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[2025] NSWCCA 82
General information, not legal advice.
Court of Criminal Appeal (NSW)
2025-06-25
Davies J at [1]Hamill J at [79]McNaughton J at [83]
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Antony v R [2025] NSWCCA 82
Hearing dates: 30 May 2025
Date of orders: 25 June 2025
Decision date: 25 June 2025
Before: Davies J at [1]
Hamill J at [79]
McNaughton J at [83]
Decision: (1) Grant leave to appeal.
(2) Dismiss the appeal.
Catchwords: SENTENCING – appeal against sentence – co-offenders – parity principle - disparity between sentences – where the applicant pleaded guilty to aiding and abetting the importation of a commercial quantity of a border controlled precursor – where a co-offender was sentenced by a different judge in respect of a related offence of attempting to import a commercial quantity of border controlled precursor – whether there was error in the sentencing judge’s sentence having regard to parity principles – where his Honour made appropriate findings about the applicant's offending and circumstances – where those findings were compared to the offending and circumstances of the co-offender – where the imposed undiscounted starting point took into account the differences between the applicant and the co-offender – where the applicant received a lower sentence than the co-offender – no error in his Honour’s sentence having regard to parity principles
Legislation Cited: Crimes Act 1914 (Cth) s 16A
Criminal Code (Cth) ss 11.2, 307.11
Drug Misuse and Trafficking Act 1985 (NSW) s 25
Cases Cited: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 274
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lewins v R [2007] NSWCCA 189; (2007) 175 A Crim R 40
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mohr v R [2024] NSWCCA 197
Mulato v R [2006] NSWCCA 282
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Antony [2024] NSWDC 580
R v Pan [2005] NSWCCA 114
Rae v R [2011] NSWCCA 211
Texts Cited: Nil
Category: Principal judgment
Parties: Newran Antony (Applicant)
Crown (Respondent)
Representation: Counsel:
G James KC & E James (Applicant)
M England SC & E ten Kate (Respondent)
Solicitors:
One Group Legal (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2022/15541
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
On the second scheduled day of his trial, the applicant, Mr Newran Antony, pleaded guilty to one count of aiding and abetting the importation of a commercial quantity of a border controlled precursor contrary to ss 307.11(1) and 11.2(1) of the Criminal Code (Cth). On 6 December 2024, the applicant was sentenced to imprisonment for 3 years 7 months with a non-parole period of 2 years.
A co-offender, Gnanatheepan Gopalakrishnan (“GG”), was sentenced on 18 July 2024, in respect of a related offence of attempting to import a commercial quantity of a border controlled precursor, to imprisonment for 8 years 4 months with a non-parole period of 5 years.
The applicant and GG were involved in the attempted importation of a commercial quantity of pseudoephedrine from India into Australia in March 2021. The consignment of pseudoephedrine was intercepted by Australian Border Force and substituted with sand before being delivered to the intended address. The applicant aided and abetted the commission of the offence by GG by assisting in obtaining money for payment of the pseudoephedrine and attending GG’s house to assist GG in attempting to access the substituted pseudoephedrine. GG was also charged in relation to two other consignments of pseudoephedrine in which the applicant was not involved.
In his Remarks on Sentence (“ROS”), the sentencing judge said that “questions of parity do not have any part to play” due to the difference between the applicant’s and GG’s offending and circumstances. His Honour also found that the applicant played a trusted but not indispensable role in the criminal syndicate. He found that the applicant fell below GG in the hierarchy. Notably, Judge Hunt in sentencing GG reached a different conclusion, finding that GG’s role was towards the lower end of the hierarchy and certainly below that of the applicant. These differing assessments were open to both judges on the evidence before them.
The applicant sought leave to appeal against his sentence on the following grounds:
That the learned Judge:
Ground 1: Erred in holding that the questions of parity between the sentence of the co-accused Gopalkrishnan and that of the applicant did not have any part to play and in failing to apply the principles of parity such that the sentence was erroneously disparate passed on the co-offender;
Ground 2: The sentence was based on an erroneous assessment of the objective seriousness of the applicant’s offending and was thereby affected with error;
Ground 3: The sentence was erroneously disproportionate to the applicant’s role, culpability and circumstances; and
Ground 4: Imposed a sentence that was, in all the circumstances, manifestly excessive.
At the outset of the appeal counsel for the applicant indicated that all of the grounds of appeal overlapped and primarily concerned disparity in the end result. In keeping with that position the Court first considered all of the grounds of appeal as being concerned with the parity principle before considering Ground 4 independently.
