Tsimingos v The Queen

[2021] NSWCCA 107

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Tsimingos v R [2021] NSWCCA 107

Hearing dates:

30 April 2021

Date of orders:

28 May 2021

Decision date:

28 May 2021

Before:

Hoeben CJ at CL at [1]
Bellew J at [2]
N Adams J at [66]

Decision:

(1) The time for filing the notice of application for leave to appeal is extended until 17 February 2021.

(2) Leave to appeal is granted.

(3) The appeal is allowed.

(4) The sentence imposed in the District Court is quashed.

(5) In lieu thereof the applicant is sentenced to 8 years and 3 months imprisonment commencing on 20 February 2017 and expiring on 19 May 2025.

(6) Specify a non-parole period of 6 years and 2 months imprisonment commencing on 20 February 2017 and expiring on 19 April 2023.

Catchwords:

CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Whether the applicant’s sentence was manifestly excessive – Serious offending – Substantial maximum penalty – Significant role played by the offender – Necessity for any sentence to reflect principles of general deterrence – Sentence not manifestly excessive

CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Parity principle – Whether the applicant had a justifiable sense of grievance in light of the sentence imposed upon co-offender – Where the applicant was found by the sentencing judge to have been slightly less involved than his co-offender – Where the applicant suffered significant injuries as a consequence of an explosion during the course of the offending – Where those injuries constituted extra-curial punishment – Where those injuries would render the applicant’s period in custody more onerous – Other differentiating factors between the applicant’s subjective case and that of his co-offender – Applicant found to be remorseful and to have good prospects of rehabilitation – No such findings made in the case of the co-offender – Leave to appeal granted – Appeal allowed – Applicant re-sentenced

Legislation Cited:

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Alameddinev R [2006] NSWCCA 317

Christodoulou v R [2008] NSWCCA 102

Gill v R [2010] NSWCCA 236

Goodbun v R [2020] NSWCCA 77

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Li v R [2021] NSWCCA 75

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

Powerv The Queen; Selenski v The Queen; Lyons v The Queen (1974) 131 CLR 623; [1974] HCA 26

R v Amati [2019] NSWCCA 193

R v Lewis [2018] NSWDC 522

R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534

Silvano v R [2008] NSWCCA 118; (2008) A Crim R 593

Tatana v R [2006] NSWCCA 398

Category:

Principal judgment

Parties:

Bill Tsimingos – Applicant
Regina – Respondent

Representation:

Counsel:
K Averre – Applicant
S Traynor – Respondent

Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent

File Number(s):

2016/11436

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

24 May 2017

Before:

Her Honour Judge Noman SC

File Number(s):

2016/11436

Judgment

1. HOEBEN CJ at CL: I agree with Bellew J and with the orders he proposes.

2. BELLEW J: Bill Tsimingos (the applicant) pleaded guilty in the Local Court to an offence of manufacturing a large commercial quantity of a prohibited drug, namely methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1995 (NSW). That offence carries a maximum penalty of life imprisonment and a prescribed standard non-parole period of 15 years imprisonment. The applicant adhered to his plea when he subsequently appeared before the District Court. On 24 May 2017, he was sentenced by her Honour Judge Noman SC to imprisonment for 9 years with a non-parole period of 6 years and 9 months.

3. The applicant’s co-offender, Mark Brett Lewis (Lewis), was found guilty by a jury of the same offence. On 14 December 2018 (i.e. after the applicant was sentenced) Lewis was sentenced by his Honour Judge Neilson to imprisonment for 12 years with a non-parole period of 9 years.

4. The applicant now seeks leave to appeal against his sentence on the grounds more fully discussed below. He requires an extension of time which was not opposed by the Crown.

THE FACTS OF THE OFFENDING

5. A statement of agreed facts was before the sentencing judge which her Honour summarised as follows: [1]

   1. Commencing at ROS 1; AB 3.

Methylamphetamine was being manufactured in a shed at a property at Kurrajong. On 29 December 2015, there was an explosion that attracted the attention of neighbours and ultimately the police. Police located 13kg of a drug-reaction material in a steel vessel. The vessel could accommodate a volume of 220 litres. It had been custom built by a co-offender Raymond Bell. Some of the mixture was dispersed in the explosion. Of the amount remaining, analysis determined it to contain 587 grams of pure methylamphetamine.

Michael Stewart owned the property. He was approached by co-offender Mark Lewis in September or October 2015 about storing items on the property. He agreed. Lewis contacted Stewart on 28 December to tell him it ‘may be on’ and that he would see him that night. At about 8pm on 28 December 2015, the offender with Lewis and Bell arrived at the property.

Police ascertained that the offender was involved at least by 23 December 2015 when he was captured on CCTV purchasing six gas burners from Bunnings to be used in the manufacture.

Bill was implicated on CCTV purchasing other items from Target on 28 December 2015.

Whilst at the property for a ‘cook-up’, the offender assisted Lewis and Bell to tape black plastic to the windows. Lewis told Stewart the process would take a couple of hours. The offender asked Stewart for something to fit inside a funnel. Lewis and Bell were crushing a crystalline substance outside the shed.

Lewis left the shed at some time coughing and complaining of having inhaled something. Lewis went inside the house to lie down.

Stewart went to the shed around 6am the following morning. The offender and Bell exited the shed. Stewart enquired of the offender how it was going. The offender told Bell the process of cooling down was taking too long. The offender re-entered the shed and soon after the explosion occurred.

The offender exited the shed, having suffered significant injuries. Lewis and Bell carry the offender to Lewis’ vehicle and they drove away.

When police arrived, they observed the first vessel damaged in the explosion and a second similar but unused vessel.

The offenders' vehicle was still at the property and sunglasses with his DNA and fingerprint was located on a drink bottle. Other offenders were also implicated by DNA fingerprints.

The offender was taken to hospital by his wife later that evening. Stewart disclosed his knowledge and advised police of other information that led them to witnesses and CCTV evidence implicating the offenders. The offender was arrested in hospital on 13 January 2016 and the co-accused in the following days.

6. In terms of the amount of the methylamphetamine which was the subject of the offending, her Honour said: [2]

The pure amount is marginally greater than the lower amount for this offence. The drug sought to be manufactured was methylamphetamine. An assessment of seriousness is not determined on the pure amount. I am to determine the seriousness based upon the pure amount; that 13 kilograms was located after an unknown quantity was dispersed in the explosion and accepting that the manufacture was not complete. Some of the product located in the actual vessel would have been reduced if the manufacture process had continued. This imprecision renders it impossible to proceed on a definite quantity. However, it falls somewhere between the pure and overall weight. It was well within the large commercial quantity but also assessed against the infinite upper range.

2. ROS 4-5; AB 6-7.

THE ROLE OF THE APPLICANT

7. The agreed facts before her Honour included a concession that the applicant was “not at the top of the hierarchy”. [3] In assessing the applicant’s role, and in ultimately concluding that his offending fell below the mid-range of objective seriousness, [4] her Honour said: [5]

At paragraph 34, it was accepted by the Crown that there was no evidence the offender was involved in the planning or organisation of the enterprise. Both accepted that the statement at paragraph 22 did indicate earlier involvement and indicated some involvement in the planning. The acts undertaken by the offender informed his participation, although I am mindful of the overall enterprise given the reliance upon a joint criminal enterprise. The available evidence implicates the offender in purchasing some items to be used in the manufacture process and being at the shed for the duration of the manufacture undertaken. Lewis is implicated in organising the location and being involved initially in the manufacture process. Bell is implicated in purchasing items on the day of the commencement of the manufacture and at some earlier time custom-building the vessels. Both the offender and Bell continued with the manufacture when Lewis had absented himself due to inhaling chemicals. This impact of inhaling chemicals demonstrated the actual rather than inherent risk of engaging in illicit manufacture. The offender did not cease his involvement even when Lewis was required to absent himself. Clearly from what was said and done, both the offender and Bell played a continuing role in the ill-fated manufacture. Without categorising the role, it was apparently one of three involved in the cook and one of two who maintained proximity to the cook. Lewis appears to have served the role of facilitating the manufacture to sourcing the property well ahead of the cook and participating to a lesser extent in the manufacture. There was some pre-involvement as evidenced by the Bunnings trip. The available evidence would suggest he was differently and slightly less involved as against the co-offenders.

The evidence does not disclose who financed the operation and whether others were involved. It was evidently for profit, although the quantum is not indicated. Manufacturing a large commercial quantity of a prohibited drug would almost invariably be undertaken for profit, but I do not determine this aggravated the offending given its implicit operation.

3. ROS 3; AB 5.

4. ROS 5; AB 7.

5. ROS 3 – 4; AB 5 – 6.

8. Although the final sentence of that paragraph is a little ambiguous, the reference to the “Bunnings trip” in the immediately preceding sentence was clearly a reference to the applicant. It follows that the final sentence must be construed as a finding that the applicant was differently and slightly less involved than Lewis.

THE APPLICANT'S SUBJECTIVE CASE

9. Her Honour describing the applicant’s involvement in the offending as “inexplicable and an aberration” [6] and found that the applicant:

   6. ROS 9; AB 11.

1. was a person of prior good character; [7]

2. was remorseful, [8]

3. had “highly favourable” prospects of rehabilitation; [9] and

4. was “most unlikely” to reoffend. [10]

   7. ROS 5; AB 7.

   8. ROS 6; AB 8.

   9. ROS 9; AB 11.

   10. ROS 9; AB 11.

10. A report of Dr Jack Zoumaras, the applicant’s treating Reconstructive Surgeon, dated 28 April 2017 was tendered before the sentencing judge. Dr Zoumaras summarised the injuries sustained by the applicant in the explosion as follows: [11]

1. 100% full thickness laceration of the left common peroneal nerve;

2. 13% total body surface area burns;

3. multiple shrapnel punctures to both lower limbs greater than 20% per limb;

4. a deep laceration of the left knee; and

5. multiple glass fragments in both legs.

11. AB 56- 57.

11. Dr Zoumaras confirmed that upon admission to hospital following the explosion, the applicant underwent surgery for the debridement of his wounds, the exploration of the knee joint and the repair of the lacerated nerve. Three surgeries carried out in the weeks following the applicant's admission to hospital involved further debridement of the wounds and the application of skin grafts. The applicant remained in hospital for a period of six weeks in order for the skin grafts to heal.

12. The prognosis of Dr Zoumaras in terms of the applicant’s likelihood of a complete recovery was guarded. He cited (inter alia) the possibility of the applicant suffering from contracture of the scarring which, if it eventuated, would necessitate surgery to release the scars and apply re-grafts, as well as the possibility of the applicant having to undergo surgical management of the scars in order to address the shrapnel wounds and remove glass fragments. Dr Zoumaras also made reference to the necessity for the applicant to wear an orthotic boot and to undergo physiotherapy. [12]

    12. AB 57.

13. In addressing the applicant’s injuries, her Honour said: [13]

The offender suffered significant physical injuries. It was submitted, and I accept, that these physical injuries amount to extra curial punishment.… The explosion caused substantial burns, lacerations to a nerve into the knee, shrapnel punctures and multiple glass fragments. The offender underwent four operations on his injuries between 31 December 2015 and 15 January 2016 to repair nerve damage, perform skin grafts and address other injuries. He remained in hospital for a period of eight weeks. The ankle nerve damage continues to improve during that 12 to 18 month period of nerve regeneration. Other injuries may require further management and treatment.

I accept that the offender continues to have ongoing issues. I do not accept these physical issues cannot be addressed by Justice Health. I accept, however, they will have a moderate impact on rendering his incarceration more difficult. I accept that the medical outcome should mitigate sentence.

13. ROS 6 – 7; AB 8 – 9.

14. Her Honour also found that the applicant was sensitive to noise as a result of the explosion, and that this was a factor which would render his incarceration more onerous than would otherwise have been the case. Her Honour applied what she described as a “slight amelioration in sentence" to reflect that factor. [14]

    14. ROS 8; AB 10.

15. A report of Dr Emma Collins, Clinical and Forensic Psychologist, was before the sentencing judge. Dr Collins reported that results of clinical testing revealed that the applicant had a depressed mood, consistent with his having reported depressive thinking, physiological symptoms and a low mood. [15] Dr Collins also concluded, absent a formal diagnosis, that the applicant exhibited symptoms of Post-Traumatic Stress Disorder. [16]

    15. AB 53.

    16. AB 54.

16. A report of Pamela Brady, Psychologist, of 17 May 2017 was also tendered before the sentencing judge. [17] Ms Brady had been treating the applicant since April 2017, having diagnosed him as displaying symptoms consistent with a diagnosis of Post-Traumatic Stress Disorder.

