Scicluna v The Queen

[2008] NSWCCA 24

Reported Decision: 181 A Crim R 133

New South Wales

Court of Criminal Appeal

CITATION:	SCICLUNA v R [2008] NSWCCA 24
HEARING DATE(S):	11 December 2007
JUDGMENT DATE:	19 February 2008
JUDGMENT OF:	Basten JA at 1; Barr J at 16; Adams J at 17
DECISION:	(By majority) Leave to appeal against sentence is refused
CATCHWORDS:	Sentence appeal - parity - co-offender's sentence suspended to undertake Drug Court programme - whether relevant comparison.
LEGISLATION CITED:	Crimes and Courts Legislation Amendment Act 2006 Crimes (Sentencing Procedure) Act 1999 s45(2) Drug Court Act 1998 ss7(3), 12
CASES CITED:	Ersman (2007) 171 A Crim R 560 Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 29 R v Boney [2001] NSWCCA 432 R v Rice [2004] NSWCCA 384; (2004) 150 A Crim R 37 R v Steel (NSW CCA 17 April 1997) per Simpson J
PARTIES:	Stephen Joseph SCICLUNA REGINA
FILE NUMBER(S):	CCA 2006/5146
COUNSEL:	Mr D Marr (Applicant) Mr M Barr (Respondent)
SOLICITORS:	David Lock (Applicant) S Kavanagh (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/21/0036
LOWER COURT JUDICIAL OFFICER:	H Morgan DCJ
LOWER COURT DATE OF DECISION:	22.09.06

CCA 2006/5146

BASTEN JA
BARR J
ADAMS J

19 February 2008

Stephen Joseph SCICLUNA v R

Judgment

1 BASTEN JA: As explained by Adams J, the issue on which this application for leave to appeal ultimately turns is an apparent disparity between the sentence imposed on the applicant and that imposed on his co-offender, Mr Haynes. With respect to the relevant offence, committed on 17 January 2003, the applicant was sentenced by Morgan DCJ to a period of imprisonment of four years with a non-parole period of two years. Her Honour imposed that sentence on 22 September 2006, some three and a half years after the offence in question. The imprisonment is, however, to commence on 26 April 2008, due to the accumulation of the sentence upon other sentences being served by the applicant.

2 The co-offender had been sentenced by Milson DCJ in the Drug Court on 5 June 2003. On that occasion, Mr Haynes was sentenced for three similar offences, two of which preceded the offence involving the applicant, those having been committed in November 2002. For reasons which are not fully explained, Mr Haynes was sentenced to a period of 18 months in respect of the first offence and concurrent sentences of two years and three months in respect of the second and third offences, such sentences to be cumulative upon the 18 month period. In order to understand the nature of the comparison relied upon, it is necessary to set out the relevant paragraph of the judgment of Milson DJC in relation to Mr Haynes, which was to the following effect:

“For all of those reasons, in respect of the first offence on indictment, he is convicted and sentenced to be imprisoned for a period of 18 months. In respect of each of the remaining matters, he is convicted, and the appropriate penalty in each case would be concurrent periods of two years and three months, which is reduced by the time he has been in custody, to a period two years, one month and one week, and were the sentences being served today, that latter period would be served at the completion of the 18 months.”

3 Because there was no attempt to fix a non-parole period, or to give reasons for not taking that step, it must be assumed that each sentence constituted a fixed term sentence: see Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”), s 45(2), in relation to reasons for declining to set a non-parole period. The reference to the sentences being “served today” was a reference to the fact that, where a person was ordered by the Drug Court to take part in a relevant program, the Court was required to suspend the execution of the sentence for the duration of the person’s program: Drug Court Act 1998 (NSW), s 7(3). (It is convenient to refer to this practice in the past tense because, as will appear below, it was later held to be an incorrect practice under the law as it then stood; however, subsequent statutory amendments have provided support for the practice reflected in the approach taken to Mr Haynes in 2003.)