The Court (per Davies J, Hamill J and McNaughton J agreeing) held, dismissing the appeal:
As to Parity:
(1) It was abundantly clear that the sentencing judge gave detailed consideration to parity principles in relation to the co-offender GG. That appears from both the headings in the ROS as well as the detailed consideration his Honour gave to the similarities and differences between the applicant’s position and that of GG. In saying “questions of parity do not have any part to play”, his Honour was stating that the sentence given to the applicant would not bear any similarity to GG’s sentence. In that regard the difference between his Honour’s assessment of the applicant's role and Judge Hunt’s assessment was important: [57]-[58] (Davies J), [81]-[82] (Hamill J), [83] (McNaughton J).
(2) Judge Hunt’s determination of the roles of the two offenders and the resultant undiscounted starting point for the sentence imposed on GG did not oblige the sentencing judge in the applicant’s case to find an undiscounted starting point at an unreasonably low level to account for Judge Hunt’s different assessment of the roles: [59]-[63] (Davies J), [81]-[82] (Hamill J), [83] (McNaughton J).
Mulato v R [2006] NSWCCA 282; R v Pan [2005] NSWCCA 114*,* cited.
(3) When regard was had to the applicant’s offending and circumstances, the differences with GG’s offending and circumstances, the fact that the amount involved was 28 times the commercial quantity and that the maximum sentence provided was 25 years imprisonment, there was no error in his Honour’s sentence and the applicant does not have a justifiable sense of grievance: [66], [75] (Davies J), [81]-[82] (Hamill J), [83] (McNaughton J).
As to Ground 4:
(1) The Court held that the applicant’s sentence was not manifestly excessive. The applicant had a low but significant role in the hierarchy and was involved in the attempted physical extraction of the border controlled precursor: [76]-[77] (Davies J), [80] (Hamill J), [83] (McNaughton J).
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221*,* cited.
DAVIES J: On the second scheduled day of his trial, prior to empanelment of the jury, the applicant pleaded guilty to one count of aiding and abetting the importation of a commercial quantity of a border controlled precursor contrary to ss 307.11(1) and 11.2(1) of the Criminal Code (Cth). The maximum penalty for this offence is imprisonment for 25 years and/or 5000 penalty units.
On 6 December 2024 Judge Newlinds SC, sentenced the applicant to imprisonment for 3 years 7 months commencing 18 September 2024 and expiring 17 April 2028 with a non-parole period of 2 years expiring 17 September 2026: R v Antony [2024] NSWDC 580.
A co-offender, Gnanatheepan Gopalakrishnan (“GG”), was sentenced by Judge Hunt on 18 July 2024, in respect of a related offence of attempting to import a commercial quantity of a border controlled precursor, to imprisonment for 8 years 4 months with a non-parole period of 5 years.
The applicant now seeks leave to appeal against his sentence on the following grounds:
That the learned Judge:
erred in holding that the questions of parity between the sentence of the co-accused Gopalkrishnan and that of the applicant did not have any part to play and in failing to apply the principles of parity such that the sentence was erroneously disparate passed on the co-offender;
the sentence was based on an erroneous assessment of the objective seriousness of the applicant's offending and was thereby affected with error;
the sentence was erroneously disproportionate to the applicant’s role, culpability and circumstances; and
imposed a sentence that was, in all the circumstances, manifestly excessive.
The applicant was sentenced on the basis of a statement of agreed facts which may be summarised as follows.
The applicant and GG were involved in the attempted importation of a commercial quantity of pseudoephedrine from India into Australia in March 2021 (“the Cats Eyes Consignment”). The applicant aided and abetted the commission by GG of the offence by:
(a) assisting GG to obtain money for payment for the Cats Eyes Consignment; and
(b) attending GG's house shortly after GG had collected the substituted Cats Eyes Consignment, to assist GG to attempt to access the substituted pseudoephedrine concealed within the Cats Eyes Consignment.
The applicant knew the offence of importing a commercial quantity of a border controlled precursor was the offence that he was aiding and abetting.
On 20 March 2021, the Cat's Eyes Consignment arrived in Australia. On 31 March 2021, Australian Border Force investigators deconstructed ten steel pallets that formed part of the consignment, and found and removed approximately 41.25 kilograms of concealed pseudoephedrine from the consignment.
Subsequent analysis revealed an average purity of 81.9% meaning that the total pure weight of concealed pseudoephedrine was approximately 33.78 kilograms.
The investigators substituted the pseudoephedrine concealed within the yellow steel pallets with sand and reconstructed the pallets for a controlled delivery.
On 7 April 2021, a storage facility was informed by an associate of GG that containers containing the Cats Eyes Consignment would arrive the next day. The associate called GG, and that night GG called the applicant and had a conversation.
On 17 May 2021, the substituted pallets were due to be delivered to the storage facility. At about 8:35am, GG and his associate arrived at the storage facility and waited nearby. At about 9:10am, GG called the applicant where the following (inter alia) was said:
GG: I am in Aunty shop.
