Successful Appeal Against Sentence Due to Sentencing Disparity

The Court of Criminal Appeal allowed an appeal against a sentence, finding an unjustifiable disparity in sentencing compared to co-offenders. The appeal was successful due to the disparity in the indicative sentence assessed for the third supply offence.

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: [NAME] v R [2023] NSWCCA 208 Hearing dates: 21 July 2023 Date of orders: 23 August 2023 Decision date: 23 August 2023 Before: [NAME] [at 1] N Adams J [at 2] [NAME] [at 4] Decision: (1) Extend the time for commencing proceedings in this Court to 28 September 2022. (2) Grant leave to appeal and allow the appeal. (3) Quash the sentence imposed in the District Court on 23 June 2017 and in lieu, sentence the offender to an aggregate term of imprisonment for 11 years with a non-parole period of 8 years and 3 months. (4) The sentence will date from 14 May 2015. The offender became eligible for release on parole when the non-parole period expired on 13 August 2023. Catchwords: CRIME – appeals – appeal against sentence – serious drug supply offences – complaint of erroneous disparity with sentence imposed upon co-offenders – parity ground upheld – no requirement to deal with other unmeritorious proposed grounds of appeal Legislation Cited: Crimes Act 1900 (NSW), ss 93T(1A) and 193B(2) Criminal Appeal Act 1912 (NSW), s 6(3) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 Dungay v R [2020] NSWCCA 209 [NAME] v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 [NAME] v R [2021] NSWCCA 177 Kristensen v R [2018] NSWCCA 189 Parkinson v R [2021] NSWCCA 98 Ritchie v R [2023] NSWCCA 153 Rodgers v R [2018] NSWCCA 47 [NAME] v R [2018] NSWCCA 82 Category: Principal judgment Parties: [NAME] (Applicant) Rex (Respondent) Representation: Counsel: [redacted] King SC (Respondent)

Solicitors: [redacted] [NAME]) (Respondent) File Number(s): 2014/321172; 2015/144749 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: [2017] NSWDC 457 Date of Decision: 23 June 2017 Before: King SC DCJ File Number(s): 2014/321172; 2015/144749

HEADNOTE [This headnote is not part of the judgment] [NAME] pleaded guilty to three drug offences: one of supplying an indictable quantity of methylamphetamine and two of supplying a large commercial quantity of methylamphetamine. The first offence related to 31.64g of the drug which was found upon police searching [NAME]'s home unit on 31 October 2014. He was charged and released on bail. On a number of occasions between 21 March and 28 April 2015 [NAME] supplied quantities of methylamphetamine totalling about 1.5kg and an indictable quantity (about 28g) of cocaine to an undercover operative. On 14 May 2015, in conjunction with co-offenders including [NAME] and [NAME], he was involved in the supply of almost 2kg of methylamphetamine to the undercover operative. King SC DCJ sentenced [NAME] on 23 June 2017 to an aggregate term of imprisonment for 13 years and 6 months with a non-parole period of 10 years for the three offences of supplying methylamphetamine. Offences of supplying cocaine, dealing with the proceeds of crime ($94,120 in cash) and knowingly participating in a criminal group were taken into account. [NAME] sought an extension of time in which to apply for leave to appeal on seven grounds including one which raised a contention that the indicative sentence assessed for the last of the supply offences was erroneously severe when compared to sentences imposed upon the co-offenders [NAME] and [NAME]. The starting point before reduction for [NAME]'s early plea of guilt for this offence was 16 years whereas the starting points for these co-offenders were 11 years and 12 years respectively. They were accepted to be the "facilitators of the supply" and were "in control of the transaction". [NAME]'s role in this supply involved no greater criminality than theirs. In written submissions he contended he was "an errand boy". [ADDRESS] held ([NAME] and N Adams J agreeing): allowing the extension of time, granting leave to appeal, upholding the appeal and resentencing: (1) At [36]-[39]: [NAME]'s contention that he was simply "an errand boy" could not stand in light of concessions that were made in the court below by senior counsel then appearing for him that he was not a "mere courier" and was "at the very highest, in the mid-range of the hierarchy". His role was "critical" in that he was "receiving the methylamphetamine from a person … passing it onto the undercover operative, getting the money, and then handing the majority of that money over to the persons from whom he received the methylamphetamine. These submissions were consistent with agreed facts which also included that [NAME] was receiving $10,000 for each kilogram supplied. (2) At [67]-[69]: There were inconsistent findings made about the objective seriousness of the offence in that for [NAME] the assessment was "above midrange" and for the co-offenders it was "at least midrange". (3) At [70]-[76]: There was an unjustifiable disparity in the indicative sentence assessed for the third supply offence for [NAME] whereby the starting point before discounting was 16 years while for the others it was 11 and 12 years. This was not justified on the basis that [NAME] was also being sentenced for earlier supply offences, or that additional offences listed on Form 1 documents were being taken into account. [NAME] v The Queen; Quinn v The Queen (2011) 244 CLR 462; (2011) HCA 49 applied. (4) At [2]-[3], [77]: In the light of the success of the parity contention it is unnecessary to deal with the other grounds of appeal. There is no rule of practice that requires the Court to engage in discussion of multiple grounds of appeal which have no merit when it is readily apparent that a complaint about parity should succeed: Ritchie v R [2023] NSWCCA 153 at [2]-[12] referred to.

JUDGMENT 1. [NAME]: I agree with [NAME].

2. N ADAMS J: I agree with the orders proposed by [NAME] for the reasons provided. Given that the complaint of disparity in relation to count 3 is clearly made out, I agree that it is unnecessary to consider the other complaints made by the applicant which appeared to include a complaint of manifest excess. As his Honour has observed at [77], although there is a rule of practice that a ground raising a complaint concerning parity assumes that the sentence is otherwise correct, that does not mean that in an application for leave to appeal against sentence where complaint is made of both disparity and manifest excess, this Court is required in every case to consider manifest excess first. As [NAME] has observed, there is no rule of practice that this Court must consider grounds of appeal that have no merit when the disparity ground is clearly made out. I would add to that comment that the order in which the grounds of appeal are to be considered by this Court could also depend on the relative strength of each ground, the number and subject of the grounds and their relative complexity.

3. As for the observation in Ritchie v R [2023] NSWCCA 153 at [11] that the practice of considering a ground of manifest excess before a parity ground is "almost universally followed", I respectfully disagree. For example, in addition to the cases cited at [11] in Ritchie v R, I note that Johnson J (with whom Hoeben CJ at CL and I agreed) considered the parity ground first in Rodgers v R [2018] NSWCCA 47 and that in Dungay v R [2020] NSWCCA 209 I ([NAME] J in agreement) upheld the parity ground first and did not consider it necessary to go on to consider the claim of manifest excess at all. In circumstances where it is difficult to comprehend how the order in which such grounds were considered could ever change the ultimate result, it seems to me that it remains open to this Court to consider the grounds in whichever order most efficiently disposes of the appeal. 4. [NAME]: [NAME] seeks an extension of time in which to apply for leave to appeal against a sentence imposed by his Honour Judge King SC in the District Court on 23 June 2017.

5. His Honour imposed an aggregate sentence of imprisonment for 13 years and 6 months with a non-parole period of 10 years for three serious drug supply offences with further offences taken into account.

6. There were two indictments, each containing offences against the Drug Misuse and Trafficking Act 1985 (NSW). The first indictment contained a single count of supplying an indictable quantity of methylamphetamine (s 25(1)) and the second contained two counts, each of supplying a large commercial quantity of methylamphetamine (s 25(2)). The details, including the maximum penalty, standard non-parole period where applicable and the indicative sentences assessed by his Honour are in the table below. For ease of reference, the offences will be referred to as "Counts 1, 2 and 3".

