Millard v The Queen

[2018] NSWCCA 111

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Millard v R [2018] NSWCCA 111
Hearing dates:	27 April 2018
Decision date:	08 June 2018
Before:	Hoeben CJ at CL at [1] Rothman J at [2] Button J at [4]
Decision:	(1) Leave to appeal granted. (2) The sentence imposed upon the applicant by Judge Bennett SC on 23 February 2017 is quashed. (3) The applicant is sentenced to a non-parole period of one year four months commencing on 23 February 2017 and expiring on 22 June 2018, with a parole period of one year two months, commencing on 23 June 2018 and expiring on 22 August 2019. (4) The applicant will be released to parole on 22 June 2018.
Catchwords:	CRIMINAL LAW – appeal against sentence – asserted failure to take into applicant’s assistance to authorities – asserted inadequacy of reasons of sentencing judge in imposing three years full-time imprisonment – asserted justifiable sense of grievance for the applicant due to sentence disparity with co-offender – sentence asserted to be manifestly excessive – erroneous disparity found – appeal upheld
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22A, 23, 32 Criminal Appeal Act 1912 (NSW), s 6
Category:	Principal judgment
Parties:	Cooper Millard Regina
Representation:	Counsel: D Barrow (Applicant) A Mitchelmore (Crown)   Solicitors: Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2016/131980
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 23 February 2017 Before: Judge Bennett SC File Number(s): 2016/131980

Judgment

1. HOEBEN CJ AT CL: I agree with Button. J and the orders which he proposes.

2. ROTHMAN J: I have had the advantage of reading, in draft, the reasons for judgment of Button J and the orders that he proposes. I agree with the orders that he proposes and generally with the reasons therefore.

3. Notwithstanding the difference in sentence imposed upon the applicant as against the co-offender, the sentence properly gives rise to a justifiable sense of grievance in that the difference in sentence does not adequately or rationally reflect the difference in subjective circumstances of the two offenders.

4. BUTTON J:

Introduction

5. This application for leave to appeal relates to a sentence imposed upon Mr Cooper Lindsay Millard (the applicant) on 23 February 2017 by his Honour Judge Bennett SC in the District Court sitting at Orange.

6. The applicant had pleaded guilty in the Local Court to one count of breaking entering and stealing in circumstances of aggravation; namely, being in company. That offence carries a maximum penalty of imprisonment for 20 years, and a standard non-parole period of five years. It was clarified at the hearing before us that, at the relevant time, the offence was incapable of summary disposition. An identical offence was taken into account on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act).

7. Ultimately, his Honour imposed a head sentence of three years with a non-parole period of one year eight months, to date from its imposition on 23 February 2017. The applicant is therefore entitled to release on parole on 22 October 2018.

8. Subsequently, on 19 May 2017, Mr Clifford John Ah See (the co-offender) was sentenced by her Honour Judge English in the District Court sitting at Campbelltown. Her Honour imposed a head sentence of imprisonment for four years, with a non-parole period of two years.

9. In other words, the head sentence imposed upon the co-offender was one year longer than that imposed upon the applicant, and the non-parole period imposed upon the co-offender was four months longer than that imposed upon the applicant.

Grounds of appeal

10. The following grounds were notified and pressed at the hearing:

1. His Honour erred in failing to take into account the applicant’s assistance to the authorities.

2. His Honour erred in failing to expose his reasons for concluding that only a sentence of full-time imprisonment for three years was appropriate.

3. The sentence imposed upon Clinton [sic; Clifford] Ah See for the same offences gives rise to a justifiable sense of grievance on the part of the applicant.

4. The sentence is manifestly excessive.

Objective features

11. Turning first to consider the objective features of the offending of the applicant, both the substantive offence and the offence on the Form 1 were committed upon the same music shop in Orange, in the central west of New South Wales.

12. In the early hours of 24 April 2016, the applicant, with the co-offender as his passenger, drove his car to the vicinity of the music shop, and parked nearby. Both men alighted, and walked to the shop. They looked through its windows and then returned to the car. The applicant got into his car and drove it to a nearby carpark. The co-offender returned to the music shop and kicked open a glass panel on a door, and then left to meet the applicant. The applicant drove the co-offender away.

