Ground 2: the sentence imposed on the applicant does not comply with the parity principle having regard to the sentences imposed upon Messrs. Smyrnis and Limberis
16 As to the relevant principles, I adhere to, but need not repeat the detail of, what I wrote in a very recent judgment in Browne v Reg: CCA 62, 14/3/06 at paras 13-18.
17 When the applicant stood for sentence, the co-offender Smyrnis had already been sentenced by Judge Finnane. The other co-offender, Limberis, was scheduled to stand for sentence at some future time. As his Honour put it: "At this stage I really know very little about Mr. Limberis and his part in all this".
18 His Honour was obviously alive to the need to consider the just requirements of parity as between the co-offender Smyrnis and the applicant. His Honour dealt with that matter as follows:
"When it comes to assessing penalties I must of course have regard to the fact that I have already sentenced Mr. Smyrnis. I have indicated already in the remarks that I have made that I regard the actions of Mr. Retsos as warranting condemnation. Even more it could be said, should there have been condemnation visited on Mr. Smyrnis. ……………………………………. .
There are only two reasons that Mr. Smyrnis did not end up in a gaol for what he did. The first was that he provided outstanding assistance to the Independent Commission Against Corruption and they provided documentary support for that outstanding assistance. The second reason is that his wife, as a result of his exposure and the investigations which included the placing of listening devices in the family home, had a severe mental collapse and her situation was of such an extreme nature that I considered I, whilst I should pass sentences of imprisonment, I should not make them sentences of full-time imprisonment. He of course was also entitled to a significant discount on sentence because he had in the past offered to give assistance and had given it, and is prepared to give evidence at the forthcoming trial or trials.
……………………………………………………………………
In my opinion the major culprit in the bribery matter was Mr. Andreas Andrew Smyrnis. He was the one who thought of the idea. He was going to be the principal beneficiary. He came up with the idea of $250,000 as a bribe and he used Mr. Retsos as a channel of communication. I have imposed a period of imprisonment on him and very much reduced it and made it one of periodic detention.
In my opinion the current offender, just on the question of parity, must receive a lesser sentence, both in terms of time and perhaps type than was imposed on Mr. Smyrnis. He was not a solicitor, he was not a councillor, he did not abuse public office and what he was going to get from it was fairly uncertain. The evidence to which I have referred already, indicates that he was certainly discussing getting $50,000. I also accept his evidence that his main interest was in getting concreting work. It is hard to say. I think he could have expected to get some monetary reward by putting through this matter if it had happened and no doubt he would have got some or all of the concreting work. That would have been his expectation.
I gave a sentence to Mr. Smyrnis for the other matters of bribery and I imposed a sentence for the false swearing matters of which he was guilty. In my opinion his culpability was very much greater in every respect in respect of every crime than that of the current offender because he was a solicitor, he was a councillor and he was going to be the principal beneficiary. It is against that background that I consider matters that would go to mitigation." [AB passim at 14, 15, 17, 18, 19]
19 In sentencing the co-offender Smyrnis, Judge Finnane explained as follows his Honour's ultimate sentencing structure:
"I am as certain as I can be he will never come back before this Court again. From the period he offered assistance until the period he was brought to Court up to the present day the process of rehabilitation has continued.
Overall he should receive a 50% discount. This is a case where to send him to full time custody would be to impose a degree of hardship on his family so exceptional it should not be done. I do not propose to put him into full-time custody despite submissions to the contrary of the Crown Prosecutor. The sentence is based on an acceptance he will continue to assist the authorities. 10% goes to him giving further assistance, if he doesn't assist, he would go into custody.
But for the discount of 50% he would have received the following:
Count 1: (and form 1 matters): NPP 2 years head sentence of 4 years
Count 2: NPP 18 months head sentence 3 years (concurrent with count 1)
Counts 3, 4 and 5 - any solicitor giving false evidence can expect a gaol term - NPP 1 year head sentence 2 years (3 & 4 separately cumulative and count 5 concurrent with count 4)
Applying the 50% discount I would give a total head sentence of 3 years to be served by way of periodic detention.
Count 1: fixed term 19/11/2004 to 18/11/2005
Count 2: fixed term 19/11/2004 to 18/08/2005
Count 3: fixed term 19/11/2005 to 18/11/2006
Count 4: fixed term 19/11/2006 to 18/11/2007
Count 5: fixed term 19/11/2006 to 18/11/2007 (concurrent with count 4)" [AB 64, 65]
20 I confess to having some difficulty in understanding this structure. The intended sentencing structure before a discount of 50 per cent, as adumbrated by Finnane DCJ, contains no indicative dating; and it is therefore not possible to see whether his Honour applied his mind to section 47 of the Crimes (Sentencing Procedure) Act 1999, and in particular to sub-section (4) of that section; or whether his Honour did not advert to the restrictions imposed by section 47. On the assumption that his Honour did advert to the requirements of section 47, then the pre-discount sentencing structure as adumbrated by his Honour would have yielded an effective sentence of 5 years and an effective non-parole period of 4 years. The proposed discount of 50 per cent ought logically to have yielded an effective head sentence of 2-1/2 years and an effective non-parole period of 2 years. I can see no rational basis upon which those calculations can be reconciled with the result achieved by the five fixed terms of imprisonment actually passed by his Honour upon Mr. Smyrnis. Those five fixed terms entail a sentence of actual custody of 3 years. There is no non-parole period, and no explanation of the absence of one. There is no consideration of the question whether a non-parole period of 2 years set as part of an overall sentence of 2-1/2 years is a justifiable apportionment as between non-parole period and overall head sentence. A total head sentence of 3 years unaccompanied by a non-parole period and representing a 50 per cent discount suggests an undiscounted head sentence of 6 years. The process of reasoning that underlies what is said in the material quoted from AB 64, 65 is not exposed, and in my respectful opinion cannot be otherwise discerned. Of course, an aggregate sentence exceeding 3 years could not have been ordered to be served by way of periodic detention, and perhaps that explains the end result. It would have helped, if I may say so with respectful frankness, to have had from his Honour a clear expression of a clear process of reasoning. To set sentences of imprisonment the underlying reasoning of which is both unexplained and impenetrable is, with respect, not a proper performance of the particular judicial function."
21 It happens that both the applicant and the co-offender Smyrnis finish up with exactly the same overall result as to sentence of imprisonment. This appears, at first blush, to be an odd coincidence, given his Honour's repeated opinion that the applicant should receive a lesser sentence than the co-offender. The apparent incongruity becomes, however, explicable when allowance is made for the 50% overall discount given to the co-offender, but not given to the applicant.
22 I am unpersuaded that the sentences passed upon the applicant, when compared with those passed upon the co-offender Smyrnis, offend the parity principle. I would be firmly of that view even without considering the practical consequence of this Court's now allowing the appeal against the fines component of the penalties imposed at first instance. That practical consequence leaves Mr. Smyrnis with a pecuniary penalty of some $3,910 and leaves the applicant with no pecuniary penalty at all. In my opinion any continuing sense of grievance thereafter on the applicant's part is not justified in the sense of which the relevant authorities speak.
23 The papers in the current application contain a deal of material explanatory of the basis upon which Judge Finnane calculated the sentence passed ultimately upon the co-offender Smyrnis; but they contain no comparable material explanatory of the case of the co-offender Limberis. That being so, I do not see any proper basis upon which this Court can now interfere with the applicant's sentence upon the basis that, when compared with the sentencing result in the case of the co-offender Limberis, it offends the parity principle.
24 I would not, therefore, uphold Ground 2.