Kadwell (a pseudonym) v R

[2021] NSWCCA 42

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kadwell (a pseudonym) v R [2021] NSWCCA 42

Hearing dates:

8 March 2021

Decision date:

19 March 2021

Before:

Leeming JA at [1]; Walton J at [34]; Adamson J at [39]

Decision:

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

Catchwords:

SENTENCING — Relevant factors on sentence — Co-offenders — Parity

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 22, 23, 25D, 53A

Crimes Act 1900 (NSW), s 97

Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A

Cases Cited:

AMZ v R [2017] NSWCCA 184

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25

Bridge v R [2020] NSWCCA 233

Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145

Daw v R [2017] NSWCCA 327

Gaggioli v R [2014] NSWCCA 246

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

House v The King (1936) 55 CLR 499; [1936] HCA 40

Ivory v R [2014] NSWCCA 181

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528

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

Noonan v R [2021] NSWCCA 35

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

R v Clarke [2013] NSWCCA 260

R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159

Vaughan v R [2020] NSWCCA 3

Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category:

Principal judgment

Parties:

Kadwell (a pseudonym) (Applicant)
Regina (Respondent)

Representation:

Counsel:
J Stratton SC / D Grippi (Applicant)
E Balodis (Respondent)

Solicitors:
Hughes & Taylor (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/184662

Publication restriction:

Non-publication of any information or material that may lead to the identification of the applicant (Court Suppression and Non-publication Orders Act 2010 (NSW), s 7)

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

17 April 2020

Before:

Mahony SC DCJ

File Number(s):

2019/184662

Judgment

1. LEEMING JA: I have had the advantage of reading the judgment of Adamson J in draft. Her Honour’s description of the factual and procedural background enables me to express much more concisely than would otherwise be the case why I consider that there is insufficient disparity between the aggregate sentence imposed on the appellant and that imposed on her co-offender, such that the appellant has a justifiable sense of grievance, warranting this Court’s intervention.

2. In order to explain why, there is no avoiding a descent into the messy details underlying this appeal, made more difficult by different exercises of prosecutorial discretion in relation to substantially similar offending, and the highly regrettable fact that the appellant and her co-offender were sentenced on different days by the District Court constituted by different judges. In doing so, I was greatly assisted by the submissions of Mr Stratton and Mr Balodis, and in particular the comparison table of indicative sentences in the submissions filed by the latter, the substance of which appears in Adamson J’s reasons.

3. It is necessary to bear in mind four different bases of comparison between the appellant and her co-offender.

1. There is the aggregate sentence from which this appeal is brought, which is to be compared with the aggregate sentence imposed on the co-offender.

2. There are the three and four charges to which the appellant and her co-offender respectively pleaded guilty and for which aggregate sentences were imposed on each of them.

3. There are, respectively, the three and four indicative sentences specified by the sentencing judges, in accordance with statute.

4. There are the 12 and 14 instances of offending (supplies of prohibited drugs and, in one case, an agreement to supply) by the appellant and the co-offender respectively which have, by separate exercise of prosecutorial discretion and separate agreement prior to the guilty pleas being made, resulted in the three and four charges being pressed and guilty pleas accepted.

4. While the details of the underlying offending and the indicative sentences inform the assessment of whether the appellant has a justifiable sense of grievance, the most important considerations are the actual sentences imposed and the charges to which guilty pleas were entered and for which those sentences were imposed.

5. Both the appellant and her co-offender were given aggregate sentences pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentence imposed on the appellant was imprisonment for 4 years and 3 months, with a non-parole period of 2 years and 3 months, backdated to 13 June 2019. The sentence imposed on the co-offender was imprisonment for 5 years and 9 months with a non-parole period of 2 years and 10 months, backdated to 21 November 2019.

6. In very large measure, the offending was identical. Both were sentenced in respect of a jointly made supply of methylamphetamine known as “supply 2”. Both were sentenced in respect of jointly made supplies of heroin known as supplies 1, 3, 4, 6, 7, 8, 10 and 12. Both were sentenced in respect of jointly made supplies of gamma-Butyrolactone (or “GBL”) known as supplies 9 and 11. Both were sentenced in respect of an agreement to supply 2000g of GBL.

7. In addition, the co-offender was sentenced in respect of supplies 13 and 14. Supply 13 was a supply of 1627.5g of GBL and supply 14 was a supply of 12.4g of heroin. There was no “supply 5” for which either was sentenced. Thus all 12 of the instances of offending in which the appellant participated also involved the co-offender, but his offending also extended to two additional supplies.

8. Both the appellant and her co-offender pleaded guilty to three identical charges comprising (a) ongoing supply of heroin and methylamphetamine, (b) ongoing supply of heroin and (c) commercial supply of GBL. However, the co-offender also pleaded guilty to a fourth charge of agreement to supply a commercial quantity of GBL. The maximum penalty for each of the three offences to which both appellant and co-offender pleaded guilty was 20 years imprisonment. The maximum penalty for the further offence to which the co-offender pleaded guilty and was sentenced was also 20 years imprisonment.

9. Although three of the offences were identical, the individual supplies constituting the elements of each offence diverged slightly. The first charge of ongoing supply of heroin and methylamphetamine was based on supplies 1, 2, 3, 4 and 6 in the case of the appellant, but only supplies 1, 2, 3 and 4 in the case of the co-offender. The second charge of ongoing supply of heroin was based on supplies 7, 8, 10 and 12 in the case of the appellant, but supplies 6, 7, 8, 10, 12 and 14 in the case of the co-offender. The third charge of commercial supply was based on supplies 9 and 11 and the agreement to supply in the case of the appellant, but supplies 9, 11 and 13 in the case of the co-offender.

10. However, it is to be doubted that much turns on those differences. They provide a distracting complication if comparisons are to be made between the indicative sentences. But the critical distinction is that the greater underlying offending by the co-offender was reflected in his pleading guilty to, and being sentenced for, four serious drug offences, while the appellant pleaded guilty to, and was sentenced for, three serious drug offences.

The principle of parity

11. The principle of parity derives from the fundamental norm of equal justice according to law. As applicable to this appeal, it was said in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]:

“Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2001) 207 CLR 584 at 608 [65]:

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

12. Their Honours referred, at [30], to the difficulty that can arise, in appeals based on the operation of the principle of parity, when participants in the same offending conduct have been differently charged:

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

13. Returning to the present appeal, the fact that the appellant’s co-offender has been charged in relation to different offending, and has been charged differently in relation to the same offending, does not prevent the operation of the principle of parity. The ultimate question remains whether the appellant has made out unjustifiable disparity between her sentence and that of her co-offender. That question is to be answered by consideration of substance rather than form.

