R v Lagana - [2012] SASCFC 135

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LAGANA
[2012] SASCFC 135
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice White)
17 December 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant and a co-offender were sentenced for the offences of manufacturing a large commercial quantity of a controlled drug (s 33(1), Controlled Substances Act 1984 (SA) (CSA)), and manufacturing a controlled drug (s 33(3), CSA) - the Judge imposed a head sentence of seven years imprisonment in both cases and, in the case of the appellant, fixed a non-parole period of five years - a period of unexpired parole meant that the co-offender had to serve a total period in custody of 10 years, three months and 10 days - in his case, the Judge fixed a non-parole period of six years - the appellant appeals on the stated ground that his sentence was manifestly excessive, but his real complaint related to the perceived disparity between his sentence and that of the co-offender.
Held (dismissing the appeal) (per Gray J):
(1) The appellant's sentence was within the discretion of the sentencing Judge and not manifestly excessive, (at [15]);
(2) When the antecedents of the co-offender are properly understood, it cannot be said that the appellant has established any justifiable sense of grievance. The appellant failed to make out any basis for a lack of parity, (at [33]).
Held (dismissing the appeal) (per White J, Vanstone J agreeing):
(1) The sentence imposed on the appellant was appropriate having regard to the seriousness of the offence and his circumstances, (at [50]);
(2) Satisfaction by an appellate court that a disparity between sentences exists does not of itself mean the appeal must be allowed, (at [53]);
(3) Assuming, without deciding that there was a relevant disparity, any reduction to the appellant's sentence by reason of that disparity could be only minor without making it unduly lenient, (at [59]);
(4) On the assumption that the discretion to reduce the sentence on the basis of disparity is enlivened, it should not be exercised so as to reduce the appellant's sentence, (at [59]).
Controlled Substances Act 1984 (SA), s 33, s 44; Criminal Law (Sentencing) Act 1988 (SA), s 10, s 18A; Criminal Law Consolidation Act 1935 (SA), s 353, referred to.
Green v The Queen (2011) 244 CLR 462; Lowe v The Queen (1984) 154 CLR 606; Police v El-Zaibak (2004) 90 SASR 217; Postiglione v The Queen (1997) 189 CLR 295; R v Cetojevic (2005) 92 SASR 451; R v Di Maria (1996) 67 SASR 466; R v Kite (1971) 2 SASR 94; R v MacGowan (1986) 42 SASR 580; R v Mangelsdorf (1995) 66 SASR 60; R v McIvor (2002) 136 A Crim R 366; R v Perdikoyiannis [2011] SASCFC 82; Wakely v Police (2003) 229 LSJS 327, considered.

R v LAGANA
[2012] SASCFC 135
Court of Criminal Appeal: Gray, Vanstone and White JJ
GRAY J.

This is an appeal against sentence.
Introduction
The defendant and appellant, Luigi Lagana, pleaded guilty to the offence of manufacturing a large commercial quantity of a controlled drug contrary to section 33(1) of the Controlled Substances Act 1984 (SA). He also pleaded guilty to the further offence of manufacturing a controlled drug for sale contrary to section 33(3) of the Controlled Substances Act. The maximum penalty for the offence against section 33(1) is life imprisonment or $500,000.00, or both. The maximum penalty for the offence against section 33(3) is imprisonment for 10 years or $50,000.00, or both.
On 25 March 2010, police attended at a commercial premises at Salisbury Plains. Both the defendant and his co-offender, Kevin William Keegan, were in the process of extracting pseudoephedrine, an essential building block of methylamphetamine. This is the conduct the subject of the offence against section 33(1).
There was no dispute that from the pseudoephedrine present, at least 5.4 kilograms to 8.8 kilograms of methylamphetamine could be manufactured. It was not in dispute that the potential wholesale value of the methylamphetamine that could be produced from the pseudoephedrine present was between 1.2 and 2.6 million dollars. A street level value would have been much greater.
The police also located 105 grams of methylamphetamine. This was the remnant of previous methylamphetamine manufacture. It was the previous manufacture that was the subject of the charge against section 33(3). The particular amount that remained and was identified as the subject of the offence against section 33(3) was 70 grams. The defendant’s role in respect of this offending had been to prepare powder for the process of manufacture. As the 70 grams were the remnant of previous manufacture, it may be inferred that the amount manufactured would have been substantially in excess of that amount. Further, it may be inferred that it would have been of substantial value.
The defendant’s involvement in the manufacturing process was extensive and was intended to continue for some time. The defendant admitted that his involvement was for reward and that it was to be over an extended period. He admitted that he had been involved in the conduct the subject of both charges for about a week and was to be paid $1,000.00 a week. Further, the defendant must have expected to be involved for about 10 weeks in all as he expected to receive about $10,000.00 in total. Finally, the manufacturing operation was both sophisticated and substantial. On any view, it was a significant commercial operation.
The Judge determined to proceed pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and to impose a single penalty for both offences. The Judge identified a starting point of imprisonment for eight years. Taking into account the plea of guilty, six days in custody and six months on home detention bail, a head sentence of seven years was fixed. A non-parole period of five years was fixed on that head sentence.
The Appeal
Manifestly Excessive
Counsel for the defendant submitted that the sentence imposed was manifestly excessive. It was said that the defendant played a limited role in the manufacturing process, he stood to receive only limited financial gain and that, having regard to his personal antecedents and limited prior offending, a starting point of eight years imprisonment was far too high.
The Director of Public Prosecutions took issue with the above submission. It was his contention that the defendant played a key role in a very substantial operation in respect of a dangerous drug. On any view, it was said, that the operation was highly sophisticated. Attention was drawn to the value of methylamphetamine that could have been produced from the amount of pseudoephedrine that was found on the premises and the subject of the offence against section 33(1) of the Controlled Substances Act. As noted above, this had a value of between 1.2 and 2.6 million dollars with a street level value of a much greater amount. It was also pointed out that the earlier offending the subject of the charge against section 33(1) of the Controlled Substances Act was also offending in relation to a significant quantity of a dangerous drug.
In sentencing for an offence such as this, regard must be had to the extent of the enterprise and the quantity and nature of the drugs the subject of the charge. In Cetojevic, Sulan J relevantly observed:[1]
As has been said by this Court previously, in sentencing for dealing in drugs, general deterrence is a primary consideration. A sentencing judge will have regard to whether there was an ongoing commercial enterprise, the extent of that enterprise and the quantity and the nature of the drugs the subject of the charge. …
[Footnote omitted.]
[1] R v Cetojevic (2005) 92 SASR 451, [25].
This Court has emphasised that the production of controlled drugs is at the heart of the drug trade. Those who take part in such an enterprise must expect that heavy sentences will be imposed, with deterrence a significant factor. It is to be noted that the Judge, when sentencing the defendant, was explicit in imposing a sentence on the basis that he “knew full well that an illegal drug was being made”. Personal circumstances should be given much less weight than might be appropriate in other cases. These propositions have been the subject of repeated judicial comment. In Mangelsdorf, Doyle CJ remarked:[2]
… The court has referred time and again to the severe penalties imposed by s 32 of the Controlled Substances Act, in particular to the severe penalties imposed for commercial activity in relation to the drugs dealt with by s 32; and to the evident expectation of Parliament that the courts will impose penalties which will deter people from engaging in commercial activity with respect to these drugs. …
And in Di Maria, Doyle CJ observed:[3]
… The production of drugs of dependence and prohibited substances, as part of a commercial operation, is at the heart of the drug trade, along with importation. When mature men or women combine in such an enterprise, they must expect that the courts will impose heavy sentences in which deterrence is a significant factor. Personal circumstances must be given less weight in such cases than they might in other cases. This was a project involving grave criminality, and the sentences imposed were not excessive.
[2] R v Mangelsdorf (1995) 66 SASR 60, 63.
[3] R v Di Maria (1996) 67 SASR 466, 477.
Methylamphetamine is now to be regarded as one of the most harmful of drugs. Section 44(2) of the Controlled Substances Act obliges a sentencing Court to fix a penalty for offences relating to controlled drugs on the basis that all controlled drugs (other than cannabis, cannabis resin or cannabis oil) are categorised equally as very harmful.[4]
[4] Section 44(2) of the Controlled Substances Act 1984 (SA) provides:
In determining the penalty to be imposed in respect of a summary or indictable offence against Part 5 involving a controlled drug (other than cannabis, cannabis resin or cannabis oil), the degree of physical or other harm generally associated with the consumption of that particular type of controlled drug, as compared with other types of controlled drugs, is not a relevant consideration and the court must determine the penalty on the basis that controlled drugs are all categorised equally as very harmful.
The defendant is in his early forties and is single. He has no dependants and lives with his parents. He was educated to year 12 level and has a good employment record including work as a machine operator, a concrete worker and a labourer. The Judge noted that the global financial crisis caused some downturn in his income. It was in these circumstances that he took the opportunity to earn $1,000.00 per week over a planned ten week period with respect to the production of methylamphetamine the subject of the offending against section 33(1). The Judge sentenced the defendant on the basis that he was a mature man who knew full well that he was involving himself in serious criminal offending.
The defendant’s criminal antecedents extended over a period of some 14 years. Most of his offending related to motor vehicles, including a number of offences of driving under disqualification, leading to suspended terms of imprisonment and, ultimately, to an immediate term of imprisonment. In 2002, he was convicted and fined for the offence of producing cannabis.
As noted above, the defendant faced maximum terms of imprisonment of life and ten years in respect of his offending the subject of the appeal. He was involved in a substantial and sophisticated manufacturing operation. He was aware that he was engaging in serious criminal activity. He was involved with a view to reward. The drugs were dangerous. They were ultimately intended for street sale with the potential to cause great harm. To my mind, the notional starting sentence of eight years imprisonment was within the range of penalties that could be expected. Given the late plea and the strength of the prosecution case, the reduction of one year on account of that plea, time spent in custody and time spent on home detention bail was within the discretion of the sentencing Judge. The complaint that the sentence was manifestly excessive should be rejected.
Parity
At the time the defendant was sentenced, the sentencing Judge also sentenced his co-accused, Mr Keegan. Mr Keegan was also present at the time of the police attendance on 25 March 2010. He pleaded guilty to the same two offences. The premises were, however, in his control; a matter that the Judge regarded made his offending “somewhat more serious” than that of the defendant. Further, Mr Keegan was on parole for prior drug offending.
For the two offences committed by Mr Keegan, the sentencing Judge started at imprisonment for 10 years. That sentence was then reduced to seven years and made cumulative on the unexpired parole. The resulting head sentence was 10 years, three months and 10 days. A non-parole period of six years was fixed.
The defendant submitted on appeal that when regard is had to the finding by the Judge that the offending of Mr Keegan was more serious than that of the defendant and having regard to the fact that Mr Keegan’s offending occurred while on parole for cannabis offences, the Judge was obliged to differentiate between the defendant and Mr Keegan in a much more significant way. The head sentence starting at 10 years but for Mr Keegan’s pleas of guilty, being only two years more than that of the defendant, was of itself said to be a demonstrable error.
It was submitted that the defendant has a justifiable sense of grievance through the failure of the sentencing Judge to impose a sentence proportionate to the respective degrees of culpability of the defendant and his co-offender. It was said that this disparity between the sentences imposed should be rectified.
The parity principle recognises that, as between co-offenders, there should not be a marked disparity which gives rise to a “justifiable sense of grievance”.[5] It is one aspect of equal justice. Like cases ought to be treated alike.[6] The corollary of that policy is that unlike cases need not be treated in the same way.[7]
[5]    Lowe v The Queen (1984) 154 CLR 606, 613.
[6]    Lowe v The Queen (1984) 154 CLR 606, 610-611; Postiglione v The Queen (1997) 189 CLR 295, 301; Police v El-Zaibak (2004) 90 SASR 217, [12].
[7]    Lowe v The Queen (1984) 154 CLR 606 at 610-615; see also Police v El-Zaibak (2004) 90 SASR 217, [12].
The test of whether there is a “justifiable sense of grievance” is an objective one.[8] This Court’s approach to whether there is disparity calling for interference must take into account all of the circumstances of the offenders. As was observed in Postiglione:[9]
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. …
It is important that the sentence imposed upon the defendant should properly reflect the seriousness of the offence and, insofar as is relevant, his own personal circumstances. As was observed in Lowe:[10]
There is a passage in the judgment in Pecora v. The Queen where the Full Court of the Supreme Court of Victoria seems to say that manifest disparity in sentences may in itself be a ground for appellate interference. If that was their Honours’ view, I would respectfully depart from it, for it is wrong to think that it is “more important that sentences should be proportionate to one another than that they should be proportionate to guilt”: Reg. v. Robson and East, and see Reg. v. Coe; O’Malley v. French. In Reg. v. D’Ortenzio and Burns the Full Court rejected the view that an inappropriately lenient sentence imposed on one offender should be followed by a judge imposing sentence on a co-offender. It follows that an inappropriately lenient sentence imposed on one co-offender is not itself a ground for interfering with a more severe sentence imposed on another. Of course a marked disparity between the sentences imposed on co-offenders sharpens the interest of an appellate court, not because it establishes appealable error but because there must be an error if the lesser sentence is found to be appropriate and no sufficient ground exists for distinguishing between the co-offenders. I venture to repeat what I said in Lovelock v. The Queen, a case where comparable sentences were imposed on co-offenders whose respective circumstances warranted disparate sentences:
Where offenders whose circumstances are comparable receive disparate sentences, or where offenders whose circumstances are disparate receive comparable sentences, that circumstance is not sufficient by itself to warrant interference by an appellate court with the sentence imposed on any of the offenders. The court does not interfere with a sentence imposed on one offender merely because “a disparity has been created by another sentence which was far too lenient, and even though, as a consequence, the appellant may be left with a sense of injustice or grievance” (per Walters J. in O’Malley v. French; and see R. v. Steinberg). But if there be differentiating circumstances which favour the case of an appellant from the case of another offender who received a comparable sentence is respect of the same offence, the lack of disparity between the sentences bespeaks an error of some kind.
[Footnotes omitted.]
[8] Postiglione v The Queen (1997) 189 CLR 295, 323.
[9] Postiglione v The Queen (1997) 189 CLR 295, 301-302.
[10] Lowe v The Queen (1984) 154 CLR 606, 617-8; see also Police v El-Zaibak (2004) 90 SASR 217, [13].
It is also well settled, however, that there are instances where any sense of grievance experienced by a defendant may have to be tolerated in the public interest.[11] A defendant who has been treated justly has no legitimate ground of complaint. As Bray CJ, Hogarth and Sangster JJ observed in Kite:[12]
It has often been said, and we repeat it, that the mere fact that one convicted person has received too light a sentence is no reason why another convicted person should receive similar treatment. If there is excessive disparity, it does not follow that the one with the heavier sentence was treated too severely; it may be that the one with the lighter sentence was treated too leniently. Often in these cases the disparity should ideally be remedied by increasing the sentence of the one, rather than by reducing the sentence of the other. But we can only deal with the appeal before us. We have no power to interfere with the sentence imposed on [the appellant’s co-accused]. That sentence is not before us. If the applicant was treated justly he has no right to complain if someone else was treated more leniently than he deserved.
[11] The Queen v MacGowan (1986) 42 SASR 580, 583.
[12] R v Kite (1971) 2 SASR 94, 96.
I have reached the conclusion that when the antecedents of Mr Keegan are properly understood, it cannot be said that the defendant has established any justifiable sense of grievance. My reasons follow.
Mr Keegan had an unfortunate history which provides an explanation for his offending. The evidence before the sentencing Judge suggested that he has genuine prospects for rehabilitation. Mr Keegan was born in 1954 and was aged 58 years when sentenced. He was a law abiding citizen with no criminal record until August 2004.

Mr Keegan was born in Queensland before moving to South Australia with his wife in the 1970s. He remains married with the ongoing support of his partner. He joined the Metropolitan Fire Service and remained with the Service for nearly two decades.
In 1996, Mr Keegan sustained an injury at work. This led to a contested workers compensation claim in which he was investigated for fraud. These allegations were not ultimately pressed and his claim was accepted. The whole process caused significant stress, undermining his self-confidence. Mr Keegan suffered a nervous breakdown and became suicidal, withdrawn and depressed. It was while in this state that he met another man who introduced him to the use of marijuana and his involvement in the offending in 2001.
Mr Keegan’s offending in 2001 related to the drug cannabis and included his involvement in the sale of cannabis. He was sentenced to a term of imprisonment of eight years and 11 months. A non-parole period of four years and six months was fixed.
When Mr Keegan was released from custody in 2007, he entered into a business partnership. The business involved the building of huts for use in the mining industry. Mr Keegan borrowed money on the home that he and his wife jointly owned and contributed $300,000.00 into the business. Apparently his partner did not disclose the parlous financial state of the business. The business failed.
Creditors pursued Mr Keegan with respect to his guarantees as a director. He had a liability of about $600,000.00. He made attempts to address his financial difficulties, but these were unsuccessful. He was particularly distressed at the time as a consequence of the risk of the loss of the family home and of his mother’s death.
According to the reporting psychologist, Mr Broomhall, it was in this depressed state that he became involved in his present offending. The psychologist has expressed the view that Mr Keegan had a clinical profile marked by significant elevations of depression and anxiety. He presented as a person with an atypical profile of a career criminal. In the psychologist’s opinion, Mr Keegan’s offending occurred at a time when he was depressed and when his self-esteem was significantly undermined. In particular, at the time he engaged in his current criminal offending, he met the diagnostic criteria for a major depressive disorder, recurrent and chronic. It was further the opinion of the psychologist that, given appropriate ongoing psychological treatment, the risk of Mr Keegan offending again was in the low range.
When sentencing, the Judge made reference to this history and accepted that Mr Keegan exhibited contrition and remorse. The Judge then remarked:
You were in custody for almost one month immediately after your arrest and thereafter you were on home detention bail for about 13 months. I regard your involvement as somewhat more serious than Lagana’s because the premises were in your control. But for your pleas of guilty, time in custody and on home detention bail and other matters that were put to me, I would have sentenced you to imprisonment for 10 years.
For the two offences before me, the sentence of the court is that you be imprisoned for seven years, that sentence is to be served cumulatively on your unexpired balance of parole as at 25 March 2010, namely, three years three months and ten days. That makes a total head sentence of 10 years, three months and ten days.
In respect of that sentence I fix a non-parole period of six years. The head sentence and the non-parole period are to begin today.
The Judge, when fixing the head sentence, was aware that the sentence would be served cumulatively on the unexpired balance of parole of three years, three months and 10 days. The Judge was required to have regard to the principle of totality and to fix a sentence that would not be crushing. Bearing in mind the personal antecedents of Mr Keegan, the fact that he was law abiding until 2001 and the circumstance of his depressive illness, it may be inferred that the Judge did make an adjustment to the head sentence to be imposed on account of the principle of totality. It is also relevant to note that Mr Keegan spent a longer time in custody before sentence and a substantially longer time on home detention bail than the defendant.
The matters referred to above demonstrate that the circumstances of the defendant and Mr Keegan are in many respects markedly dissimilar. When those circumstances are given due consideration, I am not satisfied that the defendant has made out any basis for a lack of parity. I do not consider that he has established any justifiable sense of grievance.
Conclusion
I would dismiss this appeal.
VANSTONE J: I would dismiss this appeal. I agree with the reasons of White J.
WHITE J: The appellant was sentenced in the District Court for two offences: manufacturing a large commercial quantity of a controlled drug;[13] and manufacturing a controlled drug.[14] The drug involved in each case was methylamphetamine.
[13] Controlled Substances Act 1984 (SA), s 33(1).
[14] Controlled Substances Act 1984 (SA), s 33(3).
The Judge imposed a single sentence of imprisonment for seven years with a non-parole period of five years. Had it not been for the appellant’s pleas of guilty, the Judge would have imposed a sentence of eight years imprisonment.
The appellant appeals on the ground that the sentence imposed on him is manifestly excessive. However, on the appeal the appellant’s counsel indicated that his real complaint related to the disparity between the appellant’s sentence and that imposed on Mr Keegan, a co-offender.
In Mr Keegan’s case, the same District Court Judge took a starting point of imprisonment for 10 years and imposed a sentence of seven years for the same two offences. As Mr Keegan had to serve, in addition, a period of unexpired parole, the total period in custody in his case was 10 years, three months and 10 days. The Judge fixed a non-parole period of six years in respect of that total period.
The principle of parity in sentencing is that like cases should be treated alike.[15] Equal justice requires that the sentences imposed on co-offenders for the same offence should not have such a marked disparity as to give rise to “a justifiable sense of grievance”.[16]
[15] Lowe v The Queen (1984) 154 CLR 606 at 610-1; Postiglione v The Queen (1997) 189 CLR 295 at 301.
[16] Ibid.
Before addressing the application of the parity principle in the present case, it is appropriate to note relevant aspects of the offending. The police attended premises at Salisbury Plain on 25 March 2010 and found the appellant and Mr Keegan in the process of extracting pseudoephedrine, an essential ingredient of methylamphetamine. A large amount of pseudoephedrine had been extracted. The Judge accepted that between five and eight kilograms of methylamphetamine could have been manufactured using that pseudoephedrine. The potential wholesale value of methylamphetamine of that quantity was between $1.2 and $2.6 million. The activity of the appellant and Mr Keegan in extracting the pseudoephedrine constituted the offence of manufacturing a large commercial quantity of a controlled drug, for which the maximum penalty was a fine of $500,000 or imprisonment for life, or both.
On a search of the premises, the police located 105 grams of methylamphetamine remaining from a previous manufacture. That was the subject of the offence of manufacturing a controlled drug for which, in the appellant’s case, the maximum penalty was a fine of $50,000 or imprisonment for 10 years, or both. Although the police found 105 grams, the prosecution allegation in relation to the count of manufacturing a controlled drug related only to 70 grams. As the Director pointed out in his submissions, the fact that 70 grams was the remnant from a previous manufacture indicates that the actual amount manufactured must have been substantially more. On any view this was a large, sophisticated operation. It was also an inherently dangerous operation, both for those carrying it out and for those who had to dismantle it, as it involved a significant risk of explosion.
The appellant expected to be involved in the manufacture for a significant period, namely 10 weeks. He expected to be paid some $10,000 for his involvement.
Mr Keegan’s involvement was significant and there were aggravating circumstances present in his case. He had made his premises available for the purpose and, significantly, was serving a period of parole at the time.
The appellant was aged 39 at the time of the offending and single. He lived with his parents, both aged 65, and assisted them in a number of ways, having regard to their poor health. Although the appellant had a number of prior court appearances, the Judge did not regard his criminal record as being serious. He accepted that the appellant had a good employment record until the global financial crisis brought about a change in his fortunes. It was in that circumstance that the appellant agreed to participate in the drug operation. The Judge accepted that he was not the mastermind behind the operation.
Mr Keegan was older, being aged 55 at the time of the offence. He too had had a stable employment history and worked for nearly 20 years as a fire fighter with the South Australian Metropolitan Fire Service. Mr Keegan had a blemish-free history until 2001 when he committed a number of offences involving cannabis. He was sentenced for those offences in August 2004 to imprisonment for eight years and 11 months with a non-parole period of four years and six months. Hence, he was on parole at the time of the subject offences. That is a significant aggravating factor.[17]
[17] R v Perdikoyiannis [2011] SASCFC 82 at [89]-[90].
In sentencing the appellant and Mr Keegan the Judge had to have regard to the matters specified in s 44(1) of the Controlled Substances Act 1984 (SA). These included the nature and quantity of the drug involved, the commercial or other motives of the defendants and the financial gain which is likely to have accrued to them from the commission of the offences.
On any view, the offending in this case was very serious and severe sentences were inevitable.
The sentence imposed on Mr Keegan appears modest but this Court has not been asked to review it, and has not heard any submissions from Mr Keegan in defence of it. In these circumstances, it is preferable to proceed on the basis that the sentence, although perhaps lenient, is not unduly so.
I am prepared to assume, for the purposes of this appeal and without deciding affirmatively, that there is a relevant disparity in the sentences imposed on the appellant and Mr Keegan. However, I also consider that the sentence imposed on the appellant was appropriate, having regard to the seriousness of the offence and his circumstances. It could not have been very much lower without being regarded as unduly lenient.
The question is how the principle of parity is to be applied in these circumstances. Should this Court intervene on the basis of the assumed disparity if the result would be the imposition of an unduly lenient sentence on the appellant?
In addressing this question, it is to be remembered that this Court may intervene under s 353(4)(a) of the Criminal Law Consolidation Act 1935 (SA) only if it “thinks that a different sentence should have been passed”. The circumstances in which the Court could reach that state of mind in relation to a new sentence which would be unduly lenient are likely to be rare.
Satisfaction by an appellate court that a disparity between sentences exists does not, of itself, mean that the appeal must be allowed. As was observed by the majority in Green v The Queen:[18]
[T]he existence of a discretion, where unjustified disparity is shown, to reduce a co-offender’s sentence to one which is inadequate does not amount to an obligation to do so.[19]
[18] [2011] HCA 49; (2011) 244 CLR 462.
[19] Ibid at [33]; 476. See also Bell J at [105]; 496-7.
The effect of an unjustifiable disparity as enlivening a discretion, but not an obligation, in the appellate court to intervene, has been recognised in a number of the earlier authorities. See, for example, Lowe v The Queen;[20] R v MacGowan;[21] Wakely v Police[22] and R v McIvor.[23] However, as King CJ indicated in R v MacGowan,[24] in the absence of strong countervailing considerations the appellate court will interfere to eliminate marked disparities which cannot be justified in the circumstances of the case.
[20] (1984) 154 CLR 606 at 610 (Gibbs CJ, Wilson J agreeing).
[21] (1986) 42 SASR 580 at 583.
[22] [2003] SASC 295 at [36]; (2003) 229 LSJS 327 at 331.
[23] [2002] NSWCCA 490 at [10]; (2002) 136 A Crim R 366 at 371.
[24] (1986) 42 SASR 580 at 583.
In Green v The Queen,[25] the majority did not express a final view as to whether the discretion, when enlivened, could be exercised so as to reduce a sentence to an inadequate level. Their Honours did, however, endorse the existence of the discretion and said that an appellate court is not required to consider reducing a sentence to a level which would be an affront to the proper administration of justice.
[25] [2011] HCA 49; (2011) 244 CLR 462.
In the present case the discretion is to be exercised in the context of s 10(1)(k) of the Criminal Law (Sentencing) Act 1988 (SA) which requires a sentencing court to have regard to the need to ensure that the defendant is adequately punished for the offence. King CJ referred to this policy consideration in R v MacGowan[26] when he said:
The lower sentence may be so inadequate that to establish parity may be felt to compound the error in a way which would be unacceptable to the public conscience. The sense of grievance experienced by the offender may have to be tolerated in the public interest.[27]
[26] (1986) 42 SASR 580.
[27] Ibid at 583.
In the earlier case of R v Kite,[28] Bray CJ, Hogarth J and Sangster AJ spoke of the importance of not allowing interference on the grounds of disparity to result in the imposition of an inadequate sentence:
[T]he mere fact that one convicted person has received too light a sentence is no reason why another convicted person should receive similar treatment. If there is excessive disparity, it does not follow that the one with the heavier sentence was treated too severely; it may be that the one with the lighter sentence was treated too leniently. Often in these cases the disparity should ideally be remedied by increasing the sentence of the one, rather than by reducing the sentence of the other. But we can only deal with the appeal before us. We have no power to interfere with the sentence imposed on Beattie.That sentence is not before us. If the applicant was treated justly he has no right to complain if someone else was treated more leniently than he deserved.[29]
(Emphasis added)
Brennan J made a similar observation in Lowe v The Queen[30] when he said:
[I]t is wrong to think that it is “more important that sentences should be proportionate to one another than that they should be proportionate to guilt”.[31]
[28] (1971) 2 SASR 94.
[29] Ibid at 96.
[30] (1984) 154 CLR 606.
[31] Ibid at 617.
Finally, I note that in Green v The Queen Bell J referred to a number of decisions in New South Wales in which it had been held that the elimination of disparity is not justified if it requires the reduction of an appropriate sentence to the level of an inadequate sentence.[32] This, of course, does not of itself mean that a sentence may not be reduced to a level which is still within the range of appropriate sentences.[33]
[32] [2011] HCA 49 at [106]; (2011) 244 CLR 462 at 497-8.
[33] Cf Green v The Queen at [33]; 475-6.
In the present case, the appellant compares his sentence with the apparently modest sentence imposed on Mr Keegan. The sentence imposed on the appellant was appropriate and any reduction to it by reason of the assumed disparity could be only minor without making it unduly lenient. In these circumstances, I would not exercise the discretion, on the assumption that it is enlivened, so as to reduce the sentence imposed on the appellant.
I would dismiss the appeal.