Applicant: Today is that correct.
GG: Yes yes.
Applicant: Okay bye.
Later that morning, the substituted pallets were delivered to the storage facility. At about 12:19pm that day, GG called the applicant and told him that the pallets had arrived. The applicant asked if he was going to do the “TT” [telegraphic transfer] that day, to which GG confirmed that he was. The applicant responded, “Get it from Roshan…I call him and call you back.” Shortly afterwards at about 12:22pm, the applicant called GG and asked how much he wanted. GG said, “16, just 16” and the applicant said, “She will be there in 15 minutes. She will give you two bundle, and take it and keep the pallet”.
At about 1:40pm that day GG drove to the applicant's residence. GG left the residence at about 1:44pm, collected his associate, and they went to the bank together. They had $15,000 to pay the consignors of the Cats Eyes Consignment.
At about 3:46pm, GG and the applicant organised to meet. They rang another co-offender, Mayuran Perinparasa, and discussed exchange rates with India and where they could obtain the best price.
On 19 May 2021 at about 2:14pm, GG collected the substituted pallets from the storage facility. At 2:15pm he called the applicant and said, “I brought it home. Need to grind”. The applicant responded, “Okay I drop her in school and come”. The applicant arrived at GG's residence shortly thereafter, and left at about 2:55pm.
On 20 May 2021, at about 5:05pm, GG called the applicant and said that “SS” kept calling him “for the money”. The applicant replied, “You should have say not even open yet… tell him to wait”.
On 21 May 2021 at about 3:39pm, GG called the applicant and said, “I am taking all stuff… No point to keep”. The applicant replied, “Are you going to dump have to go and see … Need to talk to Robert”, and he asked GG to “Go and close Parklea 5:00pm”.
At about 10:45pm on 18 January 2022, the applicant was arrested at Sydney International Airport on returning to Australia from a holiday in Sri Lanka.
The sentencing judge found that the applicant aided and abetted the commission by GG of the offence by agreeing to assist him to obtain money for payment of the consignment. The applicant also assisted GG to attempt to access the consignment once it had arrived in Australia. His Honour noted the Crown's submission that the applicant played a “trusted and indispensable role” in aiding the importation.
The sentencing judge said that while it was true that the applicant played a trusted role in the importation, in the sense that others involved trusted him, his Honour did not think that the role was an indispensable one. He noted that there were many other consignments apparently successfully imported into Australia by the same criminal syndicate without the applicant being involved. In that way he was not indispensable. His Honour said he was not at all convinced that the applicant held a position in the hierarchy in the syndicate above that of GG. His Honour's conclusion was that the applicant probably fell below GG in the hierarchy.
His Honour found that the applicant knew that the quantity of the drugs was a very significant quantity although the applicant did not know with precision how much was involved. In fact, the amount of 33.78 kg was some 28 times the commercial quantity. His Honour was satisfied beyond reasonable doubt that the applicant was motivated in part by the desire and expectation for financial reward. His Honour considered the objective gravity of the offending to be serious and said that if he had to place it somewhere on the scale, he would say it was somewhere below what might be described as middle-of-the-range.
His Honour noted that the applicant did not give evidence before him including evidence of remorse, but his Honour accepted from evidence given by others of the applicant's remorse that he had shown remorse over and above remorse for the fact that he had been caught, prosecuted and stood to be sentenced for a very serious crime.
His Honour accorded a discount of 10% for the plea. His Honour considered that the plea had some utilitarian value by avoiding the expense of the trial and sparing witnesses from having to attend court to give evidence at any trial.
His Honour held that specific deterrence had a significant role to play. His Honour said that general deterrence was a fundamental and important consideration when sentencing for a Commonwealth drug offence.
His Honour considered as a result of a report from Professor Stephen Woods, a psychologist, who assessed the applicant, that the applicant would be rehabilitated. His Honour considered it unlikely that the applicant would reoffend.
As far as subjective matters were concerned, his Honour said that the applicant was 39 years old with no relevant criminal history. Those who knew him said he was a person of exemplary character. He had a good employment record and was a good family man.
Mr James KC for the applicant indicated at the outset of the appeal that all of the grounds of appeal overlapped. He said that they came down to a common theme which was disparity in the end result. That involved an error in assessing the objective seriousness of the applicant’s offending when compared with what had been determined by Judge Hunt in respect of GG. It also involved applying principles of sentencing in Commonwealth matters having regard to the parity principle. Finally, Mr James said that a compendium of all factors fed into the ground of manifest excess. However, later during the hearing of the appeal, he said, in answer to a question from the bench that, putting aside the co-offender’s sentence, the sentence the applicant received was manifestly excessive in any event.
This approach to the grounds of appeal gave rise to some difficulty because, on the face of the notice of appeal, there was one ground concerning parity and three other grounds asserting error by the sentencing judge. In Lewins v R [2007] NSWCCA 189; (2007) 175 A Crim R 40, Howie J (Basten JA and Grove J agreeing) said at [7]:
… A complaint of disparity accepts that the sentence imposed on the applicant cannot be challenged. It is the sentence imposed upon a co-offender that gives rise to a sense of injustice, not the sentence imposed upon the applicant.
See also Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 274 at [26] and Rae v R [2011] NSWCCA 211 at [60].
The Court’s approach is ordinarily to determine if error is established first and then, if it is not, to consider questions of parity. If error is established, matters concerning parity would be considered in the resentence exercise.
In the result, I am of the opinion that all grounds fail and the appeal should be dismissed for the reasons which follow. In those circumstances, and consistent with Mr James’ primary position, all of the grounds of appeal will first be considered as being concerned with the parity principle. Thereafter ground four will be considered independently.
GG had been sentenced by Judge Hunt on 18 July 2024. GG was charged with two offences. The first was attempting to import a commercial quantity of a border controlled precursor, namely, pseudoephedrine (“the Commonwealth offence”). The penalty for that offence was the same penalty as for the offence with which the applicant was charged. GG was also charged with supplying a large commercial quantity of a prohibited drug being pseudoephedrine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for that offence was life imprisonment and/or a fine of 5000 penalty units. There was a standard non-parole period of 15 years.
Judge Hunt noted that the Commonwealth offence was effectively a rolled-up charge incorporating three separate consignments. These were the Cats Eyes Consignment, amounting to 33.78 kilograms of pure weight pseudoephedrine which also involved the present applicant, the Coconut Consignment of 40.1 kilograms and the RIEAD Consignment of 40.3 kilograms. His Honour noted that the total weight of the precursor was 114.8 kilograms, amounting to 95.15 times the minimum commercial quantity of 1.2 kilograms.
In discussing GG’s role, Judge Hunt said that GG had some level of executive decision-making but it was also clear that some of the actions that he undertook could be traced directly to him. His Honour said that given both the documenting of certain things by photographs on his phone and the retention of that material, his Honour drew an inference on the balance of probabilities that this activity was consistent with GG being responsible to or reporting to others “and arguably others over and above Mr Antony, who remained unidentified”.
Judge Hunt said that he was unable to be satisfied beyond reasonable doubt that GG was a senior member of the syndicate, but he undertook a number of physical and preparatory actions that were important if not essential. His Honour said that:
Those higher up the chain arguably, Mr Antony and beyond certainly had some trust in him.
His Honour concluded that GG's offending was an objectively serious example of that type of offence, but his Honour said that GG’s role was “towards the lower end, but not the lowest end of the likely hierarchy committing the offending”.
Judge Hunt also found that GG initially became involved because he was concerned about his own safety and that of his family in Sri Lanka as a result of threats made by a person he had previously met in prison and who was responsible for GG becoming involved in the offending. To that extent, his Honour found that there was a limited amount of non-exculpatory duress.
It is not necessary to set out GG’s subjective features because the applicant accepts that, when considered overall, the subjective cases of each of the applicant and GG were not very different. In fact, Judge Newlinds SC found in that regard:
In some ways his [GG’s] subjective case bears similarity to the Offender's, and in some aspects GG subjective case appears to have been stronger than the Offender's, in other aspects the Offender's subjective case seems significantly stronger than GG's.
That finding is not challenged by the applicant.
Parity
[56] GG was sentenced on 18 July 2024 before Hunt DCJ for offences under s307.11(1) and 11.1(1) of the Criminal Code and an offence under s25(2) and s29 of the Drug Misuse and Trafficking Act 1985 (NSW) of supplying 34.33kg of pseudoephedrine, being not less than a commercial quantity. GG entered a plea at a Super Call Over following committal for trial from the Local Court. He received a 17.5% discount in respect of count 1. He also received the statutory 10% discount in respect of the State offence in count 2. GG was sentenced, as part of count 1, for his involvement in "the Cats Eyes Consignment", but also "the Coconut Consignment" (40.1kg) and 'the RIEAD Consignment" (40.3kg). The combined pure weight of the three importations for which GG was sentenced was 114.8kg, or approximately 95.15 times the commercial quantity.
[57] On the evidence before me, I have come to a different conclusion as to the relevant positions of the Offender and GG in the "hierarchy". As I have already said, it is my assessment based on the evidence before me, which undoubtedly was different to the evidence before Hunt DCJ, that at worst the Offender was at the same level as GG, but most likely he was less involved.
[58] GG was sentenced on the basis that he was not a senior member of the syndicate, because he was in receipt of directions from the Offender and did not provide directions to him. It was held that some of the actions GG undertook could be clearly linked to the Offender, making it more likely he was lower down the hierarchy. He was sentenced on the basis that the Offender was "higher up the chain" than GG. I have come to close to opposite conclusions as to these matters.
