"The offender claims that his role in the management of the syndicate was limited to "administration". However, the statement of facts, exhibit A, reveals that he was more involved, more hands-on, so to speak, then the administrator. His counsel submitted that his role was less important than that of Cheikh. I cannot see the distinction between Cheikh and the offender, they were the managers of the syndicate and, although they may have done different things, they were equals and management of the syndicate."
23 It was argued in this Court that there was a significant difference between the criminality of Cheikh and that of the applicant, not the least being because Cheikh set up the syndicate whereas the applicant joined an on-going operation. There was however no evidence that Cheikh had set up the syndicate, a point raised by Cheikh on the hearing of the Crown appeal against his sentence as seen in the passage quoted above from the judgment of Giles JA at [54].
24 It was also argued that there was no evidence of any telephone calls involving the applicant in October 2001 and, therefore, his role must have been less than Cheikh in that month. It was stressed that, but for the plea of guilty, the Crown would have had difficulty proving the applicant's involvement in the syndicate in any capacity in that month.
25 Had the applicant been sentenced for his conduct in October and perhaps one or two months in addition, the argument might have had some validity. But the applicant was being sentenced for his involvement in the syndicate for a period of about 7 months during which period, overall, he was a manager of the syndicate. The fact that he may have taken a little time to develop that role so that he was not immediately controlling the runners when he entered the syndicate in October is of little significance. As Justice Giles indicated in the appeal in respect of Cheikh, there is little purpose to be served in identifying with exactitude what each of the applicant and Cheikh did in carrying out their particular managerial functions. They were both managers and generally speaking they were carrying out the same functions. The role attributed to Cheikh in the facts against him, that is "supplying the runners with drugs, paying them for their services, checking on their locations and seeing if that [sic] had sufficient drugs to supply during their shifts" was very much the same role that the applicant was fulfilling in the telephone calls set out in the statement of facts tendered against him. It might have been that he was not actually supplying the runners with drugs, but that does not seem to me to be particularly significant having regard to his active involvement in the management of the syndicate over a not insignificant period.
26 It should also be noted that the applicant had an additional matter on the Form 1 than did Cheikh. This was the supply of cannabis leaf over a period of 7 months. That fact needed to be reflected in the sentence imposed upon the applicant.
27 In my opinion there was no error in the judge treating the criminality of Cheikh and the applicant as generally the same for the purpose of sentencing them both. Insofar as there is a complaint that the sentence imposed upon the applicant and Cheikh for the first count was the same whereas in October the applicant's role was less than Cheikh's, this is a highly technical argument in light of the fact that that sentence was made concurrent with the sentences for the second and third counts in the applicant's case, whereas the sentences for those counts were partly cumulative in the case of Cheikh. If strict sentencing principles were to be followed, there should have been some cumulation of the sentences imposed upon the applicant for the first three offences on the indictment. Similarly a complaint that the applicant is to serve five years for the first three offences whereas Cheikh is to serve four years ten months for the same offences is with respect overly technical. There was a difference in the discounts for the plea of guilty in favour of Cheikh. In any event, if there is no error in the overall sentences imposed upon the two offenders, then the exercise of the discretion to address disparity does not require this Court to intervene on particular sentences where the difference in the sentences imposed is minimal.
28 There were some differences between the subjective circumstances of Cheikh and the applicant. Cheikh received a discount for the plea of guilty of 15 per cent when this Court resentenced him whereas the applicant received a discount of 10 per cent. The applicant was on a good behaviour bond for an offence of supplying a prohibited drug when he was involved in the syndicate after January 2002. He was on bail for the same offences when he joined the syndicate in October 2001. The fact that the applicant committed the offences, for which Judge Nield was sentencing him, while on conditional liberty for similar offending was a seriously aggravating factor. On the other hand Cheikh had no relevant criminal history. Cheikh was older than the applicant but had a wife and child. The applicant had medical problems, and would be required to spend his time in protection. The weight to be given to the presence of his medical problems was to be reduced somewhat because they were present at the time of the offending.
29 Much was made both before the sentencing judge and this Court that the applicant had been a young immature man who had been given no assistance even when placed upon bonds when sentenced in the Childrens Court. The difficulty with that submission is that the applicant denied the offences for which he was sentenced in the Childrens Court and hence supervision was seen as having little value and thus terminated. He was at that time living with his parents. The Pre-sentence Report placed before the District Court indicated that the Probation and Parole Service had little or nothing to offer the applicant by way of supervision or programmes. There was no evidence to indicate that the applicant was so immature that this was a factor to be given any significant weight in sentencing him for these serious offences.
30 It is difficult for this Court to compare in detail the factors favourable or unfavourable to each of the applicant and Cheikh. They were sentenced by the same judge, notwithstanding the intervention of the Court of Criminal Appeal in the case of Cheikh, and in such a case this Court must have regard to factual findings and impressions acted upon by the judge when determining the respective culpability and respective personal circumstances of each of the offenders. The judge here clearly favoured the subjective circumstances of Cheikh over those of the applicant and gave weight to those particular matters. For example he found there were prospects for rehabilitation arising from the fact that Cheikh was working while on bail. This Court has not had placed before it all the material relating to Cheikh that was placed before the sentencing judge and taken into account by the Court of Criminal Appeal.
31 On the other hand the judge was entitled to give significant weight to the aggravating factor that the applicant committed these offences while on bail or a bond for similar and serious criminality. This resulted in the judge commenting that the applicant was not immature when it came to supplying drugs. In my opinion this was a very substantial matter of aggravation and was not significantly diminished by the fact that the applicant was a young man. There is nothing to suggest that he did not appreciate the seriousness of the criminality of his conduct either in the offences for which he was before the Childrens Court or in these matters.
32 I am not persuaded that the applicant was subjectively in a more favourable position that Cheikh. To the contrary, putting to one side the applicant's medical condition and its impact upon the nature of his custody, it would have been open to the sentencing judge to impose a more severe sentence on the applicant because of the aggravating factor of his being on conditional liberty for the same type of offending and the additional matter on the Form 1.
33 One issue that arises in this case is the relevance of the fact that Cheikh's sentence was imposed after a Crown appeal. It is well established that this Court takes into account double jeopardy when resentencing on a successful Crown appeal. As a result the sentence imposed is usually at the very bottom of the available range and is frequently less than should have been imposed at first instance. In the case of Cheikh, Giles JA considered the minimum sentence that ought to have been imposed upon Cheikh for the purpose of resentencing him and noted (at [59]), "a greater period of imprisonment could have been imposed without error."
34 The Crown brought the Court's attention to the decision in R v Christie [2000] NSWCCA 354. That was a case in which the trial judge had sentenced a co-offender by way of a fine, a sentence that this Court held to be manifestly inadequate. This Court after a Crown appeal imposed a term of imprisonment but ordered that it be served by way of periodic detention, described by one of the judges in the majority as "the least possible sentence". The applicant had been sentenced to imprisonment for 5 years with a non-parole period of three years. The only issue was the question of parity with the sentence imposed upon the co-offender by this Court.
35 Fitzgerald JA gave the leading judgment of this Court. In relation to the sentence imposed upon the co-offender, his Honour stated: