Reardon v The Queen

[2012] NSWCCA 46

Court of Criminal Appeal

New South Wales

Case Title:	Reardon v R
Medium Neutral Citation:	[2012] NSWCCA 46
Hearing Date(s):	26 March 2012
Decision Date:	28 March 2012
Jurisdiction:
Before:	Beazley JA at 1 Harrison J at 2 McCallum J at 26
Decision:	1. Grant leave to appeal. 2. Dismiss the appeal.
Catchwords:	CRIMINAL LAW - appeal against sentence - parity with co-offenders - Drug Misuse and Trafficking Act 1985 s 24(2) - whether applicant has cause for a justifiable sense of grievance - no marked disparity between co-offenders - appeal dismissed
Legislation Cited:	Drug Misuse and Trafficking Act 1985
Cases Cited:	Lovoni v R [2011] NSWCCA 289 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Texts Cited:
Category:	Principal judgment
Parties:	Alan George Reardon (Applicant) Crown (Respondent)
Representation
- Counsel:	M Johnston (Applicant) S Bowers (Crown)
- Solicitors:	Baker Ryrie Rickards Titmarsh (Applicant) Solicitor for Public Prosecutions (Respondent)
File number(s):	2009/12087
Decision Under Appeal
- Court / Tribunal:
- Before:	Toner DCJ
- Date of Decision:	13 August 2010
- Citation:
- Court File Number(s)	2009/12087
Publication Restriction:

JUDGMENT

1. BEAZLEY JA: I agree with Harrison J.

2. HARRISON J: The applicant seeks leave to appeal against a sentence imposed upon him by Toner DCJ at Sydney on 13 August 2010. The sole ground of appeal is that the difference in the sentences imposed on his co-offenders gives rise to a justifiable sense of grievance on his part. For the reasons that follow I consider that leave to appeal should be granted but that the appeal should be dismissed.

3. The applicant pleaded guilty in the Local Court to four offences. This appeal is only concerned with the sentence imposed by his Honour with respect to a charge that he knowingly took part in the manufacture of 5.877kg of methylamphetamine, being not less than the large commercial quantity for such a drug, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985. That offence carries a maximum penalty of life imprisonment. The standard non-parole period is 15 years.

4. The applicant was sentenced to a non-parole period of 10 years and 9 months commencing on 8 January 2009 and expiring on 7 October 2019 with an additional term of 4 years and 3 months expiring on 7 January 2024. He was also sentenced on three additional counts. His total effective sentence for the s 24(2) offence was therefore 15 years. When his other sentences are taken into account the total effective sentence is 16 years with an effective non-parole period of 11 years. Taking into account a discount of 25 percent for an early plea of guilty, this suggests a starting point for the subject offence of 20 years.

5. The applicant contends that the sentence imposed by his Honour upon William Edmund Greenaway, and the sentences respectively imposed by Ashford DCJ on David McGreevy and Jake Callagher are so different to the sentence imposed upon him for the same offence that they give rise to a justifiable sense of grievance on his part.

6. Mr Greenaway was sentenced to a non-parole period of 11 years, 7 months and 15 days with an additional term of 3 years, 10 months and 15 days. That is an effective total sentence of 15 years and 6 months. Taking into account a discount of 20 percent for an early plea of guilty, this suggests a starting point of 19 years and 4.5 months.

7. Mr McGreevey was sentenced to a non-parole period of 5 years with an additional term of 2 years. That is an effective total sentence of 7 years. Taking into account a discount of 50 percent for an early plea of guilty and assistance to authorities, this suggests a starting point of 14 years.

8. Mr Callagher was sentenced to a non-parole period of 4 years and 6 months with an additional term of 1 year and 6 months. That is an effective total sentence of 6 years. Taking into account a discount of 50 percent for an early plea of guilty and assistance to authorities, this suggests a starting point of 12 years.

Parity with Mr Greenaway

1. His Honour described the applicant's role as follows:

   "The offender was central to each of the offences contained in the two indictments. He stood to gain financially from the manufacturing offence...Although the facts provide in essence only estimates as to the money that would have been generated, one merely has to point to the quantity of chemicals found by police when they executed the search warrant... and the sight [sic, 'site'] of the clandestine laboratory which was at the heart of Count 1, to realise the size of the operation. The estimated street value of the methylamphetamine, which could have been extracted ranged from $500,000 to $2.7 million, depending on the size of the pseudoephedrine tablets and the processing of the methylamphetamine extracted from them."

2. His Honour's remarks on sentence for the applicant expressly indicate that he took into account the principles of parity and that he perceived the role of the applicant and Mr Greenaway to be the same. He observed that there did not appear to be any relevant distinguishing features between the two men other than the application of different discounts for their pleas of guilty. His Honour's remarks on sentence include the following comments:

   "Further, as I have indicated in these reasons, I find that the role of the offender in relation to Counts 1 and 3 in the indictment for which he stands to be sentenced is the same as that of Greenaway and, accordingly, the sentence I propose to impose for each will be the same here to demonstrate principles of parity.

   There does not appear to be any relevant distinguishing feature between the two of them. They are about the same age. Each of them has a chequered criminal history. Each of them was motivated by greed and in each case there does not appear to be any matter that gives rise for a potential for finding special circumstances, other than as I have indicated in these reasons.

   I should also note here and importantly, in terms of the arithmetic outcome, that Greenaway received a discount of twenty percent for the utilitarian value of his plea in relation to what is, in effect, Count 1 here where as his co-offender will receive a twenty-five percent discount for the utilitarian value of his plea."

3. The applicant complains that despite these comments it is clear that the starting point for the sentences is different. He contends that this difference is "inexplicable" and that the starting point for both sentences should in these circumstances have been the same. The applicant submits that this difference is an arithmetic error, that it is significant, and that it should now be corrected in his favour.

4. Moreover, the applicant contends that there was in fact a basis upon which to distinguish between him and Mr Greenaway but that the difference favoured the applicant. His Honour made a finding that there was a prospect that the applicant would succumb to the early onset of dementia and that his time in prison would be correspondingly harder for him. The applicant contended that this should also have produced a starting point for his sentence that was lower than the starting point for Mr Greenaway's sentence. He submitted that this difference was clearly overlooked by the sentencing judge.

5. The Crown's response was to say that his Honour's quoted remarks were of a general nature and need to be understood in the context of other specific findings that he made. Accepting that both men were of approximately the same age, both had criminal histories and both were motivated by greed, his Honour's remarks suggest that he regarded the applicant's criminal history as far more extensive that that of Mr Greenaway. His Honour referred to Mr Greenaway's criminal history in the context of the subject offence as "insignificant, consisting mainly of traffic offences and some minor drug matters many years ago". His Honour also found special circumstances in the case of the applicant and in that way took account of his concerns about the possibility of him experiencing the early onset of dementia.

6. There was also a further point of distinction between the two men. Even though his Honour found that the applicant was remorseful, he noted his inability to appreciate the consequences of his criminal behaviour. That is to be compared with his Honour's remarks concerning Mr Greenaway in which he expressed the view that his remorse was genuine and unqualified and that he would not reoffend.

7. The Crown also emphasised, in my view correctly, that the individual sentences imposed on the applicant must inevitably have been influenced by considerations of totality and the degree of concurrence and accumulation. The applicant was being sentenced for four offences. Mr Greenaway was being sentenced for only two offences. His Honour ordered the sentences for Mr Greenaway's two offences to be served wholly concurrently.

8. When his Honour sentenced the applicant he said that "[t]he proper sentence for Count 1 is twenty years". When his Honour earlier sentenced Mr Greenaway he said, "[w]ithout any discount the sentence that I would have imposed would have been twenty years imprisonment on Count 1". It remains unexplained why, in the light of the latter remarks, Mr Greenaway was not sentenced to an effective total sentence of 16 years instead of 15 years and 6 months. The so-called error therefore appears in the calculation of Mr Greenaway's sentence rather than in his Honour's application of principles of parity. That error would not in my opinion give rise in this case to a person in the position of the applicant having a justifiable sense of grievance. On the contrary, it may well have theoretically tempted a Crown appeal in Mr Greenaway's case to adjust his sentence to take account of the "error".

9. More fundamentally, however, the difference in the sentences imposed is not such as in my opinion to attract this Court's intervention. There is no single correct sentence: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. Moreover, the authorities make it clear that differences of a relatively small or insignificant degree will not attract the operation of the parity principles concerned. The sentencing judge was required to sentence the applicant for four offences, whereas he was required to sentence Mr Greenaway for two offences. Having regard to principles of totality, accumulation and concurrence, it is not remarkable that an instinctive synthesis approach to the sentencing exercise would produce sentences that differed in some small degree. In this respect I am mindful of the comments of his Honour Blanch J in Lovoni v R [2011] NSWCCA 289 at [24] as follows:

   "[24] It is evident from these authorities that a simple disparity is not enough and in order to attract appellate intervention it must be categorised as a manifest discrepancy in the sense of a difference that is clearly excessive..."

10. We know from Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 and cases that have followed it that mere disparity between the sentences imposed on co-offenders is not of itself a ground for the intervention of an appellate court. In the present case the only so-called disparity to which the applicant can point derives from the assumed or notional starting point for the two sentences. If the calculation is applied to the applicant's sentence on the subject count it produces an effective head sentence for him of approximately 14 years 6 months and 10 days. In the present case the disparity between that term, and the actual effective head sentence of 15 years that the applicant received, is not sufficient to attract intervention by this Court.

11. I do not accept that the applicant is entitled to have a justifiable sense of grievance by reason of the sentence imposed by his Honour upon the applicant's co-offender Mr Greenaway.

Parity with Mr Callagher and Mr McGreevy

1. Her Honour Ashford DCJ sentenced Mr Callagher and Mr McGreevey for exactly the same offence. They were co-offenders with the applicant. The notional starting points for their sentences are 12 and 14 years respectively. The applicant contended that this was in each case a significant difference that was not adequately explained by relevant material differences between these offenders and the applicant.

2. Her Honour did not expressly compare the relative positions of Mr Callagher and Mr McGreevey to the applicant although her Honour's remarks do attempt to make an assessment of the objective seriousness of the offences of Mr Callagher and Mr McGreevey. Her Honour found that the objective seriousness of Mr Callagher's offence was below the mid-range and she accepted the submission that he was to some extent "something of a gofer or labourer". Her Honour noted the Crown's concession that his involvement was more minor in that he was basically assisting Mr McGreevey. Her Honour found that "it was clear that [Mr Callagher] received no financial gain from his part in the operation but did receive some drugs". Mr Callagher was 29 years old with no prior criminal history.

3. In contrast her Honour found that Mr McGreevey "played a greater role in the offence than Callagher". Mr McGreevey's residence was identified as the premises where an active clandestine drug manufacturing laboratory was conducted. He admitted that Mr Greenaway had offered him $5,000 for the manufacturing process to take place at his residence and also that he assisted in the assembly of the glassware and apparatus, brought a quantity of pseudoephedrine to the premises and conducted an extraction process. Due to a lung infection he was unable to complete the process and Mr Callagher assisted him to do so. Her Honour found that the objective seriousness of the offence fell below the mid-range. Mr McGreevey was 52 years at the time of the offence. He had prior driving offences and in 1996 he had received a suspended sentence for his role in knowingly taking part in supplying a commercial quantity of a prohibited drug.

4. His Honour did not in terms express a view about the objective seriousness of the applicant's offence on this count. He found that the applicant's role "was central" to the offence but made no specific findings about that role other than that it was indistinguishable from Mr Greenaway. The applicant submits that Mr McGreevey's role was also central: each performed different roles but both were critical to the enterprise. He contended that if one put aside the discount for assistance the extent to which the roles of the applicant and Mr McGreevey differed did not justify a discrepancy of six years in the starting point for their respective sentences.

5. I disagree. Mr McGreevey and Mr Callagher played far less significant roles than the applicant. When sentencing Mr Greenaway his Honour remarked that "each ...were relatively minor participants". This is reflected quite dramatically in what each stood to gain from the activity. The applicant was in line for what may have been potentially a very considerable sum of money. By way of contrast, Mr McGreevey was to be paid $5,000 and Mr Callagher was not to be paid in money at all. His Honour Toner DCJ had a copy of her Honour Ashford DCJ's remarks on sentence and would have been aware of the way that her Honour characterised the respective roles of the co-offenders. It is apparent that he did not take issue with her Honour's approach and by inference adopted her findings with respect to Mr McGreevey and Mr Callagher. There were also differences in the criminal histories of the applicant and these co-offenders that did not favour the applicant.

Conclusion

1. The differences in the sentences of the applicant and his co-offenders do not involve a marked disparity giving rise to a justifiable sense of grievance. I do not consider that a reasonable person looking at the circumstances in which each sentence was determined would regard the applicant's stated grievance as justified.

2. McCALLUM J: I agree with Harrison J.

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