(b) despite paragraph (a), must not take into account the fact that the Court's decision may mean that the person is again sentenced for the crime."

1. In Chatters, this Court determined that the law concerning Crown appeals which applied before the enactment of s 402(4A), as summarised in R v Allpass (1993) 72 A Crim R 561, and R v Clarke [1962] 2 VR 520, was no longer to be applied. According to the principles enunciated in those cases, the concept of double jeopardy operated to mean that Crown appeals were to be less readily allowed than defence appeals against sentence, and a higher threshold of error was to be applied. Secondly, double jeopardy meant that having to be sentenced a second time, and any associated anxiety or stress, was taken into account in favour of the offender, with generally a more lenient sentence being imposed: Chatters at [11]. After reviewing equivalent legislation in New South Wales, Victoria and Western Australia, the Court determined that, as a result of the enactment of s 402(4A), the law to be applied was as expressed in the principal judgment written by Spigelman CJ in the New South Wales Court of Appeal in R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7, 199 A Crim R 486 at [141]. The provision operates to prevent an appellate court from basing on the distress and anxiety to which respondents to a Crown appeal are presumed to be subject, a decision not to intervene or to impose a sentence less than that which it otherwise considers appropriate. Moreover, the Court cannot have regard to the frequency of Crown appeals as a sentencing principle.
2. On 1 September 2013, since Chatters was decided, s 402(4A) was amended and s 402(4B) was inserted. In its present form, s 402(4B) makes clear that the court must not take into account any element of double jeopardy in re-sentencing to impose a less severe sentence. To me, some doubt exists about whether the amendment affects the law as expressed in Chatters as to the operation of the provision on an appellate court's decision not to intervene. That question was not argued in this appeal and it is not necessary to consider it. However, it was established in Chatters that the residual discretion to dismiss a Crown appeal, in spite of a finding that a sentence was manifestly inadequate, on some basis other than double jeopardy, survives in Tasmania. In such a case, it cannot be said that a more severe sentence "is warranted in law" within the meaning of s 402(4): Chatters at [51]. The terms of the 2013 amendment to s 402 do not affect that statement of the law. The existence and operation of the residual discretion was considered in detail by the High Court in Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462.
3. In CMB v Attorney-General (NSW) [2015] HCA 9, 317 ALR 308, 89 ALJR 407; 243 A Crim R 282, the High Court considered an appeal by the NSW Attorney-General against non-custodial sentences imposed on an offender for child sexual assault offences. The appeal was brought under the Criminal Appeal Act 1912 (NSW), s 5D, a provision of substantially the same effect as the relevant parts of ss 401 and 402 of the Code. French CJ and Gageler J observed at [32]-[33]:

"Section 5D of the Criminal Appeal Act serves the dual function of conferring capacity on the Attorney General or the DPP to appeal against a sentence pronounced by a court of trial in proceedings to which the Crown in right of New South Wales was a party, and of conferring power on the Court of Criminal Appeal in such an appeal to impose a different sentence. That power is conferred by the concluding words of s 5D(1) in terms that 'the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper'.

Descriptions of the discretion expressly so conferred on the Court of Criminal Appeal as 'residual' ought not to be misunderstood. To enliven the discretion, it is incumbent on the appellant in an appeal under s 5D to demonstrate that the sentence pronounced by the court of trial turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust. The discretion is residual only in the sense that its exercise does not fall to be considered unless that threshold is met. Once the discretion is enlivened, it remains incumbent on the appellant in an appeal under s 5D to demonstrate that the discretion should be exercised." [Footnote omitted.]

1. Heydon JA in R v Hernando [2002] NSWCCA 489, 136 A Crim R 451, said at [12]:

'[I]f [the Court of Criminal Appeal] is to accede to the Crown's desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appellable error in the sentencing judge's discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised."

That statement was cited with approval in CMB v Attorney-General (NSW) by French CJ and Gageler J at [34], and by Kiefel, Bell and Keane JJ at [66].

1. The submission of the appellant is that this Court should impose on the respondent a different sentence, heavier than that imposed by the learned sentencing judge. The authorities to which I have referred establish that the Crown must negate any reason why the appeal should be dismissed in exercise of the residual discretion, notwithstanding the manifest inadequacy of the initial sentence. The exercise of the residual discretion is informed by the purpose of Crown appeals, which distinguishes such appeals from appeals against severity of sentence by convicted persons. As the High Court made clear in Green v The Queen at 465 [1], the primary purpose of an appeal by the Crown is to identify principles for the governance and guidance of sentencing courts: Green v The Queen at 465-466 [1]-[2]. They also serve to maintain public confidence in the administration of justice by the intervention of this Court in the case of a manifestly inadequate sentence: Everett v The Queen [1994] HCA 49, 181 CLR 295 at 306; R v Stoupe [2015] NSWCCA 175 at [115]- [116]. In Everett v The Queen, McHugh J said at 306:

"Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice."

1. In my opinion, the maintenance of public confidence in the administration of criminal justice points strongly against exercise of the residual discretion to dismiss this appeal. The sentence is markedly inadequate. It did little to give effect to reflect the requirement for denunciation and general deterrence in sentencing drug traffickers. To decline to intervene would be to perpetuate a manifest injustice: Munda v Western Australia [2013] HCA 38, 249 CLR 600 at [76]. However, that is not the end of the matter. There may be other reasons for the exercise of the residual discretion. Other relevant considerations were referred to by French CJ, Crennan and Kiefel JJ in Green at [2]:

"In Crown appeals, circumstances may combine to produce the result that if the appeal is allowed the guidance provided to sentencing judges will be limited and the decision will occasion injustice. Relevant circumstances include consequential disparity relative to an unchallenged sentence imposed on a co-offender and delay in the appeal process which may be associated with disruption of the offender's progress towards rehabilitation. In such cases it may be appropriate for a court of criminal appeal, in the exercise of its residual discretion, to dismiss a Crown appeal."

1. In this case no issue of delay arises. The appeal was filed on 7 March 2016 and heard and determined promptly. It was not suggested that delay in the appeal process had disrupted the respondent's rehabilitation. However, the issue of the application of the parity principle is raised by the respondent.

1. Although there is no ground of appeal expressly concerning parity of sentencing, counsel for the respondent submits that the sentence imposed on the respondent was "broadly consistent" with the sentence imposed on Bevin Swan, the other offender with a "lesser involvement", and points to the need for consistency in sentencing. The written submission refers to "treatment of like cases alike and different cases differently". The respondent's counsel also made comparison with the sentence imposed on four other men, Jyden Kirkpatrick, Daniel Pelham, Wayne Johnson and Fabian Trueman. Each of those men was convicted of trafficking in methylamphetamine purchased from Royden Swan. The submission is directed to issues of consistency, proportionality and relativity when considering the adequacy of the sentence imposed on the respondent. However, the underlying effect of the submission is that an increase in the sentence imposed on the respondent would result in disparity with the sentence imposed on Bevin Swan and the other men. None of those sentences were challenged on appeal. The true relevance of disparity in this appeal concerns the exercise of the discretion. In exercise of the residual discretion, unjustifiable disparity between a new sentence and an unchallenged sentence previously imposed on a co-offender strongly indicates against allowing a Crown appeal: Green v The Queen at 477 [37]. Even though the sentence imposed on the respondent is erroneously lenient, the Court may decide to not intervene so as not to disturb parity between that sentence and the sentence imposed on a co-offender: Green v The Queen at [40]. Also relevant is the extent to which any disparity between co-offenders is able to be mitigated in the exercise of the re-sentencing discretion: Green v The Queen at [44].
2. Consideration of whether unjustifiable disparity may arise between a new, heavier, sentence imposed on the respondent, and the sentence imposed on Bevin Swan, requires assessment of his criminal conduct and circumstances. The basis of Bevin Swan's plea of guilty to trafficking was that:
   • He owned the property at 120 Masons Road and allowed his son and the respondent to organise sales of methylamphetamine from the house which they built on that property.
   • He stored and concealed the methylamphetamine which had been placed by his son at the Buckland camp.
   • On about five occasions during the indictment period he transported methylamphetamine to Nugent when requested to do so by Royden Swan or Emma Swan, knowing it was to be sold by one of them. This was organised by discussing transportation of methylamphetamine with either Royden or Emma Swan by phone, during which conversations he referred to the drug in code as "chook food" and "apples".
3. The Crown did not dispute that Bevin Swan had no knowledge of the extent of the trafficking, and accepted that he received no benefit, financial or otherwise, from it. He and his wife had purchased the Nugent property from their own legitimate resources many years earlier, and he had not contributed to the construction cost of Royden and Emma Swan's home. When sentenced, he was 71 and was, by then, an age pensioner in poor health. He had no prior convictions. His employment with the Australian Defence Force was terminated as a result of his arrest in August 2011.
4. The criminal conduct of the four other men is described in the comments of the sentencing judge when each was sentenced. In those comments, reference is made to the purchase of drugs from a third party. For the purposes of these reasons it may be assumed that the person was Royden Swan. There was evidence of phone contact between the respondent and at least one of the men. Jyden Kirkpatrick was found guilty by a jury of trafficking. On 19 January 2011 he was intercepted when a passenger in a vehicle being driven by Fabian Trueman. In the passenger foot-well was a plastic container with 54.8 grams of methylamphetamine inside. Mr Trueman had $2,700 in cash concealed in his underpants. They had picked up the drug from the collection point at Nugent and left $10,000 in return. Mr Kirkpatrick was sentenced by Blow J (as he then was) on 27 October 2011 on the basis that he had joint possession of the drug and that most, but not all, of it was intended for sale. His only prior convictions for drug offences were minor. He was sentenced to imprisonment for nine months, eight months of which was suspended. Mr Trueman was also found guilty by a different jury of trafficking. He was sentenced by Tennent J on 27 February 2015 to imprisonment for 10 months with eligibility for parole after six months. His criminal culpability was not confined to his joint possession of the quantity of methylamphetamine found on 19 January. In the six month period between September 2010 and March 2011, he ordered and collected other quantities of methylamphetamine. He had drug-related prior convictions.
5. Daniel Pelham pleaded guilty to trafficking in methylamphetamine. He was sentenced by Estcourt J to imprisonment for nine months, wholly suspended for three years. He was ordered to serve 240 hours of community service. The factual basis of his sentence was that on 7 November 2010 and 8 April 2011 he purchased unspecified quantities of methylamphetamine for sale, and that on 8 May 2011 he purchased at least 47.9 grams of methylamphetamine for sale. He arranged to purchase a further amount on 14 July 2011 but did not collect it. He had a relevant prior conviction but not for trafficking or selling drugs.
6. Wayne Johnson pleaded guilty to trafficking. His car was intercepted on 3 December 2011. He had 27.7 grams of methylamphetamine in his possession. He was sentenced by Porter J on the basis that he intended to sell at least part of it. At the time of sentence Mr Johnson was serving a very long sentence for murder. The crime of trafficking was committed after his release on parole, which had since been revoked. He was sentenced to imprisonment for 10 months. The sentence also included two summary drug offences. His Honour ordered that the sentence be served concurrently with the sentence he was serving.
7. In Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 the High Court said at 608 [65]:

"Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect." [Original emphasis.]

1. As was explained by French CJ, Crennan and Kiefel JJ in Green v The Queen at 473 [28], the parity principle derives from the notions of equal justice and consistency in punishment. After referring with approval to the foregoing passage in Wong, their Honours continued at [28]:

"Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances." [Footnotes omitted.]

1. When referring to the issue of parity in appeals against severity of sentence, their Honours cited Lowe v The Queen [1984] HCA 46, 154 CLR 606 at 609, per Gibbs CJ, as authority for the proposition that a court will refuse to intervene where 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. Consideration of the same issues should logically be applied to exercise of the residual discretion, bearing in mind the purpose of Crown appeals.
2. I am persuaded that the issues of parity raised by the respondent do not justify exercise of the residual discretion. An increase in the sentence imposed on the respondent does not result in unjustified disparity. In my view, imposition of the same sentence upon Bevin Swan and the respondent is demonstrative of the initial error. The criminal conduct and antecedents of Bevin Swan and the respondent are not so closely comparable as to warrant equality of sentence. There are key distinctions between their respective positions which demand difference in sentence. Because of the broad statutory and ordinary meaning of the term "traffic", there are many ways in which a person may be guilty of the crime. Thus, as I earlier explained, there is a great diversity of circumstances in which the crime is committed. Although Bevin Swan, the respondent, and Royden Swan were all guilty of the crime of trafficking as part of the same criminal enterprise, there are significant differences in the facts which constituted their criminal responsibility for that crime. The differences justified the much heavier sentence imposed on Royden Swan, as the principal offender, even though he was charged with the same crime arising from the same criminal enterprise. Bevin Swan's culpability extended to playing a part in concealment of the drug placed by Royden Swan at the training camp, and, on a limited number of occasions, retrieving it and transporting it to Nugent. Unlike the respondent, he did not share in the commercial benefit of the enterprise, or participate in sales and distribution. He is an elderly man in poor health, also with no prior convictions.
3. The crimes of Mr Kirkpatrick, Mr Trueman, Mr Pelham and Mr Johnson are also not comparable to the crime of the respondent. Although each was sentenced for trafficking in methylamphetamine, the basis of their criminal culpability was different. In each case, their crime arose from the criminal enterprise of Royden and Emma Swan, but was subsidiary to it. The four men occupied a different position in the hierarchy. They were sentenced for crimes involving lesser amounts and short periods of offending, in two cases, a single incident of possession. Each was motivated, at least in part, by personal use.
4. In my view, imposition of a greater sentence on the respondent does not generate unequal justice. Upon allowing the appeal and re-sentencing the respondent, the Court may impose a sentence which is relative and proportional to the sentences imposed on others.
5. For the foregoing reasons I am satisfied that the residual discretion to dismiss this appeal should not be exercised. Were the residual discretion to be exercised the clear need for general deterrence of possible future offenders would not be fulfilled. Nor would the need to ensure that sentences accord with legitimate community expectations and maintain public confidence in the administration of justice: Markarian v The Queen [2005] HCA 25, 228 CLR 357 at [82] per McHugh J.

1. For these reasons I joined in the order allowing the appeal. In my view, this Court should re-sentence the respondent. For the purposes of the Code, s 402(4A), the only matter raised by counsel for the respondent relevant to the re-sentencing is that, since the date of the initial sentencing on 22 February 2016, the respondent lost the care of her daughter. As I explained, the effect of sentence on family members is a circumstance which carries little mitigation in this case. In determining the sentence that is appropriate for the respondent's criminal conduct, the fact that she is being sentenced again must not be taken into account, and nor can the distress and anxiety to which she is presumed to be subject in consequence of the appeal: the Code, s 402(4B). There is no evidence of actual distress and anxiety of that nature: Director of Public Prosecutions v Chatters at [51].
2. The reasons I have stated for allowing the appeal also inform the sentence I consider should be imposed. The respondent took a knowing and active part in a methylamphetamine trafficking enterprise of considerable scale over a prolonged period, from which she received direct and indirect commercial benefit. Maintenance of sentencing standards for such criminal conduct requires the imposition of a substantial sentence of imprisonment. I would sentence the respondent to imprisonment for 18 months from 1 June 2016, the day she was taken into custody. I would order that the respondent not be eligible for parole until she has served nine months of that sentence.