R v Dyson

[2023] NSWDC 72

District Court

New South Wales

Medium Neutral Citation:

R v Dyson [2023] NSWDC 72

Hearing dates:

14 March 2023

Date of orders:

22 March 2023

Decision date:

22 March 2023

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [85-86]

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Commercial quantity

CRIME — Drug offences — Supply prohibited drug — Knowingly direct activities of a criminal group

Legislation Cited:

Crimes Act 1900 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Chamon v R [2020] NSWCCA 112

Greaves v R [2020] NSWCCA 140

Green v The Queen [2011] HCA 49

Jimmy v The Queen [2010] NSWCCA 60

Lowe v R (1984) 154 CLR 606

Muldrock v The Queen [2011] HCA 39

R v Cattell [2019] NSWCCA 297.

Valentine v R [2020] NSWCCA 116

Texts Cited:

Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ

Category:

Sentence

Parties:

Rex (Crown)
Nathan Beau Dyson (Offender)

Representation:

Council: Franklin for the Director of the Department of Public Prosecutions (Crown)

Solicitor: Ashkan Tai Lawyers (Offender)

File Number(s):

2021/00181765

Reasons on Sentence

Introduction

1. Nathan Beau Dyson, (“the offender”) appears for sentence in respect of two offences, namely:

1. Directing the activities of a criminal group whose activities were organised and ongoing in breach of section 93T(4A) of the Crimes Act. The maximum penalty for that offence is 15 years imprisonment. There is no standard non-parole period.

2. Supplying a prohibited drug, namely cocaine, in not less than a commercial quantity in breach of sections 25(2) of the Drugs Misuse and Trafficking Act. The maximum penalty for that offence is 20 years imprisonment and it has a standard non-parole period of 10 years.

2. In respect of the supply offence there is a further charge under section 25(2) to be taken into account by way of the Form 1 procedure.

3. In relation to the maximum sentences and, in respect of the section 25(2) offence, the standard non-parole period, those matters are taken into account as legislative guideposts, indicating the legislature's view of the seriousness of the offending to provide assistance in arriving at the appropriate sentence. In relation to the standard non-parole period I note that in Muldrock (2011) 244 CLR 120 at [29] the High Court made clear that it has application even when the offending is not considered to be in the middle of the range of seriousness as that term is used in section 54A of the Crimes (Sentencing Procedure) Act (“CSPA”).

4. In regards to the Form 1 procedure it is important that the focus remains on the principal offences for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrents and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

Facts

5. The offending occurred in the period 11 November 2020 through to 8 April 2021. The offender was arrested on 23 June 2021. The offender has remained in custody since his arrest to the present day, a period of one year and nine months. At the time of the offending the offender was subject to an intensive correction order which was revoked with effect from 8 April 2021 and expiring on 28 April 2021. Additionally on 8 April 2021 he commenced a four-month term of imprisonment for a matter dealt with in the Local Court. The criminal history indicates that a severity appeal was successful, and the sentence became a Community Corrections Order.

6. The intensive correction order was for a period of nine months concluding on 26 April 2021 and tab 6 of exhibit A shows it was revoked it would seem on 8 April 2021. Thus, while the offending occurred whilst on the ICO there is no overlap in time spent in custody relating to this offence and the time of the ICO custody. It is agreed that the sentence is to commence on 23 June 2021.

7. Exhibit A contains an agreed statement of facts. The offender was a fully patched member of the Lone Wolves Outlaw Motorcycle Gang in Coffs Harbour which was the subject of police investigation.

8. The agreed fact is that the offender was running a commercial cocaine supply syndicate.

9. Police investigations revealed that the offender owned and controlled a number of motor vehicles which were used by the offender’s associates. One of the vehicles contained a hidden compartment used to transport large quantities of drugs.

10. The agreed facts set out in some detail a range of activities engaged in by the offender to make out the charge of directing a criminal group. Those activities included:

1. Conducting a commercial cocaine supply syndicate as noted above. This involved at least 5 others beyond the offender including a Tyler Sinclair and a Paul Pincham. It is an important part of the offender’s case on this sentence that Mr Pincham is described as being involved in this syndicate “on a roughly equal partnership financially, although ultimately it was Pincham to whom he (the offender Mr Dyson) was answerable”. Mr Pincham was sentenced for his participation in the criminal group in the Local Court. The offender relies on this agreed fact for the argument that the parity principle applies and that the sentence can be no more than the sentence received by Mr Pincham.

2. The offender obtained cocaine from Brisbane in half kilo amounts. The offender delivered this on all but one occasion to Mr Pincham first and then received the amount that he himself could on sell.

3. Communications are described by the Crown as sophisticated including camera surveillance and the use of apps where the communication deletes messages. The offender disputes that this equates to sophisticated, arguing that camera surveillance is prevalent in the community and the apps are widely available and widely used. In my view this displays a degree of sophistication but in large part I accept the submission of the offender. It is in effect simply one step up from using open channels of communication such as SMS messaging.

4. The offender would on supply those below him who would then sell to customers. The amounts being on supplied by these retailers was between 1g to 8 g though on one occasion it was as much as 56 g.

5. The number of people the offender supplied so that those people could then on supply was at least 7.

6. The section 25(2) offence is conduct relied on also for the direct criminal group offence; further the quantity there obtained was used in the manner set out above. For that reason there will be a significant degree of concurrency, if not total, in the sentence for the two matters. This approach allows for the Form 1 offence which is also relied on to support the criminal group charge.

7. The facts detail conversation and conduct in the month of March 2021 consistent with the offender being regularly and significantly involved in the supply of drugs with the point being he is liaising with as many at least 7 others to conduct the operation, or in the words of the section, directing the group.

8. Paragraph 26 of the facts makes it plain that Mr Pincham has a degree of authority over the offender in that the offender would not act in a certain way because if he did Pincham would “flip it”; on the other hand it is also plain that the offender had authority over his mother and instructed her as to what to do with quantities of cocaine. Other people were also directed by the offender in connection with the collection of cocaine.

9. The Crown relies on the purchase of clothing of up to $1600 for pants and a top to demonstrate what the Crown says in his extravagant lifestyle. With respect on those facts I do not think that point has a great deal of weight, though the point has other support in boasts made by the offender as to money he intends to spend on pleasure.

10. People conducted drug runs at the offender’s direction. On about 8 January a Mr McGregor conducted one such drug run going to Sydney and returning to Coffs Harbour to collect drugs. The amount is not stated. Between 10 and 12 March 2021 the offender arranged for Mr Sinclair with a Bailey Spencer to travel to Sydney to collect a large quantity of methamphetamine. These are the facts of the Form 1 offence.

11. A person named Turner regularly transported the offender for the purpose of collecting large quantities of cocaine which Turner took part in in return for payment and to pay off drug debts. This included the half kilo trip to Brisbane on 8 March 2021.

11. In terms of the objective seriousness of this offence, it assists to consider the structure of the section. Section 93T has offences of increasing seriousness as reflected by the maximum penalty. Subsection 1 relates to a person participating in a criminal group with a maximum term of five years, where the mental element is knowing or “ought reasonably to know” the group is a criminal group. Subsection 1A deals with a person who participates in a criminal group by directing any activities of the group knowing that it is a criminal group with a maximum term of 10 years. Subsection 4A, which is the offence here, is in the same terms as subsection 1A save that the activities are organised and ongoing. In terms of the degree of direction of the criminal group by the offender on these facts the only person who has equal or greater authority is Mr Pincham.

12. On the facts the activities are carried out between 11 November and 8 April, so period of five months. The facts disclose numerous runs to obtain half kilo bricks of cocaine and numerous occasions of the down the line supply of that product. As already commented on the method of communication reflects the desire to keep the communications free of detection but done by fairly basic means on readily available technology commonly used in the community.

13. The period over which the offending occurred shows that, as required by the section, it is ongoing.

14. The Crown makes the point that the offence can be constituted by one direction and whilst that may be an open interpretation of the section it would be an uncommon case for a subsection 4A offence of ongoing activities to be made out by only one direction on one occasion and if that be wrong then any such case would be an example of the most minimal type of this offence. That said it is plain that the level of direction in this fairly unsophisticated group is high.

15. In support of the Crown’s argument that this is an offence at the highest end of the objective seriousness it relies on a statement made by Mr McGregor, one of the people being directed, to a customer that owing to the arrest of the offender there would now be a shortage of cocaine available in Coffs Harbour. With respect I do not think a statement made by a person with an interest in drug supply to that effect can found a finding that the offender is the primary source of cocaine in the Coffs Harbour area.

16. I accept the submission by the Crown that the amounts being supplied are significant. The offender also aided the transport of drugs by the use of the car with the secret compartment. The Crown’s submissions refer to that being a different drug, namely methylamphetamine. Yet the offender’s involvement here was to hire out his vehicle for $1000 to transport drugs, and that the drug was not cocaine, but methamphetamine does not add meaningfully to the seriousness of the offending. It is not suggested that he had connections to methamphetamine supply in the way that he did with cocaine.

17. Taking the above matters into account, the objective seriousness of the criminal group charge is into the mid-range. In particular, the regularity of the offending, the number of people involved, and the significant quantities of cocaine referred to support that conclusion.

