Borg v R

Court of Criminal Appeal (NSW)|2019-05-17|Before: Bathurst CJ, Hamill J, Adams J, Schmidt J

HEADNOTE [This headnote is not to be read as part of the judgment] George Borg (the applicant) pleaded guilty to the murder of Mr Bassil Hijazi (the deceased). The applicant was sentenced to a term of imprisonment of 16 years and 2 months with a non-parole period of 12 years and 2 months. The applicant's co-offender, Mr Joseph Gatt was convicted of the same murder following a trial by a jury and was sentenced by the same judge as Mr Borg to a term of imprisonment of 28 years with a non-parole period of 21 years. On 29 July 2013, the applicant and Mr Gatt agreed to approach the deceased who was sitting in the back seat of a car that was parked in a car park. The applicant drove Mr Gatt to the car park, accompanied Mr Gatt to locate the car in which the deceased was sitting, and then together approached the car. Both the applicant and Mr Gatt produced the firearms that they were in possession of. Seven rounds were fired in the direction of the deceased from the same firearm. The applicant was sentenced on the basis of an agreed statement of facts. Unlike Mr Borg who pleaded guilty to the murder, Mr Gatt pleaded not guilty and was sentenced on a different evidentiary basis. It was found that both the applicant and Mr Borg were involved in a joint criminal enterprise which led to the death of the deceased. However, in the case of the applicant there was a finding that he was not the shooter, while in the case of Mr Gatt the sentencing judge was unable to determine whether the applicant or Mr Gatt was the shooter. The applicant sought leave to appeal against his sentence on the sole ground that he had a justifiable sense of grievance having regard to the notional starting point of his sentence and the sentence imposed on Mr Gatt. The Court emphasised that in considering the issue of parity, it was necessary to take into account the separate basis on which each co-offender was sentenced. The Court found that there is a marked disparity between the sentence of the applicant and the sentence of Mr Gatt to give rise to a justifiable sense of grievance on the part of the applicant. The applicant's offence is less serious than the co-offender's offence, and the applicant has a "powerful subjective case", in contrast to the "virtually non-existent one" of the co-offender: [93]-[95], [101]-[104] (Bathurst CJ); [108] (Hamill J); [109] (N Adams J). PG v R [2017] NSWCCA 179 followed. Lowe v R (1984) 154 CLR 606; [1984] HCA 46; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 considered. Gill v R [2010] NSWCCA 236; Tuivaga v R [2015] NSWCCA 145; Afu v R [2017] NSWCCA 246; Dayment v R [2018] NSWCCA 132; Lloyd v R [2017] NSWCCA 303; TL v R [2017] NSWCCA 308; Wan v R [2017] NSWCCA 261; Cameron v R [2017] NSWCCA 229; Miles v R [2017] NSWCCA 266; Daw v R [2017] NSWCCA 327; Buxton v R [2017] NSWCCA 169; Lee v R [2011] NSWCCA 169; TYN v R (2009) 195 A Crim R 345; [2009] NSWCCA 146 referred to.

Judgment

BATHURST CJ: The applicant, George Borg (the applicant), pleaded guilty to the offence of the murder of Mr Bassil Hijazi (the deceased). After a combined discount of 40% for his plea of guilty and offer of future assistance, he was sentenced on 9 June 2017 to a head sentence of 16 years and 2 months, commencing on 19 March 2014 with a non-parole period of 12 years and 2 months.
His co-offender, Mr Joseph Gatt (Mr Gatt), was convicted of the same murder following a trial by a jury and was sentenced by the same judge (the sentencing judge) on 29 June 2018 to a term of imprisonment of 28 years commencing on 1 February 2019, comprising a non-parole period of 21 years and a balance of term of 7 years.
The applicant has sought leave to appeal against his sentence on the sole ground that he has a "justifiable sense of grievance" having regard to the notional starting point of his sentence and the sentence imposed on Mr Gatt.
Apart from the question of parity, no complaint is made by the applicant about the sentencing judge's remarks on sentence, including her evaluation of the objective seriousness of the offence and the applicant's subjective circumstances. Nor was any complaint made about the manner in which her Honour sentenced Mr Gatt. It is important to bear in mind however, that although the two offenders were sentenced for their participation in the same joint criminal enterprise, the applicant pleaded guilty and was sentenced on the basis of an agreed statement of facts, whilst Mr Gatt pleaded not guilty and her Honour sentenced him on the basis of the jury's verdict and on the basis that facts adverse to him may not be taken into account unless they had been established on the evidence beyond reasonable doubt, whilst facts in his favour need only be proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at 281; [1999] HCA 54; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64] - [66].

The judgment on sentence in the case of the applicant - R v Borg [2017] NSWSC 746

