Butler v R

JUDGMENT

1. BEECH-JONES CJ at CL: I agree with N Adams J.
2. N ADAMS J: The applicant seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Judge Craigie SC on 14 June 2022. He and three other co-offenders all pleaded guilty to being part of a joint criminal enterprise to import and sell counterfeit Australia Post pre-paid satchels.
3. The applicant pleaded guilty in the Local Court to one offence contrary to s 148(1) of the Trade Marks Act 1995 (Cth) which provides as follows: Goods with false trade marks Indictable offence (1) A person commits an offence if: (a) the person: (i) sells goods; or (ii) exposes goods for sale; or (iii) possesses goods for the purpose of trade or manufacture; or (iv) imports goods into Australia for the purpose of trade or manufacture; and (b) any of the following applies: (i) there is a registered trade mark on the goods; (ii) there is a mark or sign on the goods that is substantially identical to a registered trade mark; (iii) a registered trade mark on the goods has been altered, defaced, added to, wholly or partly removed, erased or obliterated; and (c) the registered trade mark, or mark or sign, was applied, altered, defaced, added to, wholly or partly removed, erased or obliterated, as the case requires, without: (i) the permission of the registered owner, or an authorised user, of the trade mark; or (ii) the application being required or authorised by this Act, a direction of the Registrar or an order of a court.
4. The maximum penalty for this offence is imprisonment for 5 years or 550 penalty units, or both.
5. On 14 June 2023, Judge Craigie SC sentenced the applicant to imprisonment for 2 years and 3 months commencing on 14 June 2022 and expiring on 13 September 2024. His Honour ordered that the applicant be released on a recognizance release order ("RRO") under s 20(1) of the Crimes Act 1914 (Cth) on 13 August 2023 after serving one year and two months of that term.
6. On the same date, Judge Craigie SC sentenced his co-offender, DM [1] , to imprisonment for 2 years (a sentence 3 months shorter than that imposed on the applicant) for the same offence. DM faced an additional offence contrary to s 3LA(6) of the Crimes Act 1914 for which he received 6 months of imprisonment. That offence carries a maximum penalty of 10 years imprisonment or 600 penalty units, or both. The offence involved his refusal to give the federal agents the password or pass code to his mobile telephone pursuant to a warrant. The sentences were partially accumulated by 3 months, resulting in a total sentence of 2 years and 3 months imprisonment commencing on 14 June 2022 and expiring on 13 September 2024. It was also ordered that he be released on an RRO on 13 August 2023.
7. The other two co-offenders were the applicant's wife, Danielle Butler, and a former partner of DM, known in these proceedings as "CC". It was common ground that their involvement was much less than the two main offenders. They both pleaded guilty to an offence contrary to s 148(1) of the Trade Marks Act. Ms Butler was sentenced to imprisonment for 1 year and 6 months. CC had been earlier sentenced by his Honour to imprisonment for 1 year and 3 months on 10 December 2021. His Honour directed that both offenders serve their sentences by way of an Intensive Correction Order.

Grounds of appeal

1. The applicant relies upon two grounds of appeal: 1. The sentencing judge failed to assess the applicant's prospects of rehabilitation and risk of reoffending; and 2. The applicant has a justifiable sense of grievance in relation to the sentence imposed upon him as compared with the sentence imposed upon [DM].

Factual background

1. Although initially there was one set of agreed facts for the co-offenders, ultimately different facts were tendered in relation to DM and the applicant. The agreed facts on which the applicant was sentenced can be summarised as follows.
2. DM and the applicant agreed to import, sell, possess and expose to sale counterfeit Australia Post satchels. On the applicant's facts, the satchels were sourced by DM from a company in China and on-sold by the group either directly to a buyer, or via eBay. On DM's agreed facts it was alleged that the counterfeit satchels were sourced by both DM and the applicant together. His Honour was satisfied both that the scheme was the idea of DM, and that the applicant would not have become involved in it but for DM.
3. At the time of the enterprise, DM had a company called "Indigipreneur". He conducted a YouTube podcast in relation to that business highlighting Indigenous entrepreneurs, innovators and leaders. In May 2018, DM made a reference in that podcast to his business venture hinting at filling a gap by suppling cheap postal satchels. The consignments began to be delivered to the co-offender CC's address as early as June 2018. DM had consulted CC as his psychologist when he was 19 years old and they had developed a sexual relationship after that.
4. Between 10 September 2018 and 30 May 2019, the offenders sold about 56,132 counterfeit Australia Post satchels. Genuine Australia Post pre-paid satchels were sold for between $7 and $17 a satchel. The offenders on-sold the counterfeit satchels for between $3 and $15 per satchel.
5. The proceeds of the sales of the counterfeit satchels were equally divided between DM on the one hand and the applicant and his wife on the other hand, with a smaller share of about $10,000 being provided to CC. The total sales amounted to $341,711.
6. The applicant received $141,245 into his bank account, and Ms Butler received $78,773 into her PayPal account.
7. The calculated loss to the Australia Post for lost sales was $637,441.
8. The biggest customer of the enterprise was Thomas Gascoigne who on-sold the satchels on eBay through his e-commerce company called Da Harbour Pty Ltd.
9. The applicant's involvement in the scheme was particularised in his agreed facts as follows: 1. DM purchased the counterfeit satchels from China; 2. The applicant received four consignments of counterfeit satchels at his butcher shop; 3. The applicant instructed others to make deliveries of cardboard boxes with counterfeit satchels to customers for cash; 4. The applicant received the payment into his bank account in the amount of $141,245 between 15 September 2018 and 7 February 2019; 5. The applicant permitted nine large cardboard boxes with 2,053 counterfeit satchels and over 54,000 tracking labels to be stored in the garage of his residence; 6. Text messages on his mobile in the period between 5 September 2018 and 9 July 2019 reveal that the applicant was selling the counterfeit satchels through his eBay account ("Dambut-10"); that he was directing his wife to prepare counterfeit bags for sale to send to customers and withdrawing proceeds of the sales from her PayPal account; and that he was expressing his frustration with DM's directions and regret for involving his wife in the enterprise; 7. The "Dambut-10" eBay account user ID was registered to the applicant who, in the period of 18 October 2018 to 30 May 2019, sold 260 consignments of counterfeit satchels for the total amount of $61,751.

