Eastman v Director of Public Prosecutions

The Application 8The sole basis for the application for an inquiry is an asserted lack of parity between the sentence imposed on the applicant and that imposed upon Mr Pavan (see Postiglione v The Queen [1997] HCA 26; 189 CLR 295). 9There was no opportunity for the applicant to raise this as a ground of appeal before the Court of Criminal Appeal. At the time of that appeal Mr Pavan had not been sentenced. The applicant concedes and the Crown does not dispute that the orders of the Court of Criminal Appeal have now been perfected either by their entry onto the Court's computerised record system or the preparation of a notification of the Court's determination (see rr 50B and 51 of the Criminal Appeal Rules). As those orders provided for leave to appeal to be granted but the appeal dismissed, it follows that the perfection of the orders means that it does not have jurisdiction to re-open the appeal (Grierson v The King [1938] HCA 45; (1938) 60 CLR 431; Postligione at 300). 10Two issues arise on this application. First, the Crown has raised an issue of construction as to whether the applicant's complaint of a lack of parity raises a "doubt or a question" as to a "mitigating circumstance" within the meaning of s 79(2) of the Act. Second, if that question is resolved in the affirmative does the material pointed to by the applicant cause me a "feeling of unease or a sense of disquiet" in allowing, in this case, the sentence to stand (Varley v the Attorney General of NSW (1987) 8 NSWLR 30).

"A doubt or question as to a mitigating circumstance?" 11Sections 78 and 79 of the Act provide: 78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. (2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister. 79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (3A) The Supreme Court may defer consideration of an application under section 78 if: (a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or (b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or (c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered. (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application). 12The Crown's submissions queried whether the application of the principle of parity is a "mitigating circumstance" within the meaning of subsection 79(2). They suggest that it is not, as parity is "a principle that is applied as between offenders, after the relevant objective and subjective features of each [of] the offenders and other relevant factual and evidentiary matters have been determined". The Crown submits that "[o]nly then is the question of parity considered". 13The applicant contended that this argument involved an unduly restrictive interpretation of "mitigating circumstance". He contends that it was the intention of the legislature to give the Supreme Court broad powers to conduct reviews of convictions and sentences. He also contends that, properly understood, the principle of parity is only capable of mitigating a sentence and not increasing it (citing R v Radloff (1996) 88 A Crim R 26 at 31 - 32 per Cox CJ). 14In Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 at [60] Heydon J confirmed that former s 475 of the Crimes Act 1900 formed part of a scheme of remedial legislation and should be given a beneficial construction although then it is not an excuse to "construe a statute so as to achieve a result which they think the legislature should have enacted" (citing Varley at 34, per Hope JA). Section 475 of the Crimes Act 1900 was the predecessor to ss 78 and 79 and for present purposes was not relevantly different. 15In Eastman at [18] McHugh J stated, inter alia: "Together with the 'mitigating circumstances' limb, it suggests that s 475 as a whole was concerned with what happened at the trial and with new evidence that suggests that the prisoner should not have been convicted or that his or her culpability is less than might appear from the conviction." 16Both the applicant and the Crown's argument appears to have proceeded upon the premise that the "mitigating circumstance" was the application of the parity principle. If that is the correct characterisation of their submissions then I do not agree. In my view the (potentially) mitigating circumstances was the sentence imposed on Mr Pavan which occurred after the applicant's sentence and appeal. Whether it was truly a mitigating circumstance depends upon the application of the parity principle to that circumstance (and to other circumstances relating to the applicant's sentence). A "doubt" or "question" as to the guilt of a person can clearly arise from evidence that emerges or events that occur after their conviction. Similarly, a "question" as to a mitigating circumstance can arise from evidence that emerges, or events that occur, after the sentence. I see no reason why a question as to the existence of a mitigating circumstance cannot arise even if the circumstance was not known at the time the sentence was imposed. 17The point raised by the Crown might arise if all that was contended for was that a different legal framework should have been applied in assessing the weight to be attached to the circumstances known at the time of sentence or any appeal from the sentence. Even then it might be arguable that there is still "a question" as to any "mitigating circumstance". However, it is not necessary for me to consider this further.