The sentencing judge noted that the applicant stood for sentence on the basis of agreed facts. She stated that on 29 July 2013, the applicant was in company with Mr Gatt, whilst they were both armed with firearms. The applicant and Mr Gatt approached the parked car in which the deceased was sitting in the back seat. Mr Gatt fired seven shots at the deceased, two of which struck him, one hitting him in the neck and another in the chest, passing through his right lung and heart. The deceased was able to flee the vehicle but he fell twice as he ran away, suffering various other injuries before he collapsed face down in the middle of the road. He was pronounced dead at St George Hospital.
Consistent with the agreed facts, the sentencing judge found that the applicant "did not discharge the firearm he was carrying, but he fled the scene with Mr Gatt in the vehicle which they had driven to the car park where they murdered [the deceased]".
The sentencing judge stated that the evidence established that the applicant committed the murder as "a member of a joint criminal enterprise when he was only 23 years old". She found that the offence was "out of character and contrary to his prior record". She noted that his prior criminal record was limited to a drug possession offence for which he was sentenced to a three month bond in July 2012, and a drug supply offence for which he was sentenced to a two year bond in September 2012. However, she stated that she was satisfied that the agreed facts established that having involved himself in the "cold blooded execution" of the deceased, the applicant's offence was a "very serious one, objectively falling above the mid-range of such offending".
The sentencing judge based this conclusion on a number of matters. She stated that the evidence established that in July 2013, the applicant and Mr Gatt had been "close friends for some three years" and the applicant was "aware of the general nature of Mr Gatt's activities, which involved drug supply". She stated that the applicant "often drove Mr Gatt, to facilitate contacts with Mr Gatt's associates" and that the applicant was "aware of Mr Gatt's access to firearms and that he usually had a firearm in his possession, because of his ongoing animosity with others".
The sentencing judge proceeded to describe the offence in somewhat more detail. She stated that at about 9.20pm on 29 July 2013, the deceased was sitting in the back seat of a car with two others sitting in the front in a car park in Bexley. She said that the applicant was driving Mr Gatt. She stated that they stopped at the home of an acquaintance and they were then told the whereabouts of the deceased. She said that the applicant and Mr Gatt then agreed to approach the deceased in the car park. She noted that "the purpose [of] this approach was not disclosed by the evidence, other than by what then unfolded" and that there was "an issue between the parties as to what the purpose was".
Her Honour stated that the applicant drove Mr Gatt and parked the car about 100 metres from the car in which the deceased was sitting. She said that the applicant and Mr Gatt then walked to the corner of the car park to make observations and saw two other passengers sitting in the car with the deceased. She noted that the applicant and Mr Gatt returned to their car and it was Mr Gatt who then drove. She said that he stopped three to four metres away from the other car, leaving the engine running and the handbrake on.
Her Honour stated that the applicant and Mr Gatt then approached the other car, stopping about two metres away. She said that they were both in possession of firearms with the applicant "standing beside Mr Gatt, who stood in front of the other car at an angle diagonal to the front passenger side corner". She said that they both produced their firearms and Mr Gatt fired seven rounds in the direction of the deceased. She noted that later examination of the casings found on the ground of the car park indicated that all seven were discharged from the same firearm. She stated that the applicant did not discharge his weapon and the evidence did not establish that the firearm the applicant was carrying was loaded.
Her Honour stated that the evidence did establish that the injuries which two of the seven shots caused were the direct cause of the death of the deceased.
The sentencing judge noted that after Mr Gatt shot the deceased, he and the applicant ran back to their vehicle which Mr Gatt drove away. She referred to the subsequent investigation and ultimate arrest of Mr Gatt.
The sentencing judge noted that on the case advanced for the applicant, it was accepted that his liability for the murder of the deceased arose from his involvement in the joint criminal enterprise and that, as a result, he was equally responsible for all the acts pursued in the course of carrying out that enterprise. She noted that it was argued, however, that his offence was objectively less serious than that of Mr Gatt, who was physically responsible for the shots which caused the deceased's death and that this was accepted by the Crown. She noted that nonetheless, it was argued that the evidence did not establish beyond reasonable doubt that the applicant had shared Mr Gatt's intention of executing the deceased.
Her Honour concluded that whilst she was satisfied that the evidence established that at some time before he fired at the deceased Mr Gatt had decided to execute him, she was "not satisfied beyond reasonable doubt that this decision was one to which [the applicant] was a party, even though he drove Mr Gatt to the car park, accompanied him when the car in which [the deceased] was sitting was located and then himself carried a gun, when he accompanied Mr Gatt out of the car and they together approached the car in which [the deceased] was sitting".
Her Honour noted that the evidence, as well as the applicant's plea, certainly established that the applicant was "not merely Mr Gatt's driver that night, but rather a willing participant in a joint criminal enterprise during which he appreciated that Mr Gatt might cause [the deceased] really serious harm" if he used his weapon. She stated that the applicant also "undoubtedly came to realise that Mr Gatt was likely to kill [the deceased] when he began firing his weapon at close range". She stated that was what made the applicant's offence "objectively so serious". She said that she also considered however, that the evidence still left a doubt that "Mr Gatt executing [the deceased] rather than intimidating or even seriously injuring him, was what had earlier been decided by both Mr Gatt and [the applicant]".
Her Honour stated that doubt flowed from the evidence of the applicant's prior character and his limited criminal record; his mental health; the nature of his relationship with Mr Gatt; the agreed fact that the gun which the applicant carried and which was later found at Mr Gatt's apartment belonged to Mr Gatt; the applicant's unchallenged evidence that Mr Gatt directed him to carry the gun when he left the car with Mr Gatt; as well as the unchallenged account which the applicant gave the psychologist who examined him that he was not aware that the murder was going to take place, although, she noted that that evidence had to be considered in light of the plea which he had entered. Her Honour stated that had she not been left with this doubt, the applicant's offence would have been even more serious than undoubtedly it was, given the way the deceased was executed.
Her Honour noted that the applicant "properly accepted his moral culpability for his offending", notwithstanding the mental health issues which he suffered at the time of the offence and which he continued to suffer.
So far as the applicant's personal circumstances were concerned, her Honour stated that they were revealed by a report of a psychologist, Ms Taylor, who was not required for cross-examination. She noted that the account of his personal circumstances given by the applicant to Ms Taylor was in certain aspects corroborated by his evidence.
The sentencing judge noted the applicant and his mother were abandoned by his father while she was pregnant with him. She noted the opinion of the psychologist that the abandonment had an adverse impact on the applicant's emotional development and contributed to his early development of low self-esteem, as well as later mental health issues.
Her Honour noted that the applicant left home and school at age 16 as a result of conflict with his former stepfather, who had physically assaulted him when he was aged 14 and 15. She noted that the evidence was that he also "suffered regular bullying at high school and the psychologist considered that these experiences had adverse consequences for [the applicant's] substance abuse and mental health". Her Honour noted that the applicant had "developed symptoms of depression and anxiety, which endured into adulthood".
The sentencing judge noted that after the applicant left home he had difficulty maintaining employment as he had no stable accommodation and moved regularly between friends' homes. She stated that he "socialised with other disenfranchised youth during his adolescence and engaged with them in anti-social behaviours and substance abuse, from age 16". She noted that his cannabis use rapidly escalated to daily use, leading to a level of dependence and self-medicative effects which he pursued up until shortly after the murder of the deceased.
Her Honour noted that "[f]rom age 21 [the applicant] also commenced using cocaine, as well as a range of steroids which he came to use on a daily basis because of his poor self-image and desire to develop muscle to look bigger and better". She noted the evidence was that he "experienced an increase in aggression and agitation when taking steroids, but he ceased taking them some months after the [the deceased's] murder when he was trying to distance himself from Mr Gatt". Her Honour noted that the applicant's cocaine use was up to five grams per night and that he also used xanax, valium, ecstasy and MDMA. She noted that that use had ceased in November 2013, but the opinion of the psychologist was that the applicant would benefit from drug and alcohol education after his release.
The sentencing judge noted that the applicant had been suffering migraines whilst he was in custody, as well as acute tendonitis in his knees from excessive exercise. She noted that his symptoms of depression had worsened since he went into custody and had been exacerbated by grief over the death of his grandmother. She noted that he had also "developed significant symptoms of anxiety, including heightened paranoia and hypervigilance, excessive rumination and the onset of panic attacks, disturbed sleep and nightmares which [had] worsened over time". She referred to the psychologist's opinion that the applicant's experiences had resulted in him developing an "insecure attachment style characterised by anxiety and overdependence on others with hyper-vigilant and anxious interpersonal relationships".
The sentencing judge referred to the fact that the applicant "quickly developed a close friendship with Mr Gatt after they met". She referred to the opinion of the psychologist that "Mr Gatt took on a pseudo-parenting role" and that the applicant "looked to him as a role model". She referred to the psychologist's opinion that "there was a power imbalance in the friendship, with Mr Gatt taking charge and [the applicant] being coerced to follow his lead".
Her Honour also referred to the opinion of the psychologist that the applicant's "history of substance abuse had contributed to his anxiety, which was of an unusual degree". She noted the psychologist's view that "his offending was traumatic, as well as a significant depressive experience which continues to distress him and has produced recurrent episodes of anxiety, albeit only moderate feelings of sadness". She noted the opinion of the psychologist that the applicant had a "level of remorse for his offending and his substance abuse and deteriorating mental health had contributed to his poor decision-making and the attachment which he had formed to Mr Gatt". She also noted the psychologist's view that the applicant was now intimidated by Mr Gatt, which has resulted in him suffering heightened levels of anxiety and paranoia and deteriorating mental health for which he required treatment.
The sentencing judge noted that whilst the applicant's voluntary drug abuse did not mitigate his offending, "his mental health problems must be taken into account". She noted that they pointed in two directions. First, that "his conditions of custody will be more difficult for him than for others", and otherwise, "making it apparent that he presents a danger to the community which manifested when he committed this offence".
Her Honour noted that it was common ground that the following matters of mitigation set out in s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) be taken into account: first, the entry of his plea; second, his limited record; third, his assistance and fourth, his remorse. Her Honour accepted that he had established the pre-conditions for a finding of remorse set out in s 21A(3)(i) of the Sentencing Procedure Act. She also concluded that contrary to the submissions of the Crown, the applicant had "considerable prospects of rehabilitation". Her Honour noted however, that it must be accepted that without the applicant receiving treatment which was available to him, but which he had not yet pursued, his prospects of rehabilitation were not as good as they would be, if he received that treatment. She noted however, his unchallenged evidence that he intended to pursue that treatment.
The sentencing judge gave a discount of 15% for his plea and a combined discount of 40% for his plea, assistance and future assistance to the authorities. It was accepted at the hearing that these discounts were fully justified, so it is unnecessary to deal with her Honour's reasons for the grant of the discount.
Her Honour noted the argument by the applicant that whilst he "accepted his psychiatric condition was not of such a nature to have had an impact on his moral culpability for his offence, it did have an impact on the role of specific deterrence in his sentence and most importantly, on the impact of custody upon him". She noted that little weight was attributed to general deterrence in cases "where an offender suffers from a mental condition which makes the offender an inappropriate medium for such deterrence", but where "the offender acts with knowledge of what he is doing and of the gravity of his actions, such moderation need not be great". She also stated that she was satisfied on the evidence that this was such a case and that "specific deterrence must also have a role to play" in the sentence.
Her Honour, however, accepted that the applicant's mental health was such that the conditions of his custody would weigh more heavily upon him than they would on other offenders.
Her Honour found that there was no justification for a finding of special circumstances. This conclusion was not challenged.
In the circumstances, her Honour imposed the sentence to which I have referred at [1] above.

The remarks on sentence for Mr Gatt - R v Gatt (No 11) [2018] NSWSC 991

The sentencing judge noted that there was no issue between the parties at the sentencing hearing that the jury which convicted Mr Gatt had concluded that the evidence established beyond reasonable doubt that: "(1) In 2013 Mr Gatt and Mr Borg were involved together in a drug dealing business. (2) On 29 July they drove to Bexley, after they left the home of friends, the Nanouh brothers, at Hurstville, in a Corolla which one of the Nanouh brothers had earlier hired and which Mr Gatt and Mr Borg were using to supply drugs to their customers. (3) Mr Gatt and Mr Borg parked the car in Albyn Street Bexley and walked together to the nearby car park, before returning to the car, which was then driven into the car park. (4) Mr Gatt and Mr Borg there both approached John Terepo's car, where Mr Hijazi was sitting in the back and Mr Terepo and his brother in the front; (5) The murder weapon, which was later disposed of, was then fired seven times at the car, with two of the shots hitting Mr Hijazi in the neck and chest, causing his death and others hitting parts of the car and a nearby vehicle; (6) Mr Gatt and Mr Borg then left together in the Corolla and drove to Mr Gatt's apartment at Wolli Creek, where they showered and changed and where Mr Borg then stayed with Mr Gatt for some weeks. (7) Mr Gatt was arrested there in November 2013 and charged with the offences to which he pleaded guilty and was sentenced by Yehia DCJ, after receiving a 25% discount. (8) Mr Borg was charged with Bassil Hijazi's murder in March 2014 and Mr Gatt in June 2014. (9) Mr Borg later admitted his involvement in the murder, with the result that he was convicted and sentenced for his offence, receiving a combined discount of 40% for his plea and his assistance, 15% of which was for the future assistance involved in him giving evidence at Mr Gatt's trial, on a sentence which commenced at 27 years imprisonment: R v Borg [2017] NSWSC 746."
Her Honour noted that the submission by the Crown that Mr Gatt should be sentenced on the basis that the evidence had proved beyond reasonable doubt that it was he who had fired the fatal shots. She noted also the Crown submission that whether Mr Gatt was sentenced on this basis or on the basis of joint criminal enterprise, his offence was more serious than that for which the applicant had been sentenced. She noted that it was submitted that was because the evidence led had proved beyond reasonable doubt that the shots which killed the deceased had been fired with intent to kill and that Mr Gatt had a motive to kill him.
Her Honour noted that "[t]he Crown did not contend that the evidence established the murder had been planned from the time shots were fired earlier at Mr Gatt's van at Lakemba on 8 June, despite the motive which that had provided him" but "rather, that it was on 29 July 2013, when he [Mr Gatt] learned that [the deceased] was nearby, that he planned to murder him and at the latest, that intention was formed when he was some metres away from the deceased, at the car park".
Her Honour noted that it was submitted that even if it was concluded that the murderous intent was formed only shortly before the murder, the fact that "Mr Gatt's offence was more serious than that of [the applicant] was established by the evidence that it was an execution carried out in public, in the context of other criminal activity, namely drug supply, while using a firearm which was lethal". She noted that it was submitted that it was established that the murder was committed in circumstances not established in the same way in the applicant's case, namely, that the execution had been carried out in a manner which posed a great threat to the lives of the other persons who were sitting in the car and at least two other persons standing nearby.
Her Honour noted that "Mr Gatt's case was that he could not be sentenced on the basis that it was he who fired the fatal shots, despite the jury's verdict" because that conclusion rested on the evidence of the applicant whose evidence did not provide a sound basis for that conclusion which must be proved beyond reasonable doubt. She noted that Mr Gatt's case was that he should be sentenced on the basis of his involvement in the joint criminal enterprise and that the evidence established the nature and seriousness of the offence was similar to that found in the applicant's case.
Her Honour noted whilst the applicant's evidence that both he and Mr Gatt were armed and had pointed their guns at the car where the deceased was sitting was supported by Mr Terepo's evidence (Mr Terepo being one of the occupants of the car in which the deceased was killed), his evidence that it was Mr Gatt who fired the fatal shot was not. She noted that the applicant's evidence was "the only direct evidence which supported the conclusion that it was Mr Gatt who fired the fatal shots". Her Honour noted however, that if the jury had accepted Mr Gatt's version of evidence, he would have been acquitted. However, she said that did not establish that the jury accepted the applicant's evidence that it was Mr Gatt who was the shooter.
Her Honour stated that "the difficulty with concluding that [the applicant's] evidence established beyond reasonable doubt that it was Mr Gatt, not he, who had fired the fatal shots, was not only what [the applicant] had to gain from giving that account, which [had] to be considered in light of his explanation that he had earlier advanced his untrue versions to the police of how [the deceased] came to be killed to the police, because he could not initially accept that he was guilty of murder, when he had not fired the fatal shots and so sought to be sentenced for some lesser offence". She stated that it was also necessary to take into account what other parts of the applicant's evidence revealed about his involvement with Mr Gatt and that "some of his evidence was implausible".
Her Honour noted that it had to be taken into account that it was after the applicant learnt that he would become a suspect and before he was charged with murder, that he first said that it was only Mr Gatt who had been armed with a gun and that he had not expected Mr Gatt to produce it or fire it. She noted that the applicant agreed in cross-examination that this account was untrue. She noted that the applicant deliberately repeated this account, even after he was charged with murder.
Her Honour noted that in his evidence, the applicant departed from aspects of the facts agreed in his case, revealing more about the nature of his relationship with Mr Gatt and the extent of his involvement with him in their drug dealing and access to firearms. She described other parts of the applicant's evidence as "also implausible" and stated that it thus must be accepted that his evidence was "not a reliable basis for concluding that it was Mr Gatt who fired the fatal shots".
Her Honour noted that on their evidence, Mr Gatt and the applicant were "the closest of friends" and were living together for weeks after the murder. She noted that they were "very successfully pursuing their substantial drug dealing operation together, neither having needed to pursue other work for some time, because the business was generating considerable income for both of them, although in their evidence they also disputed who had the larger share of the business and both denied having any real interest in owning or using weapons". She stated however, that she was satisfied beyond reasonable doubt that they both carried a gun when they murdered the deceased.
