Eakin v R [2020] NSWCCA 294 | Case summary

Court of Criminal Appeal (NSW)|2020-08-17|Before: Basten JA, Rothman J, Price J

The applicant's subjective case

The applicant did not give evidence before the judge but his sister Kylie Hooper did. Her oral testimony included the shame that the applicant had expressed to her for the offences he had committed. Ms Hooper said that the applicant knew that his career had been destroyed, the destruction in their family was evident and it would take a long time to heal.
The written material tendered before the judge included a psychological assessment report of Helen Gibson dated 17 April 2019, a letter from Michael Hawes, a psychologist, dated 28 March 2019, a sentencing assessment report dated 9 April 2019, a letter from the applicant to the judge and a number of character references.
In the sentencing assessment report, the author recorded that the applicant, who had no prior criminal history, alleged Merhi, a previous work colleague, claimed that her brother was in danger and asked for his assistance by providing information on incoming shipments, which the applicant said was the motivation for his involvement in the offences.
The applicant reported that initially the requests were for small amounts of information but progressed over time. Before he realised what was happening, it was "too late to get out". He acknowledged that he was aware what he was doing was wrong.
The author of the report considered that the applicant had demonstrated insight into his offending and was regretful. The applicant was assessed at a low-medium risk of re-offending.
The applicant's background is derived from the applicant's letter and Ms Gibson's report. He was born on 14 April 1975 and grew up on the family farm. After completing Year 12, he joined the Australian Defence Force but was discharged on medical grounds. He obtained employment as a Customs Officer with the ABF in September 1998 and was promoted on a number of occasions. At the time of the offending, he was a Senior Customs Officer working in Cargo and Trade, specifically in Cargo Examinations. He lived a largely frugal life.
In 2011, the applicant took on financial responsibility for the family farm so that his parents could retire and he became indebted, which caused family discord. In 2012, 2014 and 2015, the applicant took on further debt by purchasing an adjoining property and land. His ABF income also reduced around this time.
In his letter, the applicant stated that Merhi joined the ABF around 2000 or 2001 and he was her supervisor. Over the years they developed a close friendship and were good friends beyond work. He believed Merhi left the ABF around 2016 after she had been offered a job with NSW Police. He lost track of her for a while, but "bumped into her at the Rockdale Plaza." After that, they would catch up for a coffee and would chat.
In 2017, Merhi asked him to assist her which related to his Customs role. She said that her brother was in trouble and needed help to get a container of goods as he owed people money. This developed into her asking him about companies and whether they would be good to bring items into Australia. Over the course of the offending, he started to realise that something was not right. He felt that he should report what was happening but knew that "[he] was in too far and [he] too had done something wrong in the process".
The applicant stated that he knew he was going to be paid as he had been told he would be looked after. He neither knew the exact amount nor was counting on payment. He stated that it was only when Merhi said that she had something for him that he realised he was getting paid a significant amount. He knew it was wrong to accept the money.
The applicant had earlier referred to having "a strong emotional connection" with Merhi and recounted that he "felt strongly for her and cared for her and was very protective of her".
In her report, Ms Gibson opined that the applicant had demonstrated insight into "his initial poor choices which resulted in his offending behaviour". She reported the applicant took responsibility for his offending behaviour and had expressed regret and deep shame. Ms Gibson believed that the applicant was a low risk of re-offending.
Ms Gibson referred to the applicant being on bail under very stringent conditions for approximately twenty months. She considered that the bail conditions had caused him to become socially isolated, withdrawn and depressed. Psychological testing revealed no psychopathology but a possible diagnosis of Adjustment Disorder with Anxiety.
The letter from Mr Hawes referred to the applicant being treated for Generalised Anxiety in March 2019.
In his letter, the applicant stated that following his arrest, he was initially imprisoned in the general population which "was incredibly scary as a law enforcement officer". He was subsequently placed on protection.
The character references described the applicant as being hardworking, honest and supportive of his family.
During the proceedings on sentence, a letter was provided to the judge from the Australian Commission of Law Enforcement Integrity as to the applicant's provision of general intelligence and offer of future assistance.