Parity 18It follows from the above that I must then consider whether the sentence imposed on Mr Pavan raise a "doubt or question" as to a "mitigating circumstance" in this case. For it to reach that threshold in this case it must at least raise the question whether it is in fact a mitigating circumstance (see Eastman at [134]). I interpret the threshold of whether it "rais[es]" such a question in a manner consistent with Varley, namely, whether it leads me to consider that the sentence imposed on Mr Pavan is such that I have a "feeling of unease or sense of disquiet" about the sentence imposed on the applicant. This in turn raises the application of principles of parity. 19The circumstances of the applicant's offence were recorded in the Court of Criminal Appeal's judgment as follows (at [21] to [26]): "21. On the evening of 25 February 2005, 'Tom' went to 'P's' house in Maroubra. He had with him a kilogram of cocaine which had been provided to him by police under an authority granted under the Law Reform (Controlled Operations) Act 1997. 22. 'Tom' and 'P' drove to Torrington Road, Maroubra. The car stopped 50 metres in front of a Toyota Landcruiser which had Victorian number plates which were registered to the applicant. 23. 'Tom' gave the cocaine to 'P' who left the vehicle and walked towards the Landcruiser. However, Tom did not see what happened next, because it was dark. 'P' returned with a black bag. The bag contained $165,000 in cash and a note which read 'I want one the same again. If I do not ring you midday tomorrow I will be in the same spot Friday week at the same time'. The note, as I have earlier observed, was objected to as being inadmissible. 24. Police subsequently followed the Landcruiser from a point in Maroubra to Albion Park, near Wollongong. 25. On Friday 4 March 2005, 'Tom' again went to 'P's' house with a kilogram of cocaine, again supplied by police pursuant to a controlled operation. 'P' was given the cocaine and left the car and came back with a bag containing money. 26. The applicant's car was observed by police in the vicinity of Malabar Road and it was followed to Victoria. Victorian Police stopped the vehicle and the cocaine identified as that the police had given 'Tom' was located in the vehicle." 20The sentencing judge found that the applicant was a courier but not a "mere courier". The applicant was found to have a level of involvement in the "drug selling operation which allowed initiative and decision making". His Honour found the applicant performed "a significant and essential role" in the supply of substantial quantities of drugs. 21At the time of sentence the applicant was 53 years of age with no prior convictions. His Honour found that this was a "significant matter" but this "was qualified because there is no doubt that the offender has been involved in drug taking for a lengthy period of time". His Honour described the applicant as having "an extremely long term history of drug abuse". This long-term addiction and his reported lack of insight led his Honour to find that he could not "make a positive finding in the [applicant's] favour that he is unlikely to re-offend". However, his Honour found that he would benefit from an extended period of supervision and made a finding of special circumstances. 22His Honour found the applicant was remorseful and was afforded a discount of 20% to reflect his plea of guilty albeit at a level of culpability that was ultimately not accepted. As I have stated the applicant was sentenced to a total term of imprisonment of 11 years with a non-parole period of 7 years. 23Mr Pavan was also dealt with by his Honour Judge Berman SC DCJ. His Honour recorded the circumstances of Mr Pavan's offences as follows (R v Pavan at [5] to [8]): "5. The offender became involved in these transactions after meeting a man by the name of Hatfield. He was one of the Mr Bigs I referred to earlier. Hatfield together with two others, Leslie Mara and Michael Hurley, were involved in large-scale cocaine importation and distribution. Having a large quantity of cocaine in their possession, they needed to sell it for profit. Part of that process required the identification of prospective purchasers and the handing over of the cocaine and the receipt of money. 6. The offender said that he owed on Hatfield's behalf a significant sum of money, and that Hatfield suggested that one way that the money could be recouped was if the offender became involved in the first of the transactions. That was the supply of a kilogram of cocaine to two men, Hinch and Dowe, on 23 February 2005. 7. It was the offender who caused Mr Dowe to be recruited to the chain of drug supply. To put matters more clearly, it was the offender who identified Dowe as a prospective purchaser and then made arrangements for the handing over of the cocaine and the receipt of the money. The offender was present when the actual transaction took place, supervising it and making sure that all went to plan. How the offender was able to identify someone who wanted to buy a kilogram of cocaine was not made clear. 8. The other two transactions were broadly similar in that the offender identified a Mr Stephens as someone who was involved or interested in obtaining two kilograms of cocaine. On two separate occasions the offender arranged the supply of about a kilogram of cocaine to Mr Stephens for the payment of significant sums of money. These transactions would likely not have taken place were it not for the offender's involvement. He had a very significant role in what occurred." 24His Honour found that Mr Pavan had a significant role in the drug supply transactions. In relation to the two drug supplies to the applicant, his Honour found that he had a very significant role. Rather than classify Mr Pavan as a "principal" or "courier", his Honour sentenced Mr Pavan on the basis that he had obtained the purchasers, arranged the transactions and supervised them. 25At the time of sentence Mr Pavan was 60 years of age. Although he had a criminal history, his Honour found that Mr Pavan was "in many respects a man of good character". His Honour found that he had managed to reach the age of 56 with only minor matters on his criminal history, which was "testament to his underlying character" (Pavan at [3] to [4]). 26Notwithstanding that his Honour accepted that Mr Pavan was a user of cocaine at the time, his Honour found he had involved himself in drug transactions for financial gain, even if that financial advantage was relatively small (Pavan at [11]). 27His Honour also found Mr Pavan expressed remorse and contrition. Mr Pavan received a 20 percent discount for the plea of guilty (Pavan at [14]). His Honour also made a finding of special circumstances (Pavan at [20]). As I have stated his Honour sentenced Mr Pavan to imprisonment for 12 years with a non-parole period of seven and a half years. 28Two further matters should be noted about Mr Pavan's sentence. First, his Honour specifically found that Mr Pavan had "good prospects of rehabilitation and is unlikely to re-offend due in no small measure to the substantial support he will receive on release from custody" (Pavan at [4]). 29Second, his Honour specifically referred to the sentences imposed on others involved in the drug supplies including the applicant and stated (Pavan at [18]): "The principles of parity do apply such that I should ensure that the offender is not left with a justifiable sense of grievance when he compares the sentence imposed upon him with the sentence imposed upon the others. As I said, there are many differences between their cases and this, the most important of which is that the offender was involved in three separate transactions, more than Finch, Dow or Stephens. It is significantly more serious for the offender to have involved himself in the further supply of one kilogram when comparing the sentence imposed upon him to the sentence I earlier imposed upon Stephens. The supply of a kilogram of a dangerous drug such as cocaine is not something lightly set aside and ignored." 30It is sufficient for present purposes to refer to the discussion on parity in Postiglione (noting that the principle was considered in the context of Crown appeals in Green v The Queen; Quinn v The Queen [2011] HCA 495 (2011) 86 ALJR 36). In Postiglione at 301 in the joint judgment of Dawson and Gaudron JJ it was said: "The parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'." 31In Postiglione at 309 McHugh J said: "If a judge wrongly fails to give effect to the parity principle, an appellate court will intervene to correct what is an error in sentencing principle. In Lowe v The Queen, Gibbs CJ, with whom Wilson J agreed, said that an appellate court should intervene where 'the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done'. Mason J stated that an appellate court is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance. Dawson J, with whom Wilson J also agreed, was of the view that '[t]he difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice'." 32And in Postiglione at 323 Gummow J said: "The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done. In R v Taudevin (1996) 2 VR 402 at 404, Callaway JA said, in a passage with which I agree: "The important words are 'manifestly', 'justifiable' and 'objective'. There is much to be said for the view that all three requirements are variations on the same theme, ie that only a manifest discrepancy in the sense of a difference that is clearly excessive will satisfy the other two requirements." 33In Postiglione at 335 Kirby J said: "The removal of serious and unjustifiable disparities in the treatment of like cases is a legitimate goal of the administration of criminal justice." 34A mere disparity is insufficient. It must be a manifest discrepancy in the sense of a difference that is clearly excessive (see Newman v R [2012] NSWCCA 69 at [22] per Black J). 35My consideration of this application is an exercise of administrative, not judicial power (Varley at 48-50). I am not exercising the jurisdiction of the Court of Criminal Appeal. Instead I am only considering whether a question is raised as to a mitigating circumstance. My task is to determine whether there is a "sense of disquiet" over the sentence. It is not my function to resolve any such disquiet. Nevertheless, I do not consider that the parity argument is sufficiently strong to enable me to conclude that any such question is raised. The sentencing judge was completely cognisant of the need to apply the parity principle. The subjective case of Mr Pavan was significantly stronger than that of the applicant, especially the finding concerning his likelihood of re-offending. The quantity of drugs supplied and the increased role of Mr Pavan was certainly a differentiating factor that warranted a longer sentence. The extra term of 1 year on the overall sentence and six months on the non-prole period reflected that in the context of Mr Pavan's superior subjective case. The sentence imposed on Pavan does not raise a question as to whether there is a manifest discrepancy between that sentence and the sentence imposed on the applicant. 36The sentence imposed on Mr Pavan does not give rise to a sense of disquiet in the sentence imposed on the applicant. I do not consider that there is a doubt or a question as to any mitigating circumstance concerning the applicant. 37The application is refused.

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