Siddiqi v The Queen (Commonwealth)

[2015] NSWCCA 169

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Siddiqi v Regina (Commonwealth) [2015] NSWCCA 169
Hearing dates:	8 December 2014
Date of orders:	03 July 2015
Decision date:	03 July 2015
Before:	Simpson J at [1] Rothman J at [15] Wilson J at [33]
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – error in having regard to non-conviction criminal record – parity principle – whether erroneous sentences imposed upon co-offenders give rise to a justified sense of grievance – whether intervention of appellate court is justified – question of proper reflection of objective and subjective criminality
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1914 (Cth) Criminal Appeal Act 1912 (NSW) Criminal Code Act 1995 (Cth)
Cases Cited:	Bugmy v The Queen (1990) 169 CLR 525 Davis v R [2015] NSWCCA 90 England v R; Phanith v R [2009] NSWCCA 274 Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 Kentwell v The Queen [2014] HCA 37; 313 ALR 451 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 McMullen v Regina [2013] NSWCCA 261 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Petterson v R [2013] NSWCCA 133 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Borkowski [2009] NSWCCA 102 R v Bugeja [2001] NSWCCA 196 R v Diamond (Court of Criminal Appeal (NSW), 18 February 1983, unrep) R v McIvor [2002] NSWCCA 490; [2002] 136 A Crim R 366 R v Steele (Court of Criminal Appeal (NSW), 17 February 1997, unrep) R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Saraya v R [2015] NSWCCA 63 Youkhana v R [2011] NSWCCA 37
Category:	Principal judgment
Parties:	Omar Siddiqi (Applicant) Regina (Respondent)
Representation:	Counsel: Mr. J. Stratton SC (Applicant) Mr. P. McGuire (Respondent Crown) Solicitors: Hanby & Associates (Applicant) Office of the Director of Public Prosecutions (Commonwealth) (Respondent Crown)
File Number(s):	2011/18464
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 20 March 2013 Before: Walmsley SC DCJ File Number(s): 2011/18464

Judgment

1. SIMPSON J: I have read in draft the judgment of Wilson J, where the relevant facts and circumstances have been set out. It is unnecessary to restate the facts of the offence.

2. I agree with her Honour, for the reasons she gives, that Ground 1 of the appeal must be upheld. The consequence of that is that this Court must proceed to resentence, exercising its own sentencing discretion, without using the sentence imposed at first instance as a starting point or measure: see Davis v R [2015] NSWCCA 90 at [76]-[84].

3. That being so, it is unnecessary to consider whether, and if so, to what extent, the error influenced the sentence imposed by Walmsley DCJ.

4. Strictly speaking, it is also unnecessary to rule upon Ground 2, which raises an interesting, and to my knowledge, previously unexplored, question in relation to sentence appeals where parity is raised as a ground.

5. That question is whether, when one or more of the disparate sentences under consideration follow trial, and one or more follow a plea or pleas of guilty, the measuring rod is the starting point of the sentence or sentences which have been reduced by reason of the plea(s) of guilty, or the sentence(s) actually imposed after reduction for that reason. To an offender, of course, the issue is the time to be served: see Pearce v The Queen [1998] HCA 57; 194 CLR 610. But where parity issues are raised, it is necessary to examine the sentence(s) in order to establish whether there are legitimate circumstances that explain and justify the disparity. Such circumstances include the whole range of sentencing considerations such as the age of the offender, past criminal history, level of involvement in the offence(s), prospects of rehabilitation, any mental illness or intellectual disability that affects culpability, and any evidence of disadvantaged background, to name the most common.

6. The weight to be given to all of these factors is a matter for the sentencing judge (Kentwell v The Queen [2014] HCA 37; 313 ALR 451), but may go some way to explaining an otherwise obscure disparity in the sentences imposed on co-offenders. A reduction allowed in respect of a plea of guilty to a state offence is, unlike the weight given to other sentencing considerations, usually quantified: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. That is not necessarily the case where the offence in respect of which sentence is to be passed is an offence against the law of the Commonwealth.

7. Notwithstanding the significance attributed to the reduction allowed in respect of pleas of guilty, I would stop short of holding that reduction(s) allowed in respect of sentences that are before this Court only peripherally, as they are when parity is in issue, was excessive. Nevertheless, the reduction may explain otherwise disparate sentences. As will be seen below, that is so in this case. Absent his plea of guilty, Lee, with a greater role in the offence, would have been sentenced to imprisonment for 8 years. Absent his plea of guilty, Ngo, with a role equivalent to that of the applicant, would have been sentenced to imprisonment to 7 years and 6 months.

8. In the resentencing exercise in this case, the principles of parity must be borne in mind. There are a number of distinguishing circumstances. One is the sentencing judge’s finding with respect to the prospects of rehabilitation of each of the offenders. In the applicant’s case he expressed caution by reason of the applicant’s continued denial of his involvement. In Ngo’s case he found that the prospects were “good” and that Ngo had done well since his release on bail. In Lee’s case he noted “very good references” and found that Lee had also had good prospects of rehabilitation and was at low risk of reoffending, and had gone a very long way to rehabilitating himself. He described this as “a remarkable achievement”.

9. Another relevant differentiating circumstance was the applicant’s criminal record (which, it is already been established, was wrongly taken into account). Ngo had “one minor criminal matter” and was held to be entitled to some leniency. The applicant ought to be treated similarly, reliance on his criminal record ought be discarded.

10. Lee’s criminal record was said to be “not good”, but nevertheless such as to “permit some leniency”.

11. As to the roles in the commission of the offence, his Honour held that the applicant and Ngo were roughly equivalent; Lee’s involvement was slightly greater.

12. In my opinion, the sentences imposed on Ngo and Lee have considerable bearing on the resentencing exercise this Court must undertake. But that brings me back to the question posed earlier: does this Court have regard to the starting point of the sentences, or the reduced sentences? At least in the circumstances of this case, it is the starting point of the sentences imposed on the co-offenders that must guide the exercise of the sentencing discretion.

13. In my opinion, it is appropriate that the applicant be sentenced similarly Ngo. I would therefore impose a sentence of imprisonment of 7 years and 6 months, which coincides with the sentence imposed by Walmsley DCJ. In keeping with the structure of the sentences imposed on both co-offenders, I would impose a non-parole period of 50 per cent of the head sentence, that is, 2 years and 10 months. That, too, coincides with the non-parole period imposed by Walmsley DCJ.

14. The consequence is that I agree with Wilson J that, while leave to appeal should be granted, the appeal ought to be dismissed.

15. ROTHMAN J: I have read in draft the reasons for judgment of Wilson J. Her Honour recites the relevant facts and circumstances. Those facts and circumstances are relatively uncontroversial.

16. I have also had the advantage of reading in draft the reasons for judgment of Simpson J.

17. I agree that ground one of the appeal has been made out and, for that reason, the appeal must be upheld. Further, I accept that the error disclosed by taking into account an offence or offences found proved in 2006, which offences did not proceed to a conviction recorded against the applicant, is an error that could have affected the sentence imposed by the sentencing judge and, in my view, warrants the grant of leave to appeal.

18. In the foregoing circumstances, it is, pursuant to the principles established by the High Court of Australia in Kentwell v The Queen [2014] HCA 37; (2014) 88 ALJR 947, necessary to proceed to re-sentence and, therefore, it is unnecessary to determine whether the second ground of appeal has been established as an error by the sentencing judge.

19. On the question of re-sentencing I have a different view from that expressed by Simpson J and Wilson J and, therefore, this judgment will be in dissent. As a consequence, I will summarise the basis upon which I differ from those judges more succinctly than might otherwise be the case.

20. As expressed by Wilson J, there is no real issue between the Crown and the applicant that the objective criminality of the applicant and the co-offenders was similar, if not identical, in most relevant respects. Further, there is no real issue between the Crown and the applicant that each of the co-offenders (including the applicant) had similar subjective cases. However, of the three co-offenders, only the applicant had no relevant criminal history. I refer to the recitation of objective and subjective circumstances in the reasons for judgment of Wilson J.

21. As the High Court has made clear, equal justice is an embodiment of the norm expressed in the term “equality before the law”: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [28]. The principle of equal justice requires identical treatment of cases that are relevantly identical. It also requires different treatment of cases that are relevantly different.

22. Moreover, a court of appeal interferes in the case of different sentences on the ground of disparity only where the disparity is such that it gives rise to a justifiable sense of grievance: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. That sense of grievance is measured on an objective basis: Green & Quinn at [31].

23. Courts will, on appeal, refuse to intervene where disparity is justified by relevant differences between co-offenders: Green & Quinn at [31]. Implicit in the foregoing is that, in the exercise of the sentencing discretion, a sentence should be set which differs from the sentence imposed upon co-offenders only to the extent justified by such relevant differences, namely, the subjective and objective circumstances of the offender and the offence. So much accords with the norm of equality before the law and/or equal justice.

24. Differences between persons who are sentenced or to be sentenced must be rational. In other words, even in cases where the circumstances of different co-offenders point to the imposition of a different sentence, the sentence imposed on each should be different only to the extent that it rationally reflects the relevant differences between them.

25. A comparison of the applicant and his two co-offenders, particularly Mr Ngo, discloses that they were relevantly identical. The only relevant difference between them was the plea of the applicant’s two co-offenders. In each case, the plea was entered on the morning of the trial. As such, in accordance with principle, a discount of approximately 10%, and on no basis more than 15%, would ordinarily be allowed.

26. In the words of Hall J (with whom Hoeben CJ at CL and Davies J agreed) in Petterson v R [2013] NSWCCA 133, recited at length by Wilson J in her reasons for judgment in this appeal:

“The parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [28].” Petterson v R [2013] NSWCCA 133 at [43].

27. The only “different circumstances” between the applicant and the co-offenders are the pleas of guilty, which rationally explain a difference in sentence such that the co-offenders would receive a sentence 10-15% lower than the applicant.

28. It is not for this Court, in this appeal, to determine that the sentence imposed upon each of the applicant’s co-offenders was otherwise than that authorised by authority or was wrong in law. Those sentences were imposed and were not the subject of a Crown appeal. It is not suggested that the sentences imposed upon the applicant’s co-offenders were manifestly inadequate.

29. As a consequence of the foregoing, there is a rational basis for a difference between the applicant’s sentence and the sentence imposed on his two co-offenders in that each of the co-accused was entitled to a discount for his plea of guilty. There can be no justifiable sense of grievance (objectively determined) associated with a different sentence that reflects those pleas of guilty.

30. As earlier stated, it is not for this Court, in these proceedings, to determine that the sentence imposed upon the co-offenders was wrong or inconsistent with authority. The sentence must be taken as valid and, particularly given the absence of an appeal by the Crown, should be taken as a sentence within range for the offences and offender concerned.

31. In those circumstances, the co-offender with the most severe sentence received a head sentence of 6 years’ imprisonment and a non-parole period of 3 years’ imprisonment. Rationally, the plea of guilty can explain as much as 15% of the sentence that the co-offender received less than the applicant. In my view, the appropriate sentence for the applicant is therefore one which accommodates that rational difference but no other difference.

32. In the circumstances, I would propose the following orders:

1. Leave to appeal granted;

2. Appeal granted;

3. The sentence imposed by the District Court on the applicant on 20 March 2013 be quashed and in lieu thereof the following sentence by imposed;

1. The applicant be sentenced to a head sentence of 7 years’ imprisonment, with a non-parole period of 3 years and 6 months’ imprisonment.

33. WILSON J: On 15 October 2012 the applicant was arraigned before his Honour Judge Walmsley SC, sitting in the District Court, on an indictment charging a single count of importing a marketable quantity of a border controlled drug into Australia, an offence contrary to ss.11.2A(1) and 307.2(1) of the Commonwealth Criminal Code 1995. He entered a plea of not guilty. Nine days later, on 24 October 2012, the jury returned a verdict of guilty to the charge.

34. On 20 March 2013 a sentence of imprisonment for 7 years and 6 months was imposed upon the applicant. A non-parole period of 3 years and 9 months was specified. The sentence commenced on 28 January 2013 and expires on 27 July 2020. The non-parole period expires on 27 October 2016.

35. The maximum sentence specified for this offence is one of 25 years imprisonment.

36. The applicant seeks leave to appeal against sentence on two grounds: the first asserts error in taking into account offences in the applicant’s criminal history where no conviction was imposed; the second ground raises a parity issue. The second ground was added at the hearing of the appeal with the Court’s leave. The Crown did not oppose leave being granted.

The Proceedings in the District Court

37. The Crown case against the applicant was that he and two others, Christian Lee and Andrew Ngo, were involved in the importation into Australia of a quantity of 2.184 kilograms of cocaine. The cocaine had an average purity of 67.62 per cent, giving a pure weight of 1.48 kilograms.

38. In February or March 2010 the applicant went to the Chester Hill home of a school friend, Mitchell Carney, and asked Mr. Carney’s brother if he could have a package mailed to that address. The applicant offered $500 in return. Although the applicant attended the home subsequently on a number of occasions, no package in fact arrived.

39. In late June or early July 2010 the applicant approached Mitchell Carney, whom he had known as a friend since primary school, and asked him to accept delivery at his home address of a package containing car parts. When Mr. Carney told his father about the delivery, his father refused to have the package sent to the home. Mr. Carney told the applicant what his father had said, and was then offered $500 to take delivery of the package which, the applicant said, was already on its way.

40. The applicant also offered another school friend, Josh Hamilton, the same sum to accept delivery of a package to his home address.

41. Both Mr. Carney and Mr. Hamilton were asked to write down their names and telephone numbers, and to let the applicant know when the packages arrived. They were instructed not to open the packages.

42. The applicant subsequently attended the Carney home on a number of occasions, inquiring of Mr. Carney’s sister if the package had arrived.

43. Using a mobile telephone with false subscriber details, he attempted to contact Mr. Carney on a number of occasions. He was also in contact at around this time with Christian Lee and Andrew Ngo, who were also using mobile telephones subscribed with false information.

44. On 20 July 2010 Mr. Lee, driving a white Audi, was stopped by police officers from the Highway Patrol. He was found to be in possession of a number of items, amongst them two mobile telephones, boxes and invoices from the purchase of other mobile telephones and, on the back of a mobile telephone he had secreted inside his underwear, a number written on a post-it note affixed to the telephone.

45. The number was later determined to be the consignment number of the package shipped to Mr. Carney’s address.

46. The package arrived in Australia on 21 July 2010 and was intercepted by police. Inside were a number of Spanish language books that had been published in Mexico. Cavities in the books contained cocaine.

47. Mitchell Carney, as the consignee, was spoken to by police. He provided them with the applicant’s details.

48. On 19 January 2011 police executed a search warrant upon the applicant’s home in Chester Hill. In his bedroom, a handwritten note relating to the false subscriber details of one of the mobile telephones used by the men was found. The applicant was arrested by police.

49. The applicant was interviewed, but denied any knowledge of the consignment addressed to Mitchell Carney. He acknowledged knowing Mr. Carney and Mr. Ngo from school, and having visited the Carney house, but claimed his attendance there was in relation to something else. He gave evidence in similar terms at his trial. Inherent in the jury’s verdict is the rejection of that evidence.

50. Andrew Ngo was arrested on 3 March 2011. On 8 September 2011 premises where Christian Lee stayed were searched, and he was subsequently arrested.

51. The sentencing judge concluded that, although he could not fully identify the individual roles of the applicant and Andrew Ngo, he was satisfied that each was actively involved in the recruitment of innocent agents to receive the cocaine, and each was an active participant in the plan. His Honour found that the roles of the applicant and Andrew Ngo were roughly equal, with that of Christian Lee involving slightly higher criminality. The applicant’s motivation, his Honour found, was financial, although the return to him would have been very modest.

52. The applicant was aged 19 at the time of the commission of the offence. He was born in Afghanistan in 1991 and came to Australia in 1999. The applicant initially did very well at school but, towards the end of his school years he suffered a broken leg which affected his sporting activities, and thereafter his school work. He completed his Higher School Certificate.

37. A report from a psychologist indicated that the applicant had a major depressive disorder.

38. His Honour was not able to give the applicant the benefit of any expressions of remorse, since he continued at that stage to deny his guilt. Because of that, his Honour was also cautious as to the applicant’s prospects of rehabilitation.

39. The applicant had an entry against him from the Children’s Court, and the sentencing judge concluded that the applicant’s criminal record did not permit “much leniency”.

The Application for Leave to Appeal against Sentence

56. If granted leave, the applicant advances two grounds of appeal against the purported severity of sentence.

“Ground 1: His Honour erred in taking into account on sentence offences found proved without a conviction recorded in 2006”

57. The entries that the sentencing judge referred to in his remarks on sentence were from Bidura Children’s Court on 3 October 2006, reflecting a finding of guilt with respect to two counts of robbery whilst armed with an offensive weapon, and one of entering enclosed lands without lawful excuse. No convictions were recorded for any of the offences.

58. In relation to the two counts of armed robbery, the Children’s Court imposed bonds upon the applicant for a period of two years, with the supervision of the Juvenile Justice Office. An unsupervised bond for twelve months was imposed for the enclosed lands offence.

59. The applicant had no other entries in his criminal history.

60. In relation to the applicant’s criminal record, the sentencing judge said,

“His record does not permit much leniency. There was a significant matter in the Children’s Court.”

61. The applicant contends, and the Crown concedes, that, in taking the Children’s Court entries into account, the sentencing judge erred.

62. His Honour’s attention was not drawn to s.15(1) of the Children (Criminal Proceedings) Act 1987, which provides,

“15 Evidence of prior offences and other matters not admissible in certain criminal proceedings

(1) The fact that a person has pleaded guilty to an offence in, or has been found guilty of an offence by, a court (being an offence committed when the person was a child) shall not be admitted in evidence (whether as to guilt or the imposition of any penalty) in any criminal proceedings subsequently taken against the person in respect of any other offence if:

(a) a conviction was not recorded against the person in respect of the first mentioned offence, and

(b) the person has not, within the period of 2 years prior to the commencement of proceedings for the other offence, been subject to any judgment, sentence or order of a court whereby the person has been punished for any other offence.

(2) Subsection (1) or (3) does not apply to any criminal proceedings before the Children’s Court.

(3) The fact that a person has been dealt with by a warning, caution or youth justice conference under the Young Offenders Act 1997 (being in respect of an alleged offence committed when the person was a child) is not to be admitted in evidence (whether as to guilt or the imposition of any penalty) in any criminal proceedings subsequently taken against the person in respect of any other offence.”

63. In accordance with s.15 of the Act, in circumstances where no conviction was recorded and there were no further offences recorded against the applicant within two years of the non-conviction, the Children’s Court entries were not admissible in the sentence proceedings before his Honour.

64. Whilst the Crown’s submission is that the extent to which the inadmissible evidence affected the sentence imposed upon the applicant is unclear, it plainly had some affect, and perhaps not an insignificant one. His Honour’s comment, extracted at [30] above, suggests that the applicant was denied the leniency which might ordinarily be expected to be allowed to an offender with no relevant criminal history.

65. Error having been established, I would grant leave to the applicant to advance this ground. Whether some other, lesser, sentence is warranted, will be considered below.

“Ground 2: The disparity between the sentence imposed on the applicant and the sentences imposed on the co-offenders Lee and Ngo is such as to leave the applicant with a legitimate sense of grievance”

66. His Honour Judge Walmsley sentenced each of the co-offenders. Andrew Ngo, who was convicted of one count of aiding and abetting the importation of a marketable quantity of a border controlled drug, was sentenced to imprisonment for 5 years and 8 months, with a non-parole period of 2 years and 10 months. Christian Lee was sentenced for the same offence, with a term of 6 years imprisonment imposed. A non-parole period of 3 years was specified.

