R v Green

[2010] NSWCCA 313

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v GREEN AND QUINN [2010] NSWCCA 313

FILE NUMBER(S):
2009/2591004
2009/4254007

HEARING DATE(S):
30 July 2010

JUDGMENT DATE:
17 December 2010

PARTIES:
Regina
Brett Andrew GREEN
Shane Darrin QUINN

JUDGMENT OF:
Allsop P McClellan CJatCL Hulme J Latham J McCallum J 

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER:
Boulton ADCJ

COUNSEL:
Mr D Arnott SC with Mr P Leask (Crown)
Mr T Game SC with Mr D Barrow (Green)
Mr P Boulten SC with Ms Betts (Quinn)

SOLICITORS:
S Kavanagh Solicitor for DPP
S O'Connor Solicitor Legal Aid Commission NSW

CATCHWORDS:
Criminal Law
Sentencing
Appeal
Court of Criminal Appeal may create disparity between co-offenders
Departure from prior decisions
Large commercial quantity of cannabis plants
Utilitarian value of plea
What is earliest possible opportunity for plea
Need for finding as to objective seriousness
Sentences manifestly inadequate

LEGISLATION CITED:
Drug Misuse and Trafficking Act s23(2)(a), s33(3)(b)
Crimes (Sentencing Procedure) Act 1999, s54A
Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009
Crimes (Sentencing Procedure) Amendment Act (2007), ss 13, 16
ss 13 and 16 of the Crimes (Sentencing Procedure) Amendment Act 2007,

CATEGORY:
Principal judgment

CASES CITED:
R v Thompson and Houlton (2000) 49 NSWLR 383;
R v Knight & Biuvanua [2007] NSWCCA 283 at [4];
R v McEvoy [2010] NSWCCA 110 at [75]; - not followed
R v Sellars [2010] NSWCCA 133 at [8], [11].
R v El Chammas [2009] NSWCCA 154 at [25]
R v Cannistra [2006] NSWCCA 389
Wong and Leung v R [2001] 207 CLR 584 at [64, 70];
Markarian v R [2005] 228 CLR 357 at [32].
R v MacDonnell [2002] 128 A Crim R 44 at [33];
Melikian v R [2008] NSWCCA 156 at [42]
R v Way (2004) 60 NSWLR 168 at [132]
R v Borkowski [2009] NSWCCA 102
R v McIvor [2002] NSWCCA 490; (2002) 136 A Crim R 366,
Cvitan v R [2009] NSWCCA 156,
Jimmy v R [2010] NSWCCA 60 at 203
Shen v R [2009] NSWCCA 251 at [33]
R v Bavin [2001] NSWCCA 167
R v Guthrie [2002] NSWCCA 77
R v Harmouche (2005) 158 A Crim R 357
R v Harris [2007] NSWCCA 130 at [77]
R v Elzakhem [2008] NSWCCA 31 at [62]
R v Najem [2008] NSWCCA 32
R v Kumar and Feagaiga [2008] NSWCCA 328
Bulfin (1998) 101 A Crim R 40
R v Steele (unreported, CCA, 17 April 1997);
R v Ismunandar and Siregar [2002] NSWCCA 477
R v Tisalandis, (1982) 2 NSWLR 430 at 439F
R v Doan (2000) 50 NSWLR 115 at [20]

TEXTS CITED:

DECISION:
(i)  Allow the Crown appeal.
(ii)  Quash the sentences imposed on the Respondents by Boulton ADCJ on 14 August 2009.
(iii)  Sentence the Respondent Brett Andrew Green to imprisonment for a non-parole period of 3 years commencing on 17 May 2009 together with a further term of 2 years commencing on 17 May 2012. 
(iv)  Sentence the Respondent Shane Darrin Quinn to imprisonment for a non-parole period of 5 years commencing on 30 April 2008 together with a further term of 3 years commencing on 30 April 2013.

JUDGMENT:

- 12 -

IN THE COURT OF
CRIMINAL APPEAL  

2009/2591004
2009/4254007

ALLSOP P
McCLELLAN CJ AT CL
RS HULME J
LATHAM J
McCALLUM J

Friday, 17 December 2010

R v Brett Andrew GREEN
R v Shane Darrin QUINN

Judgment

1. ALLSOP P and McCALLUM J:  We have read the judgments in draft of McClellan CJ at CL and RS Hulme J.  Their Honours’ discussion permits us to state shortly our reasons for concluding that the Crown appeals should be dismissed.

2. This Court has recently had occasion to discuss, at length, aspects of the “principle of parity”:  Jimmy v R [2010] NSWCCA 60. As was discussed by Campbell JA and Howie J (with both of whose judgments Rothman J agreed), the principle is not to be confined to a consideration of the sentences imposed on co-offenders in the strict sense. The principle (whether called parity or proportionality or relativity) is applied in respect of sentences imposed upon persons who have engaged in the same criminal enterprise: see Jimmy at [245]-[246] (per Howie J).

3. The use of the word “principle” should not lead one to employ any rigid or unbending approach to its application.  The submissions of Mr Game SC, who, with Mr Barrow, appeared for Mr Green and of Mr Boulten SC, who, with Ms Betts, appeared for Mr Quinn, recognised this.  Nevertheless, as an operative consideration, its source or spring is to be recognised. It is an aspect of equal justice that inheres in the fabric of the law and in the exercise of judicial power:  Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610 (Gibbs CJ), 610-611 and 613 (Mason J) and 623-624 (Dawson J) and Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301-302 (Gaudron and Dawson JJ).

4. The source of the principle elevates its consideration to one of importance, not only as part of the operation of the legal system to bring about just punishment to the individual, but also as part of the operation of the administration of justice as a whole as a consideration conformable with the avoidance of bringing about unjust results.  These individual and community aspects of the importance of this attribute of equal justice must also be recognised to take their place alongside other important considerations in the administration of justice.  One such consideration is that a sentence that is clearly inadequate should not be permitted to dictate or to govern the sentencing of others involved in the offending if to do so would bring about an affront to the administration of justice, and thereby undermine confidence in it.

5. The above considerations can operate differently in Crown appeals compared with offenders’ appeals.  This was recognised in the judgment of Howie J in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at 18 [69]-[70], where his Honour J said:

“[69] It is well established that this Court will not reduce a sentence that is otherwise appropriate simply because there is disparity between it and a manifestly inadequate sentence imposed upon a co-offender: R v Diamond (NSWCCA, 18 February 1993, unreported); R v Chen [2002] NSWCCA 447. That is because the sense of grievance held by the offender is unjustified where the co-offender’s sentence is unduly lenient to a significant degree. This is so even where the co-offender’s sentence was imposed by this Court: R v Ismunandar and Siregar [2002] NSWCCA 477; 136 A Crim R 206. There reliance was placed upon the judgment of Gleeson CJ in R v Rexhaj (NSWCCA, 29 February 1996, unreported) where his Honour stated:

’The principle which underlies ... [intervention for disparity] ... is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice ... . There are, however, other things which may also lead to an erosion of public confidence in the administration of justice, and they include the multiplication of manifest errors. That is why numerous judges have stressed the unattractiveness of responding to one wrong decision by making another wrong decision.’

[70] Here there has been, in my opinion, a wrong decision by the sentencing Judge. But it cannot be said that the refusal to interfere to correct that decision is itself a wrong decision. That is because the purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong. The decision of this Court will have an effect on sentencing for motor manslaughter cases even though the Crown appeal is dismissed in the exercise of discretion.”

1. In Jimmy, Howie J at [246] specifically agreed with the limitations placed on the parity principle by Campbell JA at [203] of his judgment, one of which numbered 3 was as follows:

   “3. It cannot overcome differences in sentence that arise from one of the co-offenders having been given a sentence that is unjustifiably low:  Armstrong; Diamond; Rexhaj; Isamundar.”

2. Notwithstanding Howie J’s clear recognition of the authorities to which he referred in Borkowski at [69] and to which Campbell JA referred in Jimmy at [203(3)], Howie J recognised the different considerations that may be seen to attend a Crown appeal. A similar difference in approach can be seen in the judgment of Heydon JA (as his Honour then was) in R v McIvor [2002] NSWCCA 490; 136 A Crim R 366 at 371 [10]:

“[10] It is appreciated that Lowe v R (1984) 154 CLR 606 does not automatically mean that any difference in sentences for co-offenders should mean that the higher sentence is unjust. See R v Diamond (Court of Criminal Appeal, unreported, 18 February 1993) and R v Steele (Court of Criminal Appeal, unreported, 17 April 1997). Those authorities indicate that what must be compared are appropriately lenient or low sentences with more severe sentences. If a sentence is inappropriately lenient, that is no justification for reducing a more severe sentence on a co-offender. As Brennan J said at 617, it is not the case that where there is one wrong sentence and one right sentence, the court should reduce the right sentence to the level of the wrong sentence. The more severe sentence should not be reduced to a level which is so far out of line with what is right that it is an affront to the administration of justice. But that line of authority deals with attempts by convicted persons to have their severe sentences reduced on appeal by comparison with lenient sentences on co-offenders. They do not deal directly with the present position – a question of whether a sentence on one co-offender should be raised while the identical sentence on another co-offender remains unchanged. In that type of circumstance, illustrated by the present case, questions of justifiable grievance arising by reason of a move from parity to a lack of parity have a different quality.”

(emphasis added)

1. One aspect of the difference that can be seen as implicit in the reasons of Heydon JA and Howie J is that in a Crown appeal the Court itself is being asked to be the instrument for the creation of the appearance of unequal justice.  That is a factor that does not attend the Court’s consideration in an offender’s appeal against severity.  The distinction is not entirely logical or syllogistically harmonious, but it pays due regard to the nature of the Crown appeal, as being an application by an arm of the State that has the wider public purposes identified by Howie J in Borkowski at [70].  It also pays due regard to the importance of the Court not being seen to create an appearance of injustice by the exercise of judicial power, at least, for instance, in the absence of circumstances such that were the Court to allow the other offender’s low sentence to govern its order in the Crown appeal there would be an affront to the administration of justice. 

2. Thus, in a Crown appeal, it may not be inappropriate for the Court to decline, in the exercise of its discretion, to increase a sentence to a point where the relevant disparity would be so marked as to invoke the operation of the parity principle, unless the circumstances were clearly such as to outweigh the competing, and important, consideration of the Court itself creating the appearance of unequal justice by its own order. As a general rule the product of the rule of law should not be a justifiable sense of grievance or injustice.

3. The judgment of Hulme J discusses a number of decisions that may be understood to support a different approach. None of those decisions addresses the essential consideration we have outlined. In our view, the principles stated by Heydon JA in McIvor and by Howie J in Borkowski are correct and should be followed.

4. That approach does not amount to responding to one wrong decision by making another wrong decision. Nor is it a question of condoning an inappropriately lenient sentence imposed on a co-offender as an appropriate comparator. It is, rather, a matter of the Court’s acknowledging error in the sentence appealed from (and so serving the broader public purpose of a Crown appeal), but exercising its residual discretion, in an appropriate case and where it would not be an affront to justice to do so, not to intervene in the individual sentence so as to constitute the Court the instrument of unequal justice.

5. With these principles in mind we turn to the circumstances of this case.

6. We agree with Hulme J that the sentences imposed on Mr Quinn and Mr Green were manifestly inadequate. As noted by Hulme J, however, having regard to the similarity in the charge against Mr Taylor and the charges against Mr Quinn and Mr Green and the similarity in the nature of the offending conduct, considerations of relative parity should be taken into account in the present case. The question is whether those considerations should conduce the Court to stay its hand, notwithstanding the inadequacy of the sentences imposed. Critical to that determination is an assessment of the degree of relative disparity that would be created if the Court were to intervene and the degree of departure in the sentences under appeal from the appropriate sentencing range. That assessment must begin with a consideration of the remarks on sentence in respect of both the sentences under appeal and the sentence imposed on Mr Taylor.

7. The learned sentencing judge sentenced the respondents on the basis that Mr Quinn was the principal of the enterprise and that Mr Green was involved at a senior level. The number of cannabis plants was 1354 where the prescribed large commercial quantity is 1000 plants. The facts plainly established a sophisticated and ongoing operation.

8. As complained in the grounds of appeal relied upon by the Crown, the sentencing judge made no finding as to where in the range of objective seriousness the offences fell. We would not disagree with the assessment of Hulme J that the offence committed by Mr Green could be characterised as being at the mid-point of offences of the nature charged, while the offence committed by Mr Green was appreciably but not greatly below the mid-point.

9. We also agree with Hulme J that the discount of 20% allowed in respect of each respondent, while generous, did not fall outside the discretion of the sentencing judge. It is significant in that respect that the extent of the discount allowed to the respondents was informed, in part, by the undoubtedly generous discount of 25% that had been allowed to Mr Taylor. Mr Taylor pleaded guilty to the lesser offence of knowingly taking part in the supply of a commercial quantity of cannabis leaf. The plea was not entered until some ten months after his arrest. He had, until the day the plea was entered, faced more serious charges. Those charges were withdrawn and replaced with the lesser charge on the day he entered the plea. As noted by Hulme J, Mr Taylor’s plea could scarcely be said to have been at the earliest opportunity in those circumstances. It is not suggested in the remarks on sentence that he had offered the plea to the lesser charge at any earlier stage.

10. Accepting that the discount of 20% did not entail error, the starting point of each sentence was, as the sentencing Judge said, seven and a half years in the case of Mr Quinn and five years in the case of Mr Green, which (with the application of the discount) reduced to six years and four years respectively. The starting point for Mr Taylor was four years which, after applying the discount, gave a sentence of three years. The non-parole period imposed in each case was half of the head sentence.   

1. When sentencing the respondents, the Judge noted that, although their roles were similar, Mr Green was involved at a more senior level than Mr Taylor. His Honour recorded that he had sentenced Mr Taylor on that basis. The remarks on sentence in respect of Mr Taylor confirm, nonetheless, that he was sentenced on the basis that he was “quite a significant player in the organisation and administration of this enterprise”. The Judge recorded Mr Taylor’s close connection with the senior members of the syndicate and his lengthy and close involvement in the operations of the enterprise. His Honour also noted the agreed fact that Mr Taylor was not paid an hourly rate, as were some of the syndicate’s labourers whom his Honour had sentenced earlier, but was to profit directly from the final amount of cannabis harvested and dried.

2. It is necessary against those findings to identify the subjective circumstances of each offender taken into account by the sentencing judge. In each case, his Honour’s remarks on those matters were brief. An important consideration in the case of Mr Taylor was his youth. He was 19 at the time of his offending whereas Mr Green was 24 and Mr Quinn was 31. Otherwise, as noted in the judgment of Hulme J, unlike the respondents, Mr Taylor was not of good character and could not be assessed as unlikely to re-offend. If any meaningful distinction can be drawn between the subjective circumstances of the three offenders, those of the respondents were more favourable than Mr Taylor’s. 

3. Against those considerations, it is necessary to assess the degree of departure in the sentences under appeal from the appropriate sentencing range. In our view, although manifestly inadequate, the head sentences imposed were not derisory. They entail a substantial measure of punishment by full-time imprisonment.

4. As to the degree of departure from the applicable standard non-parole period, a useful analysis of the relevant principles is to be found in the judgment of Simpson J in R v McEvoy [2010] NSWCCA 110 at [75] to [91] (Grove and RA Hulme JJ agreeing).

5. As Simpson J explains in McEvoy, leaving aside other factors such as personal factors, there should ordinarily be a correlation between the degree of departure of the offence under consideration from the notional mid-range offence and the degree of departure of the non-parole period imposed from the standard non-parole period applicable. Where (as in this case) there is a differential, it does not necessarily follow that there is error. The critical task is to consider whether the degree of differential was warranted by other factors, such as the circumstances of the offender. As already indicated, we agree with Hulme J that the degree of departure from the standard non-parole period in the present case was not wholly warranted by the subjective circumstances of the respondents and was of such a degree as to disclose error. However, there are two further matters that must to be considered in the context of this Crown appeal.

6. First, in our view, the sentences proposed by Hulme J would create relative disparity with the sentence imposed on Mr Taylor. Secondly, whilst we accept that both the head sentences and the non-parole periods imposed were inadequate and should not be viewed as sentences falling within the permissible range, we do not think that the degree of departure from the appropriate range is so great that it would be an affront to justice not to intervene, when that decision is understood in the context of the principles we have stated. To intervene, in our view, would create unacceptable disparity between the sentences passed by this Court on the respondents and the sentence that stands in respect of Mr Taylor, and so would suffer the Court to become the instrument of unequal justice.

7. For those reasons, we would exercise our discretion not to intervene and would dismiss the appeals.   

8. McCLELLAN CJ at CL:  I have had the considerable benefit of reading the judgment of Hulme J in draft. His Honour’s comprehensive discussion of the issues enables me to confine these reasons to the essential issues in the appeal.

9. The fundamental problem raised in submissions to this Court concerns the relationship between the sentences imposed on Taylor and the sentences imposed on the respondent. The Crown charged Taylor with the lesser offence involving a commercial quantity of cannabis plants carrying a maximum penalty of 15 years imprisonment and for which no standard non-parole period has been provided. The offence with which the respondents were charged carries a maximum penalty of 20 years and a standard non-parole period of 10 years. The consequence is that the sentencing regime which the sentencing judge was required to apply when sentencing Taylor has some significantly different characteristics to that relevant to the respondents.

1. Hulme J has considered previous decisions where the issue of “parity” between co-offenders charged with different offences have been considered. Although the sentence of a co-offender is not entirely irrelevant, they were involved in the same criminal enterprise, the fact that they are charged with different offences confines the significance of a comparison of the respective sentences: Jimmy v R [2010] NSWCCA 60 (per Campbell JA [203]; Howie J [245]-[246]). It is likely to be the case that the prosecution has brought different charges because of the contribution each of the offenders made to the enterprise. It may also be that the different charges are the result of plea discussions and a realistic assessment by the prosecutor of the strength of the Crown case against each offender. There may be other considerations all of which will be unknown to the relevant sentencing judge. Nevertheless the task of a sentencing court is to impose a sentence which is just and appropriate in all the relevant circumstances. One circumstance is the sentence imposed on others involved in the criminal enterprise, although its significance will vary from case to case.

2. Hulme J has also discussed the previous decisions of this Court as to the approach to be taken to a Crown appeal when it is submitted that to intervene would create disparity with another offender who received an apparently excessively lenient sentence. It may be that the discussion in R v Borkowski [2009] NSWCCA 102 has in some respects been misunderstood. I do not understand Howie J in Borkowski to say and accordingly, I did not join in any statement that a Crown appeal could not succeed when to increase one offender’s sentence would create disparity with another offender who has received an excessively lenient sentence.

3. Howie J observed, by reference to Gleeson CJ’s remarks in R v Rexhaj, that there is an “unattractiveness of responding to one wrong decision by making another wrong decision.”

4. Furthermore, Howie J made plain that if the court had decided to intervene in Borkowski such a decision could not be described as a “wrong decision.” However, there were reasons related to the respondent’s age and antecedents why the Court could and did decide not to intervene. And because one of the purposes of a Crown appeal, being to give guidance in the sentencing of other offenders, could be achieved, the Court, in the exercise of its discretion, decided not to intervene (R v JW [2010] NSWCCA 49 at [141]). Similar considerations were discussed in Cvitan v R [2009] NSWCCA 156 although the prospective disparity was such that the court determined in the circumstances of that case that the Crown appeal should be dismissed.

5. Hulme J refers to other decisions, in some of which I have joined, where notwithstanding that the adjusted sentence may give rise to a perception of disparity with a lenient sentence imposed on a co-offender this Court has decided to intervene and increase the sentence of a co-offender. I need not repeat that discussion.

6. The relevant principles may be shortly stated. Although a court should endeavour to achieve parity and avoid a sense of grievance in a co-offender this may not always be a just result. When sentencing at first instance a sentencing judge should seek parity between the sentences of co-offenders but may do otherwise if the other sentence is erroneously lenient. The offender being sentenced may have a grievance but it will not be justified. When the Crown appeals one sentence and not the other issues of parity must be considered and, in the exercise of the discretion available to the court, may lead to the appeal being dismissed. But when the court considers it appropriate to increase a sentence it may do so notwithstanding that a sense of grievance may result. Only if the sentence would result in a justified sense of grievance, being one defined by comparison with the sentence imposed on a co-offender who has been appropriately sentenced, could issues of parity cause the court to reject the Crown appeal: (Lowe v R (1984) 154 CLR 606).

7. It follows that I am of the opinion that the decision in R v McIvor [2002] NSWCCA 490 should not be followed. It must be remembered that the community has an interest in the sentencing of offenders and is entitled to expect that a just sentence will be imposed on all offenders. Where one offender has received a sentence which is so inadequate as to be erroneous the community is entitled to expect that the sentence of a co-offender when reconsidered by this Court will not be fixed by using the sentence imposed by error as the appropriate comparator.

8. In any event in the present case as I have indicated Taylor was not sentenced for the same offence as the respondents. That does not mean that the sentence imposed on Taylor was irrelevant to the sentence for the respondents. However, if erroneously lenient it could not preclude this Court from intervening to re-sentence the respondents.

9. I otherwise agree with most of Hulme J’s reasons. Although I appreciate the particular circumstances of a plea may vary and may be entered at different times before arraignment, by joining with Howie J in Borkowski I had in mind that whatever be the appropriate discount for a plea given as the matter progressed to arraignment, it would be difficult to justify a discount greater than 15% when a plea of guilty was entered at the trial court. I remain of that view. The discount to be given in any case is a matter for the sentencing judge having regard to the circumstances of that case. This Court has frequently expressed a reluctance to interfere with a decision as to the appropriate discount in a particular case. If Hulme J is correct and inadequate consideration is being given to the circumstances when a discount of 25% is appropriate that issue may require further consideration.

10. With respect to the sentences to be imposed I agree with the orders proposed by Hulme J.

11. RS HULME J: On 14 August 2009 each of the above named Respondents to this Crown appeal was sentenced by Boulton ADCJ in respect of a charge that between 1 May 2007 and 1 May 2008 he cultivated 1354 cannabis plants being not less than the large commercial quantity applicable to cannabis plants.

12. The sentences imposed by his Honour were:-

    In the case of Mr Green – imprisonment for period of 4 years including a non-parole period of 2 years, both such periods commencing on 17 May 2009.

    In the case of Mr Quinn – imprisonment for a period of 6 years including a non-parole period of 3 years, both such periods commencing on 30 April 2008.

13. In arriving at these sentences his Honour allowed each of the Respondents a 20% discount for his plea.  His Honour directed that Mr Quinn’s parole be supervised by the Probation and Parole Service in the manner set out in a Pre-Sentence Report. 

14. In sentencing Mr Quinn, his Honour took into account three offences on a Form 1 arising from items found in premises at 35 Eames Avenue, Northhaven.  These offences were:-

    (i)Possession of a prohibited weapon which, according to the Form 1 was “a paint ball gun and an extendable baton”.