Two complicating submissions may be put to one side

14. There were two submissions which had the capacity to complicate the analysis, both of which I would reject.

15. The first concerns backdating. All component parts of the sentence must be compared: Postiglione v The Queen (1997) 189 CLR 295 at 302; [1997] HCA 26. The primary focus remains the head sentence and the non-parole period, but a differential in commencement dates may be relevant.

16. Both offenders were in custody when they were sentenced. Both aggregate sentences were backdated. Each was backdated to a different commencement date. In fact the appellant’s was backdated some five months earlier than the co-offender’s. Considered in isolation, that worked to her advantage: it substantially subsumed an existing community corrections order imposed in October 2019. However, the effect of backdating upon the co-offender’s sentence was to overlap with the balance of term of earlier offending in circumstances where the co-offender had had his parole revoked. Thus there was a very real benefit to the co-offender, not shared by the appellant, insofar as it shortened the period of imprisonment.

17. However, contrary to Mr Stratton’s submissions, I would place little weight on this. The differential effect on earlier sentencing may contribute to a general sense of grievance, but, as Mr Balodis submitted, that is a consequence of earlier offending in which the appellant did not participate. I would not exclude the consideration entirely, but the differential effects of backdating, reflecting an appreciation of sentences earlier imposed on the appellant and co-offender, are only a minor contributor to whether there is a justifiable sense of grievance.

18. Secondly, the Crown sought to rely upon the “strong recommendation” that the co-offender attend, on his release to parole, a residential drug rehabilitation facility. The gist of the submission was that the effective period of deprivation of liberty was longer than the non-parole period sentenced, assuming that the co-offender was released on parole before the conclusion of his sentence, on terms consistent with the sentencing judge’s recommendation, namely, a residential rehabilitation facility.

19. Again I do not accept that this is material. First and foremost, a similar recommendation was made in relation to the appellant. True it is that there are numerous references to the same recommendation in the ex tempore sentencing remarks in respect of the co-offender, and only one reference in the reserved remarks for sentencing the appellant. But nothing turns on how many times the recommendation was expressed. Secondly, the recommendations of either sentencing judge are no more than that, and in no way constrain the decision to grant parole. Thirdly, there can be no certainty as to whether either the appellant or the co-offender will qualify in due course for parole, while the question whether the sentences disclose justified disparity is to be assessed now, without the benefit of hindsight (and indeed without the benefit of evidence tendered “on the usual basis” in accordance with Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 in the event resentencing is required).

The significance of the offences charged

20. It is settled that a court cannot review the exercise of prosecutorial discretion leading to the formulation of charges. A useful decision illustrating how this can inform the operation of the principle of parity is Gaggioli v R [2014] NSWCCA 246. This Court addressed the submission that there had been “an arbitrary selection of different charges by the Crown which has been productive of unfairness to the appellant”, and that that selection did not stand in the way of the application of the principle of parity to result in wholly identical sentences, notwithstanding that they were sentences for different offences. The appellant had pleaded guilty to three counts of aggravated robbery in company contrary to s 97(2) of the Crimes Act 1900 (NSW), while the co-offender was sentenced for three counts of armed robbery, contrary to s 97(1) of the Crimes Act. The maximum penalty for the former was 25 years imprisonment, for the latter, 20 years imprisonment. The two men were participants in the same enterprise, and both were sentenced on the basis that it was the co-offender who had carried an object which looked like a pistol.

21. The main submission was reproduced at [29]:

“Senior counsel for the applicant accepted that the discretion in the prosecution to determine the charges to be preferred against an offender or offenders is not susceptible to judicial review. He submitted, however, that does not operate to exclude or even limit the operation of the parity principle and that when the principle of equal justice is applied in this case, wholly identical sentences should result, despite the difference in the maximum penalty between the two offences.”

22. This Court rejected the submission. This shows the significance of attending to the offences to which the appellant and co-offender pleaded guilty and for which they were sentenced, as opposed to the underlying offending. The prosecutorial discretion, and the separate agreements of the offenders to enter guilty pleas, are not susceptible to review or criticism under the guise of an appeal based on the principle of parity.

Error should be inferred

23. Mr Stratton candidly conceded that the sentencing judge had synthesised all of the matters relevant to the issue of parity at [115], which Adamson J has reproduced at [74] below. The question that arises on appeal is whether, notwithstanding his Honour bringing those matters to bear, the outcome offends the principle of parity. The ground is not made out merely because the appellate court would have imposed a different sentence based on its conception of the parity principle. It remains the case that appellate review is conducted in accordance with House v The King. As Basten JA said in this context in Daw v R [2017] NSWCCA 327 at [21]:

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

24. In his Honour’s language at [23], the question is whether something palpably wrong has occurred. I think it has.

25. As Adamson J has explained, the co-offender’s criminal antecedents are substantially worse than those of the appellant. His moral culpability is slightly greater than that of the appellant. His prospects of rehabilitation are much more guarded than those of the appellant. His offending took place while he was on parole. He was sentenced following his guilty pleas to four serious drug offences, rather than three. His underlying offending was greater, in that it included two additional supplies, but what is of most significance is the offences for which sentence was imposed. Against this, it is to be borne in mind that the co-offender was entitled to a 37% discount for the guilty plea and assistance to police, while the appellant was entitled only to a 30% discount.

26. Focussing merely upon the lengths of sentences and the non-parole periods, the question is whether there is a justified sense of grievance in the appellant’s sentence being some 74% of the co-offender’s (51 months, as opposed to 69 months), and the non-parole period being some 79% (27 months as opposed to 34 months). Should the appellant’s sentence for three serious drug offences be that similar to the sentence of the co-offender imposed for four serious drug offences? Everything, save for the greater degree of assistance to investigating authorities, pointed to the appellant’s sentence being significantly less than that of her co-offender. I hope I am fully cognisant of the difficulties in bringing together such similar underlying offending with very substantially different subjective features (namely, serious criminal record, breach of parole, higher culpability, greater offending albeit greater assistance to law enforcement authorities), but I think it must be concluded that something has gone awry. The appellant’s sentence should not be 75% or 80% of that imposed on the co-offender. It should be closer to 2/3 of his sentence. Ultimately, that is a conclusion derived from a comparison of the cases of the appellant and her co-offender.

27. However, I am strengthened in that conclusion by having regard to the indicative sentences imposed. For the first ongoing supply charge, the indicative sentence for the appellant was 2 years and 6 months, while the indicative sentence for the co-offender was 2 years and 7 months. Both offenders were sentenced for supplies 1, 2, 3 and 4, but in the case of the appellant and not the co-offender, it also included supply 6. Accepting that the co-offender was entitled to a greater discount for assistance, nonetheless, if indicative sentences are compared, I would conclude that something has gone awry. The co-offender made the same supplies while on parole, and had a substantially worse subjective case, yet both have received almost precisely the same indicative sentence. The fact that the appellant’s indicative sentence included supply 6 does not, to my mind, warrant a variation of only one month.