7. The applicant asked the judge to take into account three further offences listed on Form 1 documents: supply indicatable quantity of cocaine, knowingly participate in a criminal group, and knowingly deal with the proceeds of crime. The latter two offences are contrary to s 93T(1A) and s 193B(2) of the Crimes Act 1900 (NSW). Count Offence Max SNPP Indicative Sentence 1 Supply 31.64g methylamphetamine at Sydney on 31.10.14 15 yrs - 30 mths Supply large commercial quantity (1497.16g) methylamphetamine at Zetland and Ryde between 21.3.15 and 28.4.15 Form 1: 10 yrs 2 Supply 27.95g cocaine on 28.4.15 Life 15 years NPP 7 yrs 6 mths and Knowingly participate in criminal group on 14.5.15 Supply large commercial quantity (1996.9g) methylamphetamine on 14.5.15 at Kensington 12 yrs 3 Form 1 Life 15 years NPP 9 yrs Knowingly deal with proceeds of crime ($94,120)

1. [NAME] appeared for himself in this Court and, while it is apparent he has had little or no formal legal training, he formulated the issues he wished to raise about the sentencing process in the District Court with reasonable clarity. I shall review the evidence first and then return to that.

The offences

Count 1: Supply methylamphetamine 31 October 2014

Form 1 on Count 3: Knowingly deal with the proceeds of crime ($94,120)

1. Police investigating money laundering searched an apartment in [ADDRESS], Sydney on the morning of 30 October 2014. They found 479g of methylamphetamine, indicia of drug supply activity and the key to an apartment in [ADDRESS]. That afternoon they went with a search warrant to the [ADDRESS] apartment where they found more drugs and the indicia of drug use and supply. They also encountered [NAME] alighting from the elevator and when challenged by police he said he was on the wrong floor. His driver's licence indicated he lived in another apartment in the same building but a key to his apartment was found in the room police were searching. He was arrested.

2. Police then obtained a warrant to search [NAME]'s apartment. They found 31.64g of methylamphetamine and $94,120 in cash, mostly in bundles of $50 notes. There were also two small quantities of methylamphetamine, indicia of drug supply activity (electronic scales, latex gloves and boxes of resealable plastic bags) and a large number of BlackBerry phones and related paraphernalia. 3. [NAME] was charged in respect of the drugs and money found in his apartment but not in respect of the items found at the other apartments.

4. He was released on bail on 31 October 2014. The sentencing judge observed that the offences described below were committed while [NAME] was subject to that bail. In accordance with authority, he noted that this was a "serious aggravating factor". [1]

Count 2: Supply large commercial quantity methylamphetamine 21 March – 28 April 2015

Form 1: Supply cocaine 28 April 2015 and Participate in criminal group 14 May 2015 1. Subsequent to the above police commenced an investigation into [NAME]'s involvement in the supply of drugs. A controlled operation authority was granted and a surveillance device warrant was issued.

2. On three days in the period 21 March 2015 to 28 April 2015 [NAME] supplied drugs to an undercover operative, "[NAME]". On each of the first two occasions he went to a place in Zetland and supplied 500g of methylamphetamine in exchange for $60,000. On the third occasion he supplied 28g of cocaine in the carpark of the [ADDRESS]. Later the same day he went to an apartment building in Ryde where he obtained a bag containing 500g of methylamphetamine from a co-offender, [NAME]. A short time later Qin was seen to be in the company of [NAME]. [NAME] went to the underground carpark and gave the bag to "[NAME]" and received a bag containing $66,800 in payment for both drug supplies that day. He returned to the apartment building, gaining access with the help of Wu, and gave the bag of money to Qin.

3. The total amount of methylamphetamine supply by [NAME] to "[NAME]" was 1497.6g. The prescribed large commercial quantity for this drug at the relevant time was 1kg. (It was reduced to 500g on 1 September 2015. [2] )

4. The sentencing judge referred to [NAME]'s role as "the principal in those supplies", namely the three supplies of methylamphetamine the subject of this offence. What the judge meant by "principal" is not entirely clear but based on the facts it could only be because [NAME] was the actual perpetrator of the offence, the person who handed over the drugs and received the payment.

Count 3: Supply large commercial quantity methylamphetamine 14 May 2015 1. At about midday on 14 May 2015 [NAME] and co-offenders [NAME] met and went to a dumpling bar at the East Village shopping centre in Zetland. After lunch, [NAME] and [NAME] drove in [NAME]'s car to the [ADDRESS] (on the opposite side of the Eastern Distributor). [NAME] met "[NAME]" and entered his car. [NAME] stayed in [NAME]'s car.

