Jimmy v R - [2010] NSWCCA 60

No judgment structure available for this case.

Reported Decision: 269 ALR 115240 FLR 27240 FLR 2777 NSWLR 540

New South Wales

Court of Criminal Appeal

CITATION: JIMMY v REGINA [2010] NSWCCA 60

HEARING DATE(S): 17 November 2009

JUDGMENT DATE:
9 April 2010

JUDGMENT OF: Campbell JA at 1; Howie J at 244; Rothman J at 252

DECISION: Leave to appeal granted.
Appeal dismissed.

CATCHWORDS: PROCEDURE - precedents - decisions of particular courts - review of court's previous decisions - effect of Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 and Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 in relation to when a court may depart from its own previous decisions - CRIMINAL LAW - SENTENCE - relevant factors - the parity principle - the types of people whose sentences can be compared under the parity principle - parity between co-offenders - parity between participants in a criminal enterprise - CRIMINAL LAW - APPEAL AND NEW TRIAL - appeal against sentence - grounds for interference - the parity principle - CRIMINAL LAW - particular offences - financial transaction offences - money laundering

LEGISLATION CITED: Australian Constitution
Canadian Charter of Rights
Crimes Act 1900
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Code Act 1995 (Cth)
Customs Act 1901 (Cth)
Drug Misuse and Trafficking Act 1985
Financial Transaction Reports Act 1988 (Cth)
Misuse of Drugs Act 1981 (WA)
Proceeds of Crime Act 1987 (Cth)
United States Constitution

CASES CITED: Alex Mihailovic v The Queen (High Court of Australia, 3 February 1994, noted [1994] 1 Leg Rep page C3)
Andrews v Law Society of British Columbia [1989] 1 SCR 143
Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
Bowtell v The Queen [2004] NSWCCA 17
Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49
CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
El Hassan v The Queen [2003] NSWCCA 252
Ellis v The Queen (1993) 68 A Crim R 449
Em v The Queen [2006] NSWCCA 336
Farah Constructions Pty Ltd v Say Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
FS v R [2009] NSWCCA 301
Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504
HAN, Zhi Qiang v R [2009] NSWCCA 300
Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330
Hudson v The Queen [2009] NSWCCA 59
John v Federal Commissioner of Taxation (1989) 166 CLR 417
Jones v The Queen (1993) 67 ALJR 376
Jones, (NSWCCA, 16 April 1992, unreported)
Kardoulias v The Queen [2005] NSWCCA 456; (2005) 159 A Crim R 252
Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337
Kauwenberghs v The Queen [2008] NSWCCA 98; (2008) 186 A Crim R 197
Krakouer v R [1999] WASCA 147; (1999) 107 A Crim R 408
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Markisic v Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737
Melikian v The Queen [2008] NSWCCA 156
Native Title Act Case (1995) 183 CLR 373
OM v The Queen [2009] NSWCCA 267
Osman v The Queen [2008] NSWCCA 157
Pham v The Queen [2009] NSWCCA 25
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Queensland v The Commonwealth (1977) 139 CLR 585
R v AAH & AAG [2009] QCA 321
R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555
R v Armstrong [2001] NSWCCA 77
R v Arnold (1993) 30 NSWLR 73
R v Christie [2000] NSWCCA 354
R v Diamond (NSWCCA, 18 February 1993, unreported)
R v F (2002) 132 A Crim R 308
R v Formosa [2005] NSWCCA 363
R v Gibson (1991) 56 A Crim R 1
R v Guzman [2000] NSWCCA 261
R v Holder [1983] 3 NSWLR 245
R v Howard (1992) 29 NSWLR 242
R v Huang; R v Siu [2007] NSWCCA 259; (2007) 174 A Crim R 370
R v Isamunadar [2002] NSWCCA 477; (2002) 136 A Crim R 206
R v Johns [1978] 2 NSWLR 259
R v Johnson [2005] NSWCCA 186
R v Jurisic (1998) 45 NSWLR 209
R v Kerr [2003] NSWCCA 234
R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274
R v Mai (1992) 26 NSWLR 371
R v Nguyen [2005] NSWCCA 362; (2005) 157 A Crim R 80
R v Salameh (NSWCCA, 9 June 1994, unreported)
R v Shepherd [2003] NSWCCA 287; (2003) 142 A Crim R 101
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531
R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Tiddy [1969] SASR 575
R v Underwood [2005] VSCA 80
R v Wall [2002] NSWCA 42; (2002) 71 NSWLR 692
Rend v The Queen [2006] NSWCCA 41; (2006) 160 A Crim R 178
Rexhaj (NSWCCA, 29 February 1996, unreported)
Sharpe v The Queen [2002] NSWCCA 96
Shen v R [2009] NSWCCA 251
Slaughter- House Cases, 83 U.S. 36 (1873)
Stanton v The Queen [2008] NSWCCA 326
Sumner v R (1985) 19 A Crim R 210
Tatana v R [2006] NSWCCA 398
Thorley (NSWCCA, 5 February 1991, unreported)
Tuifua v The Queen [2008] NSWCCA 224; (2008) 189 A Crim R 1
United States v Virginia, 518 U.S. 515 (1996)
Watson v The Queen (NSWCCA, 25 February 1992, unreported)
Woodgate v R [2009] NSWCCA 137
Wurramarbra v The Queen (1979) 28 ALR 176; 1 A Crim R 291
Xue v R [2009] NSWCCA 227

TEXTS CITED: Ethica Nichomacea, trans. W. Ross, Book V3

PARTIES: Jimmy JIMMY (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/3043

COUNSEL: S Wilkinson; M Breeze (Applicant)
L Crowley (Crown)

SOLICITORS: Lloyd Truman Sadiq Solicitors (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/0156

LOWER COURT JUDICIAL OFFICER: Syme ADCJ

LOWER COURT DATE OF DECISION: 19 September 2008

TABLE OF CONTENTS

Para No:

CAMPBELL JA 1

PART A – THE FACTUAL BACKGROUND

The Offence Charged 3

Objective Circumstances of the Crime 5

Subjective Matters 19

The Sentence 24

The “Co-Offenders” 27

Siu 28

Huang 31

PART B – SUBMISSIONS

The Applicant’s Submissions

Co-Offenders 47

Differences Between the “Co-Offenders” 49

The Crown Submissions on Disparity 52

PART C – BETWEEN WHOM DOES THE PARITY PRINCIPLE APPLY?

High Court Authority 53

Lowe 54

Jones 62

Postiglione 64

Intermediate Appellate Court Authority 74

Sumner 75

Gibson 78

Howard 83

Ellis 89

Wurramarbra 103

Watson 104

Krakouer 107

Kerr 109

Formosa 119

Returning to Kerr 124

Araya 131

Kardoulias 141

Nguyen 142

Rend 159

Pham 161

Woodgate 171

Shen 173

OM 180

Huang and Siu 196

Three Cases the Applicant Relies On 197

The Queensland View of Proper Scope of Parity Principle 198

Is this a Type of Case to Which the Parity Principle Could Never Apply? 200

Application to Facts 204

PART D – OTHER ASPECTS OF THE “PARITY” APPEAL

Different Sentences Justified? 207

PART E – THE NON-PAROLE PERIOD 225

Order 243

HOWIE J 244

ROTHMAN J 252

Equal Justice and Parity 254

Parity of Charging 267

**********

CCA 2008/3043

CAMPBELL JA
HOWIE J
ROTHMAN J
9 APRIL 2010

Jimmy JIMMY v Regina

Judgment

: This appeal against sentence originally invoked a single ground of appeal, namely:

“The sentencing process resulted in a miscarriage of justice because the applicant has been left with a justifiable sense of grievance due to the disparity in the sentence imposed upon the applicant and those sentences imposed upon the co-offenders SIU and HUANG.”

2 In the course of argument, leave was granted to add an additional ground, namely:

“Her Honour erred in setting a non-parole period at two-thirds of the head sentence, because it conflicts with her Honour’s assessment of a 60 per cent non-parole period as appropriate.”

PART A – THE FACTUAL BACKGROUND

3 The Applicant pleaded guilty to a single charge of money laundering under section 400.4(1) Criminal Code Act 1995 (Cth). So far as relevant, it provides:

“(1) A person is guilty of an offence if:

(a) the person deals with money …; and

(b) either:

…

(ii) the person intends that the money … will become an instrument of crime; and

(c) at the time of the dealing, the value of the money … is $100,000 or more.”

4 The penalty for that offence is imprisonment for 20 years, or 1200 penalty units, or both. Section 4AA Crimes Act 1914 (Cth) fixes the value of a penalty unit at $110. Thus, the maximum monetary penalty is $132,000.

5 The “dealing with money” to which the charge related involved 27 occasions in the period 26 November 2003 to 11 February 2004 when the Applicant took a sum of cash to a bank and arranged for it to be transferred to a bank account in Hong Kong. On each occasion the amount transferred was, deliberately, less than $10,000. The total amount remitted was $243,952.

6 The manner in which it was contended that the Applicant intended that the money would become an instrument of crime was through breach of section 31 of the Financial Transaction Reports Act 1988 (Cth). Subsection 31(1) provides:

“A person commits an offence against this section if:

(a) the person is a party to 2 or more non-reportable cash transactions; and

(b) having regard to:

(i) the manner and form in which the transactions were conducted, including, without limiting the generality of this, all or any of the following:

(A) the value of the currency involved in each transaction;

(B) the aggregated value of the transactions;

(C) the period of time over which the transactions took place;

(D) the interval of time between any of the transactions;

(E) the locations at which the transactions took place; and

(ii) any explanation made by the person as to the manner or form in which the transactions were conducted;

it would be reasonable to conclude that the person conducted the transactions in that manner or form for the sole or dominant purpose of ensuring, or attempting to ensure, that the currency involved in the transactions was transferred in a manner and form that:

(iii) would not give rise to a significant cash transaction; or

(iv) would give rise to exempt cash transactions.”

7 Section 31(2) is in identical terms, save only that para (a) is replaced by:

“the person conducts 2 or more non-reportable transfers of currency; and”

8 A “significant cash transaction” is defined in section 3 of the Financial Transaction Reports Act as being a “cash transaction involving the transfer of currency of not less than $10,000 in value.”

9 All except 4 of the 27 transactions involved related to an amount of $9,000 or greater, but less than $10,000. The 4 exceptions lay in the range $7,000 to $8,500.

10 On 26 November 2003 the Applicant engaged in three such transactions. He also engaged in three such transactions on 11 February 2004. He engaged in two such transactions on each of 27 and 28 November 2003, and 1, 2, 5 and 19 December 2003. He engaged in four such transactions on each of 9 January 2004 and 3 February 2004. He engaged in a single transaction of this type on each of 17 December 2003 and 2 February 2004.

11 The transactions were carried out at nine different bank branches, of which seven were in the Sydney CBD area, one was at Glebe, and another was at Hurstville. On any day when he carried out more than one transaction, he went to a different bank branch for each of those transactions.

12 For each of the transactions except one, he used a name that was not his own. He used a total of seven different false identities. Concerning some of those transactions in assumed names, he provided false identity documents to the bank officer involved. Concerning the transaction in which he used his own name, he supplied a false address. Concerning each transaction, he placed a signature on a form that made application for the money to be transferred to the Hong Kong account, and gave the incorrect details concerning the transferor.

13 The money was remitted to five different recipients in Hong Kong. Concerning one recipient, it was remitted to three different accounts. Concerning another two recipients, it was remitted to two different accounts.

14 On 19 September 2008, Acting Judge Syme sentenced the Applicant to imprisonment for 3 years and 3 months, with a non-parole period of 2 years and 2 months.

15 The facts put before the judge were not in dispute. They included: (1) the Applicant had been arrested on 13 June 2007; (2) he was in custody from that time until his release on conditional bail on 29 August 2007, 78 days later, and (3) he pleaded guilty at the first available opportunity in the Local Court.

16 I mention here that in this Court it was not in dispute that the facts put before the judge were wrong in one respect. In fact, the Applicant was released on conditional bail on 22 August 2007, and thus had 71 days in gaol between his arrest and release on bail.

17 The activities of the Applicant were part of a much larger money laundering operation that was organised in Australia by a Mr Peter Chen. The judge found that there was no evidence that the Applicant had any knowledge that the money was the proceeds of illegal activity on the part of Mr Chen. The judge also found that the Applicant knew that the activity he himself was carrying out was illegal.

18 The Applicant gave evidence at the time of sentencing that he agreed with Mr Chen that for every $10,000 he remitted he would be paid $80. That would have given him a total fee of $1,920 (if the agreement means that no fee was payable if only part of $10,000 was remitted) or about $1,952 (if the agreement means that he was paid a pro rata fee per dollar remitted). The judge said in her remarks on sentence that the Applicant and Mr Chen agreed that the Applicant would be paid a fee of $80 per deposit made. That works out at a total of $2,160. I do not think that these differences about the amount of his fee are material. At the time the Applicant began the transactions, he was indebted to Mr Chen for $5,000, which the Applicant had borrowed to pay family expenses. The Applicant did not receive any cash in hand for his service to Mr Chen, merely a reduction in the amount of the debt he owed.

19 The Applicant was born in Indonesia towards the end of 1965. He came to Australia in 1995. He was 43 years old at the time of sentence. He was 37 and 38 years old at the time of offending.

20 The Applicant was working long hours as a cook, and was supporting his wife, his two daughters (one of whom had medical difficulties) and his mother. He was in what the judge found to be a “relatively vulnerable financial position”, and to be “probably an easy mark for somebody like Mr Chen”. There was no suggestion that his vulnerable financial position was the product of drug dependence or gambling. The Applicant and his family were in Australia on a visa that did not provide for any form of social security or other financial support for the family, but did enable him to work.

21 The Applicant offered assistance to the authorities, of a type that the judge regarded as “substantial”. Though the authorities did not need to avail themselves of that assistance, the judge found that he “should be given a full benefit from his willingness”.

22 The Applicant had no prior convictions. The judge found that there was “a good prospect of rehabilitation”. The judge accepted that he had shown remorse and contrition, both in his evidence in court and by his earlier actions in offering assistance.

23 The judge took into account that the likely effect of a sentence on the Applicant’s family was that it would put them into “a very difficult financial position”, and that it was likely that they would have to leave the country.

24 The judge accepted that the offence was objectively a serious one. She said that though the Applicant was “a relatively minor player compared to Mr Chen and others in the whole scheme of things”, “money laundering warrants severe punishment, not the least in order to reflect general deterrence to a very significant degree”.

25 Overall, the judge was of the view that the case was in the “mid to lower range of seriousness”.

26 The judge fixed a notional head sentence of 7 years, but discounted that by 25% for the early plea, and by another 25% for his offer of assistance to authorities. That resulted in a head sentence of 3½ years. The sentence that her Honour pronounced, of 3 years and 3 months, was one that commenced from the date her Honour pronounced it. The reduction of 3 months arose largely from her Honour taking into account the time already served in gaol, as she understood it. I will give further consideration to the precise manner in which her Honour arrived at the figure of 3 years and 3 months, and at the non-parole period of 2 years and 2 months, when considering the second ground of appeal later in these reasons.

27 The two men that the Applicant contends his sentence compares unfavourably with are Siu See-Hon and Huang Bin. Each of them was sentenced after pleading guilty to a money laundering charge, concerning events that bear some similarity to those in which the Applicant was involved. Each had acted at the behest of Peter Chen in repeatedly remitting amounts of cash, each of somewhat less than $10,000, to Hong Kong bank accounts in which Chen was interested.

Siu

28 Siu was arrested on 27 April 2005 and later pleaded guilty to a single count of money laundering. That count, like the count to which the Applicant pleaded guilty, alleged a contravention of section 400.4(1) Criminal Code 1995 (Cth). Siu’s offence took place between 6 May 2003 and 14 July 2003 – ie, over a period of nearly 10 weeks. The period of the Applicant’s offending was slightly longer, namely 11 weeks. Siu’s offending involved 59 different deposits, of a total amount of $556,400. Like the Applicant, Siu was paid a commission or fee. In his case, the total fee was about $3,000.

29 Siu had originally been sentenced to imprisonment for 2 years and 11 months, with a direction that he be released at the expiry of 1 year from that sentence upon entering a recognisance to be of good behaviour for 3 years from the date of his release. That sentence was replaced when a Crown appeal succeeded: R v Huang; R v Siu [2007] NSWCCA 259; (2007) 174 A Crim R 370 (“Huang & Siu”). This Court, comprised of Simpson, Howie and Hislop JJ, delivered a joint judgment that related to Crown appeals against the sentences imposed on both Siu and Huang. Those Crown appeals had been argued separately, but this Court dealt with them both in a single judgment. It had been delivered before the Applicant was sentenced.

30 This Court’s judgment concerning Siu and Huang recorded the following matters as ones that the sentencing judge took into account concerning Siu:

“13 The sentencing judge found the overall enterprise was very sophisticated with large amounts of money being illegally transferred to Hong Kong. [Siu’s] role was not that complex and he was told what to do by the principal. His Honour found that [Siu’s] role in this enterprise was limited and that he was on the edge of the enterprise, although an important component of it, since he was a ‘well-trusted player’ for those who were illegally sending money to banks in Hong Kong.

14 His Honour had no doubt that [Siu] knew he was involved in illegal activity. Initially he believed the moneys he was depositing were proceeds of an abalone business. However, he left the enterprise before he was charged because in effect he had become aware that the enterprise was likely to involve more than abalone and could be serious and dangerous. His Honour considered that, even if [Siu] believed the funds came from abalone trading, from his earlier involvement in that trade he must have known it was illegal.

15 His Honour found:

(a) [Siu] was sixty-four years of age and on a disability pension at the time of the offence. He had been raised in Hong Kong and had moved to Australia in 1982. He was a married man. He had limited English and was in poor health, suffering from a number of medical conditions. He had a prior criminal record for illegal activities in relation to the abalone trade.

(b) There had been an early plea of guilty, the utilitarian value for which should result in a 25 percent discount.

(c) [Siu’s] contrition and remorse expressed to various people was limited to his regret that he had been exposed by the police and charged.

(d) [Siu] had originally given assistance to the police but then had withdrawn his willingness to participate. Later, he again agreed to cooperate. However, his assistance was never availed of due to his lack of credibility and reliability as a witness. His Honour considered there should be some allowance made for his willingness, however variable, to cooperate, but since his assistance was not used, this consideration should be quite limited.

(e) A discount of 35 percent for the plea, expressions of remorse and subjective cooperation was appropriate.

(f) A full time custodial sentence would be much harder for [Siu] than for a healthy young male by reason of his medical conditions. His Honour took that factor into consideration.

(g) [Siu] had no psychiatric, gambling or drug problems and the likelihood of re-offending was ‘somewhat low’.

(h) The offence was committed between May and July 2003, [Siu] was charged in April 2005 and thereafter there were many adjournments, none of the delay being caused by [Siu]. His Honour took into account the delay as a mitigating factor.

(i) There were special circumstances, being [Siu’s] age, health, lack of facility with English, and the fact that his family resided in Victoria.

(j) General deterrence for these particular offences was a very important consideration.

16 In sentencing [Siu], his Honour took a notional starting point of four and a half years, which he reduced by 35 percent for the discounts previously referred to.

17 His Honour considered the question of parity between [Siu] and the co-offender, Huang. He concluded there was a considerable difference between [Siu] and Huang, namely that the transaction amount in Huang was over $3,000,000, with the result that the maximum sentence was imprisonment for 25 years rather than 20 years; the offences by Huang were committed over a longer period than those by [Siu]; Huang was more involved in the enterprise and was much younger and his state of health was not compromised, as was [Siu’s].”

Huang

31 The charge against Huang was under a different section of the Criminal Code, namely section 400.3(1), to the charge against both the Applicant and Siu. Section 400.3(1) differs from section 400.4(1) in two respects. First, it requires that at the time of the dealing, the value of the money is $1m or more. Second, it provides a penalty of imprisonment for 25 years or 1500 penalty units (which equates to $165,000), or both.