28. The point is if anything clearer in relation to the indicative sentences for the second ongoing supply charge. The indicative sentence for the appellant was 3 years, that for the co-offender was 3 years and 6 months. The entirety of the underlying offending which gave rise to this charge (supplies 7, 8, 10 and 12) was common to both offenders. Yet in addition, the co-offender was also under this charge sentenced for two further supplies (supplies 6 and 14). When to those considerations is added the fact that his offending occurred while on parole, and his subjective case, I would conclude that there is insufficient disparity in the two indicative sentences, despite the co-offender’s greater discount for assistance.

24. A third circumstance supporting the inference that something has gone awry in the application of the principle of parity is the fact that the co-offender who pleaded guilty to four charges received indicative sentences totalling some 6 years (or 66%) more than the three indicative sentences in respect of the appellant. Questions of notional accumulation and concurrency are very much matters for the judge exercising the sentencing discretion. Nonetheless I consider that there is force in the submission that it is remarkable that the sum of indicative sentences of the co-offender is 66% more than that imposed on the appellant, yet his aggregate sentence is only some 25% greater than hers.

25. I am conscious of the authorities concerning the role of accumulation and concurrency to indicative sentences, which are considered and analysed by Beech-Jones J in Noonan v R [2021] NSWCCA 35 at [20]-[24]. It is not necessary to consider those decisions. I have relied on the marked difference between the sums of the appellant’s and co-offender’s indicative sentences as opposed to the aggregate sentences imposed merely by way of a consideration which supports my conclusion that something has gone awry in the consideration of parity.

Orders

31. I conclude that this ground is established. I would grant leave to appeal, allow the appeal, quash the sentence imposed by the District Court on 17 April 2020, and in lieu thereof, resentence the appellant.

32. The affidavits read without objection against the possibility that this Court would re-exercise the sentencing discretion record continuing (although not unblemished) progress towards her rehabilitation. They do not warrant any different approach to the unchallenged findings on the basis of which sentence was imposed by the District Court.

33. I propose an aggregate sentence of imprisonment for 3 years and 9 months with a non-parole period of 2 years, backdated to 13 June 2019, with the appellant being first eligible for parole on 13 June 2021. Pursuant to s 53A(2)(b), I would indicate that had separate sentences been imposed, they would be (allowing for a total discount of 30% for the appellant’s guilty plea and assistance) 28 months (seq 5), 31 months (seq 14) and 35 months (seq 13).

34. WALTON J: I have had the advantage of reading the draft judgments of Leeming JA and Adamson J.

35. I agree with the judgment of Adamson J for the reasons given by her Honour, save in one respect which I shall discuss below. I agree with the orders proposed by Adamson J.

36. Whilst I accept the assessment by Adamson J that both the applicant and co-offender were susceptible to drug addiction and that this factor was instrumental in their offending behaviour and that both of the sentencing judges made findings regarding rehabilitation and the need for residential rehabilitation on release, I do not agree with her Honour (and Leeming JA who reached a similar conclusion) that this factor is not a relevant distinguishing feature between the co-offender and the applicant or that the distinction is not reasonably apparent from the respective sentencing judgments.

37. There can be little doubt that the consideration of this issue is made more complicated by there being different judges sentencing the co-offenders (although I accept that situation, no doubt, arose due to substantial practical difficulties). However, it is apparent that Judge Syme placed considerable weight in sentencing the co-offender on the co-offender having reached, as Mr Balodis for the Crown put it, a “cross roads”. The co-offender was found to be generally remorseful and determined to address his drug use. Whilst recommendations of a sentencing judge regarding conditions for parole do not have the force of law, there is a real significance for sentencing purposes to her Honour recommending that a condition of the co-offender’s parole was that he be released into a residential rehabilitation program and remain in this program, compliant, it may be inferred, with the program’s terms. Judge Syme’s remarks corresponded to Dr Furst’s recommendations for release to, as her Honour described it, a “structured step down drug and alcohol rehabilitation facility” when the co-offender was eligible for parole. That approach was reflected in her Honour’s approach to the finding of special circumstances.

38. Ultimately I agree with Mr Balodis’ submission that her Honour adopted ‘bespoke sentencing’, involving some subtleties. Nonetheless, there were substantial implications in her Honour’s recommendations in sentencing in that respect which served to distinguish the sentence imposed on the applicant and the offender.

39. ADAMSON J: Ms Kadwell (a pseudonym), the applicant, seeks leave to appeal against a sentence imposed on her by Mahony SC DCJ on 17 April 2020 following her plea of guilty to the following three charges:

1. ongoing supply of prohibited drugs (heroin and methylamphetamine) between 9 April 2019 and 7 May 2019 (sequence 5);

2. ongoing supply of prohibited drugs (heroin) between 7 May 2019 and 27 May 2019 (sequence 14); and

3. supply of not less than a commercial quantity of prohibited drugs (heroin) between 16 May 2019 and 13 June 2019 (sequence 13).

40. Sequences 5 and 14 were offences under s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW), for which the maximum penalty is 20 years’ imprisonment. Sequence 13 was an offence under s 25(2) of the Drug Misuse and Trafficking Act, for which the maximum penalty is 20 years’ imprisonment and the standard non-parole period is 10 years’ imprisonment.

41. His Honour imposed an aggregate sentence of 4 years and 3 months’ imprisonment, commencing on 13 June 2019 and expiring on 12 September 2023, with a non-parole period of 2 years and 3 months’ imprisonment. The applicant will be first eligible for release on 12 September 2021. The indicative sentences were: 2 years and 6 months (sequence 5); 3 years (sequence 14); and 3 years and 6 months, with a non-parole period of 1 year and 9 months (sequence 13). The ratio of 53% between the non-parole period and the total term reflected his Honour’s finding of special circumstances.

42. The applicant was charged with a co-offender (the co-offender). The Crown case was that they had engaged in a joint criminal enterprise supplying prohibited drugs for cash to an undercover operative (referred to as a registered source (RS)) between April and June 2019 at Mascot, Waterloo and Zetland. Both the applicant and the co-offender pleaded guilty to the offences set out in the table below. The applicant was committed for sentence from the Local Court on 3 December 2019.

43. On 21 February 2020, the sentence hearing for the co-offender proceeded before Syme DCJ, following which her Honour imposed an aggregate sentence of 5 years and 9 months commencing on 21 November 2019, with a non-parole period of 2 years and 10 months. The co-offender will first be eligible for release on 20 September 2022.