[59] GG was sentenced on the basis that he was initially operating under a degree of non-exculpatory duress. Hunt DCJ held that GG initially became involved in the offending due to this circumstance, but thereafter became interested in making large amounts of money.
[60] GG was found to have "a very difficult past" including imprisonment in Sri Lanka under suspicion of being a spy, during which he was physically and sexually assaulted, together with his circumstances in fleeing to Australia as a refugee. Regard was also had to his family, who remains overseas. These factors, and his diagnosis of PTSD, gave rise to a reduction in his moral culpability, served to make his time in custody far more onerous.
[61] It was held that the specific circumstances that gave rise to the offending, including personal strains on him, difficulties because of the COVID 19 pandemic, and the implication of the duress, were highly unlikely to ever repeat themselves. This finding gave rise to an assessment that his prospects of rehabilitation were "extremely good".
[62] GG was sentenced on count 1 to a head sentence of 10 years. After the application of a 17.5% discount for the utilitarian value of his early plea, this was reduced to 8 years and 4 months. A non-parole period of 5 years was then fixed.
[63] MP was also sentenced on 22 April 2024 before Bourke DCJ for an offence under s11.5 and 307.11 of conspiracy to import a commercial quantity of a border-controlled precursor, namely pseudoephedrine. This offence was a 'rolled up' charge encompassing some 27 consignments. Count 4 related to the 'RIEAD' consignment, an offence in respect of which GG was sentenced, but not one for which this Offender is to be sentenced. The other 26 consignments are unrelated to this Offender. MP was sentenced on the basis that he had an involvement in the importation of at least 82.73kg of pseudoephedrine across the 27 consignments. After the application of a 25% discount MP received a head sentence of six years and seven months, with a non-parole period of three years and nine months.
Resolution as to parity
[64] It is extremely difficult, perhaps impossible, to weigh up and compare the Offender's offending and sentencing considerations against that of GG. First, GG was sentenced in relation to 2 consignments, adding up to very considerable commercial quantity. Second, he was not sentenced for the offence that the Offender has accepted he aided and abetted. Third, GG was sentenced for a number of other offences. Fourth, as I have said, GG was sentenced upon the basis that he was lower down the hierarchy than the Offender. I do not, upon the evidence, come to the same conclusion. I think the role of GG was much more involved than that of the Offender. Fifth, GG was sentenced upon the basis of a finding that he was operating under a degree of non-exculpatory duress. Sixth, GG was found to have had a very difficult past and a diagnosis of PTSD, which reduced his moral culpability and would make time in custody more onerous. Finally, GG also had a finding that it was highly unlikely that he would reoffend and that his prospects of rehabilitation were "extremely good".
[65] So, it can be seen that, in some ways, GG's case was objectively more serious than the Offenders. In some ways his subjective case bears similarity to the Offender's, and in some aspects GG subjective case appears to have been stronger than the Offender's, in other aspects the Offender's subjective case seems significantly stronger than GG's.
[66] I think the circumstances of GG's offending and his subjective circumstances are so far removed from that of the Offender, that the questions of parity do not have any part to play. However, the sentencing of both GG and MP, who of course was not a co-offender, are helpful "comparable" sentences to be taken into account.
The applicant submitted that it was clear on a comparison of the findings as to objective seriousness in each of the applicant’s and GG’s cases, that the seriousness of the applicant's criminality was much less than that of GG. The applicant submitted that it was not open to his Honour to have concluded that “At worse [sic] the offender was at the same level as GG”, even having regard to the evidence being different to that before Hunt DCJ or even with the qualifier, “but most likely he was less involved”.
The applicant submitted that there was no justification for the sentencing judge's conclusion that “questions of parity do not have any part to play”. The applicant submitted that for the sentencing judge to treat GG’s sentence as a “helpful comparable sentence to be taken into account” was to compound the error by directly comparing the applicant’s circumstances to those of GG as though they were similar.
The applicant submitted that a review of the facts in his case established that his involvement was much more limited than GG’s, was of a much shorter duration, involved less precursor, only one episode of offending, was not for reward, was at the invitation of the co-offender GG, and he was not part of the hierarchy.
The applicant submitted that his Honour erred when he referred at ROS [64] to GG being sentenced in relation to two consignments when in fact there were three consignments rolled up in the Commonwealth offence with which GG was charged.
The applicant submitted that the sentencing judge did not refer to his lack of any prior offending, nor to the necessary acceptance in GG’s case that he had been involved in prior and other offending, including with considerable quantities of precursor.
