Bond v R

Factual background

1. In February 2018, a NSW Police strike force was established to investigate the supply of methylamphetamine in Surry Hills. An undercover officer made contact with the applicant.
2. On 1 May 2018, the applicant and the undercover officer met and arranged that the officer would purchase two ounces of methylamphetamine at $4,100 an ounce. An unknown male and female arrived. The officer gave $3,600 to them and $500 to Mr Bond. The officer and the applicant then drove to Erskineville where they were introduced to a Mr Robert Ayres, who provided an ounce of methylamphetamine to the officer for $3,600.
3. From 11 until 13 May 2018, the applicant and the officer exchanged messages about the prospect of the applicant supplying him four ounces of methylamphetamine. On 15 May, they both visited Mr Newport (the co-offender) in a room rented by Mr Newport in Zara Tower. The officer was supplied with three ounces of methylamphetamine for $12,000. He was told to return later for the remaining ounce. This time the applicant was not given any money for arranging this transaction. When the drug supplied was later tested, it was found to be 83.8 grams with a purity of 79.5%.
4. On 22 and 23 May 2018, the officer negotiated with the applicant to purchase four and five ounces of methylamphetamine, respectively. On 23 May, the applicant and Mr Newport met at the Quay West apartments. When the officer arrived, he provided Mr Newport with $20,000. Mr Bond stated that he did not receive any of this money. The officer was given 138 grams of methylamphetamine with a purity of 73.5%.
5. From 1 until 4 June 2018, the applicant and the officer exchanged coded messages about the purchase of further methylamphetamine. They met at the Song Hotel where the applicant gave the officer 3 ounces of methylamphetamine for $12,000. Later testing confirmed that, on this occasion, 83.4 grams of methylamphetamine with a purity of 78% was supplied.
6. In addition to these instances of supply, on 19 June 2018, the applicant agreed to supply 17 ounces of methylamphetamine to the officer for $62,050. The applicant's "up-line" supplier was not able to attend and this sale did not proceed. This incident comprised the offence taken into account on the Form 1.

Proceedings on sentence

1. The proceedings on sentence were conducted before Judge Yehia SC on 20 June 2019. A Crown sentence bundle was tendered and marked as Exhibit A. It comprised, inter alia, the Agreed Facts, criminal history and a Form 1 document. The defence tendered four exhibits: a report of John Machlin dated 20 May 2019; a letter of Dr Joseph Grech dated 7 June 2019; a letter from Corrective Services dated 12 June 2019 and a letter from Family & Community Services dated 27 February 2019.
2. The applicant gave evidence at his proceedings on sentence. He explained that he had changed his name from Wayne Baxter to Hugh Bond in order to avoid association with his two brothers, who had died tragically in a plane accident in 1993. (They were among six members of the Lyndale Football Club who died on a charter flight to Tasmania).
3. At the time of the commission of these offences, the applicant was on the disability support pension due to ruptured discs resulting from a car accident 20 years earlier. He had been in receipt of the pension for five years. He also had Dupuytren's contractures in his hands and had two hernias which caused him pain.
4. The applicant explained that at the time of the offending he had a drug habit whereby he regularly consumed cocaine and ice. Up until the time of his arrest he had been using ice daily. Since being in custody, he had completed three courses including EQUIPS and Narcotics Anonymous.
5. The applicant explained that he was not a drug user until his brothers died at which time his life "spiralled out of control". He was 28 years old when his brothers died and 57 at the time of sentence.
6. As for the details of the drug supplies, his evidence was that the drugs belonged to Mr Newport, to whom he owed money. He stated that at the time of the offending he owed Mr Newport around $5,000 for drugs because Mr Newport had given him credit on account of the applicant's pending superannuation payout. The applicant expressed feelings of shame for his sister and nephews but stated that he has been able to "grieve" his brother's death in custody. The applicant gave evidence that upon his release from custody he was assured of employment by a friend, Mr Paul Ryeburger. He explained that other prisoners had "[stood] over" him because they learnt that he had businesses and he felt vulnerable because of this and his medical condition.
7. In cross-examination, the applicant agreed that he had been involved in a very successful business enterprise from 1993 until 2014, which was assessed as being worth $21 million in 2014. He had owned a number of brothels in Melbourne and Sydney and his sole income and employment from 1993-2014 was derived from these businesses in Edgecliff and Paddington. The following exchange occurred as to what happened in 2014: "Q. So, at the point of 2014, you're doing quite well, aren't you; in terms of finance, and your life's going quite well? A. Well, I would put it this way. I was comfortable, yeah. Q. So, at that point, you wouldn't say your life had spiralled out of control, would you? A. Yes, it was. It was still out of control. You can have all the money in the world, but it doesn't change the death of your brothers and everything you suffer."
8. The applicant explained that he owned all the buildings in which the brothels were conducted but was a silent partner in the businesses. There was a commercial dispute that led to litigation in the Supreme Court in 2014. His evidence was that the dispute arose because the employees were all drug users so he sacked them. He agreed that he himself was using ice daily at that time but he sacked the others because they were using heroin which was an "evil" drug and they were "suffering souls". He did not draw any income from the business after 2014 and went onto the disability pension.

Remarks on sentence

1. Her Honour set out the facts summarised above at [6]-[11]. The total quantity of drugs supplied was 361.22 grams of methylamphetamine on four occasions for $52,000. In terms of objective seriousness, her Honour found that the applicant willingly participated in the supply of a significant quantity of drugs purely for financial reward or to pay off a drug debt. She assessed the objective seriousness as being "below the middle of the range of objective seriousness for this offence category although not at the lowest end of the range". Her Honour had regard to the following factors in reaching that assessment: 1. The quantity was not in the upper range of the offence category; 2. The applicant was not the source of the drugs but acted as a contact person, did not have a decision-making role and did not have access to large quantities of drugs himself; 3. The offending conduct did not involve planning or organisation above that inherent in the offence and the applicant's participation was relatively unsophisticated; and 4. The applicant did not stand to gain a significant amount of money. Her Honour was satisfied that he engaged in the conduct to fund his drug addiction.
2. Her Honour indicated that she intended to depart from the SNPP of 10 years imprisonment. When taking the Form 1 matters into account, she stated that the offence of agreeing to supply 481.9 grams of methylamphetamine warranted an increase in sentence but that the possession offence did not.
3. In terms of the applicant's subjective case, her Honour noted that the applicant had a long history of substance abuse and was diagnosed with a substance abuse disorder. She recognised the tragedy that had befallen the applicant when two of his brothers died in an air crash in 1993. She noted that "[t]he impact of the losses had a profound effect on the offender and the offender's family."
4. Her Honour summarised the applicant's career running businesses and his physical health problems (as summarised above at [18]-[14]). She noted that he has two children in their early twenties who he appears to have had no contact with for the past two years.
5. Psychometric testing had shown that the applicant had a score indicative of severe emotional distress, an adjustment disorder with depressed mood and a substance use disorder. Her Honour was satisfied that the applicant had shown genuine remorse, had engaged in courses and gained insight into the adverse effect of drugs. Her Honour noted the following: "I am satisfied that the offender is now drug free. He has an understanding of the wrongfulness of his actions and an intention to abstain from drug use into the future. I also accept that he is genuine in his desire to continue with counselling and treatment programs to prevent relapse. However, having regard to his longstanding drug addiction abstaining from drugs is not going to be an easy task. The offender's record reveals offences of possessing prohibited drugs that date back to 2009, he will require intensive counselling and supervision upon his release to ensure that he does remain abstinent."
6. Her Honour found special circumstances and applied a 25% discount on sentence on account the early guilty plea.

