistance, however, in my judgment that factor should have been added to the appropriate discount of 25 percent for the plea of guilty to produce a combined discount of 42 percent.

Ground 3

1. This ground relates to an argument that in carrying out the necessary instinctive synthesis, the sentencing judge failed to have regard to genuine remorse, delay in finalisation of the proceedings and evidence of the applicant's rehabilitation. As I understood the argument the complaint about delay as a separate consideration was pressed but diffidently in this Court. However, the Judge referred to delay and may be taken to have given it some weight. Moreover, to some extent, the delay worked to the applicant's forensic advantage and enabled him to negotiate the indemnity in respect of the other offending in exchange for his assistance; and allowed him to be sentenced on a more favourable basis than his main co-offender by virtue of the identification by the prosecution of his reduced involvement in terms of amount and period.

1. His Honour did have regard to remorse and rehabilitation: he accepted the evidence of Mr Chalk that the applicant was regretful and had demonstrated a change in attitude; that his remorse was genuine; and that he had good prospects of rehabilitation. There is no reason to suppose that his Honour did not give some weight to each of these matters in the necessary instinctive synthesis. The question of what weight to give is generally a matter for the sentencing court rather than this Court. I would reject Ground 3.

Ground 4 - parity; ground 5 manifest excess

1. The ground of appeal as formulated does not refer to the principle of parity, but it is clear from the written and oral argument that this is the gravamen of the applicant's complaint.

1. At the sentencing (Tcpt p 23(5)-(25)) and on appeal, it was argued that, on balance, there was no real distinction between Shellabear and the applicant and accordingly that the starting point for the sentence imposed upon Shellabear by Blanch J of about 10 years and 4 months, should have applied to the applicant.

1. Reference was also made to Fong v R [2011] NSWCCA 283; JMS v R [2010] NSWCCA 229; and Burns v R [2010] NSWCCA 279. Taken together, these decisions were said to demonstrate that his Honour's starting point of 13 years was plainly unreasonable.

1. The Crown argued that the degree of differentiation in the commencing point for the sentences of the applicant as opposed to Mr Shellabear was justified on the basis of the applicant's superior role in the drug syndicate. This finding was as well open to the sentencing judge, as it had been to Blanch J in the case of Shellabear. The Crown reminded the Court of the importance of the principle discussed in Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15] that mere disagreement with the sentence imposed below does not justify the appellate court's intervention.

1. For present purposes, it is sufficient to say that the parity principle requires that like offenders should be treated in a like manner. But it "allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances": Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at 473 [28] per French CJ, Crennan and Kiefel JJ. It was open for the learned sentencing Judge to find that the applicant was superior to Shellabear in the drug syndicate. It is true, that he did not expressly refer to the evidence of Shellabear's greater involvement in terms of quantity and time, and that those factors may have been relevant differences in culpability which would have justified treating them alike for the purpose of fixing a starting point. But this consideration did not demand it, and the applicant's "higher level" of involvement of itself justified differentiation between them notwithstanding all else that could be said in favour of one, or the other, going to culpability and personal circumstances.

1. I do not think parity demanded adopting the same notional starting point. But the considerations that they were both "actively hands on" in the operation, and the applicant was not the ultimate recipient of the lion's share of the proceeds, when examined in the light of Shellabear's greater involvement persuade me that there is disparity in the selection of the respective notional starting points, which 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": Lowe v The Queen (1984) 154 CLR 606 at 609 - 610 per Gibbs CJ. In coming to this conclusion, I have referred to what I regard as objective criteria. I do not regard the degree of difference in the starting points in this case as justified by differences between the applicant and Shellabear. Save for Shellabear's involvement to feed his drug habit, which may be an explanation for his offending rendering it somewhat less culpable than naked greed, such differences as there are between them in terms of subjective circumstances might generally be taken to favour the applicant.

1. The applicant's more senior level of involvement justified a higher starting point than that adopted in respect of Shellabear, but not as high as that selected by the learned sentencing Judge which was more than 2 years and 6 months higher than Shellabear. I am satisfied that Ground 4 has been made good.

1. Given that there are identifiable appellable errors in his Honour's approach, it is unnecessary to consider whether the sentence passed is otherwise manifestly excessive as asserted by Ground 5.