32 The charge against Huang related to activities between 14 January 2003 and 4 November 2003 (nearly 11 months) and involved the making of 335 deposits, comprising a total amount of $3,088,311. Huang was paid a commission or fee per transaction, which totalled about $30,000.

33 Huang was sentenced in the District Court to imprisonment for 3 years, with a direction that he be released at the expiry of 1 year and 9 months upon entering a recognisance to be of good behaviour for a period of 3 years from the date of his release. That sentence, like the sentence given at first instance to Siu, was altered by this Court when a Crown appeal succeeded.

34 This Court recorded the following findings of the judge as relevant to his reasoning process concerning Huang.

“7 His Honour found

(a) [Huang] believed that the money had been acquired through a genuine business venture in Australia and that the sole purpose of forwarding the funds overseas in sums of less than $10,000 was to avoid Australian Taxation. It was accepted by the Crown that the funds were not illegally obtained.

(b) The offence was objectively very serious having regard to the considerable sum involved, the number of transactions, the period over which it occurred and that it involved considerable planning and organisation though it was not an activity that could be described as sophisticated.

(c) The principal used [Huang] and others as a runner or courier to present the cash at the bank. His Honour accepted, however, that [Huang] was a ‘very much-trusted employee’ of the principal who was given possession of large sums of money. It is apparent that he did not breach that trust placed in him by the principal. [Huang] played an important role.

(d) [Huang] had gambled to excess in Australia and that was the cause of his need for funds which led to him being tempted to involve himself in the behaviour for which he was before the court. The offender was in some way in denial as to the extent of his gambling difficulty.

8 His Honour also found

(a) [Huang] was born on 27 October 1967. He was educated to the equivalent of year 12 standard in China and also completed a two-year Diploma in English Studies. He has an excellent command of English. He came to Australia from China in December 1989 and in 1994 was granted permanent residency. In 1996 he became an Australian citizen. He married in 1997 and the marriage ended in divorce. He married a second time and his second wife has returned to China due to her employment commitments. He has a minor criminal record, with fines for two stealing offences and a driving matter. He was also before the Local Court in 1998 for contravention of apprehended violence orders, which related to his first marriage. The funds that were banked by [Huang] were provided by the principal in whose seafood business [Huang] worked.

(b) [Huang] had provided assistance to investigating authorities which was ‘extremely valuable’ and ‘truly exceptional’. This material included admissions as to many particular transactions which would have been very difficult for the authorities to establish. [Huang’s] current classification in prison was of ‘non association’ and he would be subject to protective custody in the future, which would be burdensome. A discount slightly above 25 percent to reflect his cooperation, both past and future, with the authorities was allowed.

(c) He was satisfied [that Huang] ‘has great contrition’. He allowed 25 percent for the plea of guilty and also a discount for contrition of a month or so.

Criminal Code

9 His Honour took as his commencing point a sentence of 6½ years which he reduced by 25 percent for the plea of guilty and also a small discount for general contrition. This reduced the sentence to four years and nine months with a non-parole period of three years. He then allowed a discount slightly above 25 percent for cooperation with the authorities, thus reducing the head sentence to three years and he reduced the minimum period to be served to one year and nine months.”

35 Both section 400.3(1) and section 400.4(1) contain alternative ways of committing the offence, one involving that “the money … is, and the person believes it to be, proceeds of crime”, and the other involving that “the person intends that the money … will become an instrument of crime”. The charges against each of the Applicant, Huang and Siu involved the second of these alternative ways of committing the offence, not the first. However, in Huang & Siu at [32]-[33] this Court said:

“… the offender’s belief as to the source of the funds will always be a relevant consideration regardless of whether the offender is charged with an offence concerned with the proceeds of crime or an offence concerned with property being used as an instrument of crime. Where it is the latter, the belief as to the source of the funds or its nature is less relevant because the offence is directed at the use to be made of the funds. So the offence of the respondent Siu was aggravated because he believed that the funds were as a result of illegal activity, albeit the activity was not of the utmost seriousness.

Ansari

v The Queen

36 The Court expressed the view, at [34], that the amount of money involved “is clearly a highly significant matter because the legislation uses it as the principal means of dividing the offences into categories and it is the primary identifier of what is the maximum penalty for an offence.”

37 The Court said, at [35], that the number of transactions, and the period over which they occurred,

“… are significant because they indicate the extent of the offender’s criminality. Generally speaking a number of transactions involving small amounts of money will be more serious than a single transaction of a larger amount. The latter may be seen as an isolated offence.”

38 The Court expressed the view, at [36], that:

“… in the case of each of the respondents his criminality fell generally within the midrange of offending covered by the relevant sections. Money laundering on the scale in which both respondents were involved should be considered as serious criminal activity that is at the very heart of organised, professional crime syndicates. It warrants severe punishment not the least in order to reflect general deterrence of a very significant degree. When the activity is engaged in for profit, over a significant period of time and with a large number of transactions, the prior good character of the offender is of less significance than might otherwise be the case.”

39 The Court held, at [38]:

“Each of the respondents was well aware of the illegality of his conduct: Huang knew that the funds were to be used for an illegal purpose and Siu knew they were obtained as a result of illegal activity. The respondents were prepared to become involved in serious criminal conduct for profit. They were not isolated acts of offending. …”

40 At [39], after noting that Siu dealt with a sum of money that was slightly over half the amount of money that would have taken him into the higher penalty of a section 400.3 offence and over five times the amount of money bringing him within a section 400.4 offence, and that Huang dealt with more than three times the amount that brought him within a section 400.3 offence, the Court continued:

“… Neither of them was a principal in that they did not own or have an interest in the money with which they dealt. Although that is clearly a matter that reduces the culpability of each, they were both involved in the principal’s illegal conduct to a very substantial degree. Both Judges who dealt with the respondents made findings that they were important and trusted participants in the enterprise.”

41 Huang was held, at [42], to be entitled to “little, if any, mitigation” by reason of the offence being a result of gambling. The Court held, at [43], that he was:

“… more than a mere courier or runner to deliver the money to the bank having regard to his involvement in depositing the money in false accounts. But even if he were limited to that role, in light of the large number of illegal activities and the very significant amount of money involved such a role would not be a matter of very great mitigation.”

42 The Court, at [44], regarded the judge’s starting point for Huang of 6½ years as far too low, and that it:

“… should have been at least 11 years although we believe that a more appropriate starting point was between 12 and 14 years. We have chosen the lowest possible figure because this is a Crown appeal.”

43 The Court granted Huang a discount of 50% for the plea and assistance, though regarding that allowance as “a very generous finding notwithstanding that the respondent will spend his time in some form of protective custody.” Huang was re-sentenced to 5½ years, with a non-parole period of 3 years 4 months. Their Honours specifically noted, at [45] that this was “a lenient sentence imposed mainly because of discretionary factors arising from a successful Crown appeal”.

44 In the case of Siu, this Court held (at [46]) that the judge had been mistaken in regarding his conduct as “one of the least serious” examples of conduct that fell within the section. Bearing in mind the amount of money involved, and the fact that there were repeated criminal acts over a period of months, his conduct was said to be:

“… very substantial criminal activity and warranted a severe, deterrent sentence. The offence was committed for profit, but the amount received by him was of little significance, other than that it disclosed his position in the enterprise. There was limited mitigation in [Siu’s] age and medical condition. His medical problems were largely present at the time of the offending and neither age nor physical illness is a licence to commit crime particularly over a period of three months. The delay in [Siu] being charged was of little significance unless it could be shown to have disadvantaged the offender in some way.”

45 The starting sentence that this Court adopted in re-sentencing Siu was said to be “at least 8 years” (at [47]), on the basis that it was a Crown appeal, and notwithstanding that a more appropriate starting point would have been between 9 and 11 years. The same discount, of 35%, that the trial judge had given, was allowed, even though it was said to be “overly generous”. This Court held that the appropriate sentence for Siu (which was the sentence it actually imposed) should have been “at least 5 years”. In so doing, this Court extended some slight extra generosity, not explicitly recognised in the reasons for judgment, to Siu, because allowing a 35% discount on an 8-year sentence would have resulted in a sentence of 62.4 months, or 5 years and 2.4 months.

46 This Court also held that the non-parole period that the judge had imposed on Siu, of about a third of the head sentence, was “manifestly inadequate” (at [48]). The Court substituted a non-parole period of 2½ years.

PART B – SUBMISSIONS

Applicant’s Submissions

47 The legal principle that the Applicant invokes was stated by the High Court in Lowe v The Queen (1984) 154 CLR 606. It was a case that concerned co-offenders – the lookout man, and the man who had actually taken the money, in an armed robbery. Gibbs CJ at 610 (Wilson J agreeing), Mason J at 611 and 613, and Dawson J at 623 (Wilson J also agreeing), all expressed the same thought, that sentences imposed upon co-offenders should not have such a marked disparity as to give rise to a justifiable sense of grievance, or give the appearance that justice has not been done.

(1997) 189 CLR 295 likewise involved the sentences of two co-offenders. The co-offenders in question were both parties to the one conspiracy to import drugs. The principle laid down in Lowe v The Queen was reiterated. Dawson and Gaudron JJ said, at 301-2:

Lowe v The Queen

Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.”

“Co-Offenders”

49 In comparing the sentences imposed upon the Applicant and on Huang and Siu, Mr Wilkinson, counsel for the Applicant, points out that Siu was sentenced to an overall sentence 18 months longer than that imposed on the Applicant and a non-parole period 4 months longer than that imposed on the Applicant. Huang was sentenced to an overall sentence 2 years longer than that imposed on the Applicant and a non-parole period 14 months longer than that imposed on the Applicant.

50 Mr Wilkinson submits that there are significant differences between both the subjective and objective features of the Applicant’s offending, and the offending of each of Siu and Huang. He submits that the objective criminality of the Applicant’s offending was substantially less serious than that of Siu or Huang, bearing in mind the amount of money involved, the number of transactions carried out, and the period over which the transactions were carried out. He points to the following matters in particular:

“(i) The Co-Offenders were involved in a greater number of structured transactions: HUANG took part in 335 transactions with SIU taking part in 59 transactions, as compared to the applicant’s involvement in 27 transactions.

(ii) The Co-Offenders were involved in the transfer of substantially more money to offshore foreign banking institutions: HUANG was responsible for the transfer of AUD$3,088,311.00 with SIU transferring a total sum of AUD$556,400, as compared to the applicant’s involvement in the transfer of AUD$243,952.

(iii) The Co-Offenders[’] period of offending was greater than that of the applicant. HUANG’s period of offending was over 11 months whilst SIU’s involvement was in excess of 2 months. The applicant’s offending spanned a period of 2 months. Although SIU’s period of offending is similar to that of the applicant, SIU carried out more than twice the number of structured transactions during the relevant period.

(iv) HUANG was paid a commission fee for each transaction which totalled about $30,000.00. SIU was paid a commission fee for each transaction which totalled about $3,000.00. The applicant was paid a commission fee for each transaction which totalled about $2,000.00.

R v Huang & Siu

(xi) The motivation for participation differed. The applicant was motivated by a perceived obligation to repay an outstanding debt to CHEN, who loaned the applicant money so he could pay his daughter’s outstanding school fees. The applicant is a good father and family man. His family was in financial difficulty: ROS at p 2-3. This explains why he became involved in this, his first criminal offence, at his stage of life. HUANG and SIU were motivated by financial gain.”

51 Point (iii) is factually incorrect, in that the period of offending of Siu was marginally shorter than that of the Applicant (see para [28] above), but this factual error is not a serious one.

52 The Crown submits that the ground of appeal originally relied upon as the sole ground should fail for four separate reasons.

“(1) It is inappropriate to apply the principle of parity in this case as the offenders were not actually co-offenders.

(2) The different sentences are justified by the different circumstances of the offences/offenders.

(3) The learned sentencing judge made a finding as to relative seriousness of the respective cases of the Applicant and Siu and this finding is not, and could not be, challenged by the Applicant.

(4) The degree of difference between the sentences is not so ‘marked’ as to give rise to a justifiable sense of grievance.”

PART C – BETWEEN WHOM DOES THE PARITY PRINCIPLE APPLY?

53 Considering whether Huang and Siu are actually co-offenders with the Applicant, for the purpose of the parity principle, must start with closer consideration of what previous authority has said about the types of people whose sentences can be compared under the parity principle.

Lowe

54 In Lowe the factual situation being considered was that of two people who had co-operated in the one criminal enterprise, though playing different roles in it.

55 Gibbs CJ (with whom Wilson J agreed) said, at 609:

who have been parties to the commission of the same offence

the part which he or she played in the commission of the offence

56 Throughout his judgment, Gibbs CJ spoke of the parity principle as one that applied between co-offenders. Mason J at 611 approved the principle that “marked disparity in sentences imposed on co-offenders whose circumstances are comparable is itself a ground for reducing the more severe sentence”. He refers, at 612, to “harshness of the sentence in comparison with that imposed on the co-offender”. At 613 he talked of “the sentencing process as it affected the co-offender”.

57 Wilson J at 616 agreed with both Gibbs CJ and Dawson J.

58 Brennan J took a different view to other members of the Court, in that he did not regard the existence of marked disparity as in itself a ground for altering the sentence of one offender. However, his statement of the relevant principle is likewise expressed in terms of co-offenders. He said, at 617:

“The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust.”

59 Brennan J also said, at 617-18:

“… an inappropriately lenient sentence imposed on one co-offender is not in itself a ground for interfering with a more severe sentence imposed on another. Of course a marked disparity between the sentences imposed on co-offenders sharpens the interest of an appellate court, not because it establishes appealable error but because there must be an error if the lesser sentence is found to be appropriate and no sufficient ground exists for distinguishing between the co-offenders.”

60 Dawson J, at 623, referred repeatedly to co-offenders. He stated a relevant principle as being:

“… any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or give the appearance that justice has not been done … This has led to the variation of sentences by courts of appeal in order to reduce the disparity between sentences separately imposed upon co-offenders even where the sentence varied was not in itself excessive.” (citations omitted)

61 Thus in Lowe, all the members of the High Court spoke of the principle as one applicable between co-offenders. While not all the judges spelt out who counted as co-offenders for the purpose of the principle, Gibbs CJ (with whom Wilson J agreed) spoke of them at 609 as “persons who have been parties to the commission of the same offence”. Similarly, Dawson J (with whom Wilson J agreed) spoke of them at 623 as being “co-offenders for the same offence”. In Lowe both offenders had committed the “same offence” in both the sense that they were involved in a common criminal enterprise, and also the sense that each had been charged with a contravention of the same provision of the criminal law – notwithstanding their different roles in the enterprise, each was charged with armed robbery.

Jones

62 The next time the question of parity came before the High Court was in Jones v The Queen (1993) 67 ALJR 376. The facts of the case emerge somewhat more fully from the judgment in the Court of Criminal Appeal (Jones, (NSWCCA, 16 April 1992, unreported)) than from the High Court’s ex tempore judgment. The applicant was charged with supplying an indictable quantity of cannabis leaf on a particular date. She had two people who were described as “co-offenders” in both the Court of Criminal Appeal and in the High Court, without any argument or explanation as to the attribution of that description to them. One was a man who had sent the drug from a country area to Sydney, where it was collected by the applicant and her other co-offender (a woman). The applicant and the female co-offender were to sell the drug in Sydney for a particular price, of which a particular proportion was to go to the male co-offender. The High Court reversed the Court of Criminal Appeal in holding (at 377):

Lowe

63 The brief judgment in the High Court does not purport to be doing anything other than applying Lowe. While the facts do not emerge with complete clarity from the reports, it appears as though the people described as “co-offenders” were all people who played a role in the one act of supply, namely supply of the drug by the applicant to her retail customer.

Postiglione

64 In Postiglione v The Queen the principle stated by Dawson and Gaudron JJ, at 301-2, (that I have quoted at para [48] above) was cast in terms of co-offenders.

65 Kirby J was the other member of the majority. He accepted, at 327, that the appellant “feels a grievance about the way in which he has been punished following conviction of his latest offences when compared to the punishment imposed on a co-offender …”. As one reads Kirby J’s statement of “Applicable sentencing principles”, at 335-342, one can be in some doubt about what his Honour regards the “parity principle” as being. At 338 he says:

R v Goldberg

R v Beaumont

R v Ball

R v Tiddy

66 That passage appears to contemplate that the “problem of disparity” can arise not only in relation to co-offenders, but also where there is “disparate punishment of … offenders in a situation demanding comparison and contrast”. At 340, his Honour said:

Lowe

67 That could be read as suggesting that Lowe was merely an example of the “disparities” with which the parity principle was concerned. Similarly, at 341, his Honour spoke of “the parity principle requiring that normally like cases should be treated alike.” That likewise could be read as regarding the parity principle as extending wider than beyond the situation of co-offenders. However, any doubt about whether his Honour may have regarded the parity principle as extending beyond co-offenders is dissipated by his remark at 342 that “essentially, the parity principle remains that stated by this Court in Lowe”.

68 A difference of opinion within the court in Postiglione arose from the fact that the two men who were clearly co-offenders in relation to an offence of conspiracy to import drugs, were both in gaol at the time of commission of that offence and at the time of being sentenced for it. The offences for which they were already in gaol were ones concerning which they were not co-offenders. The problem of principle that lead to the grant of special leave in the case concerned whether the parity principle had any role to play when a court came to apply the totality principle to the sentences of each of the offenders. The majority took the view that in that situation the parity principle could legitimately be used to compare the extra sentence that each offender came to serve in consequence of having committed the second crime, concerning which they were co-conspirators. McHugh and Gummow JJ, in separate judgments, decided, respectively, that any disparity was explained by the application of the totality principle, and that the parity principle had no role to play in that situation. McHugh J said, at 306:

“… where the totality principle is relevant in the sentencing process and the application of that principle requires different sentences for each offender, no breach of the parity principle occurs.”

69 To similar effect, Gummow J expressed his conclusion at 323-4:

“The appellant bases his case for disparity on a comparison between the amounts by which the respective non-parole periods of [the co-offender] and the appellant were increased following sentence on the federal charges of conspiracy. These non-parole periods depended respectively on the non-parole periods that each offender was already serving for previous offences with which the other offender was not involved. In other words, the appellant submits that the court should apply the parity principle to the total custodial sentence of the two offenders. That total custodial sentence is the product not only of convictions upon conspiracy counts, applying to both offenders, but also convictions of each for prior offences in which the other was not involved. Like is not being compared with like.”

70 Of present relevance are the circumstances in which the minority judges saw the parity principle as having a role to play. McHugh J, at 309, adopted a statement of the Court of Criminal Appeal of South Australia in R v Tiddy [1969] SASR 575 at 577:

concerned in the same crime

71 Gummow J, at 322, stated the principle as follows:

Lowe

72 Gummow J stated explicitly at 325 “The disparity principle in Lowe only applies to co-offenders”.

73 In accordance with this High Court authority, the parity principle is a principle that must be taken into account in sentencing in addition to other sentencing principles. All the factual circumstances in which their Honours have held that the parity principle applies were ones in which the person whose sentence was being considered on appeal had committed the same crime as another person had committed. The Court held that the sentence imposed can differ from the sentence imposed on the co-offender only if, after taking into account all objective circumstances concerning their respective roles in commission of the crime and all differences in their respective subjective circumstances, there is not such a marked disparity as to give a justifiable sense of grievance, or give the appearance that justice has not been done. If there is a marked disparity of that type, it is in itself a ground for reducing the sentence that is in question, and is not merely symptomatic of some error having occurred in the sentencing process.

74 The first of the Crown’s submissions on this appeal is that, as the Applicant did not commit the self-same crime as Huang and Siu, there is no scope for the application of the parity principle. Whether that submission is correct will depend on whether what is meant by “co-offenders” for the purpose of the principle, extends beyond the circumstances of the cases that have come before the High Court, where the co-offenders in question have all committed the self-same crime. As the High Court has not pronounced on that question, it is necessary to turn to intermediate court of appeal authority. While a complete survey of intermediate court of appeal authority on the circumstances in which the parity principle can apply is not practicable, I shall survey enough to ascertain the trend of authority.

Sumner

(1985) 19 A Crim R 210 is a decision of the Victorian Court of Criminal Appeal. It concerns sentences imposed on men who had handled, at different times, the one consignment of stolen cigarettes. It appears that they were all charged with a contravention of the same provision of the criminal law. Some appealed against sentence “by reason of a disparity between his and that imposed on one or more of his co-offenders” (218). Hampel J, delivering the judgment of the Court, said at 218:

“The acts performed and the parts played by different offenders to some extent find in one transaction parallels in the other and, of course, each was handling a part of the same goods which were stolen at the time of the armed robbery. It would seem also that the two parcels of stolen cigarettes housed at the Pakenham cool store were not only part of the proceeds of the same robbery, but were also unlawfully ‘handled’ by each of the groups of men convicted under counts one and two respectively at the same level in the distribution process from original theft to the ultimate user.”

76 There were significant differences in the roles that different participants had played in the respective handlings, in their criminal histories, in whether or not they had pleaded guilty, and in their subjective circumstances. The judge concluded, at 222:

“Had any one of the applicants been sentenced as he has been but with there having been no other co-offender to whom punishment was also to be given, we do not think that the sentence so passed could be said to be beyond the range of options open to the judge. But when the sentences of each applicant – or at least some of them – are viewed in the context of the sentences passed upon all other offenders, it appears to us that there is a number of instances of unacceptable disparity.”

thus presents an example of the parity principle being used to alter a sentence by reference to the sentence imposed on someone who had not committed the self-same crime, but who was involved in the same criminal enterprise. It is to be noted, though, that as they had all been charged with a contravention of the same provision of the criminal law there was no complication arising from the charges against the men being of crimes of differing degrees of seriousness.

Gibson

78 R v Gibson (1991) 56 A Crim R 1 is a decision of this Court on a Crown appeal against sentence. The Respondent had been convicted of possession of a traffickable quantity of cocaine contrary to section 233B Customs Act 1901 (Cth), and of concealing money that may reasonably be suspected of being the proceeds of crime contrary to the Proceeds of Crime Act 1987 (Cth). The amount of cocaine in his possession was part of a larger quantity that had been brought into Australia. The importer, and various other distributors of the imported goods, all came to be charged and sentenced. Some of the distributors were charged under section 233B Customs Act 1901, while some were charged with supplying a traffickable quantity of cocaine, contrary to section 25 Drug Misuse and Trafficking Act 1985 (NSW). The latter Act attracts a “much lower maximum penalty” (p 5) than the former Act. The amounts of cocaine involved in the various charges differed substantially. The subjective circumstances of the various men differed. Some pleaded guilty, some did not. Some provided assistance to the police, some did not. The importer had been sentenced in South Australia by Mohr J, on the basis (different to the principle applicable in New South Wales) that cocaine was a less serious drug than heroin. The judge had sentenced the respondent by taking the sentences that had been imposed on two of the other participants in the criminal enterprise, in relation to which no Crown appeal was then current, “as representing the appropriate scale” (p 5).

79 Carruthers J (with whom Clarke JA and Loveday J agreed) said, at 7:

Lowe

80 Carruthers J said, at 8:

“I think that his Honour erred specifically in taking the sentences imposed on Navarro and Colclough as ‘representing the appropriate scale’, to use his Honour's words. I repeat, that there were too many subjective and objective differences between the three cases. Specifically, his Honour appears to have overlooked the fact that Mohr J treated cocaine as a significantly less harmful drug than heroin. Another specific aspect of his Honour's approach, with which I am unable (with respect) to agree, is his attempt to estimate the sentence which Colclough in all probability would have received if he had, like the respondent, pleaded not guilty. An exercise of that nature takes the search for parity to unacceptable limits. Disparity can only arise from a comparison of equals and not a comparison of unequals.”

81 The second of the factors on which his Honour relied as showing that the exercise of comparison of sentences was not possible, will often not apply these days, when courts regularly act in the manner urged by R v Thomson & Houlton (2000) 49 NSWLR 383 and quantify the effect of the guilty plea on the sentence. In particular, in the present case, the discounts that each of Huang and Siu received for pleas and other matters were quantified by this Court when re-sentencing them.

82 Relevantly for present purposes, Carruthers J did not say that parity would in principle be inapplicable between the people charged with supplying and those charged with possession, nor that it would be inapplicable between the people charged with supplying as those charges related to different acts of supplying. Rather, the difficulty in taking into account all the differences between the factors that had lead to the differing sentences defeated, at a practical level, any attempt to apply the principle.

Howard

83 R v Howard (1992) 29 NSWLR 242 was an appeal by four young men who had participated in the killing of a Mr Johnson. Three of them had been found guilty of murder, while the fourth had been convicted of manslaughter following the trial on a charge of murder. Four other young men had also participated in the killing, and had pleaded guilty to manslaughter. The three men who had been convicted of murder appealed unsuccessfully against that conviction. Their contention was that they should have been convicted only of manslaughter, particularly in light of the fact that the Crown had once been willing to accept a plea of manslaughter from them. This Court (Gleeson CJ, Sheller JA and Lee AJ) noted at 252 that the distinction between the functions of prosecutor (an officer of the executive branch of the government) and court (part of the judicial branch of the government) was “a matter of constitutional importance”.

84 What I take their Honours to there be referring to is this. In Australia, the criminal process is an adversarial one which involves the Crown bringing a case against the accused before a court. It is the executive branch of the government that is responsible for apprehending and charging the accused. But it is the court, exercising judicial power, that convicts and sentences. The nature of judicial power was described by Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357 as:

“… the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.”

“is called upon”

85 In Howard the Court noted, at 253, that it could not reasonably be argued that the evidence against the three appellants who had been convicted of murder did not justify a finding of murder. They said:

Hui Chi-Ming

v The Queen

86 An appeal against sentence by all three men convicted of murder likewise failed. Their Honours said, at 254: “Issues of parity are obviously important in this matter.” Their Honours said, at 258 that at the trial:

Lowe v The Queen

His Honour held, correctly, that he was bound, by reason of the jury’s verdict, to sentence the three appellants convicted of murder on the basis that their conduct was significantly more culpable than that of the co-offenders who was sentenced for manslaughter. They intended to do grievous bodily harm; the co-offenders were sentenced on the basis that they did not.

When allowance is made for that difference between three of the offenders and the remaining five, and for the discounts given for co-operation with the police, the various sentences that were imposed, when considered both individually and in relation to each other, are appropriate. In the circumstances of this case we see no error in the quantification of the minimum terms and additional terms. We do not consider that, consistently with principle, the Court can intervene in the sentencing process to correct the apparent anomaly that results from the fact that some of the co-offenders were found guilty of murder and others were found guilty of manslaughter. They were all accorded due process of law and, for sentencing purposes, effect must be given by the Court to the outcome of that process.”

87 An application for special leave to appeal to the High Court was dismissed, on the basis that “The Court is not persuaded that there was any error on the part of the Court of Criminal Appeal in arriving at its decisions in these matters”: Alex Mihailovic v The Queen (High Court of Australia, 3 February 1994, noted [1994] 1 Leg Rep page C3).

is authority for the proposition that people who participate in a common criminal enterprise, but are charged with different offences concerning that enterprise, cannot have their sentences compared in a way that seeks to undo or correct for any anomaly that there might appear to be as a consequence of the different charges that the people faced.

Ellis

89 Any recounting of the history of the parity principle in this State must make mention of Ellis v The Queen (1993) 68 A Crim R 449. It contains a blazing disagreement between Kirby P and Hunt CJ at CL about the circumstances in which direct comparison is possible between a sentence that is being reviewed on appeal and a sentence imposed on another person for a crime that is not the identical crime but is in some respects similar. However, as the third member of the bench (Studdert J) saw no need to resolve the disagreement, the respective views of Kirby P and Hunt CJ at CL on that topic are all dicta.

90 The case involved an appeal against sentence concerning an offence of armed robbery. The ground on which leave to appeal was sought was severity of the sentence (not parity). While the applicant had had an accomplice in committing the robbery, the identity of that accomplice was never established (at 462). In the course of submissions, counsel for the applicant referred to a decision in Thorley (NSWCCA, 5 February 1991, unreported) that related to an unconnected armed robbery. Studdert J, who wrote the initial judgment, simply said, at 464:

“I do not find that case to be particularly helpful in determining the upper limit in the exercise of the sentencing judge’s discretion. It depended upon its own facts and whilst there were similar features between that case and the present one, there were distinguishing features, one of which was that was that although his companion was armed the applicant in that case was not.”

91 Studdert J proposed granting leave to appeal but dismissing the appeal. That passage contains an implicit concession that one function that can be performed by a comparison of a sentence under consideration with another sentence for a different crime is to help (though not be determinative) in determining the upper limit of the sentencing judge’s discretion. Studdert J does not purport, however, to state exhaustively what use can legitimately be made of such a comparison.

92 Kirby P favoured granting the application for leave to appeal, and re-sentencing. He wrote his judgment in two parts, at different times. In the course of considering Thorley, Kirby P said 451:

Thorley

Lowe

93 That was the only mention of Lowe or its principles in the first part of Kirby P’s reasons.

94 Kirby P listed 10 points of similarity, and one point of difference, between the respective situations of Mr Ellis and Mr Thorley. He said, at 452:

Thorley

95 Kirby P said (at 453) that error in the sentence under appeal was shown “by measuring that sentence against the sufficiently similar circumstances of Thorley and like cases”, and another factor.

96 Hunt CJ at CL also wrote his judgment in two parts at different times. In the first part of his judgment he explained why he did not agree with the “approach” of Kirby P. Evidently, that referred to the significant reliance placed on the comparison between the sentence under appeal and that in Thorley. He emphasised the inherently discretionary nature of sentencing. He said, at 460:

Oliver

Visconti

It is therefore not to the point to say that, merely because one judge has imposed a sentence which is more severe or more lenient than that imposed by another judge (or even by this Court) in similar circumstances, error has been established in relation to one or the other. What must be looked at is whether the particular sentence which is challenged is outside the general pattern of sentencing by the criminal courts (both at first instance and on appeal).”

