Vinh The TRUONG v R

[2009] NSWCCA 122

Reported Decision: 195 A Crim R 192

New South Wales

Court of Criminal Appeal

CITATION:	Vinh The TRUONG v R [2009] NSWCCA 122
HEARING DATE(S):	2 February 2009
JUDGMENT DATE:	29 April 2009
JUDGMENT OF:	McClellan CJatCL at 1; James J at 6; Adams J at 9
DECISION:	Leave to appeal granted. 2. Appeal upheld, the sentence quashed and substituted therefor a non-parole period of two years commencing on 13 June 2007 and a total term of three years and four months commencing on 13 June 2007 and ending on 12 October 2010. The applicant will be eligible for release on parole on 12 June 2009.
CATCHWORDS:	Sentence appeal - parity - comparison of starting points before differentiating discounts - significance of manifestly inadequate comparator
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 12 Drug Misuse and Trafficking Act 1985 s 25A
CATEGORY:	Principal judgment
CASES CITED:	Lewins v R [2007] NSWCCA 189 Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 295 at 314 R v Kairouz [2005] NSWCCA 247 R v Kollas and Mitchell [2002] NSWCCA 491 R v McIvor [2002] NSWCCA 490 R v Pan [2005] NSWCCA 114 R v Steele NSWCCA 60738 of 1995 R v Tisalandis (1982) NSWLR 430 Wilson v R [2008] NSWCCA 245
PARTIES:	Vinh The TRUONG Regina
FILE NUMBER(S):	CCA 2007/00014336
COUNSEL:	Mr H Dhanji (Applicant) Mr P Miller (Crown)
SOLICITORS:	Greenfield Lawyers (Applicant) S Kavanagh (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	14336/07
LOWER COURT JUDICIAL OFFICER:	Sides DCJ
LOWER COURT DATE OF DECISION:	20 February 2008

2007/00014336

McCLELLAN CJ at CL
JAMES J
ADAMS J

29 April 2009

Vinh The TRUONG v R

Judgment

1 McCLELLAN CJ at CL: In this matter I have had the benefit of reading the judgment of Adams J in draft. His Honour has undertaken a detailed analysis of various cases in which the principles of parity have been discussed. The issue is complex and requires consideration in each case as to whether the sentence of a one co-offender permits of a justifiable sense of grievance in another co-offender and whether in the circumstances there exists an appearance of justice. Whether the decisions of this Court, to which his Honour refers, and the statement by Mason CJ in Lowe v The Queen (1984) 154 CLR 606 at 614 can be completely reconciled does not require to be resolved in the present case. The issue was usefully discussed by Simpson J in R v Steele NSWCCA 60738 of 1995.

2 There is no doubt that the sentence imposed by Boulton ADCJ on the co-offender was inadequate. Whatever be the reason the sentence appears to have been constructed so as to allow for the suspension of the sentence. No doubt his Honour was motivated by a concern for the welfare of the young child if both parents were incarcerated.

3 I do not share Adams J’s firmly expressed view that the applicant’s offending should be classified as that of a mere chauffeur. In a small business, which is an appropriate characterisation of their enterprise, a division of labour was necessary and because the applicant held a driver’s licence and the co-offender did not it was inevitable that he would fulfil this role. However, the evidence does indicate that the co-offender accepted a greater role than the applicant in the management of the enterprise and for that reason the applicant’s criminality was less than that of the co-offender.

4 As Adams J indicates both the applicant and his co-offender were sentenced from a starting point of five years about which the applicant justifiably complains. The resentencing proposed by Adams J is appropriate.

5 I agree with the orders proposed by Adams J.

6 JAMES J: In this matter I have had the benefit of reading in draft the judgments of Adams J and McClellan CJ at CL.

7 Like both of the other members of the Court, I consider that the selection by Boulten ADCJ of the same starting point of five years in the sentencing of the co-offender (before allowing discounts for the pleas of guilty and the assistance provided by the co-offender) as Sides DCJ had selected in the sentencing of the applicant (before allowing a discount for the plea of guilty) was erroneous, by reason of the clearly greater objective criminality of the co-offender, and would give rise to a justifiable sense of grievance in the applicant and the appearance of injustice to an objective bystander and on this basis I would grant leave to appeal and allow the appeal against the sentence imposed on the applicant. I agree with the sentence proposed by Adams J on a re-sentencing of the applicant and hence I agree with the orders proposed by Adams J.

8 I would prefer to reserve my position on the further matters relating to the principles of parity and proportionality in sentencing which are discussed by Adams J in the later parts of his Honour’s judgment.

