Bell v R

Background Facts

1. There is no dispute as to the facts as identified by the sentencing judge. They arise mainly from the agreed facts which were identical for each of the offenders.
2. In July 2014, investigators attached to the New South Wales Police State Crime Command and Gang Squad commenced an investigation relating to the manufacture and supply prohibited drugs in the Northwest metropolitan region of Sydney. A surveillance device warrant was obtained on 27 October 2014 in relation to a property at 4097 Old Northern Road, Maroota. As at 25 January 2014 and at all relevant times subsequent thereto, the property was leased by the applicant. The property was a large rural property with a double storey brick dwelling and large attached shed and smaller shed at the rear of the dwelling. A large Colorbond fence had been erected on the property subsequent to leasing to the applicant. It ran from the front of the house to the large shed located at the front.
3. Monitoring and surveillance by the Police during the period November 2014 to January 2015 resulted in observations of Mr Gibson and Mr Brealey moving around the property, moving drums back and forward and staying on the property for long periods. Following a search of Mr Gibson's vehicle on 13 January 2015 the Police found a small amount of drugs in his car. He was escorted back to the property and a search warrant was executed on 13 January 2015. At the time no other persons were present at the property but the Police uncovered a large clandestine drug laboratory which manufactured methamphetamine at the premises. Inside the drug laboratory there were eight large reactionary vessels and 30.4 kg of pure methamphetamine was found within the vessels.
4. The Police also located different drug precursors such as iodine, hypophosphorous acid and pseudoephedrine which were precursors used in the manufacture of methamphetamine. Those precursors relate to the matters which are on each of the defendants' Form 1.
5. Through execution of the search warrant a large trail of dead grass, bushes and trees were located leading from the rear veranda of the house. During the period of manufacture barrels and chemicals were dumped off the rear veranda. This caused the fauna along the path to die. The house itself was contaminated by toxic chemicals used in the manufacture of methamphetamine.
6. On 14 January 2015 the applicant arrived at the property driving a station wagon whilst the Police were still at the property. He initially said he was there to see Uncle Gibson. He was found to have had $4,500 cash in his pocket. He said it was from the sale of the boat and he was bringing the money to Uncle Gibson. A search of his mobile phone revealed coded text messages between him and Mr Bailey.
7. The applicant admitted that he leased the property in the 12 months prior to 14 January 2015. He said that he never resided in the property but a friend of his known as Uncle Gibson lived at the property. He claimed not to have known Mr Gibson's first name but maintained that he had been a family friend for about nine years. He said he merely came to the property on occasions to check on Mr Gibson. He said he had not been there for a couple of months.
8. During a search of the premises Police located a handwritten note on the kitchen bench which was a coded note giving directions to the applicant for the manufacturing of prohibited drugs. Following arrest, the applicant initially adopted the comments he made to the Police at the house. Multiple fingerprints identified as belonging to the applicant were located in another notebook that had further calculations and messages relating to a drug manufacturer.
9. The drug laboratory was processed by the Forensic Services Group's Clandestine Laboratory Unit on 14 and 15 January 2015. The forensic chemist was of the opinion that at least 30.4 kg of methamphetamine had been manufactured at the property. According to the chemist a further 130 kg of pure methamphetamine was capable of being manufactured at the property provided the availability of a suitable quantity of precursor material.
10. The sentencing judge made the following relevant findings in his Remarks on Sentence ("ROS"): 1. The weight found at 30.4 kg of methamphetamine was some 30 times the large commercial quantity applicable under the Drug Misuse and Trafficking Act. 2. The four offenders involved themselves in a well-planned large scale and sophisticated manufacture offence. 3. The drug that was manufactured did not enter the community and no profit was earned from its sale but, absent police intervention, it would have done so. 4. All of the offenders engaged in the offence for financial gain or potential financial gain. 5. Neither the Crown nor representatives of the offenders during the sentencing hearing sought to ascribe some type of hierarchy to roles played by each. The Crown submitted that each should be seen as occupying a similar level of importance to the overall manufacture. 6. As far as the applicant is concerned, his role involved him renting the property in his own name and being involved in constructing a Colorbond fence to try and hide what was occurring on the property. The fact of the note giving him instructions and his various fingerprints around the property satisfied the sentencing judge that he was involved in carrying out specific instructions from another person concerning the manufacturing process. His role was one of carrying out instructions and thus, in that sense, he was a worker albeit the sentencing judge considered that his role was a significant one. 7. Mr Bailey was involved in obtaining a number of items used in the manufacturing process. His fingerprints were found on two notebooks containing calculations. Again, the sentencing judge concluded that his role would appear to be that of a worker who assisted by obtaining items to be used in the manufacture and following directions. The sentencing judge found that his role was a significant one. 8. Mr Brealey's role involved him in moving barrels within the premises. His fingerprints were also found on various items used in the manufacturing process. He was an active participant in the process. The sentencing judge found that his role was similar to that of the applicant and Mr Bailey. 9. Mr Gibson, who was sentenced separately, was also found to have taken an active role in the manufacture. He resided at the premises for two months. He was observed to have moved items back and forward out of the garage. His DNA was found on a glove which was sitting in a box on top of eight reactionary vessels containing methamphetamine. The sentencing judge concluded that his role was significant and important. The sentencing judge did not consider that on the material available to him there was any differentiation between the role of Mr Gibson and the other three offenders.
11. The offence committed by each of the offenders was considered by the sentencing judge to be within the mid-range of objective seriousness.
12. Each of the offenders pleaded guilty. A discount of 25 per cent for the utilitarian benefit for the plea of guilty was applied, reflecting a starting point of approximately 17 years and 9.5 months. Each of the offenders received the same head sentence being 13 years and 4 months.
13. The reason that the applicant received a longer non-parole period (that is an additional one year) was that the sentencing judge did not consider that the applicant had special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act. The sentencing judge did not refer to the issue of parity when sentencing the applicant.
14. More specifically, the sentencing judge found special circumstances in respect of the other three offenders for the following reasons: Mr Bailey 1. The sentencing judge accepted that Mr Bailey had general remorse for his offending and that he had good prospects of rehabilitation and would be unlikely to reoffend. There was a finding of special circumstances being that this was his first time in custody and there would be a need to allow him a significant period in the community to properly address his rehabilitation in relation to his drug, alcohol and gambling issues (on which there was some evidence). Mr Brealey 1. Mr Brealey began using drugs at the age of 16. By the age of 23 he was using methamphetamine. He also had a gambling problem commensurate with his ice use. The psychologist who examined Mr Brealey stated his offending could be conceptualised within the context of poor judgment as a result of his drug habit at the relevant time. The sentencing judge concluded that he engaged in the offending for financial gain, primarily in order to assist his drug habit. He was seriously addicted to ice at the time. The sentencing judge was satisfied that he had some remorse in relation to his offending and he had good prospects of rehabilitation. He was generally a person of good character prior to the offence. Special circumstances were found on the basis that it was his first time in custody and because of his need for continued rehabilitation in relation to his use of prohibited drugs. Mr Gibson 1. Mr Gibson commenced using methamphetamine in 2014 and his use escalated as a daily habit. The sentencing judge noted that he had no criminal record but there was little remorse. He was assessed as having a low-to-medium risk of reoffending. The sentencing judge considered that, on balance, he had good prospects of rehabilitation. The sentencing judge said, that on the issue of parity, he was unable to differentiate Mr Gibson's role from the role of the other co-offenders although he had some additional matters on the Form 1. In terms of special circumstances the sentencing judge found that it would be his first time in custody and that he had some prospects of rehabilitation that would be assisted by a longer time on parole, in particular, to assist with his rehabilitation in relation to his use of prohibited drugs.
15. The applicant was 29 years of age at the time of sentencing and 28 at the time of offending. There were no prior criminal convictions. His family background was unremarkable. His motivation for involving himself in the offence was financial gain as he said he was under financial pressure at the time. He was concerned about his wife's health during her pregnancy. He was assessed by the psychologist as exhibiting symptoms of severe depression and the psychologist considered at the time of the offence he was suffering from an adjustment disorder with mixed anxiety and depressed mood which may have impaired his judgment.
16. There was an affidavit from his wife. She says that she confronted him in late 2014 about his involvement in the offence and told him to stop but he was concerned about his family's safety. She referred to expressions of remorse from him and the effect that his incarceration would have on her. There are a number of other testimonials and there was evidence of commitment to the Junior Rugby League in the Parramatta District, as well as his general work ethic and devotion to his family.
17. The sentencing judge accepted that he had some remorse in relation to his offending and his rehabilitation prospects were good. He had strong family support. He did have regard to the degree of hardship his incarceration would have on his family, although only to a limited extent.
18. The sentencing judge made the following findings in respect of special circumstances: "I do not think there are special circumstances in relation to Mr Bell in the setting of the non-parole period. The fact that he has not been in custody before does not on its own account amount to special circumstances. There was no suggestion that he has ever had an illicit drug addiction or other addiction that suggests a longer period of parole is required."
19. It is these findings that led to the applicant having a longer non-parole period than his co-offenders.

Appeal Ground 1B - Special Circumstances

1. The applicant did not press Ground of Appeal 1A which related to what might be termed the sentencing judge's consideration of the alleged concession by the Crown in respect of special circumstances and the obligations of the sentencing judge in respect of raising issues with the offender on the sentencing hearing. It is thus not necessary to consider this point further. The nub of the appeal is that the sentencing judge should have made a finding of special circumstances in respect of the applicant, which presumably would have led to him being given the same non-parole period as his co-offenders and that the lack of parity with his co-offenders gives rise to a justifiable sense of grievance.
2. On the hearing of the appeal the applicant also relied on his own affidavit of 18 September 2019 and an affidavit of Leo Premutico dated 26 September 2019. The applicant's affidavit of 19 September 2019 details his efforts since being incarcerated, particularly in relation to training, paying off his debts and the difficulties he has dealing with these. He also acknowledges the damage he has caused too many people and expresses severe remorse. This affidavit would not be relevant unless this court allows the appeal and re-sentences the applicant. The affidavit of Leo Premutico is filed in support of the application for leave to appeal because a notice of intention to appeal was not filed within the required time.
3. Although no oral submissions were made by the applicant on sentencing relating to special circumstances, in his written submissions, he submitted that special circumstances should be found on the basis: 1. of his prior good character; 2. that this would be his first time in custody; 3. of the hardship to his family; and 4. of the general desirability of an extended period on parole to assist upon release after a lengthy term of imprisonment.
4. The sentencing judge referred to the degree of hardship his incarceration would have upon his young family and his prior good character, although not with reference to the submission in relation to special circumstances. The sentencing judge found that the fact that he had not been in custody previously would not, on its own, amount to special circumstances. He did not refer to the general desirability of an extended period on parole to assist upon release after a lengthy term of imprisonment.
5. When sentencing an offender to imprisonment for an offence, the Court is first required to set a non-parole period for the sentence and the balance of the term of the sentence must not exceed one third of the non-parole period, unless the Court decides that there are special circumstances for it being more: s 44 Crimes (Sentencing Procedure) Act. The applicant's grounds of appeal necessarily involve a consideration of the interplay between a finding or lack of finding of special circumstances having regard to s 44(2) of the Crimes (Sentencing Procedure) Act and the importance of preserving proper parity: see Tatana v Regina [2006] NSWCCA 398 at [33] ("Tatana").
6. In Caristo v R [2011] NSWCCA 7, R A Hulme J. (Giles JA and Adams J agreeing) said: "28 A finding of special circumstances is a discretionary finding of fact in respect of which this Court will be slow to intervene: Jiang v R [2010] NSWCCA 277 at [83]. 29 "As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive": R v Fidow [2004] NSWCCA 172 at [19]; R v Cramp at [36]. 30 Simply because there are circumstances which are capable of constituting special circumstances, the court is not required to make such a finding and reduce the non-parole period: R v Fidow , above, at [22]."
7. Further, in Collier v R [2012] NSWCCA 213 McClellan CJ at CL said at [36]: " … I have considerable reservations about whether the fact that a person will be in custody for the first time is capable of constituting special circumstances: see also R v Kama [2000] NSWCCA 23; (2000) 110 A Crim 47 at [10]. The fact that a person has no previous criminal record and, accordingly, has not previously been incarcerated is a matter relevant to the total sentence and non-parole period. However, it is unlikely to be a circumstance warranting further leniency to an offender by a reduction in the term of the non-parole period …"
8. It is important to emphasise here that the Court is not considering whether the sentencing judge should have made a finding of special circumstances in respect of the co-offenders. The applicant submits that the sentencing judge should have made a finding of special circumstances with respect to him.
9. There are a wide range of factors capable of constituting special circumstances. [1] Each case is different and the fact that there might be other cases in which the age of the applicant, the fact of his prior clean record or the absence of any previous custodial experience have either been considered to be special circumstances or not been considered to be special circumstances does not necessarily determine the outcome in this matter. The primary judge was required to consider whether there were special circumstances having regard to the subjective matters relating to the applicant.
10. Although the sentencing judge did not expressly refer to each of the three (out of four matters) relied upon by the applicant as a basis for a finding of special circumstances in the paragraphs of the ROS dealing with special circumstances, his Honour did consider the applicant's prior character, the hardship to his family and the fact that it would be his first time in custody in the preceding paragraphs of the ROS.
11. However, the applicant submits that the sentencing judge erred in that his Honour did not consider one of the grounds on which the applicant relied for a finding of special circumstances. The applicant submits that a finding of special circumstances was appropriate to assist or promote his rehabilitation after a long period in custody.
12. There is an issue as to whether it is necessary for a finding of special circumstances relating to prospects of rehabilitation after a long period in prison for the evidence to actually demonstrate (rather than suggest the possibility) that the applicant has prospects of rehabilitation and that his prospects would be assisted if a longer parole period was allowed.
13. In R v Lulham [2016] NSWCCA 287 ("Lulham"), Bellew J held at [54] that there would need to be evidence that demonstrates that the applicant has prospects of rehabilitation and that his prospects would be assisted if a longer parole period was allowed.
14. In Thach v R [2018] NSWCCA 252 ("Thach"), Davies J (Bathurst CJ and R A Hulme J agreeing) sought to clarify the Court's decision in Lulham. As his Honour said (at [45]), the majority in Lulham did not agree with Bellew J's observation to the effect that, before a finding of special circumstances can be made, a sentencing judge must be "satisfied that there exist significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful as opposed to a mere possibility". [2]
15. In any event, as the applicant submits, there is evidence which would have enabled the sentencing judge to be satisfied that he had prospects of rehabilitation and that those prospects would be assisted by a longer parole period.
16. Prior to commission of the offence the applicant did not consume alcohol to excess or use drugs. He did not gamble. As noted in the report of Sam Borenstein, Clinical Psychologist, dated 1 December 2016 his health deteriorated leading up to his decision to take up the lease on the property in January 2015. By this, Mr Borenstein means the applicant's mental health. He had no prior history of psychiatric or psychological disturbance. Mr Borenstein found that as at the time of his examination in November 2016, the applicant continued to suffer severe symptoms of depression and anxiety which were confirmed by psychometric test results. There was other documentary evidence available to the sentencing judge, particularly from the applicant's wife, Melissa Bell. She continued to see her husband regularly. She noted that the applicant struggled in the jail environment. She believed that he had learned his lesson and would never involve himself in criminal activity again. He had told her that he would go back to work immediately when released from jail. There were a number of other testimonials on his behalf.
17. The sentencing judge accepted that the applicant had good prospects of rehabilitation. In my view the evidence of the applicant's wife and the other testimonial evidence, for example, particularly from his father, taken with the report of Mr Borenstein, are such as to demonstrate that he would be assisted if a longer period on parole was allowed.
18. Alternatively, having regard to Thach it may not be necessary that there is evidence sufficient to satisfy the Court that rehabilitation is likely to be successful as opposed to establishing a mere possibility that it will be successful.
19. As such, the absence of any reference to the matters to which I have referred in dealing with the applicant's submission (the fourth point) relating to special circumstances is sufficient to warrant intervention by this Court, having regard to the House v R [3] principles. The evidence to which I have referred would then justify a finding of special circumstances.

Appeal Ground 2 - Justifiable Sense of Grievance

1. When sentencing the court is required by s 21A of the Crimes (Sentencing Procedure) Act to take into account the range of both aggravating and mitigating factors set out in s 21A and any other factors affecting the relative seriousness of the offence. Further, as specified in s 21A(1), these are in addition matters that are "required or permitted to be taken into account by the court under any ... rule of law."
2. As explained in Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 ("Green"), this would include the avoidance of unjustifiable disparity between the sentences imposed upon offenders involved in the same criminal conduct or a common criminal enterprise.
3. In Green, at [31]-[32], French CJ, Crennan and Kieffel JJ identified the correct approach to an appeal based on a sense of grievance arising from a lack of parity as follows: "Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may 'reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender.' The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: [4] 'the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.' The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise. A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself. [5] Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight. In such a case, an appeal to this Court on the question whether a disparity identified in a court of criminal appeal was unjustifiable and called for intervention by that court would also involve review of a qualitative and discretionary judgment." (Some footnotes omitted.)
4. It follows that in some circumstances a lack of parity will be an appealable error itself requiring intervention by the court.
5. The test for determining the existence of a sense of grievance is objective not subjective. As Johnson J said in R v Pan [2005] NSWCCA 114 at [34]: "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."
6. Whilst it may be that in some matters there is no real parity between co-offenders because of differing findings in relation to special circumstances, in this matter, the differing non-parole periods resulted from the sentencing judge's acceptance that, in respect of the co-offenders, there was a need for greater time in the community to address their rehabilitation consequent on their drug, alcohol or gambling problems. This constituted special circumstances in respect of the co-offenders whereas, because the applicant did not take drugs, did not consume excessive alcohol and did not have a gambling addiction, these special circumstances did not exist for him (and the other matters did not constitute special circumstances).
7. This brings to mind the comments of Howie J (with whom Sully and Latham JJ agreed) in Tatana at [32] that the outcome (in terms of the applicant having a longer non-parole period) is somewhat surprising and troubling. A reasonable mind looking overall at what has happened may see that the applicant's grievance is justified.
8. The applicant, who had no prior criminal record, did not take drugs and did not have a gambling problem, will end up spending a year in custody more than his co-offenders because, unlike his co-offenders, he did not previously take drugs or suffer from problems associated with gambling or alcohol.
9. In Tatana, at [33], Howie J held that a permissible means of avoiding this unacceptable situation would have been for the sentencing judge to have considered whether the need to preserve a proper parity with the co-offenders itself gave rise to special circumstances justifying a reduction in the non-parole period.
10. In R v Wahabzadah [2001] NSWCCA 253 at [15]-[16] ("Wahabzadah"), his Honour had previously stated: "While I accept, as I must do, that the principle of parity applies in all aspects of a sentence, including the non-parole period, the principle is concerned with ameliorating a justifiable sense of grievance on the part of the offender. If a disparity is occasioned by the operation of the law, there can be no justifiable sense of grievance arising simply because a proper application of the law in two different cases has given two different results. Specifically, s 44 of the Crimes (Sentencing Procedure) Act mandates that a non-parole period be not less than three-quarters of the term of the sentence unless there are special circumstances for it being less. I do not believe that there is any breach of the principle of parity, simply because different non-parole periods are specified for different co-offenders because of different findings as to the existence, or extent, of special circumstances. There is nothing in either Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 or Postiglioni v The Queen [1997] HCA 26; (1997) 189 CLR 295 to suggest otherwise. Quite the contrary, in the latter case even the majority of the High Court were of the view that there was no disparity by reason of the different non-parole periods specified between the two offenders. Disparity only arises when the difference between the two sentences cannot be justified by a difference in the degree of the culpability of the offenders or in their personal circumstances. A difference in a finding as to whether special circumstances exist is a difference in a finding as to the personal circumstances of the co-offenders, and, if justified on the material before the sentencing judge, there can be no basis in my view upon which any sense of injustice can arise either in the collective mind of the community or in the individual mind of a co-offender."
11. There was no difference in criminality between the co-offenders. The roles were all in the nature of workers following instructions. They each played different roles but the level of criminality was not different.
12. Further, in this matter, the applicant has pointed to matters relevant to the subjective circumstances of the other co-offenders which would, he says, increase his sense of grievance. They include that: 1. Mr Gibson had a further offence to be reflected in his sentence (the further Form 1 offence); 2. Mr Bailey had criminal convictions for driving matters; 3. Mr Brealey had a criminal conviction for assault occasioning actual bodily harm; 4. Whilst Mr Gibson did not have any criminal history, he did not have evidence of good character; 5. Mr Gibson showed little remorse; 6. The applicant was the only offender to adduce evidence of hardship to his family caused by his incarceration; and 7. In addition to drug use, Mr Bailey and Mr Brealey had a history of problematic alcohol use and of gambling.
13. These matters merely add to what I consider would have been the applicant's justifiable sense of grievance (viewed objectively). Added to these are the circumstances that he had no prior criminal record, adduced evidence of considerable support from his family and prior good behaviour and involvement in the community, was not previously involved in drug use or gambling and was found by the sentencing judge to have shown remorse.
14. I acknowledge, as was said in Wahabzadah, that in some cases different findings in respect of personal circumstances may mean that there is no real parity and that in those circumstances any sense of grievance only arises because of the operation of law. However, on a comparative basis and without regard to the matters arising under ground of appeal 1B, the different findings in respect of special circumstances have only arisen in this matter because of the applicant's prior abstinence from drugs, gambling and excessive use of alcohol. This has worked to his disadvantage in terms of his non-parole period when compared to his co-offenders. A reasonable mind looking objectively would consider that his sense of grievance is justified. The proper application of parity was a matter which the sentencing judge was required to take account of as a factor under s 21A(1) of the Crimes (Sentencing Procedure) Act.
15. Both grounds of appeal 1B and 2 are established.
16. I propose that leave be granted and the appeal be allowed. The sentence imposed by Judge Buscombe is quashed.

Re-sentence

1. The circumstances of the applicant's offending have already been canvassed at length. Although the applicant was involved in a large scale and well-planned operation, he was not the main planner of the manufacturing offence and carried out his tasks at the request of other persons. He leased the premises and was involved in the manufacturing process in the sense that he carried out instructions from other persons. The applicant's offence falls within the lower end of the mid-range of objective seriousness.
2. Similarly, the applicant's personal circumstances have already been set out at some length. He has no prior criminal history, has shown remorse, was suffering from a recognised psychiatric illness at the time of committing the offence and his prospects of rehabilitation are good. He entered a plea of guilty and I would allow a discount of 25 per cent of his sentence for the utilitarian value of that plea.
3. Whilst I do not consider that the fact that he has not been in custody previously of itself amounts to special circumstances, I am satisfied that his prospects of rehabilitation would be assisted after a long period in custody by a longer parole period. Coupled with that finding (for the reasons set out earlier) and the fact that it is his first time in custody, I find that there are special circumstances.
4. Further, I find that in view of the similarity between the co-offenders' level of criminality, their role in the commission of the offence and their personal circumstances (except that the applicant did not have any prior convictions or a history of a drug or alcohol abuse or a gambling problem), justice requires parity with his co-offenders in respect of any non-parole period. A justifiable sense of grievance would arise if the applicant had a longer non-parole period than his co-offenders merely because of his more positive pre-offence history. I would find that the need for parity in such circumstances is itself a special circumstance.
5. The non-parole period should be set at 9 years with the balance of term of 4 years and 4 months, being a total sentence of 13 years and 4 months. The sentence commences on 22 July 2015 and expires on 21 November 2028. The applicant is eligible to be released on parole on 21 July 2024.

Endnotes

1. R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534; R v Fidow [2004] NSWCCA 172 ("Fidow").
2. R v Lulham [2016] NSWCCA 287 at [54].
3. (1936) 55 CLR 499; [1936] HCA 40.
4. (1984) 154 CLR 606 at 610.
5. (1984) 154 CLR 606 at 613. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 November 2019