67. Each of the co-offenders entered a plea of guilty to the charge brought against him, and each received a reduction of 25% in the sentence that would otherwise have been imposed. That reduction was allowed despite the pleas having been entered in each case at a late stage of the proceedings.

68. The applicant contends that the only real difference between his case and that of his co-offenders was the late plea of guilty entered by Ngo and Lee; he argues that the late plea does not justify the difference in the sentences and he is left with a legitimate sense of grievance. He relies upon Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 in support of his argument.

69. The Crown submits that the two co-offenders received an unduly generous discount in recognition of the willingness of each to facilitate the course of justice, but it is not in any event the discounted sentences with which the applicant should compare his own. The Crown contends that the appropriate comparators are the sentences that would have been imposed upon Mr. Lee and Mr. Ngo prior to the application of the discount.

Consideration

70. There appears to be no real issue between the parties that the objective criminality of the applicant and the co-offenders was similar, and each had similar subjective cases, although the applicant, alone of the three, had no relevant criminal history.

71. The role of the applicant and that of Andrew Ngo was about the same in the assessment of the sentencing judge, with each recruiting innocent third parties to accept the delivery of packages, and maintaining contact with the third party and each other to facilitate the delivery. His Honour regarded the criminality of Christian Lee as slightly higher than that of the applicant or Ngo. No issue is taken by either party with those conclusions.

72. Each offender was young: the applicant was aged 19 years at the time of the commission of the offence; Ngo was aged 18; and Lee was 23 years of age.

73. The applicant had no criminal convictions. In sentencing Ngo his Honour referred to him as having “only a minor matter on his criminal history” which entitled him to some leniency. In relation to Lee, the sentencing judge said, “his criminal record is not good but it does permit some leniency”.

74. The sentencing judge was unable to reach any positive conclusion about the applicant’s prospects of rehabilitation. Andrew Ngo was by contrast found to have good prospects of rehabilitation. His Honour found that Christian Lee also had good prospects of rehabilitation, having “gone a very long way towards rehabilitating himself” by the date of sentence.

75. The non-parole period his Honour fixed in each case was fifty per cent of the total sentence. There is no usual ratio of sentence applicable to Commonwealth offences, and so the sentencing judge must have determined that the non-parole period specified for each was the minimum term that justice required be served, having regard to all of the circumstances of the offence: Part 1B of the Crimes Act 1914 (Cth). See generally Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520, and Bugmy v The Queen (1990) 169 CLR 525.

76. Nothing in the evidence before the sentencing court suggests any marked distinction between the three offenders.

77. As senior counsel for the applicant submitted in this Court, the only real distinguishing feature was the discount allowed to each of Ngo and Lee in recognition of their pleas, and willingness to facilitate the course of justice.

78. The circumstances and timing of the pleas entered by the co-offenders would not ordinarily suggest that such a significant discount was warranted. In each case the plea was entered on the morning of trial. For Mr. Ngo, this was some six months after the committal for trial and nineteen months after arrest and charge. For Mr. Lee, the plea was entered six months after a committal at which evidence was contested, and thirteen months after arrest and charge.

79. Although this was a federal offence the timing of the plea is still a relevant consideration in determining the extent of the discount to be allowed an offender in recognition of his or her willingness to facilitate the course of justice. Whilst the guideline judgment of R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 in relation to sentence discounts does not strictly apply, the principles have general application to Federal offences: R v Bugeja [2001] NSWCCA 196 at [24] to [27].

80. For my part, I would characterise pleas entered in such circumstances as these as late, and not ordinarily attracting a discount of more than 10% on sentence. See generally R v Borkowski [2009] NSWCCA 102.

81. The question of a discount to reflect the plea is a matter within the discretion of the sentencing judge, to be exercised in accordance with principle.

82. Here, his Honour determined to award Lee a discount of 25% because, he said, the Crown had not indicated to the offender at a stage earlier than the trial date that it would not proceed with an additional offence relating to proceeds of crime were Mr. Lee to plead guilty to the importation charge. In relation to Mr. Ngo, the sentencing judge awarded a discount of 25% to him because, although the offender was committed for trial on an importation charge, the indictment presented at arraignment and on the trial date was for aiding and abetting importation.

83. Although the approach adopted by his Honour is contrary to authority and, arguably, the sentences imposed upon Ngo and Lee were too low by virtue of the unduly high discount allowed to each, it is noted that the Crown did not bring an appeal against the sentences imposed upon the two co-offenders.

84. The question for present purposes is, does the sentence imposed upon the applicant give rise to a legitimate sense of grievance in light of the sentences imposed upon his co-offenders such that this Court should interfere to resentence the applicant, and reduce his sentence.

85. The principles relevant to an issue of parity were conveniently summarised from Lowe v The Queen and Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 by Hall J (with whom Hoeben CJ at CL and Davies J agreed) in Petterson v R [2013] NSWCCA 133 at [43]. The summary is as follows:

“(1) It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part he or she played in the commission of the offence, have to be taken into account: Lowe at 609.

(2) The parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances: Green at [28].