44. Because the applicant seeks leave to appeal on the single ground of alleged disparity between the sentence imposed on her and that imposed on the co-offender, it is convenient to set out, in the form of a table (adapted from the table which was included as part of the Crown’s submissions), which summarises, in general terms, some of the differences between the applicant and the co-offender:

Parity table

Comparison	Applicant (Sentencing Judge: Mahony DCJ SC)	Co-offender (Sentencing Judge: Syme DCJ)
Sentence	Aggregate: 4 yr 3 m, NPP 2 yr 3 m	Aggregate: 5 yr 9 m, NPP 2 yr 10 m
Charges	1. Ongoing supply prohibited drugs (heroin, methylamphetamine), DM&T s25A 2. Ongoing supply prohibited drugs (heroin), DM&T s25A 3. Commercial quantity supply prohibited drug (GBL), DM&T s25(2)	1. Ongoing supply prohibited drugs (heroin, methamphetamine), DM&T s25A 2. Ongoing supply prohibited drugs (heroin), DM&T s25A 3. Commercial quantity supply prohibited drug (GBL), DM&T s25(2) 4. Agreement to supply commercial quantity prohibited drug (GBL), DM&T s25(2)
Objective seriousness	Similar to findings for co-offender: 1. Significantly below mid-range 2. Less than mid-range, towards the top of low range 3. Below mid-range but at top of low-range	1. Significantly less than mid-range 2. Somewhat less than mid-range 3. Very slightly less than mid-range 4. Less than mid-range but not significantly so
Discount for plea	25% for guilty pleas in Local Court	25% for guilty pleas in Local Court
Further Discount	5% (for assistance)	12% (for assistance)
Age	28 at time of offences 29 at time of sentencing	30 at time of offences and at time of sentencing
Criminal record	Limited. Deprived of leniency due to previous drug supply.	Lengthy. Deprived of leniency
Conditional liberty	On bail for earlier drug supply and other drug-related charges; subject to two-year Community Corrections Order	On parole
Special circumstances	Statutory ratio adjusted to 53%	Statutory ratio adjusted to 49%

45. It is also important to have regard to the offences for which each was sentenced and the indicative sentences. Both the applicant and the co-offender had their indicative sentences discounted by 25% for their respective pleas of guilty in the Local Court. The discount for assistance in respect of the applicant was 5% and the discount for assistance in respect of the co-offender was 12%. The following table (adapted from the one included in the Crown’s submissions) sets out both the discounted indicative sentences as well as the notional pre-discount figure.

Comparative Table

Applicant			Co-offender
Undis-counted	Discounted	Undis-counted	Discounted
Ongoing supply of heroin and methylamphetamine Seq 5 for both offenders	Supply 1 9 April, .49g heroin	3 years and 7 months or 43 months	2 years and 6 months or 30 months	Supply 1 9 April, .49g of heroin.	4 years 2 months or 50 months	2 years 7 months or 31 months
	Supply 2 11 April, 3.3g of methylamphetamine.			Supply 2 11 April, 3.3g of methylamphetamine.
	Supply 3 11 April, 3.38g of heroin			Supply 3 11 April, 3.38g of heroin.
	Supply 4 17 April, 2.74g of heroin			Supply 4 17 April, 2.74g of heroin.
	Supply 6 7 May, 6.85g of heroin
Ongoing supply of heroin Seq 14 for the applicant Seq 15 for the co-offender	Supply 7 9 May, 39.54g of heroin	4 years and 4 months or 52 months	3 years or 36 months	Supply 6 7 May, 6.85g of heroin	5 years and 6 months or 66 months	3 years and 6 months or 42 months
	Supply 8 16 May, .76g of heroin			Supply 7 9 May 39.54g of heroin
	Supply 10 22 May, 27.2g of heroin			Supply 8 16 May .76g of heroin
	Supply 12 27 May, 26.9g of heroin			Supply 10 22 May 27.2g of heroin
	Supply 12 27 May 26.9g of heroin
	Supply 14 30 May 12.4g of heroin
Rolled up commercial supply of GBL Seq 13 for both offenders	Supply 9 16 May, 21.8g of GBL	5 years or 60 months	3 years 6 months or 42 months NPP of 1 year and 9 months or 21 months	Supply 9 16 May 21.8g of GBL	7 years and 2 months or 86 months	4 years and 6 months or 54 months
	Supply 11 27 May, 1679g of GBL			Supply 11 27 May 1679g of GBL
	Agreement to supply 13 June, 2000g of GBL			Supply 13 30 May 1627.5g of GBL
Agreement to supply commercial quantity of GBL Seq 16 for Co-offender only	N/A	N/A	N/A	13 June 2000g of GBL	6 years and 8 months or 80 months	4 years and 2 months or 50 months NPP of 2 years and 1 month

46. The table also endeavours to reflect the different way in which the sequences were constructed. For example, supply 6 was included in sequence 5 for the applicant, whereas it was included in sequence 15 for the co-offender. The co-offender was sentenced for all the offences for which the applicant was sentenced, but he was also sentenced to two additional offences committed on 30 May 2019: supply 13 (1627.5g of GBL) and supply 14 (12.4g heroin).

47. Further, although they were both sentenced in respect of an agreement to supply 2000g of GBL on 13 June 2019, it formed part of sequence 13 for the applicant, whereas it was a separate charge in respect of the co-offender. These matters of charging fall within the prosecutor’s discretion and are not generally subject to judicial review: Ivory v R [2014] NSWCCA 181 at [60]-[65] (Bellew J, with whom Hoeben CJ at CL and I agreed). However, it is important to be aware of such matters for the purposes of parity.

48. An understanding of the basis for the respective aggregate sentences imposed on the applicant and the co-offender is assisted by three legislative requirements. First, the discount for the plea was quantified and was, in any event, statutorily prescribed: see s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act). Second, s 23(4)(c) of the Act requires discounts for assistance to be quantified. Third, s 53A(2)(b) of the Act obliges a judge who imposes an aggregate sentence to specify the sentence that would otherwise have been imposed for a particular offence. The comparative table is a useful tool in determining a parity ground, in part because of the importance of comparing undiscounted indicative sentences, as part of that task: see AMZ v R [2017] NSWCCA 184 at [13] (Hoeben CJ at CL, Price and Schmidt JJ agreeing); Bridge v R [2020] NSWCCA 233 at [45]-[49] and [55] (Price J, Johnson and Wright JJ agreeing). As this Court said in JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [39] (RA Hulme J, Hoeben CJ at CL and I agreeing), approving R v Clarke [2013] NSWCCA 260 at [68], [75] (McCallum J), the specification of indicative sentences “assists when questions of parity of sentencing as between co-offenders arise.”