18. The second offence is the supply offence which is 486 g of cocaine where a commercial quantity is 250 g and a large commercial quantity is 1 kg. This conduct is relied upon in respect of the first offence and involves a trip to Brisbane in the vehicle with the hidden compartment. A man named Turner drove the offender on this occasion because he had to pay off a debt. The Crown relies also on a recorded conversation between the offender and Sinclair where the offender says he cannot wait to “waste 30K” tomorrow, including 10K on a bracelet and to spend another 15 while he is away. It is not clear if this is relied upon in respect of the first offence also; it certainly suggests more lavish spending than the $1600 on clothes. In any event it supports the same conclusion, that the involvement in this drug offending is beyond the kind of involvement motivated by the need to support an addiction and does extend to profiteering. That it must be said is not an unusual motivation and the degree to which or the size of the profits is difficult to gauge on the available facts. The fact of making financial gain is taken into account in this context. The drugs collected were then delivered to Mr Pincham. The agreed fact is that the 486g amount is arrived at because the offender took half an ounce or 14 g for his own use and then told Mr Pincham supply was short by that much.

19. In terms of this offence the amount is significantly more than the amount needed for commercial quantity. The offender’s role is as a mid-level supplier who operates a supply business involving as many as seven other people beneath him.

20. In my view given the amount of the drug involved in this charge and the mid-level role of the offender this offending is touching on the mid-range.

21. There is also a Form 1 offence to be taken into account with the supply charge. This is the offence of knowingly take part in supplying a prohibited drug being the occasion that Mr Sinclair has been sentenced for. In that case the car with a secret compartment was used to collect from Sydney 992 g of methyl amphetamine of 71% purity. The drugs were being collected on behalf of Mr Dolar for the purpose of supply. The offender’s involvement is limited to providing the car to Sinclair for a fee of $1000. It perhaps reflects the offender’s involvement in this matter that the basis of the charge is that he knew it was an amount of 250 g at least. In other words, his involvement was at some distance to the detail of the offending. In my view this is in the low range. It is also important to recognise that this very same offence is relied upon in respect of the direct criminal group charge so that care must be taken to avoid double punishment, a concern that can be met by the sentences being significantly if not wholly concurrent.

Objective Seriousness

22. I have considered the objective seriousness of the two offences above and have concluded that in respect of the criminal group charge it is into the mid-range. In my view the supply charge is touching upon the mid-range level and below the midpoint referred to in section 54A.

Aggravating factors

23. As noted above the offender was on an ICO at the time of this offending. The conduct is in breach of the standard condition to commit no offence. I take that into account.

Subjective case

24. The argument for the offender relied on the personal history and circumstances of the offender to argue for mitigation in the way commonly seen. The key issue however in this case revolves around the question of parity. That concerns the way in which Mr Pincham has been treated in the Local Court. I will deal with this parity issue after dealing with the other subjective matters of the offender.

25. The evidence for the offender consisted of a letter dated 27 November 2020 from a doctor recording that the offender had been diagnosed with ADHD as a child and is still very impulsive and emotionally dysregulated. The letter was a referral for consideration of stimulant therapy.

26. Exhibit 2 was a letter from a firm of solicitors acting for the offender in connection with a compensation claim for historical child abuse with the reference being to it occurring in an institutional setting.

27. Lastly was Exhibit 3 which was a letter dated 24 August 2022 of an employer of the offender in 2017 and 2018 and stating that he was a reliable, diligent and hard-working individual.

28. The matters relied on in submissions included the early plea resulting in a 25% discount which was not challenged by the Crown. It was argued the sentence should be backdated to 23 June 2021.

29. The offender relies on his sentence having been served to date in Covid conditions. Reliance was placed on Valentine [2020] NSWCCA 116 to support the argument that custody in these times is more onerous and I accept that submission. Not only is there less contact with family and supporters due to diminished access for visits but there are more prevalent occasions of lockdown. The evidence does not disclose what the lockdown experienced by the offender is, however I infer that it has occurred to him and take it into account.

30. The asserted sexual abuse is, as is often seen, not evidenced in detail, but is supported by the solicitor’s letter that a claim is on foot. I accept that a claim has been made and that the offender suffered abuse, and I take into account the impact such abuse is recognised to have. It is plainly a significant traumatic event in the life of the offender and it is well recognised that child sex offenses have a profound effect upon victims for a significant period if not all of the balance of their lives; see Cattell [2019] NSWCCA 297.

31. The offender does not say that there is a connection directly to the actual offending due to this traumatic event and puts it no higher than it may be a factor in his drug use. On this evidence the best that can be made of it is to say that he has suffered a traumatic event which would impact on his life. I accept that he is a user of cocaine as indicated by his recorded comments in the agreed facts particularly at paragraph 46.

32. The submission was made that the offender is not a criminal mastermind nor is it suggested that he is a novice; I accept that submission as it is consistent with the level of activity of the group and the lack of marked sophistication.

33. The Crown fairly points out that there is no evidence of remorse, beyond the early plea of guilty. The Crown notes the age of the offender is 26 at the time of the offending. The Crown refers to the letter from the employer to show that a pro social life was open to the offender yet he chose instead to engage in the offending conduct. I note that the offender was last employed ended in 2018, some three years before the offending.