2. Meanwhile, [NAME] met up with [NAME] and [NAME] outside the East Village shopping centre. They loitered in this area for a while until [NAME] walked away and returned with two brown bags he had received from an unknown person. He gave one each to [NAME] and [NAME]. They then walked across to the Supa Centa carpark to meet up with [NAME] and [NAME]. [NAME] alighted from [NAME]'s car and met the three and they all then approached "[NAME]'s" car. [NAME] and [NAME] were still in possession of the brown bags. Seemingly with some caution but following directions from [NAME] and [NAME] entered the rear seat of "[NAME]'s" car and [NAME] handed him the bag he was holding.

3. The agreed facts state: "At this point is it clear that [NAME] and [NAME] are the facilitators of the supply of the prohibited drug and are in control of the transaction". 4. [NAME] handed the two brown bags to [NAME]. [NAME] and [NAME] were also in the car at this point. [NAME] and "[NAME]" then alighted. [NAME] and the co-offenders were arrested.

5. Located in each brown bag was 997.2g and 999.7g of methylamphetamine. In another bag there were five BlackBerry phones. The agreed facts do not indicate where this bag came from but state: The investigation revealed [NAME] is a facilitator and distributor of encrypted BlackBerry mobile devices to a number of criminal syndicates to be used for the purpose of avoiding detection from law enforcement agencies. [NAME] earns $200 per device at the sale price of $2200 and $10,000 for the supply of one kilogram of methylamphetamine.

1. The sentencing judge observed that the use of BlackBerry phones and encrypted communications are commonly associated with drug, organised crime or other criminal offending. However, [NAME] was not charged with any offence in relation to his possession of such items and his Honour said he could "hardly take into account on sentence that he might have been doing something that was legal". [3]

Assessment of objective seriousness 1. The judge made an assessment that Count 1 (the 31.64g on 31 October 2014) "falls below the midrange and towards but not at the bottom of the midrange [sic] of objective seriousness". [4] He found the Count 2 offence was "at least at the midlevel of objective seriousness" and Count 3 was "greater than the midrange of objective seriousness". [5]

2. Contrary to repeated assertions in the [NAME]'s written submissions, [6] the judge did not say that [NAME] was the "principal in the enterprise" with reference to Count 3.

Pleas of guilty 1. The judge discounted the sentence for Count 1 by 5% for a late plea of guilty and allowed a discount of 25% for each of Counts 2 and 3 for pleas of guilty entered in the [ADDRESS]. [7]

The offender 1. [NAME] did not give evidence at the sentence hearing. His senior counsel tendered a psychologist's report, a letter from [NAME]'s mother and some medical documents in relation to her. The following is drawn from that material. 2. [NAME] is from Chengdu, China. He was aged 30-31 at the time of the offending. His parents separated before he was born and he hardly saw his father. His mother worked and so he was raised by his grandparents. They died in their sixties and he then went to a boarding school. 3. [NAME] came to Australia in 2004 at the age of 20. He obtained permanent residency in 2013. He has returned to China to visit his mother. She is now retired and has some physical health issues. He has generally worked since coming to this country but his income was insufficient to sustain him; he was making more money selling phones imported from China. 4. [NAME] gave an account of drug and alcohol consumption that included development of an addiction to ice from the age of 28 in 2012 whereby he was using it several times a week. He had not used drugs since being in custody and resolved never to do so again.

5. He gave a version of events in relation to the offences. The psychologist said the main thing [NAME] wished to clarify was that after his arrest in October 2014 he did not want to reoffend but was pressured to do so when his supplier, with feared "gangster" links, pressured him to do so, promising it would only be for a short time.

6. Psychometric testing revealed extremely severe scores on depression and anxiety while stress rated as moderate. 7. [NAME] reported that he felt lonely and isolated in gaol. He had few visits and was able to speak with his mother in China every 10 days. She was his only close family and he worried because of her health problems.

8. A translated letter from [NAME]'s mother confirmed what he had told the psychologist and a translated Diagnosis Report from the Sichuan Chengdu No 7 People's Hospital confirmed she had hypertension, myocardial ischemia, cerebral atrophy and cerebral arteriosclerosis.