49. The importance of comparing pre-discount figures for indicative sentences can be illustrated by the following example. Let it be assumed that two offenders, A and B, whose subjective circumstances were identical, took part in a joint criminal enterprise to which they made equal contributions. Offender A pleaded guilty in the Local Court and gave assistance to the prosecuting authorities by informing them that it was he and B who committed the offence, in circumstances where their identities could not otherwise have been established. The sentencing judge gave offender A a discount of 25% for the plea of guilty and 25% under s 22 of the Act for the assistance. Offender B pleaded not guilty and was convicted after trial. Offender A was sentenced to 10 years’ imprisonment with a non-parole period of 7 years and 6 months. Offender B received the same sentence. Offender A would have a legitimate grievance on the grounds of parity since, although their sentences were identical, equal justice would require that offender B’s sentence be double that of offender A on the assumed facts (subject to any adjustment under s 23(3) of the Act).

50. On the basis of the facts assumed above, offender B would not have a legitimate grievance if he received a sentence of 6 years imprisonment with a non-parole period of 4 years and 6 months and offender A received a sentence of 3 years’ imprisonment with a non-parole period of 2 years and 3 months. The undiscounted sentences would be the same (both 6 years) and the reason for the disparity would be explained by the discounts which applied to offender A but did not apply to offender B.

51. This is not to say that the aggregate sentence itself is irrelevant since it is important for what it shows about notional accumulation and concurrency: Vaughan v R [2020] NSWCCA 3 at [91], [97] and [101] (Johnson J, Macfarlan JA and R A Hulme J agreeing). Inferences can be drawn from the aggregate sentence as to how the principle of totality has been applied.

52. The application of these principles to the present case will be addressed when the parity ground is considered below.

The proceedings on sentence in respect of the applicant

53. The applicant’s proceedings on sentence did not take place until 3 April 2020. Due to the unavailability of Judge Syme, the proceedings were heard by Mahony SC DCJ. It is desirable that the same judge sentence two co-offenders: Postiglione v The Queen (1997) 189 CLR 295 at 320 (Gummow J) and 338 (Kirby J); [1997] HCA 26; see also Lowe v The Queen (1984) 154 CLR 606 at 617 (Brennan J) and 622 (Dawson J); [1984] HCA 46. However, as in the present case, this is not always practical.

Evidence adduced by the Crown at the sentence proceedings

54. The Crown tendered the Court Attendance Notices for sequences 5, 13 and 14. It also tendered a statement of agreed facts. It is not necessary to reproduce the agreed facts in full. It is sufficient to note that it was agreed that during December 2018 police in Redfern began a number of controlled operations in relation to the supply of prohibited drugs. The applicant and the co-offender became the targets of controlled operations in which the same RS purchased prohibited drugs from them. It was agreed that “at all times [the applicant] and [the co-offender] acted as part of a joint criminal enterprise.”

55. The agreed facts recorded that the applicant and co-offender used mobile devices to communicate with the RS. For some of the instances of supply, they used a motor vehicle, which was driven by the applicant. For several instances of supply, the RS also got into the motor vehicle, which was where the transaction occurred. The agreed facts also indicated that the applicant and co-offender worked as a team. For example, the following facts were agreed with respect to supplies 2 and 3, which were part of sequence 5:

“9.    On 10 and 11 April 2019, the RS exchanged a number of messages with [the applicant] on the app Signal. They arranged for RS to purchase an ‘h [heroin] ball’ for $1150 and an ‘I [ice] ball’ for $650, and to meet near the Meriton apartments in Zetland.

10.    On 11 April the RS met with briefing police and obtained recording equipment and buy money. At about 2.25pm, whilst he was waiting in a park near the Zetland Meriton Apartments, the RS received a phone call from [the applicant], who said ‘I can see you.’

11.    [The applicant] drove up in a silver station wagon, and motioned for the RS to get into the car. He got into the back seat. [The co-offender] was sitting in the front seat. Police surveillance captured a number of photos of the silver station wagon, with [the applicant] in the driver's seat and [the co-offender] sitting in the passenger seat. The registration of the vehicle was [xxx].

12.    They drove around the corner and pulled over. [The applicant] pulled the drugs out from her clothing and handed them to [the co-offender]. [The co-offender] turned in his seat and handed the drugs to the RS. [The co-offender] said, 'The gear's mad, trust me, there's no cut.’ The RS asked, 'Same as yesterday?’ [The co-offender] replied, ‘Exactly the same.' [The applicant] said ‘Same bag.’ The RS handed $1800 of the buy money to [the co-offender]. They had further conversations about the RS being able to get rid of the stuff quickly, and wanting to organise more. [The co-offender] said, ‘We're ready to go again straight away, whenever you need to.’ [The applicant] said, ‘If it's a consistent thing we might be able to do the balls of I [ice] for 6.’ [The co-offender] said, ‘You keep getting from us the prices will get better.’ The interaction was recorded by a surveillance device which captured audio and video in which [the applicant’s] face is clearly visible, both [the applicant’s] and [the co-offender’s] voices are heard, and some of the side of [the co-offender’s] face is visible.

13.    The drugs were later analysed to be 3.30 grams of methylamphetamine and 3.38 grams of heroin.”

56. The Crown also tendered the applicant’s criminal history, which recorded that her adult criminal history included two counts of supply of not less than a small quantity of prohibited drug on 16 November 2018, in respect of which she was subject to a two-year Community Corrections Order (CCO) commencing on 22 October 2019. A condition of the CCO was that the applicant was to “undertake all drug and alcohol treatment as directed including attendance at and completion of any required rehabilitation as directed” under the supervision of Community Corrections Service Treatment Programs. Her adult criminal history also included one count of possess prohibited drug on 16 November 2018; one count of possess prohibited drug on 18 December 2018; and one count of attempt to possess prescribed restricted substance on 18 December 2018. In respect of these three counts, convictions were entered under s 10A of the Act (with no other penalty imposed).

56. The Crown tendered the applicant’s custodial history which indicated that, apart from a single night in custody on 18 December 2018 (following which she was released when granted bail on 19 December 2018), she was first in custody as a consequence of her arrest on 14 June 2019, at which time she was charged with offences which included those incorporated in sequences 5, 13 and 14. At that time she was on bail, pending resolution of the outstanding charges relating to the offences on 16 November 2018 and 18 December 2018, which were not finally dealt with by the Local Court until 22 October 2019.

57. The Crown also tendered documents relating to the sentence imposed on the co-offender, which included the agreed facts on sentence for the purpose of the sentence imposed on him by Syme DCJ. The Crown tendered the co-offender’s criminal history, which was lengthy and included offences such as break and enter, common assault and robbery armed with an offensive weapon. Although these were not offences under the Drug Misuse and Trafficking Act, they were accepted to be drug-related. The co-offender’s criminal history recorded that on 23 May 2016, he committed robbery armed with offensive weapon (not a firearm). On 28 July 2017, he was sentenced by the District Court to a term of imprisonment of 3 years and 9 months to commence on 24 November 2016 and expire on 23 August 2020 with a non-parole period of 2 years and 3 months to commence on 24 November 2016 and expire on 23 February 2019. The co-offender’s custodial history recorded that he was released to parole on 23 February 2019 and was on conditional liberty before he was arrested and charged on 14 June 2019. His parole was revoked by the Parole Board on 3 July 2019, with effect from 9 April 2019 as a result of the subject charges. At its meeting on 2 August 2019, the Parole Board indicated that it would reconsider the co-offender for possible release on the parole eligibility date of 12 June 2020. This did not eventuate as, in the meantime, Syme SC DCJ had imposed the sentence of imprisonment on him. The effect of the revocation of parole (with retrospective effect) was, as Mr Stratton SC, who appeared with Mr Grippi for the applicant, explained, that the co-offender’s sentence for the robbery, taking into account the balance of parole of 1 year, 4 months and 15 days, expired on 27 October 2020.

58. In her Honour’s reasons for sentencing the co-offender (which were before the sentencing judge), she said, of this factor:

“The Court has a discretion as to when the sentence ought be commenced. His current sentence otherwise expires in October of this year. I am aware that the Court has discretion as to when to commence the sentence between the date of his arrest, or the date of revocation of parole and today's sentencing date.

Taking into account first of all the fact that him being on parole is an aggravating circumstance, taking into account that he was on parole for, and fairly unsuccessfully on parole for a very short period of time, but also taking care not to double-count that as an aggravating circumstance, together with the commencement date, I will propose in due course the aggregate sentence that I will propose and impose will commence on 21 November of last year, giving a short accumulation, but some concurrency with respect to the revocation of parole.”

60. The Crown also tendered a sentence assessment report of Shelley Stetcopoulos, Community Corrections Officer, dated 26 March 2020, who noted that the applicant had the ongoing support of her family and, upon her release, would live with her father, who needed her care. Ms Stetcopoulos assessed the applicant as posing a medium risk of reoffending and proposed a supervision plan which would involve the applicant being directed to attend and complete residential rehabilitation to address her drug dependency. Ms Stetcopoulos assessed the applicant as being unsuitable to undertake community service work because her unresolved drug use would pose a work health and safety risk.

61. The applicant tendered a report of Dr Stephen Allnutt, dated 2 March 2020, who diagnosed substance use disorder and considered her presentation to be consistent with a diagnosis of persistent depressive disorder (dysthymic disorder). Dr Allnutt noted that the applicant had difficulty withdrawing from substances and was using Buprenorphine intermittently in gaol. He considered her to be motivated to be abstinent from drugs but opined that she was more likely to be successful in a formal rehabilitation program. He proposed that, on release, she be admitted to such a program for a “minimum of three to six months.”

62. The applicant also tendered a letter written by her in which she expressed her regret as to what she had done and her desire to look after her father and lead a drug-free life. The evidence adduced on her behalf included an affidavit affirmed by her father, who deposed to her childhood and upbringing and her recent difficulties with prohibited drugs. He also deposed as to his own health, including that he has multiple sclerosis. The applicant also adduced evidence of the several courses which she had completed while in gaol which show a commendable willingness to take up opportunities offered to her in gaol. The applicant also tendered a police facts sheet relating to an assault alleged to have been committed on her by a former boyfriend.

The Crown’s submissions on sentence

63. The Crown provided written submissions as well as addressing the sentencing judge orally. It submitted that the applicant and the co-offender were “equal partners in their business.” It continued, in written submissions:

“This submission is made on the basis of their involvement together in every supply. Each offender at various times handles the money, the drugs, the driving, and the communication with the Registered Source. The initial contact was made by the RS to [the applicant], but they each participated in the supplies. They were both using drugs themselves, they were both getting drugs from the same dealer, they had both accumulated a drug debt and they both met the RS together, save for one occasion.”

64. The Crown submitted that the applicant was entitled to a discount of 25% for her plea of guilty. It contended that her record disentitled her to leniency but did not submit that her history aggravated her current offending. The Crown accepted that the whole of the period she had been in custody since her arrest on 13 June 2019 was referable to the offending. The Crown submitted that any discount for her assistance should be no higher than 5% as its value was regarded by police as being low.

65. On the question of parity, the Crown submitted in writing:

“29.    As the co-offender has already been sentenced, the Court will need to consider the issue of parity of sentence. [The co-offender]'s overall aggregate sentence was for 5 years and 9 months, with a non-parole period of 2 years and 10 months.

30.    As submitted above, the two offenders played a similar role in the offending, acting in an equal partnership. However, the Crown notes the following differences which may be relevant to an assessment of parity:

•   [The co-offender] was involved in and sentenced for further supplies on 30 May 2019 which [the applicant] was not

•   [The co-offender] had a substantially longer and more serious criminal record

•   [The co-offender] breached his parole by the commission of these offences, whilst [the applicant] breached conditional bail”

The applicant’s submissions on sentence

66. Mr Grippi, who appeared on behalf of the applicant in the Court below, also relied on written submissions. He submitted on her behalf:

“In this matter, the Offender was acting in a joint criminal enterprise with [the co-offender]. The amount of money exchanged (or agreed to be exchanged) was approximately $13,500, see: Paragraphs 42 and 44 of the Agreed Facts. The Offender has given evidence that the drug supplies were undertaken primarily to fund existing drug debts, and her own ongoing drug addiction, spending around $5,000 per week on substances, see: Report of Dr Allnutt, pages 3 and 4, and evidence of [the co-offender] on Sentence.”

67. On the question of parity, the applicant submitted to the sentencing judge:

"[The co-offender] was sentenced to 5 years 9 months with a non-parole period of 2 years 10 months by her Honour Judge Syme. There is a marked difference in the offending conduct of [the co-offender] and [the applicant], being that [the co-offender] was sentenced for an additional supply which occurred on 30 May 2018 (being a commercial quantity of GBL and heroin). See: Agreed Facts of [the co-offender] paragraphs 43 - 47. Additionally, [the co-offender] appears to have provided some assistance to the Authorities which has attracted a discount of 12.5%. [The applicant] would not attract a discount of this kind and the inference which can be drawn is that [the co-offender] was far more connected to any possible drug supply than [the applicant]. Having regard to the comments of the High Court in Olbrich at [19], labelling offenders as principals or similar must not obscure the necessary sentencing assessment. I submit that [the co-offender]'s criminality is marginally more serious than [the applicant]'s because of his link to higher up suppliers. [The co-offender] also has a significant criminal history. When considering parity, I submit [the applicant]'s sentence should be lower than [the co-offender]'s.”

[Footnotes omitted and emphasis added.]

68. On the question of notional concurrency, the applicant submitted:

“I submit that the Court should have regard to an overlap in the criminality in relation to offences which were committed on 16 May and 27 May 2019. Both dates involved both the supply of heroin (as particularised in sequence 14) and then the supply of GBL (as particularised in sequence 13). They occur within the same transactions. The most significant element of Sequence 13 (13 June 2019) remains an agreement to supply only, and not an actual supply.”

The sentence hearing

69. The applicant gave evidence at the sentence hearing. She confirmed that she and the co-offender received an amount in the order of $40,000 from the RS. She also adopted what she had said to Dr Allnutt. She described a “toxic” relationship with an ex-boyfriend (not the co-offender) and recounted her history of drug-taking. She described that she was taking “meth” and “G” as well as heroin, ice, Xanax and marijuana. The applicant said:

“Look, there's no excuse for my behaviour, I know how wrong it is. I came to a part in my life where I had spent every bit of savings that I had, I couldn't lie to my dad and him - squeeze any more money out of him, he wasn't stupid, he knew what was going on. I needed drugs and I didn't know how else to get my hands on what I needed for my addiction, this guy continuously was texting my phone. [The co-offender] knew someone who could get his hands on the amount that was being asked for and it just, it just, yeah, we went ahead and made that wrong decision.”

70. The applicant said that the money she and the co-offender made (from supplying) was used to pay off a drug debt which the co-offender owed and also to buy drugs for their own use. She also explained that she was always in the car with the co-offender because he was only on his L-plates. She said that the co-offender had contact with the dealer but agreed that they both had contact with their customer, the RS. The applicant admitted in cross-examination that she had used drugs in custody.

71. Mr Grippi referred to the evidence of the co-offender (which was before the sentencing judge) in his oral submissions as follows:

“Your Honour has the evidence of [the co-offender] on sentence and it is part of the Crown case. [The co-offender] does confirm some things that [the applicant] has given evidence of, that is, he had the drug debt notwithstanding the fact that [the applicant] was also a participant in the drug use just as much as he was and that whilst he wasn't - it was never put to him whether he was the only sole contact of the other dealer but [the applicant] gives evidence that she's never met the other dealer.

With respect to moral culpability I can see [concede] that that [there] is a small differentiation…”

72. Mr Grippi did not dispute the Crown’s assessment of 5% for assistance. He also submitted that there was a place for the applicant to be rehabilitated at The Buttery in Byron Bay. At the conclusion of the hearing, his Honour reserved judgment and adjourned the matter for a fortnight to Friday, 17 April 2020 for sentence.

The sentencing judgment

73. His Honour set out the agreed facts in narrative form and summarised the applicant’s criminal and custodial histories. His Honour found that it was an aggravating factor that the applicant was on bail for “less serious drug supply offences” at the time of the offending. Of the relative moral culpability of the applicant and the co-offender, his Honour said:

“Whilst the offender and co-offender were jointly responsible for the offending, I find that the offender's moral culpability was slightly less than that of her co-offender. It was the co-offender who had the drug debt to the up-line supplier, and it was the co-offender who, on each occasion, obtained the prohibited drugs from the up-line supplier.”

74. His Honour accepted that the money obtained from supplying had gone to the “upline supplier” to pay off the co-offender’s drug debt and to purchase further drugs for their own use. On the question of parity, his Honour said:

“The principle of parity in sentencing requires that like cases be treated alike, and that differences be taken into account in assessing the appropriate sentence. Here, the offender's role in the three offences was similar to that of her co-offender, and was carried out in an equal partnership, subject to her diminished moral culpability as set out above. As noted by the Crown, there are also significant differences to be taken into account, namely:

(1)   The co-offender was involved in and sentenced for a further supply on 30 May 2019, which the offender was not.

(2)    The co-offender had a substantial and serious criminal record that had to be taken into account.

(3)    The co-offender breached his parole by the commission of these offences whilst the offender breached conditional bail.

(4)    The co-offender was also entitled to a total utilitarian discount of 37.5% for his plea of guilty and assistance to authorities. I note that Judge Syme imposed an aggregate sentence of 5 years and 9 months imprisonment with a non-parole period of 2 years and 10 months.”

Consideration

The general principles

75. The classic statement of the parity principle appears in Lowe v The Queen at 623 (Dawson J, Wilson J agreeing); see also 609 (Gibbs CJ), 610-611 (Mason J) and 617 (Brennan J):

“There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or his involvement in the offence are different then different sentences may be called for but justice should be even-handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of a grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.”

76. Inconsistency in the sentencing of co-offenders gives rise to a justifiable sense of grievance. In Lowe v The Queen, Mason J said at 610-611:

“Just as consistency in punishment — a reflection of the notion of equal justice — is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.”

77. The test of unjustifiable disparity is an objective one: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31] (French CJ, Crennan and Kiefel JJ).

The applicant’s submissions on parity

78. Mr Stratton contended that a comparison between the aggregate sentences gave rise to a justifiable sense of grievance. He submitted that the difference in head sentences of 1 year and 6 months and the difference in non-parole periods of 7 months was insufficient to account for the “significant” differences between them. He relied on the following four reasons for differentiation between the applicant and the co-offender:

1. the co-offender was sentenced for additional offences: supply 13 (1627.5g of GBL) and supply 14 (12.4g of heroin), both of which took place on 30 May 2019;

2. the greater moral culpability of the co-offender, including that a motivation for supplying was to repay the co-offender’s drug debt;

3. the co-offender’s criminal history was significantly worse than that of the applicant and included several drug-related offences (although not offences of supply) for which custodial sentences had been imposed; and

4. a significant portion of the sentence imposed on the co-offender was concurrent with the balance of parole which he was serving for an earlier offence for which he was on parole when arrested for the subject offences, which led to a further discount in the additional penalty imposed for the subject offences in the case of the co-offender (which did not apply to the applicant).

79. Mr Stratton accepted that, apart from these matters, there was nothing to distinguish the applicant from the co-offender.

80. I propose to address each of these matters in turn.

The first factor: the additional offences for which the co-offender stood to be sentenced

81. As to (1), the sentencing judge expressly took this matter into account as a matter of differentiation between the applicant and the co-offender in his reasons on parity and can be taken to have given it some weight in the sentencing discretion. His Honour correctly acknowledged that the applicant was not involved in the two supply offences (supply 13 and supply 14) which were committed by the co-offender on 30 May 2019. These supplies were of a similar order to those which were common to the applicant and the co-offender.