9 ADAMS J:

Introduction

The applicant, Vinh The Truong, was sentenced by Sides DCJ on 20 February 2008 for the offence of the ongoing supply of drugs at Fairfield between 25 May and 24 June 2006. By virtue of s 25A of the Drug Misuse and Trafficking Act 1985 the maximum penalty for this offence is twenty years’ imprisonment and/or a fine of $385,000. The Court took into account two offences on a Form 1 of supplying a prohibited drug and knowingly take part in the supply of a prohibited drug that occurred respectively on 20 September 2006 and between 27 July 2006 and 20 September 2006. Having regard to the date upon which the plea of guilty was entered, a discount of 15 percent to reflect the utility of the plea was applied. Taking into account the matters in the Form 1, the applicant was sentenced to a total term of four years and three months to commence on 30 June 2007 with a non-parole period of two years and six months. The commencement date took into account the time that the applicant spent in custody following his arrest until his release on bail.

10 It is not submitted that the sentence imposed on the applicant, considered by itself, was excessive. However, on 2 May 2008 the applicant’s co-offender was sentenced by Boulton ADCJ to entirely concurrent terms imprisonment for two years each for two offences, of which one had been committed jointly with the applicant and the other independently of him, with a further five offences taken into account. The sentences were suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999.

11 It is contended for the applicant that, by reason of the “manifest disparity” in sentencing outcomes, there is “a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander” as stated by Mason J in Lowe v The Queen (1984) 154 CLR 606 at 613. The fundamental principle is, in the language used by Mason J at the outset of his Honour’s judgment (154 CLR at 610-611) –

“Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community…”

This is not to say, of course, that the actual sense of legitimate grievance is immaterial. As Heydon JA said in R v McIvor [2002] NSWCCA 490, such an abiding sense of grievance “would be likely to generate a bitter resentment antithetical to the prospects of avoiding recidivism”.

12 The discrepancy must be substantial: Gibbs CJ referred to “marked disparity”: 154 CLR at 610, as did Mason J at 611; Dawson J (at 624, with whom Wilson J agreed at 616) said the “differences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice”. The Crown here did not seek to justify the discrepancy by reference to either the objective or subjective factors in the cases but contended that the sentences imposed on the co-offender were so manifestly inadequate that no proper basis for comparison is established and that, the sentence on the applicant being otherwise appropriate, the sentence imposed on the co-offender should be completely disregarded with no adjustment being made to the applicant’s sentence.

The facts

13 These were not disputed and the following account is taken from the sentencing judge’s reasons for sentence. In the course of a police investigation, authority was given for undercover officers to purchase drugs from the applicant and the co-offender who were believed to be in the business of dealing prohibited drugs. At the time of the transactions the pair were in a de facto relationship. Sides DCJ accepted that the evidence established that the co-offender “controlled a highly organised and established drug syndicate dealing in heroin and cocaine at a mid-level of distribution, with a network of street dealers to whom she supplied drugs” (a quotation from the agreed facts). Most of the cocaine obtained by the undercover officer was in excess of 50 percent purity, indicating that the co-offender’s source was close to the importer or main supplier. Undercover officers negotiated with the co-offender, usually over the telephone, and the applicant either delivered the drugs to the undercover officer at the location arranged between that officer and the co-offender or drove the co-offender (who did not having a driving licence) so that she could make the delivery herself.

14 The particular transactions as described by the sentencing judge were as follows. The first occurred on 26 May 2006 when the applicant delivered 0.12 gm of cocaine and 0.08 gm of heroin to the undercover officer for $150. This sale and its location had been organised by the co-offender. The applicant, in response to the undercover officer’s enquiry, provided him with details about prices and how to order larger quantities. On 29 May, following a telephone conversation between the undercover officer and the co-offender, she arrived at the agreed meeting place in a car driven by the applicant and, in his presence, she gave the officer a foil containing 0.1 gm of heroin (13 percent pure) for $100. On 1 June the officer spoke to the applicant on the phone and asked for a gram of cocaine. The co-offender called him back and arranged to meet in twenty minutes. The officer ordered 3.3 gm of cocaine. The co-offender was driven to the agreed meeting by the applicant and told the officer that she would have to collect the drugs. The co-offender and the applicant drove to their home, collected the drugs and returned to the officer, handing over 3.13 gm of cocaine with a purity of about 56 percent in return for $1,000. A week later, the applicant drove the co-offender to another delivery. The co-offender in the applicant’s presence counted the $1,100 that the officer handed to her and handed him a bag containing 3.36 gm of cocaine. The officer asked if the co-offender could supply more and she said that she would do so. On 20 September the applicant drove the co-offender to another meeting with the officer when she supplied him with 3.17 gm of cocaine for $1,100. This transaction is one of the offences on the Form 1 schedule. Whilst the co-offender was counting the money the pair were arrested.

15 The sentencing judge noted that telephone intercepts between the end of July and the date of the applicant’s arrest indicated that he was assisting the co-offender in the supply of heroin and cocaine in quantities that ranged from 0.1 to 3.5 gm at prices ranging from $100 to $400. These transactions were mainly negotiated with co-offender although, on occasions, the applicant was involved in the discussions and, on other occasions, took orders for small amounts which he passed on to the co-offender. This gave rise to another offence on the Form 1 schedule.