Proceedings on sentence - Newport

1. At the time that the applicant was sentenced, Mr Newport had a trial due to commence in November 2019. He was released on bail pending trial and spent that time in a full time rehabilitation centre: Odyssey House.
2. Mr Newport pleaded guilty to ongoing supply on the first day of his trial and came before Judge Yehia SC for sentence on 8 May 2020.
3. In her Remarks on Sentence, her Honour noted that there was "no doubt" that Mr Newport had engaged in the offending for financial reward. She noted that Mr Newport's drug use had escalated in the five to six years before the offending and it had caused him to be unable to run his business.
4. Her Honour considered Mr Newport's evidence before her in some detail. She observed the following about the factual basis of the plea: "He also gave candid evidence that the up-level supplier did not trust Mr Bond and would not deal with him. As a result, an arrangement was entered into in which the up-line supplier would provide the drugs to this offender who would then supply them to the co-offender (Bond) who dealt directly with the undercover operative. This offender gave evidence that the supplier trusted him to take possession of the drugs on credit. The offender was too scared to name the supplier. He gave evidence that during the offending period he was diligent in ensuring that payment was made to the supplier because he feared the ramifications if the supplier was not paid. It appears that the up-line supplier did not trust Mr Bond because he had a gambling habit and there was some concern about whether he would make good the payment for the drugs."
5. Mr Newport described how he divided the profits from each supply equally with the applicant. He denied that the applicant owed him a debt of $5,000. In this respect, her Honour commented that: "When I sentenced the co-offender, I accepted his evidence that he engaged in the supply of drugs to repay a drug debt to this offender. At that time, I did not have the evidence of this offender. One of the disadvantages in sentencing co-offenders separately is that it deprives the Court of having all of the relevant information available at the one time. That is why it is preferable to have offenders sentenced together. That has not happened here. I must proceed on the evidence presented in these proceedings. A transcript of the evidence given by Mr Bond is included in the Crown bundle (Exhibit A). While it is evidence in the proceedings, the weight I place on that evidence is reduced having regard to the fact that I have now had the opportunity to observe this offender give evidence and make an assessment of his credibility. I am satisfied that he is a wholly credible witness. He was unshaken in cross-examination and I accept his evidence that he received $4,400 which he used to fund his own addiction and pay his rent. I accept his evidence that Mr Bond did not owe him a debt of $5,000 and that, while he did supply Mr Bond with the drugs, they were small quantities on a limited number of occasions from April 2018."
6. Her Honour noted that Mr Newport played a "slightly higher" role than the applicant but could not be described as a "principal" or as occupying a "senior role".
7. In terms of Mr Newport's subjective circumstances, she noted that he grew up in a strict household where he was exposed to "standovers" at a young age. Mr Newport did not have a good relationship with his parents but did have a warm relationship with his maternal grandmother and uncle (who died of a heroin overdose when Mr Newport was in his twenties). He had regular employment and a partner with whom he had a daughter (although that relationship later ended).
8. Mr Newport had "a chronic history of substance abuse" commencing at the age of 14. He had also used MDMA and amphetamine. He was introduced to methamphetamine in 2014, after which his drug use escalated and his life spiralled out of control. His prior criminal record of supplying a prohibited drug and driving offences meant that he was not entitled to leniency.
9. Her Honour observed that after a period where Mr Newport was refused bail, he was granted bail in order to attend residential rehabilitation at Odyssey House. He had made considerable progress in this program and had some of his original restrictions eased. His job functions at Odyssey House included answering phones and inquiries, assisting with admissions of new residents and supporting staff at the Admissions and Intake Centre. He also played a mentoring role for individuals joining the program. Her Honour commented that: "The offender was discharged from Odyssey House on 4 March 2020 following successful completion of the program. Although the last 3 months or so involved more independent living conditions, the offender was still subject to restrictions including curfew and monitoring. He attended counselling and was still subject the rules and regulations of Odyssey House. His rehabilitation has been excellent. The extent of his rehabilitation is evident in his appearance and demeanour during his evidence in the proceedings. I am satisfied that, having engaged in this course of lengthy rehabilitation, he has developed a genuine insight into the wrongfulness of his actions and the dangers involved in the dissemination of drugs into the community. I am satisfied that he has demonstrated excellent rehabilitation and, with continued intensive supervision, is unlikely to reoffend. He now presents with insight regarding the relationship between his early childhood experiences and the addiction which gave rise to his criminal behaviour. The psychologist concludes that the offender impresses as someone who has gained much insight and skills from his participation in the residential rehabilitation program and recommends that he continue to engage in therapeutic intervention with Odyssey House to reinforce his demonstrated rehabilitation to date."
10. Her Honour had regard to the principle of parity. She noted that the applicant had pleaded guilty to an offence that attracted a standard non-parole period of 10 years whereas the offence that Mr Newport pleaded guilty to had no standard non-parole period. Furthermore, the applicant had two matters taken into account on a Form 1. In relation to the first Form 1 offence, her Honour stated: "The offence on the Form 1 document was objectively serious, although it did not operate to increase the objective seriousness of the substantive offence, it did serve to increase the weight to be given to denunciation and specific deterrence and thereby the ultimate penalty. This is an important distinguishing feature when one has regard to the fact that this offender has no Form 1 offences. Furthermore, the offender's subjective case is highly compelling and the extent of his rehabilitation and prospects for the future are in a more favourable category than those of his co-offender. Put another way, I am satisfied that this offender's demonstrated rehabilitation is excellent."
11. As noted above, Mr Newport was sentenced to 4 years and 6 months imprisonment after the 5% discount for the late plea. A finding of special circumstances was made which resulted in the non-parole period being less than 50% of the total term of imprisonment. Her Honour took this approach based on the "exceptional" attempts at rehabilitation by Mr Newport. In doing so, her Honour observed: "The offender is truly at a crossroads in his life. 'There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform": R v Osenkowski (1982) 5 A Crim R 394 at 394 per King CJ'." (Emphasis added.)
12. The non-parole period was 16 months and 14 days with a balance of term of 3 years and 1 month.

Applicant's submissions

1. The applicant submitted that there was a marked disparity between his sentence and Mr Newport's sentence. It was submitted that, despite the finding that the role of Mr Newport was more significant, the starting points in the sentences were markedly different. Further, after the application of the discounts for the plea of guilty, the applicant should have received a lower sentence, as he was entitled to a 25% discount, as opposed to Mr Newport's 5% discount.
2. In oral submissions, Ms Kluss submitted that the applicant was really "a street seller for Mr Newport". She noted that, although the sentencing judge gave weight to the applicant's rehabilitation, Mr Newport had access to the larger amounts of drugs, which meant that he assumed a more significant position in the criminal enterprise. She conceded that the applicant had the Form 1 offences, but submitted that given his lower role in the hierarchy he should not have received such a significantly higher starting point.
3. Ms Kluss then submitted that the situation as between the applicant and Mr Newport contradicted the reason that discounts for sentences are applied for early guilty pleas. She stated: "Mr Newport and without sounding disrespectful to him, got bail and indeed struck no doubt some gold with respect to his position at [sic] and has been able to effect his rehabilitation in the community. He then gets a tiny discount compared to what this applicant gets and yet this applicant has done what the courts would normally consider to be the right thing in addressing his plea of guilty early from his position in custody."
4. It was submitted that the applicant's early guilty plea was rendered "largely meaningless" due to the large discount given to Mr Newport. If Mr Bond had received bail, he might have equally entered into a community rehabilitation plan and thus been treated more leniently. This was because he did not seek bail and was an older person. However, "in accordance with all of the policy that the criminal law currently provides, has done all the right things, and he's been attending to his rehabilitation under the strictures that are provided by his custodial placement."

Crown submissions

1. In response, the Crown submitted that the sentencing judge was aware of the parity principle. The Crown submitted that there was no justifiable sense of grievance because the applicant's offence carried a standard non-parole period whereas his co-offender's offence did not. Further, the applicant was involved in the supply of 361.22 grams of methylamphetamine on four separate days, while the supplies covered by Newport's offence totalled 305.2 grams. The applicant's Form 1 offence involved nearly twice the applicable commercial quantity.
2. The offending of both the applicant and Mr Newport was found to be of similar objective seriousness and both had substance abuse problems linked to deaths in their families. However, Mr Newport was found to have demonstrated "exceptional" rehabilitation, which had given him "genuine insight into the underlying issues giving rise to his addiction" that meant that he had "the capacity, intelligence and tools to remain abstinent and build a successful, law-abiding life, if he so chooses". The applicant's prospects of rehabilitation were found to be guarded because of his entrenched and longstanding substance abuse.
3. Furthermore, the Crown submitted that there was no cause for complaint because both offenders had the benefit of a finding of special circumstances The greater adjustment to the statutory ratio in Mr Newport's case, the Crown submitted, was justified by his need for rehabilitation and the fact that returning him to custody would have been counter-productive. The fact that leniency was extended to Mr Newport did not mean that the applicant was entitled to a reduction: R v Rutter [2003] NSWCCA 306.
4. In oral submissions, it was emphasised that it was not the task of the Court to consider hypothetical questions of what might have happened if one offender had applied for bail under the circumstances at an earlier stage or if another offender had not been successful in being able to present themselves as rehabilitated. In terms of the submissions that Mr Newport was "higher up" in the criminal enterprise than Mr Bond, the Crown emphasised that the sentencing judge found that neither was a principal or a significant decision‑maker in relation to the drug supply operator and that, in fact, there was not a great deal to distinguish between their roles.

Consideration

1. The applicant did not contend that any error can be detected in the Reasons of Judge Yehia SC for imposing on him the sentence she did. Nor is it contended that an error can be detected in the Reasons of her Honour for imposing on Mr Newport the sentence she did. Rather, the sole complaint made is that the imposition of the sentence on Mr Newport has given rise to "a justifiable sense of grievance" on the part of the applicant given the marked disparity between the two sentences.
2. The parity principle reflects the notion of equal justice and requires that like offenders be treated in a like manner: Lowe v The Queen (1984) 154 CLR 606 at 610, 613 and 623; [1984] HCA 46 per Gibbs CJ, Mason J and Dawson J; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan and Kiefel JJ. As Gibbs CJ observed in Lowe v The Queen at 609: "It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account."
3. In Green v The Queen, French CJ, Crennan and Kiefel JJ, stated it this way at [28]: "...It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2001) 207 CLR 584 at 608, [65]: Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect." (Emphasis added.)
4. The application of the parity principle does not involve a judgment about the "feelings" of the person complaining of disparity. The test is an objective one: Postiglione v The Queen (1997) 189 CLR 295 at 323; [1997] HCA 26 per Gummow J. This Court has stated on a number of occasions that, where possible, the same sentencing judge should sentence all co-offenders. Huckstadt v R [2016] NSWCCA 22 at [90]; Usher v R [2016] NSWCCA 276 at [71]-[72]; Dungay v R [2020] NSWCCA 209 at [105]. In Lloyd v R [2017] NSWCCA 303, R A Hulme J (with whom Payne JA and Garling J agreed) observed the following in relation to a claim of disparity when the same sentencing judge sentenced the co-offenders at [96]-[97]: "It is a basic principle of appellate review of sentencing that "there is no single correct sentence" and "judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies" ... That observation may be translated to a review of the degree to which a sentencing judge has differentiated the sentences imposed upon co-offenders sentenced in the one sentencing exercise. In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done: see Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15]; [1999] HCA 29. The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion?" (Emphasis added.)
5. The applicant must establish that the differentiation made by Judge Yehia SC was not one open to her in the exercise of her discretion. In this regard it is to be noted that her Honour clearly stated all the bases upon which she differentiated the sentences as between the applicant and Mr Newport. There were a number of these differences, the most significant of which were as follows.
6. First, the charge against Mr Newport did not carry a SNPP, whereas the charge against the applicant did. This difference arose from the exercise of prosecutorial discretion in relation to the respective charges. It is well established that the prosecutorial discretion to determine the charges to be preferred against an offender or offenders is not susceptible to judicial review. Nor is the fact of different charges a breach of the parity principle: see the cases summarised in Gaggioli v R [2014] NSWCCA 246 at [28]-[39].
7. Secondly, not only did the applicant's charge carry a SNPP, he was involved in one more supply than Mr Newport and had a significant matter taken into account on a Form 1.
8. Thirdly, her Honour was faced with different versions of the respective criminality and motivation for the offending by the two offenders, both of whom gave sworn evidence. The applicant in his evidence described himself as the lesser offender who was effectively lured into the offending behaviour by Mr Newport to repay a significant drug debt. He was sentenced on that basis. When her Honour heard Mr Newport give evidence a year later, he denied that version and came across as a highly credible witness. Her Honour believed him. The applicant's complaint about their respective criminality is based on his version of events but that was not the basis upon which Mr Newport was sentenced.
9. Finally, the most striking aspect of Mr Newport's subjective case was his exceptional rehabilitation. Those who have practised in the criminal law for many years would have seen a large number of drug addicted offenders fail the rigorous requirements of the residential rehabilitation programme at Odyssey House. It is a well-known rehabilitation facility that has been seeking to rehabilitate, inter alia, drug addicted offenders, since the 1970s. In this regard her Honour noted: "Odyssey House enforces very strict rules which place significant limitations on the movement of patients. In that facility, he had limited telephone contact with others. He attended mandatory counselling and was closely monitored. Any infraction could have resulted in being discharged."
10. Having regard to the exceptional rehabilitation of the offender, I am satisfied that it was open to her Honour to dispense individualised justice to Mr Newport in the manner her Honour did.
11. All of the above differences were generally accepted by the applicant but it was submitted that they led to Mr Newport's sentence being reduced so far as to create disparity. The nub of the applicant's complaint was that he pleaded guilty at an early stage and did not apply for bail, yet he received a longer sentence than Mr Newport, who pleaded guilty late after a period on bail. The complaint was, in effect, one of "unequal justice". It was argued that, all things being equal, the parity principle will be breached if an offender pleads guilty at an early stage but ends up with a higher sentence than a co-offender who pleads guilty at a late stage.
12. There are a number of difficulties with this contention. The most obvious is that all things were not otherwise equal in this matter. There will be many cases where the discount for an early plea of guilty for one offender may not correlate to a lower sentence than a co-offender if the subjective and objective factors are otherwise different. Again, although this was accepted by the applicant as a general proposition, it was argued that the applicant's case was so similar to Mr Newport's that his sentence necessarily should have been lower given the early guilty plea.
13. The real dispute in this matter was a factual one turning on the extent to which the cases for the two offenders were comparable. I am satisfied for the reasons I have already stated they were not nearly as comparable as the applicant now contends. One example of this is in relation to the factor of rehabilitation. It is to be accepted that the applicant successfully completed courses in custody and her Honour made favourable findings in relation to this, but his drug addiction was long standing and entrenched leading her Honour to have some reservations about his prospects as extracted above at [24]. The applicant's contention that he too would have been able to present the same positive rehabilitation as Mr Newport had he been granted bail and attended Odyssey House is a matter of speculation only.
14. Although it is to be accepted that an offender who pleads guilty at an early stage may well feel aggrieved if a co-offender who pleads later receives a lesser sentence, the critical question for the purposes of parity is whether an examination of the respective cases of the offenders justifies the differentiation. Having undertaken that examination, I am satisfied that the differentiation between the sentence imposed on the applicant and that imposed on Mr Newport is justified.

ORDERS

1. The orders I would propose are: 1. Leave to appeal against sentence granted. 2. Appeal dismissed.

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: 28 October 2020