13. Fifteen minutes later, the applicant drove the co-offender back to the music shop and parked in a nearby carpark, staying inside his car. The co-offender attended at the premises again, and this time stole a guitar valued at $699. The applicant drove the co-offender away from the scene.

14. All of the conduct summarised above was encapsulated in the offence that appeared on the Form 1.

15. About 24 hours later, at approximately 1.10 am the next day, the applicant drove the co-offender and another male to the same music store. The applicant again stayed in his car in a nearby carpark. The co-offender and the other man kicked open the wooden panel that temporarily boarded up the front door that had been damaged the evening before, and entered the music shop. This time they stole four guitars worth a total of $10,996. The applicant did not enter the music store at any stage.

16. All of the conduct described above was encapsulated in the charge that was committed for sentence.

17. None of the items were recovered. Insurance recompensed the owner, save for a shortfall of something over $900, for which a claim for compensation was made by the Crown in the proceedings on sentence.

Subjective features

18. Turning now to the subjective features of the applicant, on 29 April 2016, he attended the Orange Police Station and asked to speak to police. He participated in an ERISP and made admissions in relation to each offence. The applicant also eventually identified the two other co-offenders.

19. Subsequently, he entered a plea of guilty to the principal offence in the Local Court. That plea was accorded an uncontroversial discount of 25% for its utilitarian value.

Criminal record

20. The applicant was not free of criminal convictions when he came before the sentencing judge. However, they were quite limited, as follows.

21. In late 1998, he had been fined and disqualified from driving for an offence of “low-range PCA”.

22. In 2007, he had been placed on a 12 month bond and disqualified from driving for an offence of “mid-range PCA”.

23. In March 2016, he had been fined in the Local Court for possessing housebreaking implements. He had been convicted in his absence of that offence. In the proceedings on sentence before Judge Bennett, he provided an explanation for the possession of a number of those items; that evidence was perhaps inconsistent with his guilt.

24. Finally, in July 2016 (that is, after the offences), he had been fined and disqualified for driving a vehicle whilst an illicit drug was present in his blood.

25. In short, all of the other offending of the applicant had been dealt with in the Local Court; three of his matters could be described generically as driving offences (in saying that, I do not assert that they were trivial); and one of them was a “preparatory” offence against property, with regard to which his guilt was at the least questionable.

Pre-sentence report

26. A pre-sentence report placed before his Honour spoke of the applicant as a 37 year old, single father of two young children. His children resided with their mother in Orange, however the applicant maintained daily contact with them, was focused on the welfare of his children, and contributed financially to their care.

27. The applicant had a “solid work history” until October 2015, when he was dismissed from a tradesman’s assistant position at a coal mine that he had held for approximately five years. In June 2016, the applicant filed for bankruptcy. At the time of the report, on 2 November 2016, the applicant was working for a local transport business.

28. The report stated that the applicant had a history of illicit drug use from the age of 16, including methylamphetamine, cannabis, and a variety of “party drugs”. The applicant admitted to more recent use of crystal methylamphetamine (ice) recreationally.

29. The applicant denied any mental health issues. However, the ex-partner of the applicant suggested that the loss of the applicant’s employment in 2015 was “extremely difficult”, as both the applicant and his ex-partner reported that he felt “lost” after his dismissal. The applicant’s ex-partner suggested that the applicant exhibited symptoms of depression, a suggestion that had been denied by the applicant.

30. According to the author of the report, the applicant expressed an adequate level of remorse for his actions, and was cognisant of the impact of his actions on the store owner.

31. The applicant was considered to be at a medium/low risk of re-offending, and was assessed as suitable for a community service order.

Psychological report

32. A psychological report of 31 October 2016 was tendered in the sentence proceedings. It described a similar work and social history to that contained in the pre-sentence report.

33. The applicant spoke of work-related injuries that required two shoulder reconstructions. It was after the second shoulder reconstruction that the applicant was told not to return to work. In the period following this dismissal, the applicant remained unemployed and, according to the psychologist, described symptoms associated with a depressive episode.

34. During early 2016, the applicant’s mental health declined following his bankruptcy and relationship breakdown with his ex-partner. He was not sleeping well, was not eating properly, and had lost approximately 35 kilograms.

35. The applicant acknowledged to the psychologist that he was a heavy ice user at the time of the offence, in that he had a “massive problem with ice” and was associating with other drug users. The applicant alleged that he committed the offences in return for payment in kind of ice.

36. He expressed remorse for his role in the offences, describing it as “the biggest mistake he had ever made”. Since arrest, the applicant had stopped using illicit drugs and undertook work-related training in order to obtain two jobs in retail and hospitality.

Overview of oral evidence

37. The applicant gave oral evidence during proceedings on sentence.

38. He spoke of his contact with his ex-partner and children, and his desire to get “back on the straight and narrow”.

39. He confirmed that it was after his loss of employment and resultant bankruptcy that he became a heavy user of illicit drugs, including ice. He also confirmed that he committed the offences in return for ice.

40. The applicant stated he felt “ashamed, remorseful”, and acknowledged the seriousness of the offences, including the fact that he could be facing a full-time custodial sentence.

41. As at the time of the proceedings on sentence, he was residing in crisis accommodation, and claimed that his use of illicit drugs was “non-existent”.

42. As I have said, the applicant also gave an explanation for the offence of possession of housebreaking instruments in February 2016.

43. In cross-examination, the applicant confirmed that he was spoken to by police the day before he turned himself into them. He agreed that he “saw the writing on the wall” and thought he would “get ahead of the wave”.

44. He gave evidence that he did not receive anything beyond drugs for the offence, and did not know what happened to the guitars.

45. As for the conviction for possessing housebreaking implements, the applicant explained that he had simply found a pair of bolt cutters on “the median or the footpath”, and was convicted in his absence in the Local Court.

46. Melissa Ann Ellis, a school friend of the applicant, gave oral evidence that she considered the applicant remorseful of his conduct. Ms Ellis described the applicant as very close to his children, and “didn’t believe it” when the applicant first informed her of his offending. In response to whether the applicant would “make something” of his life after this offending, Ms Ellis stated “he’s [sic; his] kids are his life” and that the whole situation was “a big wake up call” for the applicant.

47. Sarah Jane Miller, who at the time was working at an organisation called “Housing Plus” and was helping the applicant gain housing and employment, also gave oral evidence. Ms Miller had known the applicant for approximately one month, and confirmed that the applicant was living in crisis accommodation in Orange. She believed that the applicant was a good candidate for private housing and for getting back into the workforce, as he displayed motivation and engagement with every appointment. Ms Miller also denied having any suspicion that the applicant was using drugs during the month or so prior to her giving evidence.

48. Kelly Milstead, the ex-partner of the applicant, was the last witness called in the proceedings on sentence. She described him as a “fantastic father”. Ms Milstead also described how, at the time the applicant lost his job at the mine, she noticed a change in the applicant as he was depressed and “lost confidence”, because he could no longer provide financial support for the children. She became aware of the applicant using illicit drugs in early 2016.

49. Ms Milstead also confirmed that the police went to her home after the offences were committed, looking for the applicant. The police showed her photos and asked Ms Milstead to identify the applicant. As a result, she got in contact with the applicant and told him to go to the police. She gave evidence that the applicant was remorseful for his conduct, as “he’s so worried about not being part of his kids’ lives”.

The co-offender

50. Because of the ground alleging erroneous disparity, I turn to provide a short summary of the objective and subjective features pertaining to the co-offender, engaging in comparisons with the position of the applicant as I do so.

Objective features

51. The co-offender committed the same offences as the applicant, but as principal in the first degree. As in the case of the applicant, the procedure adopted was that the latter, more serious count was dealt with substantively, and the preceding, less serious but identical offence was placed on a Form 1.

52. It was the co-offender who kicked in the door to the music shop, entered the shop on two occasions, and stole guitars on two occasions. Other than those elements, the applicant and the co-offender committed offences of objectively equal seriousness.

Subjective features

53. On 9 May 2016, the co-offender was spoken to by police, participated in an interview, and made a number of admissions in relation to each offence.

54. The co-offender was also a man of mature years, and at the time of sentence, was a father to five children.

55. In comparison to the applicant, the co-offender’s upbringing may be viewed as more deprived. The co-offender is an Aboriginal man, whose parents had separated when he was young. He was raised by his mother and stepfather. When he was older, he became aware of allegations of abuse made by his sister against his stepfather. The co-offender had difficulty accepting that his mother decided to remain with his step-father in such circumstances. The co-offender was exposed to verbal abuse within the household. In the past he had lived rough while abusing drugs and alcohol, however his uncles would try to rein him in.