(3) The consistency required by the parity principle is focused on the particular case and applies to the punishment of "co-offenders": Green at [29].

(4) The foundation of the parity principle requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application: Green at [30].

(5) Nevertheless, as observed above, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant: Green at [30].

(6) In the exercise of the statutory powers of an appellate court, in appeals by convicted persons, a court may "reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender": Green at [31] citing Lowe at [609]-[610].

(7) The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of a person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.

(8) Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a Court of Criminal Appeal's discretion to intervene that the sentence under appeal is otherwise excessive: Green at [32].”

86. Merely pointing to a sentence imposed upon a co-offender which is perceived to be lesser does not of itself establish appealable error or, necessarily, a basis upon which to seek the intervention of an appellate court. It is only where the disparity between sentences is so marked as to engender a justifiable sense of grievance in the offender upon whom the harsher sentence was imposed, or where it gives rise to an appearance of justice not having been done, that the discretion of this Court to intervene is enlivened: Lowe at [610] per Gibbs CJ; Lowe at [618] per Brennan J, and at [624] per Dawson J. See also Green at [32].

87. At the hearing of the application, senior counsel for the applicant provided the Court with a table setting out the sentences of the applicant and the two co-offenders. The table showed the sentences as actually imposed and, for the co-offenders, the sentences as they would have been if the sentencing judge had allowed a discount of 10% on sentence to reflect the willingness of the offenders to facilitate justice, rather than the discount of 25% actually allowed.

88. The applicant’s argument was that the sentencing judge had allowed an overly generous discount in circumstances where the pleas entered by the co-offender’s were late, and should not have merited a 25% reduction. The application of too large a discount had left the applicant “stuck with” a sentence which was considerably longer than those imposed upon Ngo and Lee.

89. The disparity between sentences is completely explained by the discount applied by the sentencing judge to reflect the pleas of guilty. Without any discount, the sentences imposed would have been slightly higher than that imposed upon the applicant, as below:

Applicant	Ngo (Without Discount)	Lee (Without Discount)
7 years 6 months imprisonment	7 years 7 months imprisonment	8 years imprisonment
Non-parole period: 3 years 9 months	Non-parole period: 3 years 9 months	Non-parole period 4 years
(50% of head sentence)	(50% of head sentence, rounded down)	(50% of head sentence)

90. The slight variation in sentence that exists between that imposed upon the applicant and what must have been the starting point for the sentence imposed upon Ngo, whose role and circumstances, other than a minor criminal history, were comparable, is of no significance. Certainly, it is not the sort of marked disparity that the authorities refer to as indicative of possible error.

91. The disparity between the sentences actually imposed upon the three co-offenders is explained by the discount given to Ngo and Lee to reflect the pleas of guilty entered by them. The applicant, who was found guilty at trial, was not entitled to any discount on sentence in recognition of his willingness to facilitate the course of justice. Considered in that way, it cannot be concluded that the applicant’s sense of grievance is a legitimate one.

92. The applicant’s argument, however, is that the discount allowed to Ngo and Lee was erroneously generous and should, having regard to the lateness of the plea, have been no more than 10%. It is the erroneous generosity of the discount which gives rise to the size of the disparity by which the applicant is aggrieved.

93. If the leniency of the sentences imposed upon the co-offenders is explained by error in assessing the extent of the discount allowed them, this Court is not bound to accept those sentences as the yardstick by which the applicant’s sentence is to be judged. An inappropriately low sentence imposed upon a co-offender cannot dictate a reduction in an applicant’s sentence where that sentence is not manifestly excessive.

94. The Crown referred the Court to the decisions in R v Diamond (Court of Criminal Appeal (NSW), 18 February 1983, unrep), R v Steele (Court of Criminal Appeal (NSW), 17 February 1997, unrep), and R v McIvor [2002] NSWCCA 490; [2002] 136 A Crim R 366 at [371], as authority for the proposition that the applicant’s sentence cannot be legitimately compared with an inappropriately low sentence.

95. Those authorities support a conclusion that the discretion that rests in an appellate court to mitigate disparity should not be exercised to reduce an otherwise appropriate sentence to an inadequate level. That view is consistent with both Lowe at [617], and Green v The Queen at [33].

96. The principle was set out by RA Hulme J (with whom Beazley JA and Hidden J agreed) in Youkhana v R [2011] NSWCCA 37 at [49]:

“[…] the Court has a discretion and is not bound to intervene if a sentence offends the parity principle. A reason for not intervening is if the sentence imposed upon the co-offender is manifestly inadequate and intervention would "produce a sentence disproportionate to the objective and subjective criminality involved."

97. Intervention is justified where inconsistency of punishment could lead to a loss of public confidence in the administration of our system of criminal justice, but I do not regard that to be the position here. Whilst the applicant’s sentence is higher than that of his co-offenders, and there is disparity, the disparity is explained by the discount on sentence that featured in the sentences of each of the co-offenders, that feature being irrelevant to the applicant.

98. It was submitted by both the applicant and the Crown that, in assessing the extent of the discount on sentence to be allowed to the co-offenders, the sentencing judge’s discretion miscarried. Whilst I agree with those submissions, that does not, of itself, dictate the intervention of this Court in relation to the sentence imposed upon the applicant.