16 After the applicant’s arrest on 20 September 2006 a search warrant was executed at the offenders’ home. During the search police found two packages containing cocaine in a lady’s jacket, one of 27.3 gm of admixture, 80 percent of which was pure cocaine and another 21 grams of a cocaine admixture. A further .48 gm of cocaine was located elsewhere, along with a heroin admixture of 26 percent purity weighing 7.26 gm. Police also found $2,700 in cash, drug paraphernalia and some cannabis leaf. The co-offender admitted ownership of the drugs found at the house, telling police they were in her possession in connection with her ongoing drug operation. The house had metal bars on the windows and fortified steel doors on the front and rear, monitored by video cameras.

17 Although the dates referred to in the respective indictments were slightly different, perhaps because of error in respect of the indictment against the co-offender, the four transactions relied on against both were those that occurred on 26 and 29 May and 1 and 7 June. The co-offender was also to be sentenced for a substantive charge of supplying a prohibited drug between 27 July 2006 and 21 September 2006. This offence was reflected in the offence of knowingly being concerned in the supply of a prohibited drug between those dates, which was listed on the applicant’s Form 1. The offence of supplying cocaine on 20 September 2006 on his Form 1 was also dealt with as part of Count 2 on the indictment against the co-offender. However, the offences on the co-offender’s Form 1 did not involve the applicant. These offences were supplying methylamphetamine on 30 August and 20 September 2006, supplying heroin on the same dates, possessing cannabis leaf, dealing with the suspected proceeds of crime – namely the money found in the house on the search – and, the fifth offence on the Form 1, which was organising drug premises.

18 The statements of facts of the four transactions tendered by the Crown in both sentencing proceedings were relevantly identical, in particular that the co-offender controlled “a highly organised and established drug syndicate”. The facts in relation to them both stated that the negotiations for the supply of larger quantities of drugs were done through the co-offender and not the applicant and, in the latter’s statement of facts, it was stated that his role “was principally one of facilitating the supply of drugs (ordinarily arranged by [the co-offender] over the telephone), by driving [her] to a pre-arranged location, whereon [he] would on occasion either pass over the prohibited drugs…in exchange for cash…or count the cash received after [the co-offender] had exchanged the drugs” The applicant’s role of driver was necessary because the co-offender did not have a driver’s licence. The facts against the co-offender stated, in addition, that she had channelled a total of $177,000 related to her drug dealing. It is also significant to my mind that the co-offender was charged with organizing drug premises and the applicant was not. Overall, the co-offender was to be sentenced for five offences for which the applicant was not charged. It is an inevitable conclusion that, in terms of objective seriousness, the co-offender’s criminality was significantly greater than that of the applicant.

19 Sides DCJ said –

“The evidence discloses that the co-offender…was involved in a significant drug trafficking syndicate and that she operated at a relatively high level within the hierarchy. Although the quantities supplied when [the applicant] drove his co-offender to [meet the undercover officer] were relatively small, on two occasions in June and again in September, which is the schedule matter, the quantity supplied was slightly larger than the trafficable quantity…
He said that he drove his co-offender because she did not have a licence. On occasions, at her request and without forewarning, he would leave the family restaurant where he was working to drive the co-offender so she could deliver drugs. He was unable to say how many times he drove Ms Lee when she delivered drugs. But he did not claim that it was limited to the occasions she supplied [the undercover officer]… His role was very important to the co-offender’s business because she did not have a licence. It is clear that she regarded it as an important aspect of her business and could not have taken any other view of it. The offences in the schedule indicate that his involvement in drug trafficking was not limited to the period covered by the indictment.”

20 His Honour added that the applicant’s involvement was “premeditated” and he “received some benefit from his participation…[which] it is not possible to quantify…” and went on to say –

“…There is no evidence that he knew the purity of the drug supplied. It seems that, on some occasions, he had no prior warning that a deal was to occur. He did not prepare the drugs…Clearly his [the applicant’s] criminality is less than his co-offender. Although his role was less than his co-offender, the Court has a view that he was involved in drug trafficking to a substantial degree. In the Court’s view his offence falls at the middle of the low range of seriousness.”

21 Boulton ADCJ referred to the applicant’s sentencing proceedings, observing that the version of events provided to Sides DCJ tended to minimise the applicant’s involvement at the expense of co-offender. In light of the substantial similarity between the two statements of fact, this observation is somewhat baffling, but his Honour may have been referring to the overall case, including the evidence given by the applicant and the submissions of counsel.

22 The case presented to Boulton ADCJ was, in substance, as stated by his Honour, that the co-offender “is described as naïve” and the applicant “is described as a violent and wasteful gambler”. On the other hand, although co-offender attributed her involvement in the offence to her relationship with the applicant, the passage in the pre-sentence report quoted by his Honour went no further than –

“The offender identifies the significant factor to the offence was her relationship...with her co-accused…[The offender] reported that the relationship was of a negative influence, given her partner’s gambling addiction and irresponsibility. With no financial means after the birth of her child she stated that committing the offence was for survival.”

Boulten ADCJ referred to a similar assessment by a psychiatrist of the detrimental affects of her relationships on the co-offender’s life but again without any reference to the facts of the offences. This material, of course, reflects no more than the co-offender’s claim and, without reference to the particular facts of her involvement, does not usefully reflect on the respective roles of her or the applicant in the commission of the offences. This does not, to my mind at least, suggest that the conclusion of Sides DCJ about the relative involvement of the offenders in the offences was mistaken. Nor does it support a conclusion that their responsibility was similar.

23 Boulton ADCJ said, on the question of parity –

“The abovementioned facts clearly establish that the offender and co-offender were involved in the supply of drugs such as heroin and cocaine on an ongoing basis and for financial reward and at an intermediate level between persons at street supply level and those in the higher echelons of the drug trade. The involvement of the offender and the co-offender would seem, on the evidence before me, to have been similar.
…
…I am of the view that there should be a high degree of parity between the sentence of the defendant in the present case and that of her co-offender by Judge Sides. It seems to me that her co-offender was sentenced on the basis that he was the lesser light in the drug operation and that appears to me to correspond to the way in which the offender’s participation has been presented in front of me.”

The “abovementioned facts” was a very brief summary of the co-offender’s acts without reference to the applicant and a summary of the charges against her. With respect, it is difficult to see how it provided a basis for the concluding sentence in the first of the above quoted paragraphs. As to the second paragraph, the second sentence is, with respect, quite correct but it appears to be inconsistent with the first and there is no explicit explanation of the reasoning.

24 The Crown prosecutor in this Court did not submit that the statement of facts tendered in the co-offender’s case differed significantly from that tendered in the applicant’s. Subsequent to the hearing the Court asked for and was given the agreed facts tendered in the co-offender’s case. It omits the statement quoted from the applicant’s agreed facts cited by Sides DCJ and set out above. On the other hand, in respect of the particular transactions that were the subject of charges, the co-offender is identified as the person with whom the negation occurs and the deal is struck, albeit on some occasions in the presence of the applicant. The agreed facts include the following –

“During the monitoring of [telephone services operated by the two offenders] police established a large amount of telephone calls in a short amount of time. Thos calls included incoming, outgoing and a number of text messages. The majority of those calls monitored related to the drug supply activity of the [co-offender]. Police estimate that [co-offender] had a large number of established clients spanning from South West Sydney to the inner city and beyond.
These customers typically called the [co-offender] on one of the mobile phone services and arranged to meet at a pre-determined location, as repeated in the transactions conducted with the undercover operative…Approximately 100 telephone calls were intercepted…reflective of the business the [co-offender] conducted.
During these calls reference is often made to the [co-offender’s first name. The offender would sometimes commute up to three trips to the city and back on request from the customers. These customers appeared to be street level suppliers or users operating through different parts of Sydney. The offender often uses the services of a driver, mostly being the [applicant] however, most recently using an unknown female to drive, due to the offender holding a Learner licence despite owning two vehicles.”

Thus, although the agreed statement of facts omits the part mentioned about control, the general description of the conduct of the business is that the co-offender is the dealer and the applicant the chauffer, and this not all the time. There is nothing in the agreed facts that justifies the conclusion that the relative positions of the co-offender and the applicant were similar, even broadly similar: the dealing is clearly and unequivocally attributed to the co-offender.

25 Although it is possible that a somewhat different case was run in submissions, Boulten ADCJ does not advert to any fact or submission that might or had qualified the agreed facts. Nor does his Honour advert to any evidence – aside from the reports which I have already discussed – that justified any qualification of the clear purport of the agreed facts.

26 It is evident that Boulten ADCJ had before him the reasons for sentence of Sides DCJ but, aside from mentioning the different ways, as he understood it, that the offenders’ cases had been presented, nowhere does his Honour point to any different finding of fact that could explain his plainly different conclusion as to relative criminality. It appears that his Honour was heavily influenced by the suggestion that the co-offender was naïve and the applicant was violent and a gambler. This may have been so and might have rightly impinged on the weight to be given in her case to subjective features. In some respects, so far as the actual offences were concerned, they did demonstrate a degree of naivete, but this was demonstrated by both of the offenders. To have organised the business, in particular the sourcing and acquisition of the drugs to be distributed (for which the co-offender was responsible) strikes me as far from naïve and it is difficult to discern how it arose out of some problem with her judgment attributable to the applicant’s bad behaviour. Furthermore, the charges dealing with the proceeds of the dealing, brought against the co-offender and not the applicant is eloquent objective testimony of her greater responsibility. I am, with respect, unable to see any evidentiary basis for the finding by Boulten ADCJ that the involvement of the offenders was similar.

27 Applying the finding of similarity, Boulten ADCJ considered that the “aggregate sentence appropriate in this case as being in the order of five years, which was the aggregate sentence before any reduction was applied” in the applicant’s case. I do not understand what his Honour meant by “aggregate”, since he imposed completely concurrent sentences and the applicant was sentenced for only one offence, with two offences on a Form 1 which, of course, did not call for a further sentence, whether concurrent or otherwise. I think that his Honour meant to refer to the starting point for calculation of the relevant discounts. And that, in respect of the offences before him, the starting points were five years for each offence, considered concurrently.