4 Although the Drug Court did not explain its procedure in these terms, it is common ground on this application that the Court proceeded in relation to Mr Haynes under s 7 of the Drug Court Act, he being a person who had been referred to it under s 6 of that Act and who had pleaded guilty to the relevant offences. That being so, the Drug Court was required to sentence him in accordance with the Sentencing Procedure Act: see Drug Court Act, s 7(2A). That s 7(2A) meant what it said, was articulated in clear terms by this Court in R v Rice [2004] NSWCCA 384; (2004) 150 A Crim R 37 at [101]-[104] by Smart AJ, Hodgson JA and Hume J agreeing. However that decision was delivered on 10 November 2004, well after the sentencing of Mr Haynes on 5 June 2003. In accordance with what appears to have been common practice in the Drug Court prior to Rice, not all relevant circumstances were taken into account in sentencing pursuant to s 7 of the Drug Court Act and requirements of the Sentencing Procedure Act, including s 44 in relation to the fixing of a non-parole period, were commonly not followed. That course was adopted, at least in past, because the Drug Court Act provided that on termination of an offender’s program, the Court must consider the offender’s “initial sentence” and may adjust it, taking into consideration certain matters which had succeeded the initial sentencing, including his or her participation in the program. The Court was then to determine a “final sentence” which might involve an order confirming or setting aside the initial sentence and imposing a final sentence not greater than the initial sentence: Drug Court Act, s 12. In particular, the practice was justified on the basis that the subjective circumstances of the offender, which were likely to mitigate the seriousness of the offence and the severity of the sentence, would be better appreciated after the program and would thus better be taken into account in imposing a “final sentence”. Whether or not these practical considerations were sound, they did not conform to the statutory scheme, as pointed out in Rice.

5 It follows from these considerations that it is difficult to make a satisfactory comparison between the sentence imposed by Milson DCJ in relation to the co-offender Haynes and that imposed by Morgan DCJ on the applicant. No doubt the fixed term specified by the Drug Court for Mr Haynes may be compared with a non-parole period, in which case it may be seen that, subject to the curious direction that the sentence should be wholly concurrent with an equal sentence for an independent offence, Mr Haynes received a longer period (two years three months) than did the applicant (two years). On that approach, applying s 44 of the Sentencing Procedure Act, one may infer that the total sentence which would have been appropriate in relation to Mr Haynes was one-third longer than the fixed term, namely three years. That term, it was contended, was significantly shorter than that imposed on the applicant (four years) and gave rise to a justifiable sense of grievance, of the kind identified in Lowe v The Queen (1984) 154 CLR 606 at 609 (Gibbs CJ), 613-614 (Mason J), 617 (Brennan J) and 623 (Dawson J with whom Wilson J agreed). That conclusion assumes that Milson DCJ, had he been sentencing in accordance with s 44 of the Sentencing Procedure Act, would not have considered that special circumstances applied in relation to Mr Haynes, thus justifying a greater disparity between the non-parole period and the total sentence. These are, however, matters of speculation. Further, as explained by Adams J, there were significant differences between the circumstances of Mr Haynes and the applicant which would have prevented the principle of parity giving rise to precise equality.

6 Counsel for the applicant further argued that a significant aspect of the putative disparity arose from the fact that, having completed a program under the Drug Court Act, the final sentence imposed on Mr Haynes involved a 12-month good behaviour bond. Mr Haynes apparently spent two years and eight months on the Drug Court program, but did not “graduate” because he had continued to use drugs: Judgment, Barnett DCJ, Drug Court, 17 February 2006, p 5. The Court noted that during the program he had developed “dependence on heroin” but had not “re-offended”: pp 4 and 5. He was also said to have “mental health issues”, the details of which were not revealed.

7 In any event, even if that which happened after sentence were relevant, which may be doubted, this Court was told that the final sentence judgment was not before her Honour, although her Honour knew that a 12 month bond had been imposed on 17 February 2006 and that the co-offender had been on the drug program for approximately two years and eight months.

8 In substance this aspect of the applicant’s argument was that for someone diverted into the Drug Court program, whose sentence was suspended for the period of the program, the results were far more lenient than for a person not offered that opportunity.