The applicant submitted that it was difficult to see an adequate basis for the leniency of the sentence or the assessment of the objective seriousness of the Commonwealth sentence in relation to GG, but in neither case could the sentence or the objective seriousness inform an assessment of the objective seriousness of the applicant's offending or justify rejecting a proper application of the parity principle.
The applicant submitted that while his Honour did take into account the sentences of GG and another co-offender together with the sentences in the Crown's schedule of comparative cases as helpful comparable sentences to be taken into account, the sentencing judge did not say how he took them into account, nor expose a basis for rejecting GG's case on parity but treating it as comparable.
The applicant submitted that even if the sentence imposed by Hunt DCJ on GG could be said to be lenient or even erroneously lenient, that would not preclude the sentencing judge in the applicant's case properly taking into account parity and proportionality considerations.
The applicant submitted that his Honour’s assessment of the objective seriousness of the offending was in error on two bases:
(a) Having regard to the activities of the syndicate and assessing the offender's actual conduct, his Honour erred in assessing, far too highly and well beyond the range of a reasonable assessment, the objective seriousness; and
(b) Having regard to the objective seriousness as recounted by Judge Hunt, the sentencing judge appears to have been led into error in assessing the objective seriousness of the applicant’s offending.
The applicant submitted that, insofar as his Honour rejected parity principles, in using Judge Hunt’s assessment of comparable objective seriousness the sentencing judge took into account matters he should not have taken into account or erred in taking them into account in the way he did to arrive at a sentence leaving the applicant with a legitimate sense of grievance. It should be noted that the applicant did not identify the matters he submitted were taken into account but should not have been, nor the way in which any were taken into account.
The applicant submitted that had the sentencing judge sentenced the applicant to a term of imprisonment of three years or less it would have been open to his Honour to have made a recognisance release order to commence at any point within the sentence, and that his Honour did not appear to have taken that into consideration.
[14] The parity principle of sentencing requires there should not be a disparity between sentences imposed on co-offenders which gives rise to a justifiable sense of grievance: Postiglione v The Queen (1997) 189 CLR 295 at 301, 309, 338; [1997] HCA 26 (Postiglione). In a passage of central importance, Dawson and Gaudron JJ observed (at 301) that:
“The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.” (Footnotes omitted.)
[15] The disparity in question must be “marked” but need not be “gross” or “glaring” to attract appellate intervention: Miles v R [2017] NSWCCA 266 at [9]; Cameron v R [2017] NSWCCA 229 at [79]-[90]; Daw v R [2017] NSWCCA 327 at [19]; Fenech v R [2018] NSWCCA 160 at [30]; Borg v R [2019] NSWCCA 129 at [90]-[91]; Downes v R [2020] NSWCCA 167 at [40], [57]; Weiss v R [2020] NSWCCA 188 at [89]-[90] cf. Afu v R [2017] NSWCCA 246 (Afu) at [15]; Tuivaga v R [2015] NSWCCA 145 (Tuivaga) at [56]. More is required than mere “arguable” disparity and a degree of latitude is to be afforded to the decision of the sentencing judge, especially in light of the fact, recognised in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27], that “there is no single correct sentence.”
[16] Importantly, the parity principle is free standing and does not depend upon a conclusion that the sentence under appeal is otherwise excessive: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green) at [32]. Conversely, the Court is not bound to intervene if the sentence imposed upon the co-offender is manifestly inadequate and intervention would “produce a sentence disproportionate to the objective and subjective criminality involved”: Youkhana v R [2011] NSWCCA 37 at [49] citing Regina v Pan [2005] NSWCCA 114 at [35] and Wilson v R [2008] NSWCCA 245 at [39]; Rosenberg v R [2022] NSWCCA 295 at [11].
I think the circumstances of GG’s offending and his subjective circumstances are so far removed from that of the Offender, that the questions of parity do not have any part to play.
It should be said at the outset that his Honour's choice of words in that sentence was unfortunate. It cannot be overlooked, however, that, as generally well ordered and set out the judgment is, it was effectively an ex tempore judgment delivered the day after the sentence hearing concluded.
Of greater significance, however, is the fact that it is abundantly clear from his Honour’s ROS commencing at [56] and concluding at [66], that his Honour gave detailed consideration to parity principles in relation to the co-offender GG. That appears not only from the headings in that part of the ROS but also from the detailed consideration his Honour gave to the similarities and differences between the applicant's position and that of GG. The way his Honour has dealt with those similarities and differences makes it clear that when he said, “Questions of parity do not have any part to play", his Honour was saying that the differences between the two co-offenders were such that the sentence accorded to the applicant would not bear any similarity to the sentence given to GG and, indeed, that was the result. It is also of some importance in that regard that his Honour’s assessment of the applicant’s role differed considerably from what Judge Hunt had found.