56. For the 18 months prior to the sentencing of the co-offender he was unemployed, however he has achieved a number of certificates through TAFE.

57. The co-offender commenced using ice from the age of 19 and, whilst he was able to achieve periods of abstinence, he relapsed after a relationship breakdown, 12 months prior to sentencing.

58. The motivation of the co-offender in committing the offences was to fund his illicit drug habit. The co-offender had attempted rehabilitation programs in the past. He is also Hepatitis C positive and, as at his sentencing, was awaiting treatment.

59. He expressed remorse at sentencing, and was aware of the impact of his offending behaviour on his family and the community.

60. Judge English assessed the co-offender to be at a moderate to high risk of re-offending.

61. In sharp contrast to the applicant, the co-offender has a lengthy criminal record that includes very many offences of dishonesty. His offending began in the 1990s, when he was charged with a number of offences as a juvenile.

62. Close analysis of the criminal record of the co-offender shows that, prior to appearing before Judge English, he had been dealt with for at least 10 offences that had one or more element of either breaking, or entering, or stealing.

Ground one

His Honour erred in failing to take into account the applicant’s assistance to the authorities.

63. This ground was based on the proposition that, in his interview with the police, in which he (eventually) named the co-offender and another man, the applicant had assisted the police in such a way as to call for a discount on his sentence pursuant to s 23 of the Act.

64. It was said that defence counsel who appeared at first instance (and who did not appear before us) had, at the commencement of his plea in mitigation, submitted that the applicant deserved “great credit” for the fact that the applicant had not only confessed to the police, but “also assisted the police in relation to the co-offenders”.

65. Attention was invited to the fact that, after oral submissions had closed in the proceedings on sentence, defence counsel tendered a recorded interview of the applicant, and submitted:

“…in which he assists the police your Honour. I understand it’s not to the extent of an Ellis discount but – – ”. (Proceedings on sentence transcript (POST) 21 February 2017 21.7)

His Honour responded:

“No but s 22A requires that the Court brings to account the extent to which he has facilitated the judicial process so that’s got to be relevant to that”. (POST 21 February 2017 21.10)

Defence counsel indicated that he wished to say nothing further.

66. It was submitted before us that the latter reference was an error by the sentencing judge, in that s 22A of the Act is generally understood to attach to the way in which an offender (or his or her counsel) has conducted things in the courtroom, rather than any extra-curial conduct.

67. The submission was also made that, despite the recorded interview of the applicant having been tendered, and despite defence counsel having relied upon it, no mention was made in the remarks on sentence of it operating to reduce the sentence imposed, whether by way of s 23, s 22A, or any other statutory provision.

68. Turning to my determination of this ground, its fundamental propositions are correct, as follows.

69. First, the applicant did assist police by naming the co-offender and another man in his recorded interview.

70. Secondly, the transcript of that interview was tendered in the proceedings on sentence.

71. Thirdly, counsel then appearing invited attention to that fact in the plea in mitigation.

72. Fourthly, although the evidence before his Honour was that the third man was never charged, his Honour was informed that the co-offender was before the courts.

73. Fifthly, in my respectful opinion, the reference by his Honour to s 22A of the Act was idiosyncratic, in that that section has indeed been generally understood as applying to the way matters are conducted in court, and not to the way in which an offender conducts himself or herself outside the courtroom.

66. All of that may be accepted. But there are some “gaps” in the matter at first instance that stand in the way of the success of the ground.

67. The first is that, in the proceedings on sentence, the advocate for the Crown made it clear that there would be nothing tendered by the Crown, favourably to the applicant, in the nature of an “affidavit of assistance” or an undertaking on his part (POST 21 February 2017 2.29).

68. The second is that there was no evidence placed before Judge Bennett that it was the naming by the applicant in his recorded interview of the co-offender that led to the latter being charged, either by way of: the police proposing to rely upon the recorded interview of the applicant directly; or by way of them relying on it indirectly by having put its contents to the co-offender, causing him to confess; or by any other mechanism.

69. The third is that, concomitant with that state of affairs, his Honour was never asked to undertake an evaluation of the matters for mandatory consideration to be found within s 23(2) of the Act.

70. The fourth is that, in the absence of evidence before Judge Bennett that the recorded interview had directly or indirectly led to the charging of the co-offender; or that it could somehow be tendered against him in a putative subsequent trial; or that the applicant had undertaken to give evidence against the co-offender in accordance with his recorded interview, then the overwhelming likelihood is that, even if his Honour had been asked to undertake that evaluation, the “the significance and usefulness” of the recorded interview would have been assessed as negligible or zero: see s 23(2)(b) of the Act.

71. The fifth and final “gap” is that, reduction in sentence for assistance is by no means automatic in any event: see s 23(1) of the Act.

72. In summary, it is true that the factor of assistance is not referred to in the remarks on sentence, and one can safely infer that his Honour gave no discount for it. But on the state of the evidence, and bearing in mind the way in which the case was presented by both parties at first instance, I cannot accept that it was an error not to provide any such discount.

73. I would not uphold this ground.

Ground two

His Honour erred in failing to expose his reasons for concluding that only a sentence of full-time imprisonment for three years was appropriate.

82. The background of this ground is as follows.

83. In the proceedings on sentence, defence counsel accepted that a period of full-time imprisonment was open to the discretion of his Honour. He submitted, however, that an intensive correction order (ICO) would be an appropriate punishment. Of course, the success of that submission depended upon the success of the anterior submission that a head sentence of not more than two years should be imposed.

84. As I have said, in the event, his Honour rejected the anterior submission, and imposed a period of full-time custody that featured a head sentence of imprisonment for three years.

85. The submission before us was that, although the remarks on sentence contain a discussion of the objective and subjective features of the matter, nowhere is there an explanation as to why those features could not have led to a head sentence of two years or less, and thereafter the imposition of a sentence that did not involve full-time custody. The submission was that, rather than answering the crucial question in the proceedings – whether the applicant was to be imprisoned for his offending or not – the remarks on sentence were simply “formulaic”.

86. I do not accept that submission. In my opinion, the remarks on sentence are a lengthy and informative discussion of the objective and subjective features of what was really a simple matter: a man with a drug problem committed two reasonably primitive property offences, the latter of which was made more serious by the quantum of items stolen and never recovered.

87. The remarks on sentence discuss the charges; the custodial position of the applicant; the maximum penalty and standard non-parole period; the significance of those two legislative guideposts; they make an assessment of the objective seriousness of the substantive offence; and provide a detailed discussion of the facts of each offence. They proceed to a discussion of the fact that the applicant presented himself to the police and engaged in a recorded interview; his criminal record; and a detailed analysis of his subjective case.

88. Notably, the remarks on sentence proceed to refer explicitly to the submission of defence counsel that an ICO could be imposed; to the sentencing judge having “thought hard about that option and whether it is available”; and to the fact that his Honour simply could not accept that a head sentence of less than two years was appropriate.

89. Thereafter, his Honour went on to speak of how the offence on the Form 1 should be taken into account; returned to the topic of the assessment of objective seriousness; spoke of the need for general and, to a lesser degree, specific deterrence; referred to recognition of the harm done by the offending, and the need for it to be denounced; and spoke of the need for punishment to be balanced against facilitation of rehabilitation. Special circumstances were found, and reasons given for them. Finally, a referral was made with regard to the possibility of the applicant being made the subject of a compulsory drug treatment order.

90. In my opinion, the whole of the remarks on sentence are an explanation as to why his Honour felt that a head sentence that would permit the alternative of full-time custody, proposed by defence counsel, was simply unavailable. And as I have shown, that fulcrum of the proceedings was the subject of explicit reference in the remarks on sentence.

91. I would not uphold this ground.

Ground three

The sentence imposed upon Clinton [sic Clifford] Ah See for the same offences gives rise to a justifiable sense of grievance on the part of the applicant.

92. With regard to the assertion of erroneous disparity, counsel for the applicant invited reflection upon the differing roles of the two men as principal in the first degree and driver; their differing criminal records; and the fact that the applicant had handed himself in and nominated others, whereas the co-offender had done neither of those things.