Re-sentence

1. As I have accepted the sentencing Judge made errors as asserted in Ground 1 and Ground 4, it is necessary to consider whether any other sentence is warranted in law: s 6(3), Criminal Appeal Act 1912 (NSW). Once it is accepted that there are errors of principle giving rise to disparity between the applicant and Shellabear, and in the sentencing judge's approach to the discount that should have been applied for the plea of guilty, it seems to me well nigh inevitable, that on the facts as found by the sentencing Judge some other and lesser sentence should have been imposed.

1. For my part I would make all of the findings of fact made by the sentencing Judge as set out above, but I would adopt a notional starting point of 11 years 6 months for the applicant, rather than the 10 years and 4 months apparently adopted for Shellabear by Blanch J. This difference, I think appropriately reflects the differences in culpability and circumstances between them flowing mainly from the applicant's more senior role in the syndicate.

1. From this starting point of 11 years and 6 months, I would make a combined discount in real terms of 42 percent, 25 percent referable to the plea of guilty in the Local Court and 17 percent, as assessed by the sentencing Judge, for assistance to law enforcement authorities.

1. Allowing the 25 percent discount for the utilitarian value only of the plea of guilty would produce a term of around 8 years and 8 months before the application of s 23, Sentencing Procedure Act. In accordance with s 23(4), I propose to impose a lesser penalty because the offender has assisted law enforcement authorities. Given the corrupt official's plea of guilty, no question arises in the present case about future assistance. As I have said, the discount I intend to allow is 17 per cent of my notional starting point. In broad terms this equates to a reduction of about 2 years. In my judgment this lesser penalty is not unreasonably disproportionate to the nature and circumstances of the offence in accordance with the findings of the sentencing Judge which I have adopted, for the purpose of s 23(3), Sentencing Procedure Act.

1. His Honour's finding of special circumstances was based upon a combination of factors being that this is his first time in custody, and the harsher conditions in which the applicant will serve his sentence. Each of these matters has been taken into account elsewhere. The fact that this is the applicant's first time in custody, by implication, may have been taken into account in extending some leniency on the basis of his good character as evinced by the absence of any prior criminal convictions. The harsher conditions in which he will serve his time of imprisonment may be implicitly recognised by the discount provided for assistance to authorities. Double counting, of course, should be avoided: R v Fidow [2004] NSWCCA 172 at [18]. It is for this reason I have emphasised the combination of circumstances.

1. To the factors found by the sentencing Judge I would add the progress already made by the applicant towards reform and rehabilitation and the good prospects of that continuing if he is released on parole.

1. The sentencing Judge applied a ratio of 62.5 percent in the sentence imposed by him. I agree that that ratio is appropriate.

1. I have given earnest consideration to the question of whether the non-parole component of the sentence I propose is disproportionate to the applicant's offending and I am satisfied that it is not. Fong (and his co-offenders Chow and Wong), JMS, and Byrnes are comparable prior sentences which provide something of a yardstick. Applying it to the present case, I do not regard the non-parole period I have proposed as disproportionate: for what it is worth, the various offending in those cases seems worse than this case, and the circumstances of the offenders less compelling. I accept the sample is too small to demonstrate anything in the nature of a trend, but the range of non-parole periods actually imposed on six offenders whose sentences are discussed in those cases is 3 to 5 years.

1. I would fix a non-parole period 4 years and 2 months with an additional term of 2 years and 6 months. The total term is 6 years and 8 months.

1. The orders I propose are:

(1)   Leave to appeal granted.

(2)   Appeal allowed.

(3)   Quash the sentence imposed in the District Court on 8th March 2013 and instead sentence the applicant to a term of imprisonment having a non parole period of 4 years and 2 months commencing on 19th February 2013 and expiring on 18th April 2017, and an additional term of 2 years and 6 months commencing on 19th April 2017 and expiring on 18th October 2019. The earliest date upon which the applicant will be eligible for parole is 19th April 2017.

(4) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the Court orders the information contained in the confidential judgment of the sentencing court delivered on 8th March 2013, the references to the evidence taken in closed court and the submissions about the subject matter of that judgment not be published.

(5) Order (4) is made on the grounds identified in paragraphs (a) and (c) of s 8 of the Act as necessary to prevent prejudice to the proper administration of justice and the safety of the applicant.

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Decision last updated: 23 July 2014