Her Honour stated that in light of all the evidence it must be concluded that neither the applicant nor Mr Gatt were "telling the entire truth about what happened when they together murdered [the deceased] and … they both attempted to minimise the extent of their own real involvement in his death".
Her Honour stated however, that whilst "the evidence thus did not establish beyond reasonable doubt, who fired the fatal shots, it did establish that at the time of the murder, Mr Gatt and [the applicant] both had an interest in protecting their business and themselves and that they had the means to do so, whoever it was who actually owned the guns, which they used, or fired the fatal shots".
She stated that in those circumstances she was satisfied that Mr Gatt could not be sentenced on the basis that it was he who fired the shots, but rather on the basis that the evidence established beyond reasonable doubt only that the deceased was murdered as part of a joint criminal enterprise which he pursued with the applicant.
Her Honour stated that Mr Gatt's offence was "objectively a very serious instance of murder". She said that "[h]ad the evidence established that it was Mr Gatt who fired the fatal shots, his offence would have been more serious than it undoubtedly was, but even on what was established, his offence fell above the mid-range of seriousness, involving as it did [the deceased's] cold blooded execution".
Her Honour also stated that she was also satisfied that on what was proved in Mr Gatt's case, "his was an even more serious offence" than that of the applicant, even though it was not proved that he was the shooter.
Her Honour stated that was because whilst she found in the applicant's case, that "the evidence established that he was not merely Mr Gatt's driver that night, but a willing participant in the joint criminal enterprise during which he appreciated that Mr Gatt might cause [the deceased] really serious harm, if he used the weapon with which he was armed, to shoot at [the deceased] and undoubtedly came to realise that Mr Gatt was likely to kill [the deceased], when he began firing his weapon at close range". she also concluded that "the evidence still left a doubt that Mr Gatt executing [the deceased], rather than intimidating or even seriously injuring him, was what had earlier been decided by both Mr Gatt and the applicant.
However, her Honour stated that on all the evidence received at Mr Gatt's trial, including that which emerged from the applicant's cross-examination, she was satisfied that many of the conclusions she reached in the applicant's case as to the nature of Mr Gatt's offence and doubts which she then had about the nature of the joint criminal enterprise, were not now available. That included, "most importantly, that it was Mr Gatt who fired the fatal shots".
Her Honour stated that she was satisfied beyond reasonable doubt that "Mr Gatt's offence involved a cold blooded execution, committed during a joint criminal enterprise" soon after he and the applicant learnt that the deceased was at the Bexley car park. She stated that she was satisfied that they were both armed when they approached the car and both pointed their guns at the car but only one of them fired the "hail of seven bullets" which caused the deceased's death.
Her Honour stated that she was also satisfied that Mr Gatt's moral culpability for his offence must be assessed on the basis that his offence, committed together with the applicant in the context of their drug business, using the firearms to which they each had access, was "not merely 'opportunistic and almost spontaneous' … even though it may not have involved a great deal of prior planning".
She stated in the result that she was "satisfied that Mr Gatt's moral culpability for his offending must be assessed as being significant".
Her Honour noted Mr Gatt had a history of other offending which did not entitle him to leniency in sentencing. She stated that it was" not open to reach any positive conclusion as to mitigating matters in Mr Gatt's case", such as that he was "unlikely to reoffend, or has good prospects of rehabilitation, despite his relative youth at the time of the murder". She stated that neither remorse nor good prospects of rehabilitation could be found, given that Mr Gatt had provided no evidence that he had accepted responsibility for his actions, or had acknowledged the injury, loss and damage that he had caused and had committed another serious offence while in custody.
Her Honour stated that in those circumstances both general and specific deterrence had a "real role to play in the sentence imposed upon Mr Gatt".
Her Honour noted that Mr Gatt "unusually … led no evidence" about his personal circumstances. She said that the evidence did establish "Mr Gatt's relative youth at the time of the murder". She referred to the remarks on sentence by Yehia SC DCJ on sentencing Mr Gatt for the firearm, drug and proceeds of crime offences to which I have referred at [59] below, but stated that his personal circumstances included involvement in drug dealing with firearms which was more extensive than the evidence before Yehia SC DCJ disclosed.
Her Honour expressly dealt with the question of parity. She stated that the applicant was sentenced on agreed facts which included that it was Mr Gatt who fired the shots which killed the deceased and on evidence which he then gave, which led her to conclude that there were doubts as to the nature of his involvement in the joint criminal enterprise. She noted that his criminal record was more limited than that of Mr Gatt, although they were both on conditional liberty at the time of the murder.
Her Honour stated for the reasons which she had explained, she had concluded that "the evidence received at Mr Gatt's trial established that his offence was somewhat more serious than that for which [the applicant] was earlier sentenced, even though it was not established that he fired the fatal shots". She stated that it was also relevant that the evidence of the kind led by the applicant as to his personal circumstances was not led in the case of Mr Gatt.
The sentencing judge noted that Mr Gatt was serving an aggregate sentence imposed by Yehia SC DCJ for firearm, drug and proceeds of crime offences. The sentence included a non-parole period of 5 years and 3 months commencing on 2 November 2013 with the sentence expiring on 1 November 2021. She also noted that he was serving a sentence imposed for an offence he committed in custody for which he was sentenced to 22 months imprisonment commencing on 8 September 2016 and expiring on 7 July 2018.
Her Honour noted in that context that Mr Gatt's evidence in the case before her established that "his drug and proceeds of crime offending was more serious than the evidence he led in the District Court established, as he well knew", a fact which she stated could not be ignored in the sentencing exercise because it was "relevant to the resolution of the issue as to the accumulation or concurrency of Mr Gatt's sentence for the murder" of the deceased. She stated that in all the circumstances, she was satisfied that the application of the totality principle to Mr Gatt's was "somewhat constrained". In the result, she ordered that the sentence commence on 1 February 2019, the conclusion of the non-parole period for which the applicant was sentenced by Yehia SC DCJ.
As with the applicant, the sentencing judge declined to find special circumstances.
In the result, her Honour imposed the sentence on Mr Gatt to which I have referred above.

