Emanuele v R

The Crown submissions

1. The Crown submits that on a proper reading of the sentencing judgment, the sentencing judge must be taken to have appreciated the different offences to which the co-offender had pleaded guilty and dealt with this issue when considering the issue of parity. The Crown relies on the observations of her Honour regarding the applicant being the "facilitator". Further, the Crown submits that the applicant's plea of guilty was explicitly stated on the basis that he knew that the quantity of the drug was close to 1,000 grams, being the statutory threshold for a large commercial quantity.
2. The Crown submits that the differing maximum penalties are not decisive. The maximum penalties are merely one of the factors bearing on the determination of the sentences: Elias v R (2013) 248 CLR 483; [2013] HCA 31 ("Elias") per French CJ, Hayne, Kiefel, Bell and Keane JJ at [27].
3. The Crown also submits that the co-offender's offending involved a quantity of the drug that was only 0.7 grams over the relevant statutory threshold. This was far removed from the most serious example of the supply of a large commercial quantity of a prohibited drug and, in those circumstances, the relevance of the maximum penalty is diminished: Chiarlini v R [2023] NSWCCA 227 at [30].
4. The Crown submits that focussing on the very small difference between the offenders' relative knowledge of the exact quantity of the drug (and the associated difference in maximum penalty) would have had the effect of focussing on form rather than substance: Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 29 ("Green") at [30]; Narayan v R [2022] NSWCCA 163 at [73].
5. Finally, the Crown submits that the offenders' subjective cases operated with equal weight in the process of instinctive synthesis. The Crown submits that the identical sentences are justified having regard to the objective and subjective elements of each case.

Consideration

1. The point made by the applicant is not that he suffers from a sense of grievance because of any difference in sentence but, rather, that he suffers from a sense of grievance because he received the same sentence as the co-offender.
2. In Green, the Court (per French CJ, Crennan and Kiefel JJ) said at [31]: "Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may "reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender." The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v R: the reason why the court interferes in such a case is that it considers that 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. 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."
3. I accept that an offender may suffer from a justifiable sense of grievance when, despite there being differing circumstances, the offender receives the same sentence as his or her co-offender: Green at [30], Elias at [30].
4. The question is whether a sense of grievance or injustice is a legitimate one: Lowe v R (1984) 154 CLR 606 at 611; [1984] HCA 46 per Mason J. The test for determining this is objective rather than subjective. The question is not whether the applicant is subjectively aggrieved: R v Kelly (2005) 155 A Crim R 499; [2005] NSWCCA 280 per Johnson J at [11] (Simpson J agreeing).
5. Importantly, as was observed by Hoeben CJ at CL (with whom R A Hulme and Wilson JJ agreed) in Tuivaga v R [2015] NSWCCA 145 at [55]-[56], in circumstances in which the sentencing judge has recognised the importance of the parity principle and purported to give effect to it, appellate intervention should only occur where the disparity is "gross, marked or glaring" (referring to Tan v R [2014] NSWCCA 96 at [39]).
6. In my view, this is such a case. The sentencing judge was made aware of the importance of parity and sought to give effect to it. However, I am unable to accept that her Honour did so. Whilst the differing maximum penalties are not determinative, everything else being equal, it might be expected that co-offenders charged with different offences (that is, one being more serious) would receive differing penalties because each offender must be sentenced having regard to the offence for which they have been convicted.
7. As Basten JA said in R v Chandler; Chandler v R [2012] NSWCCA 135 at [7], "if one offence bears a lower level culpability, as reflected in the maximum penalty, that is an important factor to be weighed in the sentencing". That is not to say that the maximum penalty is determinative. In some circumstances, there may be little difference between an offender who has committed a low range example of a more serious offence and a co-offender who has committed a high range example of a less serious offence: see Humphreys v R [2020] NSWCCA 144 per Johnson J at [145]-[146], with Simpson AJA and Hamill J agreeing.
8. On one analysis, that might have been the view taken by her Honour. However, that is not what her Honour said. Her Honour found that both offences were below the mid-range of objective seriousness, although not at the lower end of the range. Further, her Honour specifically found that the offenders' subjective circumstances were very similar and that it was difficult to differentiate between their relative culpability, making a specific finding that there was no justifiable disparity in terms of the sentences to be imposed.
9. Her Honour's ultimate finding was: "I find that the role each played was equal in terms of the offending, the subjective circumstances are remarkably similar, as I have said". Further, her Honour also stated that the additional matters taken into account on the Form 1 did not call for any significant increase in the penalty.
10. Her Honour's finding that it was the applicant who was the facilitator (see [41] above) and, without his input, the transaction would not have occurred may have been open to her Honour, but her Honour then went on to find that the roles played by the offenders were equal. It must follow that, in observing that the applicant was the facilitator, her Honour was not intending to ascribe a higher or more significant role to him.
11. I accept the submission made by the applicant that the reference to the applicant being a facilitator could not be taken as indicating that he was higher up the criminal enterprise. All her Honour was suggesting was that the applicant had facilitated the co-offender's attendance at his father's premises in Coogee. This does not mean that he had some greater role in the criminal enterprise.
12. A finding of a higher culpability on the part of the applicant might have dispelled any sense of grievance but, on my analysis of the sentencing judgment, her Honour found that the applicant and co-offenders' cases were very similar, both in terms of the objective and subjective features.
13. The similar findings on objective seriousness, subjective circumstances and the roles each offender played led to the imposition of identical sentences. In those circumstances, it must follow that, despite referring to the issue of parity, her Honour had no regard to the differing maximum penalties. As I have said, they may not have been determinative, but they were an important factor to be considered.
14. As such, I accept that the applicant has a justifiable sense of grievance arising from the findings of the sentencing judge and the imposition of identical sentences, despite the fact that he had been convicted of a less serious offence.
15. I am satisfied that the applicant is entitled to succeed on grounds 1 and 2 and the appeal should be allowed. It is not necessary that I consider the "manifest excess" ground of appeal.