34. The offender has a criminal history commencing in 2020 at the age of 25 with two counts of driving whilst disqualified, the first offence being referred to is recorded as a second offence, suggesting it was the second offence for the offending. Also that year he committed the offence of having goods suspected of being stolen on premises and a further offence of drive whilst disqualified. Page 6 of the criminal record refers to a 2015 offence of drive disqualified explaining the above references. It also records there were other driving offences in 2019 and 2020. Then in 2021 he committed two contravene AVO offenses. Significantly he has no prior charges relating to drug supply. The record is one which denies him leniency based on his record but the nature of the offending, that is the absence of any earlier drug offending, does give some basis to more favourably view his prospects of rehabilitation.

Sentencing considerations

35. The purposes of sentencing are as follows:

1. To ensure the offender is adequately punished

2. To prevent crime by deterring the offender and others from committing similar offenses

1. To protect the community from the offender

2. To promote the rehabilitation of the offender

3. To make the offender accountable for his actions

4. To denounce the conduct of the offender

5. To recognise the harm done to the victim of the crime and the community.

36. But for the issue of parity which I have yet to consider the offender’s subjective case is not overwhelming. Whilst he has had a very traumatic experience in his life which I accept may have an ongoing impact on his state of being, there is very little if any explanation of much assistance to him as to why he chose to leave paid employment to become involved in the supply of drugs.

37. On the other hand that he has demonstrated an ability for employment does indicate a basis for considering his prospects of rehabilitation and of minimal reoffending are reasonable.

38. There is no question that the section 5 threshold is crossed.

39. In my view of the purposes of sentencing identified above what needs to be emphasised is a need to make the offender accountable and to denounce his conduct and to recognise the harm done to the community by the drug trade which amounts to the need to protect the community. In my view there is a paucity of evidence to suggest this offender is not an appropriate vehicle for deterrence and for the reasons just set out a sentence for offending of this type must reflect a significant weighting to the need to deter the offender and others. Any sentence should also be imposed in a way that promotes rehabilitation, which in this case means to remove the offender from an apparent, if not addiction, then close association and regular use of drugs, and to return him to the workforce.

40. At the same time when sentencing for these offences the interconnected factual nature of the offending must be borne in mind and in my view that is an issue that can be addressed by the principle of totality.

41. For the criminal group charge the indicative head sentence is five years so that it would be 3 years and 9 months after the discount.

42. I consider the appropriate indicative sentence for the supply charge taking into account the Form 1 matter to be 3 ½ years. After the discount and rounding it down to the nearest month the indicative term is 31 months.

43. In arriving at these indicative sentences I bear in mind the maximum penalty and the standard non-parole period where applicable. For reasons indicated my view is that the sentences should be wholly concurrent. The result is an aggregate term of 3 years 9 months. Given the total absence of any other earlier drug offending and the fact of the offender having some work history, and bearing in mind this is his first occasion in custody, and made more onerous by Covid, that there should be some allowance albeit modest for special circumstances. The non parole period, subject to the determination of the parity issue, should be 2 years and 3 months. To the parity issue I now turn.

Parity

44. Included in the Crown material as exhibit B were the facts on which Mr Pincham was sentenced for the s93T(1) offence of participating, not directing, a criminal group. The facts agreed in that case were that the offender (that is, Mr Dyson) was operating a commercial cocaine supply syndicate with members who included Mr Pincham and also Mr Sinclair and others referred to in the facts above. In other words, consistent with the s93T(1) charge, Mr Pincham was referred to in largely the same terms as the people being directed by the offender rather than as a person giving directions. One point of distinction though was that both the offender and Mr Pincham were identified as fully patched members of the outlaw motorcycle gang.

45. Paragraph 3 of the Pincham facts specifically states that the role Mr Pincham played in the criminal group is not clear and says that he dealt directly with the offender and that the offender in turn had dealings with other members. That allows for the possibility that it was the offender passing on directions from Pincham, though that was not the allegation. The facts for Mr Pincham say that the offender held profits on trust for Pincham but that such profits were not ultimately passed on to Pincham. The facts also indicate that the offender’s mother Ms Davis sought advice from Pincham.

46. In essence the significant difference in the two sets of facts is that the facts for Mr Pincham state that his precise role in the criminal group is not clear though they do allow for him meeting with the offender who would then direct or have dealings with other members. In contrast the agreed facts for the offender state that the offender was running the syndicate along with Mr Pincham on a roughly equal partnership financially, and go on to say “although ultimately it was Pincham to whom he (ie the offender) was answerable”. The facts then state the offender retained all the “business” money, and refer to par 29 of the facts. Par 29 does not deal with money, and the reference would seem to be to par 32, and that makes clear that the offender is holding money for Mr Pincham, not in some way depriving him of it as suggested in the Pincham facts, though the facts do not expressly say that did not occur. In any event, that there may have been some deceit as between the offender and Mr Pincham does not alter the position as described in the facts of the offender’s matter, of the offender being answerable to Mr Pincham.

47. Mr Pincham pleaded guilty to a charge under section 93T(1), which as identified above is a charge of participating in a criminal group and not directing its activities and has a maximum penalty of only five years, compared to the 15 year maximum penalty of the offence of the offender. The offender in his submissions relied heavily on the fact that Mr Pincham is a 56-year-old man compared to a now 28-year-old Mr Dyson with a criminal record of 10 pages including sentences for supply, manufacture and shoot with intent. Mr Pincham received a 13-month ICO which included allowance for five months on remand. The point is also made that none of the others identified as being part of the criminal group have been charged with participation in a criminal group but with respect that is not as significant as the issue concerning or arising from Mr Pincham.

48. In oral submissions the point concerning parity was emphasised in relation to the criminal group charge. The offender relied on the cases of Greaves, Green and Jimmy. To those cases I would add the case of Lowe. In short it is said that it is necessary to treat like as like and that the facts of the present matter show that the criminality of Mr Pincham and the offender is very much on a par.

49. The Crown submitted at the hearing that it is not a case of like-for-like. This submission is supported by the fact that there is not alleged in the facts concerning Mr Pincham the detail of the two drug supply offences if you include the Form 1 matter. All that is known about Mr Pincham in his case was that he received profits from the cocaine supplies or at least was entitled to them, but his precise role was not known and there is no particularisation of offending in the way set out in regards to the offender. Yet to be balanced against this is the point of the offender that the principle of equal justice requires that the matter not be limited by form and that a broad approach needs to be taken. The offender’s point is that on his facts he and Mr Pincham were approximately equally involved as set out above. The offender’s argument is in effect that at least objectively then the criminality should be considered comparable. It also appears the offender has a more favourable subjective case than Mr Pincham.

50. The issue that needs to be addressed in this case is that on the facts before me the criminality of the offender is no less than that of Mr Pincham. They have been involved in the same criminal enterprise. Yet Mr Pincham has been charged with a different offence and only one charge with no Form 1 matter and on the basis of facts where it was not known to the sentencing Court precisely what his involvement in the criminal group was. How is that to be dealt with? Is the equality principle offended by two people being dealt with properly on the facts as were agreed in their respective cases when in fact one set of facts understated that offender's involvement (Mr Pincham)? Or would some objective bystander consider that there was a justified basis for grievance on the part of the offender (Mr Dyson) because although he has admitted to the more serious conduct he is nevertheless being dealt with more harshly than Mr Pincham, who committed the same serious s93T offence as the offender? Put another way, where two offenders have carried out the same or very similar conduct and one is first dealt with on lesser charges, should the second when being sentenced for more serious charges be sentenced without regard to the sentence imposed on the first offender?

The authorities

51. In Lowe v R (1984) 154 CLR 606 the High Court considered a case where the Queensland Court of Criminal Appeal had reduced the non-parole period of a co-offender on parity grounds. At [3] Gibbs CJ explained the reason for a court interfering in such circumstances to be because “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”.

52. The point raised above at [50] amounts to saying whether due to the way in which Mr Pincham has been sentenced there should be a lesser sentence for the offender, on the offender’s facts, than is appropriate. This very point was raised at [4] of the judgment of Mason J in Lowe. Mason J was in the minority, though the matter was a special leave application, and his judgment gives assistance on the present point. Leading up to that passage Mason J at the commencement of his judgment stated:

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.

53. Then at [4] His Honour said this:

It has been urged with some force that a sentence which is appropriate to the offence should never be reduced on the ground of discrepancy because there can be no acceptable basis for substituting a lesser sentence for one which is appropriate. On this approach the tendency of a particular sentence to engender a justifiable sense of grievance in the offender and an appearance to the community of unfairness or injustice, by reason of the harshness of the sentence in comparison with that imposed on the co-offender, is immaterial, so long as it is appropriate to the circumstances of the case. It is said that the proper method of correcting the discrepancy is to increase the penalty of the co-offender if it is inappropriate or inadequate. The difficulty with this approach is that a court of criminal appeal is from time to time unable to avoid that sense of grievance and the appearance of injustice by increasing an inadequate penalty imposed on the co-accused simply because there is no Crown appeal against that penalty. It has therefore been generally accepted that it is preferable to err on the side of leniency and eliminate or diminish the sense of grievance and appearance of injustice by reducing the more severe penalty in appropriate cases. So the courts have on many occasions reduced a sentence to bring it more into line with the co-offender's penalty, though it is well established that there is no principle of law that sentences must strictly compare.

54. The feature of the present case is that it is the change in the facts concerning Mr Pincham as set out in the Dyson facts that give rise to the argument as to a justifiable sense of grievance.

55. On the issue as to the appropriateness of reducing a proper sentence to an improper sentence, Mason J at [5] of his judgment said, in terms of a course open to an appeal court:

But the critical question is whether a court of criminal appeal can go further by reducing a sentence, which considered apart from disparity is otherwise appropriate, to a level where it is inadequate or might be regarded as inadequate.

56. His Honour then noted conflicting authority as to whether it was permissible in the case of disparity to reduce a proper sentence to an improper sentence. His Honour then went on to state at [8]:

What is the correct principle to be applied in cases of discrepancy? It is that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate.

57. It is therefore permissible to impose a sentence that but for the discrepancy or disparity with the co-offender would be inadequate.

58. That said, as already noted, the facts in Lowe differ from the present. The facts shortly stated in Lowe were that the two offenders held up a service station and stole $404.83. The co-offender Smith kept watch outside and Lowe went into the service station pretending he had a pistol which was in fact a paint spray gun. Smith received a three-year probation with 200 hours community service whereas Lowe received a six-year sentence with a non-parole period of two years and with the Court of Criminal Appeal reducing only the non-parole period to 1 year. Lowe was sentenced by Kelly J on 21 September 1983 and the co-offender Smith was sentenced by a different judge on 11 November 1983. As the nature of the case suggest there was no issue as to what occurred and what their respective roles were on the facts, unlike the present case which is one where based on the same activity different facts are put before the sentencing judge along with different charges.

59. In line with the principles concerning parity the sentencing judge of the second to be sentenced offender needs to take that into account and impose a sentence that would not engender a justifiable sense of grievance. But what is the sentencing judge to do when the first in time to be sentenced offender was dealt with on markedly different facts including being dealt with a marked less degree of criminal conduct and criminality, and where that second sentencing judge is presented with facts that show the criminality of the two offenders is on a par, if not that the criminality of the first offender is greater than the offender to now be sentenced?

60. Justice Brennan in Lowe arrived at the same result as Mason J (and so was also in the minority) and in doing so expressed some principles which with respect seem to be at odds with that of Mason J. At [4] of the judgment of Brennan J it is stated:

To say that an appellate court is bound to take the lesser sentence as the norm even though it is inappropriately lenient is tantamount to saying that "where you have one wrong sentence and one right sentence (the) Court should produce two wrong sentences" - a proposition that cannot be accepted.

61. Against that statement, and consistent with what had been said by Mason J, Justice Dawson, who was in the majority, said at [8] of his judgment that:

This has led to the variation of sentences by courts of appeal in order to reduce the disparity between sentences separately imposed upon co-offenders even where the sentence varied was not in itself excessive. The cases suggest that there has been a greater reluctance in England than here to vary the longer sentence in such a situation. There is always the dilemma that in order to eliminate the disparity the Court may have to reduce a sentence which it regards as proper in itself because of an inadequate sentence imposed upon a co-offender. To do so, it has been observed, is to compound the error. The view has been expressed in England that a court should not interfere unless the disparity is gross or glaring and the circumstances are "most exceptional". See Stroud at pp.153-4; Potter at p.113. The decisions in this country do not appear to be quite as restrictive as this but on any view the interference of a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice; see Pecora at p.504; Tisalandis at p.438. (Underlining added).

62. Based on the judgments of Mason and Dawson JJ the approach taken in this judgment is that in order to ensure that justice is done it is permissible as a matter of principle in appropriate circumstances to reduce the sentence for the offender to an extent that may mean the reduction in a sentence that is the proper sentence. That said the words of Justice Dawson are well chosen where he talks of the variation of the sentence that is not excessive, which allows for the argument that the reduction should not be one that would see it below the low point of what may be the available range of sentence in that case.

63. In Green v The Queen [2011] HCA 49 at [30] the High Court stated that Lowe is not authority for the proposition that the parity principle applies only to persons charged with the same offenses arising out of the same criminal conduct. The court said:

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 who sentences are compared is not a necessary condition of its application.

64. The court then went on to expressly refer to Jimmy v The Queen [2010] NSWCCA 60 to refer to practical difficulties in comparing sentences of participants in the same criminal enterprise when they are charged with different crimes, including where one is charged with the less serious offence as is the case here. It was said that those “practical difficulties” do not exclude the operation of the parity principle and that the effect given to the principle may vary according to the circumstances of the case including differences between the offences with which co-offenders are charged. This statement would appear to be correcting the view in Jimmy that the so-called “practical difficulties” may become so great that the parity principle cannot apply.

65. Both parties relied upon the decision of the New South Wales Court of Criminal Appeal in Greaves v R [2020] NSWCCA 140, which post dates Green and therefore also Jimmy. In that case, as here one co-offender was sentenced in the Local Court and the other in the District Court. The Court held that the parity principle was applicable even where the charges were not the same in all respects in respect of the co-offenders. The applicant in Greaves had faced sentence for four charges whereas one of his co-offenders faced only two charges and a second co-offender three. In that case there was one particular matter, a charge of assault occasioning, in respect of which each offender had been charged. In the facts of that case it was able to be determined that the sentence imposed in the District Court upon the applicant was such as to give rise to a justifiable sense of grievance. This was even though the criminality and subjective circumstances were not considered to be identical and that the applicant receiving a higher sentence was appropriate. With respect in any case of parity there will be variances almost certainly in the subjective circumstances and also commonly with the objective seriousness of the offending. The court held that the disproportion of the sentences imposed could not stand.

64. Greaves with respect is of not much assistance in the present case. Greaves along with the other cases referred to above assist where the co-offenders are dealt with in a different court and in respect of different charges, but not where, as in the present case, where the facts on which the co offender, Mr Pincham, was sentenced are changed when the other offender, Mr Dyson, is to be sentenced. That is, that in respect of Mr Pincham’s facts his role was significantly less for the purposes of his sentence than was recognised in the agreed facts in respect of the offender Dyson’s sentence. What the Crown here seeks is for the offender to be punished more severely than Mr Pincham for conduct which is now known to be approximately the same.

65. A final case that was referred to by the Crown was the matter of Chamon v R [2020] NSWCCA 112. That decision provides several very helpful statements of principle. Like the other cases cited above however it is factually distinguishable from the present situation because there was a consistency as to the facts and therefore of the roles of the various offenders in the respective offending throughout each of the cases. The case demonstrates that people can be charged with different offences arising from the same broad facts and the parity principle, in line with Green, still has application. Of course application of the parity principle does not mean that each case has the same result but only that this principle is taken into account in determining the respective sentences. That is, should one person involved in the same criminal enterprise receive a particular sentence then that is to be taken into account when determining the sentence for somebody else even if the charges may have been different and their involvement had been different.

66. The principles restated in Chamon are firstly the passage from Green at [30) of that case referred to above at [63] - [64]; in short the parity principle does apply to persons charged with different offenses arising out of the same criminal conduct. This supports its application in the present case.

67. Green at [30] recognises practical difficulties arise the greater the difference between the crimes charged. The court also accepted the inability of the Court of Criminal Appeal to undertake under the “parity rubric” a de facto review of prosecutorial charging discretion, something which is recognised here. As the High Court concluded at [30] those practical difficulties and limitations do not exclude the operation of the parity principle and the effect given to the parity principle may vary according to the circumstances of the case including differences between the offenses charged.

68. At [46] of Chamon the Court noted what Judge Norrish QC noted as an ironic result that a co-offender fell to be sentenced for an offence with a greater maximum penalty than the maximum penalties relating to the offences of another offender but in circumstances where that other offender faced more charges and in circumstances where it is quite clear that other offender had a greater role than the first mentioned co-offender. Again that is not the present position; what Judge Norrish QC was recognising there at first instance in Chamon was that on a consistent statement of the facts one offender less involved in the overall offending was facing a sentence with a greater maximum penalty albeit the more involved offender had a greater number of charges to face. In those circumstances parity still has a role to play.

69. Next at [42] of Chamon in reference to what is the grievance the parity principle is concerned with, Hulme J stated “the grievance is not one that is in the mind of the offender; it arises where there is an appearance of injustice in the mind of a hypothetical objective bystander” and in that regard he cited the decision of Lowe referred to above.

70. The difficulty is that if the charges and facts relied upon against Mr Pincham in his case were all that was ever known about Mr Pincham then this would not be a case about like matters being treated in a like fashion or about equal justice because there are clear differences, though some reference could still be made to the parity principle. The difficulty emerges because it is a case of like and like based on the facts on which the offender is to be sentenced. Whilst it is accepted that prosecutorial discretion is not to be gone behind that principle has little work to do when the different and more serious facts concerning Mr Pincham are indeed relied upon or agreed to by the prosecutor in the later case. The conundrum is that it is both a like and like case and not a like and like case, depending on which facts you refer to.

71. Ultimately what is to be taken from these various authorities as to the parity principle is that fundamentally it is based on the concept of equal justice, and the law concerns itself more with substance than with form. The reality is that as matters now stand, and apparently did not stand at the time of the sentence of Mr Pincham, the true extent of Mr Pincham’s involvement in this criminal activity is now known.

72. What the parity principle is fundamentally concerned with is a justifiable sense of grievance that arises, as was stated in Lowe and cited in Chamon, where there is an appearance of injustice in the mind of a hypothetical objective bystander. To adopt the words of Gibbs CJ set out at [51] above, the principle seeks to ensure that justice appears to be done; and to paraphrase Mason J as referred to at [52] above, inconsistency in punishment may erode public confidence in the law and erode confidence in the administration of justice. Furthermore, is made plain by the passage from Lowe set out above at [53], it may be that grievance can arise in circumstances where the error lies not with the sentence being reviewed by the appeal court, or as in the present circumstances is being set by the sentencing court, but rather lies in the judgment being referred to for parity purposes.

