Dayment v R

Court of Criminal Appeal (NSW)|2018-06-22|Before: Payne JA, Hulme J, Fagan J

Solicitors: Bannisters Lawyers Solicitor for Public Prosecutions File Number(s): 2015/224847 Decision under appeal Court or tribunal: District Court Date of Decision: 20 April 2017 Before: Huggett DCJ File Number(s): 2015/224847

Judgment

PAYNE JA: I agree with R A Hulme J.
R A HULME J: Ms Kirsty Dayment ("the applicant") seeks leave to appeal against an aggregate sentence imposed by her Honour Judge Huggett in the District Court at Sydney on 20 April 2017.
The sentence was one of imprisonment for 5 years 6 months with a non-parole period of 3 years 3 months which was specified to date from 5 February 2017. It was imposed in respect of two offences with two further offences listed on a Form 1 document taken into account in respect of the first of them.
There was an offence of supplying a prohibited drug, namely 85.26 grams of cocaine, on 31 July 2015 (identified in the District Court as "Sequence 4" but I will refer to it as "the cocaine offence"). This offence is contrary to s 25(1) of the Drugs Misuse and Trafficking Act 1985 (NSW) and the maximum penalty is imprisonment for 15 years and/or a fine of $220,000. The judge indicated that she would have imposed a sentence of 2 years 10 months imprisonment for this offence if she were not imposing an aggregate sentence.

Grounds

The applicant seeks leave to appeal in respect of two grounds: 1. The sentencing judge erred in her assessment of the objective seriousness of the knowingly take part in the supply of a large commercial quantity of MDMA offence. 2. The applicant has a justifiable sense of grievance as a result of the sentence imposed upon her co-offender Mr Riganias.

The offences

The written submissions by the Crown provided a concise description of the offences: "Police commenced an investigation into the supply of prohibited drugs by the co-offender [Nicholas Riganias] in February 2015. At the relevant time the applicant was in a relationship with the co-offender. The applicant stayed with the co-offender at his studio unit in Coogee from time to time. The applicant met with a purchaser of prohibited drugs from the co-offender [Peter Biviano] at that unit on 31 July 2015. The applicant provided the buyer with a sample of cocaine weighing 1.02 grams (Form 1). The buyer was arrested in possession of that sample leaving the unit. Around an hour later the applicant left the unit block in her vehicle. She was arrested by police and found to be in possession of 0.7 grams of cocaine (Form 1). Police subsequently searched the co-offender's unit and located 85.2 grams of cocaine (Sequence 4) and 1366 grams of MDMA (Sequence 5). The applicant denied any knowledge of the MDMA in the unit [but her] fingerprints and DNA were located on the packaging the MDMA was contained within."
For cocaine, the prescribed indictable quantity is 5 grams and the prescribed commercial quantity is 250 grams. For MDMA, the prescribed large commercial quantity is 500 grams.
Annexed to the statement of facts was an annexure containing details of 203 text messages passing between the applicant and her co-offender, Nicholas Riganias from 13 to 30 July 2015. The messages indicate that the applicant's involvement in drug supply activity was not isolated to the offences that occurred on 31 July 2015; they were just demonstrable examples of her involvement. For example, there was this exchange on 17 July: Riganias: What do I owe u? Dayment: Yes u do. U have given me 2k already Riganias: And u want another 2? For a half? Dayment: No did I ever say that Riganias: So give me a figure? Quite simple Dayment: Give me what ever u want I just need to cover my cost and for those 4 I organised for ur friends Riganias: Sweet theres 3k here for u. Plus another 1j wantd 4 Dayment: I don't understand just wait till I'm home Dayment: I'm getting back to this work now need to finish it to get out of here Riganias: Its all good. 4k here for u. Dayment: What for Riganias: 2nd part of half. 4 I ate at hub, and j wantds 4
The applicant's mobile phone was examined by police. It was found to contain a drug ledger which was last updated at 11.38am on 31 July 2015.
At the time the Crown's documentary material was tendered, the prosecutor was asked by the learned judge to explain the basis of the "knowingly take part in" element of the MDMA offence. The prosecutor said: "The offender knew the drug was in the home. She handled one of the drugs or one of the bags containing the drug. She has encouraged Riganias on occasions to collect money owed to him. She suggested possible buyers for the drug. She has asked whether a particular buyer needed cocaine as opposed to another drug M or MDMA. The drug was stored in the same suitcase as the quantity of cocaine which she maintained control over."
At a later stage of the sentence proceedings the prosecutor said: "[T]he Crown submission as to liability is that there was the suffering or permitting of the keeping or having of the drug in the home but also liability in taking a step in the process of supply, specifically the meeting and dealing with the man Biviano, who was then to on supply that drug. So the Crown accepts that there is a limited role, a minor role, and that the role was at the direction of Riganias but it was a step in that process."
A discussion then ensued in which counsel then appearing for the applicant as well as the prosecutor seemed to be at one in urging the judge not to sentence on the basis that the applicant was a participant in a joint criminal enterprise with Riganias. As the prosecutor put it pithily: "she is taking a step in the supply, which is Riganias's supply" and "she is taking a step, assisting him, but it is not her enterprise".

The applicant's personal circumstances

The joint sentence proceedings for the applicant and Riganias commenced on 3 March 2017 when the applicant was represented by an eminent Queen's Counsel. The bulk of the evidence and submissions were made on this occasion and judgment was reserved, it being expected that some further material might be tendered on a later occasion. The proceedings resumed on 7 and 11 April 2017 when the applicant was represented by an experienced junior counsel, she having withdrawn instructions from her previous lawyers. Further material was tendered and additional submissions were made, primarily directed to the basis of the applicant's liability for the MDMA offence. The judge again reserved and delivered judgment on 20 April 2017.
No oral evidence was given in the applicant's case; it was confined to the tender of documents.
The applicant was born in 1981 and so she was aged 35 at the time of sentencing. She had what was described as a stable upbringing and a supportive family and she grew up in secure circumstances. She was educated to Year 12 at a high school in Sydney and achieved her Higher School Certificate. Thereafter she had a full employment history. She had been involved in fashion design and presentation. For a short time she operated a fashion retail and online sales business until it failed. She had also worked in office administration, management and marketing. She completed certificates in personal training while on bail for the present matter.
The applicant has a criminal record but for present purposes it is of no significance (two matters of driving whilst suspended and one of speeding in 2013-2014).
The applicant was in an abusive domestic relationship for about eight years up until about mid-2014. She told the author of a Pre-Sentence Report that her former partner had been mentally unstable and using illicit drugs. She also claimed that he exercised psychological control over her and attempted to prevent her from having contact with her family. An apprehended domestic violence order was in place for her protection.
The applicant commenced using illicit drugs, including cocaine and MDMA, in her late twenties. She maintained that this was recreational use in a social setting rather than because of addiction. The Community Corrections Officer opined that "she used illicit drugs to mask the emotional problems she had experienced over many years from the trauma she underwent in the relationship she had with her partner and the negative aspects of that relationship". He noted that the applicant had been receiving treatment from a psychologist for post-traumatic stress disorder and substance abuse.
A report by Ms Maria Tzoumacas, psychologist, dated 12 December 2016 included that the applicant had attended Ms Tzoumacas for 24 treatment sessions since 8 October 2015. She initially presented with low and anxious mood as well as excessive rumination on details associated with her legal difficulties and financial duress. The history she provided included severe domestic violence over a number of years in her twenties.
Despite the 24 treatment sessions, Ms Tzoumacas said that the applicant's symptoms continued to be severe and numerous enough to warrant diagnoses under DSM-V of Post-Traumatic Stress Disorder and Major Depressive Disorder, Recurrent, Severe. She considered that these conditions were "long standing and significantly contributed to the commission of the drug offences with which she is charged in that the disorders adversely impacted upon her decision-making process". Despite this, Ms Tzoumacas also expressed the view that the applicant had progressed significantly with regard to treatment and rehabilitation; was unlikely to re-offend; and that an alternative to custodial sentencing would be more constructive and beneficial to the applicant and the community.
Letters and an affidavit by family members and friends confirmed the history set out in the Pre-Sentence Report and the psychologist's report as to her prior involvement in an abusive relationship and her various positive qualities such as her strong work ethic. A letter from the applicant included her stating that she was "extremely sorry for getting involved for the supply of drugs" and that she took "full responsibility". Her financial difficulties were confirmed in part by the tender of a document concerning her bankruptcy from 24 February 2016.
The sentence hearing commenced on 3 March 2017. At that time the applicant was pregnant. During the course of the subsequent adjournment of the proceeds she suffered a miscarriage.