9 That assessment may be accepted in its terms. However, the leniency so perceived does not reflect an assessment of the seriousness or culpability of the offending. It reflects the separate purposes and objects of the statutory scheme: see Drug Court Act, s 3. As the Minister stated in the Second Reading Speech (Hansard, 27/10/1998, p 9030):

“An offender may choose to participate in the Drug Court program or, alternatively, be dealt with through the normal channels of the criminal justice system. Given the structure of the program and the target group, the choice facing an offender will often be rehabilitation or gaol. The Drug Court program represents an ethically defensible form of legally coerced treatment for drug-dependent offenders. It uses the threat of imprisonment as an incentive for treatment entry and the fear of return to prison as a reason for complying with drug treatment whilst on parole or probation.”

10 It follows that it is not the diversion into a rehabilitation program which is to be compared, for the purposes of parity in sentencing, with the imprisonment imposed on a co-offender. The legitimate comparison is between the initial sentence imposed in accordance with the Sentencing Procedure Act and the sentence imposed on the co-offender. The fact that one co-offender is eligible for the program because of drug dependency, whilst another is not, may itself have consequences for the relevant comparison; nevertheless, it is the equivalent sentences under the Sentencing Procedure Act which must be compared.

11 Adams J points out that an offender may no doubt be left with a subjective sense of grievance. However, the question is whether that sense of grievance is “justifiable” in an objective sense, as that term was used by members of the Court in Lowe v The Queen, referred to above. As explained by Brennan J in that case at p 617:

“The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust.”

12 To state the principle is to highlight a further matter, of critical importance in the present case, namely the need to identify relevant considerations and the weight which should properly be given to such considerations. In times past, those considerations and their appropriate weight were determined by reference to general law principles of sentencing. More recently, there has been extensive statutory intervention: see, eg, Part 3 of the Crimes (Sentencing Procedure) Act. The diversionary regime of the Drug Court Act provides a further example. Where the statutory preconditions for its operation apply in relation to one co-offender, but not the other, the statute itself will operate to permit, or even mandate, disparate treatment. Accordingly, to the extent that the statutory scheme provides for apparent leniency, through the suspension of a sentence, any sense of grievance felt by the co-offender who does not fall within the scheme is not a justified grievance. Rather, the discrepancy is mandated by statute.

13 It follows that the suspension of Mr Haynes’ sentence was a factor properly disregarded in sentencing the applicant. As already noted, there may be justification in seeking to compare the sentence imposed on the co-offender by the Drug Court with that imposed on the applicant. As already noted, there are difficulties in seeking to compare a fixed term with a sentence involving a non-parole period and a further balance of term, not involving compulsory confinement. If the initial sentence imposed by the Drug Court does not, of itself, warrant interference with the sentence of the applicant (as concluded above) the suspension of that sentence will not assist the applicant.

14 It remains to note that the practice adopted by the Drug Court in relation to Mr Haynes, which was disapproved in Rice, has now been given statutory form as a result of amendments to Part 2 of the Drug Court Act effected by the Crimes and Courts Legislation Amendment Act 2006 (NSW), Schedule 1.14[7].

15 The applicant not having established a basis for intervention by this Court, I would refuse leave to appeal against sentence.

16 BARR J: I agree with Basten JA.

17 ADAMS J:

Introduction

On 22 September 2006 the applicant was dealt with in the District Court for the following offences –

(i) aggravated break, enter and steal (in company) committed on 17 January 2003, an offence under s112(2) of the Crimes Act 1900 carrying a maximum penalty of 20 years’ imprisonment; and
(ii) supply a prohibited drug committed on 2 May 2005 (20.4 grams of methylamphetamine), an offence under the Drug Misuse and Trafficking Act 1985 carrying a maximum penalty of 20 years’ imprisonment.

The applicant was sentenced as follows –

As to (i) – four years’ imprisonment commencing 26 April 2008 and expiring 25 April 2012 with a non-parole period of two years expiring on 25 April 2010;
as to (ii) – twelve months’ imprisonment from 26 October 2007.

18 The applicant seeks to appeal from the sentence for offence (i); there is no appeal from the sentence for offence (ii).

The facts

19 An agreed statement of facts was tendered. In the early hours of 7 January 2003 commercial premises in Westmead occupied in part by a bank were broken into. The ATM in the bank was cut open from the back. About $24,000 had been removed. Wires to an alarm sensor had been cut. Masking tape was used to cover the lens of the security camera. However, two other security cameras in other positions (but not having a view of the ATM) captured images of the offenders in the premises and enabled them eventually to be identified. Also at the scene were found a broken jemmy, welding gloves, a disposable lighter, welding goggles and ski goggles.

20 The applicant was identified by the manager of the Cobham Juvenile Justice Centre as an employee working at the Centre. As such he had access to oxy-acetylene equipment.

21 The applicant was interviewed by police on 23 January 2003. He gave an innocent but fabricated account that explained his presence in the building. He was not charged at this point. Further investigations ensued. He was eventually charged on 18 February 2003. When the matter came on for trial on 21 June 2004 he pleaded guilty. The proceedings were adjourned, returning to court on 26 August 2004, when the applicant indicated he wished to change his plea. After several adjournments the plea was confirmed on 28 October 2004, and the proceedings adjourned again. On 4 February 2005 the applicant applied unsuccessfully to reverse his plea. He appealed from this reversal to this Court but the appeal was not pressed. On 7 July 2006 the applicant again appeared in the District Court and adhered to the plea originally entered.

22 The applicant had been granted bail on 18 February 2003. On 4 September 2003 he was arrested for a drug offence. He was released on bail on this charge on 15 September 2003. On 5 November 2004 the applicant was sentenced to six months periodic detention for a driving offence. He appealed and, on 1 December 2004, was granted appeal bail. On 2 May 2005 he was charged with offence (ii), bail was refused, and he has been in custody since that date. On 15 June 2005 he was convicted following trial for the offences of supplying, possessing a precursor for, and manufacturing, amphetamine. He had previously pleaded guilty to possessing an unauthorised firearm. In respect of all these offences he was sentenced on 28 October 2005 to an overall term of three years six months’ imprisonment, commencing 26 April 2006 and expiring 25 October 2009 with a non-parole period expiring on 25 April 2008. It will be seen that the present sentence commenced on the expiration of this non-parole period.

The accomplice

23 Haynes was thirteen years younger than the applicant. He was sentenced on 5 June 2003 by Milson DCJ, sitting in the Drug Court for three offences of aggravated breaking, entering and stealing. The circumstance of aggravation in each case was that the offences were committed in company. The applicant was not involved in two of the offences, which also involved breaking into premises and cutting into automatic teller machines with oxy-acetylene equipment. The first offence was committed on 15 November 2002 and involved a loss of $40,000; the second occurred on 27 November 2002, involving a loss of almost $143,000 and the third was the present offence. Haynes had admitted his guilt when arrested and volunteered what the judge described as “a great deal of information about the planning of the offences though not all he could have provided as to the identification [of his accomplices]”, although he did name the applicant. It appears that, as a security officer, he was able to significantly assist in the commission of the offences because he held a security licence and was qualified and worked in the field of alarms. As the sentencing judge observed, the offences were aggravated because of their planning and organisation.

24 Haynes had indicated his intention to plead guilty at an early stage and pleaded guilty in due course. Milson DCJ said that heretofore he had been a person of good character and had committed the offences because of his addiction to drugs and his consequent connection with his accomplices upon whom he was dependent for his drug supply. In respect of the first offence Haynes was sentenced to a fixed term of eighteen months. In respect of the other offences he was sentenced to concurrent fixed terms of two years three months, reduced by seven weeks to account for time spend in custody, cumulative upon the sentence for the first offence. The sentences were then suspended to enable the offender to undertake the Drug Court programme.

25 Haynes’ Drug Court programme was terminated on 6 February 2006. On 17 February 2006, in lieu of the initial sentences passed on each of his three offences, convictions were recorded, he was conditional discharged under s 9 of the Act and placed on a good behaviour bond in each case subject to the supervision of the Probation and Parole Service. The judge noted that he had been in the programme for some two years and eight months, having entered it on 6 January 2004, moving to Phase 2 on 6 January 2004 and Phase 3 on 5 May 2004. Despite some failings, there had been a substantial improvement and he had come “very close” to graduating. Overall, he had spent nine weeks in pre-programme custody, and about nine weeks in custody during the programme as well as over six months in a residential rehabilitation placement. The judge noted that he had significant “mental health” issues.

Prior Record

26 The applicant’s criminal history commenced with a conviction in 1977 for breaking, entering and stealing as a child. He was almost fifteen years of age. A two-year committal to an institution was suspended on his entering into a good behaviour bond. Almost three years later he was placed on twelve months probation for stealing. There followed some driving offences. In 1990 he was convicted and fined for a firearms offence. In November 1991 he was convicted of twenty counts of passing valueless cheques and two counts of obtaining a financial benefit by deception, receiving two hundred hours of community service and placed on a two-year good behaviour bond. Several driving offences ensued and then the sentences for the drug offences imposed on 28 October 2005 to which I have already referred. On 19 June 2006 he was sentenced to three months’ imprisonment for being in possession of goods reasonably suspected of having been unlawfully obtained.

Subjective features

27 The applicant was forty years of age as at the date of the offence. Pre-sentence reports and a psychologist’s report were tendered. There is nothing of particular significance in his family history. It appears, however, that the applicant’s brother was diagnosed with Huntington’s disease in 2005 and the applicant became extremely anxious and depressed about the possibility that he also might have the disease. However, as was disclosed to the sentencing judge, the applicant does not, in fact, have Huntington’s disease.

The appeal

28 The sole ground of appeal is that the applicant has “a justifiable sense of grievance” as that phrase is used by Mason J in Lowe v The Queen (1984) 154 CLR at 617-618, in light of the sentence passed on his accomplice Haynes. It is instructive to note the entire passage in which this phrase is used (and see also R v Steel (NSW CCA 17 April 1997) per Simpson J) –

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

29 The sentencing judge referred to Haynes’ sentence as follows –

“It was submitted on behalf of the offender that the principles of parity should apply to any sentence imposed on [the present charge]. However, his co-offender…who had only a very limited criminal history at the time and was also much younger than the offender was dealt with in the Drug Court. On 5 June 2003 terms of imprisonment were imposed on this matter as well as for other offences. The sentences were suspended for the duration of the Drug Court program. On 17 February 2006, a s9 bond of twelve months with supervision was imposed. In these circumstances I do not consider it is appropriate that the principles of parity should apply.”

30 It is obvious that her Honour did consider the issue of parity. The principles apply to all cases where co-offenders are being sentenced. However, the principle does not always require an adjustment to the sentence that might otherwise be imposed. This can only be appropriate where there would be a “justifiable sense of grievance” were the offender to receive a sentence out of kilter with that of a co-accused. The grievance would not be justified, of course, if the differences between the co-offenders were such as to explain the different sentences. In my view, the remarks of the sentencing judge did not suggest that her Honour did not have regard to the principle of parity. Her Honour meant merely that the differences between Haynes and the applicant were such, as she saw them, that no use could be made of the sentence imposed on Haynes for the purpose of sentencing the applicant.

31 It is contended by Mr Marr of counsel for the applicant that the differences between the applicant and Haynes were not such as to justify disregarding the sentence passed on Haynes. He points to five relevant features of the comparison: first, Haynes’ involvement in the offence was at least as significant as the applicant’s; second, the fact that Haynes’ “very limited criminal history” arose from the simple fact that he was not charged with the earlier crimes until after he had committed the present offence; third, that Haynes’ earlier crimes were far more serious than those of the applicant; fourth, the markedly lesser sentence passed on Haynes in accordance with the Crimes (Sentencing Procedure) Act 1990 (the Act); and, finally, the suspension of Haynes’ sentence to enable him to undertake the Drug Court programme.

32 The first of these matters is, I think, correct: the applicant had the welding experience and Haynes’ had the security experience. The second and third points are to my mind well taken. The criminal record of Haynes may fairly be regarded, so far as the nature of the crimes committed is concerned, as being as serious or even perhaps more serious than that of the applicant, since it comprised, in addition to the present serious offence, two other similar offences which involved the loss of about $200,000, whilst that of the applicant comprised crimes of far less criminality except, perhaps, for the offences associated with the manufacture of amphetamines. It might be said that Haynes’ offences were committed in a relatively short time frame and the applicant offended over a longer period, but this does not really count for much in my opinion. Although there was an age difference of some thirteen years, Haynes was twenty-seven years old at the time of the offence, so he was a mature man and no mere youth. The fourth point is without substance. There was a period during which judges who intended to refer offenders to the Drug Court programme did not complete the sentencing process before doing so and this needs to be borne in mind when comparing what might be called conventional sentences and those involving Drug Court referrals made in this period. For present purposes, Haynes’ sentence should be considered as analogous to a fixed term. This is a period which (suspension aside) an offender must serve. For the purposes of comparison it is analogous to a non-parole period, not the head sentence. Furthermore, a head sentence of two years and three months would have been so manifestly inadequate that I am sure that the sentencing judge had not intended that it should be so considered. So regarded, the applicant therefore was, in substance, sentenced to a lesser period of minimum imprisonment than Haynes (two years as compared to two years and three months.) A non-parole period of two years three months implies a head sentence, on the assumption that there were no special circumstances, of three years.

33 I agree that there is a marked difference between the implicit head sentence applying to Haynes and the head sentence of four years imposed on the applicant. In comparing these sentences it is necessary to consider in some detail the different situations presented by each of the applicant and Haynes. Of considerable importance is the course each took in relation to the offence: Haynes confessed at an early stage, gave significant information to the police and pleaded guilty throughout. On the other hand, the applicant sought to change his plea and significant resources were expended before he ultimately pleaded. His first plea was entered on the morning his trial was to commence. Somewhat generously to my mind, the applicant was afforded a 10% utilitarian discount.

34 There was convincing evidence of Haynes’ remorse and his prospects of rehabilitation were good. The sentencing judge mentioned in her reasons the opinion of the psychologist that “with treatment, guidance and supervision [the applicant’s] overall prognosis is quite positive”. He had also expressed “considerable regret” to the psychologist, who thought it was genuine. In my view, the applicant and Mr Haynes’ cases differed significantly in respect both of the nature and extent of their remorse for the offence and their prospects for rehabilitation.

35 Leaving aside the question of the suspension of Haynes’ sentence so that he could undertake the Drug Court programme and his final sentence, the comparison of the sentences, taking into account the differences between Haynes and the applicant which I have mentioned, does not to my mind demonstrate an unjustifiable difference in the sentences. On the contrary, I think they bear a reasonable degree of parity.

36 Mr Marr submits, as I mentioned, that the suspension of Haynes’ sentence to enable his participation in the Drug Court programme represented a very substantial amelioration in the severity of the sentence and created such a disparity between the punishment meted out to him as contrasted with that imposed on the applicant as to give rise to a justifiable sense of grievance. Mr Marr submits that the fact that Haynes was a drug addict should not be put in the scales in his favour so as to justify treating the applicant with substantially greater severity. This argument, of course, applies both to the head sentence and the non-parole period imposed on the applicant.

37 Of course, the applicant’s sentence of four years could not be suspended since it was for a term greater than two years: s 12 of the Act. Nor was the applicant able, since he was not a drug abuser, to be dealt with under the Drug Court regime.

38 It is clear enough that the sentencing judge considered that the fact that Haynes was dealt with by the Drug Court was a substantial reason for disregarding his sentence – in effect, its suspension – as relevant in setting the applicant’s sentence. Had Haynes been given a suspended sentence not subject to the Drug Court regime there would a great deal of force in the applicant’s argument, although to have done so would certainly have been manifestly too lenient. In this event, however, the outcome could not be that the applicant’s sentence should also have been suspended – that would simply have been to impose another manifestly too lenient sentence. Nevertheless, it would have been necessary to consider whether Haynes’ suspended sentence created such a marked discrepancy between his punishment and that meted out to Haynes as to give rise to a justifiable sense of grievance. Of course, there was never any prospect of Haynes’ sentences being suspended in the ordinary course: it was only the availability of the Drug Court programme that justified the course taken by Milson DCJ. It should be noted also that the regime imposed by Part 4A of the Crimes (Administration of Sentences) Act 1999 involves severe restrictions on the offender’s freedom, sufficiently described for present purposes as “closed detention”, “semi-open detention”, and “community custody”. Nevertheless it cannot be gainsaid that, in substance, the suspension of Haynes’ sentence to undergo the compulsory drug treatment programme resulted in a punishment outcome considerably more lenient than that meted out to the applicant. In my view the question whether there should have been an adjustment in the sentence otherwise appropriately imposed on the applicant in light of the sentence in substance imposed on Haynes is a live one.