    17. AB 58.

17. Given the absence of a formal diagnosis by Dr Collins, her Honour did not accept that the applicant suffered from Post-Traumatic Stress Disorder. Her Honour concluded that the applicant’s reported symptoms were relatively common, and were of a kind which could be more than adequately managed by Justice Health. [18] Her Honour also found that any mental health issues did not reduce the applicant’s moral culpability. [19]

    18. ROS 8; AB 10.

    19. ROS 5; AB 7.

18. In terms of parity (and bearing in mind that Lewis had not yet been sentenced) her Honour said: [20]

It is generally appropriate that regard be given to sentences received by co-offenders. Only one co-offender has been sentenced. Michael Stewart was sentenced in the Local Court for an offence of concealing a serious offence. The objective circumstances, reflected by the offence and the details identified in the agreed facts, are so fundamentally different as to limit the utility that might be gained in the present exercise for advertence to that co-offender [sic] sentence.

20. ROS 6; AB 8.

THE GROUNDS OF APPEAL

19. The applicant relied upon two grounds of appeal, the first of which was based upon parity considerations and the second of which asserted that the sentence imposed was manifestly excessive. It is appropriate to address the manifest excess ground first, given that a ground based on parity assumes that the sentence imposed is otherwise within range. [21]

GROUND 2 – THE APPLICANT’S SENTENCE WAS MANIFESTLY EXCESSIVE

SUBMISSIONS OF THE PARTIES

21. See Tatana v R [2006] NSWCCA 398 at [15]; Gill v R [2010] NSWCCA 236 at [50]; Li v R [2021] NSWCCA 75 at [41] and the authorities cited therein.

Submissions of the applicant

20. Counsel for the applicant did not challenge any of the factual findings of the sentencing judge, be they in relation to the circumstances of the offending, the applicant’s role, or the applicant's subjective case. Counsel identified the following factors which, he submitted, supported a conclusion that the sentence imposed was manifestly excessive.

21. Firstly, counsel pointed out that the applicant had been found by the sentencing judge, based on the agreed facts, to be “differently and slightly less involved” than Lewis.

22. Secondly, counsel pointed to the fact that the applicant’s offending was found by the sentencing judge to be below the mid-range of objective seriousness, in circumstances where the role played by the applicant, whilst obviously necessary, was not high in terms of the relevant hierarchy, and resulted in the applicant being placed in a position where he was likely to be (and was in fact) exposed to both injury and detection.

23. Thirdly, counsel pointed to the significant physical injuries which were sustained by the applicant as a consequence of the explosion, and their ongoing sequelae, which would render his conditions of custody more onerous.

24. Fourthly, counsel pointed to her Honour’s recognition of the fact that a further adjustment to the sentence (albeit a slight one) was required to reflect the fact that the applicant's conditions of custody would be rendered more onerous as a consequence of the fact that he was more susceptible to noise.

25. Fifthly, counsel relied upon the finding made by the sentencing judge that the applicant was remorseful.

26. Sixthly, counsel pointed to the positive findings made by the sentencing judge as to the unlikelihood of the applicant re-offending, and his prospects of rehabilitation.

27. Finally, counsel submitted that the applicant was entitled to leniency in light of his lack of criminal history.

28. In advancing these submissions, counsel made reference to sentencing statistics for this offence. He also took the Court to the sentences imposed in a number of other cases involving what was said to be comparable offending and submitted that such material provided further support for the conclusion that the sentence was manifestly excessive.

