The Ground of Appeal - Claim that the Applicant has a Justifiable Sense of Grievance due to Disparity of Sentence Imposed Upon Boga
49It is appropriate to refer to aspects of the procedural history of the prosecutions of the Applicant and Boga, so as to place in context the arguments advanced before this Court.
The Applicant and Boga Sentenced by Different Judges
50The Applicant's ground of appeal invites an examination of, and comparison with, the sentence imposed upon Boga on 6 October 2010.
51At the hearing before this Court on 18 September 2012, concern was expressed by members of the Court that not only had the Applicant and Boga been sentenced by different Judges, but that it did not appear that the remarks on sentence, or information concerning the sentences actually imposed by his Honour Judge Charteris SC upon Boga on 6 October 2010, had been furnished to his Honour Judge Toner SC prior to the Applicant being sentenced on 29 October 2010.
52The High Court of Australia and this Court have emphasised repeatedly the strong desirability of co-offenders being sentenced by the same sentencing Judge or, if that is not practicable, the second sentencing Judge being fully informed of the sentence imposed upon a co-offender by the first sentencing Judge, with the remarks on sentence of that Judge being provided to assist and inform the sentencing process: Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 617, 622; Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 320; Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274 at 284-286 [32]-[47]; R v Chandler [2012] NSWCCA 135 at [94]-[96].
53Affidavits filed by the parties following the hearing in this Court have served to explain what happened in the District Court.
54On 29 July 2009, the Applicant was committed for sentence from the Local Court, and his matter was subsequently adjourned on a number of occasions.
55On 11 November 2009, Boga was committed for sentence from the Local Court, and his matter was adjourned as well on a number of occasions.
56On 13 June 2010, the Applicant's sentencing hearing was listed for 12 and 13 August 2010. The Crown had taken the view that it was necessary for the Applicant's matter to be heard separately from that of Boga due to confidential evidence to be led by the Crown.
57On 6 August 2010, Boga's sentence matter was listed for hearing on 24 September 2010.
58The affidavit material indicates that the Crown did not seek to have the two matters listed for hearing before the same sentencing Judge due apparently to concerns about the substantial delay in Boga's matter at that point, the uncertainty as to whether the same Judge could be secured and Boga's desire to proceed with his sentencing hearing.
59The sentencing hearing of the Applicant proceeded before his Honour Judge Toner SC on 12 August 2010, and continued on 17 and 23 September 2010. On the first day, his Honour was informed by the Crown that Boga had pleaded guilty and was to appear a couple of weeks later.
60On 23 September 2010, his Honour Judge Toner SC remanded the Applicant for sentence on 29 October 2010.
61On 24 September 2010, Boga's sentencing hearing proceeded before his Honour Judge Charteris SC.
62On 6 October 2010, his Honour Judge Charteris SC sentenced Boga to the terms of imprisonment set out above. In the course of sentencing Boga, his Honour observed (ROS2-3):
"The [Applicant] has pleaded guilty before another judge of this court. The parties did not wish this sentence proceeding to be listed before his Honour. For my part, I could not see why the matters could not have been dealt with by his Honour, but not heard at the same time as there were aspects of confidential evidence in relation to each of the matters as well as other problems. I am told that one of the disputes in relation to the sentencing of the co-offender is as to which of [the Applicant] and the informant [CSN] first raised the topic of importing cocaine from South America. His Honour Judge Toner, who will be sentencing the co-offender, has heard evidence on the topic and will be determining that issue. No evidence has been called before me and so I proceed on the basis that it is unknown as to whether it was the informant or [the Applicant] who raised the topic of the importation of the drug cocaine."
63On 15 October 2010, the solicitor from the Commonwealth Director of Public Prosecutions with the carriage of both the Applicant's matter and Boga's matter prepared a supplementary Crown submission on sentence. The submission indicated the sentences which had been imposed on Boga, and observed that the remarks on sentence were not then available. The solicitor transmitted this document by email to the Associate to his Honour Judge Toner SC and to counsel who had represented the Applicant before his Honour.
64An affidavit of the Applicant's counsel in the District Court states that he did not receive the Crown's supplementary submission.
65On 29 October 2010, the same prosecution solicitor attended before his Honour Judge Toner SC for the sentencing of the Applicant. The Applicant's counsel was also present. The transcript of that day, and his Honour's remarks on sentence, make no reference to the sentencing of Boga or the provision of a supplementary submission by the Crown on this topic.
66Upon the basis of the information provided to this Court, it appears that his Honour Judge Toner SC did not receive the communication from the prosecution solicitor, and counsel for the Applicant did not receive it either. Had the Applicant's counsel been in possession of this information, given the sentence which had been imposed upon Boga for the conspiracy offence, it is highly likely that he would have sought to make submissions on behalf of the Applicant by reference to it. However, this did not occur.
67Likewise, if the sentencing Judge had been in possession of this information, it is likely that his Honour would have placed this matter on the record, and invited any further submission by reference to it, before proceeding to pass sentence upon the Applicant.
68Of course, as the remarks on sentence of his Honour Judge Charteris SC were apparently not available at that time, it may have been difficult to make meaningful submissions by reference to any findings concerning the role of Boga.
69What has happened in this case illustrates, once again, the difficulties which can occur where sentencing hearings of co-offenders proceed down separate pathways, before different Judges, and where the Crown, in particular, does not seek to confirm with the Court and opposing counsel the fact that information of this type has been actually received.
70It is not productive in the context of the present appeal to seek to explore further what happened in this case. The fact is that this Court is now seized of the remarks on sentence of both sentencing Judges, and is called upon to consider submissions by reference to the principles of parity and proportionality, against the background where the Judge who sentenced the Applicant did not have the benefit of this material and submissions made by reference to it.
71It falls to this Court to consider the present application for leave to appeal against sentence, against the unsatisfactory procedural background which I have described.
Submissions for the Applicant
72Mr O'Neil, counsel for the Applicant, submitted that the markedly different sentences imposed upon the Applicant and Boga for the conspiracy offence gave rise to a justifiable sense of grievance on the part of the Applicant. Whilst acknowledging that there were differences between the roles of the Applicant and Boga, counsel submitted that these differences could not reasonably explain the disparity between the sentences imposed upon the two offenders.
73Mr O'Neil submitted that Boga's position was compounded by the fact that he was sentenced for a number of offences, and that his offences had been committed whilst he was on parole.
74Counsel submitted that a marked disparity was apparent from a starting point of 20 years' imprisonment adopted with respect to the Applicant, and a starting point of 10 years' imprisonment used with respect to Boga for the same offence. He submitted that this Court should interfere and resentence the Applicant in these circumstances.
The Crown Submissions
75The Crown submitted that it is necessary to keep in mind that conspirators are to be sentenced not just for acts committed in furtherance of the conspiracy, but for the essential feature of the offence itself: Tyler v R [2007] NSWCCA 247 at [83]-[84]. It remained necessary to determine what the offenders did in participating in the offence, to assist in understanding the roles of the particular offenders.
76The Crown submitted that there was no unjustifiable disparity between the sentence and the non-parole period imposed upon the Applicant compared with Boga. It was submitted that there was a significant difference between the roles of the Applicant and Boga and their ages at the time of the offending, and that different findings had been made as to the relevant quantities of cocaine in each case, for the purpose of sentence on the conspiracy counts.
77The Crown emphasised the findings made, following a contested sentencing hearing, with respect to the Applicant's senior role in the conspiracy. It was submitted that this stood in stark contrast to the findings made by his Honour Judge Charteris SC concerning Boga, whose role was said to be "below the middle range of offences of this nature" (ROS20).
78The Crown submitted that the Applicant's role in the conspiracy was at or near the top of the hierarchy, and was much more senior and significant than that of Boga, so that the Applicant attracted a significantly greater penalty.
79The Crown emphasised the fact that Boga was sentenced upon the basis that he was prepared to purchase at least two kilograms of cocaine, whereas the Applicant was found to have agreed to possess between four and five kilograms of cocaine. It was submitted that this was a significant difference as between the two offenders, which operated against the Applicant's claim of illegitimate disparity.
80Whilst acknowledging that Boga's criminal history and his additional charges constituted differentiating factors, it was submitted that these were not such as to materially assist the Applicant.
81The Crown submitted that, even if the sentence imposed on Boga for the conspiracy charge might be viewed as unjustifiably lenient, that fact did not give rise to a disparity calling for appellate intervention: Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540 at [203].
Decision
82At the conclusion of the hearing, counsel were invited to make submissions on a number of issues, including the consequences of the Applicant and his counsel not having taken steps to ascertain what had happened on sentence concerning Boga, and to advance submissions to the sentencing Judge on that issue. In requesting submissions on this topic, the Court had in mind that this Court is a court of error, and there is an expectation that an offender who asserts error on sentence will have taken the point at first instance: Zreika v R [2012] NSWCCA 44 at [75]-[83].
83Of course, it has been recognised that an appeal may be brought on a parity ground by the first of two or more offenders to be sentenced: Jones v The Queen [1993] 67 ALJR 376. In such a case, the applicant will not have been in a position to take the point at first instance. However, the present Applicant was sentenced after Boga. The difficulty flows from the fact that the Applicant and his counsel were apparently not aware of this when the Applicant was sentenced on 29 October 2010.
84As mentioned earlier, the material furnished to this Court after the hearing revealed a course of events whereby the Applicant's counsel did not receive the communication from the prosecution solicitor with respect to Boga's sentence. It is more than highly desirable that the legal representatives for a person in the Applicant's position take a proactive stance in seeking to ascertain what has happened with a co-offender on sentence: Dwayhi v R at 286 [45]-[46]. However, not without some misgivings, I have formed the view that what has happened in this case should not operate against the Applicant before this Court. It is appropriate, in the circumstances of this case, to consider the Applicant's ground on its merits.
85For the purpose of determining this appeal, I gratefully adopt the statement of principles of Garling J in Rees v R [2012] NSWCCA 47 at [50]:
"So far as I understand it, the authorities on the application of the parity principle in circumstances such as those with which this court is presented in this case, provide the following principles:
(1) The parity principle is an aspect of equal justice, which requires that there be consistency in punishment. Unequal treatment under the law is likely to lead to an erosion of public confidence in the integrity of the administration of justice: Lowe at 610-611 per Mason J; Postiglione at 301 per Dawson and Gaudron JJ, at 335 per Kirby J; Green v R; Quinn v R [2011] HCA 49 at 28 and 30 per French CJ, Crennan and Kiefel JJ;
(2) Because the function of imposing a sentence on an individual has a discretionary character, an appellate court will ordinarily be reluctant to intervene. There is no such thing as perfect consistency in sentencing. A search for perfect consistency is to look for the unattainable and will frequently be an exercise of academic abstraction: Postiglione at 336-7 per Kirby J, R v M (CA) (1996) 105 CCC (3d) 327 at [92] per Lamer CJ;
(3) Hence, the discrepancy required to be identified between sentences is one which is not merely an arguable one, but one which is 'marked', or 'clearly unjustifiable', or 'manifest ... such as to engender a justifiable sense of grievance' or else it '[appears] that justice has not been done': Lowe at 610 per Gibbs CJ (Wilson J agreeing), at 613 per Mason J, at 623-624 per Dawson J; Postiglione at 301 per Dawson and Gaudron JJ, at 323 per Gummow J, at 338 per Kirby J; R v Taudevin [1996] 2 VR 402 at 403 per Hampel AJA, at 404 per Callaway JA; DGM v R [2006] NSWCCA 296 at [46] per Latham J (McColl JA agreeing); Green at [31] per French CJ, Crennan and Kiefel JJ, at [105] per Bell J;
(4) The elimination of an 'unjustified' discrepancy is a matter of importance not just to the individual concerned, but to the administration of justice in the community more generally. This court is therefore concerned not with whether an appellant actually feels a sense of grievance, that is, a subjective test, but rather whether, examined objectively, the sense of grievance is a justifiable one, namely that a reasonable mind looking over all of what happened would see that a grievance was justified. In other words, the matter is considered objectively: Lowe at 613 per Mason J; R v Kelly [2005] NSWCCA 280 ; 155 A Crim R 499 at [11] per Johnson J (Simpson J agreeing); Postligione at 338 per Kirby J; Green at [31] per French CJ, Crennan and Kiefel JJ.
(5) In determining whether there has been a discrepancy of a kind sufficient to give rise to a justifiable sense of grievance, a court:
(i) must consider not just the head sentence, but all components of the sentence including the non-parole period and the total effective period that both offenders will serve: Postiglione at 303 per Dawson and Gaudron JJ, at 338 per Kirby J;
(ii) must also consider all of the facts and circumstances applicable to both individuals involved, including the objective seriousness of the offence, in order to identify whether a differential sentence was justified; Green at [30] per French CJ, Crennan and Kiefel JJ;
(iii) ought not intervene to reduce a sentence below a level, which would mean that the sentence would be wholly inadequate having regard to the offence involved and the criminality of the offender, and consequently the result would be an affront to the proper administration of justice: R v Chen [2002] NSWCCA 174 ; 130 A Crim R 300 at [289] per Heydon JA, Sully and Levine JJ; DGM at [58] per Latham J (McColl JA agreeing); Kelly at [12] per Johnson J (Simpson J agreeing); Green at [33] per French CJ, Crennan and Kiefel JJ."
86Before moving to the particular circumstances of this case, it is also necessary to mention features relevant to an assessment of a parity ground of appeal, where different Judges have sentenced co-offenders. In Rae v R [2011] NSWCCA 211, with the concurrence of McClellan CJ at CL and Hidden J, I said at [52]-[56]:
"52 There are significant advantages where related offenders are sentenced by the same Judge at the same time, with remarks on sentence containing factual findings and conclusions concerning the relative criminality of the offenders and differing subjective features of each of them: R v Swan [2006] NSWCCA 47 at [71]; Gurney v R; Willetts v R [2011] NSWCCA 48 at [81]-[82]; Dwayhi at [39]-[43].
53 Different Judges may take different views as to the relevant culpability of related offenders: Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 320; R v Mercieca [2004] VSCA 170 at [6]; Dwayhi at [35], [37].
54 Where co-offenders are dealt with separately, there may be differences in the substratum of facts upon which the different sentencing Judges act and the impressions formed by them with respect to the relative roles, levels of responsibility and prospects of rehabilitation of the individuals involved, with this flowing in part from the different emphases which can be expected to be placed on aspects of the offending behaviour and the circumstances of the offenders: R v Rodden [2005] VSCA 24 at [28]; Dwayhi at [38].
55 Strong maintenance of the practice of related offenders being sentenced by the same Judge at the same time will serve the public interest in consistent and transparent sentencing of related offenders which underlies the parity principle itself: Dwayhi at [46].
56 A recurring theme in the authorities is that, where co-offenders are sentenced after hearings before different Judges, there may be different evidence and submissions, leading to different conclusions being expressed by the sentencing Judges concerning criminal conduct of persons involved in the same criminal enterprise."
87In my view, the present case constitutes yet another clear example of the consequences which may flow from separate sentencing hearings before different Judges, involving different bodies of evidence and different findings arising from the evidence in each case. The position is exacerbated in this case because the second Judge did not have the remarks on sentence of the first Judge, or even information concerning the sentencing outcome.
88The findings made by the sentencing Judge concerning the role of the Applicant have been set out earlier in this judgment. In the context of a conspiracy to possess a commercial quantity of cocaine, the findings against the Applicant were of a most serious kind. Not only was he at a high level in the so-called hierarchy, but his offence involved a quantity of four to five kilograms of cocaine, more than twice the commercial quantity. This was about twice the quantity of cocaine for which Boga was sentenced.
89There are significant points of distinction between the findings made with respect to the objective criminality of the Applicant and Boga by the different sentencing Judges.
90I have had regard to the fact that Boga had a significant criminal history and was on parole at the time of the commission of the offences, and that he committed other offences apart from the conspiracy. These factors must be kept in mind in comparing the circumstances of the two offenders and the sentencing outcomes in their respective cases.
91Boga (22 years' old) was significantly younger than the Applicant (31 years' old) at the time of the offence. Youth could assist Boga to some extent, but not the Applicant: R v Nguyen [2010] NSWCCA 238; 205 A Crim R 106 at 127 72.
92It is necessary for the Applicant to demonstrate an objective foundation for his sense of grievance so as to render it legitimate. In Ng v R [2011] NSWCCA 227; 214 A Crim R 191, Bathurst CJ, James J and I said at 210 [82]:
"Where there is a degree of disparity so as to invite a reduction in the sentence imposed, it is not necessary for this Court to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective circumstances. This Court will not necessarily intervene where the co-offender's sentence is so inadequate that the Court should not take it into account: Lewins v R at [7]; Dwayhi at 280-281 [21]."
93In Green v The Queen [2011] HCA 49; 244 CLR 462, French CJ, Crennan and Kiefel JJ observed at 476 [33]:
"Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences."
94It may fairly be said that Boga was the fortunate recipient of a lenient sentencing outcome, against which the Crown has not appealed.
95It is undoubtedly the case that there are significant differences between the roles of the Applicant and Boga, and the quantities of cocaine concerned in each offence, with these differences operating against the Applicant on this appeal. At the same time, there are differences in the criminal histories of the two offenders, and the fact that Boga's offences were committed in breach of conditional liberty, with those differences (adverse to Boga) assisting the Applicant before this Court.
96There is a very marked difference between the starting points adopted by the two Judges in sentencing the two co-offenders for this crime. Those differences can be explained, to a substantial extent, by the different bodies of evidence before the two Judges, and the different findings made by the Judges by reference to the evidence before each of them. Further, the second Judge was not in a position to have the advantage of the remarks on sentence of the first Judge to aid the exercise of sentencing discretion.
97Making all due allowance for these factors, I am nevertheless persuaded that there is an objective foundation for a sense of grievance on the part of the Applicant with respect to the very wide difference in the starting points adopted by the two sentencing Judges. This conclusion does not entitle the Applicant to have his sentence adjusted, in some way, to bring it into line with that of Boga. Rather, as stated by the majority in Green v The Queen (at [93] above), marked and unjustifiable disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences.
98This leads to the position where the Applicant is entitled to have this Court take into account, in a permissible way, the sentence imposed upon Boga on the conspiracy charge, in determining the appropriate sentence to be imposed upon the Applicant.
99If the point was reached where the Applicant was to be resentenced, Mr O'Neil read the affidavits of the Applicant affirmed 13 September 2012 and his solicitor, Vanessa Carmody-Smith affirmed 12 September 2012. I have taken this evidence into account on resentence.
100The Applicant's offence was most serious. He played a senior and controlling role in the enterprise. The offence was committed for significant substantial gain. A large quantity of cocaine was involved, at least twice the commercial quantity. General deterrence was a most significant factor on sentence. The Applicant could not claim that the immaturity of youth bore upon his transgressions: R v Nguyen at 126-128 [72].
101Having regard to the objective gravity of the Applicant's crime, and taking into account his subjective circumstances, the need for general deterrence and the sentence imposed upon Boga, I am satisfied that an appropriate starting point in the Applicant's case is a head sentence of 18 years. After application of the 30% discount utilised by the sentencing Judge, a head sentence (after some rounding) of 12 years and six months ought be passed. A non-parole period of seven years and nine months should be fixed.
102I propose the following orders:
(a) leave to appeal against sentence granted and appeal allowed;
(b) sentence imposed at the Sydney District Court on 29 October 2010 is quashed;
(c) in its place, the Applicant is sentenced for the offence of conspiracy to possess a commercial quantity of a border controlled drug, cocaine, to a term of imprisonment of 12 years and six months commencing on 22 September 2008 and expiring on 21 March 2021 with a non-parole period of seven years and nine months commencing on 22 September 2008 and expiring on 21 June 2016;
(d) the Applicant will be eligible for release to parole on 21 June 2016.
103DAVIES J: I agree with Johnson J.