Subjective features

28 The applicant was twenty-eight years old at the time of the offences. He was born in Vietnam and has lived in Australia since 1992. He is an Australian citizen. His family, with whom he has a close relationship, live in Australia. During the two years or so before his arrest the applicant was in a de facto relationship with the co-offender. They have a daughter born on 16 December 2005, while he was in custody, being granted bail on 28 May 2007. After completing his higher school certificate, the applicant undertook an accountancy course at TAFE for two years but was unable to complete it because of family responsibilities. He worked in a variety of jobs in the retail and restaurant industries until his arrest on 20 September 2006. After he was released on bail he worked in the family butchery. The applicant was an abuser of a number of drugs in the six years preceding his arrest, having been dependent on cocaine and a regular user of cannabis, heroin and ecstasy. It appears that, until shortly before he was sentenced, he had not appreciated that he was dependent on drugs and, in June 2007, he had a naltrexone implant with monthly counselling sessions with a psychologist. The judge accepted that he had not used illegal drugs since his arrest. Sides DCJ concluded that the applicant was entitled to the benefit of good character (except, of course, for his offences), stating that not only did he have no prior convictions but the evidence on the sentencing proceeding showed a sound work ethic and that he was a good student at school. His Honour concluded, justifiably in my view, that the support of a close family and the significant steps taken by the applicant to address his addiction, justified the conclusion that his prospects of rehabilitation are very good and it is unlikely that he will re-offend. His Honour, I think, accepted that the applicant had committed the offences to fund his drug habit. He also expected that some of the profits from the business would be spent on his daughter.

29 In the co-offender’s case, Boulton ADCJ noted that she was dealt with on 29 June 2004 on a charge of supplying prohibited drugs and dealt with by way of a s 9 bond without further incident.

30 I have already noted the material before his Honour that suggested that the co-offender’s relationship with the applicant had a deeply detrimental effect on her, although that evidence falls far short of suggesting that she involved herself in these offences at the instigation of the applicant and, indeed, his Honour did not (expressly at least) so find. His Honour regarded as important the following passages from a pre-sentence report of 2 May 2008 –

“ Family commitments
[The co-offender] has been the sole provider for her two young children aged twenty-eight months and two months. She is now receiving some assistance from her mother in caring for her children. However, her relationship with her mother has been historically unstable and there is concern that her mother may be unwilling to care for the children if the offender were to receive a custodial sentence. Her mother has stated to this Service that she is prepared to house and solely care for the children for a maximum period of thirty days.”
Safety of the Offender
[The co-offender] is current in the witness protection programme and this Service considers there are legitimate concerns regarding her future and wellbeing, both within a community setting but more so in a custodial setting . This is also the consideration for police who are working with the offender while she is in the witness protection programme.” [Italics added.]

31 The sentencing judge referred to material placed before the Court in a sealed envelope, described by official sources “as of high value”. His Honour added to the fifteen percent utilitarian discount for the plea, a further discount of forty five percent for assistance. It was not argued that this was inappropriate. Not surprisingly, his Honour did not canvass that material but commented, “The future safety of the defendant appears to me to be a matter of significant concern”. That police were concerned about the co-offender’s safety within the gaol, where of course she would be on protection, perhaps strict protection, is of particular significance and concern.

32 The need for protection – described by His Honour as “an absolute must for the defendant in this case if she is to go into custody” – meant that she would be unable to care for her children in the facility at Emu Plains for mothers with young children. His Honour accepted, not surprisingly, the evidence of Dr Roberts, a psychiatrist, as to the very harmful consequences to the youngest child if separated from his mother at his very young age. It seems that his Honour accepted that this comprised exceptional hardship to a third person that was appropriate to take into account on setting an offender’s sentence. There was an adequate evidentiary basis for this conclusion. It was also relevant to take into consideration the distress that must inevitably be suffered by a young mother on being separated from her two very young children left to the uncertain devices of government care.

33 Dealing with the appropriate discounts arising from the plea of guilty and assistance, his Honour allowed the “quite high figure” of 60 percent, comprising 15 percent for the plea of guilty and 45 percent for assistance. His Honour said that the Crown did not cavil with the 60 percent discount. Furthermore, his Honour noted that “the Crown did not oppose, certainly with any vehemence, [the] proposal advanced by the defence that in the event of the sentence being two years…that I should give earnest consideration to the notion of suspending that sentence”. His Honour noted, of course, that applying a 60 percent reduction to a starting point of five years results in a term of two years.

34 Boulton ADCJ acknowledged that the hardship to the co-offender’s baby could only be relevant if the circumstances were exceptional. Although his Honour expressed in general terms his conclusion that the circumstances are exceptional, it might be worthwhile to point out, I think, that the principal reason in this case, was that the co-offender was unable to use the facility provided by prison authorities for women with children in her situation because of her need for protection and, I think, that need for protection would have significantly affected the way in which any prison sentence would need to be served.

The question of parity

35 The question of parity falls to be considered, therefore, upon the basis that the differences found by Sides DCJ were not found by Boulton ADCJ, though they were dealing with substantially the same material so far as the objective circumstances were concerned. On the face of it, it is difficult to see how, where one judge finds facts differently to another judge, there is a legitimate grievance in respect of the more lenient sentence passed on the co-offender. Certainly it is a reproach to the administration of criminal justice when, on substantially the same facts, two judges reach quite different conclusions as to matters of crucial importance – here, the relative objective criminality of the co-offenders. This is especially so where there is no adequate explanation for the differing conclusions and one of those conclusions appears to be mistaken. But it seems to me that, whilst this criticism of the administration of justice is just, the grievance as to different sentences is quite different. In short, where a markedly more severe sentence is passed on an offender in respect of whose criminal responsibility the assessment is correct, the mere fact that the co-offender was sentenced on a different view of the facts does not give rise to a parity problem, even if that view of the facts be unjustified. (In Postiglione v The Queen (1997) 189 CLR 295 at 314, McHugh briefly discussed the significance of differing but appropriate findings on the question of comparative criminality between co-offenders.)

36 Here, Mr Dhanji points to the starting points of five years before discounts of each offender and submits that, having regard to the significantly greater objective criminality of the co-offender, a legitimate sense of grievance arises because the starting point for her sentences should have been greater, not only because of her greater criminality in respect of their common offences but as demonstrated by the additional charges she faced. One answer to this contention I have just mentioned – namely that the different findings on the question of relative criminality, even if wrong, do not, in principle, give rise to the relevant grievance. Another answer is that the contention omits the consideration that the starting points comprehend both objective and subjective circumstances. There is much that is similar between the subjective circumstances of the offenders but also there are significant differences, quite apart from the matters that gave rise to the discounts. I have already referred to his Honour’s findings about what might be called the domestic or personal relationship between the offenders; secondly, there is the additional factor arising from the exceptional hardship to the younger child particularly; and, thirdly, the separation from her children that the co-offender must suffer whilst she is in prison. These additional factors are, of course, incommensurable. It is worth pointing out, also, that the applicant might suffer the same feelings of unhappiness at being separated from his young daughter, though this factor does not appear to have been relied on in his case.

37 In my respectful opinion, the conclusion of Boulten DCJ that the objective criminality of the offenders’ conduct was substantially the same was mistaken. Although it is not possible to identify any particular period in the instinctive synthesis which the five years’ starting point reflected that was attributed by his Honour to the objective seriousness of the co-offender’s offences, it must follow that that the weight given to this element was markedly less than was appropriate by comparison with the applicant. This marked disparity is such as to give rise to a legitimate sense of grievance in the applicant, justifying this Court’s adjusting his sentence to reflect his lesser criminality.

38 It was submitted by the Crown prosecutor in this Court that the co-offender’s sentences, by virtue of their having been made completely concurrent and also suspended, were so manifestly inadequate as to make any attempt at parity with the applicant’s sentence inappropriate: in short, that it should be completely ignored. I find it difficult to reconcile this argument with the principle stated by Mason J in Lowe, set out at the beginning of this judgment.

39 The problem of parity is unconcerned, as it seems to me, with whether the comparator sentence is right or wrong. It is undoubted that the mere fact that each sentences may be seen as appropriate when looked at in isolation is not a relevant factor in considering whether their disparity warrants correction: it is the disparity that gives rise to the necessity for correction. Considered in point of principle, where a manifestly inadequate sentence is passed on one co-offender the criminal justice system has made a mistake; where the effect of doing so is to create a marked discrepancy with a co-offender, this is inconsistency of punishment that is no less “a badge of unfairness and unequal treatment under the law” than would be comparative sentence within range. Where there is no Crown appeal in respect of the manifestly inadequate sentence, the Court can do nothing about it. Where there is an appeal by the offender against the second sentence, the discrepancy can be corrected, ”even to the point where it might be regarded as inadequate” (per Mason J, Lowe 154 CLR at 614).

40 In this Court, the Crown prosecutor relied on the following passage in R v Pan [2005] NSWCCA 114, where Johnson J said –

[35] Where there is a degree of disparity so as to invite a reduction in the sentence imposed, it is not necessary for the Court of Criminal Appeal to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved: R v Boney [2001] NSWCCA 432 at paragraph 15. A stage can be reached at which the inadequacy of the sentence imposed upon the co-offender is so great that the sense of grievance engendered can no longer be regarded as a legitimate one: R v Diamond (Court of Criminal Appeal, 18 February 1993, unreported, BC9302054); R v Boney , above, at paragraph 16.