97 Hunt CJ at CL at 461, said that though Kirby P had said:

Thorley

and like cases

98 He want on to say that Lowe was concerned with an appellate court intervening:

his co-accused

99 He continued:

not

‘The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.’

Lowe

100 That prompted Kirby P to write the second part of his reasons, in which he identified seven cases “chosen without intense research” that he said concluded (at 459):

“… suggests that the sentence in this case is so high as to show error. In the name of consistency in punishment – which the community also understands – the Court should reduce the sentence.”

101 Of particular relevance for present purposes is that Kirby P said at 459:

Lowe

102 The upshot is that Hunt CJ at CL and Kirby P agreed that the principle in Lowe concerned the comparison between sentences of co-offenders. Their difference of opinion concerned the legitimacy of comparing directly sentences for crimes that are similar, but not committed by co-offenders.

Wurramarbra

103 In Wurramarbra v The Queen (1979) 28 ALR 176; 1 A Crim R 291, the appellant had pleaded guilty in the Supreme Court to burglary and sentenced to 4 years’ imprisonment. The appellant had committed the burglary in question in conjunction with Bara. Bara pleaded guilty to break, enter and steal before a magistrate and was sentenced to 14 months’ imprisonment. An appeal from the Supreme Court of the Northern Territory was heard in the Full Federal Court by St John, Fisher and Gallop JJ. Their Honours said, at ALR 177-8; A Crim R 292-3:

“… it is perfectly clear that looking at the overall situation, Bara and the appellant were equally culpable. The Crown, however, chose to charge Bara with a lesser offence because of lack of evidence and the question is whether or not the appellant is entitled, within the terms of the principle, to feel a sense of injustice or grievance that gives rise to the application of the rule. It appears to us that the sense of injustice or grievance that the appellant would feel in the instant case would be in the same category as that he would feel if his co-offender escaped detection and was not brought to trial. We are of the opinion that, although the facts may be identical or similar, where there are convictions on different charges, the principle cannot operate. Where, of course, the person convicted of the more serious offence receives a sentence which is less than the person convicted of the less serious offence, all other aspects being approximately equal, different considerations apply. Break, enter and steal is punishable by a maximum of eight years’ imprisonment with hard labour and burglary is punishable by life imprisonment.

In our view the application of the principle is confined to those cases where there is a true comparison of like with like, where the same offence is proved against both, and the principle is not applicable where there is a great variation in the penalties provided for in the two offences.”

Though that case preceded Lowe , the analysis is consistent with it. In particular, it supports the parity principle applying only between people who have committed the same crime.

Watson

104 Watson v The Queen (NSWCCA, 25 February 1992, unreported) was an application for leave to appeal against sentence in which the applicant had pleaded guilty to being an accessory after the fact of stealing a motor vehicle, and sentenced in the District Court. A man called Corrigon had also been involved in the theft of the motor vehicle. Though initially charged with stealing the vehicle, no evidence was offered against him on that charge, and he pleaded guilty to receiving certain parts from the vehicle. He was sentenced in the Local Court, where he received a fine and a bond.

105 Gleeson CJ (with whom Sheller JA and Loveday J agreed) referred to a question of parity between the sentences as one that was “obviously raised”. After referring to Wurramarbra, Gleeson CJ said:

“… considerations of parity insofar as they are of legal significance are difficult to apply in cases where co-offenders have been dealt with on the basis of the significantly different charges.

As their Honours pointed out in that case, one co-offender may feel a sense of grievance if another co-offender has escaped detection and has not been brought to trial. That, however, has nothing to do with the kind of sense of grievance that is relevant in relation to considerations of sentencing parity.

The present applicant might have a sense of grievance about the fact that the police could not prove that Corrigon stole the motor vehicle in question. That is not a relevant sense of grievance for present purposes. In my view, the proceedings taken in relation to Corrigon are so different from those that were taken in relation to the applicant that the argument based on parity is one that should not succeed.”

106 That passage seems to accept that parity considerations could be applied between people who had been involved in the one criminal enterprise, though found guilty of different crimes concerning it, but to also recognise that there could be practical difficulties in the application. However, there was no question squarely raised for decision, in the way it is in the present case, about whether parity can apply in circumstances beyond that of two people who commit the one crime.

“The term of the imprisonment that I propose to sentence you is based on a three and a half year head sentence but because you have spent in total around about two and a half months in gaol already before you were granted bail, I propose to sentence you to a period of imprisonment of thirty-nine months to commence today with a non-parole period of twenty-six months or two years and two months to commence today. That means that you will be eligible for release on parole on 18 November 2010. And you will then be on parole for an additional thirteen months which will expire on 18 December 2011.

Counsel, as I am doing this on the run, I am happy for you to look at those dates and let me know if I have made an arithmetical error, because that sometimes happens and I’d rather know now before everybody goes away.

[CROWN]: We think that’s correct, your Honour. The head sentence is 39 months and will expire on 18 2011 [sic].

HER HONOUR: The non-parole period expires on 18 November 2010. And I have made fairly strictly a two-thirds, one-third because that turned out to be, in my view, the appropriate way to deal with parole. But luckily a number that was divisible by three, and that was just by chance. Mr Wilkinson, are you happy with those dates before--

WILKINSON: The dates are correct, your Honour.”

228 There is an unexplained contradiction between the judge’s first statement that a 60% non-parole period was in her view appropriate, and her ultimate adoption of a non-parole period based on two-thirds of the head sentence. If the judge had changed her mind between the time she gave the 60% figure and the time she gave the two-thirds figure, one would expect her to say that she had changed her mind, and why.

229 Further, in actually calculating the non-parole period the judge has used an incorrect methodology, by reducing the head sentence to take account of time already spent in gaol, and applying to the period still to run on the head sentence the percentage that the non-parole period is to bear to the head sentence.

230 Also, on the facts as the judge understood them, by giving him credit for 2½ months already spent in gaol (on the basis of her understanding that it was 78 days) she has failed to take into account 3 days that he spent in gaol (on the basis of 30 day months).

231 The way I intend to approach the matter is by first working out the extent to which, on various assumptions, an error of calculation in working through a stated principle for arriving at a non-parole period would make the non-parole period actually imposed excessive.

232 I will start by considering what the situation would be if 60% was taken as being the appropriate proportion for the non-parole period to bear to the head sentence. A 3½-year sentence is 42 months. If the judge had intended to impose a 60% non-parole period, that would be 60% of 42 months, namely 25.2 months. If the judge was to impose a sentence and non-parole period dating from the date of sentence, it would be necessary to take the whole of the amount spent in gaol off the amount of the calculated total non-parole period, to ascertain the distance in time from the date of sentencing at which the non-parole period would expire. If (as the judge assumed) the Applicant had spent 2½ months in gaol, that 2.5 months should be deducted from the 25.2 months of the non-parole period, giving 22.7 months from the date of sentence before the non-parole period expired. As the sentence actually imposed required 26 months to be served before the non-parole period expired, that would be an excess of 3.3 months.

233 If this Court were to re-sentence concerning the non-parole period, it would be necessary for it to do so on the basis of the facts now known to it, which include that he had in fact spent 71 days in gaol before being sentenced. Seventy-one days is 2.37 months, ie .13 months less than the judge had assumed. Thus, on this set of assumptions, the non-parole period would be excessive by 3.17 months.

234 If the judge had intended, as she ultimately said, to impose a non-parole period of two-thirds of the head sentence, that would be a non-parole period (two-thirds of 42 months) of 28 months. If, as the judge assumed, he had spent 2.5 months in gaol, that would require him to spend an extra 25.5 months in gaol after imposition of the sentence before the non-parole period expired. On that basis, the 26 months that the judge imposed was .5 months excessive.

235 If this Court were to re-sentence concerning the non-parole period, and take into account that he had in fact spent 71 days in gaol, or 2.37 months, the non-parole period actually imposed by the judge would be excessive by .37 months.

236 It is impossible for me to tell whether her Honour intended the non-parole period to be 60%, or two-thirds, of the head sentence. In that circumstance it seems to me that the appeal should be approached on the assumption that the error in calculation that her Honour has made is the largest of the various possible figures.

237 Notwithstanding that the provision of the law that the Applicant contravened was a provision of a federal statute, his appeal is brought under the Criminal Appeal Act 1912 (NSW). Section 6(3) of that Act provides:

“On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”

238 Even though error on the part of the trial judge is a precondition of this Court altering a sentence on appeal, a finding that the judge was in error in some respect relevant to the imposition of the sentence is not sufficient to result in this Court imposing a different sentence: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704; R v Johnson [2005] NSWCCA 186. This Court must find that some other sentence was appropriate before it alters the sentence in a way that corrects the error.

239 I will start my own consideration of whether the non-parole period is an inappropriate one by calculating the percentage it bears, if the arithmetic is correctly carried out, to the head sentence.

240 The head sentence imposed was 39 months from the date of sentencing. If one adds the 71 days actually spent in gaol before trial, or 2.37 months, that gives a total head sentence of 41.37 months.

241 The actual non-parole period imposed is 26 months from the date of trial, or (adding on the 71 days already spent in gaol) 28.37 months. Thus, the non-parole period actually imposed is 68.58% of the head sentence actually imposed. This is only very marginally outside the usual range (60-66.67%) within which non-parole periods are imposed. In considering the significance of the marginal extent to which the usual range is exceeded, I bear in mind that this court usually does not engage in minor tinkering with sentences. Quite apart from that, in my view the period of the non-parole period is not excessive. Any consideration of the significance of the 1.91% by which the ratio of non-parole period to head sentence is outside the usual range must be carried out bearing in mind the order of accuracy of other figures that went into the calculation of the sentence. The figures for the seven years prima facie head sentence, and for discounts that the judge adopted are very broad brush ones. Further, insofar as a discount for assistance was given it was generous. Further, to the extent to which the judge, in fixing a head sentence, took into account the sentences that had been imposed on Huang and Siu, she did so by reference to the sentences that this Court actually ordered them to serve, not (as explained above is more correct in principle) after taking into account the subjective circumstance that each of Huang and Siu had been under, that they had been sentenced on a Crown appeal.