Proceedings on sentence

1. The proceedings on sentence for DM, the applicant and the applicant's wife were conducted together on 7 and 8 April 2022. The three offenders were all sentenced at the same time on 14 June 2022.
2. The Crown tendered the agreed statement of facts and the applicant's short criminal history. On behalf of the applicant, a report of Ms Julie Dombrowski, psychologist, dated 23 March 2022 was tendered as well as a character reference from his ex-wife Natasha Maskell and a friend Sunny Narayan. The applicant did not give evidence at the proceedings on sentence; his background was set out in the report of Ms Dombrowski, some of which can be summarised as follows.
3. At the time of sentence, the applicant had a 12 month old son with his wife, who was one of the co-offenders. He also has three children (then aged 3, 5 and 10 years) from two previous marriages. He provided financial support to his former wives, and they shared the parenting of the children. He told Ms Dombrowski that his greatest concern was how the sentence would impact on his children. The proceedings on sentence were conducted on 7 April 2022. The sentencing judge was informed that the decision in Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 was to be delivered on 11 April 2022 prior to the offenders being sentenced. It was foreshadowed that the court may find that an offender does not have to establish that hardship to a family was extreme before it can be considered a mitigating factor.
4. Ms Dombrowski provided the following opinion in her report relevant to any finding as to the applicant's prospects of rehabilitation: "Mr Butler is not inherently antisocial. This is indicated by the absence of any juvenile offending history or serious childhood misconduct, his strong commitment to employment, and his relatively limited offending history in adulthood. He is largely a psychologically stable and well-functioning individual, and his criminogenic treatment needs are minimal. I understand that since the subject offending, he has felt ostracized by his community, peers, and family members, which has caused him distress. This further demonstrates his prosocial orientation and desire to modify his behaviour to conform with his community, peer and familial expectations. A period of imprisonment may serve as an important punishment for his offending behaviour but will have little rehabilitative benefit (because his criminogenic treatment needs are minimal). Given his high level of psychosocial functioning and low criminogenic needs, he will not need professional monitoring or supervision (such as that offered by NSW Community Corrections) to maintain stable functioning in the community. He continues to experience a dysthymic mood and heightened anxiety regarding the sentencing outcome. This is a normal response to his current circumstances and likely to settle upon sentencing." (Emphasis added.)
5. The applicant's then counsel submitted before the sentencing judge, both orally and in writing, that the applicant had good prospects of rehabilitation and that he was a low risk of reoffending. The following was submitted in writing: "Section 16A(2)(n): Mr Butler's prospect of rehabilitation 11. The defence contends Mr Butler has good prospects of rehabilitation. 12. Features of the concept of rehabilitation were described in R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225 at [124]-[125] … 13. Mr Butler has a solid history of paid employment ad a powerful incentive to re-establish himself in the community as a law-abiding citizen, so as to fulfil his family responsibilities and recover his reputation among his prosocial peers. His acknowledgment of the present offending and expression of remorse indicate he wishes to pay his debt to society. 14. Mr Butler committed the present offence in the midst and wake of a series of life events that, together, would generate turmoil for most people. Such a cascade of events go some way to indicating how Mr Butler could engage in such a departure from his established pattern of law-abiding behaviour."
6. At the proceedings on sentence, the same submission was put orally in this way: "Moving onto his circumstances, your Honour. Your Honour knows from both the report of the psychologist, the character reference of Mr Sualayan (sic), I think it was, and also the agreed facts referring to the butcher shop business, that Mr Butler was a butcher; he left school after completing year 10 and then earned a trade certification in the butcher's trade; he then worked solidly to support himself and his family until he's involved himself in this offence. As I've submitted, your Honour, that very poor judgment occurred in a year where there was some turmoil in his life. I don't suggest that's an excuse; I don't suggest it reduces his moral culpability, your Honour; but it is relevant, in my submission, to assessing his rehabilitation prospects, assessing his reoffending risk, and trying to understand how it is that a man with good character, to his benefit, and family commitment and work history, how he could end up deciding to take this opportunity to earn money unlawfully in this way." (Emphasis added.)
7. The Crown did not cavil with the submission (either in its written submissions or orally) that the applicant had good prospects of rehabilitation and was a low risk of reoffending
8. It was submitted on behalf of the applicant that his role was less than that of DM. Reliance was placed on the sad loss of his grandmother who had raised him after his parents separated when he was four years old, the breakdown of his relationship with his first wife and his business going into receivership.
9. As will be seen below, the co-offender DM presented a strong subjective case including that he suffered a childhood of deprivation: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy"). In that regard, the following exchange took place between the applicant's counsel and the sentencing judge during the proceedings on sentence on the question of parity: "HIS HONOUR: It may give rise to an interesting challenge as to whether if I found a lower role that would be sufficient to represent the level of allowance I might make for DM in terms of Bugmy. MOEN: Yes, your Honour. It's not an easy point, in my submission. HIS HONOUR: It wouldn't be the first time that a person found to have the lesser level of involvement received the greater sentence because of a less compelling subjective case. MOEN: Indeed, your Honour. In my submission, if ultimately the result became one where my client has to do time in full-time custody whereas DM has an opportunity to serve his time under an ICO, that might then in those circumstances enliven parity concerns about his sense of grievance, justified or not, but that would be whether the issue arises. Your Honour, those are the submissions I have noted to make in addition to what I provided in writing. …"

Remarks on sentence

1. The remarks on sentence ("ROS") are 43 pages long. The facts are set out at ROS 1-14. DM's subjective case is summarised at 14-17. Danielle Butler's subjective case is summarised at ROS 20-21 and at ROS 21-22 his Honour noted the factors relevant to CC, who he had already sentenced by that time. The applicant's subjective case was summarised by his Honour at ROS 17-20 as follows: "In relation to Damien Butler, for the periods over which his offending conduct extended, including what I might describe as the 'inactive phase' where his offending was constituted by continuing to suffer the presence of the counterfeit goods and his premises, he was aged between 28 and 30. He has only a limited record of any interaction with the Criminal Justice System, consisting of a fine and disqualification for speeding by more than 45 km over the limit in 2009 and in 2010 he received a related s 9 Bond for driving whilst disqualified and for driving with the middle range PCA, also on the same occasion. In those instances, he received a fine and a further disqualification. Notwithstanding that, there is a level of seriousness in those offences. They do not inform the offenders (sic) conduct in the present offending, they also do not represent any propensity for criminal offending. I find that Damien Butler is otherwise a person who's character is inconsistent with the aspect of criminality in a hearing (sic), in his persistent offending now before the court. The subjective case of Damien Butler includes a report under the hand of Ms Julie Dombrovskis (sic), Psychologist, dated 23 March 2022. I note in passing that no Sentence Assessment Report was obtained or sought in his case. As to Ms Dombrovskis (sic) report, apart from giving an account of his financial motivations, in agreeing to participate in the offending and expressing what I accept is a small, probably not as genuine and deep shame, the offender expressed regret for his recklessness in the damage he had occasioned to his family and to the community. Those matters apart, the report indicates no psychological pathology or other disorder that would provide an explanation for offending that is plainly at odds with Butler's prior good character. His personal background, I regard as recorded in uncontroversial terms in history given to Ms Dombrovskis (sic), that background, I might also describe as unremarkable. He was raised in the Mount Druitt area primarily by his maternal grandparents as a consequence of the separation of his parents when he was aged four. Both his grandparents are deceased. His offending has led to a very distressing degree of estrangement from his mother who has rejected any further contact with him. He retains some support from his sisters, but only has occasional contact with them. He is a person who has worked since adolescence. He remains in continued employment as a butcher, as I am being informed today, now in a capacity of that of a franchisee rather than as formerly in a business that he has owned. He has, since completing his working apprenticeship always been in work of one kind or another commencing at the age of 15. His current employment has only been for the last 12 months as of the date of Ms Dombrovskis (sic) report. His former employer terminated his contract in 2020 upon becoming aware of the matters now before the court. Damien Butler has continuing contact with three children by his previous marriage. The nature of the relationship with his former wife is indicated by her willingness to provide a reference that is now before the court. Further, it is consistent with arrangements whereby the children regularly stay with him and his wife. I note the 'not' inappropriate observations by Ms Dombrovskis (sic) to the effect that imprisonment will 'have little rehabilitative benefit' as the offender has [no] criminogenic needs. That does not gain say other requirements of the court when considering if a sentence of full-time imprisonment and of what extent should be imposed. I have noted the two references tendered on Damien Butler's behalf. In each case, from members of the community who have known him well and who are surprised by his fall from grace, as a person of otherwise good moral character. One of the referees is Mr Narian, he has known Butler since 2016, he speaks highly of Butler's character in his reference dated 1 April 2022. That reference also indicates what appears to be genuine puzzlement as to the offending. Mr Narian remarks that he is quite sure 'that there may be mitigating circumstances' for the offending, that he clearly regards is completely out of character for Butler. Also, and with considerable force, is the reference of Butler's former wife Natasha Maskall dated 30 March 2022. It confirms Butler's continued role in raising their two sons. She also raises an aspect of unavoidable impact in the event of Butler being imprisoned. I note that matters of that kind are, pursuant to the Law of the Commonwealth, available for consideration in the case of both Butler's. So much although clear in statute, has recently been confirmed by the Court of Criminal appeal when examining the application of s 16(a)2(p) of the Crimes Act, and it relates to the relevance of the fact of hardship to family independence arising from the imprisonment of an offender, see Totaan v The Queen [2022] NSWCCA 75. In particular, the court has affirmed the effect of the statutory provision that 'resultant hardship need not be, as has sometimes been assumed in error. Hardship to an exceptional degree as would be the case if effective, according only to Common Law'. In the present instance of that matter, may not loom as particular compelling, but it is a matter that I nonetheless take into account when apply in the assessment of what might be an appropriate sentence for both Damien and Danielle Butler." (Emphasis added.)
2. After considering the three offender's subjective cases, his Honour returned to consider DM's subjective case, again, in significantly more detail over another ten pages: ROS 22-35. It is not practical to extract those portions of the ROS in full, but they can be summarised as follows (listed in the same order as they appear in the ROS): 1. DM had no dependants; 2. DM had little family support; 3. At the time of the offending DM was aged between 25 and 26; 4. DM has indications of remarkable resilience notwithstanding his background of hardship; 5. DM had a business selling products online; 6. DM's sister died in 2017 and his offending was "a distraction from his grief" which over time became an addiction that gave him feeling of "euphoria". His "mental well-being" and unresolved grief in relation to his sister were connected to his offending; 7. DM was diagnosed with anxiety and depression in 2013; 8. DM's relationship with CC (his former psychologist) was a "toxic" one; 9. DM identified poor decision-making when in the company of antisocial peers (who he did not identify); 10. DM identified a financial impact of his conduct upon victims due to his legal costs; 11. DM had earlier had an addiction to painkillers; 12. DM was assessed at being of low-medium risk of reoffending; 13. Despite his background that strongly indicated hardship, his education and career achievements indicated "remarkable resilience"; 14. DM was the first person of Indigenous background to obtain a position with Google Australia in November 2018; 15. DM was awarded a degree in Business and Commerce by the University of Western Sydney in April 2020; 16. DM had no criminal history; 17. DM's affirmative case of good character went "well beyond a commonly made finding on the simple basis that there is absence of prior convictions"; 18. DM did not give evidence but wrote a letter of apology to the court - his Honour was satisfied that it articulated a degree of insight and awareness of the harm he had done as well as the loss of his status in the community. He had also lost his relationship with his partner (another woman; not CC) who terminated their pregnancy due to the stresses of his court proceedings; 19. DM was proud of his identity as a member of the Darug people; 20. Letters from friends noted his expressions of remorse and regret; 21. DM was someone who had hitherto found respect from the Aboriginal community; 22. DM has the capacity to be a positive mentor and role model; 23. DM had assisted his nephew in securing a scholarship to a private Catholic school and inspiring him by his work ethic; 24. DM had worked as a volunteer in an Aboriginal corporation; 25. DM was committed to other charities including the Salvation Army; 26. DM's brother gave evidence as to DM's family history. Their mother was Indigenous, but their father was not, and their mother's family rejected them on this basis. They had a half sister who died as a baby; 27. DM had another sister who died as an adult alone in circumstances where her body was not found for weeks until she was decomposing; 28. DM had a traumatic upbringing. He was fostered out for most of the time until he was 13 years old but returned to the dysfunctional family home on occasions; 29. DM's parents were illicit drug users, and his mother would consume "ice"; 30. Both DM and his brother were diagnosed with ADHD as children, but the parents would take their prescription medication from him; 31. Food would be withdrawn by their mother as punishment; 32. DM did not learn of his Aboriginality until he was a teenager; 33. Their father passed away in 2012; 34. DM had been impacted by aspects of the "very significant and foundational hardship in his upbringing"; 35. DM experienced persistent insecurity as a child in his family home because he was exposed to parental drug use and both actual and threatened family violence as his father had a propensity to produce and threaten them with a firearm; 36. DM left home at 15 and moved in with a teacher's aid; 37. DM now alleges that his deceased sister sexually assaulted him when he was a child between the ages of four and six; 38. DM was cared for by a foster family until he was 13 who took physical care of him but, in DM's opinion, they regarded foster children as trophies; 39. DM commenced counselling with CC when he was 19 and they commenced an intimate relationship which was not appropriate; 40. DM was introduced to alcohol at the age of 15 but he has no problems with alcohol; 41. DM commenced using cannabis when he was 17 to 19 but ceased to do so as he started having panic attacks. He took Valium whilst at university and was self-medicating; 42. In 2019, DM suffered an ACL injury which led to reliance on OxyContin which he abused until July 2019; 43. DM has suffered considerable weight gain since arrested due to anxiety; 44. DM has been diagnosed with a serious manifestation of sleep apnoea; 45. The expert evidence was to the effect that DM has no abnormality of judgment but suffered from extremely severe depression and anxiety in the lead up to the offending. The impact of the death of his sister had an impact on him and was the catalyst for his downfall; 46. His Honour was satisfied that DM's sister's death was a factor operating on his judgment but that DM knew what he was doing, and he persisted with it and employed sophisticated steps to obscure his activities and secure the counterfeit character of the satchels; 47. DM's relationship with CC was clinically and ethically problematic but was not a mitigating factor; 48. DM's background activates the criteria arising in Bugmy. His Honour was satisfied that the underlying factor of disadvantage impacted adversely in the failure to apply moral restraint in judgments that should otherwise have been made by an offender not burdened by that background; 49. His Honour said this (at ROS 32): "Otherwise, the offender's intellect and education indicated to him the clear illegality in his clearly enthusiastic commissioning of the manufacture, importation and marketing of the counterfeit envelopes. The steps taken by him in utilising the required mechanisms included the use of accounts of CC and of the Butlers for related transactions and in storing the counterfeit goods. These were all methods that both separated the activities from the offender and tended to disguise the false nature of the goods. This was also done by use of the quite artful fiction of the goods being somehow the happy outcome of an insolvency. These actions bespeak skill, application and deliberation over an extended period. Put shortly, although not acting alone, there would have been no joint criminal enterprise but for the conception driven by DM's ambitions to pursue an unlawful scheme that he also orchestrated. Those factors bear upon the considerations pursuant to s 16(A)(2) of the Crimes Act as to the acts of the offender DM extending over a period of 1 year and 1 month." 1. His Honour observed that he was struck by the profound level of tension between the requirements of general deterrence in recognition of factors all too commonly encountered by Indigenous persons who come before the courts. His Honour was satisfied that this was a case where real disadvantage has been established; 2. His Honour then observed this in relation to DM (ROS 35): "I have indeed found it tragic that as a promising young Indigenous man, with the apparent talent to advance himself in a number of ways, including in business or any other field for which his intellect and education might fit him, this offender could well have been a shining example to others of what is possible. He may indeed, if he draws his own daily personal resources, prove a shining example of what is possible upon rehabilitation. Unfortunately, he cannot avoid punishment. Arising from judgements that were so flawed that for an extended period, he engaged in serious offending. It is somewhat to his credit that he would appear to have made a decision to cease the act of offending. That is the reason for the shorter range nominated as to his offending as against that averred in the case of the Butlers who continue to possess the counterfeit."
3. His Honour then considered DM's second offence from ROS 34-37. His conclusion in that regard was as follows: "Upon consideration of the minimum level of effective general deterrence that should apply to an offence that frustrates investigation, I have come to the conclusion that some minimal degree of accumulation would be appropriate in the event (sic) of a sentence of imprisonment were to be imposed. It will be clear that I have given considerable weight to the powerful subjective case that [DM] has presented. Notwithstanding that, as he is entitled, he has chosen not give evidence. He otherwise has impressed as a person, who having achieved a great deal against a background of adversity, now fears that he will be permanently defined and overshadowed by his present offending conduct. A Court can only trust that the resources that he is showing to date in overcoming adversity, including his intellect will not permit that to happen."
4. After his Honour imposed the sentence on DM outlined above, he went on to sentence the applicant. In doing so he observed the following, relevant to the question of parity: "I have considered the offending of Damien Butler in terms of his also active in knowing participation in the joint criminal enterprise. Although I am satisfied that he would not have engaged upon the offending but for his association with [DM], I find that he also, as his wife indeed, concedes was driven by degree of greed. In his own case, he makes no denial of this. He does not have as strong a subjective case as [DM] and I regard his overall criminality as being of a somewhat lesser level, as being largely directed by [DM]. In all the circumstances, including those personal to him, and avoidance of what I would otherwise regard as a justifiable sense of grievance, those considerations support a moderation of sentence to be opposed upon him. The outcome of those considerations merits a sentence also of no less than 2 years and 3 months from today, notwithstanding the distinguishing feature that he has committed a single, rather than two, offences. I find that in his case, a factor of general deterrence in particular requires also that no sentence other than one of imprisonment meets the requirements of particular of general deterence. Further, that for the same purposes, full-time in prison it is required. He also is convicted and sentenced to a term of 2 years and 3 months, which is to expire on 13 September 2024. In his case, also, he will be released, pursuant to recognizance release order, from 13 August 2023 conditional upon being of good behaviour and to forfeit the sum of $1,000 in default thereof."

Ground 1: The sentencing judge failed to assess the applicant's prospects of rehabilitation and risk of reoffending

Applicant's submissions

1. Reliance was placed on the submissions made to the sentencing judge as to the applicant's prospects of rehabilitation extracted above.
2. It was further submitted that although the sentencing judge addressed the prospects of DM's rehabilitation, he made no such assessment in relation to the applicant. The only aspect of rehabilitation that his Honour did note was that there might be little rehabilitative benefit from imprisonment because of his minimal criminogenic treatment needs (as per the psychological report that was tendered in the applicant's case).
3. The applicant relied upon a number of authorities concerned with the importance of taking rehabilitation into account: Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 at [98]-[100]; Vartzokas v Zanker (1989) 51 SASR 277 at 279; Pogson v R (2012) 82 NSWLR 60; [2012] NSWCCA 225 at [123]; R v Boughen; R v Cameron (2012) 215 A Crim R 476; [2012] NSWCCA 17; R v Agius; R v Zerafa (2012) 87 ATR 528; [2012] NSWSC 978, and Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [435].
4. It was further submitted that the goal of rehabilitation tends to support a less severe punishment (R v Groombridge, unreported, 30 September 1990 NSW Court of Criminal Appeal) and in some cases is a "step down" in the hierarchy of sentencing options (see R v SBR [2012] NSWCCA 233 at [3]; R v Dowel; Ex parte Attorney-General (Qld) [2013] QCA 8 at [26]).
5. It was submitted that a proper assessment of the applicant's future prospects and risk of reoffending would have been material in his case; that the applicant had a strong history of employment and pro-social factors in his favour, including a young family; that his criminal history was negligible and did not operate to deprive him of a finding that he was a person of prior good character; that he had expressed some remorse; that his offending occurred in the context of financial distress and was only partly attributable to "a degree of greed"; and that it would have been open to find that he had good prospects and was unlikely to reoffend.

Crown submissions

1. The Crown submitted that the sentencing judge found that the applicant's subjective background was not as strong as DM's, who had a "powerful subjective case".
2. It was contended that the sentencing judge made other findings in relation to the applicant's subjective case. They were that the applicant had "a small, probably a not as genuine and deep shame"; that he expressed regret for his recklessness and the damage he had occasioned to his family and to the community"; that he had no psychological disorder that would provide an explanation for his offending; that the offending was in contrast with his prior good character; and that his personal background was unremarkable, noting that he was raised by his maternal grandparents when his parents separated when he was four years old.
3. It was further submitted that, when assessing the applicant's future prospects and rehabilitation, the sentencing judge found that the evidence of his rehabilitation was not strong compared to the finding of strong evidence in relation to DM. The sentencing judge referred to the psychologist's observations that imprisonment would not be rehabilitative for the applicant as well as her opinion that imprisonment would "have little rehabilitative benefit" given the applicant had no criminogenic needs.
4. In conclusion, it was contended that the applicant's submission that he had good prospects of rehabilitation and reoffending was not supported by evidence and that the applicant does not now set out what finding should have been made other than that he had good prospects.

Consideration: Ground 1

1. The applicant stood for sentence for an offence contrary to the law of the Commonwealth. Accordingly, the relevant sentencing provisions are to be found in the Crimes Act 1914 (Cth). Section 16A(2)(n) of the Crimes Act provides that the sentencing court must take into account (if relevant and known to the court) a number of factors including the "prospect of rehabilitation of the person".
2. It could not be said that the applicant's prospects of rehabilitation were either irrelevant or not known to the court. On the facts in this case, evidence of the applicant's rehabilitation was relevant. In Pogson v R, McLellan CJ at CL and Johnson J (with whom R A Hulme and Button JJ agreed) observed at [102] that, "there is a question as to whether it can be said of any offender that they do not have any need for rehabilitation". This was in response to an observation by Simpson J (as her Honour then was) in R v Boughen; R v Cameron that rehabilitation may not be relevant if there are no prospects of rehabilitation. Their Honours went on to observe at [116]-[117]: "[116] The term 'rehabilitation' is used, as well, in s.16A(2) Crimes Act 1914 (Cth), which requires a sentencing court to take into account certain 'matters as are relevant and known to the court', including 'the prospect of rehabilitation of the person' (s.16A(2)(n)). Once again, the term 'rehabilitation' is not defined in the Crimes Act 1914 (Cth). [117] Although not defined by statute, the term 'rehabilitation' has a well-recognised content in the context of sentencing. Rehabilitation as an object of sentencing has not been confined to those who are regarded as being ill or predisposed to crime by environmental factors, including alcohol or drug abuse. A statement frequently cited with respect to the concept of rehabilitation is that of King CJ in Vartzokas v Zanker (1989) 51 SASR 277 at 279 where he said: 'The passage which I have quoted from the remarks of the learned sentencing magistrate discloses, in my opinion, an error of principle. It implies that rehabilitation or reform, as an object of sentencing, is confined to those who are in need of rehabilitation by reason of factors such as illness or being 'predisposed to such behaviour by his environment or his experiences of life', that is to say, to persons subject to some personal or social disadvantage. That involves a misconception of the meaning of rehabilitation and its place in the sentencing process. Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen. It is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background. It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing. The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community. Very often a person who is not disadvantaged and whose character has been formed by a good upbringing, but who has lapsed into criminal behaviour, will be a good subject for rehabilitative measures precisely because he possesses the physical and mental qualities and, by reason of his upbringing, the potential moral fibre to provide a sound basis for rehabilitation. It would be a great mistake to put considerations of rehabilitation aside in fashioning a sentence for such a person.'"
3. Not only was the question of rehabilitation relevant in the applicant's sentencing, there was also significant material known to the sentencing court relevant to such a finding. The applicant specifically addressed factors relevant to s 16A(2)(n) before the sentencing judge. Despite this, the sentencing judge made no finding as to whether the applicant had good prospects of rehabilitation or not, despite making positive findings in relation to the other co-offenders.
4. The Crown's response to this ground was somewhat unclear. In both written and oral submissions, it was submitted that the sentencing judge had made a finding of rehabilitation in the portion of his reasons where he noted that Ms Dombrowski's opinion was that incarceration would have no rehabilitative effect as he had no criminogenic needs. On the other hand, the Crown also submitted that a finding of good prospects of rehabilitation was not made because it was not supported by the evidence in the case. I do not accept either of these (conflicting) submissions.
5. I am not satisfied that the reference to Ms Dombrowski's report in the ROS extracted above in the italicised portion at [27] constitutes a positive finding by his Honour as to the applicant's prospects of rehabilitation. An acceptance of a psychologist's observation that the applicant's lack of criminogenic needs means that prison would serve no rehabilitative function is not the same as making a positive finding regarding his prospects of rehabilitation and risk of reoffending.
6. Nor am I satisfied that the Crown's alternative argument should be accepted. The submission in this court that the applicant did not have good prospects of rehabilitation was not the position taken by the Crown before the sentencing judge. It was put to his Honour both in writing and orally on behalf of the applicant that he did have good prospects of rehabilitation and the Crown did not cavil with that submission in the proceedings before his Honour. On that basis, I cannot accept that the failure by his Honour to make any positive finding as to prospects of rehabilitation can be explained by inferring that his Honour was not satisfied such a finding could be made. If his Honour did not propose to make such a finding then, as a matter of procedural fairness, it would be expected that he would have raised that with the applicant's counsel at the time given the lack of opposition to such a finding by the Crown below.
7. As for the Crown's reliance on the fact that the sentencing judge recounted a number of positive factors in the applicant's case, that is not an answer to the complaint that his Honour did not specifically address s 16A(2)(n) in his reasons. The fact that his Honour addressed other aspects of the applicant's subjective case is consistent with his obligation to do so under the other subsections of 16A(1) of the Crimes Act.
8. The remaining basis upon which I am satisfied that the sentencing judge omitted to have regard to the applicant's prospects of rehabilitation is the disproportionate time spent in the remarks on sentence considering the subjective case of the co-offender DM. Although it is to be accepted that DM had a strong subjective case, that does not fully explain the disproportionate time examining his subjective case as opposed to that of the applicant's. It is to be accepted that it can be difficult to sentence co-offenders at the same time when they have very different cases, but caution must be exercised to avoid a situation whereby in making detailed findings in relation to one offender, aspects of a co-offender's case are overlooked.
9. Not only was it a mandatory requirement for his Honour to consider the applicant's prospects of rehabilitation, a finding of good prospects of rehabilitation is an important factor in the instinctive synthesis required in arriving at the appropriate sentence in this matter.
10. I would uphold ground 1.
11. Given that error under ground 1 has been established, on one view it is not necessary to consider ground 2. That is because when error is established in the sentencing process the court is required to discharge the obligation imposed by s 6(3) of the Criminal Appeal Act by an independent exercise of the sentencing discretion: Kentwell v The Queen (2014) 252 CLR; [2014] HCA 37 at [43]. Despite this, given the fact that the parity principle is a relevant consideration on re-sentence, I propose to go on to consider ground 2 as well.

Ground 2: The applicant has a justifiable sense of grievance in relation to the sentence imposed upon him as compared with the sentence imposed upon DM

Applicant's submissions

1. With respect to this ground the applicant relied on the principles in Fenech v R [2018] NSWCCA 160 enunciated by R A Hulme J (with whom (Beazley P and Button J agreed) at [29]-[33]. The applicant also relied on what was said by French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31]-[32].
2. With respect to the sentencing judge's findings in relation to DM, it was submitted that they tended towards him receiving a higher sentence than the applicant and certainly not a lesser one. I have considered those factors in my consideration below.
3. It was also submitted that the sentencing judge made a significant number of favourable findings about the applicant's subjective case relevant to the question of parity. I have considered these factors my consideration below as well.
4. The applicant argued that even though the sentencing judge had regard to parity and the different subjective and objective circumstances with respect to the applicant and DM, his sentencing discretion miscarried, and the sentence imposed was plainly unjust and unreasonable.
5. It was contended that the starting point of 3 years imprisonment for the applicant was excessive when compared to the criminality; that the applicant was sentenced to 2 years and 3 months after a discount of 25% whereas DM received a 2 year sentence for the same offence; and that the applicant was sentenced for a single offence as opposed to DM's two offences with the first one attracting a maximum penalty of 5 years imprisonment and the second one 10 years imprisonment.

Crown submissions

1. The Crown submitted that the intervention of an appellate court would be warranted only if it was not open to the sentencing judge to differentiate between the co-offenders: Lloyd v R [2017] NSWCCA 303 at [96]-[97].
2. It was submitted that the sentencing judge accepted that the conduct of each offender was "distinct and different". Further, although the sentencing judge found that the applicant was subordinate to DM, he also found that the applicant played a significant role in the enterprise.
3. Although the Crown accepted that his Honour found that the applicant would not have been involved but for the association with DM, his Honour also considered that he was "driven by a degree of greed". Significantly, his Honour was satisfied that the applicant did not have as strong a subjective case as DM.
4. It was submitted that with respect to the differences in the sentences between the applicant and DM (a starting point of 3 years for the applicant and 2 years and 8 months for DM) an explanation could be found in the exchange the sentencing judge had with the applicant's counsel during his oral submissions: extracted above at [26].
5. It was submitted that the same sentencing judge sentenced all of the offenders and was aware of the differences between the applicant and DM. It was his Honour's express intention that they both be released after the same period on an RRO.
6. Further, DM's additional offence had to be considered as part of the totality of the sentence imposed.

Consideration: Ground 2

1. The principles as to how the "parity principle" in sentencing is to be applied are well known. The High Court has stated them in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, and Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49.
2. In Postiglione v The Queen, Dawson and Gaudron JJ observed the following at 301: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them: in Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 at 610-611 per Mason J. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated."
3. As Gibbs CJ earlier observed in Lowe v The Queen (at 610), "the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done." The disparity complained of must be "marked" (Lowe v The Queen at 610, Green v The Queen at [31]), "unjustified" (Green v The Queen at [32]), or "manifest" (Lowe v The Queen at 613) to warrant appellate intervention.
4. The application of the parity principle does not involve a judgment about the "feelings" of the person complaining of disparity; the test is an objective one: Postiglione v The Queen at 323. A court may reduce a sentence not in itself manifestly excessive "in order to avoid a marked disparity with a sentence imposed on a co-offender": Green v The Queen at [31].
5. In the present case, all offenders were sentenced by the same sentencing judge. The Crown relied upon this fact in support of its contention that no error is disclosed under this ground. This is because when the same judge hears all matters simultaneously, " … [he or she] will be in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way:" Huckstadt v R [2016] NSWCCA 22 per Button J at [90] (with whom Johnson and Fagan JJ agreed) applied in Usher v R [2016] NSWCCA 276 at [73]. Similarly, in Tuivaga v R [2015] NSWCCA 145, Hoeben CJ at CL (with whom R A Hulme and Wilson JJ agreed) observed at [55]-[56]: "[55] It is of significance that the same judge sentenced both the applicant and Barnes. He was fully cognisant of their moral culpability and of their subjective cases. Specifically, his Honour was fully aware of the difference in their subjective cases and he reflected that difference by a reduction of 6 months in the non-parole period of imprisonment to be served by the applicant. [56] In such circumstances, where the primary judge has recognised the importance of the parity principle and has given effect to it, this Court has said that it will be cautious and not overly willing to intervene. Disparity which leads to appellate intervention must be 'gross, marked or glaring' (Tan v R [2014] NSWCCA 96 at [39])."
6. The nub of the question for determination is that posed by R A Hulme J (with whom Payne JA and Garling J agreed) in Lloyd v R at [97]: was the differentiation made by the judge one that was open to [him] in the exercise of [his] discretion?
7. The sentencing judge was satisfied that DM was the one who planned and initiated the scheme; that the applicant was his subordinate whose criminality was largely directed by DM; that the applicant would not have been involved had it not been for DM; that DM became involved 3 months after the scheme was initiated; and that the applicant's criminality after May 2019 was passive in that he was simply storing the items. There can be no doubt that although the applicant's criminality was serious, the criminality of DM was objectively greater given that he had designed and orchestrated it and directed the co-offenders. His Honour was satisfied that the applicant's criminality was less than that of DM.
8. Despite the findings made by his Honour as to their respective roles, the applicant received a longer term of imprisonment than DM.
9. It is to be accepted that DM had a very powerful subjective case. I have summarised it in some detail above. But the applicant still presented with a positive subjective case. This is not a case where one co-offender presented a positive case and the other did not. The question is simply one of degree. The applicant had a very limited criminal history which his Honour was satisfied did not inform the present offending and did not represent any propensity for criminal offending. His character was inconsistent with the criminality that was before the court, he had expressed some regret, his mother rejected any further contact with him as a result of the offending, he had a history of employment and had been continually employed since the age of 15, and his imprisonment would cause some hardship to his family and four children.
10. I have already found under ground 1 that the sentencing judge was so swayed by the strong subjective case of DM that he failed to make findings as to the applicant's prospects of rehabilitation and likelihood of reoffending. But, like DM, he had good prospects and was unlikely to reoffend.
11. It is to be accepted that putting powerful evidence before a sentencing court of a childhood of profound deprivation may well significantly ameliorate the sentence that would otherwise have been imposed. Despite this, as the High Court held in Bugmy at [44], an offender's deprived background does not have "the same (mitigatory) relevance for all of the purposes of punishment". In DM's case, it was certainly well open for the sentencing judge to ameliorate DM's sentence on the basis of his childhood deprivation and other aspects of his subjective case.
12. There is nothing wrong in principle with one co-offender's subjective case being so powerful that a lower sentence is appropriate even though his or her criminality as higher. But in the applicant's case, having regard to all of the relative objective and subjective factors as between this applicant and DM, I am satisfied that the applicant has established, objectively, the basis for a justifiable sense of grievance for receiving a sentence higher than that of DM when the latter was the instigator of the offending behaviour.
13. I am satisfied that ground 2 has been established as well.

Re-sentence

1. I have already set out the relevant objective and subjective factors pertinent to the re-sentencing of the applicant in some detail above. In addition, the applicant relied upon his affidavit affirmed on 1 March 2023 in the event of re-sentence.
2. The applicant has completed a number of programs in custody: CSI Workplace Health & Safety; Education Employment Planning; Health Survival Tips; VTP-business; and KirkConnell Peer Mentor Program. He has worked in the kitchen as a clerk since October 2022; he has had difficulty moving from classification C2 to C3 because of his pending appeal, a regrettable fact to which I refer further below. He has reconnected with his mother with whom he was previously estranged. He has not had any in-person contact with his children since his incarceration. He feels bad about not being able to help their mother with their financial needs. He had visits cancelled due to COVID-19 restrictions. He was in SMAP due to the media around his offences and because of his mother's employment but he frankly conceded that he has not suffered any real restrictions due to this. He intends to live with his mother when he is released and recommences work as a butcher.
3. An affidavit was also provided by the applicant's solicitor, Janet Witmer, affirmed on 22 February 2023. She annexed to her affidavit extracts from the applicant's case management file showing that he is working and undertaking programs in custody and is well thought of. Significantly, she deposed to her correspondence with Corrective Services NSW in relation to the issue of the applicant's classification.
4. Section 6(2) of the Crimes (Administration of Sentences) Act 1999 (NSW) provides as follows: (2) The governor may direct a convicted inmate, or such classes or groups of convicted inmates as the Commissioner may from time to time determine, to carry out community service work, or any work for Corrective Services NSW or a public or local authority-- (a) within the correctional centre in which the inmate is imprisoned, or (b) within the correctional complex in which the inmate is imprisoned but outside the correctional centre, or (c) outside the correctional complex in which the inmate is imprisoned.
5. Ms Witmer deposed that although the applicant was otherwise eligible for such an order to be made, he was told that he was unable to be approved for a "s 6(2) Off Complex" to be able to work outside the correctional complex because such approval was not given to inmates who had an appeal pending. Ms Witmer stated that in her experience such a practice used to exist but following negotiations between the Legal Aid Commission and Corrective Services the policy was changed so that a pending appeal by an inmate would not impede an inmate's classification.
6. Ms Witmer stated that the Corrective Services Handbook expressly provides that an applicant is not to be disadvantaged in that regard. Ms Witmer went on to state that she had spoken to a Security Officer at Kirkconnell Correctional Centre specifically about the applicant's classification and was told that it was his practice to refuse applications for a "s 6(2) Off Complex" to anybody with a pending appeal because he believed there was a risk that the sentence would be increased and that they therefore would be an increased risk of escape.
7. Ms Witmer further emailed the Director of Correctives Strategy and Executive Services in Corrective Services who informed her that the current arrangements would be reviewed. Regrettably, as she observed, any change would be too late for the applicant to benefit from.
8. Given that it is not the practice of this court to increase a sentence when an inmate seeks leave to appeal against the severity of their sentence, it is most regrettable that the applicant appears to have suffered as a result of a misunderstanding of the applicable policy by the relevant decision-maker in that regard.
9. Turning to the relevant factors for consideration in re-sentencing the applicant. I would adopt the findings of the sentencing judge, including the 25% discount for the early plea. In addition, I would find that the applicant had good prospects of rehabilitation. I would also find that he was remorseful and was not a risk of reoffending. He has a number of prosocial factors in his life.
10. Consistent with the position of the parties in this appeal, considerations of parity apply in relation to the sentence imposed on DM but less so in relation to the sentences imposed on Danielle Butler and CC.
11. In re-sentencing the applicant, I have not lost sight of the fact that the offending behaviour in this matter was serious. Australia Post was deprived of a significant amount of revenue by the actions of this applicant and his co-offenders. Despite this, the maximum penalty for the offence was 5 years imprisonment. The applicant pleaded guilty at an early opportunity and presented a strong subjective case. Significantly, the principles of equal justice require that the sentence to be imposed on the applicant must be considered against the sentence imposed on DM.
12. Having regard to the findings as to the relative seriousness of the offending as between the applicant and DM, I would impose the same sentence on him that was imposed on DM for the offence that was common to both of them but would order the applicant's release a month earlier.
13. Accordingly, I would propose the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed on the applicant by Judge Craigie SC on 14 June 2022 is quashed. In lieu thereof, the applicant is sentenced to a term of imprisonment of 2 years to commence on 14 June 2022 and expire on 13 June 2024. He is to be released pursuant to a recognisance release order on 13 May 2023 conditional upon him being of good behaviour and agreeing to forfeit the sum of $1,000 should he be in breach of that order.
14. YEHIA J: I agree with the proposed orders of N Adams J and with her Honour's reasons.

Endnote

1. DM disclosed during his proceedings on sentence that he was the subject of child sexual assault. Accordingly, the sentencing judge was satisfied that publication of his name was prohibited. This court will take the same approach

Amendments 28 April 2023 - Coversheet correction DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 April 2023