This passage was cited with approval by Howie J in Lewins v R [2007] NSWCCA 189 at [7]. The reason for not adjusting where the inadequate sentence is manifestly lenient is explained by Wood CJ at CL in Boney , citing Hopper (NSWCCA 19 November 1998) as the desire to avoid duplication “of what seems to have been a gross error in the sentencing of the applicant’s co-offender”. Wood CJ at CL repeated the point in R v Kollas and Mitchell [2002] NSWCCA 491 at [45] and summarised the position in R v Kairouz [2005] NSWCCA 247 –

“[45] The Court of Criminal Appeal in this state has reserved a discretion not to intervene, or to intervene to only a limited degree, where it is apparent that the sentence under comparison was unjustifiably lenient, and that to reduce the sentence under appeal, so as to provide an equality of outcome, would result in a sentence that would amount to a repetition of error and an affront to the administration of justice”.

If I may respectfully say so, this explanation is essential to understanding correctly the application of the second stage consideration mentioned by Johnson J. (See also Wilson v R [2008] NSWCCA 245, per Price J at [39]).

41 Such an approach was implicitly accepted by Howie J in R v SY [2003] NSWCCA 291 at [95] and in Lewins by his Honour’s reduction of the applicant’s sentence following a reference to the submission of counsel for the applicant that the Court should reduce the sentence “to the lowest point within the available range”. Since, by definition, such a sentence is within range, the duplication of error is avoided. The consequence would then be that the discrepancy has been reduced as much as can be done without duplicating the imposition of an inadequate sentence and the Court has done as much as could be done to correct the reproach of unequal justice. To undertake this course strikes me as necessary. Not to do so is to condone a miscarriage of justice. I note that, in Lewins, Howie J described the course his Honour proposed (of reducing the overall sentence imposed on the applicant because of the manifestly inadequate sentence imposed on the co-offender) as “very exceptional” but I take it that this was because the ultimate sentence proposed was, in Honour’s view, below the available range for his offences since, if it was within an appropriate discretionary range, it could not, ex hypothesi, be other than a sentence that rightly addressed all the relevant sentencing considerations. Put another way, if the reduced sentence was a sentence that could have been imposed at first instance without appealable error, it cannot have been one that became wrong on appeal.

42 That it cannot be right in principle to disregard for the purposes of parity a manifestly inadequate comparator where the sentence less than that under appeal is still within range is demonstrated by pointing out that, where the comparative sentence is unfairly lower than that appealed from but nevertheless within range, reduction of the latter will certainly be ordered (on the assumption that manifest unjustified discrepancy is demonstrated). To refuse to substitute that lower but within-range sentence because the comparator was manifestly inadequate is to visit unfairly on an applicant the mistakes made when sentencing his or her co-accused. The result would be to turn one capricious result into two.

43 If I may respectfully say so, the analysis of the problem by Street CJ in R v Tisalandis (1982) NSWLR 430 at 434-435 is particularly helpful –

A second matter upon which I think it necessary to comment concerns the task of a sentencing judge who is called upon to pass sentence at a point of time after another co-offender has been sentenced by another judge to what appears to the second judge to have been an erroneously lenient sentence. The second judge is obliged, of course, to pass that sentence which, in his view, is proper in all the circumstances. It at times happens that the second judge, being in disagreement with the earlier sentence and finding it difficult to the point of being unacceptable to assent to the approach of the first judge which led to what he regards as an erroneously lenient sentence, will proceed to pass a sentence which he finds proper leaving out, in so doing, a discussion or evaluation of the relevance of the first sentence passed by the first judge. One can understand the diffidence of the second judge in criticizing the decision of another judge in a matter not directly before the second judge for decision. Equally one can understand the considerations leading the second judge to give effect to his own view of what is proper in the particular circumstances of the case before him irrespective of what may have befallen a co-offender before another judge. But, whilst understanding these difficulties, their solution is to be found in recognizing that the sentence passed by the first judge is a most relevant and material consideration to be weighed by the second judge. I see no reason for the second judge to feel diffident in criticizing the earlier decision and expressing his disagreement with it. But equally, as the first decision is an established fact, the second judge is bound to take it into consideration and to give it appropriate weight in deciding what sentence to pass. Having given it full and adequate weight he may feel obliged to pass a sentence which in his own unfettered judgment he would regard as erroneously lenient. It is better, however, to strive to avoid disparity when the second offender comes before the court at first instance than for the second judge to give effect to his own unfettered view and leave it to an appellate court to take the responsibility of reducing what might on its face be a proper sentence to one which is objectively too lenient by reason of considerations [of eliminating or diminishing disparity in the interests of justice, sometimes to a level which could probably be criticised as inadequate] such as are touched upon in the cases to which I have referred to earlier in these reasons. The true rationalization from the point of view of the second judge in cases such as these is not that he is passing a sentence which appears to him to be too lenient but rather that he is passing the sentence which is shown to be appropriate having regard to the whole of the relevant circumstances including, very particularly, the established circumstance of an unduly lenient sentence already passed by a brother judge upon the co-offender. In short, the particular considerations of eliminating or reducing a disparity are equally significant to be taken into account by a second sentencing judge as they are by this Court when entertaining an appeal in which a contention of disparity is advanced.