242 In all these circumstances, even bearing in mind the maximum extent that arithmetical error on the part of the judge in fixing the non-parole period might have caused the judge to extend the non-parole period by, I am not persuaded that in all the circumstances a different sentence should have been passed, so far as the non-parole period goes.

243 In my view, leave to appeal should be granted, and the appeal dismissed.

244 HOWIE J: I have had the benefit of reading in draft the judgment of Campbell JA in this matter. I agree with the orders his Honour proposes and generally with what his Honour has written. In light of decisions of this Court where the parity principle has been applied in Commonwealth matters, even though the applicants were not strictly co-offenders, I find it of concern that the Crown on behalf of the Commonwealth would make a submission that parity did not apply to the facts of this case, at least without referring the Court to decisions that are clearly contrary to that submission.

245 The principle of parity should not be confined to a consideration of the sentences imposed upon co-offenders in the strict sense, that is persons involved in and charged with the very same crime. There is nothing in the decisions of the High Court that so confine it. Where the courts have stated that the principle of parity applies only to co-offenders, it has usually been in situations where the applicant has sought to use the principle for an illegitimate purpose by seeking to compare the sentence imposed upon the applicant with a sentence imposed upon another offender who was not engaged in the offence committed by the applicant.

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. However, I agree with Campbell JA that the principle is subject to the limits stated in [203] of his judgment.

247 In particular I agree, for the reasons given by his Honour, that R v Kerr [2003] NSWCCA 234 should no longer be followed insofar as the proposition for which it is generally cited. It is not the business of the courts to try to ameliorate the effects of prosecutorial decisions in charging, or not charging, persons involved in a criminal enterprise. The facts of Kerr do not, in my respectful opinion, justify the decision taken and this Court has not since Kerr was decided found or been able to envisage a situation in which a court would be justified in taking into account the effects of prosecutorial discretion when exercising the sentencing discretion. I have been concerned at the number of times that Kerr has been relied upon in this Court, at least when I have been a member of it, without any reference being made to the decisions that have raised doubts about its correctness.

248 If it were necessary to do so, I would indicate my agreement with the judgment of Hunt CJ at CL in Ellis (1993) 68 A Crim R 449, but it seems to me that later decisions of this Court have consistently followed his Honour’s approach rather than that of Kirby P.

249 I also confirm the obita view I expressed in Osman v R [2008] NSWCCA 157, with which McClelland CJ at CL agreed, that an applicant should not be able to seek parity with a sentence imposed upon a co-offender after a successful Crown appeal simply on the basis that the sentence imposed upon the co-offender was reduced because of double jeopardy or for some other discretionary reason that does not apply to the applicant.

250 In any event I would not reduce the sentence imposed upon the applicant in the present case. I do not understand how he could receive a discount of 50 per cent, that is a discount at the top of the range for a plea of guilty and assistance, when the assistance was “not going to come to fruition”. In any event, it has been held that a discount should not exceed 40 per cent where there is no evidence that the offender is going to serve the sentence in a more difficult or harsher environment as a result of the assistance given or offered: R v Sukkar [2006] NSWCCA 92 at [5]. There was no evidence called as to the nature of the applicant’s confinement. The discount in this case should have been about 35 per cent.

251 I agree with the view expressed by Latham J in Pham v R [2009] NSWCCA 25 that a ground based upon disparity should be dealt with last because a complaint of disparity accepts that the sentence is otherwise appropriate. If there is some other ground asserting a particular error in the exercise of discretion or a ground contending that the sentence is manifestly excessive, the Court will address the issue of parity if it is necessary to resentence the applicant as a result of success on some other ground of appeal; see Tatana v R [2006] NSWCCA 398 applied in Xue v R [2009] NSWCCA 227.

252 ROTHMAN J: I have read in draft the reasons for judgment of both Campbell JA and Howie J. I agree with the orders that Campbell JA proposes and I agree generally with the reasons for judgment of each of Campbell JA and Howie J.

253 Generally, courts in this country, do not decide more than is necessary to determine the scenario that is before them. Plainly, in these proceedings, for the reasons given by their Honours, the orders should be as proposed. Whether or not the parity principle applied to the appellant, there could be no justifiable sense of grievance. Because of the general discussion on parity of both Campbell JA and Howie J, I seek to make additional comments on the application of the principle.

254 Because Campbell JA has summarised a number of previous judgments of this Court and of the High Court of Australia, it is unnecessary to recite the details of those judgments. The principle of parity in sentencing derives, as the High Court has made clear, from an application of the fundamental principle of equal justice: Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, per Dawson and Gaudron JJ at 301-302, citing with approval Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610-611, per Mason J, 617-618, per Brennan J, 610, per Gibbs CJ, at 613, per Mason J and at 623, per Dawson J.

255 Equal justice requires that like should be treated alike and that the difference in treatment of different persons should be rational: see Postiglione, supra. Equal justice is a principle that is fundamental to the exercise of judicial power and may also be fundamental to, and a limitation on, the exercise of legislative power in a constitutional democracy in which the implementation of the rule of law is required. In the US, it is guaranteed by a combination of the Fifth Amendment and Fourteenth Amendment: see, inter alia, Slaughter- House Cases, 83 U.S. 36 (1873); United States v Virginia, 518 U.S. 515 (1996), and in Canada by s 15 of the Charter of Rights: see, inter alia, Andrews v Law Society of British Columbia [1989] 1 SCR 143.

256 In Andrews, supra, McIntyre J recited the principle by reference to the Aristotelian principle of formal equality, namely, that “things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unalikeness”: Ethica Nichomacea, trans. W. Ross, Book V3, at p. 1131a-6 (1925).

257 While the High Court of Australia has considered the doctrine of equal justice in relation to parity in sentencing and referred to it as a fundamental of the exercise of judicial power, its more general application as a limitation on legislative power has not been the subject of discussion: but see, in relation to the race power, s 51(xxvi) of the Constitution, Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337 (the Hindmarsh Bridge Case) at 365-366, [40]-[42], per Gaudron J; and see also Native Title Act Case (1995) 183 CLR 373 at 461.

258 Whatever be the situation as to limits on the legislature in the promulgation of legislation that irrationally differentiates between classes of persons, it cannot be doubted that the exercise of judicial power must be devoid of capriciousness and arbitrariness. It is to the lack of capriciousness and arbitrariness (and perceived capriciousness or arbitrariness) that the principle of equal justice is directed.

259 It is the principle of equal justice that has found expression in the principles of parity as between co-offenders.

260 When one is comparing the sentence imposed upon co-offenders, using the term in the same way that Howie J has used it to mean persons involved in and charged with the very same crime, comparison of like with like and any substantial differences warranting different treatment are easily identified. When one is dealing with persons, who are not co-offenders in the strict sense, proper comparison is usually impossible.

261 The difficulty with an attempt to extend the principle of parity to persons who are not strictly co-offenders is that the attempt itself is likely to cause significant difficulties. In other areas of the law, attempts to compare similar, but not identical, attributes have failed, because the attempt encourages artificial and inappropriate comparisons.

262 On the other hand, the principle of equal justice is such a fundamental and important aspect of the exercise of judicial power, that the courts should not prohibit reference to justifiable sense of grievance, simply on the basis that offenders are not strictly co-offenders, in the sense used above. There are examples where the parity principle has been utilised in that way: see OM v R [2009] NSWCCA 267.

263 Ultimately, the process of sentencing involves an exercise in intuitive synthesis, often seeking to reconcile disparate and conflicting goals. Any tool, which aids the assessment of an appropriate, fair and just sentence, ought not be denied to a sentencing judge. But, a slavish implementation of a sentence imposed on another, who is not a co-offender, simply because the facts are partly or arguably comparable, is not a proper exercise of judicial discretion, nor the independent assessment of an appropriate sentence within the range that is available: R v F (2002) 132 A Crim R 308 at 315, per Simpson J, with whom Meagher JA and Howie J agreed (with a presently irrelevant qualification), cited with approval in R v Araya [2005] NSWCCA 283, at [68], per Johnson J, with whom Simpson J and I agreed.

264 This issue was the subject of discussion by the Court, as presently constituted, in HAN, Zhi Qiang v R [2009] NSWCCA 300, in which I said (with whom Campbell JA and Howie J agreed):

R v F

‘Consistency in sentencing may be achieved by the slavish adoption, by a subsequent court, of a sentence selected by an earlier court when the facts are comparable. However, that would be consistency purchased at the cost of the sacrifice of the proper exercise of judicial discretion. Within the bounds of the appropriate range of sentences, each sentencing judge (either at first instance or following appeal) must bring to bear his or her own independent assessment of the particular case.

... Consistency is not derived from a single case. Consistency in sentencing will be achieved from a range of cases involving similar features, and also variables. It depends upon the accumulated wisdom and experience of sentencing judges. In my opinion a single case is inadequate to enable a principled consistent approach.

...

Moreover, while consistency in sentencing is, no doubt, an important goal, equally important for the administration of justice is the public perception that sentences imposed by criminal courts are appropriate to the nature and seriousness of the crime committed.’

Meagher JA (at 309-310) and Howie J (at 316-317) agreed with Simpson J, but preferred to use the words ‘more important’ rather than ‘equally important’, when referring to the public perception that sentences imposed must be appropriate to the nature and seriousness of the crime committed. With great respect, I adopt the comment that the appropriateness of the sentence, given the seriousness and nature of the crime committed, is a ‘more important’, rather than ‘equally important’, principle.”

265 In some circumstances, the principle of consistency and the principle involved in the application of parity in sentencing may coalesce. Fairness, including the principles of equal justice, may dictate that, in some circumstances, the range of sentences available under the principles of consistency, may be so narrow as to be identical with the sentence imposed on an offender in a related crime.

266 Notwithstanding the foregoing, courts should resist attempts to find comparisons or to institute some form of comparative sentencing justice in circumstances that are not identical. Such an attempt will create artificial comparability and probably lead to error. Ultimately, the application of the discretion in sentencing is the combination and consideration of many factors and each case will depend, very much, on its own facts and circumstances.

267 Further to the above, I would also reiterate my agreement with the view expressed by Campbell JA and Howie J as to the appropriate treatment of the judgment of this Court in R v Kerr [2003] NSWCCA 234. It is fundamental to the system of justice operating in this State that it is for the prosecuting authority, alone, to exercise the discretion as to the charge to be preferred; it is for the accused, alone, to determine the plea to be entered; and it is for the sentencing judge, alone, to impose a proper sentence in all of the circumstances for the offence proved. It is no part of the function of a sentencing judge to seek to alter the effect of the exercise of the discretion of the prosecuting authority as to the charge to be preferred.

268 Otherwise, I agree fully with all of the comments made in the reasons for judgment of Howie J, but reiterate that the discount (see [*250*], infra) refers to a combined discount for assistance and the plea of guilty and refers, where the offender will not suffer more onerous conditions of imprisonment for a substantial portion of the term of imprisonment, to a range up to 40%, unless one can show exceptional circumstances; and, in circumstances where there will be more onerous conditions of imprisonment, up to 50%, unless very exceptional circumstances are disclosed: see R v Joseph Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 at [7], [8], [52], [53]; and FS v R [2009] NSWCCA 301 at [16], [17], [18], [19], [20] and [21].

269 Particularly, I would confirm the view I expressed in FS v R, supra, with which Campbell JA and Howie J agreed, to the following effect:

“[21] There are two quite distinct circumstances that arise. The first is a circumstance where the offender will spend the sentence, or a substantial part of the sentence, in more onerous conditions than the general prison population. The second circumstance is where the offender will not suffer more onerous conditions of imprisonment for a substantial portion of the term of imprisonment. In the latter case, unless one can show exceptional circumstances, the reduction for the plea of guilty and assistance should be no more than 40%. In the earlier case (i.e. where there will be more onerous conditions of imprisonment) the 40% figure is inapplicable. In the latter situation the reduction for the plea of guilty and assistance is no more than 50%, unless very exceptional circumstances are disclosed. Onerous conditions of imprisonment are not exceptional circumstances. They are often a corollary of the assistance granted.”

270 With these additional comments, I agree with the reasons for judgment of Howie J (including the general agreement with Campbell JA) and I agree with the orders that his Honour Justice Campbell proposes.

**********

Citations

Jimmy v R [2010] NSWCCA 60

Most Recent Citation

Cases Citing This Decision

193

Green v The Queen; Quinn v The Queen [2011] HCA 49

Hassan v The Queen [2022] SASCA 56

Jenkins v Tasmania [2019] TASCCA 12

Cases Cited

67

Statutory Material Cited

12

R v Huang; R v Siu [2007] NSWCCA 259

Dui Kol v R [2015] NSWCCA 150

Cited Sections

Actions

Download as PDF Download as Word Document

CITATION:	JIMMY v REGINA [2010] NSWCCA 60
HEARING DATE(S):	17 November 2009
JUDGMENT DATE:	9 April 2010
JUDGMENT OF:	Campbell JA at 1; Howie J at 244; Rothman J at 252
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	PROCEDURE - precedents - decisions of particular courts - review of court's previous decisions - effect of Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 and Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 in relation to when a court may depart from its own previous decisions - CRIMINAL LAW - SENTENCE - relevant factors - the parity principle - the types of people whose sentences can be compared under the parity principle - parity between co-offenders - parity between participants in a criminal enterprise - CRIMINAL LAW - APPEAL AND NEW TRIAL - appeal against sentence - grounds for interference - the parity principle - CRIMINAL LAW - particular offences - financial transaction offences - money laundering
LEGISLATION CITED:	Australian Constitution Canadian Charter of Rights Crimes Act 1900 Crimes Act 1914 (Cth) Criminal Appeal Act 1912 Criminal Code Act 1995 (Cth) Customs Act 1901 (Cth) Drug Misuse and Trafficking Act 1985 Financial Transaction Reports Act 1988 (Cth) Misuse of Drugs Act 1981 (WA) Proceeds of Crime Act 1987 (Cth) United States Constitution
CASES CITED:	Alex Mihailovic v The Queen (High Court of Australia, 3 February 1994, noted [1994] 1 Leg Rep page C3) Andrews v Law Society of British Columbia [1989] 1 SCR 143 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Bowtell v The Queen [2004] NSWCCA 17 Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 El Hassan v The Queen [2003] NSWCCA 252 Ellis v The Queen (1993) 68 A Crim R 449 Em v The Queen [2006] NSWCCA 336 Farah Constructions Pty Ltd v Say Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 FS v R [2009] NSWCCA 301 Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 HAN, Zhi Qiang v R [2009] NSWCCA 300 Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 Hudson v The Queen [2009] NSWCCA 59 John v Federal Commissioner of Taxation (1989) 166 CLR 417 Jones v The Queen (1993) 67 ALJR 376 Jones, (NSWCCA, 16 April 1992, unreported) Kardoulias v The Queen [2005] NSWCCA 456; (2005) 159 A Crim R 252 Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337 Kauwenberghs v The Queen [2008] NSWCCA 98; (2008) 186 A Crim R 197 Krakouer v R [1999] WASCA 147; (1999) 107 A Crim R 408 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 Markisic v Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737 Melikian v The Queen [2008] NSWCCA 156 Native Title Act Case (1995) 183 CLR 373 OM v The Queen [2009] NSWCCA 267 Osman v The Queen [2008] NSWCCA 157 Pham v The Queen [2009] NSWCCA 25 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 Queensland v The Commonwealth (1977) 139 CLR 585 R v AAH & AAG [2009] QCA 321 R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555 R v Armstrong [2001] NSWCCA 77 R v Arnold (1993) 30 NSWLR 73 R v Christie [2000] NSWCCA 354 R v Diamond (NSWCCA, 18 February 1993, unreported) R v F (2002) 132 A Crim R 308 R v Formosa [2005] NSWCCA 363 R v Gibson (1991) 56 A Crim R 1 R v Guzman [2000] NSWCCA 261 R v Holder [1983] 3 NSWLR 245 R v Howard (1992) 29 NSWLR 242 R v Huang; R v Siu [2007] NSWCCA 259; (2007) 174 A Crim R 370 R v Isamunadar [2002] NSWCCA 477; (2002) 136 A Crim R 206 R v Johns [1978] 2 NSWLR 259 R v Johnson [2005] NSWCCA 186 R v Jurisic (1998) 45 NSWLR 209 R v Kerr [2003] NSWCCA 234 R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274 R v Mai (1992) 26 NSWLR 371 R v Nguyen [2005] NSWCCA 362; (2005) 157 A Crim R 80 R v Salameh (NSWCCA, 9 June 1994, unreported) R v Shepherd [2003] NSWCCA 287; (2003) 142 A Crim R 101 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Tiddy [1969] SASR 575 R v Underwood [2005] VSCA 80 R v Wall [2002] NSWCA 42; (2002) 71 NSWLR 692 Rend v The Queen [2006] NSWCCA 41; (2006) 160 A Crim R 178 Rexhaj (NSWCCA, 29 February 1996, unreported) Sharpe v The Queen [2002] NSWCCA 96 Shen v R [2009] NSWCCA 251 Slaughter- House Cases, 83 U.S. 36 (1873) Stanton v The Queen [2008] NSWCCA 326 Sumner v R (1985) 19 A Crim R 210 Tatana v R [2006] NSWCCA 398 Thorley (NSWCCA, 5 February 1991, unreported) Tuifua v The Queen [2008] NSWCCA 224; (2008) 189 A Crim R 1 United States v Virginia, 518 U.S. 515 (1996) Watson v The Queen (NSWCCA, 25 February 1992, unreported) Woodgate v R [2009] NSWCCA 137 Wurramarbra v The Queen (1979) 28 ALR 176; 1 A Crim R 291 Xue v R [2009] NSWCCA 227
TEXTS CITED:	Ethica Nichomacea, trans. W. Ross, Book V3
PARTIES:	Jimmy JIMMY (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2008/3043
COUNSEL:	S Wilkinson; M Breeze (Applicant) L Crowley (Crown)
SOLICITORS:	Lloyd Truman Sadiq Solicitors (Applicant) Commonwealth Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/11/0156
LOWER COURT JUDICIAL OFFICER:	Syme ADCJ
LOWER COURT DATE OF DECISION:	19 September 2008

Para No:
CAMPBELL JA	1
PART A – THE FACTUAL BACKGROUND
The Offence Charged	3
Objective Circumstances of the Crime	5
Subjective Matters	19
The Sentence	24
The “Co-Offenders”	27
Siu	28
Huang	31
PART B – SUBMISSIONS
The Applicant’s Submissions
Co-Offenders	47
Differences Between the “Co-Offenders”	49
The Crown Submissions on Disparity	52
PART C – BETWEEN WHOM DOES THE PARITY PRINCIPLE APPLY?
High Court Authority	53
Lowe	54
Jones	62
Postiglione	64
Intermediate Appellate Court Authority	74
Sumner	75
Gibson	78
Howard	83
Ellis	89
Wurramarbra	103
Watson	104
Krakouer	107
Kerr	109
Formosa	119
Returning to Kerr	124
Araya	131
Kardoulias	141
Nguyen	142
Rend	159
Pham	161
Woodgate	171
Shen	173
OM	180
Huang and Siu	196
Three Cases the Applicant Relies On	197
The Queensland View of Proper Scope of Parity Principle	198
Is this a Type of Case to Which the Parity Principle Could Never Apply?	200
Application to Facts	204
PART D – OTHER ASPECTS OF THE “PARITY” APPEAL
Different Sentences Justified?	207
PART E – THE NON-PAROLE PERIOD	225
Order	243
HOWIE J	244
ROTHMAN J	252
Equal Justice and Parity	254
Parity of Charging	267