Principles applicable to Parity
17 As can be seen from the above table, his Honour Judge Woods QC DCJ sentenced five of the nine persons charged from material obtained in the investigation of the syndicate. Most relevantly, he sentenced the principal, Scott, and Mr De Marco as well as the current applicant. Indeed, the accused, Jason Scott, Shannon Bree and Eugene Vanderstaak were sentenced at the one time and the remarks on sentence, except where the sentencing judge expressly differentiated, relate to all of them. Mr De Marco was sentenced almost two months later. The major thrust of the argument of the applicant before this Court was that, especially by comparison with the sentence imposed on Mr De Marco, there is a justifiable sense of grievance in the applicant who received, relatively, a heavier sentence than was deserved.
18 The fact that De Marco was sentenced later in time than the applicant is not a bar to the application of parity principles to the applicant (see Jones v The Queen (1993) 67 ALJR 376 at 377). The parity principle recognises, in relation to sentencing, a consistent theme throughout the law. It recognises that equality, and the perception of equality, is a necessary concomitant of the objective application of law and principle. It applies in a number of areas. Applying the same principles of consistency of approach, the courts have held that unequal treatment of persons who are relevantly equal is discrimination. So, too, is the equal treatment of persons who are relevantly unequal. (see Waters v PTC (1992) 173 CLR 349 at 402, per McHugh J.)
19 The principle found expression as a recognised factor in fixing an appropriate sentence. The application of the principle requires that like should be treated alike and that, where there are relevant differences, due allowance should be made for them (see Postiglione v The Queen (1997) 189 CLR 295, especially per Dawson and Gaudron JJ at [301]).
20 In Lowe v The Queen (1994) 154 CLR 606, Mason J (as he then was) said:
"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."
21 Mason J had earlier said:
"Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."
22 The fundamental essence of the principle, especially in relation to sentencing, is that any discrepancy should be justifiable. Of course, sentencing an individual offender is not like setting a generally applicable wage rate or determining whether, by comparison to others not in a particular class, a person has been treated unequally or inappropriately. Every offence and every offender is unique. The arithmetic precision which may apply in other areas of the law cannot apply to the sentencing of an individual offender. Where co-accused and their role within a criminal enterprise is the same, then the objective factors associated with the offence are relevantly the same, however, objective factors in the commission of the offence are not the only factors to be taken into account in sentencing. Since no two individuals are identical, the determination of exact relativity in the sentencing of individuals is an impossibility. Some of the measures that are utilised in order to minimise a lack of transparency is, as Dawson J encouraged, the sentencing by one judge of co-accused in a joint criminal enterprise. That was largely achieved in relation to the Scott Syndicate, of which this forms part. Certainly it was achieved in relation to the sentencing of Mr De Marco, Mr Scott and the applicant.
23 When a prisoner appeals the sentence imposed on the ground of disparity, it would be a mistake to determine the appeal on the basis of the misleading nature of the short hand title it is given. It is not truly an appeal on the basis of "disparity" or even on the basis of the "parity principle". It is an appeal on the basis that there is a legitimate and/or justifiable sense of grievance or injustice at the discrepancy in sentencing between two or more co-accused. The test for determining the legitimacy of a sense of grievance is objective not subjective. An applicant for leave to appeal on the basis of such a ground must demonstrate, not that the applicant feels aggrieved, but that a reasonable mind looking objectively and overall at what has occurred would see justification in the applicant's grievance (see R v Doggett, NSWCCA, 24 March 1996 unreported, per Sully J and R v Ilbay [2000] NSWCCA 251 at [6]).
24 Further, there are a number of qualifications which, themselves, are based upon the application of transparent justice to the principle in question. It is, for example, not appropriate for an appeal court to intervene by reducing a sentence if the result is to produce a sentence disproportionate to the culpability (both objective and subjective) of the offender in question (see R v Boney [2001] NSWCCA 432).
25 I turn then to the application of the principle to the facts in this case. His Honour the sentencing judge said of the role played by Bree:
"… it might be said that he was a franchisee in the syndicate in the town of Gunnedah. He was not one of the principals of the overall operations, but nonetheless, so far as Gunnedah was concerned, he was the principal distributor for those above him in the chain. The criminality is extensive and nothing other than a significant penalty of imprisonment is appropriate."
26 It is clear that his Honour, informed in relation to the totality of the operations of the syndicate, took the view that the criminality of the applicant was significant and at a higher level than the submission made by and on behalf of the applicant before this Court. As well as dealing with De Marco, the applicant dealt directly with Scott, as did De Marco. The judge also held, particularly in relation to the applicant's criminal history, that he had a "bad history" but not a "remarkably bad history". As to parity, his Honour made clear that the applicant:
"does not bear the same culpability as Scott, and perhaps others equivalent to Scott. … It is nonetheless a very serious criminality. He clearly was involved extensively in the distribution of this illegal substance and the criminality continued over a long period of time."
27 After taking into account the subjective elements associated with the applicant, his Honour then sentenced the applicant. The sentence, of course, was for three offences, not simply the offence relating to cannabis. Further, all of the sentences are concurrent and his Honour was clearly concerned to ensure that the totality of the sentence reflected an appropriate figure.
28 The applicant seeks to separate out the cannabis charge, which was the most serious charge, but it seems, at least in part, that the sentence on Count 3 reflects his Honour's desire to ensure an overall sentence which reflects the totality of the criminality involved.
29 I have earlier stated that it is impermissible to compare the applicant with Mr Livas and given their respective roles it is impermissible to compare the applicant with any of the couriers or Mr Gosling. In his submissions counsel for the applicant paid particular regard to the sentence imposed on Mr De Marco. It is necessary to deal with this comparison because it is the one which has been the subject of the most telling submission and the concern of the applicant in relation to "unfair treatment". Mr De Marco was sentenced by Woods QC DCJ on 3 December 2004, some 2 months or so after the sentencing of Mr Scott and the applicant. His Honour, in the remarks on sentence for Mr De Marco (and Byron Wood who was sentenced at the same time), recounted the issues associated with the Scott Syndicate and made the following comments:
"The matter relates to an extensive syndicate of marijuana distribution, one of the principals of which was a man called Jason Peter Scott. …
… He, in effect, 'franchised' various people such as the man, Bree, [the applicant], and such as the man, De Marco, to be the recipients of the drug for it to be on-supplied in due course. There were, as well, various people who were the drivers or couriers of the vehicles. The couriers are at the lowest level of the culpability although in all cases such as that of the man Wood, inevitably a prison sentence will be imposed. Higher up than that is the level of people such as Bree and De Marco. At the top level was the man, Scott and possibly various others."
30 It is clear that, at least at the time he came to sentence De Marco, Woods QC DCJ took the view that De Marco and Bree were at a similar level of criminality. There are differences. As counsel for the applicant has pointed out, De Marco was convicted in relation to five times the amount of cannabis than was the applicant. However, given the nature of the syndicate and the factual findings by his Honour the sentencing judge, the amount of cannabis to which the charges relate may be more a question of timing than it is a reflection of the relative level of criminality of the two co-accused. That seemed to be the view of his Honour the sentencing judge. In sentencing Byron Wood his Honour said:
"There is a difference in the maximum penalty available as to supply of marijuana in terms of large commercial as against a commercial quantity, but in the circumstances of this case, it does not seem to me to be as significant as other considerations, and particularly the respective roles involved."
31 In dealing with Mr De Marco, his Honour Woods QC DCJ said:
"In a case where there are multiple offenders and a syndicate is involved, sometimes difficulties arise in equating the sentences to be imposed upon various parties. Without engaging in an overly fine dissection of the comparabilities, this man's culpability is approximately like that of the man, Bree [the applicant], although there may be slight differences and I bear in mind the necessity to avoid sentencing in a way that might excite legitimate concerns as to comparability of treatment."
32 The fundamental basis of the submissions of the applicant was that he had been unfairly treated by comparison with De Marco in circumstances where De Marco received a lesser sentence yet should have received a greater sentence. It is a submission based upon the lack of "due discrimination" between the two offenders. In the joint judgment of Dawson and Gaudron JJ in Postiglione, their Honours cite with approval the following extract from R v Tiddy [1969] SASR 575 at 577:
"… where other things are equal, persons concerned in the same crime should receive the same punishment; and where other things are not equal, a due discrimination should be made."
33 In this case, none of the offenders are "equal".
34 His Honour the sentencing judge arrived at a sentence for De Marco based on his perception that De Marco was at or about the same level of culpability as Bree. That determination was made on the basis of the role of the two offenders, rather than the amounts of the drug involved. There are differences, of significance, between the role that De Marco played and the role that Bree played. I have already described Bree, in the words of Woods QC DCJ, as a "franchisee". De Marco is probably best described as a "wholesaler" and was further up the chain of the syndicate than was Bree. Even taking account of the preference to look at the role rather than the amount of drugs involved, De Marco played a seemingly more significant role than did Bree.
35 As already stated, the first of two offenders is entitled to rely upon parity with the second, notwithstanding that the second was set by comparison with the first. (See Jones v The Queen, supra).
36 However, the difficulties, largely already mentioned, in this case are twofold. Firstly, the applicant was sentenced for more than one offence and there can be little doubt that the sentence in relation to cannabis was structured so as to take into account the sentencing judge's view as to the totality of the criminal liability of the applicant. It also took into account the goods in custody matter on the Form 1. Secondly, and more importantly from the perspective of the submissions made on behalf of the applicant before this Court, the applicant's sentence has an appropriate relativity to that of Scott and the various couriers. In the case of Palanca, he was described by Hosking SC DCJ as operating "below Scott" and above "Bree and De Marco" in objective criminality but because of subjective factors the particular sentence was imposed. The dilemma, therefore, for the applicant, is that, while it may look, at first blush, that the sentence in comparison to De Marco suffers from a disparity, making an alteration, favourable to the applicant to reflect relative seniority in the syndicate with De Marco, would put the applicant out of parity with all of the other members of the syndicate. Further, given the role that the applicant played in the organisation, his prior criminal record and the other offences (including the Form 1) for which he was sentenced a sentence any lower than the one imposed by Woods QC DCJ would take the applicant out of the range of appropriate sentences for the criminal conduct and subjective elements involved.
37 While the applicant may have a sense of grievance at the relative sentence imposed upon Mr De Marco, it is a sense of grievance derived from the leniency with which Mr De Marco has been treated. That sense of grievance is essentially one based upon the error, the applicant submits, of finding that Mr De Marco and Mr Bree were at the same level and ultimately, mistakenly, of giving Mr De Marco a sentence that was erroneously lenient. It is not every disparity which requires correction. There must be a disparity based upon a legitimate sense of grievance. In this case, the sense of grievance felt by the applicant is not legitimate because it is based upon a known situation where there has been a mistake in fact in the later sentence on relative criminality of only one of 8 co-accused. The sentence imposed on the applicant is an appropriate one and a lower sentence would be inappropriate and inadequate (see R v Tisalandis [1982] 2 NSWLR 430). Further, the disparity is not such that it warrants correction.
38 For these reasons I propose that:
a Leave to appeal be granted;
b The appeal be dismissed.