Borg v R; Gray v R

Court of Criminal Appeal (NSW)|2020-04-03|Before: McCallum JA, Johnson J, Adamson J, Callum JA

Solicitors: AC Law Group (Applicant) Director of Public Prosecutions (NSW) (Crown)

2016/204881 Counsel: M Fernando (Applicant) M Millward (Crown)

Solicitors: Ryan & Payten Criminal Law Specialists (Applicant) Director of Public Prosecutions (NSW) (Crown) File Number(s): 2016/90677; 2016/204881 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 8 March 2019 Before: Norton SC DCJ File Number(s): 2016/90677; 2016/204881

Judgment

McCALLUM JA: I agree with Adamson J that both appeals must be dismissed. In my respectful opinion, the sentences imposed were relatively stern having regard to the hardships both offenders endured during childhood and the relevance of those considerations to the assessment of moral culpability.
In the case of Ms Gray, the sentencing judge expressly accepted that the principles stated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 were engaged, saying "this moderates the weight which would otherwise be given to both specific and general deterrence". In the case of Ms Borg (sentenced immediately after Ms Gray), her Honour did not expressly refer to the decision in Bugmy but expressed herself in substantially the same terms, saying "the relevance of general deterrence is reduced somewhat due to the offender's background". In each case, her Honour must be taken to have accepted the evidence relied upon for that purpose.
That evidence established that each applicant suffered significant deprivation and disadvantage during childhood and that neither had the benefit of a structured, supportive upbringing. Ms Borg's mother and father were aged 15 and 19 when she was born and separated when she was an infant. Her mother entered a new relationship marked by extensive use of drugs and alcohol. She told a psychologist that her mother "partied hard" and remembered spending nights at the pub as a young child. She described "living in the ghetto" in public housing. Her mother had periods of mental illness as a result of which Ms Borg was exposed to violence and surrendered into the care of others for periods of her childhood. In her adult relationships she was subjected to domestic violence and resorted to drug use, telling a psychologist that she "mimicked" her mum in that respect.
Ms Gray is the thirteenth of fifteen children in an Aboriginal family. She grew up in a household of twenty in an environment where alcohol abuse and violence were normalised. She was placed in a children's home at the age of five for a period of 10 months. She was often left with her older siblings while her parents "went out drinking" and was disciplined with violence involving the use of thongs, belts and jug cords. She started using drugs at a young age. Her adult relationships have been marked by substance abuse and violence. She endured the death of a daughter in 2008.
In my assessment those were powerful considerations. As explained in Bugmy at [40], the significance of such evidence is that the moral culpability of a person who has been raised in a community surrounded by alcohol abuse and violence "is likely to be less than the culpability of an offender whose formative years have not been marred in that way".
However, as Adamson J has correctly noted, the weight to be given to those considerations was a matter for the sentencing judge, who had the benefit of hearing the evidence at trial and the opportunity to make a reliable assessment as to the objective seriousness of the offences, which was not to be overwhelmed by the subjective case. Whilst it would have been open to the sentencing judge to take a more lenient approach, I am not persuaded that the sentences can be characterised as being excessive to the point of being erroneous.
I agree with Adamson J that, absent error in the judgments of the sentencing judge, this Court has no authority to re-sentence the applicants on the basis of the likely impact on prisoners of the COVID-19 pandemic. Ms Borg submitted that the pandemic raises issues in relation to "the lens through which the Court will assess the current appeal", particularly the risk of infection in a custodial setting and the hardship to prisoners resulting from preventive measures taken by authorities to reduce that risk (which include the suspension for the time being of all social visits in correctional centres in New South Wales).
Ms Borg relied in that context on the recent decision of Hamill J in Rakielbakhour v DPP [2020] NSWSC 323. That was a release application governed by the Bail Act 2013 (NSW). Justice Hamill was, with respect, perfectly correct in that context to have regard to the evidence and information before his Honour concerning the medical crisis facing Australia and the impact of the pandemic on the criminal justice and prison systems in New South Wales. Those matters were plainly relevant to a bail decision, for the reasons carefully explained in his Honour's judgment.
The position is obviously different in the case of an appeal against sentence. As Adamson J has noted, any review of a sentence in the light of subsequent events is properly the province of the Executive Government. The Crown noted the recent introduction of amendments to the Crimes (Administration of Sentences) Act 1999 (NSW) pursuant to which, as an emergency measure to address COVID-19, the Commissioner of Corrective Services has been given the power to make an order releasing an inmate belonging to certain classes of inmates on parole if satisfied that such an order is reasonably necessary because of the risk to public health or to the good order and security of correctional premises arising from the pandemic (it appears no regulation has yet been promulgated prescribing the classes of inmates to which those provisions apply). This Court has no authority to arrogate any such emergency power to itself.
JOHNSON J: I agree with Adamson J.
ADAMSON J: The applications of Renee Borg and Kylie Gray (the applicants) for leave to appeal against their sentences were heard together for convenience. Ms Borg raised a single ground, manifest excess, and Ms Gray raised two grounds, parity and manifest excess. The sentences for each applicant were imposed on the same day, 8 March 2019, by the same judge, Norton SC DCJ. It is convenient for the reasons of this Court to be expressed in a single judgment, although the applications for leave to appeal and appeals are distinct and the applicants are not strictly co-offenders.
Each of the applicants was charged on indictment with one count of supply of not less than a commercial quantity of a prohibited drug, methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act). The indictment presented in respect of Ms Borg alleged that she had supplied 334g of methylamphetamine. The indictment presented in respect of Ms Gray alleged that she had supplied 333g of methylamphetamine.
The applicants were tried jointly with David Peters who was alleged to be the supplier of each of the applicants. Mr Peters had pleaded guilty to 8 counts and not guilty to 2 counts. On 14 September 2018 the jury returned verdicts of guilty in respect of each of the applicants. Mr Peters was also found guilty of the 2 counts to which he pleaded not guilty.
The proceedings on sentence in respect of both applicants were heard by the trial judge on 30 November 2018 and, briefly, on 4 and 8 March 2019. The sentencing judgment was delivered on 8 March 2019.
The sentences imposed on the applicants are set out in the table below. Name of offender Offence Maximum penalty Sentence imposed/non-parole period (NPP) Renee Borg s 25(2) DMT Act 20 years' imprisonment with Standard Non-Parole Period of 10 years' imprisonment Total term of 4 years 6 months' imprisonment, commencing on 28 July 2018 and expiring on 27 January 2023 with NPP of 2 years 8 months expiring on 27 March 2021. Kylie Gray s 25(2) DMT Act As above Total term of 5 years' imprisonment, commencing on 14 October 2017 and expiring on 13 October 2022 with NPP of 3 years expiring on 13 October 2020.