a The applicant

Counsel for the applicant submitted that it was necessary "to look at the respective starting point of the sentences and determine if the degree of difference in those starting points is a proper exercise of the judge's discretion".
In his written submissions, the applicant pointed out that he was "sentenced on the basis that he had encouraged the co-offender by alighting from the vehicle, standing beside the co-offender, approaching the [deceased]and producing his firearm when the co-offender produced his; and the applicant did not discharge the firearm" (agreed facts, [13]). He also pointed to the agreed facts which stated that "the co-offender gave the applicant numerous directions, including to drive to the car park, to sit in the front passenger seat; and after the shooting to change his clothing".
The applicant also submitted that the sentencing judge found that "there was doubt whether the applicant had earlier agreed with the co-offender to execute the [deceased], rather than intimidating him or seriously injuring him".
Counsel for the applicant submitted that the fact that the applicant was sentenced on those facts and findings was the basis on which the Court should consider whether he had a justifiable sense of grievance.
Counsel for the applicant also contrasted the applicant's subjective case to the absence of anything in Mr Gatt's subjective case which would assist him and the finding by the sentencing judge that there was a real risk of Mr Gatt engaging in further violent offending.
Counsel for the applicant accepted that he would be in "a stronger position" if there had been a positive finding in Mr Gatt's case that he was the person who actually carried out the shooting. However, he submitted that there was "still a marked difference", even putting aside "the favourable subjective case".
In response to the Crown's submission that the applicant's complaint of disparity arising in the difference in the objective seriousness of his and Mr Gatt's respective offences was without merit when viewed in light of the sentencing judge's findings when sentencing Mr Gatt, counsel for the applicant submitted that the applicant participated in contested sentencing proceedings in which he was represented and a determination was made as to the objective seriousness of his offending. He submitted that by contrast, the applicant was not represented in Mr Gatt's proceedings. He submitted that the Court was bound to have regard to the factual findings in the applicant's sentencing proceedings in determining the objective seriousness of the applicant's offence, rather than the findings in the sentencing proceedings concerning Mr Gatt.
Counsel for the applicant accepted that the position may have been different had the applicant been sentenced after Mr Gatt, but submitted that was not to the point and irrelevant to determining whether the applicant had a justifiable sense of grievance.
Counsel for the applicant submitted that a relatively modest reduction in sentence would "not constitute an affront to the administration of justice".

b The Crown

The Crown submitted that when considering an appeal on the ground of unjustified disparity, "regard should be had to the qualitative and discretionary judgments required" of a sentencing judge in drawing distinctions between co-offenders.
The Crown pointed out that this Court has recognised that where the same judge has sentenced two co-offenders and expressly recognised the importance of the parity principle in her remarks on sentence, an applicant seeking to invoke the principle faces significant obstacles and the Court will be cautious to intervene.
The Crown submitted that the problem associated with a situation where co-offenders are dealt with on a different evidentiary basis should be dealt with in the manner explained by Basten JA in PG v R [2017] NSWCCA 179 at [23]-[24]: "[23] … although each co-offender was sentenced by the same judge, sentencing occurred on the basis of different statements of agreed facts and different evidence. It is by no means uncommon that, where pleas are negotiated and the basis of the plea is agreed, A will be sentenced on the basis that B was the principal and A played a lesser role, whereas B will be sentenced on the basis that A was the principal and it was B who played the lesser role. Usually, there will be no mechanism by which a sentencing judge can resolve such contradictory propositions. Nor is it open to this Court to do so. Accordingly, two co-offenders may be sentenced on entirely different bases. It is not open to A (having been sentenced first) to say, 'I was sentenced on the basis that B was the principal, but B got the same sentence that I did and therefore my sentence must be reduced.' [24] Sentencing does not take place on the basis of objective singular established truth, but on the basis of the evidence before the sentencing judge. Where, as is desirable, the one judge sentences all co-offenders, the urge for equal justice may seem to be frustrated by such factual inconsistencies, that does not give rise to a basis for intervention by this Court."
The Crown submitted that these observations were "particularly apposite" in the present case. It submitted that whilst the applicant was sentenced on the basis that Mr Gatt was the principal and the applicant played a lesser role, the sentencing judge sentenced Mr Gatt on the basis that she could not be satisfied beyond reasonable doubt that he was the shooter and thus sentenced on the basis that the deceased was murdered as part of a joint criminal enterprise which Mr Gatt pursued with the applicant. He submitted that once this was appreciated, the basis of the complaint fell away.
The Crown also pointed out that "[a]t the time the applicant was sentenced the sentencing judge was unaware of the applicant's involvement in a substantial drug dealing business" and submitted that the applicant was sentenced on the false basis the offence was out of character and contrary to his prior record. The Crown submitted that for the purpose of parity considerations, the sentencing judge was entitled to conclude that the applicant and Mr Gatt had been involved in a substantial drug dealing business. He submitted that had this evidence emerged at the time the applicant was sentenced, the sentence imposed on him might have been different.
The Crown also submitted that any further reduction to the applicant's sentence would "result in a sentence that was unreasonably disproportionate to the nature and circumstances of the offence".
The Crown also submitted that in considering the issue, it had to be taken into account that Mr Gatt's sentence only commenced at the expiration of the non-parole period of the sentence imposed by Yehia SC DCJ. He submitted that that meant the total term of imprisonment to be served for the two sentences prior to Mr Gatt being eligible to parole was 26 years and 3 months.