99. In such circumstances, for this Court to intervene to reduce the sentence imposed upon the applicant to mitigate the disparity between his sentence and the inappropriately reduced sentences of the co-offenders merely compounds the error.

100. As Brennan J noted in Lowe, at 617,

“To say that an appellate court is bound to take the lesser sentence as the norm even though it is inappropriately lenient is tantamount to saying “where you have one wrong sentence and one right sentence [the] Court should produce two wrong sentences” – a proposition that cannot be accepted: per Roskill LJ in Reg. v Stroud [(1977) 65 Cr. App.R. 150 at 152]. I agree with Nagle CJ at CL who said in Tisalandis [[1982] 2 NSWLR 430 at 441]: “to lay down as a principle of law that once disparity was shown to exist a sentence appealed against should be interfered with is so obviously wrong that it needs no argument.”

101. There is no complaint by the applicant that the sentence imposed upon him is manifestly excessive. Indeed, a ground advancing parity ordinarily signals an acceptance that the sentence is otherwise appropriate: McMullen v Regina [2013] NSWCCA 261 at [49]; England v R; Phanith v R [2009] NSWCCA 274 at [22]; Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [251]. That principle was more recently applied by this Court in Saraya v R [2015] NSWCCA 63 at [39].

102. The Crown cited three decisions of the District Court on which it relies to demonstrate that the sentence is an appropriate one.

103. In R v Andrew Zhang (SC08101054), the offender was sentenced by Frearson SC DCJ on 31 July 2009 on one count of aiding and abetting the importation of a marketable quantity of a border controlled drug, namely cocaine, pursuant to ss.307(2)(1) and 11(2)(1) of the Criminal Code. The offender approached five different people, some of whom were only 16 years of age, asked them for their names and contact details, and had them agree to accept a delivery for him in return for monetary payment. Customs intercepted the five packages finding cocaine concealed within the packages. The gross weight of cocaine was 1971.9 grams. Subsequent analysis revealed the purity of cocaine was between 79.8% and 87.1%, with the net weight of pure cocaine of 1645.8 grams. The value of the intercepted drug, if sold at bulk, was calculated to be between approximately $400,000 and $700,000.

104. The offender was also involved in transferring a total of $25,800 overseas over a period of 4 months.

105. Whilst it was accepted that the offender acted on instructions from another individual, the sentencing judge found the offender to be a highly active organiser and co-ordinator with a middle or upper role in the importation enterprise.

106. The offender was 20 years of age. He was residing with his mother and grandmother. He had a caring and supportive upbringing. He was educated to year 12 level. He had prior convictions for drug possession, assault, damage property and weapons charges. He had been using drugs since the age of 15. He committed the offence motivated by the desire for financial reward in order to support his own substance abuse habit, although the sentencing judge concluded that there was an element of greed in it. He was remorseful and was found to have fair prospects of rehabilitation.

107. The offender received a 25% discount for his willingness to facilitate the course of justice as demonstrated by his plea of guilty.

108. He was sentenced to a period of imprisonment of 7 years with a non-parole period of 3 years and 11 months.

109. In R v Vinh Van Tang (SCO81026238) the offender was sentenced by Zahra SC DCJ on 11 December 2009 for 3 counts of importing a marketable quantity of cocaine to Australia contrary to s.307.2(1) of the Criminal Code Act 1995 (Cth).

110. The offences came to light when police intercepted a package that had been delivered to a newsagency and sent from South America. The package contained religious statues in which cocaine was secreted with a bulk weight of 401.1 grams and a pure weight of 264.9 grams. The package was destined for a ‘Keep Me Posted’ post box rented by the offender in a false name. Police also intercepted a package at another newsagency containing cocaine concealed within a facemask. The bulk weight of the drug was 449.9 grams with a pure weight of 264.4 grams. Again, the offender had rented the post box in a false name. A third package was intercepted at a Sydney airport containing cocaine concealed within wooden flutes. It was addressed to a post office box rented by the offender at a third newsagency. The bulk weight was 278.3 grams with a pure weight of 216.5 grams. The offender claimed that he was paid to collect the packages for a friend and had no knowledge of their contents.

111. The offender was 19 years of age, born in Malaysia and of Vietnamese descent. He arrived in Australia as a refugee with his family. He had substantial family support. In Year 10 he suffered a bicycle accident and as a result of extensive rehabilitation, he felt unable to return to Year 11 as he had missed a significant period of schooling. His Honour concluded that the offender had an intellectual disability and was susceptible to manipulation by the principal offender. The offender had no prior criminal history. Judge Zahra found that the offender was motivated by financial reward.

112. The offender was sentenced for 5 years imprisonment for each of the three sentences with an accumulation of one year between each sentence. The total effective sentence of was imprisonment for 7 years with a non-parole period 4 years.