The undiscounted starting point of GG’s sentence was 10 years’ imprisonment whereas the undiscounted starting point for the applicant’s sentence was 4 years’ imprisonment. GG received a non-parole period of 5 years for the Commonwealth offence and the applicant received a non-parole period of 2 years.
Judge Hunt found that objectively the Commonwealth offence was serious but did not attempt to place the matter on any particular scale. Judge Newlinds also described the offending on the part of the applicant as serious but said that if he had to place it on a scale he would say it was somewhere below what might be described as the middle of the range. Such an assessment is always imprecise, but it is particularly within the role of the sentencing judge to assess the level of objective seriousness and this Court will be slow to intervene: Mulato v R [2006] NSWCCA 282 at [37], [46]. His Honour made clear findings of fact about matters relevant to the assessment at ROS [7] and [17]-[24] (in accordance with what was said in Mulato at [47]). The finding by Judge Newlinds was clearly open to him.
The significant matter related to objective seriousness was the assessment by each of the judges of the roles of the two offenders on the basis of the evidence before each of those judges. Each arrived at a different view about where the two offenders stood in relation to each other. The applicant does not point to any particular matter which suggests that the view of each of the judges was not open to them. However, the fact that Judge Hunt considered that GG’s role was towards the lower end of the hierarchy and certainly below that of the present applicant, and that he was subject to some non-exculpatory duress to become involved in the offending, is likely to have resulted in a somewhat lower undiscounted starting point for the sentence imposed on GG than might have been expected if GG had been sentenced on the basis of Judge Newlinds’ findings.
The elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community – the issue is whether the particular sense of grievance or injustice is a legitimate one: Lowe v The Queen (1984) 154 CLR 606 at 611 per Mason J. The test for determining the existence of a sense of grievance is objective not subjective. What has to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved, but that a reasonable mind looking overall at what has happened would see that the offender’s grievance is justified: R v Doggett (Court of Criminal Appeal, 24 March 1996, unreported) per Sully J; R v Ilbay [2000] NSWCCA 251 at paragraph 6.
When the undiscounted starting points are compared, and when regard is had to his Honour’s discussion of the similarities and differences between the applicant and GG, the applicant does not have a justifiable sense of grievance. Judged against GG’s sentence, the applicant’s sentence was not manifestly excessive, nor was it disproportionate to the applicant’s role, culpability and circumstances.
The applicant raised a number of specific matters in the ROS, said to amount to error in his Honour imposing the sentence he did.
Contrary to the applicant’s submission at [44] above that it was not open to his Honour to conclude that, at worst, the offender was at the same level as GG even with the qualifier “But most likely he was less involved", his Honour ultimately found at ROS [19] that the applicant “probably fell below GG in the hierarchy”. In any event, in the ultimate result the applicant received a considerably lower sentence than that of GG.
Contrary to the applicant's submission at [46] above, he was not involved in the arrangement for no reward. Judge Newlinds found at ROS [24] that the applicant expected to be paid or rewarded financially and that his motive included a desire for financial reward. Support for that was found in the report of the psychologist Professor Steven Woods who recorded the details of the financial stress the applicant was experiencing at the time of the offending.
Contrary to the applicant's submission at [48] above, the sentencing judge referred at ROS [38] to the applicant's absence of any relevant criminal history, and his Honour referred at ROS [56] to the fact that GG had been involved in prior and other offending including with considerable quantities of precursor.
Contrary to the applicant's submission at [54] above that his Honour did not take into account the availability of a recognisance release order for a term of imprisonment of three years or less, his Honour said this:
[75] The question then becomes what period the Offender should serve. Mr James has powerfully submitted that a sentence of less than 3 years imprisonment would be appropriate, and that in those circumstances, serious consideration ought be given to a release, either forthwith or within a short time, on a Recognizance Release Order.
[76] Whilst I do consider that a Recognizance Release Order would be beneficial to, not just the Offender and his family, but to the community generally and if the option was available to me, I would use it to at least shorten any period of imprisonment. However, it is important that I do my best to avoid a process of “backwards reasoning”. Having carefully considered the submissions of the parties and in particular the factors I have referred to and taking into account the sentences in the various “comparative” cases to which I have referred, I have come to the conclusion that an appropriate starting head sentence of 4 years is the sentence of minimum severity appropriate in all the circumstances.
In that regard, his Honour noted, quite properly, that he needed to avoid a process of “backwards reasoning”. It was for his Honour to identify the appropriate term of imprisonment before considering how that term of imprisonment was to be served, whether in actual custody or whether in the community on a recognisance release order.
The applicant was also critical of the sentencing judge for erroneously referring to GG being sentenced in relation to two consignments (see at [64] of the ROS). However, his Honour had earlier detailed at ROS [56] that GG was involved in three consignments, and his Honour correctly referred to the total weight of the precursor of those three assignments.
A number of the applicant’s other submissions were posited on the basis that the sentencing judge rejected the parity principle. For the reasons given earlier, his Honour did not reject or disregard the parity principle.
His Honour’s imposition of a sentence with an undiscounted starting point of four years appropriately took into account the significant differences between the applicant and GG. Where his Honour made appropriate findings associated with the applicant's offending and circumstances and where his Honour compared those matters to the offending and circumstances of GG, where the amount involved in the applicant's offending was some 28 times the commercial quantity in the Criminal Code and where the maximum sentence provided was 25 years’ imprisonment, there was no error in his Honour’s sentence having regard to parity principles.
As far as the applicant's submission that the sentence was manifestly excessive even without reference to the sentence given to GG, the principles are well known and are summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].
As noted, the maximum sentence for the offence was 25 years’ imprisonment and the amount of the precursor was 28 times the commercial quantity. The applicant may have had a role low in the hierarchy, but his role still had significance, particularly in relation to providing the money for the release of the goods. He was also involved in endeavouring to extract the product from the imported goods. The sentence was a lenient one in all the circumstances. It was not unreasonable or plainly unjust.
I propose the following orders:
Grant leave to appeal.
Dismiss the appeal.
HAMILL J: I have had the great benefit of reading the draft judgment of Davies J, with which McNaughton J concurs. I agree with his Honour’s conclusion that the appeal must be dismissed and, subject to the following minor observations, with his Honour’s reasons.
I would not describe the sentence imposed on the applicant as “lenient” but agree that it is not manifestly excessive in the sense that it was unreasonable, plainly wrong or unjust: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 and Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. That conclusion is inescapable on the facts of the case whether the length of the sentence is considered standing alone and/or by reference to the sentence imposed on “GG”.
As to the issue of “parity”, I agree with what Davies J has written at [57] – [58] as to what the sentencing Judge meant when he said, “questions of parity do not have any part to play”. A fair reading of the whole of the sentencing judgment shows that Judge Newlinds SC was conscious of, and applied correctly, principles of equal justice between offenders as those principles were explained in cases such as Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 and Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49.
I agree with Davies J that the arguments under grounds 1, 2 and 3 should be rejected.
MCNAUGHTON J: I agree with Davies J.
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Antony
R [2025] NSWCCA 82
(2000) 202 CLR 321
(2011) 244 CLR 462
(1936) 55 CLR 499
(1984) 154 CLR 606
(1999) 195 CLR 665
(2005) 228 CLR 357
(2017) 96 NSWLR 155
(1997) 189 CLR 295
His Honour noted that the applicant and his wife migrated to Australia from Sri Lanka after the civil war. His Honour said that undoubtedly, the applicant suffered from what he saw during his time in Sri Lanka, and continued to carry that burden as was explained in Professor Woods’ report. Professor Woods diagnosed him with sub threshold PTSD, a single episode of a major depressive order, and generalised anxiety disorder. His Honour accepted that the applicant had some psychological issues which were in part causative of the offending.
His Honour held that there was no doubt that any period of incarceration would be hugely detrimental to the applicant's wife and children. The applicant would no longer be able to run his business and therefore there would be less money available for the family. His Honour, while noting that there was no need to demonstrate “exceptional hardship” in relation to the effect on any person's family or dependents under s 16A(2)(p) of the C**rimes A**ct 1914 (Cth), said that if it were necessary, he would find that the circumstances were exceptional. He said he took that into account and gave significant weight to the probably devastating effect any period in custody would have on the applicant's wife and children.
The sentencing judge then went on to deal with issues relating to parity, and I will consider his Honour's ROS in that regard when dealing with matters touching parity.
That determination did not, however, oblige Judge Newlinds to find an undiscounted starting point at an unreasonably low level to account for Judge Hunt’s different assessment of the roles: R v Pan [2005] NSWCCA 114 at [35]; Lewins at [7]. There were other factors to consider including the weight of the precursor and the maximum penalty for the offence.
There was a considerable disparity between the undiscounted starting points of the two sentences; that accorded to GG was 2 ½ times that given to the applicant. As it is, the difference appropriately derives from GG’s involvement in other consignments with the result that the weight of precursor in his case was much greater, and he was found by Judge Newlinds to be higher in the hierarchy.
What seems to being said by the applicant, sub silentio, is that the sentence given to GG was very lenient and that should have resulted in an even more lenient sentence than Judge Newlinds imposed, bearing in mind GG’s more significant role, his involvement in 3 consignments and the greater weight of the precursor. However, Judge Newlinds took all of these matters into account when he discussed issues related to parity in his ROS at [56], [57] and [64].
In Pan, Johnson J (with whom Giles JA and Hoeben J agreed) said at [34]: