Neale v The King

[2024] NSWCCA 159

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Neale v R [2024] NSWCCA 159

Hearing dates:

09 August 2024

Date of orders:

26 August 2024

Decision date:

26 August 2024

Before:

Ward P; Wilson J at [1];
Sweeney J at [17]

Decision:

1. Extend time for leave to appeal against sentence.

2. Grant leave to appeal.

3. Appeal dismissed.

Catchwords:

CRIME — Appeals — Appeal against sentence — Parity

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases Cited:

B v R [2022] NSWCCA 102

Croke v R [2021] NSWCCA 249

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

Lloyd v R [2017] NSWCCA 303

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 1

Why v R [2017] NSWCCA 101

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Joseph Neale (Applicant)
Rex (Respondent)

Representation:

Counsel:
L Brasch (Applicant)
P Hogan (Respondent)

Solicitors:
Conditsis Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2020/361948

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court NSW

Jurisdiction:

Criminal

Date of Decision:

3 November 2022

Before:

Abadee DCJ

File Number(s):

2020/361948

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 3 November 2022, the applicant, Joseph Neale, was sentenced in the District Court by Abadee DCJ for an offence of supplying not less than a commercial quantity of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act). His Honour imposed a term of 4 years and 3 months imprisonment, with a non-parole period of 2 years and 4 months.

Mr Neale sought leave to appeal on the ground that the sentence imposed by Abadee DCJ on a co-offender and other member of the same drug syndicate, Luke Weis, gave rise to a justifiable sense of grievance on the part of Mr Neale. Mr Weis was sentenced for lesser offences under s 25(1) of the DMT Act. Abadee DCJ sentenced Mr Weis to a sentence of 2 years, 2 months and 17 days to be served by way of an Intensive Correction Order.

The Court held (Ward P and Wilson J agreeing, Sweeney J dissenting), dismissing the appeal:

Abadee DCJ, in sentencing both the Mr Neale, Mr Weis and various other co-offenders, was clearly familiar with the details of the criminal activity of the syndicate and of the crimes of the individual offenders. His Honour made numerous findings, by reference to the parity principle, as to the respective role of each offender, and noted their respective cases. The determination of each offender’s sentence was fully informed by those comparisons: [5]-[6] (Ward P and Wilson J).

Lloyd v R [2017] NSWCCA 303 cited.

The question on appeal is not whether this Court might have imposed a different sentence upon the applicant at first instance; rather, it is whether the sentence imposed by the primary judge was one that was open to the court in the exercise of sentencing discretion. In this case, the sentences imposed were open to Abadee DCJ, his Honour having given reasons for the differences in penalties between the co-offenders: [8]-[10] (Ward P and Wilson J).

There were differences in both the objective and subjective cases of the two men, the starting point of those differences being the charges faced by each. The differences in the charges faced by Mr Neale and Mr Weis recognised the greater involvement of Mr Neale in the syndicate, and his greater criminality and moral turpitude: [11]-[15] (Ward P and Wilson J).

Mr Neale and Mr Weis were co-offenders in the sense that they assisted Mr Marshall in his criminal enterprise, even though they did not know or interact with each other. Their roles were indistinguishable, except that Mr Weis did not know the quantities of drugs he collected. There was not a significant variation in their subjective circumstances or motivations for offending; both did so for financial reward and financial need. It could not be said that the applicant, living in a tent with his family, demonstrated a lavish lifestyle from his proceeds of delivering drugs to and for Mr Marshall: [70] (Sweeney J).

By objective criteria, the reasonable person in the community, looking at what Mr Neale and Mr Weis both did in their offending, and their personal circumstances, would consider that an injustice has been done to Mr Neale: [71] (Sweeney J).

The applicant should be sentenced to 3 years and 3 months imprisonment with a non-parole period of 2 years. This non-parole period involves a lesser reduction in the statutory ratio than the sentencing judge applied, but no lesser period in custody would be appropriate for the applicant's offending and personal circumstances: [73]-[74] (Sweeney J).

JUDGMENT

1. WARD P AND WILSON J: Sweeney J has set out the facts and circumstances of this matter in which Joseph Neale seeks an extension of time and leave to appeal against the sentence imposed upon him by his Honour Judge Abadee on 3 November 2022 for an offence of supplying a prohibited drug in a quantity not less than the commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”). Such an offence carries a maximum penalty of 20 years imprisonment with a standard non-parole period (“SNPP”) of 10 years specified by the Crimes (Sentencing Procedure) Act 1999 (NSW); his Honour imposed a term of 4 years and 3 months imprisonment, with a non-parole period of 2 years and 4 months. The applicant argues that, by reference to the penalty later imposed upon a co-offender, Luke Weis, he has a justified sense of grievance at the disparity of sentence.

2. Like Sweeney J, we would grant the applicant an extension of time in which to bring an application for leave to appeal, and grant leave to appeal. We take a different view, however, as to the ultimate result, and would dismiss the appeal. We do not think any sense of grievance that the applicant may feel at the differing sentences is justified. What follows are our reasons for that conclusion.

3. An outline of the facts of the applicant’s offending, and that of Mr Weis, can be found in the judgment of Sweeney J. Her Honour has also summarised the subjective cases of each man. As can be seen from that information, there was a degree of difference in both the offending conduct of the applicant and Mr Weis (to the extent that the Crown argues that they cannot be properly characterised as co-offenders), and also differences in the respective subjective cases. Although the applicant accepts that there are differences, he submits that the differences are not so extensive as to justify the disparity in the sentence imposed upon him with that imposed upon Mr Weis.

4. Mr Weis was sentenced on 14 July 2023, about eight months after the applicant, for two counts of supplying a prohibited drug contrary to s 25(1) of the DMT Act. The offences charged against him carry a maximum penalty of 15 years imprisonment; no SNPP attaches to the offence. An aggregate sentence of 2 years, 2 months and 17 days imprisonment was imposed upon him, to be served by way of an Intensive Correction Order. Clearly, the sentences are different, and to a not insignificant extent. Proceeding on the basis that the two men are properly considered co-offenders, as Sweeney J has concluded they are, the question is whether the difference in sentence is justified by the different cases of the two men.

5. The first point relevant to answering that question is that the two men were each sentenced by the same judge, with Judge Abadee sentencing not just the applicant and Weis, but also others involved in the same drug supply syndicate, being Beau Marshall, Glenn Hanrahan, Dennis Cummins, and Darren Scott (and, later, John Carruthers). Hanrahan, Cummins, Scott, and the applicant appeared before his Honour at a joint sentence hearing, with sentence imposed jointly on 3 November 2022. Marshall appeared before Judge Abadee on the same day but was sentenced separately. Another co-offender, Timothy Brooks, was sentenced by her Honour Judge Payne.

6. His Honour was clearly well across the details of the criminal activity of the syndicate and of the crimes of the individual offenders, having sentenced most of them, and been provided with the sentencing case for the co-offender sentenced by Judge Payne. When imposing sentence on the applicant (and Hanrahan, Cummins and Scott), the sentencing judge was conscious of the application of the parity principle, specifically referring to it and undertaking a careful analysis of the respective cases and criminality of the offenders before him, together with that of Marshall and Brooks. His Honour made findings as to the role of each offender relative to each other and noted the respective subjective cases. Determination of the sentences to be imposed upon each was fully informed by that comparison. When sentencing Weis eight months later, his Honour undertook the same careful comparison and analysis, setting out and considering the roles and cases of all offenders sentenced to that time, including that of the applicant.

7. In such circumstances this Court must be cautious about interfering with the sentence imposed at first instance. As R A Hulme J observed of a parity claim in Lloyd v R [2017] NSWCCA 303 at [96]:

“It is a basic principle of appellate review of sentencing that ‘there is no single correct sentence’ and ‘judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies’ ... That observation may be translated to a review of the degree to which a sentencing judge has differentiated the sentences imposed upon co-offenders sentenced in the one sentencing exercise.

In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done: see Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15]; [1999] HCA 29. The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion?”

8. Thus, it is not to the point that this Court might have imposed a different sentence upon the applicant at first instance; rather, the question is whether the sentence imposed upon the applicant by Abadee DCJ was one that was open to the court in the exercise of the sentencing discretion. In our opinion it was open, for the reasons his Honour gave for the differences in penalties when sentencing the applicant and later Mr Weis.

9. Having set out the penalties imposed on all offenders sentenced prior to Mr Weis, his Honour referred to the analysis he had earlier undertaken, and of which he was clearly well aware:

“It is unnecessary to retrace all of the objective factors and personal circumstances affecting these other co-offenders that were summarised in my earlier sentencing remarks and in the case of Brookes in the remarks of Payne [DC]J”.

10. His Honour also noted the concession by the Crown, which was accepted, that Weis was “at the bottom of the syndicate’s hierarchy”. Whilst the applicant and “perhaps Cummins” were observed to be the “closest comparator[s]” to Weis, his Honour accepted a further concession made by the Crown, that the sentence to be imposed upon Weis should be less than the sentence imposed upon either of those co-offenders. The sentencing judge specifically referred to Weis’ criminality being less than that of the applicant, “especially in view of the circumstances that unlike Neale […] he did not on-supply drugs to third parties”.

11. There were differences in both the objective and subjective cases of the two men, the starting point of those differences being the charges faced by each. The applicant faced a charge contrary to s 25(2) of the DMT Act, it being a more serious charge carrying a greater penalty than the two counts faced by Mr Weis, both being offences contrary to s 25(1) of the Act. The difference in charge recognised the greater involvement of the applicant in the syndicate, and his greater criminality and moral turpitude.

12. There were other significant differences, differences which can be readily comprehended by reference to the table that follows.

Feature	Applicant	Weis
Offence	Supply Prohibited Drug in Commercial Quantity	Supply Prohibited Drug x 2; totality required some concurrency
Maximum Penalty	20 years imprisonment; SNPP 10 years	15 years imprisonment
Plea	Early plea – 25%	Early plea – 25%
Record	Driving offence only (but committed drug related driving offence on bail for present offence). Scope for leniency diminished.	Driving and domestic violence offences; disentitled offender to leniency and showed disobedience to the law.
Role	Rolled up charge – total supply of 295.95 grams methylamphetamine over a period of about two months. Collected drug on two occasions from larger dealer and carried it to syndicate; also acted as direct dealer “couriering and supplying” drugs on 13 separate occasions for cash or other payment, amounts up to 7 grams. Sufficiently involved to co-ordinate payment and knew price list.	Two discrete individual instances 10 days apart where offender acted as courier for amounts of 140 grams and 168 grams methylamphetamine respectively, although in ignorance of the weights. At the bottom of the syndicate, less serious than Neale, no supplies to third parties.
Culpability	More involved than Weis; aware of pricing structure for on-selling.	Courier at the lower end of syndicate, without knowledge of weight of drugs.
Motive	Financial gain – to pay for drugs and ordinary living expenses. Told psychologist motive was to “make money”.	To reduce existing drug debt and “feed a drug habit”.
Remorse	Little insight into offending; remorse limited. Specific deterrence called for.	Bare expression of regret.
Subjective Circumstances	46 years at time of offending; left home age 15; completed school; consistently employed; long term supportive partner; workplace injury led to dependence on pain killers & drugs.	35 years at time of offending; significant drug addiction; supportive family, employed.
Prospects	“Only guarded”; made no attempt at rehabilitation; aspects of evidence on sentence about abstinence “implausible”; drug related driving offence whilst awaiting sentence.	Had completed 12 week MERIT programme successfully; on waiting list for further rehabilitation; completed community based sentencing orders; employed at time of sentencing. “Making progress”; “reasonable prospects”.

13. His Honour took all these features into account when determining the sentence to be imposed upon Mr Weis, as well as considering the cases relating to the other co-offenders, and concluded that Weis played a lesser role than any of the offenders. Whilst the applicant was regarded as the closest comparator, his Honour specifically noted that he was more involved in the syndicate than Weis, with a role to play in co-ordinating payment for the direct supplies to syndicate customers in which he engaged, and knowledge of the syndicate’s pricing structure. Weis by contrast agreed to collect and deliver two quantities of drugs, the exact details of which he was unaware, in return for some of his drug debt owed to Marshall being reduced or forgiven.

14. The greater criminality inherent in the applicant’s role as a dealer on behalf of the syndicate, as opposed to merely a courier – a term that described Weis’ role – goes a significant distance to explaining the differences in the sentences imposed upon the two offenders. Also of relevance in that regard were Weis’ motivation, being restricted to debt forgiveness as opposed to the applicant’s desire for a cash reward; and Weis’ better prospects of rehabilitation, having undertaken a 12-week rehabilitative programme and earned the praise of counsellors; against the applicant who committed a drug related offence on bail, demonstrative of his continuing use of illicit drugs.

15. The sentencing judge was cognisant of these features. They provide a sufficient explanation for the differences in sentence imposed upon the applicant and Mr Weis such that any grievance the applicant holds, whilst able to be understood, cannot be regarded as justifiable in the legal sense that would entitle this Court to intervene.

16. We therefore propose that the appeal is dismissed.

17. SWEENEY J: Joseph Neale, the applicant, seeks leave to appeal against a sentence imposed upon him by Judge Abadee in the District Court, on the sole ground that the sentence imposed by Judge Abadee on a co-offender, Luke Weis, gives rise to a justifiable sense of grievance on the part of the applicant.

18. The applicant was sentenced on 3 November 2022 for an offence of supplying not less than a commercial quantity of methylamphetamine, being 294.95g. That offence had a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years imprisonment prescribed. He was sentenced to 4 years and 3 months imprisonment with a non-parole period of 2 years and 4 months. The sentence commenced on 12 October 2022 and expires on 11 January 2027. The non-parole period expires on 11 February 2025.

19. Luke Weis was sentenced on 14 July 2023 for two offences of supplying an indictable quantity of methylamphetamine, less than the commercial quantity in each case. Each of those offences had a maximum penalty of 15 years imprisonment, with no standard non-parole period. Mr Weis's sentence was an aggregate sentence of 2 years, 2 months and 17 days (reduced by some pre-sentence custody) to be served by way of an Intensive Correction Order.

20. The applicant accepts that there was a basis for some disparity between the sentences imposed on him and Mr Weis, but not to the extent there was.

21. The applicant requires an extension of time to file his application for leave to appeal out of time. His solicitor explained that there was delay in receiving the remarks on sentence for Mr Weis. That is a sufficient explanation.

22. The issues between the Crown and the applicant were:

1. Were the applicant and Mr Weis co-offenders so as to attract the application of the parity principle?

2. Was the disparity between their sentences unjustified?

23. The Crown's position was that the applicant and Mr Weis were not co-offenders so that the parity principle did not apply to them, but in the alternative, the disparity in their sentences was justified by the differences in the criminality of their offending and their subjective circumstances.

The sentencing of the applicant

24. The facts for sentence were agreed. In summary, on two occasions, a man named Beau Marshall used the applicant to collect methylamphetamine from an up-line supplier in Sydney and bring it back to him on the Central Coast. The applicant also supplied methylamphetamine on the Central Coast at Mr Marshall's direction. The details were as follows.

25. On 26 November 2020 Mr Marshall arranged for the applicant to go to Sydney and collect 140g of methylamphetamine in order for him to supply it to another person. The applicant did this and delivered the drugs to Mr Marshall.

26. On 1 December 2020 Mr Marshall arranged for the applicant to go to Sydney and collect 112g of methylamphetamine from an up-line supplier, which the applicant did, and delivered the drugs to Mr Marshall, who directed the applicant to deliver the drugs just obtained to another man who was involved with Mr Marshall in supplying methylamphetamine.

27. The total quantity of those two supplies was 252g of methylamphetamine.

28. In the second category of offending, being supplies on the Central Coast between 10 November 2020 and 3 December 2020, Mr Marshall agreed to supply methylamphetamine on 13 separate occasions on the Central Coast. He used the applicant as a courier of the drugs and to collect payments for them. The supplies ranged between 1g and 7g and were supplied to a number of different people. The total quantity supplied was 42.95g.

24. In the course of their communication the applicant used and responded to coded terms for quantities of drug. In a phone call Mr Marshall complimented the applicant as "doing the things that make it all happen" and being a "key player". The sentencing judge described this as "obviously flattery".

25. The applicant accepted cash for the quantities of drugs he supplied.

26. In assessing the objective seriousness of the applicant's offending, Judge Abadee said the quantity of drugs supplied was a particularly significant factor, described his role as a courier and found his offending fell below the mid range, though above the lowest end of the range.

27. Judge Abadee took into account the following subjective circumstances of the applicant. No issue is taken with his Honour's treatment of the facts or the applicant's subjective case.

28. The applicant was about 46 years of age in the period of his offending. He reported a turbulent childhood in New Zealand, with his parents divorcing when he was 11 and his mother evicting him from the family home when he was 15. His father was described as an alcoholic. After he left the family home the applicant stayed in a house with boys who did not attend school, although he did. After school he had regular employment in various occupations. About 12 years before his sentencing, he moved to Australia to work in mines. He suffered a back injury which required surgery. The applicant told a psychologist that he struggled to deal with his physical condition after the accident and developed a reliance on prescribed painkillers and alcohol which led to an addiction. He said more recently he had not been receiving any treatment and had not been using any alcohol, drugs or prescribed medication for two years (as at the sentence date of November 2022).

29. The applicant had been in a relationship for 22 years and his partner was supportive. However, he said that in the period of his offending there was a breakdown of the relationship, he lost contact with his family and was using 1g of “ice” a day to cope with the loss of his family. The applicant said that the ice addiction developed partly from the effects of his workplace accident in 2015: that he became addicted to painkillers because of his back injury and used “ice” to help him stay awake.

30. The applicant told the psychologist who provided a report for the sentencing judge that his reasons for becoming involved in the offending were to support his ice addiction and to financially assist his family. The psychologist expressed the opinion that at the time of his offending, the applicant had a stimulant use disorder and an adjustment disorder with depressed mood. She said there was a connection between family dislocation and exposure to violence in the applicant's childhood, which diminished his coping skills and led to substance abuse. After the applicant's workplace accident his dependence on painkillers transformed to a dependence on ice. The ice addiction would adversely impact his judgment and decision making ability. The workplace accident and its consequences led to tensions in the applicant's family, which led to depression. The applicant said he received $1000 for his services and in addition he was given ice for his addiction.

31. Judge Abadee accepted there was some trauma and disadvantage in the applicant's childhood, but found that it did not substantially impair his capacity to complete his schooling and thereafter participate in the workforce over a significant period. His Honour found it was the work injury accident, his response to it in terms of self-medicating, and issues associated with his personal relationship which caused him to resort to ice use as a middle-aged man. His Honour stated that it was not inevitable that after weaning himself off painkillers the applicant would become an ice addict, and he did not seek counselling or alternative medication.

32. His Honour said the applicant was entitled to a 25% discount of his sentence for his guilty plea.

33. His Honour found that before the offence for sentence the applicant had a minimal criminal history consisting of a single driving offence. However, after the subject offending he had an offence of driving under the influence of drugs, which his Honour found demonstrated that the subject offending was not an uncharacteristic aberration and therefore diminished the scope for leniency that would be afforded to a first-time offender.

34. Judge Abadee found that the applicant's remorse was limited, that he showed little real insight into the consequences of his offending for the community, and was mainly regretful for the anticipated consequences to him and his family from his offending, rather than indicating any genuine acceptance of responsibility for the harm his offending had caused.

35. In respect of the applicant's prospects of rehabilitation, his Honour noted some positive signs, including a supportive partner and heightened concern for his family, but found his prospects were only guarded, including because the applicant had made little prior attempt at rehabilitation in respect of his use of drugs.

36. His Honour took into account that the period the applicant had spent in custody was spent mainly in lockdown.

37. His Honour noted that the applicant relied on his evidence that through the winter of 2021, he and his partner were living in a tent with their children because of his inability to pay the rent. He said his partner was not working and, as a New Zealand citizen, not entitled to receive government assistance. His Honour stated that the evidence of hardship to the applicant's family from him being sentenced to full-time imprisonment was inadequate to establish that it constituted exceptional circumstances. However, his Honour took the hardship to the applicant's family into account as special circumstances in fixing the non-parole period.

38. In addressing the parity principle, in sentencing the applicant and some other related offenders, Judge Abadee said that Mr Marshall was effectively the head of the Central Coast syndicate, he arranged the pricelist, he negotiated the quantities, arranged and delegated transport, he dealt with the up-line Sydney supplier and arranged for collection by the applicant or Mr Weis. His Honour stated that the applicant’s role "was connected to the receipt of drugs from the up-line supplier in Sydney. He was a courier and street level dealer, with heavy oversight from Marshall".

The sentencing of Luke Weis

44. Mr Weis was sentenced separately from, and after the applicant. The facts were agreed.

45. His Honour stated that on two occasions Mr Marshall used the offender Mr Weis to collect methylamphetamine from the up-line supplier in Sydney, and Mr Weis travelled to Sydney, collected the drugs and brought them to Mr Marshall on the Central Coast. His payment was that he had his drug debts to Mr Marshall reduced by $800 and $700. The facts also stated that on two occasions Mr Marshall used the applicant Mr Neale to collect methylamphetamine from the up-line supplier in Sydney and bring it back to him on the Central Coast, and Mr Neale also supplied methylamphetamine on the Central Coast at the direction of Mr Marshall.

46. Mr Weis’s two occasions of collecting drugs for Mr Marshall, which gave rise to the two charges to which he pleaded guilty, were that he delivered 140g of methylamphetamine from the up-line supplier in Sydney to Mr Marshall on the Central Coast, and on the second occasion he delivered 168g of methylamphetamine from the supplier in Sydney to Mr Marshall.

47. In assessing the objective seriousness of Mr Weis's offending his Honour found that Mr Weis was part of an organised network but his role was at the lower end of the syndicate. His Honour found the quantity of drugs was significant but was diminished to a degree by the agreed fact that Mr Weis did not know the actual quantity of drugs. His Honour stated that "in a technical sense [Mr Weis’s] motive was financial gain in the sense of reducing his indebtedness to his principal" but "his motive was to feed a drug habit. Reducing his indebtedness contributed to that overriding objective."

48. His Honour found Mr Weis's offending was "quite serious for offending of this kind".

49. His Honour took into account the following subjective circumstances of Mr Weis.

50. He was 35 at the time of offending. He told a Community Corrections Officer that during the period of his offending he had a significant addiction to using methylamphetamine and that his addiction was a direct contributing factor to his offences. His Honour found that his drug addiction did not reduce his moral culpability.

51. He was given a 25% discount for his pleas of guilty.

52. He had no prior drug related convictions but had a history of driving related offences and domestic violence offences. His Honour found Mr Weis's criminal history disentitled him to the leniency afforded a first time offender and, although of a different kind of offending, also manifested disobedience to the law in the Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 1 sense. His Honour said he was unable to find genuine remorse or contrition. Mr Weis had been compliant with a Community Corrections Order and had completed a 12 week MERIT program. His Honour found Mr Weis's prospects of rehabilitation reasonable.

53. On the issue of parity his Honour stated:

"I do find that Weis's offending is most comparable to Neale, although less serious than Neale and/or the other co-offenders, especially in view of the circumstances that unlike Neale… he did not on-supply drugs to third parties."

54. His Honour indicated sentences of 1 year and 5 months imprisonment and 1 year and 6 months imprisonment for the two offences. He indicated an aggregate sentence of 2 years and 6 months imprisonment, from which he deducted 3 months and 13 days of presentence custody. After obtaining a report his Honour ordered that Mr Weis serve his sentence of 2 years, 2 months and 17 days imprisonment by way of an Intensive Correction Order.

The applicant's submissions

55. The applicant relied on the statement of the High Court in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30] that the parity principle is not confined to sentences imposed on co-offenders who have committed the same crime; it also applies to sentences imposed upon persons who are co-offenders by virtue of having been engaged in the same criminal enterprise, regardless of the charges laid against them.

56. In response to the Crown's submission that the parity principle did not apply, counsel relied on the statement of Price J in B v R [2022] NSWCCA 102 at [85] that whether people were engaged in a common criminal enterprise and were co-offenders depends on the circumstances of their case. He submitted that the cases the Crown relied on in support of its submission were factually distinguishable.

57. Counsel submitted that the criminal enterprise in which the applicant and Mr Weis were involved was the supply of methylamphetamine by Mr Marshall, and they were co-offenders because they both transported similar quantities of the same drug from Sydney to Mr Marshall, at his behest and direction, in the same time period, and in so doing they furthered Mr Marshall's enterprise of supplying methylamphetamine.

58. Counsel submitted there was little to distinguish the applicant’s and Mr Weis's subjective cases. Both pleaded guilty and received 25% discounts for their pleas. Although they pleaded guilty to different charges, counsel submitted that the substance, not the form, should be examined.

59. He submitted there was little to distinguish the two occasions the applicant and Mr Weis transported drugs from Sydney to Mr Marshall, although the total amount so delivered by the applicant was less than that delivered by Mr Weis. Both received relatively small financial reward.

60. Counsel submitted that the applicant's involvement in 13 individual supplies on behalf of Mr Marshall involved greater criminality then Mr Weis’s and justified some disparity, but did not justify the extent of the disparity between the sentences imposed on the applicant and Mr Weis, in both the length of the sentences and Mr Weis serving his by way of Intensive Correction Order.