93. He submitted that the very limited differentiation in outcomes, in particular with regard to the non-parole periods, constituted error. And he submitted that there was room for reduction in the sentence imposed upon the applicant without compounding that alleged error, either by imposing a manifestly inadequate sentence upon the applicant, or by engendering a resultant justifiable sense of grievance in the co-offender.

94. In resistance to the ground, the Crown submitted that the applicant had played a central and essential role in the two offences; that each man had confessed and shown remorse; and that the co-offender had suffered a markedly more disadvantaged background than the applicant. Whilst it was accepted that the criminal record of the co-offender was substantially longer and more serious than that of the applicant, it was submitted that, in all the circumstances, the level of differentiation in the two outcomes was not erroneous.

95. Turning to my determination of this ground, the comparison of the objective and subjective positions of the applicant and the co-offender may be conveniently summarised by the following table.

Applicant: Millard	Co-offender: Ah See
Sentence	Head sentence: 3 years NPP: 1 year 8 months	Head sentence: 4 years NPP: 2 years
Charge	Aggravated break, enter and steal (in company) s112(2) Identical charge on Form 1	Aggravated break, enter and steal (in company) s112(2) Identical charge on Form 1
Plea	Guilty plea in Local Court	Guilty plea in Local Court
Role	Driver of co-offender/getaway car: A drove co-offender to music shop and waited in nearby carpark. Co-offender returned, drove around for 15 minutes and dropped co-offender back at the music shop. A stayed in car. Co-offender returned with a guitar and A drove him from the scene. Next day returned and dropped co-offender and another man back to music store. A waited in nearby carpark.	A drove co-offender to music shop. Co-offender kicked out glass panel to a door to the music shop. Left with Millard for 15 minutes and returned to steal guitar worth $699. Next day A drove co-offender and another man to the music shop, kicked open wooden panel and entered. Stole 4 guitars worth $10,996.
Age (at time of offence)	37	41
Criminal record	Possessing house breaking implements (convicted in absence), low-range and mid-range drink driving, drive vehicle with illicit drug present in blood	Juvenile: unlawful use of conveyance, unlicensed driving, enter building with intent to steal, break and enter with intent, offensive language, enter enclosed lands with intent, goods in custody, possess prohibited drug, stealing, attempted break, enter and steal, fail to appear. Convictions as an adult: assault, unlicensed driving, take or being carried in conveyance without consent, break, enter and steal x 3, malicious damage, offensive language, resist arrest, trespass, break, enter and steal commit felony x 3, attempt to obtain financial advantage, fail to appear, enter enclosed lands, stealing, larceny x 2, licence expired less than 2 years before, drive recklessly/furiously or speed/manner dangerous, self-administering prohibited drug, assault ABH, possess prohibited drug, drive vehicle on road whilst suspended, break and enter with intent (steal), drive on road while licence suspended, destroy or damage property x 2, resist officer in execution of duty, assault officer, contravene prohibition/restriction in ADVO x 2, common assault (DV), drive vehicle with illicit drug present in blood x3, and possess prohibited drugs
Remorse	Presented himself to police, expressed remorse and identified co-offenders	Did not hand himself into police. Did make admissions when interviewed. Expressed remorse at sentencing
Subjective features	Displayed symptoms of a depressive episode after losing his job, was declared bankrupt, relationship breakdown, abused drugs including ice, was living in crisis accommodation, 2 children	Unemployed 18 months prior, ice from age 19, raised by mother and stepfather, stepfather abused his sister, mother remained with stepfather, verbal abuse in household. Has TAFE certificates, 5 children with ex-partner, Hepatitis C positive

96. In my opinion, the submissions of the Crown have some force: it is undoubtedly true that the co-offender had suffered a more deprived upbringing than the applicant. That was a factor that weighs in favour of the co-offender and against the applicant when considering this ground.

97. I also accept that, whilst the co-offender was indeed the principal in the first degree, the mere fact that the applicant was the driver does not inherently call for differentiation.

98. The final matter to be borne in mind is that this ground is not based on an outcome whereby the applicant received a sentence that was equal to or greater than that the sentence imposed upon the co-offender: the head sentence imposed upon the applicant is a full one year shorter than that imposed upon the co-offender, and the non-parole period is somewhat shorter.