    (ii)Possession of a prohibited drug being 3 full and 4 half tablets containing in total 1.51 grams of MDMA.

    (iii)         Possession of a prohibited drug being 0.08 grams of cocaine.

15. Pursuant to s 23(2)(a) and s 33(3)(b) of the Drug Misuse and Trafficking Act 1985 the offences charged carried a maximum penalty of 20 years imprisonment and a fine of 5000 penalty units. Pursuant to s 54A et seq. of the Crimes (Sentencing Procedure) Act 1999 and ss 13 and 16 of the Crimes (Sentencing Procedure) Amendment Act 2007, a standard non-parole period of 10 years has been prescribed in respect of such offences committed after 1 January 2008.

16. Had the offence involved merely a commercial quantity, i.e. between 250 and 1000 plants, the maximum penalty would have been 15 years imprisonment and 3,500 penalty units.  No standard non-parole period is specified for such an offence.

17. The plants were the product of a sophisticated operation which had commenced in 2007 with the production of cannabis seedlings which were then grown with the use of hydroponic equipment.  In about October 2007, cuttings where taken from these, planted in small pots while their root systems developed and when they reached a height of 30 cm or so, taken in November 2008 to a number of locations in state forests in the vicinity of Port Macquarie.  In these locations vegetation was cleared, soil was turned over, fertilizer obtained and fencing and netting set up and some provision made for water storage and irrigation. Fertilizing and watering was done and later steps taken by the installation of cameras and the presence of persons to protect at least two of the sites from surveillance.

18. There were a substantial number of crop sites, possibly as many as nine.  Sheds in three separate locations were equipped so the cannabis could be dried in them.  In the fortnight or so immediately prior to 30 April 2008, some $6,500 was spent in the purchase of gas heaters, gas bottles, fans and a generator and other items used to assist in drying harvested crop.

19. Four motor vehicles were purchased and registered in the names of other persons in a manner designed to conceal their connection with Messrs Quinn and Green.  Though not registered, a quad bike was dealt with similarly.  His Honour found that the total purchase price of the motor vehicles was some $39,500 although he would not seem to have included the price of one of the vehicles in that sum.

20. Mobile telephones were purchased from outlets where identification was not required and false subscriber details were provided.  When, on 30 April 2008, Messrs Green and Quinn were arrested in a motor vehicle, they had 6 mobile telephones with them all of which had false subscriber details.  Numerous other mobile telephones were also used in the enterprise.  Code was commonly employed during the course of conversation between those involved.

21. On occasions labourers – up to a dozen at a time – were engaged to pick the crop.  Arrangements were made for them to assemble, they were transported to the cultivation sites using the vehicles to which reference has been made.  These persons were expected to be away for days at a time and food and drink were provided.  At times these workers were blindfolded during travel so that the location of crop sites and sheds would not be revealed.

22. In March and April 2008, each crop site had been picked six times – on the first occasion to remove the top brown bud, on the second to obtain the bigger bundles of leaf from the branches and the third pick was to obtain any smaller leaves left over.  The product obtained was taken to the drying sheds to which reference has been made.

23. Evidence from a Detective Sergeant Myers whose statement indicates that he has been involved in numerous drug investigations was that one cannabis plant can conservatively yield one pound or 454 grams of cannabis head, a kilogram of such head varies in price from $8,500 to $11,500 and the 1,354 cannabis plants had a value of $2.7 M.   

24. In addition to the plants, something over 140 kilograms of harvested cannabis leaf and head were seized by police.  Sergeant Myers saw this and estimated its value at between $9,500 and $10,500 a kilogram.  In other words the harvested material alone was worth between $1.33 M and $1.47 M.

25. The Respondent Quinn was the principal in the enterprise.  Involved at a senior level and consistently carrying out tasks relating to the enterprise were three persons, the Respondent Green, Gary Mason and Kodie Taylor.  These three were to be rewarded for their involvement by sharing in the proceeds, for example Mason, at least initially, was to receive 30 lb of cannabis leaf.  It is proper to record a concession the Crown made during the course of the sentencing proceedings concerning Mr Green:-

    Your Honour will see from the telephone intercepts he doesn’t seem to show any initiative of his own in terms of the enterprise.

1. Turning to the Respondents’ subjective circumstances, Quinn was born in September 1976.  He has a minor criminal record for some 12 offences committed between 1992 and 2007.  The more serious of these offences included one incident of stealing, one of driving whilst disqualified and one of driving dangerously.  For the latter two offences he was sentenced to imprisonment for a fixed term of 3 months although on appeal these sentences were quashed and sentence deferred upon Quinn entering into a good behaviour bond.  None of his offences involved drugs.  Until he was 15 his life was marred by domestic violence perpetrated by his father on the rest of the family and by his mother being an alcoholic and the evidence indicated that during this period the Respondent accepted a deal of responsibility for his younger siblings in ensuring they were fed and with their homework.   When he was 14 his parents separated and for some years from age 15 when he commenced living with his grandparents he was in a supportive and loving environment.  For most of the Respondent’s adult life he seems to have been in fairly regular employment.

2. During some 12 years prior to his arrest, he was in an “on again, off again” relationship which has produced 4 children.  To the author of a Pre-Sentence Report he and his partner maintained that they had reconciled their differences since the Respondent’s arrest.  There is no reason to doubt that some of the friction in that relationship was due to Mr Quinn’s addictions.

3. Mr Quinn gave evidence during the sentencing proceedings.  His Honour did not accept all that Mr Quinn said or all that was said in a psychiatrist’s report tendered on his behalf, in particular statements to the effect that at the time of his offending the Respondent did not know what was happening due to his drug use.  Boulton ADCJ observed that, “An examination of the enterprise and of his (Quinn’s) participation in the enterprise reveals that while he may have been taking some cocaine or some amphetamine at the relevant time, that he was well in possession of his faculties.  That was demonstrated with his significant level of activity and his mental sharpness in being able to respond to problems as they arose”.

4. His Honour referred to a number of programs and educational courses that Mr Quinn had participated in since he was arrested and said that he accepted that Mr Quinn’s time in custody and separation from his wife and children have borne heavily upon him and that these matters seem to be motivating Mr Quinn significantly to rehabilitate himself.  His Honour went on to refer to portions of the Pre-sentence Report that recommend that Mr Quinn receive treatment for alcohol and cocaine dependence when released from custody and it seems that his Honour did accept that Mr Quinn had a significant alcohol and other drug addiction, matters for which there was a deal of evidence.  His Honour failed to make any finding on the topic of whether Mr Quinn was remorseful although the evidence and his Honour’s remarks in other respects are such that a conclusion to this effect should be drawn.

5. I should add that Mr Quinn gave evidence concerning the baton and paint gun which together – I make no comment on the appropriateness of that course – seem to have been made the subject of the first Form 1 charge.  His evidence - and there is no other - tended to indicate that his possession of these was fairly innocuous.  Mr Quinn also gave evidence that some of the others in the enterprise contributed funds or purchased some of the items, including the quad bike, to which reference has been made above.  His Honour concluded that, while at least part of the $39,500 used in payment for the vehicles came from Mr Quinn, it was unclear what the full source of that sum was.

6. Tendered also were a number of testimonials which, in totality, provided impressive support for Mr Quinn.  One was from his mother and in terms accepting a deal of responsibility for the deficiencies in his upbringing.  The testimonials from non-family members attested to his involvement with local sporting activities, both as a player and in training juniors, to his willingness to assist others and to his support for his children.  

1. Mr Green did not give evidence although his mother-in-law, who was not cross-examined did.  Mr Green was born in October 1983.  His criminal record is of no significance.  Evidence his Honour seems to have accepted was that Mr Green had a severe learning disability affecting his reading ability albeit testing indicated that in other areas his intelligence and cognitive capacity were in the high average range.  His Honour did find that Mr Green had a very satisfactory childhood and domestic relationship with his wife and children and a praiseworthy work ethic.  He was not addicted to alcohol or other drugs.  His Honour seems to have accepted that Mr Green was remorseful and cited an opinion of a psychologist that Mr Green had a low risk of re-offending.

2. One matter to which his Honour did direct attention was the issue of parity.  When sentencing Messrs Green and Quinn, His Honour observed that he proposed to sentence Mr Quinn to a significantly more severe sentence, and Mr Green to a somewhat greater sentence, than he had imposed on Mr Taylor.

1. His Honour had previously sentenced Kodie Taylor to imprisonment for 3 years including a non-parole period of 18 months on a charge of knowingly take part in the supply of a commercial quantity of cannabis.  His Honour’s remarks when sentencing Mr Taylor included that he was “quite a significant player in the organisation and administration of this enterprise”, was one who was consistently active, was involved from a very early stage of the enterprise and was involved in the planting out of seedlings and the obtaining of motor vehicles and other equipment, and was to be paid for his activities by sharing in the cannabis finally produced.  His Honour observed that Mr Taylor had a close connection with senior members of the syndicate.   His involvement was regarded as less than that of Mr Green.  He was awarded a discount of 25% for his plea.  Mr Taylor turned 22 in June 2009, he had a poly-drug problem of long standing, had been expelled from school and had a poor work history.  His Honour remarked that Mr Taylor was not of good character, could not be said to be unlikely to re-offend and had a need for supervision for a significant period.  The Crown did not appeal against the sentence imposed on Taylor.

2. Against this background, I turn to the issues that arise.  The grounds of appeal relied on have been identified as:-

   1.The discount of 20% for the utilitarian value of the plea was, in all the circumstances, excessive.

   2.His Honour failed to make any finding as to where on the scale of objective seriousness the offences (sic) fell.

   3.His Honour failed to reason as to why he was reducing the non-parole period below the applicable standard non-parole period.

   4.The degree of departure from the applicable standard non-parole period is so great that it manifests error.

   5.His Honour double counted subjective features in the finding of special circumstances.

   6.The sentence imposed on the Respondent is manifestly inadequate. 

3. In response to this last ground, the Respondents raised the issue of parity with Mr Taylor and because of some arguably conflicting previous decisions of the Court a bench consisting of 5 judges was constituted to hear the appeal. 

   Ground 1

   The discount of 20% for the utilitarian value of the plea was, in all the circumstances, excessive.

4. In R v Thompson and Houlton (2000) 49 NSWLR 383 this Court indicated that a discount for a plea of guilty should usually fall in the range of 10 – 25%, and that two circumstances would commonly affect the appropriate level of discount, those circumstances being the time at which the plea was entered and the complexity of the issues liable to arise. It was said that, “A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.”, that a discount of 25% could be expected to be restricted to pleas at the “earliest possible opportunity” and that a discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial unless there were certain identified factors operating. In R v Borkowski [2009] NSWCCA 102 at [31], Howie J said, with the concurrence of McClellan CJ at CL and Simpson J that, “It is difficult to see how, in the usual case, a plea of guilty on arraignment could justify a discount of more than about 15%.”

1. Howie J did not explain why he took that view but it may be expected to reflect his Honour’s assessment of the relativity of the benefit to the justice system of the plea being entered at that time rather than earlier.  Entered at an early stage of proceedings in the Local Court, the benefits to the system include avoidance of the need for full preparation of a brief, committal proceedings, and preparations for and other events incidental to a trial.  Entered at arraignment, it is only the last group of these matters that is avoided. 

2. Apart from the general reference to “earliest possible opportunity” I am not conscious of any consideration having been given to the question of at what stage of proceedings in the Local Court a plea should result in a discount of 25%.  My impression is that pleas are often not entered prior to reasonably complete service of the Crown brief and that the practice has been to give the 25% discount for any plea made in the Local Court without enquiry as to the stage of proceedings at that court when the plea was entered.  If that be so, it is not obvious to me that one can limit the discount for a plea on first arraignment to 15%.  I appreciate that Howie J said “about 15%”, a reference that would include the 17.5% that is half way between the figures of 10 and 25 referred to in R v Thompson and Houlton but which would tend to exclude the figure of 20% that does seem excessive when compared with the 25% for a plea entered at the “earliest possible opportunity”.

3. In this case his Honour recorded that the Respondents had entered their pleas a very short time after their committal to the District Court.  Statements from the bar table during the course of submissions to his Honour indicate that in the case of Mr Quinn, the charge finally dealt with was preferred on 19 March 2008, that Mr Quinn was then committed for trial, that on 25 March Mr Quinn’s legal advisers informed the Crown that Mr Quinn would or was likely to plead guilty to the, or some, charge, that in a letter of 9 April 2008 the DPP indicated it would accept a plea to the charge involving the cultivation of a large commercial quantity and that on 28 April a letter was sent to the DPP formally indicating that Mr Quinn would plead guilty to that charge.

4. His Honour also observed that the trial of either or both if it had proceeded would have been lengthy and complex.  In submissions to his Honour the Crown had indeed conceded that a trial would take 3 or 4 weeks and would have been “messy”.   Mr Quinn’s legal representative’s estimate was that the trial would have taken 3 months.  

5. In arriving at his figure of 20% his Honour remarked:-

   In my reasons, despite expressing some reservations I afforded Taylor the 25% which had been granted to other offenders.  Now that aspect of the matter has relationship to issues of parity and in this present case I note that these two offenders did not plead guilty in the Local Court but they pleaded guilty a very short time after their committal to the District Court.

6. In sentencing Taylor, his Honour recorded that he had been arrested on 25 May 2008, refused to answer questions relating to the supply or cultivation of cannabis, remained in custody until granted bail on 14 November 2008 and pleaded guilty in the Local Court on 19 March 2009 to one count of knowingly taking part in the supply of a commercial quantity of cannabis.  His Honour recorded that it appeared that originally Taylor had been charged with the supply of a large commercial quantity and possibly a second offence, that these offences were withdrawn in favour of the lesser charge and the plea entered following a plea bargain.  Despite then referring to the remarks of this Court in R v Borkowski [2009] NSWCCA 102, his Honour then said that “out of an abundance of caution” he should give Taylor a 25% discount.

7. Given how far Taylor’s plea was from the “earliest possible opportunity” there is much to be said for the view that his Honour erred in the discount he then allowed.  “Parity” in the strict sense does not apply to discounts for pleas but once it is recognised that the pleas of Green and Quinn on the one hand and Taylor on the other were entered or indicated but a month or so apart, it is not difficult to understand his Honour’s view that there should be some reasonable relativity between them.

8. Had the matter come before me, I would not have allowed the Respondents a discount of 20%.  I do not think it necessary to detail all of the evidence that was apparently available to the Crown but while I can understand that the trial may have gone for over a month, it does not strike me as one that was particularly complex.  However, there is a deal of discretion in the determination of the discount to be allowed for a plea and in the circumstances, I am not persuaded that his Honour was not entitled to allow the 20% discount that he did.

   Grounds 2 and 3

   His Honour failed to make any finding as to where on the scale of objective seriousness the offences (sic) fell.

   His Honour failed to reason as to why he was reducing the non-parole period below the applicable standard non-parole period.

9. Although they do not necessarily impact on the result of the appeal, these grounds are made out.  Although recognizing that the offences with which the Respondents were charged were the subject of standard non-parole periods, his Honour did not make any finding as to the objective seriousness of the offences.  In this omission his Honour failed to observe one of the basic rules of sentencing for such offences as made clear by numerous decisions of this Court including R v Knight & Biuvanua [2007] NSWCCA 283 at [4]; Smith v R [2009] NSWCCA 17 at [22]; R v Woods [2009] NSWCCA 55 at [35]; R v McEvoy [2010] NSWCCA 110 at [75]; R v Sellars [2010] NSWCCA 133 at [8], [11]. See also Corby v R [2010] NSWCCA 146 at [48-55]. Nor did his Honour comply with the requirements of s 54B(3) of the Crimes (Sentencing Procedure) Act to make a record of his reasons for reducing the non-parole periods he imposed below the standard and identify each factor he took into account.  Particularly should he have done so, given the extent to which he departed from the standard non-parole period – R v El Chammas [2009] NSWCCA 154 at [25]

10. The requirements of making a finding as to where on the scale of objective seriousness the offences fell and stating the reasons why non-parole periods less than the applicable standard non-parole period were being fixed are not idle formalities.  As has been said, the standard non-parole period is 10 years.  Because the Respondents pleaded guilty that operated merely as a “guidepost”; the discount of 20% for the plea justified discounting this down to something of the order of 8 years; and there were in addition other factors to be taken into account.  The non-parole periods his Honour imposed were 3 years in the case of Mr Quinn and 2 years in the case of Mr Green. 

11. As will appear below, both of these were manifestly inadequate and if his Honour had complied with the obligations upon him, the discipline inherent in doing so may have prevented him from imposing sentences that are so out of line with what should have been imposed.

    Ground 5

    His Honour double counted subjective features in the finding of special circumstances.

12. It is convenient to deal with this ground before turning to ground 4.

13. All his Honour said expressly on the topic of special circumstances was:-

    It is not disputed that I should find in respect of each of these offenders special circumstances and, in the course of my comments, I have made fairly extensive reference to their personal circumstances, their youth and their need for rehabilitation.  So in respect of Mr Quinn, I intend to find special circumstances …

    (In the case of Mr Green) again I find special circumstances…

14. His Honour was correct in saying that the Crown did not dispute that there should be a finding of special circumstances.  The undisputed evidence and what his Honour had said on the topic of the Respondents’ personal circumstances, youth and need for rehabilitation I have summarised above.

15. Clearly as Mr Quinn was almost 33 at the time of sentencing, there was no issue of his youth relevant to special circumstances.  He did have a need for assistance in consequence of his addictions but there was nothing to suggest that after 3 years in custody, and hopefully enforced absence from alcohol and cocaine, more or much more than the 18 months balance of term which would be a normal incident of a 6 years sentence was likely to be needed in that connection.   

16. Mr Green was almost 25 at the time of sentence so only to a limited degree could considerations of “youth” apply to him. It was his first time in custody but otherwise there was nothing to suggest he needed help with rehabilitation. That said, the extension of the period when he was eligible for parole from the one year that would accord with the proportion of his 4 years sentence contemplated by s 44 of the Crimes (Sentence Procedure) Act (1999) could be justified by the factors mentioned. 

17. In support of this ground the Crown referred the Court to the remarks of Spigelman CJ in R v Fidow [2004] NSWCCA 172 at [18] to the effect that almost all matters capable of constituting special circumstances have usually been taken into account in determining a head sentence and that sentencing judges should ensure that double counting does not occur and submitted that the sentences imposed by Boulton ADCJ demonstrated that double counting must have occurred in this case.

18. The cryptic nature of his Honour’s remarks makes identification of items double counted, at least inappropriately double counted, difficult and indeed the Crown did not specify the matters the subject of complaint in this ground.  Clearly some personal circumstances and a need for rehabilitation may appropriately be taken into account in the fixing of both a head sentence and the non-parole period.  In the result, whatever suspicions the lack of specificity in his Honour’s remarks and the length of the sentences and the non-parole periods may engender, I am not persuaded that there was any inappropriate double counting.

    Grounds 4 and 6

    The degree of departure from the applicable standard non-parole period is so great that it manifests error.

    The sentence imposed on the Respondent is manifestly inadequate. 

19. There can be no doubt that a number of features argued for this objective seriousness being adjudged high in the range. The growing operation was sophisticated, a great deal of time, effort and significant amounts of money having been put into the growing and harvesting of the plants. It was planned, deliberate criminality known to be such and undertaken in company and for reward and, because of the illegal nature of the subject of the operation, unless the authorities intervened, that reward was likely to be very high. Indeed if it was only $1M, that is more than many honest people in the community could hope to earn in 10, 15 or 20 years. (Some of these features are aggravating within s 21A of the Crimes (Sentencing Procedure) Act, although having regard to the inherent nature of the offence I do not regard the fact of the inclusion of these features in s21A as inspiring any increase in the sentence otherwise appropriate.)

20. As has been said, the Respondent Quinn was the principal in the enterprise and the Respondent Green was involved at a senior level.  On the other hand, the number of plants, 1,354, was towards the low end of the scale encompassed by the provisions against which the Respondents offended.  The minimum large commercial quantity was 1000 plants.  The legislature has prescribed no upper limit to the number of plants that would fall within the offence of which the Respondents were guilty although the practicalities of growing plants in clandestine conditions no doubt impose some practical limit on the size of operations such as the Respondents were engaged in.  Although this is of limited use, the largest operation referred to in the authorities of which I am aware was that leading to the report of R v Cannistra [2006] NSWCCA 389 and involving some 30,000 plants.

1. Quantity is clearly important in cases such as this.  Nevertheless the High Court has indicated that while important, quantity is not to be regarded as the chief factor to be taken into account in sentencing for drug offences - Wong and Leung v R [2001] 207 CLR 584 at [64, 70]; Markarian v R [2005] 228 CLR 357 at [32]. Indeed there are a number of authorities indicating that the role of an offender is of more significance than quantity - see e.g. R v MacDonnell [2002] 128 A Crim R 44 at [33]; Melikian v R [2008] NSWCCA 156 at [42].

1. If one puts to one side the impact of quantity, there are no circumstances mitigating the objective criminality of Mr Quinn’s offence and, having regard to the features of the operation to which I have referred, I would categorise his criminality at the highest level.  When quantity is taken into account, I would characterise his offence as at the mid-point of offences of the nature charged.  Indeed, his counsel conceded that it was no lower.  Because his role was less, I would characterise Mr Green’s offence as appreciably, although not greatly below the mid-point.

2. Despite the subjective features favouring each Respondent, the matters referred to in the immediately preceding paragraphs lead to the conclusion that, judged by the terms of the statutory provisions to which I have referred earlier, and without reference to prior decisions or statistics, the sentence imposed on the Respondent Quinn is manifestly inadequate. This is so whether one has regard to the maximum penalty of 20 years for the offence of cultivating a large commercial quantity, the guidance provided by the standard non-parole period of 10 years for doing so (a period which, if regard is had to the relativity envisaged by s 44 of the Crimes (Sentencing Procedure) Act, bespeaks a total sentence of 13 years and 4 months) or, indeed, the maximum penalty for cultivating less than 1000 plants.  At least in the case of Mr Quinn, his criminality was no less than a worst case of growing a commercial quantity for which a maximum period of imprisonment of 15 years is prescribed.

3. Of course, Mr Quinn’s plea and the other subjective features operate to reduce the penalty otherwise appropriate but to nowhere near the 6 years total sentence imposed.   The matter is a fortiori when one considers the non-parole period of 3 years imposed on Mr Quinn.  And there is nothing in the finding of special circumstances that could come close to justifying that term.

4. While not forgetting the differences between Mr Quinn and Mr Green, those remarks concerning the inadequacy of the sentence imposed apply, mutatis mutandis, to the latter.

5. I turn then to the authorities.  I have included a summary of those of which I am aware in a Schedule to these reasons and accordingly it is unnecessary for me to dilate upon their details at length here.  Insofar as any pattern is to be deduced from them the decisions, particularly those in Skorin and Mangano suggest that, subject to recognition of the difference in the number of plants and two qualifications referred to below, a starting point before plea of 8 years might well be appropriate in the case of Mr Green.

6. Given the difference in quantity, I do not find the decision in Cannistra of assistance.  The difference in role of Valensise distinguishes that case from those of the Respondents.  Gatellari argues for a somewhat lower starting point than do Skorin and Mangano.  So does the decision in Licastro when regard is had to the number of plants and the fact that Licastro pleaded not guilty.

7. On the other hand, one should bear in mind that when sentencing Messrs Quinn and Green his Honour made reference to the decision in Licastro and observed that the level of sophistication in the Quinn and Green enterprise might well have been greater than in Licastro’s.  His Honour had been the original sentencing judge in Licastro’s matter.

1. It must also be recognised that the only presently relevant issue in the Court of Criminal Appeal decisions in Gatellari and Licastro was whether the sentences were excessive, and there was never posed for the Court’s decision whether they were adequate.  The decisions are consequently of limited weight.

2. However, any reliance on the cases summarised in the Schedule to these reasons must take into account two significant factors.  Firstly, a number of the sentences imposed in the cases reflected considerations of double jeopardy and principles applicable in Crown appeals prior to the passing of the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009. Secondly, the standard non-parole period for the offence of cultivating a large commercial quantity of cannabis plants only came into force on 1 January 2008 for persons convicted or whose plea of guilty was accepted after that date – see Crimes (Sentencing Procedure) Amendment Act (2007).

3. When regard is had to the fact that the Judicial Commission statistics show that of 39 offenders sentenced between January 2002 and December 2008 and to whom the standard non-parole period did not apply, for cultivation of a large commercial quantity of cannabis plants, the highest sentence imposed was for a full term of 6 years (imposed on 4 offenders) and the mean sentence was 3 years (imposed on 10 offenders), it is clear that Parliament intended that sentences for the offence should increase.  I do not of course ignore that the sentences reflected in the statistics will have been after discounts and other matters had been taken into account but the difference between the standard non-parole period and the statistics is too great to be accounted for solely by such matters.   It was contemplated in R v Way (2004) 60 NSWLR 168 at [132] et seq. that such an increase might well be a consequence of the introduction of the standard non-parole periods.

4. In the result, I find these previous decisions concerning the penalties for the cultivation of large commercial quantities of cannabis to be of almost no assistance.

5. In so concluding, I do not ignore an argument advanced on behalf of the Respondents that, given that the standard non-parole period did not apply in terms but only as a guide-post, and that much of the cultivation with which they were charged occurred prior to the introduction of the standard non-parole period for cultivation of a large commercial crop, it should not have the weight it would have if all of the cultivation had occurred after 1 January 2008.  I do not agree.  The Respondent’s chose to continue to offend after 1 January 2008 – indeed to a substantial degree - and though they were almost certainly not aware of the introduction of the relevant legislation, the Crimes (Sentencing Procedure) Amendment Act (2007) specifically provides that the amendments made apply, with exceptions not presently relevant, to offences, whenever committed.

6. In opposition to the appeal attention was drawn to the subjective matters to which I have referred above.  Although most of these matters have been mentioned previously, it is convenient to repeat here that, in the case of Mr Quinn, mitigating features included his plea, that he had no record of previous convictions that I would regard as significant for present purposes, matters referred to in testimonials, his remorse, that he is unlikely to re-offend and has good prospects of rehabilitation.  In the case of Mr Green, there should be added to these matters that he was of good character.  Despite them, I have no doubt that when regard is had to the statutory provisions to which I have referred, both the head sentences and non-parole periods imposed on the Respondents were manifestly inadequate.

7. Before I turn otherwise to the issue of what consequences should flow from that conclusion, it is necessary to address some arguments raised on behalf of the Respondents.  It was submitted that to increase the Respondent’s sentences would create disparity with the sentence of 3 years, including a non-parole period of 18 months, imposed on Taylor and, as has been said, against which the Crown did not appeal and, in light of the decisions of R v McIvor [2002] NSWCCA 490; (2002) 136 A Crim R 366, R v Borkowski (2009) NSWCCA 102 at [69] and Cvitan v R [2009] NSWCCA 156, this was something that the Court, in a Crown appeal, would not do. Indeed as first formulated, the proposition advanced was that the Court could not do so.

1. The Crown submitted that because of differences between Taylor on the one hand and Messrs Quinn and Green on the other considerations of parity did not arise.  In that connection the Crown relied on the fact that Taylor’s offence involved a commercial and not a large commercial quantity, he was awarded a discount of 25% and not 20% for his plea, he was lower in the hierarchy than Mr Green, he was aged 19 at the time of offending whereas Mr Quinn was 31 and Mr Green 24.  On the other hand, contrary to the situation of Messrs Quinn and Green, Mr Taylor was not of good character, could not be said to be unlikely to re-offend and had a need for supervision for a significant period. 

2. Because the charge against Taylor was different from that to which the Respondents pleaded guilty and carried a significantly different penalty, the case is not one of strict parity.  However, while recognising the difficulties adverted to by Campbell JA in Jimmy v R [2010] NSWCCA 60 at 203, because of the similarity in the charges and the similarity of offending, particularly in the case of Taylor and Green, the case is one where considerations of relative parity should be taken into account – see Jimmy v R at [246], [268]; Shen v R [2009] NSWCCA 251 at [33].

3. In R v McIvor, Heydon JA, with whom Levine J and Carruthers AJ concurred, contrasted the situation where a court was asked to reduce an appropriate sentence to an inappropriate level to achieve parity with a situation where the Court was asked to increase an unduly lenient sentence when the result would be to create disparity.  At [9-11] his Honour remarked:-

   9.… Is it a fair answer to say to McIvor: "Though you and Hernando played similar roles in the crimes and have similar backgrounds, it is just that he serve six months in gaol and you serve fifteen months because he can take advantage of a mistake by the Crown?"

   10.It is appreciated that Lowe v R (1984) 154 CLR 606 does not automatically mean that any difference in sentences for co-offenders should mean that the higher sentence is unjust. See R v Diamond (Court of Criminal Appeal, unreported, 18 February 1993) and R v Steele (Court of Criminal Appeal, unreported, 17 April 1997). Those authorities indicate that what must be compared are appropriately lenient or low sentences with more severe sentences. If a sentence is inappropriately lenient, that is no justification for reducing a more severe sentence on a co-offender. As Brennan J said at 617, it is not the case that where there is one wrong sentence and one right sentence, the court should reduce the right sentence to the level of the wrong sentence. The more severe sentence should not be reduced to a level which is so far out of line with what is right that it is an affront to the administration of justice. But that line of authority deals with attempts by convicted persons to have their severe sentences reduced on appeal by comparison with lenient sentences on co-offenders. They do not deal directly with the present position – a question of whether a sentence on one co-offender should be raised while the identical sentence on another co-offender remains unchanged. In that type of circumstance, illustrated by the present case, questions of justifiable grievance arising by reason of a move from parity to a lack of parity have a different quality.

   11.Though McIvor cannot rely on the factor of delay in his particular case to any effective extent, it would be likely to excite a sense of grievance in McIvor if his sentences were increased while those imposed on his co-offender remained the same. That sense of grievance would be justifiable, because the difference would not depend on anything in the objective circumstances of the crimes or in the subjective circumstances of each co-offender’s background. This legitimate sense of grievance would be likely to generate a bitter resentment antithetical to the prospects of avoiding recidivism. From this point of view McIvor is perhaps even more fortunate than Hernando, for not only did he share the same sentencing judge, he has been able to take account of a fact which is not peculiar to his own position, namely that, assuming that there were appellable errors in the sentencing judge’s approaches in the two cases, Hernando’s sentence is not to be changed by reason of the adventitious circumstance of the Crown’s gross delay.

4. These paragraphs were quoted without discussion by Bell J in R v Horne [2004] NSWCCA 8 at [76] and the short passage about bitter resentment and recidivism was referred to by Adams J, without the assent of the other members of the Court, in Vinh The Truong v R  [2009] NSWCCA 122; (2009) 195 A Crim R 192.

5. In R v Borkowski Howie J, with whose reasons in this regard McClellan CJ at CL and Simpson J agreed, said as follows:-

   69. It is well established that this Court will not reduce a sentence that is otherwise appropriate simply because there is disparity between it and a manifestly inadequate sentence imposed upon a co-offender: R v Diamond (NSWCCA, 18 February 1993, unreported); R v Chen [2002] NSWCCA 447. That is because the sense of grievance held by the offender is unjustified where the co-offender's sentence is unduly lenient to a significant degree. This is so even where the co-offender's sentence was imposed by this Court: R v Ismunandar and Siregar [2002] NSWCCA 477; 136 A Crim R 206. There reliance was placed upon the judgment of Gleeson CJ in R v Rexhaj (NSWCCA, 29 February 1996, unreported) where his Honour stated:

   The principle which underlies ... [intervention for disparity] ... is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice ... . There are, however, other things which may also lead to an erosion of public confidence in the administration of justice, and they include the multiplication of manifest errors. That is why numerous judges have stressed the unattractiveness of responding to one wrong decision by making another wrong decision.

   70. Here there has been, in my opinion, a wrong decision by the sentencing Judge. But it cannot be said that the refusal to interfere to correct that decision is itself a wrong decision. That is because the purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong. The decision of this Court will have an effect on sentencing for motor manslaughter cases even though the Crown appeal is dismissed in the exercise of discretion.

   71. It may well be that members of the public, either in general or in the case of particular individuals, will retain a sense of grievance that the respondent was not appropriately sentenced for his conduct and its consequences. But that grievance, if it exists, will be a consequence of the conduct of the Crown both before the sentencing judge and before this Court. It is not a result of the failure of this Court to recognise the seriousness of the offences and require that appropriate punishment be imposed upon such offenders. General deterrence, which is of the utmost importance in this case, will be achieved by the pronouncement of this Court as to the type of penalty that should be imposed upon similar offending in the future. Although the sentence imposed upon the respondent is manifestly inadequate, it is still a significant sentence for a person of the applicant's age and record.

6. In Cvitan v R [2009] NSWCCA 156 Simpson J concluded that the sentence imposed on Cvitan was manifestly inadequate to a substantial degree but that it was proportional to a sentence imposed on a co-offender.  The Crown had appealed against that last mentioned sentence but, for reasons that were unexplained, had abandoned that appeal.  Citing R v Borkowski, her Honour went on, at [92] et seq. to say that to increase Cvitan’s sentence “would be to create, in Cvitan, a justifiable sense of grievance in relation to the sentence imposed on [the co-offender], would disrupt the relativities and create unacceptable disparity”, and “would create inequity of the kind the principles of parity operate to avoid”.  No doubt in consequence of the decision in Borkowski, there was no need for her Honour to embark upon a consideration of the more general considerations that argued for or against the approach adopted in that case.  McClellan CJ at CL and James J agreed with Simpson J and the Crown appeal was dismissed.

7. There are other decisions.  In R v Bavin [2001] NSWCCA 167, the Respondent to a Crown appeal who had pleaded not guilty had been sentenced to imprisonment for a term of 3 years including a non-parole period of 2 years for an offence of armed robbery and to a concurrent term of 1 year for an offence of detain for advantage that occurred at the same time. On the previous day for the offence of armed robbery, another similar offence being taken into account, the same judge had sentenced a co-offender who pleaded guilty to community service for 300 hours. At the sentencing of the co-offender the Crown had indicated it did not want to speak against a non-custodial penalty or contend that the co-offender was not the least involved of the two offenders. The Crown had appealed against the sentence imposed on the co-offender but had been unable to find him and the Court recorded that there was nothing to suggest that situation would change in any reasonable time. In the course of his remarks, Spigelman CJ, with whom Wood CJ at CL and Greg James J agreed, observed:-

   60. The issue of precisely how reliance may be placed, for purposes of a parity argument, on another sentence which was itself manifestly inadequate is a matter which arises in different contexts in different ways. The cases on which the Crown relied were severity appeals. In the context of Crown appeals quite different considerations arise. As is well known the Court's approach to Crown appeals is distinctly different to the approach taken in severity appeals.

   61.  In this case, of particular significance is the unusual circumstance that the Crown seeks to challenge as manifestly inadequate in the Pomana appeal, a sentence for which the representative of the Crown before his Honour in the case of Pomana indicated the Crown did not wish to make submissions against, namely, a non-custodial sentence being imposed after the period of incarceration that had actually occurred in that case.

   62.  The Crown is not always debarred from changing its mind and adopting a different position on appeal than it took below, in respect to matters of sentence. … In this case the Crown is taking a different position to that which it took at first instance on the sentencing of a co-offender in a different case, it not having taken a similar attitude of what may appear to be leniency, in the case of Bavin presently before the Court.

   63.   Nevertheless the question of parity does arise in this sense: a sense of grievance that may be regarded as justifiable would remain if the Crown, in this case, was successful in this appeal, and the Court increased to any substantial degree the sentence imposed upon the Appellant, bringing it closer to what, in my opinion, would be regarded as an adequate sentence in all of the circumstances of the case.

   69.  In my opinion, in the exercise of this Court’s residual discretion not to intervene, the Court should dismiss the Crown appeal on the basis of the issue of parity on which the Appellant relies. Normally the manifest inadequacy of the sentence imposed on Pomana would not necessarily lead to the Court dismissing the Crown appeal in this case, by reason of the extent to which it was inadequate and the extent to which the sentence in this case was inadequate. However, special circumstances have arisen in this case.

   70.  Those circumstances are that the Pomana appeal has not been heard and there is nothing before this Court that would indicate it can be heard in any kind of reasonable time.

   71.  Secondly, in the particular circumstances of this case the Crown itself was directly involved in leading his Honour into error in the case of Pomana by making the submission I have quoted above. …

1. In R v Guthrie [2002] NSWCCA 77, the Crown appealed against a sentence of 4½ years imprisonment including a non-parole period of 3 years imposed on an offender with a substantial record. It had not appealed against a sentence of 2 years and 9 months including a non-parole period of 1 year imposed on a co-offender who was equally involved in the offence but who was appreciably younger and had no criminal record. That sentence was described by Sheller JA at [2] as “surprisingly light”, and at [18] by Grove J, with the concurrence of Simpson J, as “remarkably light”. Observing that the Crown had not appealed against that sentence, the Court nevertheless allowed the Crown appeal against the sentence imposed on Guthrie, regarding the sentence on the co-offender as cause to impose a lower sentence than would otherwise have been appropriate.

2. There are also a number of cases in which I was a member of the Court.  In R v Harmouche (2005) 158 A Crim R 357, a Court comprised of Sully and Latham JJ and myself allowed a Crown appeal and returned the Respondent to full time custody notwithstanding that that course made his sentence disproportionate to that imposed on a co-offender. I said, at [66-68] with the concurrence of the other members of the Court:-

   67. The factors which have led me to the conclusion that the appeal should be allowed and the Respondent re-sentenced are as follows. There is the importance of the 4 principles listed above and on which the Crown relies, and of this Court ensuring as best it can that those principles are in fact adhered to by judges whose daily task is to sentence offenders such as the Respondent. The sentence imposed in this case is ample demonstration that, despite the principles having been stated over a lengthy period, they are either not understood or not followed. There is the extent of the manifest inadequacy in the sentence imposed in this case. There is, to adopt the words of the Chief Justice in R v Wong and Leung (1999) 48 NSWLR 340 at 361, "the exceptional threat to our society that is posed by large scale drug use", a factor which makes it imperative that this Court ensure proper sentencing standards are adhered to. It cannot be forgotten that every sentence imposed in the higher courts is reflected in statistics which by use as standards, tend to be self-perpetuating.

   68. It is these factors also that have led me to the view that the Court should not refrain from allowing the appeal notwithstanding that doing so will result in the Respondent suffering a substantially higher penalty than that imposed on Sayadi. Of course that lack of parity provides a reason why the appeal should not be allowed but the authorities make it clear that while parity is important, where adhering to parity would result in a, or a second, sentence which is manifestly inadequate, the Court is entitled to take a different course. These authorities include R v Ismunandar and Siregar [2002] NSWCCA 477 at [15 - 38]; R v Chen [2002] NSWCCA 174 at [289]; R v Doan (2000) 50 NSWLR 115; R v Steele (unreported, NSWCCA, 17 April 1997); R v Diamond (unreported, NSWCCA, 18 February 1993).

3. The four principles to which I referred were recounted at [51] and (omitting reference to the authorities cited) were:-

   1.The subjective features of a particular offender must not be allowed to overshadow the objective seriousness of the offence under consideration.

   2. Only in exceptional circumstances will a full time custodial sentence not be imposed upon an offender being sentenced for supplying prohibited drugs.

   3. The evils of the drug trade are such that the courts must take a very firm stand against it.

   4.A sentence of periodic detention contains a strong element of leniency, is outwardly less severe in denunciation of criminality and is not normally appropriate in cases involving the supply of illegal drugs.  (To the uninitiated, I would add that, despite its terms and because of administrative decision, such a sentence normally does not involve periodic detention for the time specified but commonly for only one to two-thirds of that time.)

4. In R v Harris [2007] NSWCCA 130 at [77] et seq. the Court regarded the fact of disparity as but one of the matters to take into account and, while not refusing to increase a sentence adjudged to be grossly inadequate, imposed a sentence very considerably lower than the minimum that should have been imposed at first instance. With the concurrence of McClellan CJ at CL and Hislop J, I observed that although there “is a discretion to permit disparity to occur – R v Diamond (unreported, CCA, 18 February 1993); R v Steele (unreported, CCA, 17 April 1997); R v Ismunandar and Siregar [2002] NSWCCA 477 - the considerations that inspire the principle of parity mean that the Court should hesitate before allowing it”.

5. The allowance of the appeal was notwithstanding a recognition that a cause of the disparity that would result was an apparent incapacity in the Office of the Director of Public Prosecutions to co-ordinate its activities where co-offenders were involved, a matter of which this Court had complained numerous times in the past.

6. In R v Elzakhem [2008] NSWCCA 31 at [62] the Court had to consider the situation of seven offenders who, in different combinations were involved in over a dozen offences and who had been sentenced by four different judges and this Court. With the concurrence of Beazley JA and Latham J, I concluded that the total effective and increased sentence this Court imposed would afford the Respondent to a Crown appeal no legitimate source of grievance on parity grounds but that there was unjustified disparity between some of the individual sentences proposed and those which had been imposed on some of the co-offenders. I continued:-

   65. While I acknowledge that this disparity is undesirable and provides a reason to depart from the sentences I have foreshadowed, I am disinclined to do so. Firstly, disparity but enlivens a discretion. It does not compel its use - see R v Diamond (unreported, CCA 18 February 1993); R v Doan (2000) 50 NSWLR 115 at [19]; R v Rexhaj (unreported, NSWCCA, 29 February 1996); R v Ismunandar and Siregar [2002] NSWCCA 477 at [38].

   Secondly, with the number of offenders and charges here, it is very difficult to avoid some disparity. Thirdly, with the exception of Coleman, there is no unjustified disparity in the total sentences. Fourthly, to adjust the Respondent's sentences downwards to match those imposed on Coleman is likely to create disparity with others. Fifthly, much if not all of the effect of disparity is removed as a result of the application of the principle of totality. Finally, the Respondent's criminality was so great that I regard it as more important that the sentences imposed on him be proper by reference to other principles of sentencing than that they be reduced on parity grounds. As was said in R v Rexhaj (unreported, NSWCCA, 29 February 1996) and quoted in R v Ismunandar and Siregar [2002] NSWCCA 477 at [38]:-

   The principle which underlies ... [intervention for disparity] ... is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice ... . There are, however, other things which may also lead to an erosion of public confidence in the administration of justice, and they include the multiplication of manifest errors. That is why numerous judges have stressed the unattractiveness of responding to one wrong decision by making another wrong decision.

1. In R v Najem [2008] NSWCCA 32 the Court had to consider the situation of another of the seven offenders just referred to. He had been sentenced to terms of imprisonment half and less than half of those this Court thought appropriate. Again with the concurrence of Beazley JA and Latham J I said:-

   62. … notwithstanding that allowing the Crown appeal and increasing the sentences on Najem will or is liable to create disparity with those imposed on Sassine and Duncan (though reducing the disparity between Najem and VAA and Ellias), the extent of the inadequacy in the sentences imposed on Najem is such that this Court should interfere. …

   63.  However, in the exercise of this Court's discretion in Crown appeals to impose sentences less than those that should have been imposed at first instance and because of the disparity with the totality of the sentences that have been imposed on Duncan and Sassine, I would impose sentences less than those indicated in the immediately preceding paragraph.

2. R v Kumar and Feagaiga [2008] NSWCCA 328 was another case where a Crown appeal was allowed notwithstanding that doing so created disparity with the sentence imposed on a third co-offender. In that case I said, with the concurrence of McClellan CJ at CL:-

   76.  It is unnecessary for the purposes of this appeal to re-canvass the authorities dictating that where the criminality of, and other relevant considerations affecting the sentencing of, co-offenders is equal, they should receive the same or similar sentences - see e.g. Lowe v R (1984) 154 CLR 606 or those cases that lay down that where adhering to parity would result in a, or a second, sentence which is manifestly inadequate, the Court is entitled to take a different course - see R v Harris [2007] NSWCCA 130 at R v Harmouche [2005] NSWCCA 398; 158 A Crim R 357 at [68] and the cases there cited.

   77.  In my view the Court here should take that different course. The principal reasons leading me to that conclusion is the extent of the inadequacy of the sentences imposed and the vast disparity between what Parliament has indicated is an appropriate non-parole period for the offences of the nature of those committed by the Respondents and the sentences imposed. I do not forget that the standard non-parole period is, in the circumstances here, but a guide and that there are additional factors to which regard must be had, but compared with the 10 year period that was Parliament's indication of the seriousness of the Respondent's offending, the non-parole periods of about 2 years fixed by Sides DCJ do not come close to being justified.

3. An application for special leave to appeal from the decision in that last mentioned case was refused.  On behalf of the offenders, reference was made to R v McIvor and R v Borkowski and it was pointed out that in R v Harris and R v Harmouche the cases relied on in support of the proposition that this Court had a discretion were cases where it was the offender rather than the Crown that was appealing.  In refusing special leave Heydon J said:-

   Justice Kiefel and I are of opinion that the application for special leave must be refused on the ground that despite various of Mr Dhanji’s arguments there is no sufficient prospect that ultimately the position achieved by the Court of Criminal Appeal will change were special leave to be granted.

4. The Crown submitted that this refusal of leave determined the issue presently under consideration in the Crown’s favour.  Having regard to the nature of the proceedings, that is to state the matter too highly.  However the decision does provide substantial support for the Crown position.

5. The topic has been considered by the Court of Appeal in Victoria.  In Bulfin (1998) 101 A Crim R 40, Charles JA, with whom Winneke P and Callaway JA relevantly agreed, expressed the view that, because of the rule that Crown appeals should be rare, the Crown’s ability to appeal against inadequate sentences was much circumscribed and in consequence principles of parity should be given less emphasis or more cautiously applied when considering a Crown appeal when not all offenders were brought before the appeal court. His Honour said (at p 64):-

   The Director may have proper and compelling reasons for not seeking an increase in the sentence of some offender; or, in a case such as the present, where one offender plainly played a different and substantially lesser role, and where, consequently, the co-offender was first sentenced to a much lower penalty, any increase in sentence that would be proportionate might not be such as to justify the institution of an appeal in relation to the lesser offender.  Having regard to considerations such as these, I would not accept that when the Director is deciding whether to appeal a supposedly inadequate sentence imposed on one offender, an election must be made whether to appeal against the sentences imposed on other co-offenders, or not to appeal at all.

1. On behalf of the Respondents it was submitted that the group of cases in which I have been involved were decided per incuriam, in ignorance of the earlier decision of R v McIvor and without recognition of the fact that the cases of R v Ismunandar and Siregar, R v Chen, R v Doan, R v Steele and R v Diamond were cases where this Court had rejected an offender’s appeal, leaving disparity to remain, and not cases where a Crown appeal was allowed so as create disparity.  Factually, the last two matters referred to are correct.  However the weight of the submission concerning “per incuriam” is somewhat attenuated by the fact that R v McIvor was decided in ignorance of R v Guthrie, and R v Borkowski and Cvitan v R decided in ignorance of R v Guthrie, R v Harmouch, R v Harris, R v Elzakhem, R v Najem and R v Kumar and Feagaiga.  In none of the cases was there reference to what had been said in R v Bavin.

2. This Court is not bound by its earlier decisions – Jimmy v R [2010] NSWCCA 60 at [126], and having regard to the extent of support for competing views it seems to me appropriate to seek to deal with the issues by reference to the considerations and principles that are calculated to inform the ultimate decision.

3. In R v McIvor, Heydon J asserted that in situations where a sentence on one co-offender was raised while the sentence on a another co-offender was not, questions of justifiable grievance arising by reason of a move from parity to a lack of parity have a different quality from circumstances where an absence of parity is not redressed by this Court.  His Honour went on to say that the sense of grievance of the offender whose sentence was increased “would be justifiable, because the difference would not depend on anything in the objective circumstances of the crimes or in the subjective circumstances of each co-offender’s background” and “This legitimate sense of grievance would be likely to generate a bitter resentment antithetical to the prospects of avoiding recidivism.”

4. With respect to his Honour, it is inherent in all cases of unjustified disparity that the difference in sentences does not depend on anything in the objective circumstances of the crimes or in the subjective circumstances of each co-offender’s background.  His Honour’s statement “this legitimate sense of grievance would be likely to generate a bitter resentment antithetical to the prospects of avoiding recidivism” is a proposition neither self evidently true nor for which any evidence is cited in support.  Furthermore, I have sat in this Court now for some 15 years and am not conscious of any studies or evidence to the effect of his Honour’s proposition.  Nor does it seem to me that there is any ground upon which one could so delve into the workings of criminal minds as justify concluding and then taking judicial notice of the matters the subject of his Honour’s remarks. 

5. His Honour’s proposition that in situations where a sentence on one co-offender was raised while the sentence on another was not, questions of justifiable grievance arising by reason of a move from parity to a lack of parity have a different quality from circumstances where an absence of parity is not redressed by this Court also bears examination.  It may reasonably be inferred that, from the point of view of an offender, any sense of grievance is likely to be principally inspired by the fact and extent of a harsher sentence than imposed on a co-offender, rather than by the circumstances in which that came about.  Reflection on those circumstances may tend to strengthen this sense of grievance but I venture to suggest that if it does, it will most probably be because one body, Crown or court, has displayed an absence of even-handed treatment.   I rather doubt that it will matter to an aggrieved offender that the disparity was created by the Court of Criminal Appeal, rather than by a first instance judge.

6. That is relevant because there is no doubt that a first instance judge, faced with an earlier but inadequate sentence imposed on a co-offender, is entitled to impose a sentence that is not inadequate – R v Tisalandis (1982) 2 NSWLR 430; R v Doan (2000) 50 NSWLR 115 at [20]. Why should the Court of Criminal Appeal not have and exercise the same freedom?

7. In R v Borkowski, while acknowledging that the refusal of the Court to allow the Crown appeal might leave members of the public with a sense of grievance that the respondent was not appropriately sentenced, Howie J gave two reasons why this Court should not interfere when the result of doing so would create disparity.  One was that any such sense of grievance would be a consequence of conduct by the Crown rather than by the Court.  It does not seem to me that the role of this Court can be so easily dismissed.  There is no statutory prohibition or established rule of law that precluded the Court allowing the Crown appeal in Borkowski’s case.  If, having regard to the competing considerations that bear on the question whether a Crown appeal can be allowed when the effect is to create disparity, the Court chooses those which result in the dismissal of the appeal, the result is at least in part a consequence of the Court’s decision.

8. The second reason his Honour gave was that allowing the appeal was unnecessary; a statement by this Court to the effect that the sentence the subject of the Crown appeal was wrong was calculated to achieve the wider purposes of achieving general deterrence and general consistency in sentencing, these being two of the reasons for the existence of Crown appeals to this Court.  The remarks from R v Harmouch at [67] quoted above indicate that not all judges are as sanguine as his Honour as to the impact of statements by this Court on the issue of consistency.

9. Furthermore, experience since my remarks in R v Harmouch has done nothing to dispel the belief that, despite sentencing principles having been stated and re-stated by this Court over a lengthy period, they are, with undesirable frequency, either not understood or not followed by a number of District Court judges.

10. Turning to those decisions to which I was a party, I have seen or heard nothing to persuade me that the factors I there relied on do not provide strong arguments against a blanket rule that the Court could not or should not increase manifestly inadequate sentences if the result of doing so is to create disparity.  There is a substantial public interest in sentences being appropriate and that manifestly, and sometimes grossly, inadequate sentences be corrected. 

11. Certainly, in those decisions reliance was placed on earlier cases where in offenders’ appeals disparity had been regarded as insufficient reason to impose manifestly inadequate sentences.  The principal justification for the approach in those earlier cases was that the inadequacy of the lower sentence sought to be used as the criterion was so great that any sense of grievance that the offender with the higher sentence might have could not be regarded as “justifiable” or “legitimate” - see R v Doan at [19], R v Chen at [289], R v Isumandar at [23-24].  There is simply no logic in thinking that merely because the higher sentence is imposed by this Court in a Crown appeal, any sense of grievance arising from disparity in the length of sentences would be more justifiable.

12. It is also appropriate to bear in mind that the principle that there should be parity between the sentences imposed on co-offenders is but a particular manifestation or application of a principle that there should be consistency in the punishment of all offenders.  As was said by Dawson and Gaudron JJ in Postiglione v R (1996-1997) 189 CLR 295 at 301, “The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.” This wider principle is the, or at least a major, rationale of guideline judgments – see R v Jurisic (1998) 45 NSWLR 209 at 216; R v Henry (1999) 46 NSWLR 346 at [2], [12].

13. There is also the practical difficulty that in some circumstances, involving multiple offences and offenders, some disparity is practically unavoidable.  Different pleas, and changes in pleas within a group of offenders, often make it impossible for one judge to deal with all and there will not infrequently, without fault on the part of the Crown, be variations in the evidence presented against various co-offenders – c.f. R v Tisalandis, (1982) 2 NSWLR 430 at 439F.

14. It is not always easy to decide whether a sentence is manifestly inadequate and the Crown cannot be expected to appeal in every case where a sentence imposed on one of a group of offenders, sentenced earlier than others, and possibly at a time when some offenders in the group are still awaiting trial, might be considered to be arguably manifestly inadequate.  A blanket rule that no Crown appeal can succeed if the result would be to create disparity with a sentence imposed on a co-offender will effectively mean that the Crown is forced to appeal as soon as sentence that might be so regarded is imposed on one co-offender:  Not to do so will mean that an appeal against a more obviously, and perhaps certainly, inadequate sentence imposed later will, or will probably, be dismissed.  And although the abolition of the double jeopardy principles applying to Crown appeals means that the received doctrine that Crown appeals should be rare has been abolished, there are obvious disadvantages to the Criminal Justice System if the Crown appeals simply because it is felt that failure to do so may be held against the Crown in some appeal that may eventuate from a sentence as yet not imposed.  As was said in Bulfin, in circumstances where there was a supposedly inadequate sentence imposed on one co-offender, the Crown should not be forced to elect to appeal against sentences imposed on other offenders or not to appeal at all.

15. In a case such as this there are three principal sentencing principles that operate.  One is that sentences should be appropriate to the criminality of an offence and the circumstances of an offender and manifestly inadequate sentences should not be allowed to stand.  The second is that there should be consistency in the punishment of all offenders whose criminality and circumstances are comparable.  The third is that there should not be unjustifiable disparity between the sentences imposed on co-offenders.  By definition in a case such as this one, the Court cannot give full weight to one principle without departing from another or others.  Why should the third principle be allowed always to prevail?

16. In the cases referred to in the above quotation from R v Harmouche the Court has made it clear that in an appeal by an offender, it will exercise a discretion whether to allow parity to prevail.  The Court of course always has a discretion in Crown appeals.  In exercising that discretion it will take into account any contribution by the Crown to the error in a manifestly inadequate sentence.  While the difficulty that arises in cases such as the instant one is the omission of the Crown to appeal from the sentence imposed on a co-offender, for the reasons indicated, such an omission cannot always be regarded as a fault or for which the Crown is to be criticised.  Furthermore, there will be occasions when the importance of imposing a proper sentence may well far outweigh any fault on the part of the Crown.

17. Sentencing is already sufficiently complicated to discourage the introduction of more absolute or almost absolute rules.  In these circumstances and in light of the other factors to which I have earlier referred, the Court should adopt the approach that in a Crown appeal upon the ground of manifest inadequacy of a sentence, any disparity with the sentence imposed on a co-offender that would be created by the allowing of that appeal, and any conduct or inaction on the part of the Crown, particularly if unexplained or unjustified – c.f. R v JW [2010] NSWCCA 49 at [95] - that has allowed that situation to arise should be factors to be taken into account on the issue of whether the appeal should be allowed and, if it is, on the extent of the sentence to imposed, but the fact of such disparity or conduct (or inaction) on the part of the Crown should not otherwise be a bar to the success of the appeal. Such a test is consistent with the general nature of the discretion that the Court has on a Crown appeal and is best calculated to enable appropriate weight to be given to all relevant factors.

    The Result of the Appeal

18. In the circumstances of this case, I am not persuaded that the Court should reject the Crown appeal upon the basis that, to allow it will create disparity with the sentence imposed on Mr Taylor.  I am influenced to that conclusion by the importance Parliament has placed on discouraging the cultivation of large commercial crops of cannabis, evidenced by the maximum penalty of imprisonment for 20 years and a standard non-parole period of 10 years and by the extent of the inadequacy of the sentences imposed on Messrs Quinn and Green.  Against those standards a sentence of 6 years, including a non-parole period of 3 years, provides little by way of general deterrence when the reward for success is, as the evidence showed, possibly millions of dollars.  Nor does it provide much by way of retribution for many months of calculated criminality. 

19. Some muting of these remarks is appropriate in circumstances where it is not known what Mr Green stood to gain, but particularly in the drug field where it has been recognised that the senior operators often depend on assistance from others, the importance of discouraging those others means that in his case also the sentence  - imprisonment for 4 years, including a non-parole period of 2 years – should not be allowed to stand. 

20. No other grounds were advanced as to why, if the Court found that the sentences were manifestly inadequate, it should not allow the appeals and re-sentence.  Against that possibility, affidavits bringing the circumstances of the Respondents up to date were read.  In the case of Mr Quinn, those affidavits show that he is making a serious attempt to reform.  He has been working, has demonstrated a willingness to pursue drug and alcohol counselling, has undertaken courses to enable him to pursue tertiary education and has in fact completed one such course.  A senior Correctional Education Officer has provided evidence that Mr Quinn is motivated and that to date his marks have been excellent.

21. An affidavit from Mr Green sworn in February last indicates that he also is pursuing educational courses that are available and is seeking to better himself.  A recent affidavit reaffirms those matters and also records that on 13 July he received his C3 classification.  That classification means that Mr Green is eligible for firstly day, and later weekend, release and that, as at the date of the affidavit, 28 July last, Mr Green has been home on one day.  He was due for another day’s release on 7 August.  If his sentence is increased he will lose that classification.  He also has been working in prison.

1. This appeal is one which is subject to s 68A of the Crimes (Appeal and Review) Act 2001 and accordingly considerations of double jeopardy do not apply to it – see R v JW [2010] NSWCCA 49. The subjective considerations to which reference has been made in the immediately preceding paragraphs and earlier in these reasons of course do.

2. In summary, in objective criminality, Mr Quinn’s offending fell within the mid-point of objective seriousness.  Remarks made earlier lead to the conclusion that appropriate starting points for the determination of the ultimate sentence are about 10 years for the non-parole period and somewhere of the order of 13 years and 4 months to 15 years for the total sentence.  He is entitled to a 20% discount for his plea.  Account must also be taken of his subjective circumstances, including, without attempting to be exhaustive, his upbringing, the impact of imprisonment upon him and what would seem to be good, perhaps better than good, prospects of rehabilitation.

3. Given the lesser degree of his objective criminality, starting points of the order of 7½ and 10 years for the non-parole period and total term are appropriate in Mr Green’s case.  He cannot pray in aid problems with his upbringing but he also has good prospects of rehabilitation.  In his case there should be taken into account also the present status of his sentence.  Reverting to a higher classification and his removal from the day or week-end pre-release program is calculated to impose an emotional burden upon him that, had he been sentenced to an appropriate term by Boulton ADCJ, he would not have had to bear.   As this Court has remarked in the past, first instances judges do not always benefit offenders by imposing manifestly inadequate sentences.

4. Lest it be thought that I have not adverted to the matter, I add that this emotional burden is not a matter that comes within the double jeopardy concept and in consequence is not a matter that can no longer be taken into account.

5. In the case of both offenders some allowance should be made for the fact that the sentences imposed will create disparity with the sentence imposed on Mr Taylor.  Particularly relevant in that connection is that Mr Taylor’s sentence was so obviously manifestly inadequate that it is prima facie extraordinary that the Crown did not appeal and the Crown provided no reason why it did not. 

6. The offences on Mr Quinn’s Form 1 are of little significance in the case.  Taking account of all of the matters to which I have referred, Mr Quinn should be re-sentenced by this Court to imprisonment for a total term of 9 years.  Having regard to his lesser role (and probable reward), Mr Green should be sentenced to imprisonment for 6 years.  There was no challenge to Boulton ADCJ’s finding of special circumstances and I would impose on Mr Quinn a non-parole period of 6 years and on Mr Green a non-parole period of 4 years.

7. Accordingly the orders I propose are:-

   (i)           Allow the Crown appeal.

   (ii)Quash the sentences imposed on the Respondents by Boulton ADCJ on 14 August 2009.

   (iii)Sentence the Respondent Brett Andrew Green to imprisonment for a non-parole period of 3 years commencing on 17 May 2009 together with a further term of 2 years commencing on 17 May 2012. 

   (iv)Sentence the Respondent Shane Darrin Quinn to imprisonment for a non-parole period of 5 years commencing on 30 April 2008 together with a further term of 3 years commencing on 30 April 2013.

SCHEDULE

In Giacobello v R [2001] NSWCCA 473 a 2 Judge bench dismissed an appeal against a sentence of 4 years including a non-parole period of 3 years for someone who admitted taking part as a cultivator in the growing of a cannabis crop of over 2,000 plants and which may have had a value of some $4 M.  Apart from the description of the offender as a cultivator and anticipating some financial reward there was nothing to indicate his role. 

In R v Skorin [2005] NSWCCA 276 this Court allowed a Crown appeal and imposed a sentence of 4½ years imprisonment including a non-parole period of 2 years and 9 months on an offender charged with knowingly taking part in the cultivation of not less than a large commercial quantity of cannabis plants. In arriving at that figure the Court applied a discount of 40% (for the Respondent’s plea and assistance) to a starting point of 8 years that being, in the circumstances of a Crown appeal, at the bottom end of the range of starting points for an offender who occupied an intermediate position in the organisation.

There were 6,765 plants, estimated to be worth millions of dollars.  They had been cultivated over several months and had the benefit of an elaborate irrigation system.  The offender was regarded as at least at some intermediate level and having organised and supplied various items of equipment and food for workers present at the site over an extended period, discussed with others the organising of workers for harvesting and the topic of suspected surveillance by authorities and incursions by hunters.  He was found to be a willing participant in the cultivation and, not himself a user, having participated for financial gain.  The offender had no prior convictions.

The offender In R v Mammone [2006] NSWCCA 138 was involved in the same crop as Skorin. In Mammone’s case the Court allowed a Crown appeal and imposed a sentence of 5 years and 8 months including a non-parole period of 3½ years on an offender who had pleaded guilty to knowingly taking part in the cultivation of not less than a large commercial quantity of cannabis plants. The sentence reflected a discount of approximately 12½% for the offender’s plea, the Court taking the view that, having regard to the principles governing Crown appeals, and notwithstanding that the offender had been on parole, the sentencing judge’s starting point of 6½ years was just within the range of his discretion after allowance for the offender’s age, of 73, and health.

Mammone’s role included clearing land for a drying tent and toilet facilities, inspecting the crop, attempting to recruit workers, buying a tent to be used as a drying tent and allowing a generator he owned to be used in the cultivation.

In R v Mangano (2006) NSWCCA 35; (2006) 160 A Crim R 480 the Court was concerned with an offender who seems to have been involved in the same enterprise as Skorin and Mammone. The Court allowed a Crown appeal and imposed a sentence of imprisonment for 4 years and 5 months including a non-parole period of 2 years and 5 months on an offender who pleaded guilty to knowingly taking part in the cultivation of a large commercial quantity of cannabis plants. The number of plants was just short of 10,000 and with an estimated value of $20 M. The offender’s role was characterised as important, as an assistant to the financier, providing advice about the preparation of the soil. Bringing the mother plants to the site, assisting with cloning from these plants and other manual work. He was to be paid $100,00 if and when the work was successfully completed. Following the remarks of James J in R v Skorin, it was held that an appropriate starting point before any weight was given to an offence to be taken into account was 8 years.  

The offence taken into account was another of knowingly taking part in the cultivation of another large commercial quantity, the number of plants being some 6000.  The offender’s involvement in this crop, while significant, was relatively minor.   This other offence had the effect of adding another 2 years to the 8.  A 50% discount was then applied to the resultant 10 years together with a further discount because the offender had served some time in periodic detention pursuant to the sentence under appeal. 

In Vlismas v R [2006] NSWCCA 270 an appeal against a sentence of 8 years including a non-parole period of 4 years for the cultivation of 1008 plants, though charged merely as a commercial quantity, was dismissed. The Court said the sentence was not manifestly excessive but appropriate. The report contains no record of the offender’s plea nor precise identification of the extent of the offender’s role. It was however, significant.

In R v Valensise [2006] NSWCCA 315, the Court was concerned with another offender who was involved in the same enterprise as Skorin and Mammone referred to above. In this report the worth of the crop is stated to have been almost $14 M. Valensise was one of 3 labourers who for a period of about 6 months undertook the task of planting, watering and fertilising the crop and other menial tasks. He was charged with being knowingly concerned in the cultivation of a large commercial quantity of cannabis plants. Allowing a Crown appeal, and 25% for the offender’s plea, this Court imposed a sentence of 3 years and 4 months including a non-parole period of 2 years. In arriving at this figure the Court placed some weight on 3 offences on a Form 1 alleging the deemed supply of 978 grams of cannabis leaf, 87.5 grams of methylenedioxymethylamphetamine and 7.8 grams of methylamphetamine.

In R v Cannistra [2006] NSWCCA 389 the offender was charged with knowingly taking part in the cultivation of a large commercial quantity of cannabis plants, these numbering 30,051 plants with an estimated value of $58 M. Taken into account was an offence of cultivating a large commercial quantity of cannabis on the same property at an earlier time. Cannistra was one of the controlling minds of the operation if not the controlling mind and the report details an extensive array of activities in which Cannistra participated.  Allowing a Crown appeal, McClellan CJ at CL observed that but for the Applicant’s co-operation and a plea of guilty – for which a discount of 50% was allowed, the maximum sentence of 20 years would have been an appropriate starting point at first instance.  On account of the matter being a Crown appeal his Honour adopted 18 years as a starting point.

Cannistra had substantial health problems and the sentence imposed was of imprisonment for 9 years including a non-parole period of 5 years and 10 months.

In Gattellari v R [2007] NSWCCA 5 this court dismissed appeals by 2 offenders from sentences of 5 years and 9 months, including non-parole periods of 3 years and 2 months for offences of cultivating a large commercial crop consisting of 2,742 plants. The crop was estimated to have a street value of approximately $5.5 M. The operation was substantial involving an indoor cannabis cloning operation and an outdoor site the size of a soccer field containing an extensive irrigation system. The plants varied in height from 20 cm to 1.5 metres. The Applicant and a co-offender effectively managed and carried out a number of tasks incidental to the operation after someone else had become disabled and the sentencing judge concluded they would have seen it through to harvesting and obtaining the best financial return possible. The offenders reported to the father of one of them. The sentence was arrived at after a 25% discount for the utilitarian value of their plea and contrition and the sentencing judge’s starting point seems to have been the somewhat unusual figure of 7 years and 8 months.

In Licastro v R [2008] NSWCCA 131 this Court dismissed an appeal against a sentence of imprisonment for 8 years including a non-parole period of 6 years imposed on an offender who had been found guilty of knowingly taking part in the cultivation of not less than a large commercial quantity of cannabis. 3831 plants were being cultivated in circumstances that included a sophisticated irrigation system, machinery, fertiliser, living quarters and accommodation. There was evidence the street value of the plants approximately $8 M. The Applicant was found to have been a principal in the enterprise. The Court refused to interfere on the grounds of parity with a sentence of 2 years including a non-parole period of 6 months imposed on a co-offender described as a “worker” who had visited the property on 4 or 5 occasions and acted on instructions. The Applicant was convicted after a Judge alone trial.

In Romano v R [2009] NSWCCA 63 the Court dismissed appeals against sentences imposed on 2 offenders. Nicola Romano had pleaded guilty to an offence of knowingly taking part in the cultivation of a large commercial quantity of cannabis plants, the number being in excess of 8000, and of which cultivation Nicola was a principal organiser, a member of the top echelon of the organisation and involved in activities over a substantial period. Taken into account was another similar offence committed some months earlier and involving over 5000 plants. The sentence imposed was of imprisonment for 10 years including a non-parole period of 6 years.

The second offender, Luigi Roamano, had been found guilty and his sentence was of, effectively, 9 years imprisonment including a non-parole period of 5 years.  The report does not describe exhaustively Luigi’s role but it was clearly substantial.  Sentences on both offenders were said to be well within the sentencing judge’s discretion.

1. LATHAM J:  I agree with Hulme J and with McClellan CJ @ CL.

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LAST UPDATED:
19 January 2011