113. In R v Vahe Georkjian (SC071011158) the offender was sentenced in the District Court on 21 December 2009 for one count of aiding and abetting the importation of a marketable quantity of a border controlled drug, namely cocaine, pursuant to ss.307(2)(1) and 11(2)(1) of the Criminal Code. He was also dealt with on one count of Supply Prohibited Drug pursuant to State legislation.

114. In intercepted telephone conversations with a man in the United States, the offender arranged importation of a package and discussed sending his offsider to the States. Customs subsequently intercepted and examined a suspicious packaged addressed to John of Body King Smash Repairs, a business registered in the name of the offender’s brother and operating out of premises owned by the offender’s company. The consignment was a large box attached to a small wooden pallet with a weight of approximately 68 kilograms. Inside the box was an item declared to be a 2002 Volvo brake drum. AFP officers detected the presence of cocaine welded within the lining of the brake drum. The consignment was unique in design so substitution of the drugs was impossible.

115. Police intercepted telephone calls made by the offender regarding the receipt of the consignment. The package was delivered to the Smash Repair premises and the offender was arrested.

116. The total weight of the substance within the drum was 2,950 grams with a net weight of 1,753.2 grams of pure cocaine. The street value was between approximately $1 million and $1.4 million.

117. The offender was 47 years of age, of Armenian descent. He had migrated to Australia with his family at the age of 13. He completed an apprenticeship in panel beating, and had established a successful panel beating business. However, the company went into liquidation after the collapse of the insurance companies HIH and FAI. The offender’s attempts to recover the business led to great stress and the breakdown of his marriage, which in turn led him to commence using cocaine some two years prior to the offence (although there was a much longer history of cannabis use). The offender subsequently managed to establish a successful property development company, and he was described as a hardworking man of prior good character.

118. The offender purchased cocaine from the principal. Whilst acknowledging he knew that the principal imported cocaine, he denied any knowledge of this particular importation until the day the package arrived. Other explanations for the intercepted conversation were offered. The sentencing judge did not accept the offender’s claims, and found the offender’s involvement to be more substantial. Nevertheless, the offender’s role was assessed to fall at a lower end, below that of two co-offenders.

119. The offender pleaded guilty on the first day of the trial to an alternative count. The sentencing judge took into account the offender’s willingness to facilitate the course of justice but noted the plea was a recognition of the inevitable in light of the strong Crown case. The offender offered assistance to the authorities and undertook to give evidence against his co-offenders. He was afforded a discount of 35% in recognition of the plea and assistance.

120. The offender had no criminal record, was remorseful and had good prospects of rehabilitation.

121. Having considered sentences imposed on the co-offenders, on the relevant charge the sentencing judge sentenced the offender to 5 years and 10 months with a non-parole period of 3 years and 6 months. The total effective sentence incorporating the State offence was imprisonment for 6 years and 10 months, with a non-parole period of 4 years and 6 months.

122. Three sentencing decisions of the District Court do not, of course, establish a range for an offence of this nature: Hili, at [53]. They do though, support the concession of the applicant, implicit in the parity ground, that the sentence of which he complains is not manifestly excessive.

123. Such grievance as the applicant may feel when comparing the sentence imposed upon him is not, in my view, justifiable. His sentence compares favourably to those imposed upon Ngo and Lee prior to the application of the discount. The fact that the sentencing judge reduced the sentences by too great an amount, leading to the imposition of inappropriately lenient sentences on the co-offenders may leave the applicant feeling aggrieved, but his grievance is not legitimate.

124. Although I would grant leave to the applicant to advance this ground, I do not regard error as having been established, and would not uphold this ground.

Should this Court Impose a Lesser Sentence?

125. Error having been established in relation to ground 1, the question remains as to whether or not this Court should intervene to re-sentence the applicant. Section 6(3) of the Criminal Appeal Act 1912 (NSW) is in these terms.

“(3) On an appeal under section 5 (1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”

126. Even where error has been established, an appellate court is not obliged to interfere with the sentence imposed at first instance if no lesser sentence is warranted in law. The task of the appellate court in such circumstances is to re-exercise afresh the sentencing discretion: Davis v R [2015] NSWCCA 90, at [84].

127. The underlying principle, however, is that the sentence imposed must not be one which is disproportionate to the objective and subjective criminality involved. Having regard to both of those features, I do not think this Court should intervene to reduce the sentence imposed upon the applicant. Having considered all of the admissible evidence that was before the sentencing judge to re-exercise the sentencing discretion, I would not impose any lesser sentence than that which was imposed at first instance. Any lesser sentence would, in my view, amount to one which is inadequate.

128. That is particularly so with respect to the non-parole period. A ratio of 50% of sentence, leading to a non-parole period of three years and nine months, represents a markedly lenient approach.

129. Any reduction in the sentence imposed would have the effect of lowering it to one which is incapable of reflecting the serious criminality of which the applicant was found guilty, or of fulfilling other relevant purposes of sentence, including that of general and specific deterrence, denunciation, and adequate punishment.

130. That being so, although I would grant the applicant leave, I would dismiss the appeal.

131. The orders I propose are:

1. Order that leave to appeal be granted.

2. Order that the appeal be dismissed.

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Decision last updated: 03 July 2015