99. All of that may be accepted. But the fact is that, regrettably, the co-offender was a career criminal who had repeatedly committed serious offences against property. Whilst the criminal record of the applicant was not unblemished, it did not approach the length or gravity of that of the co-offender.

100. Furthermore, the whole flavour of the evidence in the two matters is that the co-offender was the moving party in the joint criminal enterprise, and the applicant was something of an assistant. To give but one basis for that proposition, it is to be recalled that the evidence of the applicant was that he was to be paid for his services (with regard to offending that netted items worth well over $10,000) simply by way of a quantity of ice for his own use.

101. Finally, it is true that the differentiation in head sentence between three years and four years is not insignificant. But in my respectful opinion, the differentiation in the non-parole periods of nothing more than four months must be seen as an insufficient reflection of the significantly more favourable subjective features of the applicant, the foremost of which is his criminal record.

102. In my opinion, this ground has been established: the applicant is entitled to experience an objectively justifiable sense of grievance when he compares the sentence imposed upon himself with the sentence imposed upon the co-offender. The result is that, unless there are exceptional circumstances, resentencing must occur in order to remove that justifiable sense of grievance currently experienced by the applicant. In doing so, care must be taken, of course, not to go too far, either by imposing a manifestly inadequate sentence, or by imposing a sentence that leads to the co-offender thereafter having an identical ground of appeal.

103. In short, I would uphold ground three.

Ground four

The sentence is manifestly excessive.

104. Because I propose that the ground alleging erroneous disparity be upheld, and that would, except in most unusual circumstances, call for re-sentence leading to reduction in the sentence of the applicant, strictly speaking this ground does not require determination. All that has been said by the parties about it will be taken into account on resentence.

105. My analysis need go no further than expressing the view that the sentence imposed was, in all the circumstances, stern but not manifestly excessive.

106. In other words, speaking entirely contingently, if the ground asserting erroneous disparity had not succeeded, I would not have been minded to uphold the ground of manifest excess. But that opinion of mine is, in the circumstances, not determinative, and of course plays no direct or indirect role in exercising the sentencing discretion afresh, in correcting the erroneous disparity, for the purposes of s 6(3) of the Criminal Appeal Act 1912 (NSW).

Re-sentence

107. As against the possibility of resentence, the solicitor for the applicant affirmed an affidavit that attached case notes and the work records of the applicant from the Department of Correctional Services. They may be summarised as follows.

108. After the accused was sentenced, he was taken to Bathurst Correctional Centre until 29 March 2017, at which time he was transferred to Junee Correctional Centre. He was on some sort of protection order, and did not work during his time at Junee. The applicant is reported as being compliant, with no particular disciplinary problems, and his behaviour was at an acceptable standard. This situation of limited opportunities for employment continued until the applicant was transferred to Kirkconnell Correctional Centre on 7 December 2017.

109. At Kirkconnell, the applicant commenced work in engineering as a general hand. The applicant has displayed a good work ethic, and has been spoken of as “a productive worker who takes pride in what he does, is keen to learn what he can whilst he is here and is always happy to help when required.”

110. In short, the applicant is using his time in custody quietly and constructively. Certainly, there is no evidence of events since the imposition of sentence that should stand in the way of a reduction to correct the erroneous disparity that founds ground three.

111. Nor, in my opinion, is there any reason to depart from the ratio of approximately 56% between the non-parole period and the head sentence adopted by his Honour.

112. Exercising the sentencing discretion afresh, I am satisfied that a lesser sentence is warranted in law. There has been some very slight rounding in my calculations, because the law does not concern itself with trifles.

Conclusion and proposed orders

113. Being mindful of the proposition that correction of the established error must not lead to further error, I propose the following orders:

1. Leave to appeal granted.

2. The sentence imposed upon the applicant by Judge Bennett SC on 23 February 2017 is quashed.

3. The applicant is sentenced to a non-parole period of one year four months commencing on 23 February 2017 and expiring on 22 June 2018, with a parole period of one year two months, commencing on 23 June 2018 and expiring on 22 August 2019.

(To express the above another way, the applicant is sentenced to a head sentence of two years six months with a non-parole period of one year four months.)

4. The applicant will be released to parole on 22 June 2018.

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Decision last updated: 08 June 2018