Some findings by the sentencing judge

The judge discussed at some length her assessment of the objective seriousness of the offences. She found that the cocaine offence was "not the most serious example of an offence of its type". Of significance, having regard to the text messages and the drug ledger found on the applicant's phone, her Honour rejected a submission to the effect that the applicant was acting in relation to the cocaine offence at the behest of Riganias. She said: "I am satisfied beyond reasonable doubt that [the applicant] took an active and at times lead role in relation to the supply of drugs in her possession for financial gain. She made decisions at times regarding their disposition without direction form persons higher up some notional distribution chain … She had sources from where she could obtain prohibited drugs … and she appears to have had her own customers. … That said, I accept the business she was running was not a particularly sophisticated one and it appears she depended upon others to supply her with prohibited drugs for her on supply for financial gain. Bearing in mind the quantity involved in this offence was considerably less than the other threshold of 250 grams and the fact the drug the subject of the Dayment Sequence 4 offence was jointly possessed by Dayment and Riganias, Sequence 4 Dayment is not the most serious example of an offence of its type."
Later, in the course of discussing the testimonials from friends and family members, the judge remarked that the applicant appeared to have given them to understand that Riganias had an overbearing influence upon her, or that she was merely helping him out. Her Honour said that such opinions had no foundation.
In relation to the MDMA offence, the judge accepted that the applicant was not involved in a joint enterprise with Riganias and that she had not pleaded guilty to an offer to supply the MDMA. Rather, she knowingly took part in Riganias's intended supply by permitting and acquiescing in the storage of the substance in a suitcase in the unit where she stayed from time to time. She said that such storage was a vital component of Riganias's offence and the applicant well knew the MDMA was in the suitcase. The judge also noted the evidence of Riganias texting the applicant about the MDMA and of her fingerprints being on the packaging. She remarked that in coming into contact with the bags containing the MDMA, it would have been apparent and obvious that the quantity was not insubstantial. Moreover, the applicant's knowing participation in Riganias's supply offence was in the context of her being involved in a business of sourcing and supplying drugs and where she knew Riganias was involved in a similar business.
Her Honour concluded that the MDMA offence was not, as had been submitted, "at the lowest end of the spectrum" but it was "below mid range" and the applicant's role was less serious than was Riganias's role.
The judge appears to have been rather sceptical about the opinions expressed by the psychologist, Ms Tzoumacas. For example, she noted that Ms Tzoumacas had not seen the statement of facts, the schedule of text messages or the drug ledger found on the applicant's telephone. There was no reference by Ms Tzoumacas to the Expert Witness Code of Conduct or any acknowledgment of her duties and obligations in providing an expert report to a court.
The judge was not prepared to accept Ms Tzoumacas's opinion that the applicant's offending was causally connected to any psychological disturbance or compromise. She continued: "I am satisfied beyond reasonable doubt that at all relevant times, she acted with a full appreciation as to what she was doing and with knowledge of the gravity and consequences of her conduct. Ms Tzoumacas' opinions are at odds with the capable, ambitious, intelligent and hardworking person described by [the applicant's] referees, many of whom have known her for many years. That is not to say that [the applicant] may not presently be suffering, and require some treatment for, issues relating to depression, anxiety and post-traumatic stress. I accept she is. To my mind, the trigger for those present symptoms is the anxiety and uncertainty surrounding her present situation and the fact she is incarcerated and will serve a sentence in custody."
The judge took into account the media attention that the case had attracted, primarily in respect of the applicant and to a lesser extent for Riganias, as extra curial punishment, although the weight she attached to this was "limited".
Also taken into account was the miscarriage the applicant recently suffered in that it would have been a distressing and traumatic event.
The judge noted that the applicant had no relevant criminal record and was "entitled to a degree of leniency in that regard". She said that this was also consistent with the evidence that the offences were "out of character".
The judge was not satisfied that the applicant had accepted full responsibility for her conduct despite her claim to the contrary. She considered that the applicant's prospects of rehabilitation were "reasonable to good" rather than "excellent".
The judge confirmed that deterrence, both general and personal, were important considerations in the assessment of sentence for both offenders.
Special circumstances justifying a sentence with a parole period more than the usual one third of the non-parole period were found in the case of both offenders pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW). These were that it was the offenders' first time in custody and each was at an age where they could be said to be at "the crossroads". The judge considered that it was in the community's interests that their rehabilitation be fostered rather than crushed by providing an extended period of supervision to facilitate their reintegration into the community. Health considerations were also taken into account in the case of Riganias.

Ground 1 - error in assessment of objective seriousness of offence of knowingly take part in MDMA offence

The applicant's contention under this ground is that the judge should not merely have found that the objective seriousness of the MDMA offence was "below mid-range" but she should have accepted a submission that it was "at the lowest end of the spectrum".
The first thing to say about such a submission is that the assessment of the objective seriousness of an offence is a matter for the broadly based discretion of sentencing judges which will not lightly be interfered with by this Court: Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ; Simpson J, as her Honour then was, similarly at [46]).
The judge gave specific attention to the objective seriousness of the applicant's offence of knowingly taking part in the MDMA offence at pages 23 to 25 of the transcript of her sentencing remarks. A summary appears above (at [28]-[29]).
In the written submissions for the applicant, reference was made to a later passage of the sentencing remarks in which the judge said, "While I am prepared to accept that at the time of her offending she was under financial pressure that does not gainsay the conclusion that her offending was motivated by financial reward". It was submitted that this finding was open in respect of the cocaine offence but "there is no evidence of financial motivation for her brief involvement in the co-offender's supply of MDMA".
That submission must be rejected. The quote from the sentencing remarks is drawn from a passage in which her Honour was discussing the applicant's subjective case and is italicised in the following so it may be seen in context: "Dayment reports in her Curriculum Vitae that in 2013 she opened her own fashion store, Ambition Fashion. It had three employees according to Melissa Camby. Despite her referees describing her as having a prodigious work ethic, it is reported that poor sales and other factors including an abusive partner led to that business failing. On 24 February 2016, that being some six months after her arrest and 61 day incarceration, she was declared bankrupt. It is contended on her behalf that the offences were committed in a context where her business was failing and she was under financial pressure that drove her to commit the present offences. On the limited material before me, it is difficult to determine whether the business failed because of her involvement in the supply of prohibited drugs and the publicity attached to her charging, or whether despite hard work and genuine effort, it failed to prosper. Nevertheless, while I am prepared to accept that at the time of her offending she was under financial pressure that does not gainsay the conclusion that her offending was motivated by financial reward."
Her Honour was not speaking of "financial reward" in relation to the MDMA offence; she was speaking about the applicant's involvement in drug supply generally. This was the context established by the text messages and the mobile phone drug ledger evidence. She had earlier referred to the applicant sharing an intention with Riganias to supply the cocaine for "financial gain" (ROS 18 and see the quote above at [26]).
The written submissions then quoted another passage of the sentence judgment out of context and contended that it too was a finding open in relation to the cocaine offence but not in relation to the MDMA offence: "The facts indicate that Dayment's offending was not a spontaneous event. It continued over some weeks and was underlined by deliberation and foresight."
Again, this comes from a passage of the judgment in which the judge was dealing with the applicant's subjective case; specifically, explaining her rejection of the opinion expressed by Ms Tzoumacas that the mental conditions she diagnosed were causally connected with the commission of the offences. Her Honour was not speaking at this point about the MDMA supply charge but about the applicant's involvement in drug dealing generally.
The next submission was that there was "no evidence that the applicant was to benefit financially from the commission of the offence of knowingly take part in the supply of a large commercial quantity of MDMA, or that the applicant's acquiescence and knowing participation was planned or premeditated". However, there is nothing in what the judge said that suggests she made such findings. She was satisfied that financial gain was inherent in the applicant's involvement in drug supply generally. But as to the MDMA offence, for which she was correctly sentenced upon the basis that she did "knowingly take part", the judge said: "I take into account the fact that Dayment's role with the MDMA was limited to a short time only. However, her acquiescence and knowing participation in its supply enabled and furthered the offence committed by Riganias in Sequence 4. I do not accept the contention of Mr Lloyd QC that her role in this offence was at the lowest end of the spectrum. All things considered, the Dayment Sequence 5 offence is a serious offence but as with Riganias, it is below mid-range bearing in mind that the quantity of MDMA is not as large as is seen in these courts. I am also satisfied that Dayment's role in relation to the MDMA the subject of this offence was less serious than was Riganias's. Fortunately the substance was recovered by the police."
The concluding submission by the applicant was that "taking into account the matters identified by her Honour, in addition to the absence of evidence regarding planning or financial gain, her Honour erred in finding that the applicant's role in knowingly take part was below mid-range but not at the lower end of the scale". This submission was clarified at the hearing. Counsel indicated that the following items listed in a comparison table in relation to Ground 2 were the "matters identified by her Honour" that she was referring to: ● Not involved in a joint criminal enterprise with Riganias. ● Permitting and acquiescing in storage of MDMA in suitcase at unit where she stayed from time to time. ● Messaged by co-offender about MDMA. ● Knew MDMA in suitcase (ROS 23). ● Fingerprints on bag. ● Limited to a short time only. ● Quantity of MDMA not as large as some large commercial quantity offences. ● Role was less serious than Riganias. ● Recovered by police before able to be supplied.
It may be readily accepted that these matters supported a conclusion that the objective seriousness of the applicant's MDMA offence was towards the lower end of the scale. However, that is not to say that they, together with all the other matters referred to by her Honour, mandated a finding that the offence fell at the "lowest end of the spectrum". I am satisfied that the finding made by the judge was one that was well open to her. This ground must be rejected.

Ground 2 - parity in relation to co-offender Nicholas Riganias

The applicant does not contend that there should have been parity in the sentences imposed; rather the complaint is that there is an insufficient disparity.
It has been said that equal justice requires that like should be treated alike. However, if there are relevant differences, due allowance should be made for them: Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26 (Dawson and Gaudron JJ).
The reason why an appellate court interferes in cases where there is an inappropriate degree of disparity between sentences is because it considers such disparity to give rise to a justifiable sense of grievance or the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606 at 610; [1984] HCA 46 (Gibbs CJ).
A court will refuse to intervene where the degree of disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at 474-475 [31]; [2011] HCA 49 (French CJ, Crennan and Kiefel JJ).

Sentencing of Nicholas Riganias

The co-offender, Nicholas Riganias, was sentenced for two offences. First, there was the supply of the large commercial quantity of MDMA (the 1366 grams). Three offences listed on a Form 1 document were taken into account in sentencing for that offence: * Recklessly dealing with the proceeds of crime: Riganias met a man who was under investigation in relation to alleged dealings with the proceeds of crime and gave him a shopping bag containing $100,000, it being the proceeds of crime. * Supplying 1.02 grams of cocaine: the sample provided by the applicant to Peter Biviano on 31 July 2015. * Supplying 88.43 grams of cocaine: the 85.26 grams found in the Coogee unit as well as 3.17 grams found in his possession on his arrest on 31 July 2015.
The second offence for which Riganias was sentenced was one of supplying (by agreeing to supply) a commercial quantity of cocaine; an offence with a maximum penalty of imprisonment for 20 years and a standard non-parole period of 10 years. (There is no suggestion of the applicant having any involvement in this offence.)
The judge imposed an aggregate sentence of imprisonment for 8 years with a non-parole period of 4 years 6 months (compared to the applicant's aggregate sentence of 5 years 6 months with a non-parole period of 3 years 3 months).
The indicative sentences for the MDMA offence was one of 6 years 6 months with a non-parole period of 4 years and for the agreement to supply cocaine offence it was 3 years 6 months with a non-parole period of 2 years.
The judge reduced the indicative sentences for Riganias by 30 per cent in recognition of his pleas of guilty and his admissions to police. Thus the indicative sentence for the MDMA offence would otherwise have been about 9 years 4 months (compared to the applicant's 6 years) and for the agreement to supply cocaine offence it would have been 5 years.

Discussion

The sentencing judge was alive to the need to have regard to the parity principle. She said: "In sentencing both offenders I have kept firmly in mind the principle of parity. Equal justice requires like offenders to be treated alike but recognises the disparity between offenders may be justified by differences between them whether arising objectively or subjectively. I have already referred to the difference in terms of the disposition of the particular charges. In relation to Sequence 4 Riganias and Sequence 5 Dayment [the MDMA offences], I am of the view that there are differences including as to the culpability of each offender and their subjective circumstances calling for the imposition of different sentences."
To put the applicant's complaint of insufficient disparity under this ground more precisely, it is that "there was insufficient disparity between the indicative sentence applicable to the applicant and the co-offender for the MDMA offence, and between the overall aggregate sentence and aggregate non-parole period imposed upon the applicant and the co-offender such that the applicant has a justifiable sense of grievance".
There are two particular problems for the applicant in making good this ground.
First, determining a fair degree of distinction (disparity) in the sentencing of the two offenders was made difficult by the fact that the applicant and her co-offender were sentenced for a different mix of offences and had different offences taken into account.
Secondly, this Court must acknowledge the discretion of a judge who was called upon to make an assessment of the appropriate sentences to impose upon related offenders being sentenced within the one proceeding: see the discussion of this in the judgment of Hoeben CJ at CL (Johnson and Schmidt JJ agreeing) in Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [172]-[174]. It is not for this Court to second guess the manner in which the primary judge differentiated between two offenders in the sentences imposed. Intervention will only be justified if the degree of the disparity in the sentences cannot be justified as a proper exercise of the judge's discretion.
Her Honour was cognizant of the first of these problems. She referred to the fact that she had to sentence the applicant for the cocaine offence but only was required to take it into account in relation to the co-offender. She said this "makes the application of the parity principle a difficult task in this instance and as a matter of fairness, this is something I have taken into account in Dayment's favour".
Such a difficulty was the subject of consideration recently in Dunn v R [2018] NSWCCA 108 where Adamson J (Macfarlan JA and Johnson J agreeing) explained (in part) (at [16]): "There is no relevant comparison between a sentence that has been imposed for an offence (as in the case of the applicant for the corresponding charge) and an unspecified increase in a sentence imposed for another offence by reason of the corresponding charge being taken into account on a Form 1, as was the case for each co-offender."
In that case the only comparison sought to be made was between one of seven offences for which Dunn was sentenced and a corresponding offence taken into account in the cases concerning two co-offenders. For the reasons given by Adamson J, it was not possible to make any useful comparison at all. The present case also involves an offence the subject of a sentence in the case of the applicant with the corresponding offence for the co-offender taken into account on a Form 1, but it involves more than just that. Whilst the Crown drew attention to Dunn v R, it did not suggest that no comparison was possible. It was simply illustrative of the fact that comparison in this case is more broad and impressionistic than it often is in such cases.
In relation to the sentencing of the two offenders for the MDMA offence, the fundamental difference, aside from the role played by each of them, was that the co-offender was charged with supply whereas the applicant was charged with knowingly taking part in that supply. The sentencing judge's attention was drawn to the differences in these two forms of liability as described in R v Deng (1996) 91 A Crim R 80.
The basis upon which the applicant was sentenced in relation to the MDMA offence has been referred to earlier (at [28]-[29]). The co-offender was sentenced on the basis that he "was in possession of 1.36 kilograms of MDMA which he intended to supply for financial gain (but for the intervention of the police)." The judge was satisfied that, however he came to be in possession of it, "once it came into his possession, it was his substance and he took steps to further its on supply". However, she also took into account that the MDMA was in the co-offender's possession for a short time only and that it was seized before it was able to be supplied within the community.
There were some similarities and some differences in the subjective cases of the two offenders which were usefully summarised in the written submissions of counsel for the applicant. The similarities included that they were of similar age, had no relevant criminal record and their offending was regarded as being out of character. Aside from one particular issue concerning Riganias, there were otherwise physical and mental health issues of broadly similar mitigating weight. Their risks of re-offending were low. The applicant's prospects of rehabilitation were regarded as "reasonable to good" whereas Riganias's prospects were "very good".
The dissimilarities between the pair tended to favour Riganias. He was found to have accepted full responsibility for his offending and had demonstrated remorse and insight. He was still grieving the loss of his half-brother who died accidentally while Riganias was on remand.
A matter of particular significance in Riganias's case was that he had suffered since the age of 18 (he was 31 at the time of sentencing) from a relatively rare illness, trigeminal neuralgia. The judge explained that this illness was: "[A] chronic pain condition that affects the trigeminal nerve in the head, causing extreme, sudden and sporadic facial pain. He was diagnosed with that at 18 and according to the medical notes it is getting progressively worse. He was prescribed severe pain medication including Endone, Xanax and Valium in doses that increased over time. He rapidly developed a drug dependence in order to deal with the pain experienced with that illness and began to abuse a cocktail of prescription and illicit drugs including cocaine and ecstasy. The onset of his illness exacerbated the anxiety and depression he had been suffering since 2007. In 2015 after numerous failed treatments and several months confined to a bed due to chronic pain, he consulted a facial surgeon who recommended a stem cell treatment program costing approximately $45,000 which might possibly provide a more permanent form of pain relief. It is this treatment that Riganias has stated was the primary motivation for his offending. While in custody, Riganias has not had access to a neurologist or to a pain specialist and only receives Nurofen or Panadeine intermittently. His GP, Dr Tringali, has written a letter stating that these medications are insufficient to treat his level of pain. According to notes in his Justice Health file, Riganias has made repeated requests for pain relief while in custody and has indicated that at times his level of pain can be so severe as to cause him to bang his forehead against the wall."
The judge held that this background, while not excusing the offending, warranted a reduction in Riganias's moral culpability to a limited extent.
The comparison the applicant advanced was as follows. The offences the applicant and co-offender had in common were the MDMA and the cocaine offences. For these offences, the applicant received indicative sentences with starting points of 6 years and 3 years 9 months respectively, whereas "the co-offender only received an indicative sentence before discount of 9 years 3 months and 2 weeks for the MDMA offence with the joint possession of cocaine matter on a Form 1 (along with the proceeds of crime matter which did not relate to the applicant but was said to have increased the indicative sentence)".
Counsel for the applicant acknowledged that there were subjective differences that favoured the co-offender but objective considerations that worked in the applicant's favour. The above analysis was said to demonstrate that there was insufficient disparity. The argument proceeded through the following steps: 1. The applicant played a limited role in the co-offender's large commercial supply of MDMA. 2. The judge indicated that two of the three matters on the co-offender's Form 1 were of sufficient seriousness to warrant a degree of increase to the sentence otherwise appropriate for the MDMA offence. 3. Even taking into account the more favourable subjective aspects of the co-offender's case, there is insufficient disparity in the sentences imposed.

Conclusion

For the reasons given earlier, this is not a case in which anything other than a broad view may be taken in comparing the relativity of the sentences passed upon the two offenders. Both offenders were sentenced for drug offences which were committed in the context of drug supply activity in which they were both involved. The co-offender's culpability in respect of the MDMA offence was clearly greater than the applicant's. Comparison is more difficult in relation to the cocaine offence which was merely taken into account in the co-offender's case.
Overall, the co-offender's involvement in drug supply activity, in terms of offences charged, was greater, but so too was the mitigating weight of his personal circumstances. An outcome whereby he was sentenced to 8 years' imprisonment as compared to the applicant being sentenced to 5 years 6 months, with each having to serve a minimum of just under 60 per cent of the total term of the sentence appears to be, with respect to the sentencing judge, a fair, reasonable and sensible result.
I am not persuaded that there is any objective basis for the applicant to have a legitimate sense of grievance. This ground must be rejected.

Orders

I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal against sentence dismissed.
FAGAN J: I agree with R A Hulme J.

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: 29 June 2018

Drugs Misuse and Trafficking Act 1985(NSW)ss 25(1), 25(2)

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