44 Certainly, Tisalandis is authority for the proposition that a manifestly inadequate sentence passed on a co-offender cannot be disregarded when considering whether there is an inappropriate disparity in the sentences of co-offenders. Nor is it correct to say that, to correct marked disparity, an otherwise manifestly inadequate sentence will not be passed on appeal, though this will only be done in a very exceptional case (pace Lewins). But there can be no good reason, where manifest unjustified disparity is demonstrated, for this Court to refuse any downward adjustment of the impugned sentence where there is room to substitute a sentence that is within the appropriate sentencing range and, in an appropriate case, it will to do so. Indeed, as Mason J said in Lowe (154 CLR at 614) the Court of Appeal is entitled to reduce an otherwise appropriate sentence “to the point where it might be regarded as inadequate”. I take it that this is justified by reference to the fundamental importance in the administration of criminal justice to maintain the principle or equal justice, even where the outcome in a particular case is unsatisfactory.

The comparative cases

45 It is tolerably clear that the major reason for suspending the co-offender’s sentences was the desirability in the interests of her baby to maintain the mother/child bond and that it would be “regrettable” (to use the language of the psychiatrist quoted by the sentencing judge) if this were broken. His Honour referred to the details in the doctor’s report of the “very harmful consequences to the young child if separated from his mother at this very early stage”. Weighing up the extent of potential harm that might result from such separation is very much a matter of judgment, of fact and degree upon which reasonable people might reasonably differ. Breaking the naturally and very important close relationship between mother and child is a situation likely to excite sympathy, and rightly so. Furthermore, the evidence as whole, in particular the difficult domestic circumstances of the co-offender, her attempts to put things right by assisting the authorities and the very real danger in which, as the police said, she had therefore placed herself, might have instigated that merciful humanity that, in rare cases, can lead to a substantial departure from the strictures of criminal justice.

46 So exceptional was suspending the co-offender’s sentences in this case that it could only have been justified, if at all, by reference to this rarely exercised residual discretion. However, Boulten ADCJ did not purport to approach the question in this way. Rather, his Honour acted upon the basis that suspending the sentences was to exercise what I might call the conventional sentencing discretion. Moreover, taking the matters to which I have referred into account on the question of suspension involved a high degree of double counting, in that the starting point of five years must necessarily have already taken them into account. This is important because, had his Honour not given substantial weight to the subjective features, a starting point of greater than five years must have been inevitable and, if increased, would not have been reduced to two years on application of the discounts, hence precluding the ability to suspend the sentences.

47 It is, perhaps, worth mentioning that his Honour may have given some significance to that fact that the Crown “did not oppose, certainly with any vehemence” the submission by the defence that, if the term of imprisonment was two years or less, the sentence could appropriately be suspended.

48 Perhaps ironically, if these matters meant that the suspension of the sentences was not appealably wrong, that could only be so because of considerations that were purely personal to the co-offender and so exceptional that they explained the disparity of which the applicant complains and, hence, must lead to the dismissal of his appeal. In other words, the differences between the sentences are explained by the greatly differing subjective features of their comparative circumstances and thus do not provide a basis for reduction of the applicant’s sentence.

Conclusion

49 In my respectful opinion, the subjective circumstances of the co-offender, making every possible allowance, could not justify the suspension of the sentences that were, at all events, very lenient having regard to their objective gravity. Nor was this a case where the subjective circumstances were such that the residual discretion to which I have referred could properly have lead to that result. Accordingly, the suspension of the co-offender’s sentences led to a manifestly inadequate outcome so far as she is concerned.

50 Even if the suspension of the sentences should be ignored (contrary to the view I expressed above) because of the resultant manifest inadequacy, the applicant has demonstrated a marked unjustified disparity in the sentences comprising Boulten ADCJ’s starting points. As I have already said, this disparity of itself justifies a downward revision of his sentence.

51 Though the sentence under appeal is well within the appropriate sentencing range, there is room for reduction whilst remaining within that range. This is not an exceptional case requiring further adjustment. I would therefore propose a starting point of four years imprisonment. Applying the discount for the plea of guilty of 15 percent, this yields a sentence of three years and four months (rounded down slightly). Sides DCJ found that special circumstances were present, justifying a variation of the statutory ratio, namely the absence of any prior custodial sentence and the desirability of supervision over an extended period on release to encourage the continuation of the applicant’s promising start to his rehabilitation. I would apply his Honour’s conclusion to the proposed sentence and impose a non-parole period of two years. Accordingly, I propose the following orders –

1. Leave to appeal granted.

2. Appeal upheld, the sentence quashed and substituted therefor a non-parole period of two years commencing on 13 June 2007 and a total term of three years and four months commencing on 13 June 2007 and ending on 12 October 2010. The applicant will be eligible for release on parole on 12 June 2009.

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