73. The result is that the sentence determined above at [43] must be reduced in my view by reason of the application of the parity principle and the injustice that would be done to the offender by receiving a significantly greater sentence for in effect the same criminal conduct reflected in the set of facts on which the offender is to be sentenced, which acknowledge that Mr Pincham is as criminally concerned in the same criminal enterprise as the offender albeit that when he was sentenced it would appear that those facts were not as well-known as they now are.

74. The alternative way of dealing with the matter is to simply look at the charges faced by Mr Pincham and the facts that he was sentenced on and conclude that the two cases are different. In those circumstances there is only a modest need to consider the parity principle, and it would not change the sentence arrived at above.

75. The two cases viewed that way (ie on their respective different facts) are significantly different, although as noted above the facts in Mr Pinchams matter hint at paragraph 3 to a greater involvement, where it states he dealt directly with the offender and that the offender would in turn have dealings with the other members, and also as noted that paragraph 4 states both he and the offender are fully patched members of the Lone Wolves Outlaw Motor Cycle Gang (something not said of the other offenders mentioned).

76. To the extent that there can be drawn from those paragraphs of the Pincham facts that the degree of involvement of Mr Pincham as being the equal of the offender is as set out in the Dyson facts, then the parity principle would apply as I have concluded in any event. To the extent that those Pincham facts do not support an inference of that magnitude, which in my view they do not, particularly given the degree of satisfaction required to find facts adversely to a offender on sentence, then we return to an alternative of dealing with the matter as two separate cases. On that approach, advocated for by the Crown, and simply put, Mr Pincham was not charged with the offences that the offender was and the facts of Mr Pincham’s case are consistent with those lesser charges, and differ from the offender’s facts, so that there is little if any impact on the outcome by the application of the parity principle.

77. The reason that approach has not been taken is that it is to accept form over substance and to knowingly look away from what is known now to be the factual situation. Consistent with doing equal justice and to avoid the appearance of injustice the better approach is the one which sees the parity principle have a marked impact on the sentence of the offender.

Determination

80. The sentence received by Mr Pincham was a 13-month intensive correction order which followed him having served five months on remand so that in effect it was a term of imprisonment of 18 months with a balance of that term remaining as at the date of sentence to be served by way of the ICO with conditions that included 150 hours of community service. The sentence for the offender arrived at prior to considering the parity principle was one of 3 years and 9 months with a 2 year and 3-month non-parole period. The offender has now been in custody since 23 June 2021 solely for these offences. He has therefore been in custody for this offence for 21 months, a term already greater than that served by Mr Pincham yet it is known that Mr Pincham was as equally criminally responsible if not more so for this offending than the offender albeit that was not known at the time that Mr Pincham was sentenced. There is also not available to the Court the particulars of Mr Pincham’s conduct in performing his role described above; did he obtain and deliver drugs in the way the offender did? On the one hand not knowing that detail requires a guarded approach; on the other, it might be expected that the higher up the hierarchy of a criminal drug group, the less “hands on” conduct there might be.

81. The court does not have available to it the full details of the subjective case of Mr Pincham but only has the references to the facts which were in evidence and his criminal record. That record reveals his age of now 55 years of age, so significantly older than the offender and a more serious criminal history as referred to above. Based on that his subjective case is not as persuasive as the offender’s.

82. Ultimately the result that I reach is that the parity principle and its fundamentally underlying raison d’être of avoiding the appearance of injustice in the mind of a hypothetical objective bystander should be applied in this case on the basis of the involvement of Mr Pincham as set out in the agreed facts relevant to the offender. This of course is a very fortunate result for the offender, but it is appropriate so as to maintain public confidence in the integrity of the administration of justice.

83. The result should therefore be that there should be an aggregate term with a non-parole period of 21 months with an additional term of 6 months. That the sentence is longer than Mr Pincham’s is due to matters referred to at [80] above.

84. The date to commence the sentence is 23 June 2021.

85. The section 25(2) charge has a standard non-parole period of 10 years. Had it been necessary to set a non-parole period for that offence for which the indicative sentence was 31 months, it would have been for a term of 22 months which approximates the proportion of the non-parole period and balance of term of the aggregate sentence and which reflects the factors discussed above of the discount for the plea of guilty and the subjective factors of the offender as well as the impact of the parity principle.

Orders

86. The offender is convicted of the section 93T(4A) and section 25(2) offenses.

87. The indicative sentences that take into account the 25% discount for the guilty plea, the Form 1 matter in respect of the supply charge have been stated above and following the application of the parity principle there shall be an aggregate sentence with a non-parole period of 21 months to date from 23 June 2021 months and expiring today and with a balance of term of six months expiring on 22 September 2023.

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Decision last updated: 27 March 2023