39 As I have already mentioned, the applicant did not have available a potential for suspension: first, his (head) sentence was four years and a two year sentence was simply below the available discretionary range; secondly, he did not quality for the Drug Court programme as he was not a drug user. His case is, overall, that it is not fair that, not being a drug user, he was so much more harshly punished than his co-offender when his co-offender’s criminality was not less than his and this crime was the third of a series of similarly serious offences, even making every fair allowance for the differences in the respective utilitarian discounts and Haynes’ better prospects for rehabilitation.

40 The question, then, is whether it is appropriate to bring into account, when comparing sentences for the purpose of ascertaining whether “there is a manifest discrepancy such as to engender a justifiable sense of grievance”, the fact that the sentence of one offender has been suspended to enable that offender to undertake the Drug Court programme. I think that there can be no doubt that the fact that a co-offender is given, say, a community service order would be regarded as relevant for comparison purposes; so also must be an order that a sentence be served by way of periodic detention or home detention. There is no reason in principle why the fact that a sentence is suspended under s 12 of the Act and ultimately the offender was subjected to a s 9 bond ought not be taken into account when comparing that outcome with that afforded to a co-offender whose sentence is not suspended and who did not receive a bond. In the conventional case, continuation of a suspension is dependent upon compliance with a bond to be of good behaviour: par 12(2)(a). It is also obvious, as I think, that a comparison may be made between a sentence of imprisonment passed on an offender and an order deferring the passing a sentence on his co-offender under s 11 of the Act or with the imposition in lieu of imprisonment of a bond under s 9. These comparisons are essential in order to enable an examination to be made as to whether, in substance – whatever the form – the sentencing outcomes for co-offenders satisfy the fundamental requirement of equal justice: see Postiglione v The Queen (1997) 189 CLR 295, for example, per Dawson and Gaudron JJ at 301-302. This is not a principle that depends upon matters of form; the Court must step back from the technical aspects of particular sentencing outcomes and consider their substance in terms of parity of punishment.

41 Is the fact that Haynes’ sentence was suspended to enable him to undertake the Drug Court programme to be taken into account in comparing the punishment meted out to him by the Courts and that meted out to the applicant? In my view, the answer to this question must be yes; a fortiori, the initial suspension and ultimate bond. As the legislation stood at the time Haynes was sentenced, he was required to be sentenced pursuant to the Act before he was referred to the Drug Court. That sentence, in the Drug Court Act 1998 called the “initial sentence”, is to be reconsidered if the offender fails to comply with the conditions of the programme and a final sentence then passed which takes into account what has happened since the passing of the initial sentence. When the offender is referred to the Drug Court, that Court “must make an order suspending execution” of the initial sentence whilst the offender undergoes the programme. In principle, as it seems to me, this is no different from the case of a co-offender whose sentence is deferred. This Court has held that the mere fact that a co-offender was sentenced in the Children’s Court whilst an applicant was dealt with (say) in the District Court does not exclude comparison although the different sentencing objectives and considerations applicable in the Children’s Court limit its value: see a review of the cases by Smart AJ in Ersman (2007) 171 A Crim R 560 at 570ff. It should be noted, however, that there is a substantial difference between the purpose of the Children’s Court and that of the Drug Court. Offenders come into the former because of the public policy considerations that necessarily apply to children, whilst they come to the Drug Court because of their drug abuse, having already been subject to an initial sentence in the District Court or else they must be sentenced by the Drug Court before admission into the drug programme; in short, the very condition that brings them there is criminal conduct punishable in the District Court and, if their participation in the programme is terminated, the Drug Court will sentence the offender under the Act in the conventional way, imposing “any penalty that could have been imposed by the District Court” (if the referral was from that court): s 15. If the fact that a co-offender is sentenced in the Children’s Court is not an impediment to considering sentence, then it follows by parity of reasoning that a suspension of sentence under the Drug Court Act is also not such an impediment, still less when the final sentence is a s 9 bond. It seems to follow that regard to the Drug Court sentence need not be so “cautious” (adopting the language of Smart AJ at 171 A Crim R at 573) as needs to be the case with a Children’s Court sentence, since the different way children are treated is not material to an offender in the Drug Court.