The second factor: the alleged greater moral culpability of the co-offender

82. As to (2), his Honour found that the applicant’s moral culpability was “slightly less” than her co-offender, on the basis that he was the only one with the drug debt and he was the one who obtained the drugs from the up-line supplier. In substance, his Honour accepted the submission made in writing by Mr Grippi on the applicant’s behalf, that the co-offender’s criminality was “marginally more serious” than that of the applicant.

83. To the extent to which Mr Stratton endeavoured to expand the differences in subjective circumstances, his submission to that effect ought not be acceded to: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81] (Johnson J, McClellan CJ at CL and Rothman J agreeing). Mr Stratton submitted in this Court that the subjective factors were “very much in favour of the applicant” on the grounds that her criminal record was much less serious, she was younger and less morally culpable. It is to be remembered that in the sentencing hearing the difference in moral culpability was submitted to be marginal, the age difference was not submitted to be material and it was only the criminal histories which were relied on as constituting a material difference in this context.

The third factor: the difference in the criminal histories of the applicant and the co-offender

84. As to (3), this was expressly taken into account by the sentencing judge in his reasons as being a factor relevant to parity. The weight given by a sentencing judge to this factor is a matter of discretion. It was not suggested that it was not taken into account.

The fourth factor: the alleged effect of the sentence on time required to be served by the co-offender when compared with the applicant

85. The factor in (4) has a bearing on the overall effect of the sentence imposed on the co-offender. On 3 July 2019, as a consequence of the co-offender being arrested and charged with the subject offences, the Parole Board revoked his parole for the offence of robbery armed with offensive weapon committed on 23 May 2016, with effect from 9 April 2019. As referred to above, he had been released to parole on 23 February 2019.

86. Before imposing a sentence, a sentencing judge is required to consider the total criminality involved, not only in the offences for which the offender is being sentenced but also in any offences for which the offender has already been sentenced: Postiglione v The Queen at 308 (McHugh J). Judge Syme ordered that the co-offender’s sentence for the subject offending commence on 21 November 2019, to take account of the earlier offending for which he was on parole when arrested. The discretion as to the commencement date of the sentence was a matter for her Honour. The selection of a date between 13 June 2019, when the applicant and the co-offender were arrested, and the date on which the sentence was imposed on the co-offender, 21 February 2020, was a matter for her Honour, having regard to the principles of totality referred to above: see Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145 at [21]-[23] (Simpson J, James and Hall JJ agreeing).

87. Mr Stratton submitted that the effect of the respective sentences was that the co-offender was only required to serve a further 1 year and 11 months in custody for the subject offending over and above the sentence for armed robbery. This submission, while mathematically correct, fails not only to have regard to the principle of totality but also fails to take account of the consideration that, as her Honour Judge Syme said, there is a need to avoid double-counting when dealing with the effect of a criminal history on sentence. It does not follow from the fact that the earlier sentence imposed on the co-offender was due to expire on 27 October 2020 (by reason of the revocation of parole as explained above) that it is appropriate to confine the effect of the subject aggregate sentence to the period after that date. The submission made by Mr Stratton that the only additional time required to be served by the co-offender for the subject offence is 1 year and 11 months is apt to mislead because the time served prior to 27 October 2020 (which commenced on 21 November 2019) was also referable to the subject offence.

88. Mr Stratton then sought to draw a comparison between the derived figure of 1 year and 11 months (for the co-offender) and the applicant’s non-parole period of 2 years and 3 months. He submitted on that basis that the applicant was, in effect, required to serve 4 months longer than the co-offender and that this gave rise to a legitimate sense of grievance. While I accept that it is possible (though mischievous) to engender a sense of grievance by the sort of departure from principle which this argument entails, it does not follow that any sense of grievance created as a result is legitimate. As referred to above, the assessment of the legitimacy of a sense of grievance for the purposes of parity is to be conducted on objective grounds, consistent with the principles of sentencing, which include totality.

Further matters raised in submissions

89. The Crown pointed out that Judge Syme, when sentencing the co-offender, appeared to regard him as being “at the crossroads” and took into account that he ought be admitted to a drug rehabilitation centre when released to parole, which would be a form of quasi-custody. I do not accept that this would be a distinguishing feature between the co-offender and the applicant since they were both susceptible to drug addiction, which was the cause of their offending behaviour, and they would both be likely to be released to parole to a drug rehabilitation centre. Both sentencing judges made findings about the prospects of rehabilitation and the need for residential rehabilitation on release. I accept Mr Stratton’s submission as to the similarities between them on this basis.

90. In comparing the sentence imposed on each, Mr Stratton focussed on the aggregate sentences rather than the indicative sentences. He emphasised that he did not submit that there was any error in the setting of the indicative sentences. However, he contended that the construction of an aggregate sentence from the indicative sentences was what gave rise to a legitimate sense of grievance.

91. In support of this argument, Mr Stratton relied on the sum of the discounted indicative sentences for each: 108 months (9 years) for the applicant and 177 months (14 years and 9 months) for the co-offender. He submitted that the difference of 5 years and 9 months between the sum of the discounted indicative sentences for each ought to have resulted in a greater differentiation in the aggregate sentences than 1 year and 6 months and a greater differentiation in the non-parole periods than 7 months. For the reasons explained above, the comparison of discounted indicative sentences is apt to mislead because of the differential discounts which applied with respect to the assistance given. Further, as this Court (Spigelman CJ, Whealy and Howie JJ) said in R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159, at [16], when addressing the principle of totality at [15]-[18], the severity of a sentence is not simply the product of a linear relationship because severity may increase at a greater rate than an increase in the length of a sentence.

92. I am not persuaded that the sentence imposed on the applicant is capable of giving rise to a legitimate sense of grievance. The differences between the sentence imposed on her and that imposed on the co-offender are explained by several factors, which include: the different discounts applied; the difference in criminal histories; the weight to be given to the totality principle in dealing with the treatment of the revocation of parole in respect of the co-offender; and the circumstance that the additional offences for which the co-offender was to be sentenced formed part of the course of conduct engaged in and would have inevitably given rise to a substantial degree of concurrency. Both Judge Syme and the sentencing judge were faced with the difficult (but orthodox) task of imposing an appropriate sentence. The sentencing judge had the additional task of addressing parity, having regard to the sentence imposed on the co-offender by Judge Syme.

93. For the reasons given above, I am not persuaded that the sole ground of appeal has been made out.

Proposed orders

94. I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

**********

Amendments

19 March 2021 - "Mahoney" replaced by "Mahony" - cover sheet, pars [39], [53]

Decision last updated: 19 March 2021