Regina v Williams; Regina v Miers

[2002] NSWCCA 427

CITATION:	Regina v Williams; Regina v Miers [2002] NSWCCA 427
FILE NUMBER(S):	CCA 60065/02; 60049/02
HEARING DATE(S):	25 September 2002
JUDGMENT DATE:	18 October 2002
PARTIES :	Regina v Darren George Williams Regina v Anthony Neville Miers
JUDGMENT OF:	Buddin J at 57; Smart AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	1/51/0114 1/51/0125
LOWER COURT JUDICIAL OFFICER :	Ducker DCJ

COUNSEL :	(A) A P Cook (Williams) (A) S Kluss (Miers) (C) R Hulme
SOLICITORS:	(A) D J Humphreys (Williams) (A) James Fuggle (Miers) (C) S E O'Connor
CATCHWORDS:	Sentencing - parity - extent of reduction which should be made - co-offenders sentences on different factual bases.
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	The Queen v Hoar (1981) 148 CLR R v Cameron [2002] HCA 6 R v Thomson (2000) 49 NSWLR 383 R v Sharma [2002] NSWCCA 142 R v Cartwright (1989) 17 NSWLR 243 Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 295 R v Draper NSWCCA 12 December 1996 R v Diamond NSWCCA 18 February 1993 R v Hopper NSWCCA 19 November 1998 R v Glasby [2000] NSWCCA 83 R v Reid [2000] NSWCCA 166
DECISION:	See para 56

IN THE COURT OF
CRIMINAL APPEAL

60065/02

60049/02

BUDDIN J

SMART AJ

Friday, 18 October 2002

Regina v DARREN GEORGE WILLIAMS

Regina v ANTHONY NEVILLE MIERS

JUDGMENT

1. SMART AJ: Darren George Williams seeks leave to appeal against a sentence of imprisonment of 3 years with a non-parole period of 2 years for conspiracy to steal a large quantity of computer, phone and electronic equipment, the property of Tech Pacific Pty Ltd. Its estimated value was $400,000. His co-conspirator, Anthony Neville Miers, seeks leave to appeal against a sentence of imprisonment for 2 years 5 months 12 days with a non-parole period of 16 months in respect of the same offence. The judge took into account 3 days pre-sentence custody served by Mr Miers.

2. Messrs Williams and Miers pleaded guilty before the magistrate and were committed for sentence.

The Conspiracy and Its Execution

3. One version of the beginning of the conspiracy is set out in the record of interview between the police and Mr Williams on 19 February 2001, he having previously given false accounts of the circumstances. That was the version used by Ducker DCJ to sentence Mr Williams. Mr Williams, Peter Gillespie and Michael Gillespie were friends. Each had been involved in the transport of goods between Sydney and Brisbane. Peter Gillespie told Mr Williams he had a few financial problems and asked Mr Williams to help him rob a truck. Some days before 31 October 2000 Mr Williams, Peter Gillespie and Michael Gillespie gathered at the house of Michael Gillespie and planned how they would rob the semi-trailer on 31 October 2000 on its journey from Sydney to Brisbane carrying a valuable load. The truck was to stop at a nominated point and its cargo was to be off-loaded onto other vehicles which were to be driven away by the men recruited at Mr Williams' request. It was Mr Williams' responsibility to organise the vehicles and the manpower so that the cargo could be off-loaded. Mr Williams spoke to Mr Miers and enlisted his support. Mr Miers was keen on the project and said that he could get two boys (men) to help Mr Williams get the cargo off the truck.

4. Mr Williams said that he spoke to Arthur Coleas, a friend and close neighbour, and asked him if he could rent a truck. He had a licence to drive a large truck but Mr Williams did not. Mr Williams said that he then spoke to Greg Rangihaeata and asked him if he could drive the truck. Mr Williams said he spoke to Dayle Rutter, a friend, who offered to come and help as another driver, if needed. Mr Williams stated that Coleas dropped off the rented truck at his property. On the night of 30 October 2000 Mr Williams, Rangihaeata and Rutter set off in that rented truck and travelled via the back roads. They were supposed to meet up with Michael Gillespie at a point about 20 kilometres south of Grafton. Mr Williams said that Rangihaeata and Rutter got lost. Because of this they had used a lot of fuel. They had also driven past the turn off. They went to the Shell garage at Grafton. Michael Gillespie, who was there with the semi-trailer he was driving, told Mr Williams that he would pull up down the road somewhere, that is, as he headed north along the Pacific Highway. Sometime later Michael Gillespie pulled his semi-trailer off the Highway into a rest area south of Woodburn. The truck in which Mr Williams was travelling pulled up beside the truck being driven by Michael Gillespie. There was a second rented truck which had been arranged. The goods on the semi-trailer were transferred to the larger pantechnicon by Mr Williams and the other men who had been recruited.

5. An examination of the records of the "Safety Cam" located at Harwood, about 16 kilometres south of the area where Gillespie stopped, showed that the semi-trailer driven by Gillespie passed through Harwood at 5.12.22 am on 31 October 2000. The "Safety Cam" consists of a camera with a time recorder set up to monitor the movement of heavy vehicles passing through sites on major highways. Its primary use is to ensure that the drivers of semi-trailers take rest periods and otherwise comply with the law.

6. The records also showed that the first of two rigid pantech-type trucks passed the checkpoint at 5.12.47 am some 25 seconds behind Gillespie and the second at 5.15.02 am. The first pantechnicon was that rented by Coleas from the Cooper Plains Depot of Delta Rental on 30 October 2000. The second Pantechnicon had also been rented that day from Delta Rental but from its Underwood Depot by Wayne Nixon Smith, a close associate of Mr Miers.

7. The records of the Tweed Heads "Safety Cam" showed that the two pantechnicons passed that checkpoint at 8.07.06 am and 8.07.08 am respectively, that is some 2 hours 45 to 50 minutes later. The average time taken to travel between these two safety cam points for vehicles of this nature is 2 hours 5 minutes.

8. About 8.30 am Michael Gillespie made contact with other truck drivers by way of his CB radio calling for assistance. The police were contacted and travelled to the vicinity of a rest area about 16 kilometres south of Woodburn. There they located Gillespie in the cabin of his semi-trailer, bound with cable ties. He was released by the police officers and taken to Woodburn Police Station where he provided a statement in which he alleged that he had been held up and the cargo in the semi-trailer stolen. He told the police that after he had passed some road works he was followed by what he believed to be an unmarked police car, displaying a flashing blue light which caused him to pull over into the rest area.

9. Gillespie said that believing this to be a police car he busied himself by looking for his log book as two men whom he believed to be police officers approached the semi-trailer. Gillespie claimed that one of the men had mounted the cab step and, whilst holding a semi-automatic to Gillespie's head said, "Live or die, your choice" to which Gillespie said he replied, "Live." He was then ordered to lie down and face towards the rear of the cabin. His hands and feet were tied with cable ties. The person wielding the weapon was wearing a wide brimmed hat and a novelty mask to disguise his appearance. Gillespie also told the police that he heard the sound of two trucks at the rear of the semi-trailer and that cargo was removed from the semi-trailer into the pantechnicons. Gillespie stated that he was ordered to remain in the cab. He heard the trucks drive off. He said that about three hours later he managed to alert other truck drivers by way of his CB radio and that the police, having been notified by them, had then come.

10. Darren Williams had been dismissed from his position as Freight Supervisor of Allied Express at Rocklea, which was the depot to which the stolen goods had been consigned. Both Michael and Peter Gillespie worked for the transport company which was responsible for the transport of the cargo.

11. Just under $20,000 of the stolen property was recovered. It is apparent that one or more persons has made a large amount of money out of the stolen property.

D G Williams

12. The judge noted that in his first and second police interviews Mr Williams told a concocted story and denied any involvement in the "so-called robbery".

13. The judge found, on ample material, that Mr Williams was a major figure in the conspiracy and one of the principals. He agreed with the Gillespie brothers that the crime should be committed; he enlisted Miers and Coleas in the conspiracy. Williams allowed his mother's de facto (Rangihaeata) to become enmeshed in the conspiracy and his friend Rutter to take considerable risks and expose himself to the commission of a crime that could lead to incarceration. Mr Williams' role was pivotal to the whole operation. The judge found that Mr Williams "came clean" and later pleaded guilty when he realised that if he did not confess and plead guilty he would be found guilty of the subject charge.

14. The judge noted that Mr Williams had given assistance to the authorities and offered to give evidence against the Gillespie brothers. The judge recorded that that would greatly strengthen the Crown case against Peter Gillespie.

15. Mr Williams was born on 9 March 1970 in New Zealand and spent much of his life there. In 1992 he committed some relatively minor dishonesty offences. In 1995 he was convicted of some serious driving offences and in 1996 of common assault. The judge correctly held that his record did not disentitle him to leniency.

16. Mr Williams had endured much hardship in his life. When a child he suffered very severe burns to his lower legs and had to remain in hospital for the best part of three years during which time he had to learn to walk again. He received numerous grafts to his body and that was very painful. For the following six years he had outpatient treatment for skin grafts to his body. He has been left with some residual disability. He needs treatment for his skin problems and may need a further graft to a foot.

17. Whilst Mr Williams was in New Zealand an eight year old child of his died from cystic fibrosis. Mr Williams had been married to his wife for three years and at the date of sentencing their son was four months old. Mr Williams said that the relationship between himself and his wife had been badly damaged by his involvement in this crime.

18. Because of his injuries, hospitalisation and treatment Mr Williams' education was affected and he has difficulty reading and writing. His wife tried to help him to improve. Despite all his difficulties he has been in employment for most of his working life. The judge described him as hardworking and diligent. The Probation and Parole officer assessed Mr Williams as genuinely remorseful and there was much to support that assessment. A disquieting feature of the case was the absence of material as to what happened to the stolen goods.

19. The judge found special circumstances in Mr Williams' need of a period of not less than a year on parole after his release and in this being his first sentence of imprisonment. The judge said:

"… the starting point has to be close to the maximum sentence for larceny. The amount of property was quite substantial and the bulk of this has not been recovered. Regardless of how much or how little he may have got out of it in the end result, the offence would never have been committed had he not participated."

20. The judge took a starting point of four and a half years. That presumably embraces the strong subjective features of Mr Williams other than those for which the judge gave a discount. He gave an overall discount of one-third for the plea of guilty, the assistance Mr Williams had already given and the undertaking to give evidence at the trial of the Gillespie brothers. The judge therefore reduced the sentence to three years in recognition of those matters and the other matters he had mentioned and fixed a non-parole period of two years.

21. Mr Williams correctly submitted that the judge accepted that there is a general understanding that except in exceptional cases the sentence in respect of conspiracy should not exceed the sentence which is prescribed by law for the offence with which the conspiracy was concerned. See The Queen v Hoar (1981) 148 CLR 32 at 38. The judge held that the sentence in the present case should not be increased beyond the statutory limit of five years for a sentence of larceny under s.117 of the Crimes Act 1900. That was a generous finding having regard to the conspiracy he had organised and the number of people he had involved directly and indirectly. There was material on which the judge could have held that this was an exceptional case

22. Mr Williams submitted that:

(a) the judge should have given him the full benefit of his confession and plea reflecting his contrition, his willingness to facilitate the course of justice, R v Cameron [2002] HCA 6 and the plea's utilitarian aspects, R v Thomson (2000) 49 NSWLR 383 and R v Sharma [2002] NSWCCA 142.

(b) the judge was also required by s.23 of the Crimes (Sentencing Procedure) Act 1999 to make a significant allowance for past and future assistance and the hardships and risks associated with being an informer, R v Cartwright (1989) 17 NSWLR 243. As this was a matter where the discount for the guilty plea should have been of the order of 25 per cent to 30 per cent (Thomson at par [160] to [162]) insufficient allowance was made for the past and future assistance.

(c) a reasonably compelling subjective case had been made out. His disability resulting from his severe burns will make his time in custody more onerous. A lesser sentence was warranted.

(d) principles of parity required a lesser sentence be imposed. Michael Gillespie had initially pleaded guilty at committal, but later reversed his plea. Ducker DCJ directed that the matter be the subject of a trial. Later when Michael Gillespie pleaded guilty before Hosking DCJ that judge sentenced him to 13 months imprisonment with a non-parole period of 6 months. Gillespie's role was at least as significant as that of the applicant. The disparity should be corrected, Lowe v The Queen (1984) 154 CLR 606. There must be due proportion between the sentences imposed on Messrs Gillespie and Williams. Mr Williams received a non-parole period four times that received by Mr Gillespie. This is too great a difference.

23. The Crown submitted:

(a) This matter was at the upper end of the scale of gravity for the crime of conspiracy to commit larceny.

(b) No lesser sentence was warranted.

(c) Having regard to the de facto constraining limit of 5 years, care had to be taken when considering Mr Williams' sentence that his subjective features and the various discounts to which he was entitled did not result in a sentence which did not sufficiently reflect the objective seriousness of the offence. The correct balance had to be struck and the judge had done so.

(d) A combined quantification of discount for a plea of guilty and assistance to authorities is appropriate. A tallying up of discrete discounts, or applying discount upon discount can lead to a manifestly inadequate sentence. As to the discount for assistance to the authorities, there is the overriding requirement that the sentence be not unreasonably disproportionate to the nature and circumstances of the offence.

(e) As Michael Gillespie was sentenced on a markedly different factual basis from Mr Williams' account of the role of Michael Gillespie, parity recedes in significance.

24. This Court was informed that the Crown did not proceed against Peter Gillespie. Its case was not strong enough. Amongst other matters, the Crown was not prepared to rely substantially on the evidence of an accomplice (Mr Williams). He had given different versions of events.

25. The conspiracy in the present case was a very serious one. It involved an appreciable number of people, many of whom were co-opted by Mr Williams either directly or indirectly, much preparation and planning, significant deception of the authorities and a large quantity of goods, the bulk of which has not been recovered. On the basis of its objective seriousness the offence warranted the maximum penalty. While there were compelling subjective features, not including the matters for which the judge gave a discount, the objective seriousness of the offence and of the role of Mr Williams precluded a starting point of less than four years and six months. Further, the objective seriousness of the offence and of the role of Mr Williams precluded the granting of a greater discount than the one the judge gave for the factors which he mentioned. Put simply, a sentence of less than three years would not adequately reflect Mr Williams' criminality. The fixing of a non-parole period of two years is not open to criticism.

26. The challenge to the sentence based on lack of parity and proportionality must now be considered. Michael Gillespie, having reversed his plea of guilty at committal when he appeared before Ducker DCJ, pleaded guilty before Hosking DCJ on 22 June 2002, that is, after he had seen what had happened to his co-conspirators and the outcome of Coleas' appeal to this Court on 23 May 2002. Coleas' sentence was reduced from 16 months with a non-parole period of 9 months to one of 13 months with a non-parole period of 6 months. Gillespie was sentenced on 3 July 2002. Hosking DCJ, after narrating the spurious robbery and the false story told by Gillespie, commented that the idea of the conspiracy was to make it appear that Gillespie had his truck hijacked and was subjected to a robbery by some unknown people. Hosking DCJ had regard to the reasons of Ducker DCJ and noted the outcome of Coleas' appeal to this Court and held, "clearly, the present sentence of Gillespie falls to be determined at least in the main, by considerations of sentencing parity." Hosking DCJ said that he was content to accept the Crown's appropriate and fair concession that Gillespie's criminality was broadly comparable to that of Coleas.

27. Hosking DCJ found that Gillespie took part in the conspiracy with some reluctance. That judge proceeded on the basis that:

(a) Gillespie was pressured by Williams to take part in the conspiracy.

(b) Williams was a frightening man capable of issuing threats and hassling Gillespie's family.

(c) Coleas was frightened of Williams.

(d) The Crown accepted that the robbery appeared to have been planned as from at least August 2000 and that Gillespie was not told of this plan until the Friday before it was executed. Thus Gillespie was the last to be informed of the robbery and was not intended at the beginning to be a conspirator.

(e) Gillespie's will was overborne by pressure applied to him, particularly by Williams.

(f) Gillespie was genuinely remorseful and had pleaded guilty.

28. This Court asked what material had been placed before Hosking DCJ. Counsel for Williams, and counsel for Miers, accepted this oral summary by counsel for the Crown:

"In these proceedings against Michael John Gillespie the case was put forward on the basis of Michael John Gillespie's admissions to police being accepted as accurate. That included that he became involved late in the piece. Darren Williams was involved and Peter Gillespie was involved at an earlier time.

Before Judge Hosking there was tendered by the Crown a statement of facts, which appeared generally to adopt the admissions that had been made by Michael Gillespie. There were the statements and the interviews of Michael Gillespie, as well as the remarks of Judge Ducker.

On behalf of the offender Michael Gillespie, there was tendered the statements or interviews of a number of co-offenders but only insofar as they supported Michael Gillespie's claimed role, which was not being disputed by the Crown.

In short, nothing from the applicant Williams was put before Judge Hosking. The Crown's position that he played a lesser role than that of Darren Williams is confirmed in the remarks of Judge Hosking, when he referred to the Crown's concession that the criminality of Michael Gillespie was broadly comparable to that of Mr Coleas."

29. On the material before this Court it is difficult to accept that the criminality of Gillespie was broadly akin to that of Coleas and that Gillespie should receive the same sentence and non-parole period as Coleas. The position with Coleas' child, which primarily led to the low non-parole period was exceptional. Gillespie drove the loaded truck from Sydney. He did not have to do so. He did not have to stop the truck and allow it to be unloaded. Nor did he have to tell the police a false story. Both Hosking DCJ and the Crown appear to have misunderstood the decision in Coleas and misapplied it.

30. Michael Gillespie was not only an indispensable part of the conspiracy but vital to its execution. Michael Gillespie was helping his brother Peter.

31. Ducker DCJ said of Williams:

"He does appear to be a fairly formidable and intimidating looking man. Others have referred to being frightened of him, but there is no evidence whatsoever that he has in fact caused any harm to any of his fellow co-offenders."

32. Michael Gillespie was sentenced on a factual basis which was different in significant respects from that on which Mr Williams was sentenced. It was an astute move to ensure that Messrs Gillespie and Williams were sentenced on different occasions. While Mr Williams was cross-examined by counsel for some of the co-offenders he was not cross-examined on what Gillespie had said of him nor by the Crown. Questions of disparity are not to be resolved by reference to the version of the facts given by Mr Williams. The Crown is often faced with co-accused giving different versions of the facts. One accused's version may exculpate himself to a degree and inculpate his co-accused.

33. This Court was reminded that the Crown had not appealed against the sentence imposed on Michael Gillespie. Realistically it could not have done so once it accepted that the criminality of Michael Gillespie was broadly akin to that of Coleas. That was a mistaken view of the evidence given what Michael Gillespie did and about which there was no dispute.

34. On the evidence before Ducker DCJ the findings of Hosking DCJ as to the role of Michael Gillespie were incorrect. However, on the materials before him and the concessions by the Crown Hosking DCJ was entitled to take a different view of the role of Gillespie.

35. There has to be due proportionality in sentencing: Postiglione v The Queen (1997) 189 CLR 295. This Court has to proceed on the basis of what the evidence established against Williams. His admissions were damaging. Hosking DCJ proceeded on the basis of what the evidence before him established as against Michael Gillespie including the case the Crown was prepared to make against him. This Court should not proceed on the basis of what Williams said was the role, and hence the criminality of Michael Gillespie. The Crown was not prepared to embrace that. The evidence in Michael Gillespie's case did suggest that Williams and Peter Gillespie had been in the conspiracy since August 2000. If this was correct the evidence of Williams as to the formation and implementation of the conspiracy was incorrect in parts.

36. However, the evidence in Michael Gillespie's case did establish that he was the person responsible for the safe transport of the valuable goods, that he drove the loaded truck from Sydney, that he stopped and allowed the goods to be loaded into another vehicle, that he created the impression of a hijacking and robbery and that he told the police a false story as to what had happened. He had joined in to help his brother, Peter. Michael Gillespie's co-operation and actions were the key to the implementation of the conspiracy. Reluctant or not he was a major conspirator. Viewed objectively the sentence received by Gillespie appears disproportionately light to that received by Mr Williams.

37. In R v Yaghi [2002] NSWCCA 396 Wood CJ at CL (with whom I agreed) said:

"There is no obligation to follow the principle of parity where that would result in a sentence which would be an affront to the proper administration of justice: R v Draper NSWCCA 12 December 1996, R v Diamond NSWCCA 18 February 1993 and R v Hopper NSWCCA 19 November 1998 or where the difference between the offenders justifies the different result: R v Glasby [2000] NSWCCA 83 and R v Reid [2000] NSWCCA 166."

38. After referring to Lowe v The Queen (1984) 154 CLR 606 and acknowledging that the Court may have to intervene where the disparity leads to a legitimate sense of grievance even though the substituted sentence is less than that which is otherwise appropriate, Wood CJ at CL added:

"The Court will not do so however, where the sentence passed upon the co-offender is inadequate to the point where any sense of grievance engendered by it, can no longer be regarded as a legitimate one."

39. In Postiglione v The Queen (supra) at 301-302, Dawson and Gaudron JJ said, omitting citations:

"The parity principle … 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. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a 'justifiable sense of grievance'. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

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"

40. That passage sets out the governing principles. Although expressed in different terms the judgment of Kirby J is to the same effect: see pp 335 et seq.

41. The very serious offence of Mr Williams merits a sentence of not less than three years. Despite the different factual matrix found in relation to Messrs Williams and Gillespie, I am of the opinion that, having regard to what Gillespie did, as earlier summarised, Mr Williams has a justifiable sense of grievance at the disparity between their sentences as deeply involved co-conspirators and some adjustment should be made to Mr Williams' sentence, but not very much. Any sentence of less than 2 years 6 months and any non-parole period of less than 18 months would be an affront to the proper administration of justice. The proposed course gives effect to the principle of due proportionality while recognizing the gravity of the offence. The application of the principle of due proportionality is the sole reason for limited intervention. I have not overlooked the contents of Mr Williams' affidavit of 23 September 2002. They augur well for his rehabilitation.

A J MIERS

42. Mr Miers, who was told of the conspiracy by Williams enthusiastically joined in it and promoted it. He agreed to obtain two boys (men) to help Williams transfer the stolen property from the vehicle driven by Michael Gillespie to those under the control of the conspirators. Mr Miers also played a significant role in the disposal of the stolen goods. When first interviewed by the police he told a large number of lies. A little later that day he sought a further interview with the police in which he made a number of admissions but did not tell the whole truth.

43. Ducker DCJ found that Mr Miers was an active inner member of the conspiracy and that his enthusiasm encouraged the carrying out of the objects of the conspiracy. The judge described him as "a very savvy worldly person who would have a good idea of what was going on." His involvement was not essential but very helpful. As the judge found Mr Miers was astute enough not to himself go anywhere near where the theft was taking place and in that way to insulate himself should things go wrong. He knew what was going to be done and stood ready to benefit from it. He sold a number of items and kept certain others.

44. Mr Miers was born on 1 August 1962. Apart from some driving offences (1980 and 1998) and three offences in 1990 of making false and misleading statement in connection with obtaining benefit and an offence of obtaining a benefit not payable, for which he was placed on a suspended sentence for 5 months and ordered to serve 240 hours community service, he had no convictions. His record did not disentitle him to leniency.

45. The judge said that Mr Miers appears to have been well regarded by those who knew him, to have been generous with his time and in other ways and to have been a devoted family man. There were a number of testimonials as to his good character.

46. Mr Miers was diagnosed a relatively short time before the events the subject of the offence as suffering from haemochromatosis, a serious disease which requires regular bleeding. He believed that he was likely to die in the near future as a result of this disease. The judge accepted that this condition was likely to have a marked effect on his longevity. While the judge did not accept Mr Miers as truthful he was prepared to accept his evidence as to his disease and that because he believed his time was running out he wanted to take his two youngest children to Disneyland. He needed money to do so. Because of his dysfunctional upbringing he was very protective of his own children. The judge accepted that any sentence of imprisonment would fall heavily on Mr Miers due to his illness and the inevitable separation from his children and his wife.

47. The judge said:

"I have assessed as an appropriate sentence, prior to any reduction therefrom, as three years six months. I would assess his claim to leniency, because of his plea of guilty; his past record; his illness; the circumstances which created the motivation for the crime; and any help he may conceivably be able to provide by giving evidence. It is impossible, in the circumstances here, to isolate the individual percentages for those things. I can indicate that the allowance for giving evidence is a relatively small component, no more than 10 percent. I reduce the three years and six months by 30 percent, to two years five months and twelve days."

48. In fixing a non-parole period of 16 months the judge found that there were special circumstances, namely, his need for counselling and supervision, his ill health and this being his first custodial sentence.

49. Mr Miers submitted that he had a legitimate sense of grievance when comparing the sentence imposed on Coleas. Towards the close of argument in this Court it was also submitted, in effect, that Mr Miers had a legitimate sense of grievance when comparing the sentence imposed on Gillespie.

50. I shall not repeat the applicable principles summarised earlier.

51. The judge was entitled to take the view which he did that Coleas' involvement was less than that of Messrs Williams and Miers. Mr Miers was fully seized of the subject matter of the conspiracy and was an enthusiastic promoter of the conspiracy. The judge found that Mr Miers was much shrewder and smarter than most of the other people involved and "a very savvy worldly person" but not a truthful man. He arranged for others to transfer the load.

52. Coleas was neither worldly wise nor very bright. Coleas was played for a fool by Williams and Peter Gillespie. Coleas' virtue was that he was a hard worker. There is no doubt of Mr Miers' greater criminality, particularly when judged by his knowledge, his intent and enthusiastic promotion of the conspiracy. Unlike Mr Miers, Coleas did not draw others into the conspiracy and prevail upon them to join in the commission of a serious offence. The judge correctly held that the criminality of Mr Miers was significantly higher than that of Coleas.

53. The complaint was made that there was too great a discrepancy between the discounts given to Coleas and Mr Miers that is 30 per cent and 45 per cent. The judge said that Mr Miers had indicated that he may be able to give some evidence at the trial of Peter Gillespie, should one take place. That was very doubtful. The judge said that the allowance for giving evidence was a relatively small component, no more than 10 per cent. That was generous. The assistance proffered by Mr Miers and its usefulness were appreciably less than those of Coleas. As to the subjective features of Mr Miers I adhere to the view which I expressed in Coleas that they did not approach in cogency those of Coleas. The acute problems faced by Coleas with his son had continued over a number of years. I am not persuaded that the difference in the discounts given to Mr Miers and Coleas was such as to lead to a justifiable sense of grievance. A marked difference was warranted I would reject the challenge to the sentence received by Mr Miers when compared with that of Coleas.

54. However, a challenge based on a comparison with the sentence received by Gillespie has considerable substance. Even on the basis on which Hosking DCJ proceeded Gillespie was a major conspirator and played a vital role in implementing the conspiracy. His criminality at least equalled if not surpassed that of Mr Miers. Even on the materials before Hosking DCJ the sentence imposed on Gillespie was exceedingly light and did not adequately reflect his criminality. There was no basis for the proposition that the criminality of Gillespie and Coleas were approximately equal.

55. On the basis of the criminality of Gillespie as revealed in the proceedings before Hosking DCJ, Mr Miers is entitled to entertain a justifiable sense of grievance when his sentence and that of Gillespie are compared. The sentence imposed upon Mr Miers must not be an affront to the administration of justice. Mr Miers' offence was a serious one and required a substantial term of imprisonment. The principle of due proportionality requires a downwards adjustment to Mr Miers' sentence in the light of Gillespie's sentence. For the criminality involved in and the objective seriousness of Mr Miers' offence the lowest permissible sentence, taking into account considerations of parity, is one of 2 years imprisonment. I agree that there were special circumstances as found by the judge. The lowest permissible non-parole period is one of 12 months taking into account considerations of parity. Lesser sentences could not be imposed.

56. I propose the following orders:

As to Mr Williams:

(1) Leave to appeal granted.

(2) Appeal against sentence allowed; sentence quashed.

(3) In lieu thereof Mr Williams is sentenced to imprisonment for 2 years 6 months commencing on

13 January 2002 with a non-parole period of 18 months starting that day and ending on 12 July 2003

on which day Mr Williams is to be released on parole.

As to Mr Miers:

(1) Leave to appeal granted.

(2) Appeal against sentence allowed; sentence quashed.

(3) In lieu thereof Mr Miers is sentenced to imprisonment for 2 years commencing on 22 January 2002

with a non-parole period of 12 months starting that day and ending on 21 January 2003 on which day

Mr Miers is to be released on parole.

57. BUDDIN J: I agree with Smart AJ.

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