[39] Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of "instinctive synthesis", as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression "instinctive synthesis" may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge."
30 As defined by McHugh J in Markarian, supra, instinctive synthesis means "the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence." (Markarian, supra, at [51].)
31 Alternatively, as McHugh J defined it, a "two-tier sentencing" process is one in which "a judge first determines a sentence by reference to the 'objective circumstances' of the case … then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused". (Markarian, ibid.)
32 As later stated, by McHugh J:
"Critics of the instinctive synthesis method place too much emphasis on the 'instinct' and too little on the 'synthesis'. The use of the word 'synthesis' in the context of sentencing identifies the very last part of the process. It recognises that, where a variety of considerations, often tending in opposing directions, operate in the context of a statutory maximum, there must finally be a quantification of the sentence to be imposed. There must be a synthesising of the relevant factors. In that process, greater and lesser weight will be allocated to some factors depending on their relevance to the person convicted and his or her crime. Ultimately, community and legal values are translated into a number of years, months and days." ( Markarian , supra, at [73].)
33 Largely, the determination of an appropriate sentence that takes account of the factors relevant to the imposition of a penalty is intuitive. Either all of the factors that are relevant have been considered, and only the relevant factors, or they have not. Absent an identifiable error in the consideration, or non-consideration, of factors, error can be discerned from a misapplication of principle or otherwise manifest error. The learned sentencing judge has done no more than express the relevant factors. He has not engaged in a two-tier (or multi-tier) process.
34 Further, manifest error arises when it does not appear how the sentencing judge erred but, upon the facts, and proper application of the principles, the result derived is unreasonable or plainly unjust: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325. Leaving aside the issue, with which I will deal later, of the consistency of the sentence imposed with sentences imposed in other cases, there is no identifiable or manifest error involved in the imposition of the sentence. Grounds 3 and 5 of the appeal should be rejected.
Ground 4: Failure to find special circumstances
35 This submission and ground of appeal is a counsel of perfection. The learned sentencing judge fixed the ratio between the non-parole period and the remainder of the head sentence in the manner referred to in s 44(2) of the Crimes (Sentencing Procedure) Act. He did so, expressly, on the basis that no submissions had been put to him that there were special circumstances in relation to either one of the appellants.
36 It is now said, on appeal, that despite the fact that no submissions were put to his Honour that special circumstances existed, and despite the fact that neither appellant relied upon it before him, his Honour erred in not finding special circumstances.
37 Section 44(2) of the Crimes (Sentencing Procedure) Act does not prescribe a precise mandatory ratio for all sentences. The ratio of 3:1 is a ratio below which a sentencing judge must not go, unless there are special circumstances. Thus, a finding of special circumstances is relevant only to the determination of a ratio below 3:1.
38 The finding of special circumstances is, essentially, a matter for the sentencing judge and there is such a wide variety of circumstances that will lead to such a finding that it is difficult to prescribe the factors that would be involved. Nevertheless, the Court will intervene in the finding of special circumstances, but it will intervene only on one of the well-known bases for the overturning of an exercise of discretion.
39 There may well be reasons why, if requested, a judge may have found special circumstances in relation to one or more of the appellants in this case. But the sentencing judge was not requested to do so.
40 The period of potential parole is sufficiently lengthy to enable a rehabilitative process to be implemented and completed, and the fixing of the ratio of 3:1 is not an error identifiable or manifest. In circumstances where, as here, a sentencing judge is not requested to make a finding of special circumstances, it is not an error for the judge not to consider the issue, of his or her own motion.
41 The duty imposed upon a court by s 44 of the Crimes (Sentencing Procedure) Act is, first, by subsection (1), to set a non-parole period, and, then, by subsection (2), to fix a balance of the term that "must not exceed one-third of the non-parole period … unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision)".
42 As is clear from the terms of subsection 44(2) of the Act, the sentencing judge is not required to give reasons for not finding special circumstances, but in the absence of such reasons and/or in the absence of such a finding, the balance of the term must not exceed one-third of the non-parole period.
43 This ground of appeal should also be rejected.
Ground 6: Failure to have sufficient regard to all available mitigating factors
44 The submission of the appellants on this ground asserts a failure to take proper account, and give appropriate weight, to the particular position of each accused, including background, prospects for rehabilitation, and the like. The appellants point to no feature which was not taken into account by his Honour in the sentencing process. Moreover, it is not submitted that the parity as between each of the appellants was inappropriate.
45 Thus, substantively, the ground of appeal submits that error occurred because insufficient weight was given to the "bizarre behaviour" involved in the circumstances of the detention.
46 There can be little doubt that his Honour paid significant attention to the appellants' treatment of the victim whilst he was detained. It is clear that his Honour took the view, of which there is abundant evidence, that no further physical harm or inhibition were imposed upon the victim. Nevertheless, the essence of the offence for which each appellant was charged is that the appellants detained the victim and it was appropriate, if not necessary, for the sentencing judge to have regard to the significant period of that detention.
47 Were the circumstances of the detention other then as benign as found by his Honour, then there would have been manifest error in the determination of the objective seriousness of the offence at below mid-range. The circumstances of the detention were, necessarily, at the forefront of his Honour's considerations.
48 This ground of appeal, too, should be rejected.
Total consideration
49 The Court must deal with the issue of consistency of sentence, raised in the context of both manifest excess and the failure to provide adequate reasons for arriving at the sentence imposed. Before doing so, there are some other matters with which the Court should deal.
50 At one stage, for reasons which were, and remain, unexplained, counsel for the appellants referred to the Remarks on Sentence at [3] and those submission referred to Mr Kevin Moloney as a person who "was also known as White and also as Hatem Addouge, and he was not, as the name would consider [sic: read 'suggest'], a person of Celtic or Gaelic origin, but rather a person of Middle Eastern appearance" (Appellants' Submissions at [20]). I do not understand the purpose of this submission.
51 Unless it is suggested that the race or ethnicity of the manager of the proposed business was relevant to his Honour the sentencing judge, it seems to form no rational place in the appellants' submission. While the sentencing judge (Remarks on Sentence at [3] and [4]) described Mr Moloney as "being of Middle Eastern appearance", this was, as the context of the Remarks disclosed, obviously done for the purpose of describing him, and noting that his real identity was unknown and that his whereabouts were unknown, notwithstanding his significance to the events in question.
52 Otherwise, I would comment that absent a particular relevance either to identity or some act or acts in question, the ethnicity, race or appearance of a person involved in criminal activity, is an irrelevant consideration in determining the objective seriousness of an offence. Where it applies to an offender, it may be relevant if it gives rise to certain subjective features which might ameliorate, or lead to a better understanding of, the offending: see R v Fernando (1992) 76 A Crim R 58.
53 Lastly, it is necessary for the Court to deal with the issue of consistency.
54 The appellants submit that they have been dealt with more harshly than other offenders, found guilty of the same offence, have been dealt with by sentencing judges or by this Court.
55 Essentially, the applicants submit that they have a justifiable sense of grievance, because the sentence imposed upon them was greater than that imposed on other offenders in similar circumstances.
56 The principle of equal justice is a fundamental aspect of the exercise of judicial power. Between co-offenders, it is implemented by the use of the principles of parity: Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 301-302; Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610-611. Fundamentally, the principle requires that those things that are alike should be treated alike, while the things that are different should be treated differently, the different treatment being rationally proportional to the differences: Jimmy v R [2010] NSWCCA 60 at [255]-[256]; Andrews v Law Society of British Columbia [1989] 1 SCR 143; R v Tiddy [1969] SASR 575 at 577.
57 In Jimmy, supra, the Court held that parity could apply to offenders who are not strictly co-offenders, but were involved in the same criminal enterprise. Nevertheless, the principle espoused in Jimmy would not allow a comparison between the offenders in this case and offenders in a wholly separate and quite different criminal enterprise.
58 I confirm the view I expressed in HAN, Zhi Qiang v R [2009] NSWCCA 300 (with whom Campbell JA and Howie J agreed), in which I said:
"[38] The principles of equal justice, in relation to contraventions of the same law, but different conduct and offences, is implemented through the application of the principle of consistency in sentencing, which seeks to ensure that the sentence that is imposed is within the range of sentences available for the particular offence and the particular offender. As was said by Simpson J in R v F , supra, at 315: