Cutajar v R

Court of Criminal Appeal (NSW)|2020-08-31|Before: Hoeben CJ, Button J, Adams J

Solicitors: Legal Aid Commission of New South Wales (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/00245497 Decision under appeal Court or tribunal: District Court Date of Decision: 23 June 2017 Before: Madgwick ADCJ File Number(s): 2015/00245497

Judgment

HOEBEN CJ at CL: I agree with N Adams J and the orders which she proposes.
BUTTON J: I agree with N Adams J.
N ADAMS J: The applicant, Frank Cutajar, seeks leave under s 5(1) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Acting Judge Madgwick on 23 June 2017. He had pleaded guilty to manufacturing not less than the large commercial quantity of methamphetamine (15.98 kilograms), contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) ("DMTA"). That offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

Factual background

An Agreed Statement of Facts was tendered as part of Exhibit A on the applicant's proceedings on sentence and summarised by Acting Judge Madgwick in his Reasons ("Remarks on Sentence") as follows.
In late 2014, the applicant was the co-owner and occupier of a semi-rural property in the Badgery's Creek area. Police commenced surveillance of the property on 21 January 2015. In early May 2015, police took some video footage of the interior of a shed on the applicant's premises, which had a "site office" area. In it was located equipment for use in the manufacture of methylamphetamine.
On 24 June 2015, police surveillance recorded the applicant, Mr Ammar and another unknown person entering the shed. Mr Ammar and the applicant were recorded discussing the product and how it should be made. The exact words used by the men, as contained in the Agreed Facts for sentence for both the applicant and Mr Ammar, were as follows: 1. The two men discussed the quality of the drugs manufactured. Mr Ammar said, "my mate says it tastes like perfume" and the applicant replied, "smell like perfume to you". Mr Ammar later said "it's not oily"; 2. The applicant asked Mr Ammar, "what do you want me to do with that other shit my mate cooked?" Mr Ammar replied, "[y]eah, I'll work it out"; 3. Mr Ammar undertook to provide money to the applicant, "[i]f you wait till money come up from the west...I will give you some papers for it, alright?"
His Honour noted the following in his Remarks on Sentence: "…Amar [Ammar] spoke freely in a way which indicated that he was, as was said in the course of argument, at least a plenary agent for the disposition of the drug as manufactured in wholesale quantities, and in the course of which he indicated that he would give the prisoner some 'papers', being money, from the profit from a transaction that had occurred in 'the west'."
On 3 July 2015, another conversation was recorded in which Mr Ammar asked the applicant to find out how another drug manufacturer had made a product which he regarded as a superior product. On 7 July, another conversation was recorded in which Mr Ammar discussed the sealing of two bags of methylamphetamine as well as the general manufacturing process. The Agreed Facts disclose the following conversation. "Cutajar: 'Oh, you grab a bag and I'll throw them in...No man, it fits in here." Ammar: 'Eh?' Cutajar: 'Fits in here. You grab a bag. I'll bag 'em for ya...Fair?' Ammar: 'He wants this - he wants the oil and the [not transcribable]'. … Ammar: 'You want to make two bags for me?' … Cutajar: 'Well if you don't get rid of it now, who knows what else? It will drop again and then you will be losing more. But you got no choice. Ya gotta try and get rid of it, ya know? But fuckin' how ya pay a dollar for it? And it aint' goin fuckin' sky high in a day or two'."
On 8 July, the applicant and Mr Ammar again discussed prices. On 15 July, the applicant went into the site office area and left with a small white package of methylamphetamine. On 22 July, another conversation occurred which, according to his Honour, demonstrated that the applicant was acting as an "active storeman in relation to the drugs that were kept on the premises".
An unknown male entered the premises and asked what the applicant had. The applicant replied, "[t]hat little tub there, that's the one" and said that something else was "the export shit". He also said, "I sent him down to cancel the accounts...I was thinking to myself he wants ice, I fucking gave him two bags of ice..."
On 27 July 2015 and on 20 August 2015, another two conversations were recorded. In one, Mr Ammar commented that he had told a purchaser that the applicant did not want to keep working and that he might start with a new cook. There was also a conversation in some detail about the market and prices that Mr Ammar could obtain as well as the manufacturing process.
The applicant also commented that he was concerned about police involvement. The following portion of this conversation was recorded in the Agreed Facts for the applicant's sentencing, but not for Mr Ammar's sentencing: "Ammar: 'I write what profit...me and you make. I halve it. I put your profit here. Square here.' Cutajar: 'That's what he wants now?' Ammar: 'That s all.' Cutajar: 'What the fuck?' Ammar: '...I said, 'Listen man, I gotta push them for ya. I sort 'em out.' I said, 'Tomorrow if I'm going to cash in...what do I got to give ya?' I started laughing...I said, 'Listen man, here's the point ... I've still got fuckin' Frank to pay. I still owe the fuckin' guy for the raws' and he says, 'But, yeah, I took money from here, which you owed me ..' I looked at him, I said, 'Nah man, I took my paperwork ... what are you doing with a hundred G's [100 thousand dollars]? I gave you 85 litres of oil.' Cutajar: 'But then you start from there.' Ammar:'...I said, 'I know what I've picked up. I know what I've given ya.' I said, '85 kilos, 85 grand, whatever the fucking share'."
The applicant was arrested on 21 August 2015. As his Honour noted, he made "limited admissions". When the property was searched, over 30 packages of methylamphetamine ranging in weights between a few grams to nearly 3 kilograms were seized totalling 15.98 kilograms. 12.64 kilograms of the 15.98 kilograms of methylamphetamine seized were in crystal or powder form. There was also material which could have made approximately 500 grams more methylamphetamine.
A rifle in a prohibited category was also found, as was a silencer and a detachable magazine to suit a self-loading rifle.
Mr Ammar was arrested the same day. The surveillance footage identified him on the property on the following dates and for the following periods of time: 1. 24 June 2015 for seven minutes; 2. 3 July 2015 for 60 minutes; 3. 6 July 2015 for 45 minutes; 4. 8 July 2015 for 49 minutes; 5. 20 August 2015 for 1 hour and 49 minutes.