The Crown's submissions

61. The Crown submitted that the applicant and Mr Weis were not co-offenders so as to attract the application of the parity principle, relying on Why v R [2017] NSWCCA 101 and B v R. Although they both acted as a courier for Mr Marshall, they did so independently of each other, without any interconnection, overlap or common involvement.

62. The Crown submitted that the applicant and Mr Weis were sentenced for different offences with different maximum penalties. All of the applicant's supplies were the subject of one "rolled up" commercial quantity supply charge. The prosecutorial charging discretion was exercised legitimately and the Court cannot go behind that.

63. The Crown submitted the sentencing judge found the applicant was a courier and street level dealer, involved in the street supply of drugs under Mr Marshall's direction as well as couriering drugs to him.

64. The Crown submitted that the applicant's offence and offending involved different and separate offending from that of Mr Weis, although the applicant's offence included some conduct of a similar nature to Mr Weis’s offending. However, the applicant's offence involved 13 street level supplies over about one month. The Crown relied on the evidence that Mr Weis did not know the quantities of drugs he collected for Mr Marshall.

65. The Crown submitted that Mr Weis’s subjective case was more favourable than the applicant's, and they had different motivations for their offending.

66. The Crown relied on the same judge having sentenced both the applicant and Mr Weis, so this Court should be slow to intervene: Croke v R [2021] NSWCCA 249.

67. The Crown submitted that because of the real differences in the criminality of the applicant and Mr Weis and their subjective circumstances, the disparity in the sentences imposed was open to the sentencing judge.

Consideration

68. In Green v The Queen; Quinn v The Queen, the High Court said:

“[28] ‘Equal justice’ embodies the norm expressed in the term ‘equality before the law’… it requires, so far as the law permits, that like cases be treated alike.

…

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

…

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

[31] … In the exercise of [statutory] powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may ‘reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender…. Gibbs CJ said in Lowe v The Queen:

‘The reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.’

The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria”.

69. I am of the view that a reasonable person, looking at the circumstances of this case, would regard the applicant's grievance at the disparity between the sentences imposed on him and Mr Weis as justified, that objectively justice has not been done to the applicant.

70. The applicant and Mr Weis were co-offenders in the sense that they assisted Mr Marshall in his criminal enterprise, even though they did not know or interact with each other. Their roles in collecting methylamphetamine on two occasions from a person in Sydney and delivering it to Mr Marshall were indistinguishable, except that Mr Weis did not know the quantities of drugs he collected. There was not a significant variation in their subjective circumstances or motivations for offending; both did so for financial reward and financial need. It could not be said that the applicant, living in a tent with his family, demonstrated a lavish lifestyle from his proceeds of delivering drugs to and for Mr Marshall. The applicant did have the further criminality of 13 supplies of smaller quantities, totalling 42.95g, over about one month, but again he acted on the direction of Mr Marshall. Although he provided that assistance to Mr Marshall in distributing drugs into the community, his conduct in so doing was less serious than if he had done it on his own account, independently and for greater financial reward or profit.

71. By objective criteria, the reasonable person in the community, looking at what the applicant and Mr Weis both did in their offending, and their personal circumstances, would consider that an injustice has been done to the applicant. Therefore this Court must intervene to correct that injustice.

Resentence

72. As the applicant did not challenge any of the sentencing judge’s factual findings or findings about his subjective circumstances I would proceed on the same basis. I take into account the material contained in the two affidavits of the applicant’s solicitor. They show that the applicant has been employed while in custody, with very positive work reports by his supervisors. His concern about his family has continued during his time in custody.

73. In re-sentencing the applicant, the non-parole period I have selected involves a lesser reduction in the statutory ratio than the sentencing judge applied, but I consider that no lesser actual period in custody would be appropriate for the applicant's offending and personal circumstances.

74. I propose the following orders:

1. Extend time for leave to appeal against the sentence.

2. Grant leave to appeal.

3. Allow the appeal.

4. The sentence imposed in the District Court on 3 November 2022 is quashed.

5. In lieu thereof the applicant is sentenced to 3 years and 3 months imprisonment with a non-parole period of 2 years. The sentence commenced on 12 October 2022 and expires on 11 January 2026. The non-parole period expires on 11 October 2024.

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Decision last updated: 26 August 2024