The sentencing judgment

The circumstances of the applicant's offending were set out in a statement of agreed facts. In summarising the agreed facts, the judge said: "So far as the aid and abet importation of goods is concerned being tobacco products, the two principals in relation to that are alleged to be Ali and Abbas Jomaa. From about March 2017 the [applicant] and [Merhi] agreed to assist with an importation of a container of undeclared cigarettes from Vietnam which was being arranged by the Jomaas, that is Ali and Abbas Jomaa. The [applicant] and [Merhi] worked together as Customs Officers at the ABF between 2001 and 2015. They both had specialised knowledge of cargo detection and inspection procedures. At the time of the offending the [applicant] was still employed as a Commonwealth public official namely a Senior Border Force Officer in the cargo examination team of ABF. Merhi had left ABF in 2015 and was employed as a multicultural liaison officer at New South Wales Police Force. The [applicant's] primary role with the ABF was to examine and inspect sea cargo consignments and to prevent the import or export of narcotics, precursor chemicals and other prohibited items and to control the movement of restricted items. Between April 2017 and July 2017 the [applicant] performed numerous unauthorised searches on sensitive ABF systems which are used to report the legitimate movement of goods across borders and to profile and target high risk cargo. More particularly the [applicant] searched certain companies' importation history in order to identify a suitable company to facilitate undetected importation. The offender then communicated this sensitive information and advice to Merhi who subsequently relayed the information back to the Jomaa syndicate through an unidentified associate known as "A". The [applicant] communicated with Merhi using coded text messages on legitimate mobile phones and also on encrypted Blackberry devices. Contemporaneous Blackberry conversations between Jomaa and the undercover operative and meetings between the undercover operative and Ali and Abbas Jomaa confirmed that specific information flowed between the [applicant], Merhi and "A" to the Jomaas and vice a versa. At the critical time of the arrival of the container in Australia from Vietnam on 4 July 2017 the [applicant] monitored the shipping container number and intervened when it was flagged for inspection on an ABF system. Between 4 and 7 July 2017 numerous communications passed between the [applicant] and Merhi regarding the status of the container. The [applicant] used his access to ABF systems and ensured that the container did not become subject to a customs inspection. The [applicant] informed Merhi when it was safe to be collected and she subsequently passed on the information to the Jomaas through "A". The amount of duty evaded from the importation was approximately $6,165,000. The [applicant] was aware that the shipping container was loaded with a large quantity of tobacco products but was not aware of the exact amount being imported and was probably not aware, I interpose, of the exact amount of money that the syndicate was proposing to pay him. So far as sequence 2 is concerned, dishonestly agree to receive a bribe as Commonwealth official between 21 March 2017 and 6 July 2017 when Merhi offered the [applicant] a financial reward for corruptly providing the sensitive and restricted information obtained in the course of his duties as an ABF officer and moderating the importation so as not to have it detected or examined by ABF officers. On 18 July Merhi met the [applicant] near his home and delivered $100,000 cash for his assistance following the undetected importation, as I have noted, I do not find that he knew the precise amount that they were going to pay him."
His Honour referred to the written material tendered in the applicant's case and said that he entirely accepted "all the contents of the material advanced in the [applicant's] case." His Honour accepted that the applicant had become involved in the offending when Merhi claimed that her brother was in danger. His Honour found the applicant was: "deliberately and incrementally corrupted by his co-accused in a sophisticated manner that was essentially aimed at ensuring that he would co-operate by engaging him little by little in the processes until he thought he could not exit and not report the matter".
The judge accepted that the applicant was genuinely remorseful, there was a substantial amount of contrition and a very high degree of remorse. His Honour found there was no prospect of re-offending and the applicant was substantially and almost entirely rehabilitated.
His Honour accepted that the stringent bail conditions had resulted in the applicant feeling socially isolated, understandably withdrawn and depressed. His Honour found that the applicant had suffered significantly "by the bail conditions in a manner that amounts to additional imprisonment" and would go to a "reduction of the overall sentence".
When referring to the applicant's letter, the judge said that he believed the matters raised in the letter. His Honour accepted that when the applicant first went into custody, he feared for his life. His Honour also accepted that he would spend any period of custody in harsher conditions than applicable to a normal offender and took that into account as a "reductive factor … in terms of the amount of custody he should serve".
His Honour found that the applicant's offending was out of character and considered that there was very little for personal deterrence given that his conduct was an "aberration" and largely as the result of a "fairly sophisticated attempt to seduce a Border Force officer to breach his duties for the purposes of a sophisticated criminal syndicate".
Nevertheless, the judge considered that general deterrence played a "major part", particularly in deterring officers of law enforcement authorities "from engaging in the kind of conduct which prejudices the public interest in the way that this occurred". His Honour cited R v Lamella [2014] NSWCCA 122 at [57].
The judge allowed a discount of 25% for the pleas of guilty and a discount for assistance which, whilst not going to the future, was of a "significant strategic value" and "in the vicinity of an additional 10%".
When referring to the issue of parity with Merhi's sentence, the judge found that Merhi "was significantly higher in the hierarchy and her function was well above [the applicant's] in terms of the position in the syndicate". Furthermore, there was a significant contrast in terms of parity between the remorse and contrition expressed by the applicant as opposed to Merhi. His Honour noted Merhi was charged with three offences whereas the applicant faced sentence for two.
However, his Honour found that it was a significant danger to the community to have a corrupted ABF officer. His Honour said that he had taken into account "issues … of general deterrence, specific deterrence, denunciation and in denouncing the misconduct, ensuring that it is understood by other Border Force operatives that these are very serious offences and that they carry with them condign punishment".
After taking into account the questions of concurrency or partial accumulation of sentences and stating that he intended to impose an aggregate sentence, the judge indicated a sentence of 3 years and 6 months' imprisonment for each offence. His Honour said that he would set a single non-parole period which would represent the minimum period that the applicant would spend in prison. His Honour then sentenced the applicant to an aggregate term of 4 years' imprisonment with a non-parole period of 2 years.

Some findings made by the judge when sentencing Merhi

When sentencing Merhi, the findings that the judge made that are relevant to the issue of parity include the following: 1. Merhi's role was critical and integral to the success of the importation of the illicit cigarettes. Her responsibility was to ensure communication and assist in assessing the corrupt officer of his safety and of his position; and to continue the enterprise, notwithstanding various interruptions. She was aware of the significance of infiltrating the ABF's systems and obtaining strategic information which allowed the apparent avoidance of detection. She was passing information to the applicant and was passing information back to the Jomaas. 2. Merhi's position was superior to that of the applicant. She acted "in some ways, as a 'minder' of [the applicant] and assured that he continued his dereliction of duty". 3. Merhi's offending was a very significant breach of trust and of office. She was an ex-Border Force officer who used her knowledge of her previous employment, whilst being employed as a civil employee of the New South Wales Police Force. 4. Merhi's criminality was very serious. It was a deliberate, ongoing, strategic course of conduct known by her. Her experience within Border Force was used for a corrupt purpose. She participated in the corruption and continued corruption of another officer within Border Force. 5. Merhi's prior good character "[was] of little weight, as her employment within the Border Force and within the New South Wales Police Force would have been conditional on her good character". 6. His Honour had "some doubts as to the prospects of rehabilitation of the offender, given the rather lukewarm statements in the sentencing report relating to her contrition and remorse, and why she is remorseful". Nevertheless, his Honour took her remorse into account. 7. His Honour took into account that her custody would be significantly harder than a normal prisoner and that she would likely be on protection. His Honour also took into account her daily reporting whilst on bail as "extra-curial punishment".

Consideration

Where there is a marked disparity between the sentences imposed on co-offenders giving rise to a justifiable sense of grievance, this Court will intervene. [30] The applicant must show that a reasonable person, looking at the circumstances of the case, would regard the applicant's grievance as justified. [31] The plurality (French CJ, Crennan and Kiefel JJ) in Green v The Queen; Quinn v The Queen said at [31]: "…The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The 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." [32] (Footnotes omitted.)
In [13] above, Basten JA appears to confine the parity principle to an offender who receives the more severe sentence. If this is what his Honour means, I do not think that the objective criteria by which disparate sentences may be assessed is restricted in this way. Where there are co-offenders, the differences in their respective cases may give rise to a lesser sentence than a sentencing judge imposed, even if the aggrieved offender did not receive the more severe sentence at first instance.
In the present appeal, the Crown did not submit nor did the Court hear argument that the applicant's appeal should fail as he had the benefit of a lesser sentence than Merhi.
The following passage in Dawson J's judgment in Lowe v The Queen is often quoted as a seminal statement of the parity principle: "There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and it has come to be recognized both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done." [33]
Dawson J's exposition does not restrict the application of the parity principle to an "offender with a heavier sentence". The scope of the principle extends to giving "the appearance that justice has not been done". Mason J (as his Honour then was) at 610 emphasised the "notion of equal justice" when he said: "Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."
The High Court's consideration of the parity principle in Postiglione v The Queen [34] and Green v The Queen did not confine its application to a co-offender who has a more severe sentence.
In any event, as will be seen at [132] below, the result of this Court's reduction in Merhi is that the undiscounted starting point of the applicant's aggregate sentence is more than Merhi's.
The judge gave careful consideration to the parity principle when he sentenced the applicant. The disparity between the sentences imposed upon the co-offenders was justified not only by the additional charge that Merhi faced and the additional discount that the applicant received for assistance, but also by the differences that each had played in the criminal enterprise and their subjective cases.
When this Court reduced Merhi's sentence, no mention was made in the judgment of the parity principle and the applicant's sentence. It appears that no consideration was given to the relationship with the applicant's sentence. No findings were made that altered the judge's assessment of the higher culpability of Merhi and her less favourable personal circumstances other than the weight to be given to her prior good character. In my view, the result in this case is that the difference between the sentences has been disturbed to such an extent that it gives rise to a legitimate sense of grievance on the part of the applicant.
I respectfully disagree with Basten JA's conclusion at [34] above that there is no ground upon which this Court can intervene to reduce the applicant's sentence. Although I accept that after appeal, "the correct comparator" is the sentence imposed by this Court upon the co-offender, the differences in the objective gravity of their offending and subjective cases largely remain. The judge's findings included that Merhi's position in the syndicate was significantly higher than that of the applicant; the applicant had a very high degree of remorse and there was no prospect of his re-offending whereas his Honour expressed doubt as to Merhi's prospects of rehabilitation and described Merhi's statements of remorse as "lukewarm". The circumstances in this case are different to the example in [24] above which is dependent upon the sole difference being the roles that the hypothetical co-offenders played in the organisation.
The difference between the aggregate head sentences has been reduced from 18 months to 6 months and for the non-parole periods from 15 months to 6 months. The narrowing of the divergence between the aggregate sentences is emphasised by their undiscounted starting points. After appeal, the undiscounted starting point of Merhi's aggregate sentence is 6 years' imprisonment with a non-parole period of 3 years and 4 months whereas the undiscounted starting point of the applicant's aggregate sentence is 6 years and 2 months' imprisonment (round figures) with a non-parole period of 3 years and 1 month.
Although it is true as Basten JA points out at [27] above that the indicative sentences for the common offences for Merhi were each 12 months more than those indicated by the judge for the applicant, it appears that the application of the totality principle by this Court in Merhi resulted in an undiscounted starting point in Merhi's aggregate sentence which was less than that of the applicant.
This is the kernel of the applicant's justifiable sense of grievance.
In discussing the totality principle in Postiglione v The Queen, McHugh J said at 307: "The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved."
I do not understand Basten JA to suggest that the totality of Merhi's criminality was equal to or less than that of the applicant following the decision of this Court in Merhi. How then can the notion of equal justice be fulfilled by a higher aggregate sentence for an offender with the lesser total criminality before the sentencing discount is applied? How then can there be due proportion between the sentences of the co-offenders? In Postiglione v The Queen, Dawson and Gaudron JJ said at 301-2: "Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."
In my respectful opinion, it is to be accepted that a starting point for the applicant's aggregate sentence which exceeds that of his co-offender is inconsistent with the notion of equal justice and cannot otherwise be justified.
It is this Court's duty to re-sentence the applicant "unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed". [35]
Before I proceed to re-sentence, I should indicate my agreement with the views expressed about this Court's judgment in Merhi by Basten JA at [36]-[38] above.

Additional material admitted on re-sentence

Two affidavits from Aaron Roberts, the applicant's solicitor and an unsworn affidavit from the applicant were admitted on re-sentence. The Court accepts that the applicant was unable to swear his affidavit due to difficulties arising from the COVID-19 pandemic and there was no challenge by the Crown to the truth of the contents of the affidavit.
All of this material establishes that the applicant has been co-operative, polite and hardworking whilst in custody. It adds strength to the judge's very favourable findings of the applicant's rehabilitation and that he had no prospects of re-offending.

Re-sentence

In determining the sentence to be passed, the Court must impose a sentence that is of a severity appropriate in all of the circumstances of the offence: s 16A(1) of the Crimes Act 1914 (Cth). In addition to any other matters, the Court is obliged to take into account such of those matters in s 16A(2) of the Crimes Act that are relevant and known to the Court.
For the purposes of re-sentencing, his Honour's findings as to the objective seriousness of the offences and as to the applicant's subjective case have not been challenged. Accordingly, I intend to adopt all of those matters in re-sentencing the applicant.
Furthermore, the discounts of 25% for the pleas of guilty and approximately 10% for assistance to authorities have not been in dispute. A discount of 35% will be allowed on re-sentence.
The applicant's offending constitutes a very serious breach of the trust reposed in him as a Senior Border Force officer. He used his position and knowledge of ABF systems to provide sensitive information to Merhi and to ensure that the imported tobacco was not detected. The amount of duty evaded was approximately $6,150,000 and the applicant received a cash payment of $100,000 for his corrupt conduct.
The judge recognised that the corruption of an ABF officer represents a significant danger to the community. This danger arises as "[t]he maintenance of Australia's border security is dependent upon the integrity of Customs officers who are the sentinels of the system." [36] This Court has emphasised the importance of deterring other ABF officers from engaging in corrupt conduct.
Turning to the issue of parity with Merhi's sentence, an equivalent arithmetical reduction in Merhi's sentence to the applicant's sentence would result in an aggregate sentence of 3 years and 3 months with a non-parole period of 1 year and 6 months (round figures). However, this Court is neither obliged to exercise mathematical precision when applying the parity principle, [37] nor required to reduce "the sentence to a level which would be … an affront to the proper administration of justice". [38]
Given the objective gravity of the applicant's offending and the maximum penalty for each offence of 10 years' imprisonment, the scope for reduction in the applicant's sentence is limited. Whilst I will propose some reduction in the head sentence, in my respectful opinion, the non-parole period imposed by the judge was generous. Any further reduction in the non-parole period would result in a minimum term of imprisonment that is manifestly inadequate.
In assessing the aggregate sentence, I have fixed an appropriate sentence for each offence and considered questions of cumulation or concurrence and totality. Moreover, I bear in mind the greater weight given to Merhi's prior good character on appeal which militates against a purely mathematical exercise in determining the due proportion between the sentences of the co-offenders.
I indicate that for each offence a sentence of 3 years and 3 months' imprisonment would have been imposed but for the aggregate sentence after the 35% discount had been applied.
In the exercise of my own sentencing discretion, I would impose an aggregate sentence of 3 years and 6 months' imprisonment with a non-parole period of 2 years. The undiscounted starting point of the aggregate head sentence is 5 years and 5 months (round figures).
Accordingly the orders I propose are: 1. Grant leave to appeal. 2. Allow the appeal. 3. The sentence imposed by McClintock SC DCJ on 2 August 2019 is quashed. 4. In lieu thereof, the applicant is sentenced to an aggregate term of imprisonment of 3 years and 6 months commencing on 8 July 2019 and expiring on 7 January 2023 with a non-parole period of 2 years expiring on 7 July 2021.

Endnotes

Merhi v R [2019] NSWCCA 322.
(1997) 189 CLR 295; [1997] HCA 26.
Postiglione at 309 (McHugh J); 321 (Gummow J); 339 (Kirby J).
(1990) 21 NSWLR 370 (Kirby P, Campbell and Newman JJ), at 378.
(1984) 154 CLR 606; [1984] HCA 46.
(2011) 244 CLR 462; [2011] HCA 49.
Lowe at 609.
[2018] NSWCCA 13.
[2018] NSWCCA 59.
[2018] NSWCCA 95.
Lin at [48].
Lin at [10].
[2018] NSWCCA 21.
Chaloner at [2], referring to Tarrant and Lin.
[2018] NSWCCA 95.
Chen at [43], referring to Lin at [4] and [51].
Green at [31] referring to Postiglione at 323 (Gummow J) and 338 (Kirby J).
Green at [31].
(2013) 252 CLR 381; [2013] HCA 40 (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
Merhi at [47], [51].
[2005] NSWCCA 370; 162 A Crim R 29 (McClellan CJ at CL and Adams J agreeing, at [47], [52]-[59]).
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 ("Green & Quinn").
Ibid at [28].
Andrews v Law Society of British Columbia [1989] 1 SCR 143, per McIntyre J.
A. V. Dicey, "Introduction to the Law of the Constitution", 8th Ed. (1915), pp. 185 et seq.
Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60.
Andrews v Law Society of British Columbia, supra.
Hamieh v R [2007] NSWCCA 277 per Rothman J, with whom James and Harrison JJ agreed.
[2019] NSWCCA 322 ("Merhi").
Postiglione v R (1997) 189 CLR 295; [1997] HCA 26; 71 ALJR 875; 145 ALR 408; 94 A Crim R 397.
R v Ilbay [2000] NSWCCA 251 at [6]; R v Kollas and Mitchell [2002] NSWCCA 491 at [50].
(2011) 244 CLR 462; [2011] HCA 49; 86 ALJR 36; 283 ALR 1; 214 A Crim R 152 ("Green & Quinn").
(1984) 154 CLR 606 at 623; [1984] HCA 46; 58 ALJR 414; 54 ALR 193; 12 A Crim R 408.
(1997) 189 CLR 295; [1997] HCA 26; 71 ALJR 875; 145 ALR 408; 94 A Crim R 397.
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; 88 ALJR 947; 313 ALR 451; 238 A Crim R 134 at [35].
R v Lamella [2014] NSWCCA 122 at [57].
Rees v R [2012] NSWCCA 47 at [65].
Green & Quinn (2011) 244 CLR 462; [2011] HCA 49; 86 ALJR 36; 283 ALR 1; 214 A Crim R 152 at [33].

Amendments 11 November 2020 - Para formatting 11 November 2020 - electronic formatting 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: 11 November 2020

Parity principle

The parity principle, summarised, re-stated and re-affirmed by the High Court, is of long-standing. [22] In Green & Quinn, [23] the High Court sourced the principle to the norm of equal justice, as part of the Rule of Law, introduced to England in the 16th century and derived, it was said, from the Isonomia of Solon. The Canadian Supreme Court sourced its origin to the Aristotelian principle of formal equality, [24] but Aristotle in the third century BC relied, in turn, on the Solonian Constitution, which was published in the seventh century BC.
Whatever its origin, the fundamental application of equal justice is unquestioned. As explained by Dicey in "The Law of the Constitution," [25] constitutional governance depends on the supremacy of the Rule of Law, which, in turn, requires "equality before the law" and is the consequence of the assertion and enforcement of the rights of individuals.
In Jimmy v The Queen [26] , I dealt with the concept, as a principle, while agreeing, generally, with the very detailed analysis, undertaken by Campbell JA, of judgments that applied the principle of parity in sentencing. After referring to the judgment in Andrews, [27] I said: "[259] It is the principle of equal justice that has found expression in the principles of parity as between co-offenders. [260] When one is comparing the sentence imposed upon co-offenders, using the term… to mean persons involved in and charged with the very same crime, comparison of like with like and any substantial differences warranting different treatment are easily identified. When one is dealing with persons, who are not co-offenders in the strict sense, proper comparison is usually impossible."
The principle of equal justice requires that those persons who are, relevantly, alike should be treated alike and with respect to those persons for whom there are differences that are relevant to the operation of the law, due and rational allowance should be made for such differences. As I have previously stated: "[4] The principles applied by sentencing courts (and on appeal therefrom) in relation to parity are well established. The parity principle is a manifestation of the application of the principles of equal justice. It requires that like should be treated alike and, where there are relevant differences, due allowance should be made for such differences: Postiglione v The Queen (1997) 189 CLR 295 at 301, per Dawson and Gaudron JJ; R v Tiddy [1969] SASR 575 at 577. [5] Discrepancy, of itself, is not sufficient to warrant intervention by an appellate court. The discrepancy, viewed objectively, must be unjustifiable, the difference in sentence being unjustifiable on the objective and/or subjective differences in the co-offenders. Even when such unjustifiable differences occur, an appellate court will not intervene if the result of intervention would be to reduce the sentence of an offender to a level which would be inappropriate for the offence in question: McKenna v Regina [2007] NSWCCA 113 at [48]-[55]." [28]
As an aspect of the Rule of Law, the principle of equal justice is applicable universally. On one view, with which it is unnecessary to deal in these reasons, it may limit executive and legislative power. The necessity for the application of equal justice to offenders in imposing sentences applies to all offenders. At least in the case of co-offenders, this requires that there be parity between the offenders in the sentences that are imposed upon them. As a consequence, a sentencing court is required to assess the relative objective seriousness of each of the offenders and the relative subjective factors, both of which factors must be synthesised, intuitively, for the purpose of achieving the purposes of sentencing.
I make it clear that in my view "disparity" means inequality. A difference in a sentence, which difference reflects the application of the principle of equal justice, cannot be classified as a "disparity".
Yet, as a consequence of the application of the principle, it matters not whether an offender has a higher, lower or the same sentence as that which was imposed upon a co-offender. That which is important is whether, if the sentences are different, or if they are the same, that relationship rationally reflects the relevant differences between the co-offenders or the lack of relevant differences.
As such, an offender with a lower sentence is entitled, to the same extent as any other offender, to rely upon a disparity in the sentence imposed on that offender, compared with other offenders in the criminal enterprise. With respect to the comments of Price J, I do not understand anything in the reasons of Basten JA to be to the contrary.
Rather, the comments of Basten JA deal with whether it is necessary, in the current circumstances, to reduce the sentence imposed upon the applicant, as a result of the reduction in the sentence imposed upon his co-offender. The fact that the applicant's sentence is and was a lower one is irrelevant to that exercise.
Where a judicial officer has established a parity that is not plainly wrong, that parity should not be disturbed, except on a proper basis. Where, for example, a sentence imposed on one co-offender is determined, on appeal, to be manifestly excessive, then an alteration to that sentence on appeal will, necessarily, have consequential effects on co-offenders.
Similarly, where a sentencing judge has committed error in imposing a sentence, which error applies to each of the co-offenders that has been sentenced, an alteration, on appeal, to one of the sentences may have, and probably will have, a consequential effect and require, if the co-offender raises the issue, adjustment of the co-offender's sentence. Again, it matters not whether the co-offender has a sentence imposed that was lower or higher than the first sentence that has been corrected.
Where, however, parity has been set between two co-offenders, about which there is no initial issue of disparity, and it is determined, on appeal, that a relevant circumstance to one of the co-offenders has not been considered, then the lack of consideration has not only affected the sentence to be imposed on the appellant, but also impacts upon the parity set between the appellant and the co-offenders.
To take an obvious example. Assume, hypothetically, that two offenders are relevantly identical in objective seriousness and in subjective circumstances, except as stated herein. A sentencing judge imposes, on each of them, an identical sentence to the other. One of the co-offenders appeals, because that co-offender pleaded guilty at the earliest opportunity, while the other co-offender was found guilty after trial and that difference was not taken into account.
The reduction in the sentence imposed, on account of the utilitarian value of a plea of guilty, affects only that offender that has pleaded guilty and the fact, as it would be, that on appeal that co-offender had the sentence imposed reduced by say 25% could not give rise to a legitimate sense of grievance, nor to a reduction in the sentence imposed on the co-offender that has gone to trial.
In other words, in the foregoing hypothetical, the parity established by the sentencing judge was incorrect because it failed to take into account the plea of guilty for one but not the other co-offender. That obvious and most unlikely example is utilised, because the issue is most obvious in that example. Yet, it is the same issue that applies to any consideration that applies to one of a number of co-offenders and not the others.
If a relationship between sentences for co-offenders were to have been established, without having regard to a consideration that would lower the sentence that properly should have been imposed upon one of a number of the co-offenders, then the parity has been incorrectly established and the correction of the error does not, necessarily, give rise to the need for an adjustment in the sentence imposed on the other co-offenders.
As a consequence of the foregoing, the question is not, in my view, to be decided on the basis of the question identified by Basten JA at [1] above. An erroneous sentence, overturned on appeal, may give rise to a justifiable sense of grievance, or it may not. It will very much depend upon the error that is determined and whether that error informs the sentence imposed, not only on the successful appellant, but on other co-offenders who were sentenced, presumably, in a manner that sought to effect parity with the successful appellant. The determination of a subsequent appeal based on an alleged justifiable sense of grievance is determined, still, by the principle of equal justice and parity between co-offenders.
Ultimately, the parity that applies, after the successful appeal, may or may not be the implementation of a rational difference between co-offenders. In determining that question, the Court on appeal takes into account that there is not one single correct sentence.
If the sentence imposed upon the subsequent co-offender, in this case the applicant, and the sentence imposed on the original successful appellant by the appellate court rationally reflect the relevant differences between them, then there is no justifiable sense of grievance. Even where the subsequent appeal court considers it may have reflected the sentence imposed upon the applicant for leave to appeal in a manner differently than the sentencing judge, in and of itself, that opinion is not sufficient to allow intervention.
As has been summarised and noted by Price J, the sentencing judge gave careful consideration to the parity of the sentences between the applicant in this appeal and his co-offender, Ms Merhi. That relationship was disturbed on appeal and, as has been submitted, this Court, on appeal, reduced Ms Merhi's head sentence by approximately 18% and the non-parole period by approximately 23%. There can be little doubt that, as a consequence of that adjustment, there is an altered difference between the sentence imposed on the applicant and the sentence imposed on Ms Merhi.
However, the sentence imposed upon Ms Merhi, at first instance, was said, by this Court, to disclose error on the basis that the good character of Ms Merhi did not inform the sentence imposed upon her. The issue of Ms Merhi's good character is a relevant mitigating factor only for Ms Merhi. It is not said that, in relation to the applicant (or any other co-offender), good character did not inform the sentences imposed upon him (or them).
As a consequence, the good character of the applicant informed the sentence imposed upon him and, theoretically, the parity established by the sentencing judge was parity relevant to the sentence imposed upon the applicant and a hypothetical offender, being Ms Merhi without good character. Since sentencing is an intuitive process in which the objective and subjective circumstances of the offence and the offender are synthesised for the purpose of achieving the purposes of sentencing, the reduction of one sentence by between 18% and 23%, even if it ultimately discloses a disparity, does not, necessarily, involve a consequential reduction in an arithmetically precise and identical manner.
I turn then to the particular circumstances of this application for leave to appeal. As earlier stated, the parity to which the sentencing judge gave careful consideration was parity between the applicant and a hypothetical offender, who was the equivalent of Ms Merhi without good character. Ms Merhi's sentence has now been adjusted to take account of the good character.
The reasons for judgment of Price J, in effect, in this matter, but without so stating, must involve the proposition that the sentencing judge's initial parity between the applicant and Ms Merhi was correct, notwithstanding that, in relation to the applicant, good character was a consideration and, in relation to Ms Merhi, good character was not a consideration ameliorating the sentence to be imposed.