9. The judge noted that there was nothing in the psychologist's report that explained the offending "other than of course his use of prohibited drugs and his desire to support himself by way of profiting from the supply". [8] 10. [NAME]'s criminal history contained a single entry; a conviction for dealing with the suspected proceeds of crime on 9-12 March 2011. The [NAME] tendered the facts of that offence. It involved [NAME] and a co-offender transporting just over $2.5 million in largely $100 and $50 notes in two suitcases on a train from Perth to Sydney. [NAME] was sentenced to imprisonment for 12 months with a non-parole period of 7 months.

Grounds of proposed appeal 1. [NAME] endeavoured to formulate seven grounds of appeal with varying degrees of precision. It is unnecessary to deal with them all as there is in my view obvious merit within the first and sixth grounds in terms of a complaint about disparity in relation to Count 3. In short, [NAME] contends that the judge erred in characterising his role in that offence as more significant than the role played by [NAME] and, to a lesser extent, [NAME]. It is his contention that he was simply an "errand boy" for the supplies made to the undercover operative, "[NAME]" in both Counts 2 and 3. He submitted: [9] My role is followed the requirement which is looking for drugs, and then delivered to the undercover agent. I am the bottom level errand boy, not the principal.

1. Allied to that contention he argues that he should not have received a greater sentence for the Count 3 offence than [NAME] and [NAME] received.

2. In the District Court, senior counsel for [NAME] submitted that while he was not a "mere courier" he was, "at the very highest, in the mid-range of the hierarchy". She summarised: "he is receiving the methylamphetamine from a person … and he is passing it onto the undercover operative, getting the money, and then handing the majority of that money over to the persons from whom he received the methylamphetamine". She referred to the agreed fact that he was receiving $10,000 for each kilogram which equated to about 10% of the sale price. [10]

3. Later, Ms King SC accepted that "the role that he played in these offences while it was, on one view of it, critical to the carrying out of the supply to the undercover operative, he nevertheless was acting within a hierarchal structure". [11]

4. These submissions made on [NAME]'s behalf were consistent with what the agreed facts described. The characterisation of his role was perfectly apt. Importantly, the sentencing judge did not say anything to suggest [NAME] had operated at a higher level.

5. Reference has been made earlier (at [16]) to the judge's reference to [NAME] being "the principal in those supplies". In the sense that he was the person who provided the drugs to the purchaser and received the payment, he was. It is not apparent the judge meant any more than that.

6. Describing himself as a mere "errand boy" seriously understates the gravity of his role. He played a vital role in the supply of substantial quantities of a pernicious drug for significant financial gain. His commission on the large commercial supplies would have been in order of $30,000. He had been actively involved in drug supply for some months as evident from the finding by police at his apartment on 31 October 2014, methylamphetamine (31.64g), scales, gloves, boxes of resealable plastic bags, and $94,000 in cash. 7. [NAME] referred to the statement in the agreed facts in relation to Count 3 that, "At this point it is clear that [NAME] and [NAME] are the facilitators of the supply of the prohibited drug and are in control of the transaction". "This point" was a reference to the time when [NAME] and [NAME] were approaching the undercover operative's car carrying the bags of drugs 8. [NAME] submitted that [NAME] was the "owner" of the drugs and "gave the order to Mr [NAME] and [NAME] [sic – [NAME]] to carry the two bags to the crime scene". In the material tendered in the case concerning [NAME] there was in fact no evidence as to who was the owner of the drugs. 9. [NAME] contends that his role was less significant than the role of [NAME] and [NAME] but points out that [NAME] received a sentence of 7 years 8 months with a non-parole period of 5 years 6 months whereas [NAME] received 12 years with a non-parole period of 9 years. Reference was made to [NAME] v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 for its discussion of the parity principle.

Sentencing of [NAME] 1. [NAME] was sentenced for a single offence of knowingly take part in the supply of a large commercial quantity (1996.9g) of methylamphetamine on 14 May 2015. The facts were the same as described above in [NAME]'s case. They included the part about [NAME] (and [NAME]) being a facilitator and in control of the transaction. [12]

2. Taken into account was an offence on a Form 1 document of knowingly participating in a criminal group, directing activities, contrary to s 93T(1A) of the Crimes Act.