Proceedings on sentence

The applicant's proceedings on sentence were first listed before Judge Herbert on 24 February 2017. Her Honour ordered a Pre-Sentence Report and the matter was stood over for sentence before Judge Madgwick on 23 June 2017.
On behalf of the Crown the following documents was tendered on sentence: the indictment, Form 1, Agreed Facts, criminal history, custodial history and Pre-Sentence Report dated 10 April 2017. On behalf of the applicant, a report of Dr Olav Nielssen dated 29 March 2017, a report of Professor Stephen Woods dated 22 June 2017 and various medical reports from Justice Health were tendered. In addition, testimonials and statements relating to the applicant's character and aquarium business were tendered.
The applicant gave evidence at his proceedings on sentence. He outlined the family support available to him on his release from custody. He also gave evidence about his assets and capacity to pay a fine. A letter he had written was tendered and marked Exhibit 2.
The applicant gave evidence of the debt that he was in at the time of his arrest. He owed about half a million dollars on the property as well as a further $25,000 to the bank. He explained that he had fallen behind on payments when he met a woman and formed his first ever personal relationship. Unfortunately, she was drug-addicted and the applicant started using drugs as well. By the time of sentence, he suffered from depression and was receiving treatment in custody for it.
In cross-examination the applicant stated that he had been paid $5,000 about six or seven times for his work as a manufacturer and one time he received $20,000. He agreed that if had sold the property that he co-owned he could have got out of debt and still had about $200,000 available to him. He said that he had owned the gun before the amnesty in 1994 and had never handed it in.
The applicant confirmed that, despite a lack of capability at school, he had practical skills which meant that he had worked in a variety of jobs including an electrician's labourer, plumber's labourer, and in Bobcat and excavation work. He had also, for a time, run an importing business for saltwater aquarium fish.
He agreed that he was aware that some ice users became very violent.
In re-examination, the following exchange took place between the applicant and his Honour: "Q. What assistance did you get? A. On how to - how to - that's - that's...(not transcribable)... Q. Well somebody had to show you how to do it. A. That's correct, yes. Q. But once you'd been shown, were you the boss of the show? A. Not really, no. Q. Well, who else was in charge of the manufacture if it wasn't you? A. The other people. Just, I just went by instructions and that. Q. But the overhead conversations suggest that you were, at least, an equal partner in the show. A. No, that's not correct. Q. You were intending to continue the drug manufacture at the time you were arrested. Is that correct? A. Yes, just to finish off, to get my debts out of the way. Q. Look, you knew you were sitting on $1.6 million worth of ice. Is that right? A. Yes. Q. Your pressing debts were under $30,000. Is that right? A. Yes. Q. You're telling me - you want me to believe that you were going to get less than $30,000 for making it, storing it, running all the risks. Is that what you want - you're telling me? A. Well, I guess early on, I just, I didn't - I didn't know what - I got in, sell or made drugs or anything like that or nothing so, you know, I didn't - I didn't know the full cost of everything. Q. Look, you'd been in your own business. A. And that didn't go well because Q. You'd amassed real estate, you were not a baby, you knew there was a lot of money in drugs. Yes? A. I knew there was, yes, yes but I didn't get into Q. And you would've bargained for a pretty good return, wouldn't you? With the other people involved. A. Not really, I got used, really. Q. Pardon? A. I really, I virtually got used, took advantage of because they knew I'd - needed money." (Emphasis added.)

Remarks on sentence

After outlining the facts summarised above at [11]-[21], his Honour made some observations about the applicant's role in the overall manufacturing process. He was satisfied that the recorded conversations indicate that the applicant was more than a mere "unskilled storeman". In the 7 July conversation, for example, he seemed to be negotiating prices and indicating that he intended to keep manufacturing unless the "prices drop".
His Honour observed that manufacturing such a large quantity of drugs required a considerable amount of organisation, requiring funding, storage, finding an experienced cook and packaging of the finished product. He stated that there was no evidence that the applicant was involved in the overall financing of the operation. His Honour then commented: "Although he had educational and possibly intellectual deficits as a child which left him nearly illiterate, he was a very capable man practically; a capable jack of all trades if not an absolute master of any. For a man who had been treated as a slow learner he had done remarkably well in his life in a material sense. He was the part owner of the valuable property and when not engaged in the drug cooking was renovating the house or houses on the property, a task of which he was well capable. A friend had evidently judged him to be sufficiently capable in a general way as to be prepared to go into business with him. As many first business are, this was not successful, but he was a man in his forties, he had had a broad experience of life and he was far from being the desperate, strung out, penniless addict who so often falls into drug dealing and/or is trained for drug manufacture."
His Honour further noted that the applicant had assets available to him of not less than $200,000, which he could have liquidated and, thus, avoided engaging in criminal activity to discharge his debt. He stated: "In these circumstances a very strong inference arises that he would not have manufactured nor been in possession of such a large amount of drugs, which must have had a wholesale value of at least $1.5 million, except for a substantial and reasonably commensurate kind of reward. The idea that he would do all this and only benefit to the tune of something under $40,000 strikes me as exceptionally unlikely. And while his counsel has ably and valiantly argued that he was, in effect, on little more than wages, being constituted by working for a limited period to wipe out the drug and other debt, I do not accept that that was so. To the extent that that conflicts with his oral testimony, I disbelieve him in relation to that." (Emphasis added.)
When addressing the applicant's background, his Honour stated that, as a person with no previous convictions and from a "respectable" family, the applicant was entitled to be treated as a person of good character. He noted that, due to his relationship with a drug user, the applicant began to use drugs regularly as a relief from his anxieties (including his financial anxieties). As such, his "ordinary good sense" abandoned him and he became involved in crime.
His Honour assessed the applicant's prospects of rehabilitation as "remarkably bright". This was due to the support from his family and the fact that he had ensured semi-skilled work on his release. His Honour also classified the applicant's efforts in gaol as "outstanding", as he had made efforts to see psychologists, with delays of only a few days, and had undergone remedial education courses with a degree of success. His Honour noted that the applicant had done so despite being the subject of threats which had required him to be isolated within his cell at times.
As for remorse, his Honour accepted that the applicant felt shame and regret about the embarrassment to his family caused by his offending. However, his Honour did not find that the applicant had a broader sense of remorse about the effect of his offending on the community. He noted that no such finding was made in the Pre-Sentence Report or in the psychological reports tendered at sentence.
Given the applicant's age and health problems (morbid obesity), his Honour did not consider that specific deterrence should be a particularly important factor when sentencing. However, his Honour considered that the need for general deterrence was high given the "justifiable public outrage that a man of his age, not in poverty, not without social and material resources, would seek to bail himself out of money problems and also profit by engaging in drug manufacture on such a large scale over a substantial period".
His Honour then applied the discount of 25% for the applicant's early plea and found special circumstances on account of his mental health problems.
The issue of parity did not arise on the applicant's sentence because Mr Ammar had not been sentenced at that time.

Remarks on sentence - Mr Ammar

The proceedings on sentence for Mr Ammar came before Judge Townsden on 12 and 13 November 2018. There was a significant factual dispute about the specific amount of methylamphetamine that Mr Ammar was directly involved in and whether it could be proved beyond reasonable doubt that he was involved in the manufacture of the crystal methamphetamine.
Oral evidence was given by Dr Daniel Coghlan, who was a forensic chemist with the New South Wales Health Pathology at the Forensic and Analytical Science Service. Documentary evidence was also tendered, including a report of Professor Hibbert dated 18 July 2018. His Honour was required to make factual findings based on that evidence.
Mr Ammar was sentenced on 7 December 2018 by Judge Townsden.
His Honour re-stated the facts summarised above at [11]-[21]. His Honour noted that Mr Ammar appeared remorseful "for having contributed to ruining the lives of many people in the community". However, this was given less weight because Mr Ammar did not give oral evidence.
In terms of subjective circumstances, Mr Ammar was 42 years of age at the time and had a 20 year old child. Dr Kerri Eagle had provided a report for the Court which stated that Mr Ammar had a severe stimulant use disorder in remission in a controlled environment. Judge Townsden found that there were reasonable prospects of rehabilitation given Mr Ammar's ongoing family support, his letter to the Court, and also what was contained in the psychiatric report. He found that Mr Ammar was not a person of previous good character, having served a lengthy sentence for recklessly dealing with the proceeds of crime.
When Judge Townsden addressed the question of parity with the applicant, he first considered the comparative seriousness of the applicant's offending and that of Mr Ammar: "There is no dispute that the co-offender [Mr Cutajar] was the owner of the premises. There is also no dispute that of the total amount manufactured by the co‑offender 8 kilograms were located in the residential buildings of his property. The offender is not the subject of any charge in respect to this amount. There is also no dispute that para 31 of the statement of agreed facts lists prohibited drugs and other items found in the residential buildings belonging to the co-offender, which do not form part of the Crown case against this offender. According to the expert evidence of forensic chemist, Daniel Coghlan, ephedrine was being manufactured by refinement and methylamphetamine had been manufactured in the site office. According to the agreed facts the offender was seen on five occasions between 24 June and 20 August 2015; however, there is no evidence as to how long the manufacture of methylamphetamine had been taking place. It is conceded that the offender took part in the manufacture of not less than a large commercial quantity of methylamphetamine; however, it was submitted that the Court could not be satisfied that the offender took any steps in the manufacture of the crystalline methylamphetamine. It is conceded that the offender assisted in the refinement of ephedrine and assisted in converting methylamphetamine oil into methylamphetamine base."
On the basis of the evidence provided by Dr Coghlan and Professor Hibbert, his Honour could not be satisfied beyond reasonable doubt that the offender did in fact take part in the manufacture of the crystalline methylamphetamine on the applicant's property because there was a real possibility that the manufacture of crystalline methylamphetamine occurred before he was first recorded as attending the premises. As for parity, his Honour noted that: "In respect of the issue of parity the co-offender pleaded guilty to a significantly greater amount over a longer period. Moreover, I am satisfied the co-offender played a greater role. He was the owner of the premises and played a significantly greater role in the manufacture process. Considerations of parity, however, are not to be determined principally by the quantity of drugs. Nevertheless, the offender played a significant role in at least a part of the manufacture process which of course includes amongst other things the refinement of pseudoephedrine in the present context. The conversations clearly revealed his close interaction with the co‑offender, where he offers his physical assistance and advice. Substantial sums of money are also discussed between them. However, given the offender's lesser role, I would assess the gravity of the offending behaviour as well below the midrange but not towards the lower end of offences of this type." (Emphasis added.)
His Honour further indicated that specific and general deterrence were relevant factors when sentencing. He found special circumstances on the basis of Mr Ammar's guilty plea, remorse, and need for ongoing counselling.

The applicant's submissions

It was submitted that there was a disparity between the applicant's sentence and that imposed on Mr Ammar. Counsel noted that both men were sentenced under the same provision. It was acknowledged that a higher quantity of drugs was involved, but it was submitted that there was a "glaring" difference in terms of the starting point. It was submitted that this was erroneous given that both men were to be sentenced for their significant involvement in the manufacture of substantially more than a large commercial quantity of methylamphetamine.
In terms of their comparative subjective cases, the applicant submitted that both offenders were of a similar age, were found to have good prospects of rehabilitation and were found to be unlikely to reoffend. Mr Ammar had the benefit of a finding that he was remorseful, but this was given reduced weight. Furthermore, Mr Ammar had a prior conviction for a serious, perhaps related, offence as he had served a prison sentence for dealing with the proceeds of crime.
Furthermore, the applicant submitted that, if anything, he was in a subordinate position to Mr Ammar. This is because the Agreed Facts strongly supported the inference that Mr Ammar gave direction and instruction to the applicant in the manufacturing process.
The applicant submitted that the narrow focus in Mr Ammar's proceedings as to the amount of time he spent at the property distracted from the fact that there were no substantial differences between the criminality of the two men and, as such, no foundation for such different sentences.
It was further submitted that, apart from the different factual findings between the applicant and Mr Ammar, the applicant's subjective case was more favourable that Mr Ammar's. Also, despite the longer date range on the indictment for the applicant's offence rather than Mr Ammar's, in evidential terms and factual terms, "the offending conduct overlapped almost entirely as regards the two offenders".
It was noted that there was significant evidence before the sentencing judges that both men were committing the offences for a significant financial gain. As for the question of remorse, it was submitted that, although there was no finding that the applicant was "genuinely remorseful in a global sense", Judge Madgwick found that there was "some sense of remorse", as detailed above at [36].

Crown submissions

The Crown emphasised that the applicant was sentenced for manufacturing substantially more than Mr Ammar, with the applicant manufacturing 16 times the large commercial quantity and Mr Ammar manufacturing eight times the commercial quantity. Furthermore, on the available evidence, the applicant was engaged in illegal activities for a minimum of eight months and was continuously present at the property, whereas Mr Ammar's offence covered a period of two months when he was only visiting.
The Crown also submitted that the applicant's provision of the property was a significant aspect of the criminal enterprise, he was a "skilful cook" and he was the one storing the drugs. The applicant was also sentenced for an additional offence and was not found to be genuinely remorseful (unlike Mr Ammar).

Consideration

The principles pertaining to what has become known as the "parity principle" in sentencing 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. In Postiglione v The Queen Dawson and Gaudron JJ observed 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."
The disparity complained of must be "marked" (Lowe v The Queen at [3], 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. The application of the parity principle does not involve a judgment about the "feelings" of the person complaining of disparity with regard to a justified sense of grievance. The test is an objective one: Postiglione v The Queen at 323 per Gummow J.
There have been a significant number of decisions of this Court concerned with grounds of appeal alleging a breach of the parity principle. The principles are rarely in issue; in each case resolution of the ground involves this Court examining all of the subjective features of the applicant and that of the co-offender or co-offenders, the findings of the judge (if sentenced by the same judge) or judges (where sentenced by different judges) and determining whether the notion of "equal justice" has been violated in each case.
The nub of the applicant's argument is that he and the co-offender were equally involved in the criminal enterprise, and that, if anything, Mr Ammar's subjective case was less compelling than his because Mr Ammar had a prior criminal conviction. Despite this, the starting point of the applicant's head sentence (before the application of a 25% discount) was 14 years and 8 months, whereas the starting point of Mr Ammar's sentence was just below 7 years and 6 months (before the application of a 15% discount). The question is whether the difference in the sentences imposed can be explained by the different cases they presented on sentence to Judge Madgwick (the applicant), and Judge Townsden (Mr Ammar).
Turning first to the objective seriousness of the offending, Judge Madgwick described the applicant's offences as "a very serious crime, a very serious category of offence". On the other hand, Judge Townsden found that Mr Ammar's offending was "well below midrange but not towards the lower range".
Both the applicant and Mr Ammar were convicted under the same provision of the DMTA, although the applicant was charged with manufacture simpliciter, whereas Mr Ammar was charged with knowingly taking part in the manufacture.
The applicant was sentenced for his involvement in the manufacture of 15.98 kilograms of methylamphetamine, whereas Mr Ammar came to be sentenced for his involvement in the manufacture of 7.98 kilograms of methylamphetamine. This is a very significant difference in the factual basis upon which each stood to be sentenced.
The applicant pleaded guilty to manufacturing the 15.98 kilograms methamphetamine between 21 January 2015 and 20 August 2015. Mr Ammar pleaded guilty to knowingly take part in the manufacture of half that amount between the shorter date range of 24 June and 21 August 2015.
Although the applicant submitted on appeal that their criminality was similar, it is to be noted that, whereas the applicant, who lived at the property, was under covert physical and electronic surveillance from as early 22 January 2015, the first sighting of Mr Ammar was not until 24 June 2015. When police were covertly at the premises on 6 May 2015 they noticed "an overwhelming odour indicative that a manufacture process of prohibited drugs had recently taken place in the shed". This was a date prior to the involvement of Mr Ammar.
Although the applicant, as the owner of the property where the drugs were manufactured, was present at all times, Mr Ammar was only observed to be at the property on five occasions for the brief periods referred to above at [45].
The applicant was described as a "skilful cook" in respect of the manufacture as well as the "active storeman of the drugs". Judge Madgwick did not accept the applicant's version that he was merely cooking for others. Nor did he accept his evidence that he did not expect any significant return beyond what he had already been paid. His Honour found that the evidence was "inconsistent with the notion that he was but a narrowly constrained cook and passive guardian of the drugs with an absence of input into decision-making".
There was no issue taken in the proceedings before Judge Madgwick that the applicant manufactured the crystal methamphetamine. By comparison, the finding made by Judge Townsden was that Mr Ammar played a significant role in "a part of the manufacture process", as he assisted in the refinement of pseudoephedrine and in the conversion of methylamphetamine oil into methylamphetamine base. Despite this, Mr Ammar was sentenced on the basis that that "there was a real possibility that the manufacture of crystalline methylamphetamine may have occurred prior to the first occasion the offender attended the premises".
Having regard to these factors, I am unable to accept the applicant's submission that his criminality was about the same as that of Mr Ammar. The applicant was also sentenced for an additional serious offence to do with the firearm and two Form 1 offences, whereas Mr Ammar was only being sentenced for the manufacture offence.
Turning to the competing subjective cases: the applicant received a 25% discount for his early plea of guilty, whereas Mr Ammar only received a 15% discount.
Both men had similar findings in relation to "special circumstances" and received similar variations to the statutory ratio: s 44(2) of the Sentencing Act. The applicant's non-parole period was 63.64% of his overall sentence, whereas Mr Ammar's was 63.16%. Both men were of a similar age when they carried out the offending and both were found to have good prospects of rehabilitation.
The applicant was found to be motivated almost solely by the potential for financial gain. The wholesale value of the drugs was at least $1.5 million. Judge Madgwick rejected the applicant's evidence that his reward was to be something under $40,000. On the other hand, although Judge Townsden found that Mr Ammar was motivated by financial reward, his offending was found to be also related to his substance use disorder.
There were also dissimilar findings as to remorse and the need for general deterrence. Although the applicant gave evidence on sentence, Judge Madgwick was not satisfied that he had any broad sense of remorse beyond feeling shame and regret for the embarrassment caused to his family. Although Mr Ammar did not give evidence on sentence, there was evidence before Judge Townsden that he was remorseful for his role in ruining the lives of so many people who use drugs.
There is no doubt that the starting point for the sentence to be imposed on the applicant was almost twice as high as that for his co-offender but it could not be said, to use the words of Gibbs CJ in Lowe v The Queen, that all things were "equal" in this matter. In particular, the facts and involvement of each offender and assessment of objective seriousness of each was, in the end, sufficiently different such as to explain the different results.
The notion of "equal justice" is integral to the criminal justice system. The role of an appellate court is to ensure, as much as possible, that an offender's sentence will not vary significantly to a co-offender solely on the basis that they were sentenced by different judges. It is regrettable that the applicant and Mr Ammar were not sentenced by the same judge. As I recently observed in Dungay v R [2020] NSWCCA 209 at [105]: "This Court has stated on a number of occasions that, where possible, the same sentencing judge should sentence all co-offenders. As Button J observed in Huckstadt v R [2016] NSWCCA 22 at [90] (Johnson and Fagan JJ in agreement), when the same judge hears both matters at the same time, '…[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': see also Usher v R [2016] NSWCCA 276 at [71]-[72]."
It is necessary for this Court to state yet again that wherever possible the Director of Public Prosecutions should make all reasonable efforts to ensure that co-offenders are sentenced by the same judge.
For the reasons I have provided, I am not satisfied that, viewed objectively, the applicant has a justifiable sense of grievance arising from the sentence imposed on his co-offender given the different factual findings made in relation to Mr Ammar's objective criminality. Although it is common ground that the starting point for the applicant's sentence was significantly higher than that for Mr Ammar's sentence, the difference is not such as to suggest that the notion of equal justice has been violated in this case.

ORDERS

The orders I would propose are: 1. Grant an extension of time to appeal. 2. Grant leave to appeal. 3. Dismiss appeal. ***** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 October 2020

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