Resentence

1. The applicant does not dispute any of the sentencing judge's material factual findings. I have referred to them earlier in this judgment. I thus adopt those findings. Further, I accept her Honour's characterisation of the respective roles of the applicant and the co-offender.
2. There is no challenge to any of the findings on subjective circumstances. I have regard to the further material relied upon by the applicant on resentence, being the affidavit of Shane Vincent dated 1 November 2023 and the affidavit of Christopher John Cole dated 2 November 2023.
3. Mr Vincent is in contact with the applicant on an almost-daily basis. He refers to the hardship associated with Covid-19 "lock-ins" and the difficulties the applicant is experiencing being separated from his son. Further, the health of the applicant's father has continued to deteriorate. He has recently been discharged from hospital, having had a fall at his home, and was placed into respite care at Little Bay. No person has been available to provide the required level of care for him at home.
4. As the applicant is in custody, he is unable to care for his son, who is 18 years old. I am satisfied that the applicant's son, who had been living with the applicant's father, is now experiencing difficulties without the appropriate care and support. I am also satisfied that the applicant's son has been suffering from his own mental health problems, which is making the applicant's time in custody more onerous.
5. Further, since being incarcerated, the applicant has endeavoured to make the best of his time in custody. He has been well-behaved and has been involved as a ground maintenance/general hand and machine operator.
6. I accept that the applicant was a person of prior good character and that his criminal history is not relevant to the imposition of this sentence. He comes from a stable background. There is no basis on which his moral culpability for the offending might be reduced. I accept, as the sentencing judge did, that his concern for his father and son will weigh heavily on his time in custody and this must be taken into account. Indeed, as is evidenced by the recent material, the situation with his father and son has worsened whilst he has been in custody.
7. The applicant has demonstrated remorse and has good prospects of rehabilitation. He is unlikely to reoffend.
8. He is entitled to a 25% discount on the sentence due to his early guilty plea.
9. It is important that the applicant be sentenced for the offence for which he has been charged. The maximum penalty is a guidepost as to how the legislature regards an offence (see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25). I take into account the two additional sentences on the Form 1, being two offences of possessing a prohibited drug contrary to s 10(1) of the DMT Act.
10. In considering parity, I have regard to the fact that the co-offender has been convicted of a more serious offence with a higher maximum penalty but, otherwise, their cases are somewhat similar.
11. In respect of the offence of knowingly take part in the supply of not less than the commercial quantity of a prohibited drug (cocaine) contrary to s 25(2) of the DMT Act, I impose a sentence of four years imprisonment. I set a non-parole period of two years and four months.
12. The orders I propose are: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed by Judge J A English in the District Court on 10 March 2023 is quashed. 4. The applicant is sentenced to a term of imprisonment for four years commencing on 6 October 2022 and expiring on 5 October 2026 with a non-parole period of two years and four months commencing on 6 October 2022. The applicant will be eligible for parole on 5 February 2025.

Endnotes

1. (2015) 256 CLR 550; [2015] HCA 39 at [28(1)] (French CJ, Keane and Nettle JJ).
2. Written submissions, 1 February 2023, par 17(a).
3. Ibid at par 14.
4. Tcpt, 03/02/23, p 26(3).
5. Sentencing judgment, p 12. 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: 08 December 2023