3. King SC DCJ sentenced [NAME] on the same day he sentenced [NAME], although delivering separate judgments for each case.

4. His Honour said: The offence involved the offender taking a significant role in relation to the distribution of a substantial quantity of a prohibited drug, being just short of twice the quantity that classifies as a large commercial quantity … The offender took an active role and directed others … His role was significant and substantial in relation to this particular supply.

1. The objective seriousness was assessed as being, "at least in the midrange, and the offender as having a significant role in relation to that offending". 2. [NAME] was aged 22 at the time of the offence. A feature of his subjective case was that he committed the offence only six weeks after being released on parole in respect of a sentence of 14 months with a non-parole period of 8 months for supplying a prohibited drug. His Honour exercised his discretion to completely accumulate the sentence he imposed upon the balance of parole [NAME] was required to serve. 3. [NAME] attributed his addiction to methylamphetamine to his grief concerning the death of his father in 2011. When he was released on parole in early April 2015 he soon relapsed into drug use. He claimed that his addiction developed to a point where he was unable to work and he was then unable to pay for his drugs and so he began working for his dealer to support his habit. That was the context in which he committed the present offence and the previous one.

4. King SC DCJ was not prepared to accept second hand accounts from the offender because he had lied to a community corrections officer by claiming he was innocent of the offence; such a claim being disavowed by his counsel. There was no acceptable evidence of genuine remorse and his Honour could not find there were good prospects of rehabilitation or a low prospect of reoffending. He declined to find special circumstances.

5. The sentence imposed was imprisonment for 9 years with a non-parole period of 6 years and 9 months.

6. The sentencing judge omitted to mention the plea of guilty in his remarks on sentence but in this Court on appeal it was held that he must have taken it into account and allowed a discount of 25%, given the plea was entered in the [ADDRESS]: [NAME] v R [2018] NSWCCA 82 at [47]-[53]. The starting point before discounting must have been 12 years.

Sentencing of [NAME] 1. [NAME] was sentenced for a single offence of supplying a large commercial quantity (1996.9g) of methylamphetamine on 14 May 2015, with an offence of knowingly participate in criminal group, directing activities, contrary to s 93T(1A) of the Crimes Act.

2. King SC DCJ sentenced [NAME] on 18 May 2018, almost a year after sentencing [NAME] and [NAME]. He explicitly referred to his awareness of the sentences imposed upon others and acknowledged the principle of parity.

3. His Honour repeated what he had said in sentencing [NAME]: [13] The offence involved the offender taking a significant role in relation to the distribution of a substantial quantity of a prohibited drug, being just short of twice the quantity qualifying as a large commercial quantity … The offender took an active role and directed others ….

1. The agreed facts were the same as for [NAME] and [NAME] except that they did not include the part about [NAME] and [NAME] being facilitators and in control of the transaction. However, for reasons his Honour gave, he concluded: [14] It is clear that the offender was a facilitator of the obtaining and sale of the prohibited drug and significantly in control of the transaction, together with [NAME].

1. Repeating what he had said in respect of [NAME], his Honour assessed the objective seriousness being "at least in the midrange and the offender as having a significant role in relation to that offending". 2. [NAME] was aged 21 at the time of the offence. He had no criminal history. He had been using methylamphetamine for about two years and had been in a relationship for about the same period. His partner was described as demanding and requested him to provide funds for them to live a more luxurious lifestyle. He gave this as his reason for participating in the offence.

3. His Honour found that [NAME] was genuinely remorseful and had at least a reasonable prospect of rehabilitation and a low prospect of re-offending.

4. From a starting point of 11 years, his Honour allowed a reduction of 30% and, with rounding, imposed a sentence of 7 years and 8 months with a non-parole period of 5 years and 6 months.

Proceedings against other co-offenders 1. [NAME] pleaded guilty to an offence of supplying a commercial quantity of methylamphetamine on the basis it was agreed that he "only had knowledge that he was supplying a commercial quantity of methylamphetamine in an amount approaching the large commercial quantity". [15] He had no prior convictions, was found to be genuinely remorseful, had a low risk of reoffending and reasonable prospects of rehabilitation. After a 25% discount for his plea he received a sentence of imprisonment for 6 years with a non-parole period of 4 years.

2. Proceedings against [NAME] culminated in verdicts of not guilty on 2 August 2018 on charges of supply a large commercial quantity of methylamphetamine, supply a commercial quantity of methylamphetamine (presumably in the alternative to the previous charge), and participating in a criminal group.

Consideration 1. There are two aspects to this "ground". One concerns seemingly inconsistent findings of objective seriousness of the Count 3 offence. The other concerns the disparity of the sentences assessed for them.

Inconsistent findings of objective seriousness 1. His Honour made an assessment of "above midrange" objective seriousness for [NAME] but "at least midrange" for [NAME] and [NAME] . Viewed as a whole, the gravity of the offence is the same for all participants but having regard to the actual roles played by each offender, [NAME]'s offence could not be regarded as more serious than any of the others. He was something of a conduit between the two persons described as facilitators and controllers of the transaction and the undercover operative.

2. The [NAME] submitted that "the applicant was operating at least at an equal level with [NAME] and [NAME]. As a result, the respondent submits that his Honour's finding that the applicant was the principal of the enterprise was open". [16] That is incorrect. As indicated above (at [24]), it was not a finding made by his Honour and nor is it supported by anything in the agreed facts.

3. The inconsistent assessment of the objective seriousness of [NAME]'s Count 3 offence may explain the greater sentence assessed in his case.

The parity principle 1. Drawing from [NAME] v The Queen; [NAME] v The Queen (at [28], [31]) ([NAME], Crennan and Kiefel JJ), the parity principle "requires that like offenders should be treated in a like manner". It is a "reflection of the notion of equal justice". A court of criminal appeal may "reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender". "The reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done."

2. Often there are difficulties for an asserted breach of the parity principle to be established when co-offenders have been sentenced by the same judge. It has been described as a "not inconsiderable hurdle": Parkinson v R [2021] NSWCCA 98 at [105]-[106], where [NAME] explained that the one judge dealing with co-offenders will be "well placed to assess the differences and reflect them in the sentence imposed upon each". However, and particularly when dealing with a significant number of offenders, each the subject of separate [NAME] and defence cases, an assessment of the similarities and differences may sometimes become difficult.

Application of the parity principle 1. There is an unjustifiable disparity in the indicative sentence assessed for Count 3. The starting point before discounting for [NAME] was 16 years, whereas the starting points for the other two offenders were 12 years and 11 years.

2. The disparity between the sentences imposed upon [NAME] and [NAME] can be accounted for because the former committed the offence while on parole for a previous drug supply offence and had no favourable subjective matters while the latter had no prior criminal history and favourable findings in relation to remorse, rehabilitation prospects and low prospect of reoffending.

3. A material point of difference between the case of [NAME] and the cases concerning the others is that they were only sentenced for one drug supply offence whereas his corresponding offence was a continuation of drug supplies to the same undercover operative which all occurred while he was on bail for the drug supply offence some months before. However, this cannot have had any relevance to the assessment of objective seriousness of the final offence, nor explain the substantially higher starting point adopted. The correct manner of accounting for this feature is by application of the principle of totality in the assessment of the degree of accumulation or concurrency between the sentences for each offence.

4. Another point of distinction is that the sentences for Counts 2 and 3 take into account [NAME]'s guilt of further offences that were not applicable in the cases of any of his co-offenders. These have the effect of requiring a longer sentence than would otherwise be imposed because of the need to give greater weight to retribution and personal deterrence: Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [22].

5. The proposed appeal is against the aggregate sentence imposed but an error in the assessment of an indicative sentence that could adversely affect the assessment of the aggregate sentence to a material degree would call for potential intervention by this Court by considering whether some other less severe sentence was warranted and should have been passed: Criminal Appeal Act 1912 (NSW), s 6(3). Given the indicative sentence for Count 3 is the largest of the indicative sentences and it represents a substantial proportion of the aggregate sentence, the erroneous disparity in respect of it requires the Court to re-exercise the sentence discretion afresh.

Other grounds 1. Having regard to the success of the "parity" ground it is unnecessary to dwell upon the other matters [NAME] has raised. There is a rule of practice that a ground raising a complaint concerning parity assumes that the sentence is otherwise correct: Ritchie v R [2023] NSWCCA 153 at [2]-[12]. There is, however, no rule of practice that requires the Court to engage in a discussion of multiple grounds of appeal, all of which have no merit, when it is readily apparent that a complaint about parity should succeed.

Resentencing 1. The facts of the offences have been described above. The assessments of the sentencing judge of the objective seriousness of the offences in Count 1 and 2 should be accepted. For Count 3 the assessment should be the same as for [NAME] and [NAME], that is, in the middle of the range. [NAME]'s role in relation to Count 3 was somewhat less significant than that of those two but it was, as submitted to the primary judge by [NAME]'s counsel, still one that was "critical". The fact that for each supply the subject of Counts 2 and 3 [NAME] was to earn a commission of $10,000 per kilogram is indicative of how important his role was regarded by his superior.

2. The discounts assessed by the judge of 25% for the early pleas of guilty should be maintained.

3. No evidence was placed before the Court as to any subjective matter that might be taken into account beyond the evidence that was before the District Court.

4. The COVID-19 pandemic commenced and has run its course during the time [NAME] has been serving his sentence. It involved hardships that most prison inmates have experienced with limitations on transfers and movements, restrictions on visitors (although perhaps not so significant in [NAME]'s case), suspensions of education, rehabilitation and vocational courses and programs and the like. This should be taken into account in resentencing.

5. The reduction of the indicative sentence for Count 3 to reflect an appropriate measure of parity with the sentencing of the co-offenders will require that the indicative sentence for Count 2 be re-determined to ensure an appropriate relativity between the two.

6. Under Ground 5 [NAME] complained that the judge did not take into account the prospect that he would be deported. The law is clear that this is not a matter that is relevant to sentence: Kristensen v R [2018] NSWCCA 189 at [23]-[35]; [NAME] v R [2021] NSWCCA 177 at [48]-[51].

7. An aggregate sentence should be imposed. Taking into account the offences on the Form 1 documents, the indicative sentences should be: Count 1 – supply prohibited drug at Sydney on 31 October 2014 (2014/321172-002) – 2 years 3 months. Count 2 – supply prohibited drug in not less than large commercial quantity at Zetland and Ryde between 21 March 2015 and 28 April 2015 (2015/144749-001) – 8 years 3 months with a non-parole period of 6 years and 2½ months. Count 3 – supply prohibited drug in not less than large commercial quantity at Kensington on 14 May 2015 (2015/144749-002) – 9 years with a non-parole period of 6 years 9 months.

1. There should be some degree of notional accumulation of these indicative sentences in the formulation of the aggregate sentence as they relate to distinct instances of serious offending. The extent of such accumulation will be moderated in accordance with the principle of totality. The aggregate sentence should be 11 years with a non-parole period of 8 years 3 months. 2. [NAME] did not file his Notice of Application for Leave to Appeal until 28 September 2022, well over five years after he was sentenced. He provided an explanation for not filing it in the past two years but made no attempt to explain the inaction for the three years before that. Nevertheless, because there is merit and the Court should resentence, it follows that an extension of time as well as leave to appeal should be granted.

Orders 1. [ADDRESS] makes the following orders:

1. Extend the time for commencing proceedings in this Court to 28 September 2022.

2. Grant leave to appeal and allow the appeal.

3. Quash the sentence imposed in the District Court on 23 June 2017 and in lieu, sentence the offender to an aggregate term of imprisonment for 11 years with a non-parole period of 8 years and 3 months.

4. The sentence will date from 14 May 2015. The offender became eligible for release on parole when the non-parole period expired on 13 August 2023.

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Endnotes 1. Remarks on sentence (ROS) [26], [63]

2. Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 3. ROS [25]

4. ROS [55]

5. ROS [59]-[60] 6. [NAME] submissions at [53], [57], [178], Annexure C 7. ROS [61], [63]

8. ROS [84]

9. Written submissions at p2.7 10. AB 45-46 11. AB 47 12. AB294.4 13. AB 559 14. AB561 15. Agreed facts at AB 201 16. CWS [53] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2023