Her Honour's finding, which is not the subject of challenge, was that Ms Borg was, for the period of offending being from 7 August 2015 to 3 November 2015, Mr Peters' agent for the Orange area and Ms Gray was his agent for the Wellington area.
Each applicant's case at trial was that she had believed that the drugs she obtained from Mr Peters were cannabis. The jury's verdicts indicated that they rejected these cases.
Because of the different grounds raised, I propose to address Ms Borg's application first before turning to the manifest excess ground in respect of Ms Gray, followed by the parity ground which was raised only by Ms Gray.

The proceedings on sentence

The Crown tendered Ms Borg's criminal and custodial histories as well as a Justice Health report dated 14 November 2018 from Phillip Johns.
The criminal history showed that Ms Borg had been convicted of and sentenced for drug-related offences as follows: Date sentence imposed Offences for which Ms Borg sentenced Sentence imposed 17 February 2009 1. Supply prohibited drug on ongoing basis Imprisonment for 3 years 6 months, NPP 18 months
Supply prohibited drug (2 counts) Imprisonment for 2 years 6 months, NPP 18 months (on each count) 15 December 2015 Possess prohibited drug s 9 bond for 12 months. 1 July 2016 1. Drive illicit drug present in blood (1st offence) Fine of $500, disqualified 3 months
Drive illicit drug present in blood (2nd offence) Fine of $900, disqualified 6 months.
Possess prohibited drug Fine of $600
Drive illicit drug present in blood (1st offence) Fine of $300, disqualified 3 months

Ms Borg tendered a report of Justine Guttridge, forensic psychologist, dated 15 November 2018. She also tendered several character references from friends, family, her general practitioner and her temporary employer. Ms Borg did not give evidence at the sentence hearing.
The Crown submitted, in accordance with its case at trial, that Ms Borg had, on 12 separate occasions between 30 August 2015 and 3 November 2016, obtained at least an ounce of methylamphetamine from Mr Peters in exchange for money.

The sentencing judgment

The sentencing judge found that as the commercial quantity of methylamphetamine was 250g, the jury must have found that the total amount supplied was at least that amount. Her Honour was not satisfied that the amount supplied was, as alleged in the indictment, 333g. Her Honour found that there was a number of transactions involving the supply of methlyamphetamine and that the amount supplied was 250g.
Ms Borg was 33 years old at the date of offending and almost 37 when the sentence was imposed.
I note from the custodial history that the sentence imposed on 17 February 2009 was backdated to commence on 17 June 2008. Her Honour noted that Ms Borg's custodial history showed that she had been in custody from March 2007 until May 2007 until she was released on bail and then from 9 February 2009 to 16 December 2009 when she was granted parole. Her Honour found that Ms Borg had spent 223 days in custody on remand in relation to the offence for which she stood to be sentenced, having been arrested on 26 March 2016 and been in custody until her release on bail on 27 July 2016. She was returned to custody on 30 November 2018.
Her Honour noted that at the time Ms Borg was interviewed by Mr Johns for sentencing assessment, she was living with her three children and eldest son's partner. Ms Borg reported that the father of her youngest child had been violent and had exposed her to his drug use.
The sentencing judge described Ms Borg's employment history as "sporadic" until she found employment as a traffic controller while she was on bail. She maintained that employment for a period of 14 months until compliance with her bail conditions prevented her from continuing. By the time she was assessed by Mr Johns she was on Centrelink benefits. Her Honour found: "It was noted that the offender's criminal antecedents suggested a longstanding affiliation with illicit drugs and an index offence was an escalation of the offending. The offender minimalized her involvement but acknowledged she had made a number of poor decisions. The offender claimed she was only involved in dealing with cannabis. The offender stated that her employment had helped her find stability. The offender said she had completed a period of rehabilitation, but had relapsed into ice use in 2015, as a result of a relationship. The offender expressed some remorse in terms of the impact her actions have on her family. She expressed a willingness to complete recovery programs and to undertake community work stating that she has distanced herself from her former associates."
Her Honour summarised Mr Johns' opinion as to Ms Borg's suitability for community service work as follows: "The offender's response to prior supervision was assessed as acceptable. The offender was assessed at a medium risk of reoffending, and she would be supervised at the T2 medium supervision level. The offender was assessed as suitable to undertake community service work."
Her Honour recounted Ms Borg's difficult childhood and family history which was set out in Ms Guttridge's report. Her Honour said, by way of conclusion: "Ms Gutteridge [sic] found that the offender had a propensity to minimize her involvement in the offences. It was noted the offender reported having made some significant changes in her life since being released on bail, and she felt going into custody was a waste of time, although she realised she needed to be punished for her actions. Psychological testing was carried-out which suggest her personality patterns were compulsive, histrionic, and turbulent. Not surprisingly, testing showed significant elevation on the drug-use scale. In summary it was said that the offender had been exposed to illicit substance use and adversity from a young age, along with disruption in care‑givers. Despite these difficulties, the offender achieved some success in her schooling, and demonstrated an ability to maintain stable employment and to report on time. The tendency to minimize her involvement was noted, and it was suggested that this is likely the result of her early exposure to substance use."
Her Honour also summarised what Ms Guttridge said about Ms Borg's prospects of rehabilitation as follows: "It was said [by Ms Guttridge] that there are a number of protective factors to ameliorate against future offending, including a supportive family system, continued abstinence from substance use, the potential to return to full time work in traffic control, motivation to attend treatment if required, and motivation to adhere to bail conditions and desist from further criminal activities."
Her Honour summarised the various character references that had been tendered on behalf of Ms Borg which showed the extensive support she had in the community.
Her Honour found that Ms Borg had an "extensive history of drug use" and that "the offences were committed primarily to obtain drugs for her own use". Her Honour found that there was no evidence that Ms Borg made a significant profit and that the level of planning was relatively low and was "somewhat ad hoc and unprofessional". As referred to above, the sentencing judge described Ms Borg's role as "agent for [Mr] Peters in the Orange area". Her Honour found that offending to be "closer to low range than midrange".
Her Honour found that Ms Borg's criminal history disentitled her to leniency but that the level of planning or financial gain did not aggravate the offending.
After addressing the parties' submissions on prospects of rehabilitation and noting that Ms Borg had not given evidence on sentence, her Honour said: "Her chances of reoffending are closely linked to her ability to remain drug‑free and avoid her past acquaintances. Her ability to hold down a job for 14 months was a very encouraging sign. With ongoing support and supervision, treatment of her possible mental health issues, and counselling, I find she has reasonable prospects of rehabilitation and not reoffending. … The offender has shown some progress to rehabilitation in this period, particularly when she was released on Supreme Court bail and able to obtain employment."
Her Honour found that the delay between the offending conduct and the trial was "not unusual" but noted that the applicant was on bail from 25 July 2016 to 30 November 2018. While the applicant was in custody in 2016 she was guilty of one instance of misconduct in gaol: unlawful use of a phone or facsimile machine. Otherwise she had not committed any offences since her arrest. She also completed a drug and alcohol counselling course in 2016 which was said to help her remain drug-free.
Her Honour found, when addressing the question of remorse: "The offender has not yet accepted responsibility for her actions and has not acknowledged the harmful [e]ffects her actions have had on the community. There has been no plea of guilty, no assistance to authorities and no expressions of remorse for the community, remorse being limited to the difficulties that it has caused her family."
Her Honour found that the relevance of general deterrence to the sentence imposed on Ms Borg was reduced because of her background.
Her Honour referred to the principles of parity in the context of Ms Borg and Ms Gray and found, in the sentencing judgment in respect of Ms Borg: "The Crown submitted that this offender was higher up the scale than the offender, Gray, as she had past convictions and was involved in many more transactions. I find the role of this offender as much the same as that of Gray. Gray was involved in fewer transactions, but each transaction involved a greater amount of methylamphetamine and a correspondingly larger amount of cash. The evidence suggests Gray was able to obtain significant amounts of cash on short notice, dispose of significant amounts of drugs quickly and then ask for more drugs. Both the offender and Gray were obtaining drugs from Peters, and their roles were significantly lower than his. There are differences and similarities in the subjective evidence relied upon by the two offenders."
Her Honour found special circumstances in respect of Ms Borg and adjusted the statutory ratio between the non-parole period and the total term from 75% to 60%.

Whether the sentence was manifestly excessive

That a sentence is manifestly excessive is a conclusion which does not require any specific error to be identified. The imposition of a manifestly excessive sentence amounts to an error in the exercise of the sentencing discretion: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54. To succeed on such a ground, the applicant must establish that the sentence was "unreasonable" or "plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].
It was argued on behalf of Ms Borg that the length of the sentence was inconsistent with the finding that the offence was "closer to low range than midrange" and failed to reflect the significant subjective findings in her favour. It was also argued that her Honour's finding that the applicant had not accepted responsibility for her actions was inconsistent with the expressions of remorse referred to in the reports and references tendered on her behalf. Further, Ms Borg submitted that her plea of not guilty at the trial stage or her failure to identify co-offenders was not inconsistent with a finding of remorse on sentence: Pham v R [2010] NSWCCA 208 at [27] (Simpson J). It was also submitted that her Honour had failed to take into account that the applicant was the mother of young children and that a custodial sentence in those circumstances would weigh more heavily.
It was open to her Honour to find for the purposes of sentencing that there was no remorse. Ms Borg did not give evidence at the sentence hearing. Her Honour was entitled to place such weight on the reports and references tendered as she thought fit: see the authorities referred to in Imbornone v R [2017] NSWCCA 144 at [57] (Wilson J, Hoeben CJ at CL and R A Hulme J agreeing). I am not persuaded that this finding was erroneous, particularly in circumstances where Ms Guttridge had assessed Ms Borg as having a "propensity to minimise her involvement in the offences."
I am not satisfied that her Honour failed to take into account that the applicant was the mother of young children and that arrangements had been required to be made for the care of her youngest two children. Her Honour referred to that matter in the sentencing judgment. It was a matter for the sentencing judge to give such weight to that matter as she considered appropriate in the exercise of the sentencing discretion.
I am not persuaded that the sentence was manifestly excessive. It was open to her Honour to impose a sentence of that length, which was neither unreasonable nor plainly unjust.
At the hearing of the appeal, Ms Kluss, who appeared on behalf of the applicant, sought to rely on further submissions relating to the COVID-19 virus and its presumed effect on Ms Borg if she remains incarcerated. She contended that the submissions were not merely relevant on re-sentence but ought also be taken into account on the question of manifest excess. There was no fresh evidence ground, nor was any evidence sought to be adduced. Ms Kluss alleged that no evidence was required since the fact and extent of the virus were matters of which this Court could take judicial notice. There are several difficulties with this approach, the most fundamental of which is whether the Court has power to allow an appeal against a sentence which was not, at the time it was imposed, manifestly excessive.
While this Court has the flexibility to receive new evidence where it is necessary to do so in the interests of justice, there are limits to the circumstances in which this can occur: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25. Otherwise the general principle is as stated in Douar v R [2005] NSWCCA 445; (2005) 159 A Crim R 154 where Johnson J (McClellan CJ at CL and Adams J agreeing) said at [56]: "The review of a sentence in the light of subsequent events is the proper province of the Executive Government and not of this Court: R v Munday (1981) 2 NSWLR 177 at 178; R v Goodwin (1990) 51 A Crim R 328 at 329-330; R v Many (1990) 51 A Crim R 54 at 62; R v Fordham (1997) 98 A Crim R 359 at 377-379; R v Willard (2001) 120 A Crim R 450 at 454-5."
Ms Kluss was unable to identify any power or principle which would enable this Court to intervene in such circumstances. Her retort that "the pandemic does not accord with principle" did not assist.
In these circumstances, I do not propose to consider the additional submissions on COVID-19 since this Court is not entitled to re-sentence the applicant, no error having been established in the sentence imposed by the sentencing judge. Had error been shown, this Court would have been obliged to re-sentence the applicant in accordance with what the High Court said in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ).

The proceedings on sentence

The Crown submitted that Ms Gray had, on four separate occasions between 30 August 2015 and 3 November 2016, obtained a total amount of 340g of methylamphetamine from Mr Peters in exchange for money.
The Crown tendered the applicant's criminal and custodial histories as well as the sentencing assessment report of Craig Nicholls dated 28 November 2018.
Ms Gray's criminal history, in so far as it related to drug offences, was as follows: Date sentence imposed Offences for which Ms Gray sentenced Sentence imposed 26 September 1995 Possess prohibited drug 3 months' periodic detention 1 November 1995 Self-administer prohibited drug Sentenced to the rising of the court 3 October 1996 Conceal syringe in prison Fixed term of 6 months' imprisonment 7 May 1999 Possess prohibited drug Fine of $100 21 April 2015 Possess prohibited drug s 9 bond for 6 months Note: bond called up on 21 April 2016 and fine of $400 imposed 11 November 2015 1. Possess prohibited drug Fine of $400; s 9 bond for 12 months
Possess prohibited drug Fine of $200 21 April 2016 Supply a prohibited drug Fine of $400 17 October 2017 Possess prohibited drug Fine of $500 22 November 2017 Drive vehicle, illicit drug present in blood (1st offence) Fine of $300; disqualification of 4 months 22 May 2018 Drive vehicle, illicit drug present in blood (2nd offence) S 10A conviction with no other penalty; disqualification for 6 months

Ms Gray relied on a report of Sarah Brann, forensic psychologist, dated 26 October 2018 as well as certificates of attainment for courses she had undertaken in gaol. Ms Gray did not give evidence at the sentence hearing.

The sentencing judgment

Her Honour found that the jury's verdict was consistent with there being three or four transactions and that the amount of methylamphetamine supplied was the commercial quantity of not less than 250g.
Her Honour noted that Ms Gray was first admitted to adult custody in October 1995 and released in March 1996 but returned to custody in September 1996, released on bail in October 1996 and returned to custody four days later. The sentencing judge noted that there was a gap in Ms Gray's custodial history between 1998 and 2015 but that there was "consistent offending and periods in custody after that date". Her Honour noted that Ms Gray had committed a number of offences while in custody, including failing a prescribed drug test in July 2018 and possessing drug implements in September 2018.
Her Honour referred to the sentencing assessment report of Mr Nicholls and said: "Her behaviour in custody is described as borderline. Records show her response to supervision has been unsatisfactory in the past. It was assessed that the offender has a protracted history of poly-substance abuse and related criminality. She continues to minimize her drug use and demonstrates no insight into her offending behaviour. The offender was assessed at medium to high risk of reoffending and her supervision plan is included in the report. The offender was assessed as unsuitable to undertake Community Service work because of unresolved substance dependence and need for medical assessment."
The sentencing judge summarised Ms Brann's impressions as follows: "Tests revealed she tended to portray herself in a more positive light and be reluctant to acknowledge shortcomings that had significant issues with drug dependency, strained interpersonal relationships, vocational, legal and medical issues. She was negative self-evaluation, is self-critical, expresses self-doubt and likely feels inadequate. She met the criteria for a stimulant use disorder of severe intensity and opioid disorder of moderate severity. Ms Brann was of the opinion that the offender had an upbringing of marked disadvantage and was subject to violence from numerous members of her family, and this appears to have normalised this type of behaviour. This, in turn, is likely to lead to the development of disregard for the rules."
When assessing the objective seriousness of the offence, her Honour found the offence to be "serious". Her Honour found there to be planning which "lacked sophistication and was best described as chaotic". Her Honour found the offence to fall below midrange and to be "closer to low range for offences of this kind".
On the question of parity, the sentencing judge said: "I do not accept the submission made by the Crown that this offender's activities were less objectively serious than those of Borg. True, there are less transactions involved, but the offender, as noted above, had the capacity to access significant sums of money on relatively short notice and distribute the drugs quickly and then request further supplies."
When turning to aggravating factors, her Honour found that Ms Gray's criminal history did not amount to an aggravating factor although it disentitled her to leniency. Her Honour noted that the offending conduct had occurred while Ms Gray was on a six-month bond for possession of a prohibited drug. Her Honour said: "It was conceded that this was an aggravating factor and is relevant to the offender's prospects of rehabilitation and need for specific deterrence, and the sentencing purpose of protecting society."
The sentencing judge accepted that Ms Gray had a long-standing drug addiction and that the addiction rather than pure financial gain was the motivation for the offending. Her Honour also found: "… the offender continues to have support in the community, which is another positive sign in favour of her prospects of rehabilitation. There is no remorse shown, as the offender continues to deny the offence. There is support for the history given to Ms Brann in the offender's criminal history. I accept that, in her childhood, she was exposed to violence and drug and alcohol abuse. It was clear that she was part of a very large family who had very limited means and that she commenced to use drugs and alcohol at a very young age when she was too young to realise the long-lasting effects of such use. Indeed, use of drug and alcohol had been normalised in the environment she grew up in. The offender has a gap in her custodial history, which demonstrates some ability to live in the community. She has failed drug tests in custody, and clearly her chances of rehabilitation very much depend on her being able to access help to deal with her unresolved grief issues and her drug and alcohol dependence. The community and the offender would be assisted by her having an extended time supervised in the community to aid her reintegration into the community. It is positive that the offender has taken steps to get some vocational qualifications and has a plan to try to work with animals. I find that, despite the offender not giving evidence, there is sufficient evidence which tends to establish that her background is such as to make relevant the matters referred to in Bugmy."
As with respect to Ms Borg, her Honour found that the relevance of general deterrence to the sentence imposed on Ms Gray was reduced because of her background and circumstances.

Whether the sentence is manifestly excessive

I have set out above the relevant principles to determine whether a sentence is manifestly excessive.
In support of this ground, Ms Gray argued that her background was a material consideration which was "not fully considered". She also argued that her "extensive criminal history" was for "non-serious indictable offending" and that her Honour had not mitigated the sentence for the criminal history which was due to the applicant's background. Ms Gray also submitted that her Honour did not give sufficient weight to the factor of delay.
Cases alleged to be comparable were cited by Ms Gray in this Court but it was accepted that there had been no reference to such cases or to statistics in the Court below, it having been accepted that the level of objective seriousness deprived them of particular relevance. I do not consider that the cases cited are of particular assistance or that this Court ought accord them any particular weight in determining this ground as they were not provided to the sentencing judge.
It is fundamental to the exercise of the sentencing discretion that the weight to be accorded to particular factors is a matter for the sentencing judge. A complaint that insufficient weight was given to a particular factor amounts to a concession that some weight was given to it: R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ, Grove and Hidden JJ agreeing) and ES v R [2019] NSWCCA 262 at [40] (Simpson AJA, Fullerton and Adamson JJ).
I am not persuaded that the sentence imposed was either unreasonable or plainly unjust. The ground of manifest excess has not been made out.

Whether there is any unjustified disparity between the sentence imposed on Ms Gray and the sentence imposed on Ms Borg

It is a condition of pressing a parity ground that the sentence is otherwise accepted as correct which is why a parity ground ought be dealt with last: Pham v R [2009] NSWCCA 25; (2009) 193 A Crim R 190 at [17] (Latham J, Giles JA and Matthews AJ agreeing). It was common ground that, although Ms Borg and Ms Gray were not strictly co-offenders, the principles of parity nonetheless applied to them since they were engaged in the same criminal enterprise: Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 at [202] (Campbell JA), followed in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30] (French CJ, Crennan and Kiefel JJ). The common element was that Mr Peters had supplied each with prohibited drugs for distribution in different areas of New South Wales.
The relevant principles were summarised in Green v The Queen; Quinn v The Queen at [31]-[32] (French CJ, Crennan and Kiefel JJ) as follows: "[31] … The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria…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. [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." [Footnotes omitted.]
It is significant that her Honour sentenced both applicants after having presided over their joint trial. Her Honour was obliged to make factual findings consistent with the evidence at trial and sentence, consistently with the jury's verdicts: The Queen v Olbrich (1999) 199 CLR 270 at [25]; [1999] HCA 54; Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [20]-[24] (Gleeson CJ, McHugh, Gummow and Hayne JJ). Her Honour was in a pre-eminent position to compare the conduct of each applicant and determine the objective seriousness of the offending of each, the relative objective seriousness, as well as other factors, for the purposes of ensuring parity.
As referred to above, her Honour found that the offending conduct of each was broadly of similar objective seriousness. I am not persuaded that there was any error in this finding.
There were several similarities in the subjective circumstances of Ms Gray and Ms Borg. They both had very deprived upbringings, which made the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 applicable. They each had long-standing drug addictions since childhood which were found to provide the motivation for the offending conduct. They had each had periods of non-offending followed by recidivism, thereby demonstrating a relatively intractable susceptibility to offending. Her Honour found that neither had shown remorse, although each was recorded as having exhibited signs of remorse to the authors of reports tendered at the sentence hearing.
In assessing this ground, it is important to have regard to the differences between the offenders. At the time of sentence Ms Gray was 55 years old whereas Ms Borg was almost 37 years old. They both had extensive criminal histories. Ms Gray had committed more offences over a longer period but had only been required to serve a relatively short period in custody in 1996 and had not previously been convicted of a serious indictable offence whereas Ms Borg had served a short custodial sentence in 2009. Ms Gray was subject to a s 9 bond at the time of the offending, which was accepted to amount to an aggravating factor.
The most significant distinguishing factor between them related to their respective prospects of rehabilitation. Ms Borg attended a drug and alcohol rehabilitation course in 2016 which enabled her to remain drug-free while she was on bail for an extended period awaiting trial for this offence. She was able, while on bail, to obtain steady employment as a traffic controller and adduced several references to the effect that she had changed and would not revert to her previous lifestyle. By contrast, Ms Gray committed various offences in gaol which indicated that she was still using, or attempting to use, prohibited drugs. Her Honour noted that Ms Gray had been assessed as being at a medium to high risk of re-offending, whereas Ms Borg was assessed at a "medium risk". Ms Borg was found to have reasonable prospects of rehabilitation having regard to the evidence that had been adduced of the ongoing support which was available to her from family members, friends and members of the community. It is also of significance that her Honour assessed the time Ms Borg spent on bail as amounting to a form of punishment which was taken into account to reduce the overall sentence.
Ms Fernando, who appeared on behalf of the applicant in this Court, submitted that her Honour's discussion of the parity issue was "cursory". She contended that the differences between the criminal and custodial histories of Ms Gray and Ms Borg ought to have led either to the same sentence being imposed on each offender, or to Ms Gray's sentence being shorter than that imposed on Ms Borg. She submitted that Ms Borg's prospects of rehabilitation had been enhanced by the circumstance that, as she had committed more serious offences in the past, she had undergone a process of supervision on parole. She contended that, by contrast, Ms Gray whose prior offending had been dealt with by short fixed term sentences or by non-custodial penalties had, in effect, been deprived of the benefit of the same level of assistance with her drug problem which had been given to Ms Borg. Ms Fernando submitted that, in such circumstances, Ms Gray was entitled to feel a justifiable sense of grievance when a longer sentence was imposed on her.
When Ms Fernando was asked by this Court whether that argument had been put to the sentencing judge, she responded that although it had not been raised by Ms Gray's counsel at the sentence hearing, it had been raised by the Crown and that, in those circumstances, her Honour was obliged to address it. Ms Fernando identified the following passage as relevant: "HER HONOUR: Gray seemed to be able to find a market for relatively large amounts of methylamphetamine over a short period of time as well. So again I don't see much difference, objectively, between the seriousness of the two. Subjectively, Gray was on conditional liberty at the time. [THE CROWN]: Yes. She had not served, your Honour, a period of custody for significant drug offences. HER HONOUR: Oh. Yes, I get that submission. Checked the records, she had been in custody, I'll just have to check them closer. [THE CROWN]: Sorry? HER HONOUR: Gray had been in custody before, but I'll have to check closer what she was in custody for at various times. [THE CROWN]: Yes. Nothing in the nature of an ongoing supply, your Honour. HER HONOUR: Oh, ongoing. Yes, all right. [THE CROWN]: She'd been fined $400, I think, for an offence of supply that was in the Local Court and that was the limit of that."
This exchange between the Crown and the bench was essentially a factual one in which her Honour was exploring the differences between the two offenders, including as to the penalties which had been imposed on each for past criminal conduct. It was not put on behalf of Ms Gray that her sentence ought be lower because her criminal history had not given her the opportunity for supervision. Although the Crown submitted that the objective seriousness of Ms Borg's offending was greater (a submission rejected by her Honour), the Crown did not attempt to rank the offenders by reference to subjective factors or submit that one ought receive a lesser sentence than the other. I do not regard the submission made by Ms Fernando as having been made to the sentencing judge. An application for leave to appeal to this Court is not an occasion to reformulate what was put below: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 per Johnson J (McClellan CJ at CL agreeing) at [81]. In any event, whatever the reason for the relative success of Ms Borg's attempts to rehabilitate herself as compared with those of Ms Gray, her Honour was entitled to take into account, and did take into account, their respective prospects of rehabilitation.
I reject Ms Fernando's submission that her Honour's consideration of the parity issue was "cursory". Her Honour's reasons were sufficient to explain the differences between Ms Borg and Ms Gray, their offending conduct and the sentences imposed on each of them. The differences between their subjective circumstances provided a reason for imposing a somewhat lesser sentence on Ms Borg than was imposed on Ms Gray. The difference between the sentences imposed on Ms Gray and that imposed on Ms Borg was 6 months, which was 10% of Ms Gray's sentence. The difference between Ms Gray's non-parole period and that of Ms Borg was 4 months which was also 10% because the ratio between the non-parole period and the total term was the same for each: 60%. The difference was justified by the differences in post-offence conduct and prospects of rehabilitation outlined above.
Ms Gray has not made out the parity ground.

Proposed orders

For the reasons set out above, I propose the following orders:

In 2016/90677 1. Grant leave to appeal. 2. Dismiss the appeal.

In 2016/204881 1. Grant leave to appeal. 2. Dismiss the appeal.

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: 09 April 2020

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