Consideration

The principles of parity in sentencing on which the applicant relies are well established. In Lowe v R (1984) 154 CLR 606; [1984] HCA 46 (Lowe), Gibbs CJ (with whom Wilson J agreed) stated at 609 that "[i]t 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". He stated at 610 that "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".
Mason J stated at 611 that "this Court should declare unequivocally that marked disparity is in itself the ground [of appeal]". He stated at 613 that "the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander".
Dawson J pointed out at 623 that "where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for". He added that "justice should be even-handed and … any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done".
In Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 (Postiglione), Dawson and Gaudron JJ stated at 301 that "the parity principle, as identified and expounded in Lowe, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". They stated that "[i]f there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options". They added that "[d]iscrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality".
McHugh J, albeit in dissent, agreed at 309 with what was said by Gibbs CJ, Mason J and Dawson J in Lowe.
Kirby J at 338 emphasised that "[m]ere disparity is not enough", emphasising that "[w]hat is needed is that the disparity engenders a 'justifiable sense of grievance' on the part of the prisoner or 'give the appearance that justice has not been done'".
In Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 (Green & Quinn), the majority explained the rationale for the parity principle in the following terms at [28]: "[28] 'Equal justice' embodies the norm expressed in the term 'equality before the law'. It is an aspect of the rule of law. It was characterised by Kelsen as 'the principle of legality, of lawfulness, which is immanent in every legal order.' It has been called 'the starting point of all other liberties.' It applies to the interpretation of statutes and thereby to the exercise of statutory powers. 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: '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 in original) Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances."
The majority explained the task of a Court of Criminal Appeal in the following terms at [32]: "[32] 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. 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."
The majority stated at [33] that "a sentence which would otherwise be appropriate can be reduced on the ground of disparity to a level which, had there been no disparity, would have been regarded as erroneously lenient" but that the discretion would not require the Court "to consider reducing the sentence to a level, which would be … 'an affront to the proper administration of justice'".
It has with respect been correctly stated by this Court on a number of occasions that it is not only desirable for the same judge to sentence co-offenders, but where the sentencing judge has expressly recognised the importance of the parity principles in his or her remarks on sentence, an applicant who seeks to invoke the principle on appeal faces considerable obstacles: Gill v R [2010] NSWCCA 236 at [53]; Tuivaga v R [2015] NSWCCA 145 at [55]-[56]; Afu v R [2017] NSWCCA 246 (Afu) at [14]-[15]; Dayment v R [2018] NSWCCA 132 (Dayment) at [62]; Lloyd v R [2017] NSWCCA 303 (Lloyd) at [90], [95]-[96]; TL v R [2017] NSWCCA 308 at [86] citing Wan v R [2017] NSWCCA 261 (Wan) at [39]-[41].
A number of these cases (Afu, Dayment, Lloyd and Wan) have suggested that at least in cases where the same judge sentences both offenders, the disparity must be "gross, marked or glaring". No objection can be taken to the use of the words "gross" or "glaring", if they are used to emphasise that in circumstances where the same judge is sentencing both offenders and has taken the question of parity into account. an appellate court should be cautious to intervene. It must be remembered that in considering whether there is a marked disparity to justify an objective sense of grievance, the sentencing exercise is a discretionary one and that what is being reviewed are qualitative and discretionary judgments.
However, that does not mean that there must be a greater level of disparity for the principle to operate than if the offenders were sentenced by different judges. If after making due allowance for the sentencing discretion imposed on the sentencing judge, his or her knowledge of the facts and circumstances surrounding the offending and the fact that there is no single correct sentence, the Court is of the view that the disparity is such as to engender an objective sense of grievance in the offender and give the appearance that justice has not been done, then an appellate court can and should intervene. It is not a further or additional requirement that the disparity be gross or glaring. That approach seems to me to be consistent with what was said by the High Court in each of Lowe, Postiglione and Green & Quinn.
A similar approach was taken by Hamill J, albeit in dissent, in Cameron v R [2017] NSWCCA 229 at [83]-[89], by all members of this Court in Miles v R [2017] NSWCCA 266 (Leeming JA at [9], Rothman J at [36]-[38], Hamill J at [67]) and by a majority of the Court in Daw v R [2017] NSWCCA 327 (Basten JA at [19]-[20], Hamill J at [62] contra Bellew J at [50]).
In PG v R, Basten JA, in the passage which I have cited at [74], summarised the approach which should be taken in considering issues of parity arising between co-offenders where they have been sentenced on a different evidentiary basis.
It is important to bear in mind that the exercise in the present case does not involve ignoring the basis on which the applicant was sentenced and comparing the two sentences solely on the basis of the findings made in the proceedings concerning Mr Gatt. To do so would be unjust to the applicant who was sentenced at a hearing on agreed facts and findings made by the sentencing judge, not on facts or conclusions in proceedings in which, although he happened to be a witness, he was not a party.
Thus, in the present case for the purpose of comparing the respective seriousness of the offences, the relevant findings were that both offenders were involved in a joint criminal enterprise which led to the death of the deceased, but in the case of the applicant there was a finding that he was not the shooter, whilst in the case of Mr Gatt the sentencing judge was unable to find which of the applicant and Mr Gatt was the shooter.
Similarly, so far as subjective circumstances are concerned, the applicant's subjective circumstances fall to be considered on the basis of the findings made by the sentencing judge at his sentencing hearing, without regard to any inroads made to the strength of those circumstances in the proceedings concerning Mr Gatt.
In considering the question of parity, the starting point of the respective sentences can be taken into account: Buxton v R [2017] NSWCCA 169 at [87]-[89]; Lee v R [2011] NSWCCA 169 at [39], [46], [58]; TYN v R (2009) 195 A Crim R 345; [2009] NSWCCA 146 at [34].
In the present case, the starting point for the applicant's sentence was 27 years, one year less than the sentence imposed on Mr Gatt.
The differences in sentences occurred in circumstances where the sentencing judge found in Mr Gatt's proceedings that his offence was more serious than that of the applicant (see [48] above) because she found that in the applicant's proceedings the evidence left doubt about whether what had been decided on by both Mr Gatt and the applicant was that they intended to intimidate or seriously injure the deceased, rather than killing him. She stated (see [51] above) that she was satisfied on the evidence in the Gatt proceedings that what was involved was a cold-blooded execution committed during a joint criminal enterprise soon after Mr Gatt and the applicant learned that the deceased was at the Bexley car park. Her Honour also concluded in the Gatt proceedings that Mr Gatt and the applicant were involved in a drug dealing business, something that was not established in the applicant's sentencing proceedings.
Further, her Honour was unable to find who was the shooter in the Gatt proceedings, whereas the applicant was sentenced on the basis that he was not the shooter.
As I have pointed out (at [57]-[58] above), the sentencing judge in the Gatt proceedings expressly dealt with the question of parity, noting that Mr Gatt's offence was more serious and the fact that the applicant had a strong subjective case. It must be remembered that this comparison was undertaken in the course of considering the appropriate sentence to be imposed on Mr Gatt as the applicant had already been sentenced.
If the only consideration was the difference in the objective seriousness of the offending, I would have had considerable hesitation in concluding that there was such a disparity to give rise to objective sense of grievance in the sense described in the authorities. It is true that there was a positive finding in favour of the applicant in his proceedings that he was not the shooter, whereas there was no finding as to who was the shooter in the Gatt proceedings. It is also correct that in the applicant's proceedings the sentencing judge was prepared to accept that it was not established beyond reasonable doubt that the joint criminal enterprise was to kill the deceased rather than to intimidate or seriously injure him, in contrast to her finding in the Gatt proceedings that an intention to kill had been formed by at least the time that the applicant and Mr Gatt were aware that the deceased was at the car park. Further, the finding in favour of the applicant that he was influenced by Mr Gatt, who he regarded as a role model, must be compared with the finding in the Gatt proceedings that they were both involved in a drug dealing business.
Notwithstanding these differences, they do not of themselves demonstrate the marked disparity such to require the applicant to be resentenced. The offences of each of the applicant and Mr Gatt were very serious. Both participated in an enterprise which led to the death of the deceased. The sentencing judge found in the applicant's proceedings that irrespective of the applicant's early belief of the purpose of the enterprise, the applicant came to realise Mr Gatt was likely to kill the deceased when he began firing at close range. She pointed out (see [16] above) that that was what made his offence so serious.
However, the position is different when the subjective cases of each of the offenders are taken into account. As I have set out above, the applicant presented a strong subjective case which was not challenged in his sentencing proceedings. Further, he has had express findings in his favour of remorse and considerable prospects of rehabilitation. By contrast, her Honour concluded that she was not able to reach any positive conclusions as to mitigatory matters in Mr Gatt's case, stating neither remorse nor good prospects of rehabilitation could be found. In addition, Mr Gatt had a far more serious criminal record than the applicant.
Taking all these factors into account and recognising the caution that an appellate court needs to exercise in considering questions of parity when the same judge has sentenced co-offenders, the fact that the applicant's offence is less serious and the powerful subjective case of the applicant compared to the virtually non-existent one in the case of Mr Gatt, demonstrates that there is a marked disparity to give rise to a justifiable sense of grievance on the part of the applicant. That conclusion is not effected by the fact that the sentence imposed on Mr Gatt was partly accumulated on the sentence imposed on him by Yehia SC DCJ for the offence to which I have referred at [59] above.
It is thus necessary to resentence the applicant. There was no dispute that the discount given by the sentencing judge for the early plea and assistance was appropriate. In resentencing, I have taken into account the objective seriousness of the offence and the subjective circumstances of the applicant as summarised above. I have also taken into account that the Court ought not reduce a sentence to a level which would be an affront to the proper administration of justice. I am of the view that any sentence below that which I propose would constitute such an affront.
In all the circumstances, after making allowance for the 40% discount, I am of the opinion that the applicant should be resentenced to a total term of imprisonment of 15 years, comprising a non-parole period of 11 years and 3 months and a balance of term of 3 years and 9 months.

Conclusion

In the result, I would make the following orders: 1. Grant the applicant leave to appeal. 2. Appeal allowed. 3. Quash the sentence imposed on the applicant on 9 June 2017 and, in lieu thereof, sentence the applicant to a term of imprisonment of 15 years commencing on 19 March 2014 and expiring on 18 March 2029, consisting of a non-parole period of 11 years and 3 months expiring on 18 June 2025 with a balance of term of 3 years and 9 months.
HAMILL J: I agree with the orders proposed by the Chief Justice and with his Honour's reasons.
N ADAMS J: I agree with the Chief Justice.

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