42 The general principle of equal justice is a fundamental concept that should not be deflected by technical distinctions. It binds the courts in their administration of the criminal law. The Drug Court programme is not, juristically considered, a rehabilitative programme administered by the Executive as part of the sentence imposed by a Court. The suspension of the sentence imposed on Haynes was the order of a Court following a decision by a Court as to the mode by which his sentence was to be served. It was a judicial determination following the statutory regime. Failure to satisfy the requirements of the programme leads to final sentencing by the Court, not a mere change in the prison regime. Substantial compliance also leads to termination of the programme and the imposition of a final sentence: Division 2 of the Drug Court Act. In this case, Haynes’ final sentence was a s 9 bond.

43 In principle the requirements as to parity are directed to the Courts in their administration of criminal justice: that the courts must deal as equally or as differently with co-offenders as the circumstances require is a fundamental rule of justice as administered by the courts. The question, in the end, is a simple one, for all that in the particular case it may not be easy to answer: considering what the Court has done to each co-offender, has like been treated as like and is there “due proportion between those sentences…having regard to the different circumstances of the co-offenders in question and their different degrees of criminality” (to adopt the language of Dawson and Gaudron JJ in Postiglione (154 CLR at 301)). The mere fact that a court has applied a particular statutory regime to an offender cannot change the fundamental point that it does so by an order applied to a particular offender by way of punishment. Nor does the mere fact that the order enlivens a statutory scheme change its essential character for the purposes of applying the basic principles of equal justice. One sentence (albeit incomplete) was suspended by order of the Court and one was not. This would be enough in my view to require comparison but there was also, in this case, a comparable final sentence, namely a s 9 bond.

44 It remains to say that, where the degree of disparity invites a reduction in the sentence imposed on the applicant, the Court will not do so if the result would produce a sentence disproportionate to the objective and subjective criminality involved (R v Boney [2001] NSWCCA 432, per Wood CJ at CL) in the sense that it would be a sentence which lies outside an applicable discretionary range.

Conclusion

45 The marked disparity between the respective orders applied by the sentencing courts to the applicant and his co-offender can in part be justified by the differences between them to which I have referred. But, in my respectful view, the difference between the applicant’s sentence and Haynes’ sentence is so marked as to give rise to a justifiable sense of grievance in the applicant and, in considering that it was not, the sentencing judge erred.

46 Accordingly, it is appropriate to read the applicant’s affidavit filed on the appeal. He states, in effect, that he has been entrusted with work that indicates he is a trusted prisoner. He claims to suffer from problems with his heart and dizziness and also from depression. His older brother passed away in October 2007 and his other brother suffers from Huntington’s disease. He has been visited in gaol by his partner.

47 The head sentence of four years, though within a permissible range, is not at the bottom of that range. I would reduce it, accordingly, to three years. Usually, the sentencing judge, having found special circumstances justifying a departure from the ratio specified in s 44(1) of the Crimes (Sentencing Procedure) Act 1990, this Court would extend the benefit of that finding to the fresh sentence. However, in my opinion, the non-parole period of two years imposed below is at the bottom of the permissible range and cannot be further reduced.

Orders

48 I propose the following orders –

1. Leave to appeal is granted.
2. The sentence of four years for charge (i) is quashed and in lieu thereof a sentence is imposed of three years’ imprisonment commencing 26 April 2008 and expiring 25 April 2011.
3. In all other respects the appeal is dismissed.
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