Submissions of the Crown

29. The Crown relied upon a series of factors in support of a conclusion that the sentence was not manifestly excessive.

30. Firstly, the Crown pointed to the maximum penalty of life imprisonment, and the prescribed standard non-parole period of 15 years imprisonment. The Crown submitted that these were indicators of the seriousness with which the Parliament viewed this offending, and that they served as important guideposts for the sentencing judge.

31. Secondly, the Crown pointed to the quantity of methylamphetamine involved in the offending.

29. Thirdly, whilst acknowledging the subjective factors in the applicant’s favour, the Crown submitted that those factors had been taken into account by the sentencing judge and had been given appropriate weight. The Crown submitted that notwithstanding that subjective case, general deterrence remained an important factor in sentencing for offending of this nature, particularly in circumstances where the overwhelming inference was that it had been committed for monetary reward.

30. Fourthly, the Crown pointed to the finding of the sentencing judge that the applicant's moral culpability was not reduced by factors impacting upon his mental health.

31. Finally, in terms of the statistical material relied upon by the applicant, the Crown submitted that such statistics were of limited utility in circumstances where they were based upon a small sample of cases. As to the sentences imposed in other cases to which the Court was taken by counsel for the applicant, the Crown submitted that those cases were, in various respects, distinguishable from that of the applicant, that they did not establish a sentencing range, and that they did not otherwise support a conclusion that the sentence imposed was manifestly excessive.

CONSIDERATION

35. In Goodbun v R this Court summarised the relevant principles applicable to a ground of appeal asserting manifest excess of sentence as follows: [22]

    22. [2020] NSWCCA 77 at [254] citing Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].

1. appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

2. intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

3. it is not to the point that an appellate court might have exercised the sentencing discretion differently;

4. there is no single correct sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

5. it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

36. I have had regard to the both the statistics provided by counsel for the applicant, and to the sentences imposed in the other cases to which the Court was referred. In evaluating such material, it is necessary to bear in mind that consistency in sentencing is not demonstrated by, and does not require, numerical equivalence. The consistency that is sought is consistency in the application of relevant legal principles. [23] Having read the cases to which the Court was referred, and without engaging in a lengthy analysis of each of them, each can be distinguished from the present case on one or more bases. The sentences imposed in those cases do not establish a range, nor do they support a conclusion that the sentence imposed upon the applicant was manifestly excessive. Likewise, the statistics do not support that conclusion, given the small size of the sample and the absence of any details of the circumstances of any of the offending to which they relate.

    23. Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48] – [49].

37. As I have previously noted, none of the factual findings made by the sentencing judge were challenged before this Court. The role which the applicant was found to have played in the manufacture was not insignificant, and was obviously carried out for monetary reward. The serious nature of the offending, and the amount of methylamphetamine involved, necessarily meant that general deterrence was an important factor in determining an appropriate sentence. Further, as the Crown pointed out, the maximum penalty of life imprisonment, and the standard non-parole period of 15 years imprisonment, necessarily served as important legislative guideposts for the sentencing judge, and reflected the seriousness with which the Parliament views this kind of offending.

38. There is no doubt that the applicant's subjective case was strong in a number of respects. He pleaded guilty at the first available opportunity. The sentencing judge made a series of favourable findings as to remorse, his prospects of rehabilitation, and the unlikelihood of his reoffending. The nature and severity of his injuries clearly amounted to significant extra-curial punishment and were a particularly powerful mitigating factor.

39. However, it is clear that her Honour took into account all of those factors in arriving at the sentence that she did. I infer that in doing so, her Honour was mindful of the fact that there must be reasonable proportionality between any sentence imposed and the gravity of the offending,[24] and that an offender's subjective case, however powerful, must not be permitted to result in the imposition of a sentence which fails to reflect that gravity. I also infer that her Honour was mindful of the fact that the fixing of any non-parole period was not a matter to be determined solely, or even primarily, by reference to subjective considerations, but was to be fixed according to what the circumstances of the case indicated should be the minimum period of actual incarceration. [25]

    24. R v Amati [2019] NSWCCA 193 at [120] per Johnson J and the authorities cited therein.

    25. R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [59] per Spigelman CJ citing Power v The Queen; Selenski v The Queen; Lyons v The Queen (1974) 131 CLR 63; [1974] HCA 26.

40. In all of these circumstances, I am not satisfied that the sentence was manifestly excessive.

41. This ground is not made out.

GROUND 1 – THE APPLICANT HAS A JUSTIFIABLE SENSE OF GRIEVANCE WHEN COMPARING THE SENTENCING IMPOSED UPON HIM AGAINST THE SENTENCE IMPOSED UPON THE CO-OFFENDER MARK BRETT LEWIS

The sentence imposed on Lewis

42. I have previously noted, the sentence imposed on Lewis following his trial was imposed after the applicant was sentenced. In addressing Lewis’ role, Judge Neilson said:[26]

[25] What was this offender's role? He clearly persuaded Mr Stewart to lend to the enterprise Mr Stewart’s property so that the cooking ‘kit’ could be stored there and the ‘cook’ carried out there. He knew what the kit was for because he told Mr Stewart it was for the purpose of a ‘cook-up’. He knew when the ‘cook-up’ was to occur because he told Mr Stewart of it on the morning of the evening on which it commenced. He took to Mr Stewart’s property items which were used in the cook or were needed for a continuation of the cook, namely the blue hosing, the pump on the gas bottles. The gas bottles and a pump were found in a shed after the explosion. He was not seen by Mr Stewart to be assembling the reaction vessel but he was seen actively engaged in crushing material, which may well have been Iodine, that was used in the manufacture of the methylamphetamine.

[26] He appears to have been overcome by fumes from the process at some stage, probably around 11.00pm, and took no further part in the cook-up. He assisted Bell in placing [the applicant] in his vehicle and take him away from the site of the explosion from the property in East Kurrajong. Eventually [the applicant] was taken to hospital at Mount Druitt on the night of 29 December 2015. He was transferred thence to Westmead Hospital and thence to Royal North Shore Hospital. The offender sought to cover his tracks by having his council utility detailed to try to remove evidence that it had been splattered by the contents of the exploded reaction vessel. Having said that, there is no evidence that this ‘cook-up’ was planned by this offender or that he stood to gain a large amount of money from it. If I categorise the offender as a ‘worker’ in some other person's scheme, one would expect him to obtain some reward of a financial nature, but one would not expect him to obtain what could be described as ‘profit’ from the venture.

26. R v Lewis [2018] NSWDC 522 at [25] – [26].

43. Having noted that Judge Noman SC had determined the applicant’s role by reference to agreed facts by which he was not bound, Judge Nielson went to say:[27]

[27] … The evidence establishes that it was Bell who manufactured the ‘kit’ that was used in the production of the large commercial quantity of methylamphetamine, which kit failed and led to Tsimingos’ injuries. However, there is no evidence that Tsimingos was the principal nor is then any evidence that Bell was the principal, although he appears to have some familiarity with the process from having manufactured the ‘kit’.

…

It appeared to have been accepted at Tsimingos’ sentencing hearing that the roles of the current offender and Tsimingos and Bell were similar.

27. At [27].

44. Judge Neilson then returned to the role of Lewis:[28]

    28. At [31] – [32]; [36].

[31] Again I come back to the question of what was the role of the offender in this joint criminal enterprise. The only thing I can do is to put him on the same basis as [the applicant], that is, as a ‘worker’ in the project that may have been overseen by Mr Bell but may well have been somebody else's project. The only rational inference to draw is that there was some promise of material reward to the offender because of his involvement in the enterprise. The offender was not a user of illicit drugs so it was not to obtain illicit drugs or money to support an illicit drug habit. That money which would probably not be taxed would be used to support his own lifestyle and his own financial interests.

[32] In my view, parity plays a major role in this case. Her honour allowed to [the applicant] a discount of 25% for the utilitarian value of his plea of guilty. Her Honour fixed ahead sentence of nine years imprisonment. That means that if [the applicant] had not pleaded guilty her Honour would have sentenced him to imprisonment for 12 years. This offender finds himself in that position. Indeed, this offender finds himself in a worse position. [The applicant] clearly had his sentence reduced because of the injuries he received which her Honour described as ‘extra curial punishment’. Had he not received the injuries he did, he would have received a higher sentence than 12 years imprisonment. On the other hand, this offender stopped his involvement because of a medical issue about 11.00pm on 28 December 2015 and it appears that [the applicant] and Mr Bell may have continued their involvement for a further seven hours until the explosion. Those considerations may cancel each other out. Subject to considering the personal circumstances of the offender, it appears to me that ahead sentence of 12 years is appropriate.

