Ground two: There is a disparity between the sentence imposed upon the applicant and the sentences imposed upon his co-offender Forward, such as to leave the applicant with a legitimate sense of grievance.
- The applicant acknowledged the manifest differences between the cases of the applicant and that of Mr Forward. There were a number of matters of a subjective nature making it inevitable that Mr Forward would receive a less severe penalty both in terms of the individual sentences and in their total cumulative impact.
- Mr Forward was 20 years old at the time of the offences and had no prior offences on his criminal record. The applicant was a middle-aged man with an extensive record for cultivation of prohibited drugs. His record included:
1996 - cultivating a prohibited drug - sentenced to 9 months imprisonment to be served by periodic detention.
2002 - supply and cultivating prohibited drugs - sentenced to 3 years imprisonment with a non-parole period of 2 years.
2003 - cultivation of cannabis - sentenced to 4 years imprisonment with a non-parole period of 2 years.
2009 - cultivation of a prohibited plant - sentenced to imprisonment for 5 years and 3 months with a non-parole period of 3 years and 6 months.
- While the applicant was correct in submitting that he had no previous record for violence, the murder of Mr Munro was motivated by his desire to protect his business of cultivating a large commercial quantity of cannabis. The facts of the murder cannot be detached from his involvement in the criminal enterprise of cultivation and an understanding that, over a period of around twenty years, the applicant was involved, at least from time to time, in the illegal business of cultivating large quantities of illegal drugs.
- Mr Forward was a subordinate of the applicant in the cannabis cultivation. While the two offenders had a shared motive in avoiding detection of their involvement in the drug cultivation, the applicant was also motivated by a selfish desire to protect his financial interest in the cultivation business.
- Mr Forward also presented a strong personal case, including evidence that he suffered from "longstanding severe Crohn's disease". There were medical records and his mother gave evidence of the impact of the disease upon Mr Forward. A forensic psychiatrist, Dr Ellis, provided a report which diagnosed Mr Forward with a depressive illness and stated the opinion that his time in custody would be more onerous as a result of his medical and mental conditions.
- The applicant submitted that, even allowing for the significant differences between the offenders and their role in the two offences, the total effective sentences involve such disparity as to engender in him a justifiable sense of grievance.
- I accept the applicant's submission that it is relevant to consider the starting points in the two sentences even though (as acknowledged by Senior Counsel), the ultimate comparison for the purpose of determining this ground are the final sentences, including the period that each is required to serve in custody. [19] The difference in starting points for the murder sentences (that is, before the discounts were applied) - 40 years and 30 years - is substantial. When one factors in the accumulation in the applicant's case and the concurrency in Mr Forward's case, the differences in the sentences becomes more stark. It is not possible to make a true comparison between the notional starting points for the total sentences because (i) different discounts were applied to the sentences for the murder and the cultivation, (ii) the sentencing Judge (correctly) did not apply a discount to the total sentence but, rather, applied the discounts to the individual sentences and then made orders as to accumulation and concurrency. However, notionally, the starting point for the total sentence imposed on the applicant was a little more than 45 years while the starting point for the total sentence imposed on Mr Forward remains at 30 years. Again, I accept that these are truly notional figures but they are relevant and highlight the applicant's complaint.
- In terms of the final outcome, the applicant received a sentence of 28 years with a non-parole period of 22 years while Mr Forward was sentenced to 21 years with a non-parole period of 15 years and 5 months. That comparison is misleading unless one factors in the quality of the applicant's assistance and the fact that he received a 40% discount in relation to the murder while Mr Forward received only a 30% discount for that crime.
- One of the reasons for the marked disparity between the total sentences and total non-parole periods is that there was a four year accumulation of the two sentences imposed on the applicant while Mr Forward's sentences were ordered to be served wholly concurrently. Presumably as a result of the applicant's criminal history for cultivation offences, and Mr Forward's subordinate role in relation to the cultivation, there was no submission that the approach to accumulation and concurrency was itself erroneous. Nevertheless, it was contended that in combination with all other factors the resultant total sentences displayed the kind of marked disparity that left the applicant wearing "the badge of unfairness" and that he has a "justifiable sense of grievance". [20]
- In the course of the argument before this Court, the following exchange occurred:
BUTTON J: With parity, Mr Stratton seems to be saying, or perhaps one way of understanding what he's saying is well, each little step can be justified as it were, but still and all when one looks at the ultimate results, they're just too differing. What's your submission about that?
CINQUE: They're not, with respect. As I said in the written submissions, counsel for the applicant conceded that there would have to be some accumulation of the murder sentence on the sentence for the cannabis cultivation, and senior counsel for Mr Forward submitted that there shouldn't be any accumulation, and no issue was taken with that by any of the other parties. So in terms of the ultimate sentence imposed, that's a clear distinction.
And if one disregards that additional factor, the difference is 24 years' imprisonment with 18 years' non-parole period for the applicant, and 21 years' imprisonment with a non-parole period of 15 years and five months." [21]
- The High Court has emphasised that the issue of parity is an application of the fundamental principle of equal justice. In his frequently cited dissenting judgment in Lowe v The Queen, Mason J said at 610-611:
"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."
- Gibbs CJ said at 609:
"It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account."
- In Postiglione v The Queen, the High Court considered a case where "other things were not equal", but the judgments established that the principle requires that there be a "due proportion" between sentences in such cases. Dawson and Gaudron JJ said at 301-302:
"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 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. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. The different circumstances involved in this case, namely, the fact that Savvas was the principal organiser in both conspiracies and that Postiglione rendered significant assistance to police and prosecuting authorities, clearly require that Postiglione receive a markedly lesser sentence than that imposed on Savvas.
If regard is had solely to the head sentences - twenty-five years in the case of Savvas, eighteen years in Postiglione's case - the difference may fairly be regarded as reflecting their different roles in the conspiracies in respect of which they were convicted and Postiglione's subsequent co-operation with police and prosecuting authorities. However, the head sentence is but one component of the sentences. A proper comparison involves a consideration of all components." [Footnotes omitted.]
- This passage shows that the parity principle is not to be applied in an unduly technical way and that an appeal court must consider the practical impact of the sentences imposed on two offenders in determining whether the disparity between the sentences is justified. Similar sentiments emerge from the High Court's decision and judgments in Green & Quinn v The Queen. [22]
- It has been held that, in considering a case where the same sentencing judge imposed sentence on the two offenders, the Court should be "cautious and not overly willing to intervene". [23] Accepting that this reflects the usual deference that an intermediate appellate court must pay to the position of the sentencing judge, it does not relieve the Court from the responsibility of analysing the differences between the cases of the two offenders and determining whether the proportion between the sentences leaves the appellant with a justifiable sense of grievance.
- In written submissions, the respondent relied on the observations of Hoeben CJ at CL (R A Hulme and Wilson JJ agreeing) in Tuivaga v R:
"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])."
- In Tuivaga, Hoeben CJ at CL went on to cite with approval the following passage from the judgment of Latham J (Button J and Grove AJ agreeing) in Mammone v R: [24]
"45 … The imposition of different sentences does not, without more, raise 'equal justice' considerations. Moreover, a sense of grievance is only 'justifiable' or legitimate if the application of objective criteria compels the court to that conclusion. The age, background, criminal history and role in the offence of various offenders may justify some disparity: Green v The Queen ; Quinn v The Queen [2011] HCA 49 at [31].
46 In particular, as the majority in Green & Quinn make clear,
'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.'"
- The passage from Mammone v R is unremarkable - the question is whether any disparity or disproportion between the sentences is such as to engender a justifiable sense of grievance in the appellant or, put another way, whether the disparity offends principles of equal justice. However, I am not convinced that the application of epithets such as "gross" or "glaring" to the asserted disparity is a necessary part of the process of reasoning when an intermediate appellant court is called upon to determine a ground of appeal where disparity (or, more usually, a lack of due proportion between sentences imposed on associated offenders) is asserted. In Tan v The Queen, R A Hulme J (Leeming JA and Fullerton J agreeing) said:
"It is also pertinent to note that for there to be a justifiable sense of grievance the disparity must be 'gross', 'marked' or 'glaring'."
- R A Hulme J referred to the discussion by Howie J in England v R; Phanith v R [2009] NSWCCA 274. This is the case from which a line of authority requiring an applicant to establish "glaring" or "gross" or "marked" disparity appears to derive. In England & Phanith, Howie J at [62] referred (generally) to the fact that these terms "are used throughout the judgments in Lowe v The Queen". It is true that these adjectives were used liberally in those judgments. [25] However, none of the judgments in Lowe v The Queen suggested that there was a legal test, or forensic obstacle, by which an appellant was required to establish "gross" or "glaring" disparity. The only member of the majority who addressed the issue was Dawson J who appeared to reject the suggestion. His Honour said (omitting footnotes and citations) at 623 - 624:
"The view has been expressed in England that a court should not interfere unless the disparity is gross or glaring and the circumstances are 'most exceptional': see Stroud; Potter. The decisions in this country do not appear to be quite as restrictive as this but on any view the interference of a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice: see Pecora; Tisalandis."
- In England & Phanith, Howie J went on to say that the "no different approach was taken in Postiglione v The Queen". [26] However, the word "glaring" appears nowhere in the judgments in Postiglione v The Queen. The word "gross" appears three times; once by reference to the appellant's submission, [27] and twice in reference to whether the discount provided to the appellant represented a "gross violation of sentencing principles". [28]
- In the more recent case of Green & Quinn v The Queen, the word "glaring" does not appear in the judgment. Bell J employed the word "gross" on two occasions in her Honour's dissenting judgment. [29] The majority judgment (French CJ, Crennan and Kiefel JJ) referred to the question of whether the inadequacy of the sentence under comparison was "gross" or "an affront to the administration of justice". [30] In that somewhat different context, their Honours said:
"While such epithets have a visceral character which limits their utility, they are indicative of a qualitative judgment that the inadequacy of the sentences imposed is so marked that the need for its correction to maintain public confidence in the criminal justice system outweighs other considerations, including any resulting disparity with unchallenged sentences against a co-offender."
- In the present case the disparity between the sentences imposed on the murder charge was unquestionably "marked" and the disproportion between the notional starting points can properly be categorized as "glaring" or "gross". But that is not the question. The question is whether such a lack of proportion, or such marked disparity, is justified by the differences between the cases.
- Senior Counsel for the applicant acknowledged that the criminal history of the applicant, the other differences in the respective personal cases, the finding of special circumstances in Mr Forward's case and the subordinate role of Mr Forward in the cultivation offence justified a substantial difference in the sentences imposed on the two men. However, he maintained that the differences in their culpability for the murder did not justify the extent of the disparity and, when the four year accumulation in the applicant's case is taken into account, the result is that the applicant's sense of grievance is justified and the principle of equal justice is offended. Having considered all relevant differences between the cases, I accept this submission.
- The first thing to consider is the different factual bases upon which the two offenders were sentenced. Each sought to blame the other for being the instigator of the murder. Understandably, in view of the different evidence tendered in each case and the absence of sworn evidence from either offender, Fagan J was unable to resolve the dispute. In the course of his comprehensive and (with respect) highly cogent remarks on sentence his Honour set out six circumstances which increased the objective gravity of the murder offence and meant that it must attract "a relatively high sentence for each of Cameron and Forward":
"Objective seriousness of the murder
36 Murder is in every instance a most serious crime. The maximum penalty of life imprisonment and the long sentences which are commonly imposed reflect the high value which the law places upon human life. Several features of the killing of Jacob Munro increase its gravity and attract a relatively high sentence for each of Cameron and Forward. First, it was thoroughly premeditated, with a bush grave being dug over a week in advance of the killing. This was not a spontaneous, passionate or angry reaction to any situation. It was a coldly planned elimination. I find beyond reasonable doubt that the grave was not merely dug in order to be available for a possible contingency, which might never arise. Cameron and Forward were resolved upon Jacob Munro's death from the Sunday when they went to such considerable trouble to prepare the way for it.
37 Through his record of interview and by way of the history he recounted to his psychologist, Forward has asserted that he adhered to the plan with reluctance and out of apprehension for Cameron's reaction if he should withdraw. I cannot find on the balance of probabilities that his reservations were significant given that he had a full eight days after the grave was dug within which to reconsider before the knife attack was made. His conduct at the time speaks more forcefully than his words after the event. That a person of his age and background should be willing to be part of such a plan is surprising but on the evidence I cannot be satisfied that he was not willing.
38 Secondly, the purpose of the murder was to silence a potentially loose talking participant in the criminal cultivation activity. An abrasive, volatile and at times violent employee could, in the setting of a legitimate business, be worked around in any of a number of ways. His co-workers could continue to urge the principal who had hired him (Holder) to dismiss him. Alternatively they could make life so unpleasant for Munro as to drive him to resignation. They could leave the employment themselves. None of these solutions would work for the offenders because any of the alternatives would likely result in word getting out through Munro about the hydroponic cannabis operation. Jacob Munro was killed to enable the offenders to avoid detection of their illegal activity to date and, at least in Cameron's case, to enable continuation of the large-scale commercial production of the prohibited drug.
39 Thirdly, this may properly be regarded as a murder for financial gain from Cameron's point of view. Although he did not seek to take money or property directly from the victim, his purpose involved the continuance of the hydroponic cultivation enterprise and the derivation of unlawful profits from it. For the purpose of comparing the facts of this case with those upon which other murderers have been sentenced, this homicide was in principle similar to cases where a witness to an offence such as robbery has been murdered to help the murderer retain the proceeds of the original crime and avoid being brought to justice for it.
40 Fourthly, the murder was extremely brutal in the manner in which was carried out. A stabbing death such as this one is a savage, painful drawn out affair. It was particularly so because multiple blows were necessary to kill the victim. Jacob Munro died struggling for his life so far as he could whilst rendered largely helpless by the Taser shock administered by Cameron. With respect to Forward, I accept that the brutality and prolongation of the attack, involving 15 separate wounds, was not the product of innate savagery on his part but of his inexperience in violent struggles and his own fear and desperation once he had commenced.
41 Fifthly, the offenders acted callously towards relatives and friends of the deceased. His elimination left them to wonder whether or not he had died and if so for what reason and in what circumstances. They were left with no last remains to grieve over, to inter or to cremate.
42 Sixthly, the murder was committed in company. By s 21A(2)(e) of the Crimes (Sentencing Procedure) Act this is an aggravating feature which I must take into account. Other statutory aggravating features listed in s 21A(2) have already been considered in these remarks or are inapplicable. Some of the statutory factors are inherent in the crime of murder and cannot be separately considered without double counting, for example par (b) of s 21A(2)."
- With the exception of the third and fifth of those matters, each of those (aggravating) features applied equally to the applicant and to Mr Forward. As to the fifth matter, it was the applicant who was the first to admit that Mr Munro was dead, and it was the applicant who took the police to the body. In relation to the third matter - that the offence "may properly be regarded as a murder for financial gain from Cameron's point of view" - his Honour had already found beyond reasonable doubt that "Cameron's motive for his participation in the killing of Jacob Munro was primarily to avoid detection of the cannabis growing enterprise" and that "Forward had the same motive as Cameron". [31]
- Fagan J accepted on balance that Mr Forward "had some apprehension that once he had discussed with Cameron the plan to kill Munro he felt some pressure to go through with it lest he be perceived as a risk to Cameron" and that Mr Cameron may be capable of violence towards him. This was an important factor but there was no suggestion, or finding, that Mr Forward was acting under duress from Mr Cameron. Moreover, on the agreed position on appeal as to the state of the evidence tendered in the sentencing hearing, there was nothing in the evidence admitted in Mr Cameron's case that led to such a finding against him. In the course of the evidence given by Mr Forward's mother, there was a suggestion (following a question by the sentencing Judge) that he was threatened (although it was not clear by whom). [32] Immediately thereafter, the police officer in charge was recalled and confirmed that Mr Forward had not "at any time" suggested that he was "forced to take part in the murder". [33] Senior Counsel for Mr Forward specifically eschewed any reliance on duress but submitted his client may have "subjectively" felt fear. [34]
- The sentencing judge found at [44] that the plan to murder Mr Munro "would not have proceeded to implementation without [the applicant's] assent, leadership and direction." But equally his Honour found that Forward's involvement was critical:
"[45] For his part, Forward gave his assent to the plan and participated with his full share of the physical work. He helped dig the grave, he stabbed the victim and he took part in transporting the body by driving ahead to screen Cameron's car from police attention. So far as the evidence shows, [Forward] was the only one of the 3 who was prepared to carry out the final attack so that his involvement also was indispensable to the commission of the murder."
- His Honour found special circumstances in Mr Forward's case even though the two sentences were ordered to be served concurrently and the "statutory ratio" of 75% would have yielded a balance of term and possible parole period of 5 years and 3 months. His Honour expressed concern that the sentence not be a crushing one. His Honour did not express such a concern in the applicant's case, no doubt because of his superior role and criminal history. Nevertheless, the non-parole period imposed means that the applicant will not be eligible for release until he is in his mid-80s. Some might see that as a "crushing" outcome and the applicant relied (without objection from the respondent) on life expectancy statistics to submit (under ground 3): [35]
"There is almost exactly a fifty-fifty chance that the sentence imposed by his Honour will in fact effectively be a life sentence; that is the applicant will die in gaol."
- I will deal with this submission under ground 3 (manifest excess). However, I raise it in the context of the parity ground because it highlights what I consider to be a marked disparity between the sentences, and the approach taken by the sentencing judge. Allowing for the substantial differences between the circumstances of each offender and their different roles in the two offences, there is a lack of "due proportion" between the sentences and the applicant is entitled to feel, and is justifiably, aggrieved. [36] It may be that the applicant's case, as articulated by Button J in the passage of the transcript extracted above, [37] is that the steps that Fagan J took to distinguish between the cases were unimpeachable in themselves but that the final outcome is such that the sentence imposed "cannot be allowed to stand without it appearing that justice has not been done." [38]
- It may have been open to make Mr Forward's sentences wholly concurrent while ordering substantial accumulation in relation to precisely the same offences in the applicant's case. However, that is a significant difference in approach and has a substantial impact on the final sentencing outcome. It may also have been open to provide the applicant with a 40% discount for his plea and substantial assistance while reducing Mr Forward's sentence by 30% for his plea and relatively modest assistance. However, the 40% discount provided to the applicant was very much towards the bottom of the range given the extent and quality of the assistance. Finally, it may have been open to settle upon starting points for the murder of 30 and 40 years respectively in view of the differences between the cases. Again, as will be discussed under Ground 3, the 40 year starting point for the applicant is at the very top of the range. When effect is given to all of those matters in combination, the resultant sentences imposed on the two offenders lack a just and due proportion to one another.
- For those reasons, ground 2 should be upheld.
- Since preparing the draft of this judgment, I have read the judgments of Basten JA and Button J. Their Honours take very slightly different approaches to reach the same conclusion. I have considered the orders proposed by the majority and their Honours' reasons for reaching a different conclusion (to mine) as to this ground. With obvious respect, I disagree with their Honour's conclusions and the reasons for those conclusions. Having reconsidered the issue in light of the opinions of the majority, I remain of the view that the disproportion or disparity between the total effective sentences imposed on the applicant and Mr Forward, and the impact of those sentences upon each of those men, offend principles of equal justice even taking into account the "concept of material difference" referred to by Basten JA at [3]. Further, and without wishing to overstep the role reserved for the "judicial dissenter" referred to by Sully J in R v BWT [39] , the orders proposed by the majority do not appear to take account of the fact that a further co-offender (Mr Zanker) remains to be sentenced and the observations of Dawson and Gaudron JJ in Postiglione v The Queen: [40]
"… the interests of justice require that, if an application for leave against sentence is to be heard and determined against an applicant before a co-accused is brought to trial, leave be refused, rather than that the appeal be dismissed."