The logic of that proposition may be, in effect, that the judgment of this Court in Merhi was wrong, either because the sentencing judge did, notwithstanding his comments, take good character into account or because it misapplied the totality principle.
Ultimately, as earlier stated, the issue is one that must be resolved on the basis of the application of the principles of equal justice by determining whether, objectively, the applicant has a justifiable sense of grievance. The ultimate sentence imposed on Ms Merhi, after appeal, is a fact with which the Court must deal and about which the Court, as presently constituted, can do nothing.
Further, as I accept that the totality of Ms Merhi's criminality was not equal to or less than that of the applicant, even taking into account Ms Merhi's good character, the result that Ms Merhi's sentence is calculated from a starting point, for the aggregate sentence, less than that applicable to the applicant is inappropriate from the standpoint of parity.
It seems to me that the sentencing judge has, intuitively, arrived at an appropriate relationship between the sentences imposed on Ms Merhi and the applicant. Frankly, this has probably occurred because of the significant experience of the sentencing judge, who ultimately and intuitively, arrived at the right degree of parity notwithstanding his qualification to the weight to be applied to Ms Merhi's good character.
I agree with the principles that underpin the reasons for judgment of Basten JA. However, if I am, as I have indicated, required to apply the fundamental principle of equal justice appropriately, then, in my view, the applicant does have a justifiable sense of grievance, because his aggregate sentence, which is the sentence under appeal, undiscounted, was higher than Ms Merhi's aggregate sentence, also undiscounted.
In those circumstances, it seems to me there needs to be an adjustment to the sentence imposed upon the applicant.
For the foregoing reasons, while agreeing with the principles underpinning the reasons for judgment of Basten JA, I agree with the orders proposed by Price J.
PRICE J: I respectfully do not agree that the appeal turns on the answer to the question posed by Basten JA in [1] above. In my view, the question in this appeal is whether Craig Richard Eakin ("the applicant") has a justifiable sense of grievance arising from the re-sentencing by this Court of a co-offender, Johayna Merhi ("Merhi").
The applicant and Merhi, who had worked together as Customs Officers at the Australian Border Force ("ABF") agreed to assist with the importation of undeclared cigarettes from Vietnam. After their conduct was detected, Merhi was charged as follows: 1. Bribery of a public official contrary to s 141.1(1) of the Criminal Code (Cth) which carries a maximum penalty of 10 years' imprisonment. 2. Aid and abet the importation of tobacco products, knowing that the goods were imported with intent to defraud revenue contrary to s 11.2(1) of the Criminal Code in combination with s 233BABAD(1) of the Customs Act 1901 (Cth) which carries a maximum penalty of 10 years' imprisonment. 3. Dealing in proceeds of crime greater than or equal to $100,000 contrary to s 400.4(1) of the Criminal Code which carries a maximum penalty of 20 years' imprisonment.
On 12 April 2019, Merhi was sentenced by McClintock SC DCJ ("the judge") to an aggregate term of 5 years and 6 months' imprisonment with a non-parole period of 3 years and 3 months.
The applicant was charged as follows: 1. Aid and abet the importation of tobacco products, knowing that the goods were imported with intent to defraud revenue contrary to s 11.2(1) of the Criminal Code in combination with s 233BABAD(1) of the Customs Act which carries a maximum penalty of 10 years' imprisonment. 2. Dishonestly agree to receive or obtain a benefit with the intention that duties as a Commonwealth official would be influenced contrary to s 141.1(3) of the Criminal Code which carries with it a maximum penalty of 10 years' imprisonment.
On 2 August 2019, the judge sentenced the applicant to an aggregate term of 4 years' imprisonment with a non-parole period of 2 years.
The applicant does not make any complaint about the difference in aggregate sentences imposed upon him and Merhi by the judge. His ground of appeal is: "That following the decision of Merhi v R [2019] NSWCCA 322 there is a disparity in the sentence of the [applicant] to the co-offender, Ms Johayna Merhi."
In Merhi v R, [29] this Court (Macfarlan JA, Harrison and Cavanagh J) upheld one of three grounds of appeal. In Ground 2, Merhi complained that the judge erred "in taking into account the applicant's employment at the time of the offending as a matter limiting the weight to be given to good character".
In upholding Ground 2, Cavanagh J (with whom Macfarlan JA and Harrison J agreed) said: "[55] However, as I have taken his Honour's comments to mean that he was, in effect, dismissing prior good character as a relevant mitigating factor (having regard to the way in which his Honour indicated that he was taking account of the other matters referred to in s 16A of the Crimes Act 1914), I accept the applicant's submission that this is not merely an error in the weighting process or balancing the various factors. [56] In my view, the applicant's prior good character was a relevant factor in the sentencing process. To not have regard to it may be viewed as a form of double-counting. Whilst not strictly applicable, it may be analogous to that which is precluded by s 21A(2) of the Crimes (Sentencing Procedure) Act. The intent of the words at the end of s 21A(2) is to ensure that a breach of trust is not considered as an additional aggravating factor when the charge itself stems from being in a position of authority. This is to ensure that the same fact is not taken account of to the detriment of the offender more than once in the sentencing process."
This Court quashed the District Court sentence and imposed an aggregate sentence of 4 years and 6 months' imprisonment with a non-parole period of 2 years and 6 months.

Eakin v R

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