…

[36] I have mentioned the sentence passed upon [the applicant] to point to the matters to which I have referred. Passing a sentence of less than 12 years imprisonment upon this offender would cause [the applicant] to complain that there was no point in his pleading guilty because the effect his reward for pleading guilty was not as great as he had been led to believe. At the time of the offence now in question the offender was 39 years old. He is now 42 years old. According to Judge Noman’s remarks, [the applicant] suffered ‘no disadvantage prior to offending’. Neither did the current offender. According to her Honour, [the applicant] had experienced ‘financial pressures, although it is observed that the offender was quite 'reasonably stable in terms of career in housing’’. Even if the current offender perceived himself to be under financial pressure, there are other ways of increasing one's income then turning to the manufacture of illicit drugs. Her Honour accepted that [the applicant] was remorseful for. There is no evidence of the current offender is awful. The history which he gave to Dr Allnutt indicates that [sic] does not accept the validity of the juror's verdict. Remorse is a mitigating is a mitigating factor with current offender shows no remorse. There is nothing to differentiate this offender from [the applicant] other than [the applicant’s] injuries and his remorse.

[37] Her Honour found the prospects of rehabilitation were ‘highly favourable’. If the offender admitted his guilt I would make the same finding, but I believe the gaol sentence that the offender must serve will deter him monumentally from involving himself again in anything of this nature.

SUBMISSIONS OF THE PARTIES

Submissions of the applicant

45. The primary submission of counsel for the applicant was that there should not have been parity in the starting point of the respective sentences imposed upon the applicant and Lewis primarily because:

1. the applicant was entitled to a reduction in his sentence on account of the extra-curial punishment brought about by the injuries sustained in the offending; and

2. the sentencing judge had accepted the applicant's expressed remorse.

46. As to the first matter, counsel for the applicant submitted that the applicant’s significant physical injuries, and the physical and psychological sequelae, served as an important point of distinction between his subjective case and that of Lewis. Counsel submitted that those injuries were not properly regarded as having been self-inflicted, but had been accidently inflicted in the course of the offending.

47. It was further submitted that, coupled with the finding of the sentencing judge as to the applicant’s remorse, and the adjustment made to reflect the fact that the applicant's conditions of custody would be more onerous, a lower starting point was warranted in respect of the applicant’s sentence.

Submissions of the Crown

48. The Crown submitted that in sentencing Lewis, Judge Neilson had distinguished between what the applicant had done and what the co-offender had done in furtherance of the joint criminal enterprise. The Crown emphasised, in particular, the finding that the applicant had continued with the manufacture after the involvement of Lewis had ceased.

49. The Crown further emphasised that in sentencing Lewis, Judge Neilson had found that other than the applicant's injuries and remorse, there was no real difference in his subjective case compared with that of the co-offender. It was submitted that in these circumstances, the applicant had no justifiable sense of grievance.

CONSIDERATION

50. The principle of equal justice requires, so far as the law permits, that like cases be treated alike. Equal justice also requires, where permissible, the different treatment of persons according to the differences between them. Consistency in the punishment of offences against criminal law finds its expression in the parity principle which requires that like offenders should be treated in a like manner, and which allows for different sentences to be imposed on like offenders to reflect different degrees of culpability and/or different circumstances. [29]

    29. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan J and Kiefel (as her Honour the Chief Justice then was) and the authorities cited therein.

51. The parity principle also recognises that equal justice requires that as between co-offenders, there should not be a marked disparity which gives rise to one offender having a justifiable sense of grievance. The question is always one of due proportion being structured between those sentences which is to be determined having regard to the different circumstances of the co-offenders and their different degrees of criminality. [30]

    30. Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26 (per Dawson and Gaudron JJ; Lowe v The Queen (1984) 154 CLR 606 at 610 – 611; [1984] HCA 46 per Mason J (as His Honour then was).

52. In my view, the finding made by Judge Neilson that there was “nothing to differentiate [Lewis] from [the applicant] other than [the applicant's] injuries and his remorse”[31] was not correct. There were, in fact, a number of matters which distinguished the two cases.

    31. At [36].

53. Firstly, the applicant was entitled to a discount of 25% on account of his early plea of guilty. Lewis elected to go to trial, following which he was found guilty by a jury.

54. Secondly, Judge Noman SC concluded, on the basis of the agreed facts before her, that the applicant was “slightly less involved” than Lewis.

55. Thirdly, the applicant had the benefit of a finding that he was remorseful. No such finding was made in the case of Lewis.

56. Fourthly, the applicant's prospects of rehabilitation were found by Judge Noman SC to be highly favourable. When sentencing Lewis, Judge Neilson found himself unable to make a similar finding in the absence of an admission of guilt.

57. Fifthly, Judge Noman SC found, on the basis of what her Honour described as the applicant's “own insight supplemented by strong support in the community”, that the applicant was most unlikely to reoffend. No such finding was made in favour of Lewis by Judge Neilson.

58. Sixthly, the applicant suffered significant physical injuries, which were properly regarded extra-curial punishment[32] and which were found would render the applicant’s conditions of custody more onerous. The applicant was also found to be sensitive to noise as a consequence of the explosion. All of these matters ameliorated the applicant’s sentence. None of them had any role to play in the case of Lewis.

    32. See Silvano v R [2008] NSWCCA 118 at [30]; (2008) A Crim R 593 per James J, Hoeben J (as his Honour then was) and Hislop J agreeing; see also Christodoulou v R [2008] NSWCCA 102 at [41] per Grove J, Johnson J agreeing citing Alameddine v R [2006] NSWCCA 317.

59. In sentencing the applicant, her Honour adopted a starting point of 12 years imprisonment, from which she deducted 25% on account of the applicant’s early plea of guilty, yielding a head sentence of 9 years imprisonment. That starting point of 12 years was the same as the head sentence imposed on Lewis by Judge Neilson.

60. I hasten to point out that when sentencing the applicant, Judge Noman SC did not have the benefit of being able to compare the applicant’s position with that of Lewis. However, in circumstances where her Honour found that the applicant’s role was slightly less, and where the applicant was able to rely on a series of subjective factors which had no role to play in determining the sentence to be imposed on Lewis, I take the view that the applicant has a justifiable sense of grievance.

61. It follows that this ground has been made out.

Re-sentence

62. In re-sentencing the applicant, and in circumstances where no issue was taken with any of the findings reached by the sentencing judge. I have adopted those findings, both as to the objective seriousness of the offence and the applicant’s subjective case.

63. Two affidavits were read without objection for the purposes of resentence, namely:

1. the applicant of 6 April 2021;

2. Janet Witmer, Solicitor, of 20 April 2021.

64. In his affidavit, the applicant made reference to suffering from depression since being sentenced, as well as to the ongoing difficulties posed by his injuries. Notwithstanding these matters, it appears that the applicant is using his time in custody productively. In particular, he has engaged in employment and has undertaken a number of courses. Those factors, all of which were confirmed by the documents annexed to the affidavit of Ms Witmer. tend to fortify the favourable conclusion reached by Judge Noman SC as to the applicant’s prospects of rehabilitation. I have taken all of those factors into account.

ORDERS

65. I propose the following orders:

1. The time for filing the notice of application for leave to appeal is extended until 17 February 2021.

2. Leave to appeal is granted.

3. The appeal is allowed.

4. The sentence imposed in the District Court is quashed.

5. In lieu thereof the applicant is sentenced to 8 years and 3 months imprisonment commencing on 20 February 2017 and expiring on 19 May 2025.

1. Specify a non-parole period of 6 years and 2 months imprisonment commencing on 20 February 2017 and expiring on 19 April 2023.

66. N ADAMS J:    I agree with Bellew J.

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Endnotes

Amendments

31 May 2021 - Adams J now reads "N Adams J" on coversheet and para. [64].

Decision last updated: 31 May 2021