"I do not see in the material any element of contrition or remorse. There is nothing in the presentence report to suggest it, and the offender did not give any evidence before me": ROS 5.
19 Special circumstances were found as a result of the applicant's sentence being his first time in custody and because his family were in a different country: ROS 5.
20 The Crown submitted that when his Honour sentenced Lim he was not only keenly aware of all the matters now raised by the applicant, as was this Court when it re-sentenced Lim, but there were differences between each offender that needed to be addressed. For instance, Lim's youth was a factor that was not applicable when sentencing the applicant. In R v Makisi [2004] NSWCCA 333; (2004) 151 A Crim R 245 at [33] the Court said that the "sentencing of a twenty year old is a very different procedure from the sentencing of a twenty-five year old". In that case this Court dismissed an appeal on parity grounds by virtue of the fact that the applicant was older than his co-offender, even though the younger co-offender had a more serious criminal history. Lim was just over 20 years old at the time of his offence. The applicant was 24½ years old. Lim's reasons for the offence were solely attributable to his drug habit, whereas it appears that the applicant was partially motivated by profit, in all probability to fund a gambling addiction.
21 The Crown drew attention to the applicant's submission that he has a "minor prior offence" and that Lim had "serious prior criminal offences". The Crown submitted that both his Honour at first instance and this Court following the Crown appeals expressly noted the differences in their criminal records. Both offenders in fact had fairly minor criminal histories, the only difference being that Lim had an offence noted on his record to be one of "aggravated robbery", which was committed on 11 December 2003 when he was 18 years old.
22 The Crown further emphasised that the fact that Lim had been on bail when he committed his offence was expressly taken into account both at first instance and by this Court in the Crown appeal. It was but one matter that needed to be taken into consideration amongst others, including the sentence that had been imposed on the applicant. However, Lim was evidently able to demonstrate contrition, whereas the applicant was not. Findings in respect of rehabilitation were also different to a degree, and these matters were all relevant when it came to factoring in the need for deterrence.
23 Furthermore, the submissions filed for the applicant point to the differences in the placement of the applicant and Lim within the drug hierarchy. The Crown submitted that it is not insignificant that the offence on which Lim was sentenced was committed at the instigation of the applicant. When his Honour sentenced Lim at first instance he said:
"The offender's role in this process was as a middle man, however he was a fair way up the supply process. The undercover officer was representing himself as a person who needed a large quantity of drugs. He approached Mr Gow [sic] in order to obtain those drugs and Mr Gow [sic] approached the offender, the offender in turn approaching the man known as Frankie. Thus, although the offender was playing the role of a middle man he was, as I have said, a significant way up the drug supply chain": ROS 4.
24 With respect to the applicant his Honour said, "The offender was thus a relatively high level supplier of ecstasy. He was able to supply at short notice large quantities of that drug for significant sums of money": ROS 2. There was nothing said by this Court in its judgment following the Crown appeals that watered down the applicant's role, although the view was taken that the applicant's position appeared to be "below that of Lim": see par [24]. However, the Crown drew attention to the fact that this Court also noted the following matters:
"[24] . . . The respondent was obviously engaged in a commercial operation to supply ecstasy on a fairly regular basis. He had a number of contacts from whom to obtain the drug in large quantities, indicating that he was known and trusted by those who were closer to the point of manufacture and/or importation than he was. He was responsible for negotiating the price of the drug, but only up to a point. The respondent deferred to Lim when the price of the sample was set. These are all reasonably typical features of an offence of this type, in the sense that those who are capable of supplying such quantities have, of necessity, an acquaintance with other offenders who are nearer the source of the drug."
25 The Crown submitted that a reasonable person looking at these circumstances would not immediately regard the applicant's sense of grievance as justified. There is no obligation to apply the parity principle where the differences between the offenders justify a different result: R v Reid [2000] NSWCCA 166. The power of this court to intervene to redress disparity is nonetheless discretionary: R (Cth) v Kai Kong Li [2005] NSWCCA 154 at pars [40] and [44]; Lewins v R [2007] NSWCCA 189 at par [7]; R v Najem [2008] NSWCCA 32 at par [57].
26 In dismissing the Crown appeal against the applicant's sentence, and allowing the appeal in respect of Lim's sentence, this Court held that the sentence imposed on the applicant was not manifestly inadequate but lenient: par [31]. When sentencing the applicant his Honour said, "I will make a small adjustment in the offender's favour but the non parole period in each case that I will shortly announce is the lowest which I consider properly reflects the objective gravity of the offender's conduct": ROS 5, 6. This Court subsequently noted in its judgment following the Crown appeal that "there was very little in the way of subjective features that would justify any further mitigation of the penalty appropriate to the objective gravity of the offences": par [35]. This Court said that the sentence imposed at first instance on Lim was "excessively lenient" (par [42]), that the fresh sentence following the Crown appeal was at the very bottom of the range strictly due to double jeopardy (par [43]) and the starting point of 14 years at first instance would have been more than justified (par [43]). The Crown submitted that for this Court now to reduce the applicant's sentence would be to "produce a sentence disproportionate to the objective and subjective criminality involved", an outcome that has been held to warrant this Court declining to intervene even where there is a degree of disparity between sentences: R v Pan [2005] NSWCCA 114 at par [35], quoting R v Boney [2001] NSWCCA 432 at [25].
27 The Crown submitted that no other sentence was warranted in law: s 6(3) Criminal Appeal Act 1912.
Consideration
28 It must be apparent, in comparing any two sentences imposed upon different offenders, that the facts and circumstances applicable to one could never be identical to the facts and circumstances applicable to the other. The degrees of similarity between or among any two or more offenders and the sentences imposed upon them will always be a matter of extent and degree. A series of matters favouring the imposition of one sentence in respect of a particular offender may favour the imposition of a completely different sentence in respect of another offender. The reasonable sense of grievance to which the authorities make reference is only triggered where the degrees of similarity between the particular factors being considered would appear to an objective bystander to be disproportionate to the sentences that respectively have been imposed. The very nature of this exercise will excite varying responses.
29 I am not satisfied that a comparison of the sentences imposed upon the applicant and the sentence imposed on Lim gives rise to a reasonable sense of grievance or indeed any cause for grievance at all. As the Crown submissions emphasise and clarify, there were objective and subjective features relating to each offender, some of which were favourable and some of which were unfavourable to the offender in each case. A comparison of different sentences for different individuals is necessarily not a comparison of like with like in all cases. The manner in which his Honour dealt with the sentences he imposed demonstrates that he was alive both to the similarities and to the differences between the particular circumstances of each offender. In my opinion the applicant has not demonstrated that there exists such a disparity between these sentences as to give rise to a reasonable sense of grievance in the applicant as a result. An issue of parity favouring the applicant simply does not arise.
30 In my opinion the first ground of appeal should be dismissed.
Ground 2
31 The applicant submitted that his Honour could have sentenced the applicant to sentences to be served concurrently because the offences had common features. These were that they were each an offence relating to the supply of drugs, of the same type and supplied to the same undercover police operative posing as a buyer. The applicant submitted that the two sentences should be served concurrently because of these common features.
32 The issue was considered in R v GWM [2005] NSWCCA 101; 152 A Crim R 482 where Studdert J said at pars [46] to [48]:
"[46] In R v SG [2003] NSWCCA 220 Wood CJ at CL considered in that case that the sentencing judge had fallen into error when sentencing for three separate groups of offences. His Honour said (at para 15):