JIMMY v REGINA [2010] NSWCCA 60 | Case summary

JIMMY v REGINA [2010] NSWCCA 60 | Case summary | Zoe

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Alex Mihailovic v The Queen (High Court of Australia, 3 February 1994, noted [1994] 1 Leg Rep page C3) Andrews v Law Society of British Columbia [1989] 1 SCR 143 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 Bowtell v The Queen [2004] NSWCCA 17 Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 El Hassan v The Queen [2003] NSWCCA 252 Ellis v The Queen (1993) 68 A Crim R 449 Em v The Queen [2006] NSWCCA 336 Farah Constructions Pty Ltd v Say Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 FS v R [2009] NSWCCA 301 Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 HAN, Zhi Qiang v R [2009] NSWCCA 300 Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 Hudson v The Queen [2009] NSWCCA 59 John v Federal Commissioner of Taxation (1989) 166 CLR 417 Jones v The Queen (1993) 67 ALJR 376 Jones, (NSWCCA, 16 April 1992, unreported) Kardoulias v The Queen [2005] NSWCCA 456; (2005) 159 A Crim R 252 Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337 Kauwenberghs v The Queen [2008] NSWCCA 98; (2008) 186 A Crim R 197 Krakouer v R [1999] WASCA 147; (1999) 107 A Crim R 408 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 Markisic v Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737 Melikian v The Queen [2008] NSWCCA 156 Native Title Act Case (1995) 183 CLR 373 OM v The Queen [2009] NSWCCA 267 Osman v The Queen [2008] NSWCCA 157 Pham v The Queen [2009] NSWCCA 25 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 Queensland v The Commonwealth (1977) 139 CLR 585 R v AAH & AAG [2009] QCA 321 R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555 R v Armstrong [2001] NSWCCA 77 R v Arnold (1993) 30 NSWLR 73 R v Christie [2000] NSWCCA 354 R v Diamond (NSWCCA, 18 February 1993, unreported) CASES CITED : R v F (2002) 132 A Crim R 308 R v Formosa [2005] NSWCCA 363 R v Gibson (1991) 56 A Crim R 1 R v Guzman [2000] NSWCCA 261 R v Holder [1983] 3 NSWLR 245 R v Howard (1992) 29 NSWLR 242 R v Huang; R v Siu [2007] NSWCCA 259; (2007) 174 A Crim R 370 R v Isamunadar [2002] NSWCCA 477; (2002) 136 A Crim R 206 R v Johns [1978] 2 NSWLR 259 R v Johnson [2005] NSWCCA 186 R v Jurisic (1998) 45 NSWLR 209 R v Kerr [2003] NSWCCA 234 R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274 R v Mai (1992) 26 NSWLR 371 R v Nguyen [2005] NSWCCA 362; (2005) 157 A Crim R 80 R v Salameh (NSWCCA, 9 June 1994, unreported) R v Shepherd [2003] NSWCCA 287; (2003) 142 A Crim R 101 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Tiddy [1969] SASR 575 R v Underwood [2005] VSCA 80 R v Wall [2002] NSWCA 42; (2002) 71 NSWLR 692 Rend v The Queen [2006] NSWCCA 41; (2006) 160 A Crim R 178 Rexhaj (NSWCCA, 29 February 1996, unreported) Sharpe v The Queen [2002] NSWCCA 96 Shen v R [2009] NSWCCA 251 Slaughter- House Cases, 83 U.S. 36 (1873) Stanton v The Queen [2008] NSWCCA 326 Sumner v R (1985) 19 A Crim R 210 Tatana v R [2006] NSWCCA 398 Thorley (NSWCCA, 5 February 1991, unreported) Tuifua v The Queen [2008] NSWCCA 224; (2008) 189 A Crim R 1 United States v Virginia, 518 U.S. 515 (1996) Watson v The Queen (NSWCCA, 25 February 1992, unreported) Woodgate v R [2009] NSWCCA 137 Wurramarbra v The Queen (1979) 28 ALR 176; 1 A Crim R 291 Xue v R [2009] NSWCCA 227

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TABLE OF CONTENTS Para No: CAMPBELL JA 1 PART A - THE FACTUAL BACKGROUND The Offence Charged 3 Objective Circumstances of the Crime 5 Subjective Matters 19 The Sentence 24 The "Co-Offenders" 27 Siu 28 Huang 31 PART B - SUBMISSIONS The Applicant's Submissions Co-Offenders 47 Differences Between the "Co-Offenders" 49 The Crown Submissions on Disparity 52 PART C - BETWEEN WHOM DOES THE PARITY PRINCIPLE APPLY? High Court Authority 53 Lowe 54 Jones 62 Postiglione 64 Intermediate Appellate Court Authority 74 Sumner 75 Gibson 78 Howard 83 Ellis 89 Wurramarbra 103 Watson 104 Krakouer 107 Kerr 109 Formosa 119 Returning to Kerr 124 Araya 131 Kardoulias 141 Nguyen 142 Rend 159 Pham 161 Woodgate 171 Shen 173 OM 180 Huang and Siu 196 Three Cases the Applicant Relies On 197 The Queensland View of Proper Scope of Parity Principle 198 Is this a Type of Case to Which the Parity Principle Could Never Apply? 200 Application to Facts 204 PART D - OTHER ASPECTS OF THE "PARITY" APPEAL Different Sentences Justified? 207 PART E - THE NON-PAROLE PERIOD 225 Order 243 HOWIE J 244 ROTHMAN J 252 Equal Justice and Parity 254 Parity of Charging 267

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The penalty for each such offence is imprisonment of not more than 5 years. 8 A "significant cash transaction" is defined in section 3 of the Financial Transaction Reports Act as being a "cash transaction involving the transfer of currency of not less than $10,000 in value." 9 All except 4 of the 27 transactions involved related to an amount of $9,000 or greater, but less than $10,000. The 4 exceptions lay in the range $7,000 to $8,500. 10 On 26 November 2003 the Applicant engaged in three such transactions. He also engaged in three such transactions on 11 February 2004. He engaged in two such transactions on each of 27 and 28 November 2003, and 1, 2, 5 and 19 December 2003. He engaged in four such transactions on each of 9 January 2004 and 3 February 2004. He engaged in a single transaction of this type on each of 17 December 2003 and 2 February 2004. 11 The transactions were carried out at nine different bank branches, of which seven were in the Sydney CBD area, one was at Glebe, and another was at Hurstville. On any day when he carried out more than one transaction, he went to a different bank branch for each of those transactions. 12 For each of the transactions except one, he used a name that was not his own. He used a total of seven different false identities. Concerning some of those transactions in assumed names, he provided false identity documents to the bank officer involved. Concerning the transaction in which he used his own name, he supplied a false address. Concerning each transaction, he placed a signature on a form that made application for the money to be transferred to the Hong Kong account, and gave the incorrect details concerning the transferor. 13 The money was remitted to five different recipients in Hong Kong. Concerning one recipient, it was remitted to three different accounts. Concerning another two recipients, it was remitted to two different accounts. 14 On 19 September 2008, Acting Judge Syme sentenced the Applicant to imprisonment for 3 years and 3 months, with a non-parole period of 2 years and 2 months. 15 The facts put before the judge were not in dispute. They included: (1) the Applicant had been arrested on 13 June 2007; (2) he was in custody from that time until his release on conditional bail on 29 August 2007, 78 days later, and (3) he pleaded guilty at the first available opportunity in the Local Court. 16 I mention here that in this Court it was not in dispute that the facts put before the judge were wrong in one respect. In fact, the Applicant was released on conditional bail on 22 August 2007, and thus had 71 days in gaol between his arrest and release on bail. 17 The activities of the Applicant were part of a much larger money laundering operation that was organised in Australia by a Mr Peter Chen. The judge found that there was no evidence that the Applicant had any knowledge that the money was the proceeds of illegal activity on the part of Mr Chen. The judge also found that the Applicant knew that the activity he himself was carrying out was illegal. 18 The Applicant gave evidence at the time of sentencing that he agreed with Mr Chen that for every $10,000 he remitted he would be paid $80. That would have given him a total fee of $1,920 (if the agreement means that no fee was payable if only part of $10,000 was remitted) or about $1,952 (if the agreement means that he was paid a pro rata fee per dollar remitted). The judge said in her remarks on sentence that the Applicant and Mr Chen agreed that the Applicant would be paid a fee of $80 per deposit made. That works out at a total of $2,160. I do not think that these differences about the amount of his fee are material. At the time the Applicant began the transactions, he was indebted to Mr Chen for $5,000, which the Applicant had borrowed to pay family expenses. The Applicant did not receive any cash in hand for his service to Mr Chen, merely a reduction in the amount of the debt he owed.

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Siu 28 Siu was arrested on 27 April 2005 and later pleaded guilty to a single count of money laundering. That count, like the count to which the Applicant pleaded guilty, alleged a contravention of section 400.4(1) Criminal Code 1995 (Cth). Siu's offence took place between 6 May 2003 and 14 July 2003 - ie, over a period of nearly 10 weeks. The period of the Applicant's offending was slightly longer, namely 11 weeks. Siu's offending involved 59 different deposits, of a total amount of $556,400. Like the Applicant, Siu was paid a commission or fee. In his case, the total fee was about $3,000. 29 Siu had originally been sentenced to imprisonment for 2 years and 11 months, with a direction that he be released at the expiry of 1 year from that sentence upon entering a recognisance to be of good behaviour for 3 years from the date of his release. That sentence was replaced when a Crown appeal succeeded: R v Huang; R v Siu [2007] NSWCCA 259; (2007) 174 A Crim R 370 ("Huang & Siu"). This Court, comprised of Simpson, Howie and Hislop JJ, delivered a joint judgment that related to Crown appeals against the sentences imposed on both Siu and Huang. Those Crown appeals had been argued separately, but this Court dealt with them both in a single judgment. It had been delivered before the Applicant was sentenced. 30 This Court's judgment concerning Siu and Huang recorded the following matters as ones that the sentencing judge took into account concerning Siu: "13 The sentencing judge found the overall enterprise was very sophisticated with large amounts of money being illegally transferred to Hong Kong. [Siu's] role was not that complex and he was told what to do by the principal. His Honour found that [Siu's] role in this enterprise was limited and that he was on the edge of the enterprise, although an important component of it, since he was a 'well-trusted player' for those who were illegally sending money to banks in Hong Kong. 14 His Honour had no doubt that [Siu] knew he was involved in illegal activity. Initially he believed the moneys he was depositing were proceeds of an abalone business. However, he left the enterprise before he was charged because in effect he had become aware that the enterprise was likely to involve more than abalone and could be serious and dangerous. His Honour considered that, even if [Siu] believed the funds came from abalone trading, from his earlier involvement in that trade he must have known it was illegal. 15 His Honour found: (a) [Siu] was sixty-four years of age and on a disability pension at the time of the offence. He had been raised in Hong Kong and had moved to Australia in 1982. He was a married man. He had limited English and was in poor health, suffering from a number of medical conditions. He had a prior criminal record for illegal activities in relation to the abalone trade. (b) There had been an early plea of guilty, the utilitarian value for which should result in a 25 percent discount. (c) [Siu's] contrition and remorse expressed to various people was limited to his regret that he had been exposed by the police and charged. (d) [Siu] had originally given assistance to the police but then had withdrawn his willingness to participate. Later, he again agreed to cooperate. However, his assistance was never availed of due to his lack of credibility and reliability as a witness. His Honour considered there should be some allowance made for his willingness, however variable, to cooperate, but since his assistance was not used, this consideration should be quite limited. (e) A discount of 35 percent for the plea, expressions of remorse and subjective cooperation was appropriate. (f) A full time custodial sentence would be much harder for [Siu] than for a healthy young male by reason of his medical conditions. His Honour took that factor into consideration. (g) [Siu] had no psychiatric, gambling or drug problems and the likelihood of re-offending was 'somewhat low'. (h) The offence was committed between May and July 2003, [Siu] was charged in April 2005 and thereafter there were many adjournments, none of the delay being caused by [Siu]. His Honour took into account the delay as a mitigating factor. (i) There were special circumstances, being [Siu's] age, health, lack of facility with English, and the fact that his family resided in Victoria. (j) General deterrence for these particular offences was a very important consideration. 16 In sentencing [Siu], his Honour took a notional starting point of four and a half years, which he reduced by 35 percent for the discounts previously referred to. 17 His Honour considered the question of parity between [Siu] and the co-offender, Huang. He concluded there was a considerable difference between [Siu] and Huang, namely that the transaction amount in Huang was over $3,000,000, with the result that the maximum sentence was imprisonment for 25 years rather than 20 years; the offences by Huang were committed over a longer period than those by [Siu]; Huang was more involved in the enterprise and was much younger and his state of health was not compromised, as was [Siu's]."

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Huang 31 The charge against Huang was under a different section of the Criminal Code, namely section 400.3(1), to the charge against both the Applicant and Siu. Section 400.3(1) differs from section 400.4(1) in two respects. First, it requires that at the time of the dealing, the value of the money is $1m or more. Second, it provides a penalty of imprisonment for 25 years or 1500 penalty units (which equates to $165,000), or both. 32 The charge against Huang related to activities between 14 January 2003 and 4 November 2003 (nearly 11 months) and involved the making of 335 deposits, comprising a total amount of $3,088,311. Huang was paid a commission or fee per transaction, which totalled about $30,000. 33 Huang was sentenced in the District Court to imprisonment for 3 years, with a direction that he be released at the expiry of 1 year and 9 months upon entering a recognisance to be of good behaviour for a period of 3 years from the date of his release. That sentence, like the sentence given at first instance to Siu, was altered by this Court when a Crown appeal succeeded. 34 This Court recorded the following findings of the judge as relevant to his reasoning process concerning Huang. "7 His Honour found (a) [Huang] believed that the money had been acquired through a genuine business venture in Australia and that the sole purpose of forwarding the funds overseas in sums of less than $10,000 was to avoid Australian Taxation. It was accepted by the Crown that the funds were not illegally obtained. (b) The offence was objectively very serious having regard to the considerable sum involved, the number of transactions, the period over which it occurred and that it involved considerable planning and organisation though it was not an activity that could be described as sophisticated. (c) The principal used [Huang] and others as a runner or courier to present the cash at the bank. His Honour accepted, however, that [Huang] was a 'very much-trusted employee' of the principal who was given possession of large sums of money. It is apparent that he did not breach that trust placed in him by the principal. [Huang] played an important role. (d) [Huang] had gambled to excess in Australia and that was the cause of his need for funds which led to him being tempted to involve himself in the behaviour for which he was before the court. The offender was in some way in denial as to the extent of his gambling difficulty. 8 His Honour also found (a) [Huang] was born on 27 October 1967. He was educated to the equivalent of year 12 standard in China and also completed a two-year Diploma in English Studies. He has an excellent command of English. He came to Australia from China in December 1989 and in 1994 was granted permanent residency. In 1996 he became an Australian citizen. He married in 1997 and the marriage ended in divorce. He married a second time and his second wife has returned to China due to her employment commitments. He has a minor criminal record, with fines for two stealing offences and a driving matter. He was also before the Local Court in 1998 for contravention of apprehended violence orders, which related to his first marriage. The funds that were banked by [Huang] were provided by the principal in whose seafood business [Huang] worked. (b) [Huang] had provided assistance to investigating authorities which was 'extremely valuable' and 'truly exceptional'. This material included admissions as to many particular transactions which would have been very difficult for the authorities to establish. [Huang's] current classification in prison was of 'non association' and he would be subject to protective custody in the future, which would be burdensome. A discount slightly above 25 percent to reflect his cooperation, both past and future, with the authorities was allowed. (c) He was satisfied [that Huang] 'has great contrition'. He allowed 25 percent for the plea of guilty and also a discount for contrition of a month or so. (d) [Huang] did not require any further personal deterrence though the Criminal Code required significant penalties to be imposed, and general deterrence loomed very much. 9 His Honour took as his commencing point a sentence of 6½ years which he reduced by 25 percent for the plea of guilty and also a small discount for general contrition. This reduced the sentence to four years and nine months with a non-parole period of three years. He then allowed a discount slightly above 25 percent for cooperation with the authorities, thus reducing the head sentence to three years and he reduced the minimum period to be served to one year and nine months." 35 Both section 400.3(1) and section 400.4(1) contain alternative ways of committing the offence, one involving that "the money … is, and the person believes it to be, proceeds of crime", and the other involving that "the person intends that the money … will become an instrument of crime". The charges against each of the Applicant, Huang and Siu involved the second of these alternative ways of committing the offence, not the first. However, in Huang & Siu at [32]-[33] this Court said: "… the offender's belief as to the source of the funds will always be a relevant consideration regardless of whether the offender is charged with an offence concerned with the proceeds of crime or an offence concerned with property being used as an instrument of crime. Where it is the latter, the belief as to the source of the funds or its nature is less relevant because the offence is directed at the use to be made of the funds. So the offence of the respondent Siu was aggravated because he believed that the funds were as a result of illegal activity, albeit the activity was not of the utmost seriousness. The understanding of the offender as to what was to be the destination of the money or the purposes for which it was to become an instrument of crime is also a relevant consideration. In the present case it was a significantly aggravating factor that the respondent Huang believed that he was actively involved in dealing with the money for the purpose of evading the payment of tax. But as was stated in Ansari [ v The Queen [2007] NSWCCA 204; (2007) 70 NSWLR 89], this is not a matter that is decisive of the seriousness of the particular offence or the appropriate penalty." 36 The Court expressed the view, at [34], that the amount of money involved "is clearly a highly significant matter because the legislation uses it as the principal means of dividing the offences into categories and it is the primary identifier of what is the maximum penalty for an offence." 37 The Court said, at [35], that the number of transactions, and the period over which they occurred, "… are significant because they indicate the extent of the offender's criminality. Generally speaking a number of transactions involving small amounts of money will be more serious than a single transaction of a larger amount. The latter may be seen as an isolated offence." 38 The Court expressed the view, at [36], that: "… in the case of each of the respondents his criminality fell generally within the midrange of offending covered by the relevant sections. Money laundering on the scale in which both respondents were involved should be considered as serious criminal activity that is at the very heart of organised, professional crime syndicates. It warrants severe punishment not the least in order to reflect general deterrence of a very significant degree. When the activity is engaged in for profit, over a significant period of time and with a large number of transactions, the prior good character of the offender is of less significance than might otherwise be the case." 39 The Court held, at [38]: "Each of the respondents was well aware of the illegality of his conduct: Huang knew that the funds were to be used for an illegal purpose and Siu knew they were obtained as a result of illegal activity. The respondents were prepared to become involved in serious criminal conduct for profit. They were not isolated acts of offending. …" 40 At [39], after noting that Siu dealt with a sum of money that was slightly over half the amount of money that would have taken him into the higher penalty of a section 400.3 offence and over five times the amount of money bringing him within a section 400.4 offence, and that Huang dealt with more than three times the amount that brought him within a section 400.3 offence, the Court continued: "… Neither of them was a principal in that they did not own or have an interest in the money with which they dealt. Although that is clearly a matter that reduces the culpability of each, they were both involved in the principal's illegal conduct to a very substantial degree. Both Judges who dealt with the respondents made findings that they were important and trusted participants in the enterprise." 41 Huang was held, at [42], to be entitled to "little, if any, mitigation" by reason of the offence being a result of gambling. The Court held, at [43], that he was: "… more than a mere courier or runner to deliver the money to the bank having regard to his involvement in depositing the money in false accounts. But even if he were limited to that role, in light of the large number of illegal activities and the very significant amount of money involved such a role would not be a matter of very great mitigation." 42 The Court, at [44], regarded the judge's starting point for Huang of 6½ years as far too low, and that it: "… should have been at least 11 years although we believe that a more appropriate starting point was between 12 and 14 years. We have chosen the lowest possible figure because this is a Crown appeal." 43 The Court granted Huang a discount of 50% for the plea and assistance, though regarding that allowance as "a very generous finding notwithstanding that the respondent will spend his time in some form of protective custody." Huang was re-sentenced to 5½ years, with a non-parole period of 3 years 4 months. Their Honours specifically noted, at [45] that this was "a lenient sentence imposed mainly because of discretionary factors arising from a successful Crown appeal". 44 In the case of Siu, this Court held (at [46]) that the judge had been mistaken in regarding his conduct as "one of the least serious" examples of conduct that fell within the section. Bearing in mind the amount of money involved, and the fact that there were repeated criminal acts over a period of months, his conduct was said to be: "… very substantial criminal activity and warranted a severe, deterrent sentence. The offence was committed for profit, but the amount received by him was of little significance, other than that it disclosed his position in the enterprise. There was limited mitigation in [Siu's] age and medical condition. His medical problems were largely present at the time of the offending and neither age nor physical illness is a licence to commit crime particularly over a period of three months. The delay in [Siu] being charged was of little significance unless it could be shown to have disadvantaged the offender in some way." 45 The starting sentence that this Court adopted in re-sentencing Siu was said to be "at least 8 years" (at [47]), on the basis that it was a Crown appeal, and notwithstanding that a more appropriate starting point would have been between 9 and 11 years. The same discount, of 35%, that the trial judge had given, was allowed, even though it was said to be "overly generous". This Court held that the appropriate sentence for Siu (which was the sentence it actually imposed) should have been "at least 5 years". In so doing, this Court extended some slight extra generosity, not explicitly recognised in the reasons for judgment, to Siu, because allowing a 35% discount on an 8-year sentence would have resulted in a sentence of 62.4 months, or 5 years and 2.4 months. 46 This Court also held that the non-parole period that the judge had imposed on Siu, of about a third of the head sentence, was "manifestly inadequate" (at [48]). The Court substituted a non-parole period of 2½ years. PART B - SUBMISSIONS

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Co-Offenders 47 The legal principle that the Applicant invokes was stated by the High Court in Lowe v The Queen (1984) 154 CLR 606. It was a case that concerned co-offenders - the lookout man, and the man who had actually taken the money, in an armed robbery. Gibbs CJ at 610 (Wilson J agreeing), Mason J at 611 and 613, and Dawson J at 623 (Wilson J also agreeing), all expressed the same thought, that sentences imposed upon co-offenders should not have such a marked disparity as to give rise to a justifiable sense of grievance, or give the appearance that justice has not been done. 48 Postiglione v The Queen (1997) 189 CLR 295 likewise involved the sentences of two co-offenders. The co-offenders in question were both parties to the one conspiracy to import drugs. The principle laid down in Lowe v The Queen was reiterated. Dawson and Gaudron JJ said, at 301-2: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them: see Lowe v The Queen (1984) 154 CLR 606 at 610-611, per Mason J. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error: Lowe v The Queen (1984) 154 CLR 606 at 617-618, per Brennan J. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen (1984) 154 CLR 606, 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': Lowe v The Queen (1984) 154 CLR 606, esp at 610, per Gibbs CJ; at 613, per Mason J; and at 623, per Dawson J. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. 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."

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Differences Between the "Co-Offenders" 49 In comparing the sentences imposed upon the Applicant and on Huang and Siu, Mr Wilkinson, counsel for the Applicant, points out that Siu was sentenced to an overall sentence 18 months longer than that imposed on the Applicant and a non-parole period 4 months longer than that imposed on the Applicant. Huang was sentenced to an overall sentence 2 years longer than that imposed on the Applicant and a non-parole period 14 months longer than that imposed on the Applicant. 50 Mr Wilkinson submits that there are significant differences between both the subjective and objective features of the Applicant's offending, and the offending of each of Siu and Huang. He submits that the objective criminality of the Applicant's offending was substantially less serious than that of Siu or Huang, bearing in mind the amount of money involved, the number of transactions carried out, and the period over which the transactions were carried out. He points to the following matters in particular: "(i) The Co-Offenders were involved in a greater number of structured transactions: HUANG took part in 335 transactions with SIU taking part in 59 transactions, as compared to the applicant's involvement in 27 transactions. (ii) The Co-Offenders were involved in the transfer of substantially more money to offshore foreign banking institutions: HUANG was responsible for the transfer of AUD$3,088,311.00 with SIU transferring a total sum of AUD$556,400, as compared to the applicant's involvement in the transfer of AUD$243,952. (iii) The Co-Offenders['] period of offending was greater than that of the applicant. HUANG's period of offending was over 11 months whilst SIU's involvement was in excess of 2 months. The applicant's offending spanned a period of 2 months. Although SIU's period of offending is similar to that of the applicant, SIU carried out more than twice the number of structured transactions during the relevant period. (iv) HUANG was paid a commission fee for each transaction which totalled about $30,000.00. SIU was paid a commission fee for each transaction which totalled about $3,000.00. The applicant was paid a commission fee for each transaction which totalled about $2,000.00. (v) The Co-Offenders have criminal records. HUANG for acts of dishonesty and a driving matter: R v Huang & Siu [2007] NSWCCA 259 at [8]; 174 A Crim R 370 at 373. SIU for illegal activities in relation to the abalone trade: R v Huang & Siu [2007] NSWCCA 259 at [15]; 174 A Crim R 370 at 375. The applicant has no prior criminal record: ROS at p 7. (vi) The role of HUANG was determined as more than a mere courier or runner: R v Huang & Siu [2007] NSWCCA 259 at [43]; 174 A Crim R 370 at 382. (vii) There was limited contrition and remorse expressed by SIU: R v Huang & Siu [2007] NSWCCA 259 at [15]; 174 A Crim R 370 at 375. The applicant's contrition and remorse was manifest and complete: ROS at p 4. (viii) SIU gave limited assistance to the authorities having initially withdrawn his co-operation: R v Huang & Siu [2007] NSWCCA 259 at [15]; 174 A Crim R 370 at 375. The applicant's assistance to authorities was substantial: ROS at p 5. (ix) The offence by SIU was aggravated because he believed the source of the funds was the result of illegal activity: R v Huang & Siu [2007] NSWCCA 259 at [32] & [38]; 174 A Crim R at 380 & 381. The applicant was not aware of the illegal nature of the sourced funds: ROS at p 2. This is an important aggravating circumstance of divergence between the applicant's culpability and that of the co-offender, SIU. (x) The Co-Offender's criminality fell generally within the midrange of offending covered by the relevant sections: R v Huang & Siu [2007] NSWCCA 259 at [36]; 174 A Crim R 370 at 381. The applicant's criminality fell within the 'mid to lower' range of offending and below that of SIU: ROS at p 8-9. (xi) The motivation for participation differed. The applicant was motivated by a perceived obligation to repay an outstanding debt to CHEN, who loaned the applicant money so he could pay his daughter's outstanding school fees. The applicant is a good father and family man. His family was in financial difficulty: ROS at p 2-3. This explains why he became involved in this, his first criminal offence, at his stage of life. HUANG and SIU were motivated by financial gain." 51 Point (iii) is factually incorrect, in that the period of offending of Siu was marginally shorter than that of the Applicant (see para [28] above), but this factual error is not a serious one.

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Lowe 54 In Lowe the factual situation being considered was that of two people who had co-operated in the one criminal enterprise, though playing different roles in it. 55 Gibbs CJ (with whom Wilson J agreed) said, at 609: "The true position in my opinion may be briefly stated as follows. It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence , have to be taken into account." (emphasis added) 56 Throughout his judgment, Gibbs CJ spoke of the parity principle as one that applied between co-offenders. Mason J at 611 approved the principle that "marked disparity in sentences imposed on co-offenders whose circumstances are comparable is itself a ground for reducing the more severe sentence". He refers, at 612, to "harshness of the sentence in comparison with that imposed on the co-offender". At 613 he talked of "the sentencing process as it affected the co-offender". 57 Wilson J at 616 agreed with both Gibbs CJ and Dawson J. 58 Brennan J took a different view to other members of the Court, in that he did not regard the existence of marked disparity as in itself a ground for altering the sentence of one offender. However, his statement of the relevant principle is likewise expressed in terms of co-offenders. He said, at 617: "The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust." 59 Brennan J also said, at 617-18: "… an inappropriately lenient sentence imposed on one co-offender is not in itself a ground for interfering with a more severe sentence imposed on another. Of course a marked disparity between the sentences imposed on co-offenders sharpens the interest of an appellate court, not because it establishes appealable error but because there must be an error if the lesser sentence is found to be appropriate and no sufficient ground exists for distinguishing between the co-offenders." 60 Dawson J, at 623, referred repeatedly to co-offenders. He stated a relevant principle as being: "… 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 give the appearance that justice has not been done … This has led to the variation of sentences by courts of appeal in order to reduce the disparity between sentences separately imposed upon co-offenders even where the sentence varied was not in itself excessive." (citations omitted) 61 Thus in Lowe, all the members of the High Court spoke of the principle as one applicable between co-offenders. While not all the judges spelt out who counted as co-offenders for the purpose of the principle, Gibbs CJ (with whom Wilson J agreed) spoke of them at 609 as "persons who have been parties to the commission of the same offence". Similarly, Dawson J (with whom Wilson J agreed) spoke of them at 623 as being "co-offenders for the same offence". In Lowe both offenders had committed the "same offence" in both the sense that they were involved in a common criminal enterprise, and also the sense that each had been charged with a contravention of the same provision of the criminal law - notwithstanding their different roles in the enterprise, each was charged with armed robbery.

[29]

Postiglione 64 In Postiglione v The Queen the principle stated by Dawson and Gaudron JJ, at 301-2, (that I have quoted at para [48] above) was cast in terms of co-offenders. 65 Kirby J was the other member of the majority. He accepted, at 327, that the appellant "feels a grievance about the way in which he has been punished following conviction of his latest offences when compared to the punishment imposed on a co-offender …". As one reads Kirby J's statement of "Applicable sentencing principles", at 335-342, one can be in some doubt about what his Honour regards the "parity principle" as being. At 338 he says: "The problem of disparity will ordinarily arise not so much out of a suggested departure from the requirement to punish equally like offenders convicted of like offences ( R v Goldberg [1959] VR 311), as out of the disparate punishment of co-offenders or offenders in a situation demanding comparison and contrast ( R v Beaumont [1955] SASR 110; R v Ball (1951) 35 Cr App R 164). It is in these cases, where discrimination has occurred in the sentences imposed on two or more offenders said not to be justified by the facts either of the offence or of the circumstances of the offender, that the problem of alleged disparity in sentencing presents itself in sharp focus ( R v Tiddy [1969] SASR 575 at 577). It is then that the appellate court must apply the tests which have been propounded and decide whether it should intervene." 66 That passage appears to contemplate that the "problem of disparity" can arise not only in relation to co-offenders, but also where there is "disparate punishment of … offenders in a situation demanding comparison and contrast". At 340, his Honour said: "The parity principle, properly applied, will help to avoid the kinds of disparities which occasion the conclusions spoken of in Lowe ." 67 That could be read as suggesting that Lowe was merely an example of the "disparities" with which the parity principle was concerned. Similarly, at 341, his Honour spoke of "the parity principle requiring that normally like cases should be treated alike." That likewise could be read as regarding the parity principle as extending wider than beyond the situation of co-offenders. However, any doubt about whether his Honour may have regarded the parity principle as extending beyond co-offenders is dissipated by his remark at 342 that "essentially, the parity principle remains that stated by this Court in Lowe". 68 A difference of opinion within the court in Postiglione arose from the fact that the two men who were clearly co-offenders in relation to an offence of conspiracy to import drugs, were both in gaol at the time of commission of that offence and at the time of being sentenced for it. The offences for which they were already in gaol were ones concerning which they were not co-offenders. The problem of principle that lead to the grant of special leave in the case concerned whether the parity principle had any role to play when a court came to apply the totality principle to the sentences of each of the offenders. The majority took the view that in that situation the parity principle could legitimately be used to compare the extra sentence that each offender came to serve in consequence of having committed the second crime, concerning which they were co-conspirators. McHugh and Gummow JJ, in separate judgments, decided, respectively, that any disparity was explained by the application of the totality principle, and that the parity principle had no role to play in that situation. McHugh J said, at 306: "… where the totality principle is relevant in the sentencing process and the application of that principle requires different sentences for each offender, no breach of the parity principle occurs." 69 To similar effect, Gummow J expressed his conclusion at 323-4: "The appellant bases his case for disparity on a comparison between the amounts by which the respective non-parole periods of [the co-offender] and the appellant were increased following sentence on the federal charges of conspiracy. These non-parole periods depended respectively on the non-parole periods that each offender was already serving for previous offences with which the other offender was not involved. In other words, the appellant submits that the court should apply the parity principle to the total custodial sentence of the two offenders. That total custodial sentence is the product not only of convictions upon conspiracy counts, applying to both offenders, but also convictions of each for prior offences in which the other was not involved. Like is not being compared with like." 70 Of present relevance are the circumstances in which the minority judges saw the parity principle as having a role to play. McHugh J, at 309, adopted a statement of the Court of Criminal Appeal of South Australia in R v Tiddy [1969] SASR 575 at 577: "Where other things are equal persons concerned in the same crime should receive the same punishment; and where other things are not equal a due discrimination should be made." (emphasis added) 71 Gummow J, at 322, stated the principle as follows: " Lowe determined that disparity in sentencing of co-offenders may call for intervention by a Court of Criminal Appeal and that the Court may intervene even in cases where the challenged sentence, standing alone, would be regarded as appropriate." 72 Gummow J stated explicitly at 325 "The disparity principle in Lowe only applies to co-offenders". 73 In accordance with this High Court authority, the parity principle is a principle that must be taken into account in sentencing in addition to other sentencing principles. All the factual circumstances in which their Honours have held that the parity principle applies were ones in which the person whose sentence was being considered on appeal had committed the same crime as another person had committed. The Court held that the sentence imposed can differ from the sentence imposed on the co-offender only if, after taking into account all objective circumstances concerning their respective roles in commission of the crime and all differences in their respective subjective circumstances, there is not such a marked disparity as to give a justifiable sense of grievance, or give the appearance that justice has not been done. If there is a marked disparity of that type, it is in itself a ground for reducing the sentence that is in question, and is not merely symptomatic of some error having occurred in the sentencing process.

[31]

Sumner 75 Sumner v R (1985) 19 A Crim R 210 is a decision of the Victorian Court of Criminal Appeal. It concerns sentences imposed on men who had handled, at different times, the one consignment of stolen cigarettes. It appears that they were all charged with a contravention of the same provision of the criminal law. Some appealed against sentence "by reason of a disparity between his and that imposed on one or more of his co-offenders" (218). Hampel J, delivering the judgment of the Court, said at 218: "The acts performed and the parts played by different offenders to some extent find in one transaction parallels in the other and, of course, each was handling a part of the same goods which were stolen at the time of the armed robbery. It would seem also that the two parcels of stolen cigarettes housed at the Pakenham cool store were not only part of the proceeds of the same robbery, but were also unlawfully 'handled' by each of the groups of men convicted under counts one and two respectively at the same level in the distribution process from original theft to the ultimate user." 76 There were significant differences in the roles that different participants had played in the respective handlings, in their criminal histories, in whether or not they had pleaded guilty, and in their subjective circumstances. The judge concluded, at 222: "Had any one of the applicants been sentenced as he has been but with there having been no other co-offender to whom punishment was also to be given, we do not think that the sentence so passed could be said to be beyond the range of options open to the judge. But when the sentences of each applicant - or at least some of them - are viewed in the context of the sentences passed upon all other offenders, it appears to us that there is a number of instances of unacceptable disparity." 77 Sumner thus presents an example of the parity principle being used to alter a sentence by reference to the sentence imposed on someone who had not committed the self-same crime, but who was involved in the same criminal enterprise. It is to be noted, though, that as they had all been charged with a contravention of the same provision of the criminal law there was no complication arising from the charges against the men being of crimes of differing degrees of seriousness.

[32]

Gibson 78 R v Gibson (1991) 56 A Crim R 1 is a decision of this Court on a Crown appeal against sentence. The Respondent had been convicted of possession of a traffickable quantity of cocaine contrary to section 233B Customs Act 1901 (Cth), and of concealing money that may reasonably be suspected of being the proceeds of crime contrary to the Proceeds of Crime Act 1987 (Cth). The amount of cocaine in his possession was part of a larger quantity that had been brought into Australia. The importer, and various other distributors of the imported goods, all came to be charged and sentenced. Some of the distributors were charged under section 233B Customs Act 1901, while some were charged with supplying a traffickable quantity of cocaine, contrary to section 25 Drug Misuse and Trafficking Act 1985 (NSW). The latter Act attracts a "much lower maximum penalty" (p 5) than the former Act. The amounts of cocaine involved in the various charges differed substantially. The subjective circumstances of the various men differed. Some pleaded guilty, some did not. Some provided assistance to the police, some did not. The importer had been sentenced in South Australia by Mohr J, on the basis (different to the principle applicable in New South Wales) that cocaine was a less serious drug than heroin. The judge had sentenced the respondent by taking the sentences that had been imposed on two of the other participants in the criminal enterprise, in relation to which no Crown appeal was then current, "as representing the appropriate scale" (p 5). 79 Carruthers J (with whom Clarke JA and Loveday J agreed) said, at 7: "… there is nothing in the various judgments of the High Court in Lowe which requires a sentencing judge in a situation such as that which presented itself to Judge Shadbolt, where the participants in the importation, distribution and possession of this particular cocaine played such diverse roles and were charged with different offences, to undertake a balancing exercise in order to achieve a mathematical equation. There were far too many objective and subjective variables to permit such an exercise to be undertaken." 80 Carruthers J said, at 8: "I think that his Honour erred specifically in taking the sentences imposed on Navarro and Colclough as 'representing the appropriate scale', to use his Honour's words. I repeat, that there were too many subjective and objective differences between the three cases. Specifically, his Honour appears to have overlooked the fact that Mohr J treated cocaine as a significantly less harmful drug than heroin. Another specific aspect of his Honour's approach, with which I am unable (with respect) to agree, is his attempt to estimate the sentence which Colclough in all probability would have received if he had, like the respondent, pleaded not guilty. An exercise of that nature takes the search for parity to unacceptable limits. Disparity can only arise from a comparison of equals and not a comparison of unequals." 81 The second of the factors on which his Honour relied as showing that the exercise of comparison of sentences was not possible, will often not apply these days, when courts regularly act in the manner urged by R v Thomson & Houlton (2000) 49 NSWLR 383 and quantify the effect of the guilty plea on the sentence. In particular, in the present case, the discounts that each of Huang and Siu received for pleas and other matters were quantified by this Court when re-sentencing them. 82 Relevantly for present purposes, Carruthers J did not say that parity would in principle be inapplicable between the people charged with supplying and those charged with possession, nor that it would be inapplicable between the people charged with supplying as those charges related to different acts of supplying. Rather, the difficulty in taking into account all the differences between the factors that had lead to the differing sentences defeated, at a practical level, any attempt to apply the principle.

[34]

A critical aspect of judicial power is that the court "is called upon" to decide the case. It does not formulate the case itself. 85 In Howard the Court noted, at 253, that it could not reasonably be argued that the evidence against the three appellants who had been convicted of murder did not justify a finding of murder. They said: "The unfairness (or, it may be argued, oppression) involved lies in the comparison between the outcome of the processes of criminal justice in relation to those offenders who got in early with pleas of guilty and to those who decided (at their ultimate cost) to take a harder line. The real problem may be, not that the latter were dealt with too severely, but that the former were dealt with two leniently. As was observed in Hui Chi-Ming [ v The Queen [1992] 1 AC 43], unless all co-offenders are dealt with at the one trial, there is always a possibility of differing outcomes in relation to different offenders, and, if this be unfairness, it is not ordinarily regarded as the unfairness of a kind that attracts judicial intervention." 86 An appeal against sentence by all three men convicted of murder likewise failed. Their Honours said, at 254: "Issues of parity are obviously important in this matter." Their Honours said, at 258 that at the trial: "… a submission was made at his Honour had an overall discretion to do justice to meet the 'unfairness inherent in the Crown's conduct' and it was also put to his Honour that since the abolition of mandatory sentences for murder it was not possible to say that the worst cases of manslaughter call for a lesser sentence than murder. It was put that each applicant's position was comparable to that of the co-offenders who pleaded guilty to manslaughter and that the principle in Lowe v The Queen (1984) 154 CLR 606 should apply and proportionate sentences be imposed. That submission was not accepted. His Honour held, correctly, that he was bound, by reason of the jury's verdict, to sentence the three appellants convicted of murder on the basis that their conduct was significantly more culpable than that of the co-offenders who was sentenced for manslaughter. They intended to do grievous bodily harm; the co-offenders were sentenced on the basis that they did not. When allowance is made for that difference between three of the offenders and the remaining five, and for the discounts given for co-operation with the police, the various sentences that were imposed, when considered both individually and in relation to each other, are appropriate. In the circumstances of this case we see no error in the quantification of the minimum terms and additional terms. We do not consider that, consistently with principle, the Court can intervene in the sentencing process to correct the apparent anomaly that results from the fact that some of the co-offenders were found guilty of murder and others were found guilty of manslaughter. They were all accorded due process of law and, for sentencing purposes, effect must be given by the Court to the outcome of that process." 87 An application for special leave to appeal to the High Court was dismissed, on the basis that "The Court is not persuaded that there was any error on the part of the Court of Criminal Appeal in arriving at its decisions in these matters": Alex Mihailovic v The Queen (High Court of Australia, 3 February 1994, noted [1994] 1 Leg Rep page C3). 88 R v Howard is authority for the proposition that people who participate in a common criminal enterprise, but are charged with different offences concerning that enterprise, cannot have their sentences compared in a way that seeks to undo or correct for any anomaly that there might appear to be as a consequence of the different charges that the people faced.

[35]

Ellis 89 Any recounting of the history of the parity principle in this State must make mention of Ellis v The Queen (1993) 68 A Crim R 449. It contains a blazing disagreement between Kirby P and Hunt CJ at CL about the circumstances in which direct comparison is possible between a sentence that is being reviewed on appeal and a sentence imposed on another person for a crime that is not the identical crime but is in some respects similar. However, as the third member of the bench (Studdert J) saw no need to resolve the disagreement, the respective views of Kirby P and Hunt CJ at CL on that topic are all dicta. 90 The case involved an appeal against sentence concerning an offence of armed robbery. The ground on which leave to appeal was sought was severity of the sentence (not parity). While the applicant had had an accomplice in committing the robbery, the identity of that accomplice was never established (at 462). In the course of submissions, counsel for the applicant referred to a decision in Thorley (NSWCCA, 5 February 1991, unreported) that related to an unconnected armed robbery. Studdert J, who wrote the initial judgment, simply said, at 464: "I do not find that case to be particularly helpful in determining the upper limit in the exercise of the sentencing judge's discretion. It depended upon its own facts and whilst there were similar features between that case and the present one, there were distinguishing features, one of which was that was that although his companion was armed the applicant in that case was not." 91 Studdert J proposed granting leave to appeal but dismissing the appeal. That passage contains an implicit concession that one function that can be performed by a comparison of a sentence under consideration with another sentence for a different crime is to help (though not be determinative) in determining the upper limit of the sentencing judge's discretion. Studdert J does not purport, however, to state exhaustively what use can legitimately be made of such a comparison. 92 Kirby P favoured granting the application for leave to appeal, and re-sentencing. He wrote his judgment in two parts, at different times. In the course of considering Thorley, Kirby P said 451: "Inherent in the applicant's submission was the suggestion that there was such a disparity between the sentence in this case and the sentence in Thorley as to involve unequal treatment under the law. The High Court of Australia has pointed out that such inequality of treatment, in apparently like cases, is a 'badge of unfairness' which erodes public confidence in the integrity of the administration of justice. It is an unfairness which this Court is authorised, and required, to correct: see Lowe (1984) 154 CLR 606 at 611; 12 A Crim R 408 at 410." 93 That was the only mention of Lowe or its principles in the first part of Kirby P's reasons. 94 Kirby P listed 10 points of similarity, and one point of difference, between the respective situations of Mr Ellis and Mr Thorley. He said, at 452: "Consideration of Thorley , and what was said by the Court in that case, inclines me to the view that the sentence imposed by Judge Mitchelmore was too severe for the objective facts of this case."

[36]

He went on to consider subjective factors. 95 Kirby P said (at 453) that error in the sentence under appeal was shown "by measuring that sentence against the sufficiently similar circumstances of Thorley and like cases", and another factor. 96 Hunt CJ at CL also wrote his judgment in two parts at different times. In the first part of his judgment he explained why he did not agree with the "approach" of Kirby P. Evidently, that referred to the significant reliance placed on the comparison between the sentence under appeal and that in Thorley. He emphasised the inherently discretionary nature of sentencing. He said, at 460: "The sentencing judge is nevertheless required to give full weight to the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature; that collective wisdom is manifested in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand: Oliver (1980) 7 A Crim R 174 at 177, quoted in Visconti [1982] 2 NSWLR 104 at 107. It is therefore not to the point to say that, merely because one judge has imposed a sentence which is more severe or more lenient than that imposed by another judge (or even by this Court) in similar circumstances, error has been established in relation to one or the other. What must be looked at is whether the particular sentence which is challenged is outside the general pattern of sentencing by the criminal courts (both at first instance and on appeal)." 97 Hunt CJ at CL at 461, said that though Kirby P had said: "… he perceived error by measuring the challenged sentence 'against the sufficiently similar circumstances of Thorley and like cases ', no such like cases were cited at the hearing of the appeal, and I am not aware of any which would alter the limits of the range to which Studdert J referred." (Original emphasis) 98 He want on to say that Lowe was concerned with an appellate court intervening: "… where a justifiable sense of grievance had been engendered on the part of one accused where his co-accused has received a lighter sentence than he did, even though the sentence imposed upon the aggrieved accused was itself a perfectly appropriate sentence." (Original emphasis) 99 He continued: "The 'consistency in punishment' to which Mason J referred (at 610-611; 410) may, of course, be interpreted as being applicable as the ideal to be achieved in sentencing generally, and not just in relation to the sentencing of co-offenders. But his Honour did not suggest that the approach to be taken in relation to the sentences imposed upon co-offenders - when one sentence is compared directly to the other - is similarly appropriate in relation to offenders with similar characteristics who have committed similar crimes. Indeed, he suggests to the contrary (at 612; 411): 'The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.' What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range. There is nothing in Lowe to suggest otherwise." 100 That prompted Kirby P to write the second part of his reasons, in which he identified seven cases "chosen without intense research" that he said concluded (at 459): "… suggests that the sentence in this case is so high as to show error. In the name of consistency in punishment - which the community also understands - the Court should reduce the sentence." 101 Of particular relevance for present purposes is that Kirby P said at 459: " Lowe certainly addresses a different issue of comparison. But just as one can compare (as there) sentences of co-offenders, this Court has the duty to compare sentences of separate offenders in what are said to be analogously similar cases. It does this to guard against the same problem of injustice and to prevent the same badge of unfairness from eroding confidence in the criminal justice system." 102 The upshot is that Hunt CJ at CL and Kirby P agreed that the principle in Lowe concerned the comparison between sentences of co-offenders. Their difference of opinion concerned the legitimacy of comparing directly sentences for crimes that are similar, but not committed by co-offenders.

[37]

Wurramarbra 103 In Wurramarbra v The Queen (1979) 28 ALR 176; 1 A Crim R 291, the appellant had pleaded guilty in the Supreme Court to burglary and sentenced to 4 years' imprisonment. The appellant had committed the burglary in question in conjunction with Bara. Bara pleaded guilty to break, enter and steal before a magistrate and was sentenced to 14 months' imprisonment. An appeal from the Supreme Court of the Northern Territory was heard in the Full Federal Court by St John, Fisher and Gallop JJ. Their Honours said, at ALR 177-8; A Crim R 292-3: "… it is perfectly clear that looking at the overall situation, Bara and the appellant were equally culpable. The Crown, however, chose to charge Bara with a lesser offence because of lack of evidence and the question is whether or not the appellant is entitled, within the terms of the principle, to feel a sense of injustice or grievance that gives rise to the application of the rule. It appears to us that the sense of injustice or grievance that the appellant would feel in the instant case would be in the same category as that he would feel if his co-offender escaped detection and was not brought to trial. We are of the opinion that, although the facts may be identical or similar, where there are convictions on different charges, the principle cannot operate. Where, of course, the person convicted of the more serious offence receives a sentence which is less than the person convicted of the less serious offence, all other aspects being approximately equal, different considerations apply. Break, enter and steal is punishable by a maximum of eight years' imprisonment with hard labour and burglary is punishable by life imprisonment. In our view the application of the principle is confined to those cases where there is a true comparison of like with like, where the same offence is proved against both, and the principle is not applicable where there is a great variation in the penalties provided for in the two offences."

[39]

Watson 104 Watson v The Queen (NSWCCA, 25 February 1992, unreported) was an application for leave to appeal against sentence in which the applicant had pleaded guilty to being an accessory after the fact of stealing a motor vehicle, and sentenced in the District Court. A man called Corrigon had also been involved in the theft of the motor vehicle. Though initially charged with stealing the vehicle, no evidence was offered against him on that charge, and he pleaded guilty to receiving certain parts from the vehicle. He was sentenced in the Local Court, where he received a fine and a bond. 105 Gleeson CJ (with whom Sheller JA and Loveday J agreed) referred to a question of parity between the sentences as one that was "obviously raised". After referring to Wurramarbra, Gleeson CJ said: "… considerations of parity insofar as they are of legal significance are difficult to apply in cases where co-offenders have been dealt with on the basis of the significantly different charges. As their Honours pointed out in that case, one co-offender may feel a sense of grievance if another co-offender has escaped detection and has not been brought to trial. That, however, has nothing to do with the kind of sense of grievance that is relevant in relation to considerations of sentencing parity. The present applicant might have a sense of grievance about the fact that the police could not prove that Corrigon stole the motor vehicle in question. That is not a relevant sense of grievance for present purposes. In my view, the proceedings taken in relation to Corrigon are so different from those that were taken in relation to the applicant that the argument based on parity is one that should not succeed." 106 That passage seems to accept that parity considerations could be applied between people who had been involved in the one criminal enterprise, though found guilty of different crimes concerning it, but to also recognise that there could be practical difficulties in the application. However, there was no question squarely raised for decision, in the way it is in the present case, about whether parity can apply in circumstances beyond that of two people who commit the one crime.

[41]

Kerr 109 R v Kerr [2003] NSWCCA 234 (unreported) concerned the sentencing of participants in a single criminal enterprise, who had different roles in that enterprise and were charged with different offences. The criminal enterprise involved was a robbery. The applicant was convicted of robbery in circumstances of aggravation, namely using corporal violence and maliciously inflicting actual bodily harm. One of his accomplices was charged with robbery, but with no circumstances of aggravation. The other accomplice, who had driven the car, had been charged with concealing a serious indictable offence. The applicant had been sentenced to 13½ years' imprisonment, with a non-parole period of 10½ years. The accomplice charged with concealing a serious indictable offence, Oliver, was given an 18 month suspended sentence. The accomplices had been sentenced before the applicant was sentenced, but the judge who sentenced the applicant took the view that no issue of parity arose. 110 On the appeal Miles AJ (with whom Beazley JA and Adams J agreed) said, at [13]-[15]: "However the principle of parity in sentencing, or rather the policy behind it, was not so easily dismissed, in my view. The policy behind the principle is not to be avoided by the prosecuting authority simply charging co-operative offenders with less serious offences. The whole of the circumstances need to be examined. Clearly neither of the other two was treated as a co-offender but at the same time each was implicated in the events which gave rise to the aggravated robbery. There are two aspects to the principle. Like has to be and may only be compared with like and any imbalance must be enough to justify on objective analysis a sense of grievance on the part of the offender who complains of the heavier sentence: Postiglione v The Queen (1997) 189 CLR 295. As to the first aspect, the principle is difficult to apply in the present case since neither of the two co-offenders was charged with the offence of aggravated robbery. ..." 111 He noted, at [15], that the fact that one of the accomplices had been charged with robbery, with no mention of aggravation "appears explicable on the basis of his co-operation with the authorities rather than his actual participation in the events." 112 Miles AJ said, at [19]-[20]: "… It is also recognised that the parity principle is of wide application and is not to be applied or withheld in a technical or pedantic way. It is indeed part of or a reflection of the wider principle that consistency in sentencing by the courts overall is to be aimed at as desirable in the public interest. Perfect consistency is a goal that can never be reached because of the infinite variety of the circumstances of offences and offenders. However there is a danger that it may be compromised by the selection of differing charges so that one offender may be charged with a serious offence and given punishment at the top of an acceptable range for that offence, and a co-offender charged with another less serious offence and dealt with at the very bottom of the acceptable range for that other offence. There may be no impropriety in that course, which will often arise from negotiation between co-offenders and law enforcement authorities. Sometimes, however, and it is not necessary to put it higher than that, the result may have the appearance of injustice. In other words when it is known that a person implicated in the offence for which an offender is being sentenced has already been convicted and sentenced, care needs to be taken to ensure that as far as possible the sentence about to be imposed is not so severe as to generate, not only a sense of grievance in the offender but also a sense of disquiet in the disinterested observer. …" 113 It was the comparison between the applicant's sentence and that of Oliver on which the appeal turned. Miles AJ concluded, at [26]: "… it was necessary to give proper consideration to the way in which Oliver had been charged and dealt with and it was not enough to say that no issue of parity arose. Had the appellant been represented it is almost certain that the sentencing judge would have been asked to give consideration to that factor. Had consideration been given, it is likely that the sentence imposed would not have been so far towards the top of the range. Furthermore it must be concluded that whilst Oliver had to be sentenced for the less serious offence under s 94, he received a very lenient sentence on any view, and so lenient that it should have alerted the judge sentencing the applicant to the need to avoid a sentence of gross disproportion. That also is a factor which should have been taken into account on the sentencing of the appellant and was not. In my view these matters are sufficient for this Court's jurisdiction to be enlivened and for the Court to proceed to sentence on the material now available." 114 Upon a re-sentence, the applicant's sentence was reduced to 9 years and 8 months, with a non-parole period of 7 years and 3 months. 115 The Applicant placed reliance upon Kerr, and in particular the statement that "it is also recognised that the parity principle is of wide application and is not to be applied or withheld in a technical or pedantic way." I note that no authority was cited in Kerr in which that proposition was "recognised". 116 Kerr supports the application of the "parity principle" as a basis for reduction of a sentence if it is disproportionate to the sentence imposed on a person with whom the applicant has been engaged in a common criminal enterprise, but who has been charged with contravention of different provisions of the criminal law, and in that sense has not committed the same crime as the applicant. 117 However, in my view there is a serious problem for the persuasiveness of Kerr in that it did not consider the decision in Howard. The statement of Miles AJ at [13] (para [110] above) is in my view directly inconsistent with Howard. The constitutional significance of the difference between the function of the prosecutor and the court, provides a reason, that in my respectful view is sound in principle, for the parity principle not being able to correct for apparent differences in sentence that arise from offenders involved in a common criminal enterprise being charged with different offences. 118 As well, this aspect of Kerr has been poorly received in later cases in this Court. I will return to Kerr after discussing the next case in the chronological order.

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Formosa 119 In R v Formosa [2005] NSWCCA 363, the applicant, together with Mr Colin Wood and another man, went at night to premises occupied by Wood's sister and her boyfriend, a Mr Parry. Parry opened the door to Wood, whom he knew, and Wood went to see his sister elsewhere in the premises. The applicant and the other unknown man then attacked Parry very seriously. The applicant had previously lived with Wood's sister, and resented her new relationship with Parry. The applicant pleaded guilty to maliciously inflicting grievous bodily harm whilst in company, and was sentenced to 4 years' imprisonment with a non-parole period of 18 months. Wood pleaded guilty to a charge of being an accessory after the fact. He was sentenced to imprisonment for 6 months. That 6 months was a sentence that was cumulative on other sentences he was serving for some drug offences. Simpson J (with whom McClellan CJ at CL and Hoeben J agreed) expressed the view, at [11], that the facts put before the judge who had sentenced Wood would have supported a much more serious charge. One of the grounds of the applicant's appeal was lack of parity between the applicant's sentence and that of Wood. The applicant submitted (at [31]) that "The policy behind the principle of parity is not rendered otiose by the co-offender being sentenced to a lesser charge on election by the prosecuting authority to accept a plea to a lesser offence." Simpson J gave detailed consideration to Kerr, and noted that in both Lowe and Postiglione the co-offenders whose sentences were in question had been charged with identical offences as that of the appellant. Her Honour said, at [39]-[40]: "Nothing the High Court said was directed towards the application of the parity principle in cases where offenders were charged with different offences carrying different maximum penalties. The decision in Kerr is capable of being read as extending the principle so that it applies even where co-offenders are charged with different offences. I do not wish to be taken as entirely rejecting the proposition that the principle can be so applied, but here, with the extremely wide divergence between the nature of the crimes charged against the co-offender and against the applicant it is difficult, if not impossible, to see how that principle can be applied. The effect of the submissions made on behalf of the applicant (and the decision in Kerr is at least capable of giving them some support) is that the principle of parity in sentencing is broad enough to extend to redressing disparities or discrepancies in the charging process as well as in the sentencing process." 120 She concluded at [44]: "I do not understand either Lowe or Postiglione to suggest that the parity principle extends to correcting any imbalance in the manner in which co-offenders are charged. I would be very cautious before proposing or adopting any such principle." 121 Her Honour ultimately decided, at [52], that "the principles of parity not only do not require, they would not permit, this Court to intervene as suggested on behalf of the applicant". There were two separate categories of reason for reaching that conclusion. The first, at [50], related to the way in which the decision of the prosecuting authorities was a substantial part of the reason for the difference between the two sentences: "Here, the main reason for the discrepancy in sentences on the two co-offenders derives from the difference in the charges they faced. The applicant may have a sense of grievance, even a legitimate one, about that difference; but it is not a legitimate sense of grievance in the Lowe or Postiglione sense, concerning the sentences imposed; it is a sense of grievance engendered by the prosecutorial decision making process. That is not something over which this court has supervisory jurisdiction, even by the backdoor method of supervising sentencing." 122 The second, at [51], was a collection of reasons relating to differences between the situations of the applicant and Wood that bore upon their respective sentences: "… No finding was made that either of the offenders was the instigator of the offence, although there are hints that it might have been Colin Wood. Certainly it was the applicant's grievance about the end of his relationship with Belinda Wood that was the precipitant for the offence. It is true, also, that Colin Wood had a relevant criminal record, which the applicant did not. This would ordinarily give rise to a more severe, rather than less severe, sentence. However, Colin Wood had also been sentenced on additional and different charges and the sentence imposed had to have regard to the principle of totality." 123 While her Honour did not reject in principle the application of parity principles to a situation where two participants in a common criminal enterprise play different roles and are charged with different offences, the case provides no support for the parity principle having any role to play concerning the sentencing of people who are not part of a common criminal enterprise. I suspect that the reason for her Honour's caution is that the Court in Formosa was not referred to the decision in Howard, which provides a reason of principle why the parity principle cannot correct for anomalies arising from participants in a common criminal enterprise being charged with different offences.

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Returning to Kerr 124 There are other reasons that are related to the constitutional difference between courts and prosecutors that Gleeson CJ drew attention to, that also lead to the conclusion that courts are not in a position to correct for differences in the charges that are brought against people involved in a common criminal enterprise. At a level of broad policy, the law in sentencing aims to treat like cases alike, and unlike cases differently. But the policy underlying the law is not the same as the law itself. There are practical difficulties in carrying that policy into effect. One of no small significance is that sometimes there will be occasions when an offender is charged with a lesser crime than would have been justified if all the relevant facts had been discovered by the police, or than would have been justified if the police had admissible evidence, rather than information that does not meet the standards of admissibility. There is always, in one sense, unfairness if one person receives a heavier sentence than a person who if all the facts were known could be seen to be equally culpable but against whom the truth of what actually occurred cannot be proved by admissible evidence. A sentencing judge will usually not be in a position to know whether the reason for one person involved in a criminal enterprise being charged with a lesser offence than another is lack of evidence, rather than that the facts if fully known justified the difference in the charges. This is one particular consequence of courts acting only on the basis of admissible evidence or conceded facts. 125 There are other limitations on a judge being able to compare directly the sentences of people charged with different offences. There will be occasions when one person involved in a criminal enterprise is charged with a lesser offence than another in what might be called a comparatively clear exercise of prosecutor's discretion. Such an occasion arises when, even though on the available admissible evidence it would have been open to charge the first of those people with a more serious offence than was actually charged, the prosecutor decided not to do so, perhaps as part of a plea bargain, perhaps as a trade-off for the person charged providing assistance, perhaps because of matters personal to that person like youth, perhaps for other reasons. There will be other occasions when one person involved in the criminal enterprise is charged with a lesser offence than another in circumstances where the available admissible evidence is such that even the most assiduous prosecutor could not realistically have expected to prove a more serious offence against the first of those people. There will be other occasions that have some elements of both of these factual scenarios. It will often be impossible for a judge to know whether the charging of two people with different offences is truly, or wholly, a matter of discretion on the part of the prosecutor. In comparing the sentences of co-offenders courts are well able to factor out the effect on the sentences of differences that the court knows about in the objective circumstances of involvement of the respective co-offenders in the crime, and in the subjective circumstances of the offenders. But it would not be practicable for a court to try to apply an extended version of the parity principle by comparing the sentences of two people involved in the common enterprise and factoring out the extent to which the difference in the sentences is a function of prosecutorial discretion. It cannot carry out that task when it does not know to what extent it is truly a discretion, rather than something else, that is the reason for the difference in the charges. In the result, to the extent to which differences in sentence arise from differences in the charges brought against two people involved in the one common criminal enterprise, those differences cannot be corrected for by an application of the parity principle. 126 The Court of Criminal Appeal does not regard itself as bound by its own earlier decisions: R v Johns [1978] 2 NSWLR 259 at 260-2 per Street CJ, with whom Nagle, Begg, Slattery and Sheppard JJ (at 264), Lee J (at 270) and Lusher J agreed; R v Mai (1992) 26 NSWLR 371 at 380-1 per Hunt CJ at CL (with whom Enderby and Allen JJ agreed); R v Arnold (1993) 30 NSWLR 73 at 77 per Hunt CJ at CL, 85 per Abadee J (with whom Gleeson CJ agreed); R v Jurisic (1998) 45 NSWLR 209 at 214 per Spigelman CJ (with whom Wood CJ at CL, Sully, BM James and Adams JJ relevantly agreed). However, as is made clear in R v Mai at 380, and also in R v Arnold at 74-75, 85, the power of departing from its previous decisions is exercised with caution and a due regard for the orderly administration of the law. As well, these days, it would be anomalous if this Court were to be restrained by Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 or by Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at 151-2 [135] from departing from a decision of another intermediate Court of Appeal if in comparable circumstances it were free to depart from a previous decision of its own. 127 Consistently with Marlborough Gold Mines and Farah v Say-Dee, departure from a previous decision would require a strong conviction that the previous decision was incorrect: Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 at [284]. As well, however, John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438-9, followed in Gett at [297], listed some practical considerations (drawn from the judgment of Gibbs CJ in Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 at 56-8) that favoured reconsidering an earlier decision: "The first was that the earlier decisions did not rest upon a principle carefully worked out in a significant succession of cases. The second was a difference between the reasons of the justices constituting the majority in one of the earlier decisions. The third was that the earlier decisions had achieved no useful result but on the contrary had led to considerable inconvenience. The fourth was that the earlier decisions had not been independently acted on in a manner which militated against reconsideration…" 128 In Queensland v The Commonwealth (1977) 139 CLR 585 at 630 (relied on in Gett at [298]) Aickin J set out some other factors relevant to overruling a prior decision: "The first is that there should be no inhibitions about overruling a decision, the error of which has been made manifest by later cases which however have not directly overruled it. The second is that the Court will be slow to overrule, or should refuse to overrule, cases which 'go with a definite stream of authority' and do not 'conflict with well established principle'. The third is whether the prior decision can be confined as an authority to the precise question which it decided or whether its consequences would extend beyond that question. The fourth is whether the prior decision is isolated 'as receiving no support from prior decisions and as forming no part of what in one metaphor is called a stream of authority and in another a catena of cases.'" 129 Though those practical considerations were stated as ones that the High Court applied to reconsideration of its own decisions, and there are some clear differences between the respective roles of the High Court and an intermediate appellate court, nonetheless they can provide some guidance to when it is appropriate for an intermediate appellate court to refuse to follow one of its own decisions: Gett at [301]. 130 I am persuaded, for the reasons I have given, that Kerr was mistaken in extending the parity principle to apply to undo the extent to which differences in the sentences of people involved in a common criminal enterprise, but who are charged with different offences, arose from the charges being different. Kerr did not rest upon any principle carefully worked out in a series of cases - indeed it ignored the earlier and contrary decision in Howard. While there was no disagreement between the judges who decided Kerr, it has not been relied on in a series of cases thereafter. Rather, it has been the subject of repeated criticism that has not gone quite as far as actually deciding it is wrong. I would not follow the aspect of it that permitted the parity principle to undo the effect on sentence of different charges being brought against two participants in a common criminal enterprise.

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Araya 131 R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555 was an application for leave to appeal against a sentence concerning five counts of obtaining a valuable thing by deception and one count of attempting to obtain a valuable thing by deception. Each of the charges related to obtaining (or attempting to obtain) an airline ticket after purportedly paying for it by charging it to a non-existent credit card. One of the grounds of appeal concerned what was said to be a lack of parity with a sentence imposed upon a Mr Chandra, who was said in a ground of appeal to be a "co-accused". Mr Chandra lived at the same accommodation as the applicant (at [75]). He had pleaded guilty to four counts of obtaining a financial advantage by deception. Three of those charges related to obtaining air tickets by provision of false credit card information, while the fourth related to a purchase of air conditioners by provision of false credit card details. Though Chandra asserted that the purchase of the air conditioners was being carried out on behalf of the applicant, the applicant was not charged with any offence relating to air conditioners. One of the air tickets that the applicant had obtained by deception was issued in the name of a Mr J Chandra, but the applicant was not charged concerning that ticket. The argument placed before the Court was as follows: "65 … Senior Counsel for the Applicant accepts that Mr Chandra and the Applicant were not co-offenders and that the normal parity principle does not strictly apply. However, he contends that there are similarities between the criminal conduct of the two offenders, their related arrests and parallel criminal proceedings in such a way as to attract, by analogy, the parity principle. It is submitted that the Applicant has been left with a sense of grievance which, in all the circumstances, is justifiable." 132 Johnson J (with whom Simpson and Rothman JJ agreed) explained (at [66]-[72]) why the parity principle did not apply, in terms upon which I cannot improve: "66 As the Applicant and Mr Chandra were not co-offenders, the parity principle reflected in Lowe v The Queen (1984) 154 CLR 606 and Jones v The Queen (1993) 67 ALJR 376 has no application. 67 This Court has held that the parity principle is not to be applied when a ground of appeal invites comparison between sentences imposed upon two offenders, who are not co-offenders, simply because the two offenders may have similar characteristics and may have committed similar crimes. In R v Morgan (1993) 70 A Crim R 368 at 371, Hunt CJ at CL (Allen J and Loveday AJ agreeing) said: 'It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range.' 68 In R v F (2002) 132 A Crim R 308, it was submitted on behalf of an offender that the Court should treat the sentence imposed in a different case upon a different offender as being a 'benchmark' which ought be followed. The Court rejected this argument. Simpson J said at 315: 'Consistency in sentencing may be achieved by the slavish adoption, by a subsequent court, of a sentence selected by an earlier court when the facts are comparable. However, that would be consistency purchased at the cost of the sacrifice of the proper exercise of judicial discretion. Within the bounds of the appropriate range of sentences, each sentencing judge (either at first instance or following appeal) must bring to bear his or her own independent assessment of the particular case. I do not find the argument in relation to the desirability of consistency in sentencing persuasive in this case. Consistency is not derived from a single case. Consistency in sentencing will be achieved from a range of cases involving similar features, and also variables. It depends upon the accumulated wisdom and experience of sentencing judges. In my opinion a single case is inadequate to enable a principled consistent approach. … Moreover, while consistency in sentencing is, no doubt, an important goal, equally important for the administration of justice is the public perception that sentences imposed by criminal courts are appropriate to the nature and seriousness of the crime committed.' Meagher JA at 309-310 agreed with Simpson J, but preferred to use the words 'more important' rather than 'equally important' in the last quoted passage. Howie J expressed a similar view to Meagher JA in this respect at 316-317. 69 In R v George (2004) 149 A Crim R 38 at 47, the Court (Wood CJ at CL, Adams and Kirby JJ) approached a ground of appeal which invited comparison with sentences in other case[s] in the following way: 'We are unable to gain any meaningful assistance from a reference to these cases. It is necessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority: see R v Morgan (1993) 70 A Crim R 368; R v Salameh NSWCCA 9 June 1994 and R v Trevenna (2004) 149 A Crim R 505 at [98] to [101] per Barr J. At the most, other cases can do no more than become part of a range for sentencing, which in the case of manslaughter is wider than for any other offence. The difference in objective and subjective culpability, which is found in these decisions, is such that any search for a correlation between the case at hand and another decided case is to ignore the judicial discretion which is involved in the individual sentencing exercise required. As Barr J said in Trevenna , 'Even if it were possible to say that the culpability in two unrelated cases was the same it would not be correct to say, if the sentences were different, that for that reason alone one of them must be wrong.' Inter alia any such approach would have to assume that the other was correct, and that is an assumption which cannot logically be made." 70 Similar sentiments have been expressed by this Court when arguments have been advanced on appeal comparing sentences imposed for offences of dishonesty or fraud committed by persons who are not co-offenders: R v Hawker [2001] NSWCCA 148 at [17]-[18]; R v Swadling [2004] NSWCCA 421 at [29], [54]; R v Martin [2005] NSWCCA 190 at [56]. In each of those cases, the Court has emphasised that far greater assistance is derived from references to general sentencing policy. 71 In R v Singh [2001] NSWCCA 424, an argument was advanced that an unjustified disparity existed between the overall sentence imposed upon the Applicant when compared with others who might be considered to be his co-offenders. It was submitted for the Applicant that he was one of a group of offenders, most of whom had been dealt with by different District Court Judges, in respect of the sale of amphetamines from a particular café in Kings Cross. In the course of rejecting this argument, Howie J (Grove J agreeing) said at [12]: 'The applicant was never charged with any offence in relation to the supply of drugs to, or by, the persons at the café. The applicant was not a co-offender of any person other than the unidentified person or persons who supplied him with the drugs that he on-supplied to the operative. The supply to the undercover officer was only in the most indirect way connected to the criminal conduct emanating from the café and for which other persons were sentenced. As Judge Woods noted, the applicant was not the target of the police operation and, in his Honour's words, he 'simply became roped in'. Regardless of what sentences the persons connected with the drug dealing from the café received, the applicant could not have a justifiable sense of grievance about them. The sentences of those persons are no more relevant than would be the sentences imposed upon other associates of the applicant for unrelated drug offences. Although Judge Woods said that he would bear in mind the sentence imposed upon one of the barmen at the café for supplying ecstasy, I cannot understand why he did so.' 72 It was accepted in this case that the Applicant and Mr Chandra were not co-offenders. Whatever may have been the position with the offences contained in the original indictment, it is the case that none of the offences to which the two offenders ultimately pleaded guilty were committed by them as co-offenders. As will be seen, it appears that there was some association between the two offenders and some overlap in their activities. However, I do not consider that this attracts the parity principle to the Applicant's case. In my view, the correct approach to the present argument involves application of the principles referred to in Morgan , F , George and Singh referred to above." 133 His Honour concluded, at [85]-[86]: "The parity principle has no direct application to this case. It is true that the two offenders are not unrelated. This is not a case such as Morgan , F and George where the Court is asked to compare sentences for entirely unrelated offenders and offences. This case is closer to Singh where a parity-type argument was rejected. The applicable principles, however, are those contained in Morgan , F , George and Singh . The issue is whether the sentences imposed upon the Applicant are outside the appropriate range of sentence for offences of this type. A comparison of the Applicant's case with the sentences imposed upon Mr Chandra does not demonstrate error in this respect." 134 His Honour then went on to consider what would happen "if the parity principle is considered by analogy". He rejected that there would be any legitimate sense of grievance arising from a comparison between the two sentences, each considered in their appropriate context of circumstances. 135 This was not, as I understand it, a recognition that an extended version of the parity principle might apply in the case before him. 136 There is clear High Court authority that the principle applies to the sentences imposed upon co-offenders, in the sense of people who have both committed the one crime. As cases discussed both above and below show, there is a stream of authority in intermediate courts of appeal recognising that, within limits, it can have a role to play in comparison of sentences for different crimes committed by people involved in a common criminal enterprise. Outside its proper scope of application it cannot apply at all. In accordance with the principles that Johnson J quoted from Morgan, R v F, George and Singh the sentencing of people who have not committed crimes to which the parity principle can be applied must be carried out by direct application of the principles of sentencing. 137 It can be legitimate for a sentencing judge to look at sentences imposed in other cases as part of the sentencing judge's own reasoning towards a sentence by direct application of those principles. But three things need to be borne in mind in so doing. The first is that the judge's aim in so doing is not to achieve a fair comparison with any particular sentence, but to understand the range within which other judges have sentenced for somewhat similar crimes. The second is that it may be that some previous sentencing decision is itself, even if not wrong to an extent that would be corrected on appeal, still not a particularly good example of the application of sentencing principles, and thus would provide an unreliable guide. The third is that the "range" is not a reference to the range of sentences that are applied in fact - it is a reference to the range of sentences that are open to a judge in the proper exercise of a sentencing discretion. 138 The range of sentences that have been applied in fact is relevant in two different ways to the range of sentences open in proper exercise of the discretion. The first is as a way of educating or reminding the judge, by illustration or ostensive definition, of the range. In that way it provides some indication of the range of sentences open in proper exercise of the discretion, but is not determinative of it. That is shown by the way in which a guideline judgment could have the effect that the sentences that courts have in fact been applying are shown to have been, in general, too high, or too low to be the result of proper application of the sentencing principles. 139 The second is that the aim of achieving equality of treatment across the range of sentences, so far as is possible, is advanced if the sentence that a judge imposes in a particular case is not, without good reason, out of keeping with the sentences that have actually been imposed across the range for similar crimes. That one is writing a guideline judgment could be such a good reason. When the "range" consists of crimes that have considerable differences in both objective facts and subjective circumstances from the crime that is being sentenced for, this comparison with the "range" is done at a fairly impressionistic level, not by being guided by a close comparison of the facts of an individual crime that has already been sentenced for with the facts of the crime that the judge is in the process of deciding a sentence for. That the comparison is done in a fairly impressionistic way is a reason why the comparison is subordinated to the direct application of the sentencing principles in arriving at a sentence. The legitimacy of using a comparison with the "range" in this way was acknowledged by Hunt CJ at CL in Ellis. Comparison with the "range" in this way is not applying "parity by analogy", because an essential characteristic of the parity principle is that it permits comparison of two individual sentences and alteration of one sentence as a direct result of the comparison with the other sentence. 140 This accords with the statement of Howie J (with whom Tobias JA and Shaw J agreed) in R v Shepherd [2003] NSWCCA 287; (2003) 142 A Crim R 101 at [17]: "In any event this exercise of comparing sentences imposed upon other offenders for different importations to support a submission that the applicant's sentence was excessive has frequently been the subject of criticism in this Court; see for example R v Bushell (NSWCCA, 7 August 1998, unreported). There is a range of sentences available to a sentencing judge who has a wide discretion to choose a sentence that is appropriate to the facts and circumstances of the particular case. The comparison of sentences can be important to determine whether there is an established range of sentences for the offence for which sentence is being imposed or, in this Court, to determine whether the sentence imposed is unjustifiably outside that range. But ultimately the question for the sentencing judge and this Court is determined by the particular facts and circumstances of the matter before the court when viewed against the legislative regime for sentencing an offence of that type."

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151 For reasons unconnected with parity, Grove J decided it was appropriate to re-sentence appellants 3 and 4 ([85]-[86]). 152 Grove J (with whom Barr and Howie JJ agreed concerning this point) upheld an aspect of the submission based on disparity. His reasoning proceeded by considering the relative culpability of the various participants in the three criminal enterprises. 153 The complaint of offenders 1 and 2, of disparity with offender 6 concerning the Baileys charge, was rejected at [92]: "[Offender 6] was a recruited courier and his conduct and contribution to the criminal enterprise was different from, and much less culpable than, the other three who were organisers and intended sharers in any profit. No justifiable grievance could be harboured because he was treated more leniently than [offender 1] or [offender 2]." 154 Concerning the MDMA charges, his Honour said, at [87]-[90]: "… [Offender 2] was involved in 'bankrolling' the importation for profit and actively involved to some degree in progressing the matter. That reflects participation at a very high level. [Offender 4] was a watchkeeper who reported what was being done to LAM in Hong Kong. It is difficult to perceive that [offender 4's] conduct is more culpable than that of [offender 2] who was to all intents one of the entrepreneurs. … What is significant is, however, a prior conviction of [offender 4] in Hong Kong for a drug related matter. In that regard, his situation is somewhat analogous to that of [offender 5] who also had prior conviction whose non parole period for his MDMA offence was 3½ years less than that specified in the case of [offender 4]. In assessing sentence there should be reflection of the criminality of each offender in accordance with what each has done in pursuit of the crime, and, although [offender 4] and [offender 5] did materially different things, I conclude that they should be assessed as having approximately equal criminal responsibility as well as broadly equivalent subjective factors. I would resentence [offender 4] to a similar term as that received by [offender 5] for his MDMA charge. I remain conscious of the relativity between the entrepreneurial activity of [offender 2] and [offender 4] but assessment of her sentences require attention to issues of totality whereas [offender 4] faces the single count and there is the deprivation of leniency consequent upon the existence of his prior conviction." 155 Because of cumulation, the Baileys charges resulted in offenders 1 and 2 in effect receiving an extra 2 years imprisonment, but the actual sentence imposed on each of them for the Baileys charges was 15 years imprisonment to date from their arrests on 16 October 2001. The actual sentences received by offenders 5 and 6 were 10 years imprisonment and 6 years imprisonment with a non-parole period of 3½ years respectively. 156 The Crown accepted that offender 5 was a principal in the Baileys offence. Further, because he had a prior conviction for a drug offence, offender 5 was liable to life imprisonment on the Baileys charge. Grove J said, at [95]: "It is appropriate in all the circumstances that the terms of sentence of [offender 1] and [offender 2] for the [Baileys] offence should be coordinate with that received by [offender 5]." 157 As well, his Honour took into account considerations of parity, after various accumulations of sentence were taken into account. He said, at [99]: "However, the ultimate question in my view is whether the life sentence can stand in the light of the grounds already discussed and the circumstance that two others, one of almost equivalent culpability as a principal ([offender 5]), and the other an important supervisor on behalf of another principal ([offender 4]), should receive determinate sentences. The custody to be served by [offender 5] and that to be served by [offender 1] stands in such stark contrast that I have concluded that [offender 1's] case for intervention is made out. The conclusion receives some emphasis when it is observed that [offender 5] participated in all three of the occurrences which I initially described, [offender 1] in two of them. In my view, the discrimination would entitle [offender 1] to harbour a justifiable sense of grievance and he should receive a determinate sentence although, as a reflection of his greater culpability (even if it was only marginally so) it should be a longer term than the others." 158 Offender 1 had been charged with a more serious crime than had offender 5 concerning the MDMA importation, and the same charge as offender 5 concerning the Baileys importation. Thus Nguyen provides an example of a sentence being reduced by comparison (at least in part) with that of a co-offender who had been charged with a less serious crime.

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Rend 159 In Rend v The Queen [2006] NSWCCA 41; (2006) 160 A Crim R 178 the appellant had been convicted of robbery (ie, not of armed robbery), and sentenced to 4 years, with a non-parole period of 2 years. The conviction was after a trial at which the appellant had pleaded not guilty. The appellant had been the driver of a motor vehicle that had stopped in a suburban street for just long enough for a man called Wormleaton to get out of the vehicle, rob a passer-by, and get back into the vehicle before it drove off. Wormleaton had pleaded guilty to charges of armed robbery, stealing a motor vehicle and being in possession of implements capable of being used to enter and drive a motor vehicle (at [3]). He received a discount of 50% for his pleas of guilty and for assistance. The sentences imposed on him were a total sentence of 2 years 6 months, with a non-parole period of 1 year 6 months for the offence of armed robbery, and for the other two offences fixed terms of imprisonment of 1 year to be served concurrently with part of the non-parole period of the sentence for armed robbery (at [96]). The judge who sentenced the applicant said that because Wormleaton was sentenced for the more serious offence of armed robbery and because he had received a discount for his pleas of guilty and his assistance, "the principle of parity of sentencing does not apply". One of the grounds of appeal was "the applicant has a justifiable sense of grievance by virtue of the disparity between the sentence imposed upon her and that imposed upon the co-offender, Wormleaton" (at [46]). James J (with whom Buddin and Hall JJ agreed) noted that Wormleaton had been convicted of a more serious offence and had received a discount. He continued, at [106]-[109]: "… notwithstanding these differences between the appellant and the co-offender Wormleaton, I consider that it was still necessary for the sentencing judge to impose a sentence on the appellant such that there would be a due proportion between the sentence passed on the appellant and the sentence or sentences passed on Wormleaton Postiglione v The Queen (1997) 189 CLR 295 at 301-302 per Dawson and Gaudron JJ. The principle of due proportionality in sentencing co-offenders was applied in Postiglione , notwithstanding a number of differences between Postiglione and the co-offender Savvas. The judge who sentenced Wormleaton quantified a combined discount for Wormleaton's pleas of guilty and assistance as 50 per cent, so that the sentence which would have been imposed on Wormleaton for the offence of armed robbery, absent the plea of guilty and the assistance, would have been five years. I accept the submission by counsel for the appellant that the sentence imposed on the appellant of four years was unduly severe, when compared with a sentence of five years, which would have been imposed on Wormleaton but for his pleas of guilty and assistance. Wormleaton was sentenced for a more serious offence of armed robbery, whereas the appellant was sentenced for the less serious offence of robbery simpliciter. It is clear that Wormleaton took the leading role in the planning of the offence for which the appellant was sentenced, the preparation for the offence and the actual carrying out of the offence. At the time of committing the offence of armed robbery, Wormleaton was on bail and subject to a bond. The sentence imposed on Wormleaton was partly concurrent with the sentences imposed for the other offences committed by Wormleaton. As, in my opinion, the challenge to the appellant's sentence based on Postiglione v The Queen has been made good, it is unnecessary to consider the remaining grounds of appeal against sentence. …" 160 Rend is a case on which the Applicant places particular reliance. Rend treats the parity principle as one of wider application than was actually decided by Lowe and Postiglione. It accepts that the parity principle is capable of applying to people involved in a common criminal enterprise, but who are charged with different offences, provided that in applying it the comparison takes as a given the different offences that the co-offenders have been charged with, and the consequent difference in the seriousness of their respective acts. There was no practical difficulty in taking the respective charges as a given in Rend, because the difference in the charges was part of the reason why the appellant had a justifiable sense of grievance. With respect, it is hard to see how the appellant would not have a justifiable sense of grievance when she had been convicted of a less serious crime than Wormleaton. Wormleaton had been the leader of the enterprise, had a criminal record, and was on bail at the time of the offence. Those differences clearly warranted a greater difference in the sentences than the difference between Wormleaton's five years (undiscounted), and the appellant's four years.

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Pham 161 In Pham v The Queen [2009] NSWCCA 25 the applicant had been convicted of knowingly taking part in the supply of a large commercial quantity of a prohibited drug. He was sentenced to a non-parole period of 7 years and 6 months with a balance of sentence of 2 years and 6 months. The offence of which he was convicted has a maximum penalty of life imprisonment, and a standard non-parole period of 15 years. The drugs in question had been imported from Vietnam in a single shipping container, hidden in the base of some gypsum statutes. Other men involved in the importation were Du, Ly and Lam. Du's role involved attending the shipping company, handing over shipping documents relating to the container, paying the shipment fees, leasing (with Lam) a storage facility to which the container was eventually delivered, and on two separate occasions removing some packages from the container and taking them away. Lam's role was co-operating with Du in leasing the storage unit, and on one occasion attending the premises with Ly, looking in the container, and having a conversation which disclosed their knowledge of the presence of drugs. Lam attended on another occasion with an offender called Nguyen, removed some of the boxes from the container and took them away. There were telephone intercepts showing that Du, Ly and Lam had been in frequent contact with each other, and Ly had been in regular phone contact with the applicant. 162 The applicant's role involved arriving, with Ly, at the storage facility, unpacking the boxes, breaking the statues and removing the bases from about 177 of them, and taking them away. The remains of some of the bases of the statues were found at the applicant's house. 163 One ground of appeal related to being "left with a justifiable sense of grievance due to the disparity between his sentence and the sentences imposed upon Du and Lam." 164 Latham J (with whom Giles JA and Mathews AJ agreed) recorded (at [14]-[16]) the various sentences imposed: "Du pleaded guilty to an offence of importation of Tier 1 goods in breach of s 233BAA(4) of the Customs Act 1901 (Cth). That is an offence for which the maximum penalty is imprisonment for 5 years. An offence against him of supplying the drug did not proceed. The Judge sentenced Du to imprisonment for 2 years but suspended that sentence. Ly was convicted of an offence of supplying the drug. The Judge sentenced him to a term of imprisonment made up of a non-parole period of 9 years with a balance of term of 3 years. Lam pleaded guilty to an offence of importation and an offence of supplying the drug. He was sentenced by her Honour Judge Morgan to imprisonment for 2 years 6 months on the importation offence and a term of imprisonment comprising a non-parole period of 8 years and a balance of term of 4 years for the supply offence. The sentences were to be served concurrently." 165 Latham J first considered, and rejected, an argument that the sentence was manifestly excessive. She proceeded in that way "because an argument based upon parity accepts that the sentence imposed upon the applicant was otherwise appropriate" (at [17]). 166 (I think, with respect, that it is going too far to say that an argument based upon parity accepts that the sentence imposed upon an applicant was otherwise appropriate. One can envisage a situation where an applicant's sentence could justifiably be reduced to a particular level by an appellate court on the ground that it was manifestly excessive, but where parity considerations led the appellate court to reduce the sentence to an even lower one.) 167 The applicant had argued, on the basis of Kerr, that parity can apply notwithstanding that the two offenders are charged with two completely different offences. Thus, the applicant argued, his sentence could be reduced because of its disparity with that of Du, notwithstanding the different charge of which Du was guilty. The particular argument that the applicant put was (at [31]) that Du's criminality "seems more significant and indeed even more serious than the applicant's". Latham J set out the remarks of Miles AJ in Kerr and of Simpson J in Formosa. 168 After considering other authority in this Court that bore upon Kerr, her Honour concluded, at [36]-[38]: "In my opinion, if Kerr has any applicability, it must be in a very limited class of case. This Court is not generally concerned with addressing the consequences of prosecutorial discretion as it impacts upon the sentences imposed upon offenders. As Miles AJ recognised, it could not be seriously argued that a person should receive a reduction in sentence because a co-offender is not charged or where, for some reason, the charge does not proceed. Why then should a sentence be reduced because another offender is charged with a less serious offence or a lesser number of offences? How does the court inform itself of the reasons why the prosecutor acted as he or she did? Does the court interfere even if the prosecutor's actions were completely justified? If the disinterested observer is to be consulted then that observer should understand the reasons why the prosecutorial discretion was exercised as it was. If this observer also understands that the courts do not generally supervise the legitimate exercise of prosecutorial discretion or seek to address the results of its exercise, then the observer would feel no disquiet about the different sentencing outcomes. But if such disquiet does arise, it is a result of the prosecutor's actions and not the sentences imposed by the court. In my opinion there is no justifiable sense of grievance arising from the proceedings against Du or the sentence imposed upon him." 169 What one takes from this case must bear in mind the particular submission that the court was dealing with. The invitation for the court to regard Du's criminality as more serious than that of the applicant could not be acceded to when the applicant had been charged with the more serious crime, and no way was suggested in which the court could perceive a disparity between the sentences that did not arise from the different crimes with which they were charged. Reaching that conclusion is quite consistent with Rend, where the court saw disparity between the sentence of an applicant and that of a person charged with a more serious crime. 170 It will be recalled that Lam had been charged with the same offence as the applicant, though also with an additional offence. The offences with which the applicant and Lam were charged arose from the one common criminal enterprise. In accordance with the decision in Postiglione, it was permissible to apply the principle of parity to compare the sentences imposed upon the applicant and Lam, notwithstanding that Lam's sentence may well have been influenced to some extent by principles of totality. Thus, Latham J dealt with the parity argument in relation to Lam on its merits, by considering the extent to which there were similarities and difference between the respective actions and situations of the applicant and Lam, ultimately concluding that there was no disparity between the sentences imposed on the two men.

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Shen 173 Shen v R [2009] NSWCCA 251 was an application for leave to appeal against a sentence imposed concerning two offences. One was trafficking in a commercial quantity of a border controlled drug, namely MDMA, contrary to section 302.2(1) Criminal Code Act 1995 (Cth). The other was knowingly taking part in the supply of a large commercial quantity of MDMA contrary to section 25(2) Drug Misuse and Trafficking Act 1985 (NSW). The Commonwealth charge related to the distribution by the applicant of 230,000 MDMA tablets. The State charge concerned an agreement to supply 10,000 MDMA tablets. No supply actually took place under that agreement because the authorities intercepted the drug before the applicant obtained it. 174 The applicant was sentenced to 11 years imprisonment with a non-parole period of 7 years for the Commonwealth offence, and a non-parole period of 7 years 3 months with a balance of term of 2 years and 6 months for the State offence. There was partial accumulation of the sentences, resulting in an overall sentence of 13 years, with an effective non-parole period of 9 years. 175 The MDMA the subject of both charges had been imported into Australia by a syndicate of which one Matthew Reed was a member. Reed was sentenced by Douglas J in the Supreme Court of Queensland in April 2007, on four counts of importing a commercial quantity of a border controlled drug contrary to the Criminal Code (Cth). Two of those counts involved cocaine, while the other two counts involved MDMA. The whole of the amount that was the subject of the first of those MDMA charges had come into the applicant's possession. The second charge against the applicant related to the supplying of 2.26 kgs of the 33 kgs of MDMA that Reed had imported in September 2006. Reed was sentenced to concurrent terms of imprisonment of 12 years with a non-parole period of 8 years on each count. The remarks on sentence in Queensland made clear that Reed's sentence was reduced by 50% to take account of past and future assistance, and possibly also his plea of guilty. By comparison, the trial judge who sentenced the applicant had accepted a joint approach of prosecuting and defence counsel that the combined effect of the applicant's plea of guilty and past assistance justified a discount of 35%. 176 The applicant's submission was that, even allowing for the different offences with which he and Reed had been charged, and for the differences in sentencing practices between New South Wales and Queensland (most notably that wholly concurrent terms of imprisonment for all offences of the type and scale in which Reed was involved was contrary to New South Wales practice) the sentences were disproportionate. Reed was a senior member of the importation syndicate - indeed only one person was senior to him in it - and he had been personally involved in reasonably complex arrangements, involving international travel and importation of the goods concealed in ordinary items of commerce. As well, the applicant had agreed to supply only a small part of Reed's second importation. Notwithstanding those matters, the applicant was sentenced to a significantly longer effective sentence than Reed. 177 Fullerton J (with whom Hodgson JA and Howie J agreed) upheld that submission. 178 After noting the principle in Postiglione and the remarks of Latham J in Pham, Fullerton J continued, at [32]-[33]: "While it is true that the Commonwealth prosecuting authority in the present case laid different charges against Reed and the applicant (in part, it would seem, as a result of the fact that Reed was arrested in Queensland and the applicant in New South Wales) and that this had the effect of invoking different statutory sentencing regimes and different approaches of principle to the question of accumulation, the same statutory maximum of life imprisonment applied to all offences. In addition, it is important to emphasise that despite the differences in the objective criminality of the applicant and Reed the dominant offending of both was contrary to the Commonwealth Criminal Code , albeit that Reed was charged with importing the border controlled drug that the applicant was charged with trafficking there was a marked overlap and interconnection between their offending. In the particular circumstances of this case, to point to the different charges and the different State sentencing regimes as justifying the disproportion between the applicant's sentence and Reed's sentence understates the importance of the overriding principle of equal justice and its legitimate operation in this case. Despite his Honour having said that he would 'bear in mind' the sentences imposed on Reed, I am satisfied that a greater allowance ought to have been made for relative parity in sentencing the applicant particularly since it was not suggested to his Honour (and not submitted to this Court) that the sentences imposed on Reed were manifestly inadequate, despite the fact that the sentences are markedly out of step with sentences imposed in this state for importing commercial quantities of a border controlled drug (see R v To [2007] NSWCCA 200; 172 A Crim R 121 where Hulme and Hall JJ reviewed a number of recent sentences where commercial quantities of MDMA were imported and where significantly longer sentences were imposed). In circumstances where the Crown on the appeal does not advance a submission that the individual sentences imposed on Reed were manifestly inadequate, or that the overall sentence was extremely lenient given his repeated and serious offending over an extended period, it is not for this Court, of its own volition, to make such a finding and to refuse to intervene for that reason." 179 Thus Shen provides another example of parity being applied when the applicant seeks to compare with the sentence of a person who has committed a different crime, but where the maximum penalty applicable to both of the crimes in question is the same.

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OM 180 OM v The Queen [2009] NSWCCA 267 was an appeal against sentence by four of a group of six teenage boys who had committed a series of sexual assaults, against the one teenage girl, on the one day. Five of the boys had committed their respective assaults in each other's company, at two separate locations. The complainant then travelled with two of the boys to a third location, where one of those boys had a conversation on his mobile phone and shortly afterwards OM (who had not been involved in the earlier events of that day) arrived and committed a sexual assault on the complainant. 181 The majority judgment of Fullerton and McCallum JJ allowed appeals by four of the boys (including OM) on the basis of disparity between the sentences imposed on them, and the sentences that were imposed upon the two other boys involved. Their Honours recognised that the ground of appeal invoking disparity in sentencing was one that applied only between co-offenders (at [31], [34]). They proceeded on what appears to be an unchallenged assumption that all the boys were co-offenders. Each boy had been charged with a contravention of the same provision of the criminal law, namely section 66C(2) Crimes Act 1900, which relates to aggravated sexual intercourse with a child under 14. The circumstance of aggravation in each case was that the offences were committed in company. 182 Because all the boys were charged with a contravention of the same provision of the criminal law, there was not the difficulty that was exhibited in Pham of seeing disparity between the sentence of the applicant and the sentence of a co-offender charged with a less serious offence. 183 It is well enough established that a case is not binding authority for something it assumes rather than decides: CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 at 11 [13]; Markisic v Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737 at 748 [56] and cases there cited. However, that experienced criminal judges proceed on a particular basis can provide some reason to believe that the assumption is justified, even though their decision is not binding authority that the assumption has been correctly made. Fairly clearly, the boys had not all committed the self-same crime, in the way that participants in a robbery all commit the same robbery - each had committed his own individual crime against the victim. They were co-offenders in the sense that, even though they were not charged with conspiracy, their actions were all part of the one criminal enterprise (though OM's connection with that enterprise was more tenuous than that of the others). 184 Basten JA, who concurred in the result, similarly said that all the boys were co-offenders (at [1], [3], [6]). At [8], Basten JA referred to the judgments of Hunt CJ at CL in Ellis. He noted that while Hunt CJ at CL had: "… referred to the principle as applicable to 'co-offenders', his Honour did not comment on whether the principle applied only to those who were put on trial together, to those who were charged with the same offence, or (more broadly) to those who were involved in a common criminal enterprise, whether or not they were charged with the same offence or tried together." 185 Basten JA, at [9]-[12], gave explicit consideration to who were "co-offenders" for the purpose of the parity principle: "It is clear that the question of disparity need not arise only where offenders are tried (or sentenced) together. Indeed, most cases involving complaints of disparity arise in circumstances where the offenders are sentenced by different judges or at different times. In Lowe , the co-offenders were jointly indicted for the one offence (an armed robbery). However, in Jones , although both offenders were charged with supply of the same cannabis, the offences were not technically the same, one offender having supplied the drug to the other. Nevertheless, the judgment of the Court, delivered by Brennan J, used the term 'co-offenders'. The distinction between the comparison with a co-offender and the comparison with other offences in which the applicant played no part is a matter of critical importance in determining the limits of the application of the principle of parity. In R v Armstrong [2001] NSWCCA 77, the language of disparity was used in relation to an applicant who was one of a number of 'runners' employed by an organisation distributing drugs in the Kings Cross area. The Court did not intervene to reduce the applicant's sentence, but not because it concluded they were not co-offenders. In Stanton v Regina [2008] NSWCCA 326, the applicant was sentenced on a number of counts involving the supply of prohibited drugs. The question of parity arose in relation to another person sentenced in respect of what appear to have been similar drug offences arising out of the same 'controlled operation' conducted by police over a period of one month with respect to a motorcycle gang. The Court did not seek to identify whether the applicant and the co-offender were knowingly concerned in the same particular offences. It thus appears that the disparity principle operates with respect to persons who may not have committed the same offence, but have been involved in a course of criminal activity through some kind of association over a limited period of time. It would require a departure from that approach (for which the Director did not contend) to avoid the application of the principle in the present case." 186 It is not, with respect, clear to me that the account that Basten JA gives in [9] of the facts of Jones is correct. While it is true that the male offender in Jones had physically delivered the cannabis to the applicant in that case, the judgments in both the Court of Criminal Appeal and the High Court are consistent with the "supply" that was the subject of the charge against the male offender being the supply that the applicant made to her retail customer, concerning which the applicant and the male offender shared the proceeds (see para [61] and [62] above). On that view of the facts, the offences that the applicant and her male co-offender committed were indeed the same offence. 187 R v Armstrong [2001] NSWCCA 77 was an appeal against sentence by a woman who had been a street seller of cocaine working for an organisation who engaged several such sellers. She alleged disparity with the sentence imposed upon another seller for the same organisation, not shown to have been known to her, who had received a much lighter sentence. The judgment of Barr J (with whom Studdert J agreed) proceeded on an assumption that the applicant and the other street seller were co-offenders. The ratio of the case, at [22], was that the sentence imposed on the other street vendor "was far less than a proper sentence" and "This Court is not bound to reduce a sentence by reference to another sentence passed upon a co-offender, if, in all the circumstances, it appears that that other sentence is unjustifiably low". 188 One of the authorities that Barr J relied upon for that proposition was Diamond (NSWCCA, 18 February 1993, unreported) where Hunt CJ at CL said: "The issue is whether the particular sense of grievance (or of injustice) is a legitimate one. There is, in my view, a stage at which the inadequacy of the sentence imposed upon the co-offender is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one."

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To similar effect are Rexhaj (NSWCCA, 29 February 1996, unreported) and R v Isamunadar [2002] NSWCCA 477; (2002) 136 A Crim R 206 at 217 [23]-[26], 220 [37]-[38]. 189 While Armstrong did not involve a decision that the two people whose sentences were being compared were co-offenders, it provides another example of a highly experienced criminal judge making the assumption that people related as the sellers were in Armstrong - participants in a common criminal enterprise, in that each is, unknown to the other, a seller for a common vendor - are co-offenders for the purpose of the parity principle. 190 Stanton v The Queen [2008] NSWCCA 326 was a sentence appeal where the applicant had been convicted of one count of supplying a prohibited drug, and three counts of knowingly taking part in the supply of a prohibited drug. Three further offences of knowingly taking part in the supply of a prohibited drug were included on a Form 1. The man referred to as the applicant's co-offender, called Keen, had pleaded guilty to two counts of ongoing supply of a prohibited drug, and three counts of supply of a prohibited drug. Concerning Keen, there were five matters of supplying a prohibited drug taken into account on a Form 1. The offence of ongoing supply of a prohibited drug has a maximum penalty of 20 years' imprisonment, by comparison with a maximum penalty of 15 years' imprisonment and/or a fine of $220,000 for the offence of supplying a prohibited drug. Both the applicant and the "co-offender" were involved in a drug distribution organisation that was connected with a motorcycle gang. The charges against the applicant related to supplies on 14 March 2007, 24 April 2007, and dates in between. The Form 1 items relating to the applicant also fell within that date range. The charges against Keen related to acts of supply occurring on 15 March 2007, 14 June 2007, and dates in between. Thus, the applicant's act of supply on 14 March 2007 was a supply that the "co-offender" was not shown to be involved in. 191 There were five separate acts of supply that the applicant was involved in, between 15 March 2007 and 4 April 2007, that were also the subject of the five charges of ongoing supply against Keen. Three of those acts of supply were ones that were taken into account in relation to the applicant on a Form 1, each for the applicant knowingly taking part in the supply. The other two of those five acts of supply were ones where the applicant was actually convicted of knowingly taking part in the supply. 192 There was another act of supply of a particular drug on 24 April 2007, in relation to which Keen was charged with supplying the drug, and the applicant was charged with knowingly taking part in the supply. All the other charges against Keen were ones that the applicant was not shown to have had any involvement in. A table setting out the precise relationship between the various acts of supply, and the charges against the applicant and Keen in relation to each, appears at para [20] of the judgment. 193 It is only in a very small number of the 40 paragraphs of the judgment of Beazley JA that Mr Keen is not referred to as a co-offender. It appears from a Crown submission recorded at [33] that the Crown proceeded on the basis that the two men were co-offenders. 194 Thus, Stanton is another case where it was assumed, rather than decided, that the two people involved were co-offenders. The result in Stanton was that the applicant's sentence was reduced. The fact that his "co-offender" had committed different crimes to the applicant was not seen as an obstacle to that result. 195 While the proposition that Basten JA states in para [12] in OM is consistent with the cases on which he bases it, it is not one compelled by them. However there are many other cases that are also consistent with it.

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Is This A type of Case to Which the Parity Principle Could Never Apply? 200 There is one case, namely Wurramarbra, that speaks as though as a matter of principle the parity principle is capable of applying only between people who have committed the same crime. The statement in Krakouer that I have set out at para [108] above might be read as suggesting that the principle can be applied only where the offenders in question are charged under the one Act, or (possibly) for the same "kind" of offence. 201 Gleeson CJ in Watson was not so emphatic - rather he said that when two offenders are charged with "significantly different crimes" considerations of parity are "difficult to apply", and he decided that parity was inapplicable in the case before him because the particular charges involved were "so different". Krakouer does not purport to give a test of when the parity principle does, and does not apply - rather, it gives a reason why the principle does not apply in that particular case. Krakouer might be explicable on the basis that it is a case of the same type as Pham and Woodgate, where the applicant sought to obtain the benefit of parity by comparison with the sentence of someone who had been charged with an offence less serious than his own, and no basis was provided on which the difference arising from the differing charges could be factored out of the difference between the sentences. Further, it is not clear what the judges intended in Wurramarba when they said that "different considerations apply" when "the person convicted of the more serious offence receives a sentence which is less than the person convicted of the less serious offence, all other aspects being approximately equal." It is in precisely that situation that other judges have regarded the parity principle as capable of application. There are numerous examples of the parity principle being applied to reduce the sentence of one of the participants in a common criminal enterprise even though they have not all committed the self-same crime: Sumner; Nguyen; Rend; Shen; OM; Melikian; AAH & AAG. There are also cases where the judge has proceeded on the basis that the parity principle could apply between people who had participated in a common criminal enterprise but not committed the same crime, though in the result the sentence was not actually reduced: Armstrong; Hudson. As well, one aspect of Kerr was that parity with the sentence of a participant in the same criminal enterprise but who had been charged with a different crime was a legitimate consideration. In Formosa Simpson J was not prepared to reject that aspect of Kerr, though she recognised that there would be practical difficulties in its application in that circumstance. 202 Even though there was no issue squarely raised in the cases mentioned in the previous paragraph except AAH & AAG, as there has been in this, of whether as a matter of principle the parity principle can apply between people who have not committed the self-same crime, it is not to be supposed that the large number of judges who proceeded in this way did so by oversight. As the facts of Sumner, Nguyen, Rend, Shen, OM and Melikian illustrate, unequal treatment that is so great as to bring about a justifiable sense of grievance can sometimes arise between participants in a common criminal enterprise who have committed different crimes. In my view there is no obstacle of the type the Crown submits to the parity principle being applied simply because a case is one in which the sentence by comparison with which the sentence under appeal is sought to be reduced was for a different crime. 203 There are significant limitations, however, on reducing a sentence on the basis of that of a co-offender who has committed a different crime. At least some of the limits on the use of the parity principle in such a case are:

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Application to Facts 204 There is no basis in the Agreed Facts for concluding that the Applicant knew of the existence of Huang or Siu. There is no basis in the Agreed Facts for concluding that the Applicant knew that Mr Chen had ever engaged another person to take money to the bank for remission to Hong Kong in parcels of less than $10,000. The period when the Applicant was taking money to the bank for Mr Chen did not coincide, or even overlap, with the periods when Siu and Huang were taking money to the bank for Mr Chen. The sums of money that the Applicant remitted to Hong Kong are different to the sums of money that each of Huang and Siu remitted to Hong Kong. Thus, the Applicant, Siu and Huang, did not commit the same crime. However, it is clear that the Applicant, Siu and Huang were all being used by Mr Chen as part of an enterprise involving the repeated commission of crimes of a similar character. That suffices, in my view, to make them participants in a common criminal enterprise. The Crown's submission that the parity principle cannot apply because they are not co-offenders in the relevant sense fails. 205 While the Applicant and Huang were not charged with contravention of the same provision of the criminal law, the offence with which Huang was charged is a more serious one than the offence with which the Applicant was charged. Thus the particular difficulties of applying the parity principle to effect a comparison with the sentence imposed on a co-offender charged with a lesser offence do not arise. 206 The Crown correctly points out that the parity principle was not specifically relied upon before the sentencing judge, by either the Crown or the Applicant. While the judgment in the Crown appeals concerning Huang and Siu were relied on in submissions, it was on the basis that they provided the closest comparative sentence cases available. However, the Crown does not submit that, because the principle was not relied on in the court below, it is not open to this Court to consider whether the parity principle should properly be applied. PART D - OTHER ASPECTS OF THE "PARITY" APPEAL

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Different Sentences Justified? 207 The Crown submits that if its first argument fails (as it does), there were differences between the circumstances of the Applicant, Huang and Siu that justify the sentence that the judge imposed on the Applicant. 208 Huang was sentenced for a different offence, that has a higher maximum penalty. He provided assistance held to be "truly exceptional" and "extremely valuable". While the Applicant offered assistance, that offer proved "fruitless". Huang would remain in protective custody for the duration of his sentence, which would be burdensome to him, while there was no suggestion that the Applicant would be placed into protective custody. 209 There were also significant differences, the Crown submitted, between the Applicant and Siu. Siu was much older, a disabled pensioner, and in poor health. It was accepted that Siu's time in custody would be much harder than for a healthy young male by reason of his medical conditions. By comparison, the Applicant was aged 37 when he started offending, 43 when sentenced, and had no adverse health condition. It was Siu's personal subjective circumstances, including his age and compromised state of health, that played a large part in the adoption of a 50% ratio between his non-parole period and his head sentence. 210 Apart from these matters, it is also submitted to be relevant - indeed highly relevant - that the sentences actually imposed on Huang and Siu were each the product of successful Crown appeals. In accordance with the usual practice in this State concerning Crown appeals, because permitting the Crown to appeal at all exposes a convicted person to double jeopardy of being punished, the sentences that were imposed following the successful appeal were at or towards the low end of the permissible range for a sentence on those particular people, bearing in mind both the objective and subjective circumstances of each: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 341 [62]; R v Holder [1983] 3 NSWLR 245 at 256, 269-70; R v Wall [2002] NSWCA 42; (2002) 71 NSWLR 692 at 707 [70] (e); R v Underwood [2005] VSCA 80 at [2]. (A different approach to sentencing on Crown appeals has now been adopted in Queensland: R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274 at [114] ff & esp [114]-[153] per de Jersey CJ, Keane, Muir and Chesterman JJA, a decision influenced by peculiarities of the relevant Queensland legislation.) 211 In applying the parity principle it is permissible to compare the sentence of an applicant with a sentence that has been imposed on a co-offender following a Crown appeal: R v Guzman [2000] NSWCCA 261 at [20]; R v Christie [2000] NSWCCA 354 at [15]; Sharpe v The Queen [2002] NSWCCA 96 at [21]; Bowtell v The Queen [2004] NSWCCA 17 at [30]-[31]; Em v The Queen [2006] NSWCCA 336 at [131]. However, that it is possible to compare an applicant's sentence and the sentence that a co-offender has received following a Crown appeal does not answer the question of how one goes about making that comparison. 212 In Christie at [19], Fitzgerald JA (with whom Newman and James JJ agreed) said: "An otherwise appropriate sentence imposed on an offender is reduced if that is necessary to ensure that he or she is not treated unjustly compared to a co-offender, even a co-offender to whom leniency has been extended , unless the co-offender's sentence is unsuitable as a basis for comparison because of manifest error." (emphasis added) 213 Fitzgerald JA is clearly referring to a person sentenced on a Crown appeal as being the relevant "co-offender to whom leniency has been extended", because of the leniency involved in sentencing at the bottom end of the range in Crown appeals. However, this statement says nothing about how one decides whether an applicant has been "treated unjustly compared to a co-offender". In the result, Fitzgerald JA was able to find, at [20], sufficient differences between the applicant's position and that of his co-offender (not including any difference arising from the fact that the co-offender had been sentenced on a Crown appeal) to mean that there was not a marked disparity between their sentences. 214 As I read Christie, it is not authority for the proposition that in comparing the sentence of an applicant with that of a co-offender, one must leave out of account that the co-offender's sentence was imposed on a Crown appeal in deciding whether there is a marked discrepancy between them, or whether the applicant has been treated unjustly by comparison with the co-offender. 215 Other authority has recognised that, in effecting the comparison between the two sentences, it can be a relevant difference between the situations of the applicant and the co-offender that the sentence on the co-offender was the result of a Crown appeal: R v Salameh (NSWCCA, 9 June 1994, unreported) at 3; El Hassan v The Queen [2003] NSWCCA 252 at [13]; Bowtell v The Queen [2004] NSWCCA 17 at [35]; Kauwenberghs v The Queen [2008] NSWCCA 98; (2008) 186 A Crim R 197 at [109]; Osman v The Queen [2008] NSWCCA 157 at [38]. 216 In my view, the result arrived at in these cases is justifiable in principle. It is a subjective circumstance of the co-offender that he or she has, contrary to the usual principles of the criminal law, twice been put in jeopardy of being punished at the instance of the Crown. That subjective circumstance is one that has resulted in the co-offender receiving a lesser sentence than he or she otherwise might have received. That subjective factor is one not applicable to the applicant (save in the situation which could in theory arise where the respondent to a Crown appeal against sentence argues that the court should take into account parity with the sentence of a co-offender concerning whom a Crown appeal has succeeded). Just as it is possible, in deciding whether there is a disparity between the sentence of an applicant and a co-offender, to take into account that the co-offender has received a lesser sentence than he or she otherwise might have received because of a subjective factor like age or ill health, so it is possible to take into account that the co-offender has received a lesser sentence than he or she might otherwise have received because that sentence was imposed on a Crown appeal. 217 When re-sentencing Huang and Siu, this Court was quite explicit about the extent of the leniency that it granted to them by virtue of the sentencing being done on Crown appeal. For Huang, a starting point of the 11 years was adopted, notwithstanding that, had it not been a Crown appeal, the appropriate starting point was between 12 and 14 years (para [42] above). For Siu, the starting point adopted was 8 years, notwithstanding that, had it not been a Crown appeal, a more appropriate starting point would have been between 9 and 11 years (para [45] above). The extent of the leniency arising from them having been sentenced on a Crown appeal must be taken into account in the comparison between their sentences and that of the Applicant. 218 As noted earlier, this Court's reasons in the Crown appeal concerning Huang and Siu had been delivered before the Applicant was sentenced. Submissions were made to her Honour about how the objective and subjective circumstances of the Applicant compared with those of Huang and Siu. Even though those submissions were not made to her Honour for the purpose of an application of the parity principle, they are entitled to some weight unless shown in some respects to be mistaken. 219 Her Honour specifically recognised "the serious nature of this offence, and its maximum penalty." She held that: "… although I accept … that this accused was a relatively minor player compared to Mr Chen and others in the whole scheme of things, but money laundering warrants severe punishment, not the least in order to reflect general deterrence to a very significant degree." 220 The judge referred explicitly to similarities and differences between the respective cases of the Applicant and Mr Siu, including the difference in the amount of money involved, and the number of transactions involved. She concluded: "… I am of the view that taking into account the objective seriousness of the offence and the subjective circumstances that I have referred to, this is a case that is in the mid to lower range of seriousness. I would assess somewhat less serious than the objective and subjective circumstances in the case of Siu but not significantly so." 221 The Crown also submits that, even if there were a disparity between the sentences imposed on the Applicant on the one hand and Huang and Siu on the other, Lowe requires there to be a "marked disparity" (per Gibbs CJ at 610 (with whom Wilson J agreed), per Mason J at 611) or "[t]he difference … must be manifestly excessive and call for the intervention of an appellate court in the interests of justice" (per Dawson J at 624 (with whom Wilson J agreed)). 222 In my view it can distort the principle that is being applied if one tries to break it up into elements, as this submission presupposes one should. What Dawson and Gaudron JJ in Postiglione required, before an appellate court intervenes, is "a marked disparity which gives rise to a justifiable sense of grievance". There is a sense in which every difference between sentences, even for the same crime, is a disparity, because equal treatment has not been meted out. What the composite phrase conveys is that what matters is not only the fact of difference but also its extent and whether the difference can be explained by reference to the principles on which the criminal trial process including criminal sentencing operates. The elements of the composite phrase are coloured by each other, and if the elements are considered separately there is a risk that some of that colour will be lost. 223 I am not persuaded that there is the marked discrepancy which gives rise to a justifiable sense of grievance in the present case. The notional head sentence of the Applicant, of seven years, is well short of the 12 to 14 years that would have been appropriate for Huang if he were not being re-sentenced on a Crown appeal. That difference is not out of keeping with the greater seriousness of Huang's criminality, as shown by the different offence with which Huang was charged, the longer time over which his activities occurred, and the larger sum of money involved. The Applicant's offending had occurred over a long enough period not to be regarded as an isolated offence. 224 Nor is there the relevant sort of marked discrepancy between the Applicant's sentence and that of Siu. There were aspects of the objective circumstances that made Siu's criminality greater (the greater number and value of transactions, and his understanding that the money had an illegal source), but his subjective circumstances were more favourable to a lessening of what otherwise might be an appropriate sentence than were the subjective circumstances of the Applicant. The appropriate head sentence for Siu, absent a Crown appeal, of between 9 and 11 years, is in keeping with the undiscounted sentence of the Applicant. PART E - THE NON-PAROLE PERIOD 225 The judge both gave her reasons, and sentenced the Applicant, on 19 September 2008. 226 When the judge had reached the stage in her remarks on sentence of having decided on a starting point for a head sentence of 7 years, and discounts totalling 50%, leading to a head sentence of 3½ years, her reasons continued: "I note that the accused has spent seventy-eight days in gaol and I will attempt to take that into account and I will round it off and I will say now that I will round that down at two and a half months. Therefore when fixing a non-parole period, again I find no special circumstances. … A sixty per cent non-parole period is in my view appropriate. If counsel can just give me a little assistance in relation to the time he has already served. Different courts have different practices. Some adopt the fairly artificial but much easer to calculate approach of backdating a sentence to a time before today. [CROWN]: They are. I think - this is almost a pragmatic approach, your Honour - but for ease and working out the reduction, it might be simpler to deduct two and a half months from the three and a half year head sentence. HER HONOUR: And have the sentence start today. [CROWN]: Yes. HER HONOUR: Mr Wilkinson, do you agree-- WILKINSON: I don't wish to be heard. HER HONOUR: You don't wish to be heard? WILKINSON: No." 227 When actually imposing the sentence on the Applicant, the judge said: "The term of the imprisonment that I propose to sentence you is based on a three and a half year head sentence but because you have spent in total around about two and a half months in gaol already before you were granted bail, I propose to sentence you to a period of imprisonment of thirty-nine months to commence today with a non-parole period of twenty-six months or two years and two months to commence today. That means that you will be eligible for release on parole on 18 November 2010. And you will then be on parole for an additional thirteen months which will expire on 18 December 2011. Counsel, as I am doing this on the run, I am happy for you to look at those dates and let me know if I have made an arithmetical error, because that sometimes happens and I'd rather know now before everybody goes away. [CROWN]: We think that's correct, your Honour. The head sentence is 39 months and will expire on 18 2011 [sic]. HER HONOUR: The non-parole period expires on 18 November 2010. And I have made fairly strictly a two-thirds, one-third because that turned out to be, in my view, the appropriate way to deal with parole. But luckily a number that was divisible by three, and that was just by chance. Mr Wilkinson, are you happy with those dates before-- WILKINSON: The dates are correct, your Honour." 228 There is an unexplained contradiction between the judge's first statement that a 60% non-parole period was in her view appropriate, and her ultimate adoption of a non-parole period based on two-thirds of the head sentence. If the judge had changed her mind between the time she gave the 60% figure and the time she gave the two-thirds figure, one would expect her to say that she had changed her mind, and why. 229 Further, in actually calculating the non-parole period the judge has used an incorrect methodology, by reducing the head sentence to take account of time already spent in gaol, and applying to the period still to run on the head sentence the percentage that the non-parole period is to bear to the head sentence. 230 Also, on the facts as the judge understood them, by giving him credit for 2½ months already spent in gaol (on the basis of her understanding that it was 78 days) she has failed to take into account 3 days that he spent in gaol (on the basis of 30 day months). 231 The way I intend to approach the matter is by first working out the extent to which, on various assumptions, an error of calculation in working through a stated principle for arriving at a non-parole period would make the non-parole period actually imposed excessive. 232 I will start by considering what the situation would be if 60% was taken as being the appropriate proportion for the non-parole period to bear to the head sentence. A 3½-year sentence is 42 months. If the judge had intended to impose a 60% non-parole period, that would be 60% of 42 months, namely 25.2 months. If the judge was to impose a sentence and non-parole period dating from the date of sentence, it would be necessary to take the whole of the amount spent in gaol off the amount of the calculated total non-parole period, to ascertain the distance in time from the date of sentencing at which the non-parole period would expire. If (as the judge assumed) the Applicant had spent 2½ months in gaol, that 2.5 months should be deducted from the 25.2 months of the non-parole period, giving 22.7 months from the date of sentence before the non-parole period expired. As the sentence actually imposed required 26 months to be served before the non-parole period expired, that would be an excess of 3.3 months. 233 If this Court were to re-sentence concerning the non-parole period, it would be necessary for it to do so on the basis of the facts now known to it, which include that he had in fact spent 71 days in gaol before being sentenced. Seventy-one days is 2.37 months, ie .13 months less than the judge had assumed. Thus, on this set of assumptions, the non-parole period would be excessive by 3.17 months. 234 If the judge had intended, as she ultimately said, to impose a non-parole period of two-thirds of the head sentence, that would be a non-parole period (two-thirds of 42 months) of 28 months. If, as the judge assumed, he had spent 2.5 months in gaol, that would require him to spend an extra 25.5 months in gaol after imposition of the sentence before the non-parole period expired. On that basis, the 26 months that the judge imposed was .5 months excessive. 235 If this Court were to re-sentence concerning the non-parole period, and take into account that he had in fact spent 71 days in gaol, or 2.37 months, the non-parole period actually imposed by the judge would be excessive by .37 months. 236 It is impossible for me to tell whether her Honour intended the non-parole period to be 60%, or two-thirds, of the head sentence. In that circumstance it seems to me that the appeal should be approached on the assumption that the error in calculation that her Honour has made is the largest of the various possible figures. 237 Notwithstanding that the provision of the law that the Applicant contravened was a provision of a federal statute, his appeal is brought under the Criminal Appeal Act 1912 (NSW). Section 6(3) of that Act provides: "On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." 238 Even though error on the part of the trial judge is a precondition of this Court altering a sentence on appeal, a finding that the judge was in error in some respect relevant to the imposition of the sentence is not sufficient to result in this Court imposing a different sentence: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704; R v Johnson [2005] NSWCCA 186. This Court must find that some other sentence was appropriate before it alters the sentence in a way that corrects the error. 239 I will start my own consideration of whether the non-parole period is an inappropriate one by calculating the percentage it bears, if the arithmetic is correctly carried out, to the head sentence. 240 The head sentence imposed was 39 months from the date of sentencing. If one adds the 71 days actually spent in gaol before trial, or 2.37 months, that gives a total head sentence of 41.37 months. 241 The actual non-parole period imposed is 26 months from the date of trial, or (adding on the 71 days already spent in gaol) 28.37 months. Thus, the non-parole period actually imposed is 68.58% of the head sentence actually imposed. This is only very marginally outside the usual range (60-66.67%) within which non-parole periods are imposed. In considering the significance of the marginal extent to which the usual range is exceeded, I bear in mind that this court usually does not engage in minor tinkering with sentences. Quite apart from that, in my view the period of the non-parole period is not excessive. Any consideration of the significance of the 1.91% by which the ratio of non-parole period to head sentence is outside the usual range must be carried out bearing in mind the order of accuracy of other figures that went into the calculation of the sentence. The figures for the seven years prima facie head sentence, and for discounts that the judge adopted are very broad brush ones. Further, insofar as a discount for assistance was given it was generous. Further, to the extent to which the judge, in fixing a head sentence, took into account the sentences that had been imposed on Huang and Siu, she did so by reference to the sentences that this Court actually ordered them to serve, not (as explained above is more correct in principle) after taking into account the subjective circumstance that each of Huang and Siu had been under, that they had been sentenced on a Crown appeal. 242 In all these circumstances, even bearing in mind the maximum extent that arithmetical error on the part of the judge in fixing the non-parole period might have caused the judge to extend the non-parole period by, I am not persuaded that in all the circumstances a different sentence should have been passed, so far as the non-parole period goes.

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Order 243 In my view, leave to appeal should be granted, and the appeal dismissed. 244 HOWIE J: I have had the benefit of reading in draft the judgment of Campbell JA in this matter. I agree with the orders his Honour proposes and generally with what his Honour has written. In light of decisions of this Court where the parity principle has been applied in Commonwealth matters, even though the applicants were not strictly co-offenders, I find it of concern that the Crown on behalf of the Commonwealth would make a submission that parity did not apply to the facts of this case, at least without referring the Court to decisions that are clearly contrary to that submission. 245 The principle of parity should not be confined to a consideration of the sentences imposed upon co-offenders in the strict sense, that is persons involved in and charged with the very same crime. There is nothing in the decisions of the High Court that so confine it. Where the courts have stated that the principle of parity applies only to co-offenders, it has usually been in situations where the applicant has sought to use the principle for an illegitimate purpose by seeking to compare the sentence imposed upon the applicant with a sentence imposed upon another offender who was not engaged in the offence committed by the applicant. 246 The principle, whether it is called parity or proportionality or relativity between sentences, should be applied to bring about a just result in the sentences imposed upon persons who have been engaged in the same criminal enterprise regardless of the charges that have actually been laid against the offenders. However, I agree with Campbell JA that the principle is subject to the limits stated in [203] of his judgment. 247 In particular I agree, for the reasons given by his Honour, that R v Kerr [2003] NSWCCA 234 should no longer be followed insofar as the proposition for which it is generally cited. It is not the business of the courts to try to ameliorate the effects of prosecutorial decisions in charging, or not charging, persons involved in a criminal enterprise. The facts of Kerr do not, in my respectful opinion, justify the decision taken and this Court has not since Kerr was decided found or been able to envisage a situation in which a court would be justified in taking into account the effects of prosecutorial discretion when exercising the sentencing discretion. I have been concerned at the number of times that Kerr has been relied upon in this Court, at least when I have been a member of it, without any reference being made to the decisions that have raised doubts about its correctness. 248 If it were necessary to do so, I would indicate my agreement with the judgment of Hunt CJ at CL in Ellis (1993) 68 A Crim R 449, but it seems to me that later decisions of this Court have consistently followed his Honour's approach rather than that of Kirby P. 249 I also confirm the obita view I expressed in Osman v R [2008] NSWCCA 157, with which McClelland CJ at CL agreed, that an applicant should not be able to seek parity with a sentence imposed upon a co-offender after a successful Crown appeal simply on the basis that the sentence imposed upon the co-offender was reduced because of double jeopardy or for some other discretionary reason that does not apply to the applicant. 250 In any event I would not reduce the sentence imposed upon the applicant in the present case. I do not understand how he could receive a discount of 50 per cent, that is a discount at the top of the range for a plea of guilty and assistance, when the assistance was "not going to come to fruition". In any event, it has been held that a discount should not exceed 40 per cent where there is no evidence that the offender is going to serve the sentence in a more difficult or harsher environment as a result of the assistance given or offered: R v Sukkar [2006] NSWCCA 92 at [5]. There was no evidence called as to the nature of the applicant's confinement. The discount in this case should have been about 35 per cent. 251 I agree with the view expressed by Latham J in Pham v R [2009] NSWCCA 25 that a ground based upon disparity should be dealt with last because a complaint of disparity accepts that the sentence is otherwise appropriate. If there is some other ground asserting a particular error in the exercise of discretion or a ground contending that the sentence is manifestly excessive, the Court will address the issue of parity if it is necessary to resentence the applicant as a result of success on some other ground of appeal; see Tatana v R [2006] NSWCCA 398 applied in Xue v R [2009] NSWCCA 227. 252 ROTHMAN J: I have read in draft the reasons for judgment of both Campbell JA and Howie J. I agree with the orders that Campbell JA proposes and I agree generally with the reasons for judgment of each of Campbell JA and Howie J. 253 Generally, courts in this country, do not decide more than is necessary to determine the scenario that is before them. Plainly, in these proceedings, for the reasons given by their Honours, the orders should be as proposed. Whether or not the parity principle applied to the appellant, there could be no justifiable sense of grievance. Because of the general discussion on parity of both Campbell JA and Howie J, I seek to make additional comments on the application of the principle.

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Equal Justice and Parity 254 Because Campbell JA has summarised a number of previous judgments of this Court and of the High Court of Australia, it is unnecessary to recite the details of those judgments. The principle of parity in sentencing derives, as the High Court has made clear, from an application of the fundamental principle of equal justice: Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, per Dawson and Gaudron JJ at 301-302, citing with approval Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610-611, per Mason J, 617-618, per Brennan J, 610, per Gibbs CJ, at 613, per Mason J and at 623, per Dawson J. 255 Equal justice requires that like should be treated alike and that the difference in treatment of different persons should be rational: see Postiglione, supra. Equal justice is a principle that is fundamental to the exercise of judicial power and may also be fundamental to, and a limitation on, the exercise of legislative power in a constitutional democracy in which the implementation of the rule of law is required. In the US, it is guaranteed by a combination of the Fifth Amendment and Fourteenth Amendment: see, inter alia, Slaughter- House Cases, 83 U.S. 36 (1873); United States v Virginia, 518 U.S. 515 (1996), and in Canada by s 15 of the Charter of Rights: see, inter alia, Andrews v Law Society of British Columbia [1989] 1 SCR 143. 256 In Andrews, supra, McIntyre J recited the principle by reference to the Aristotelian principle of formal equality, namely, that "things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unalikeness": Ethica Nichomacea, trans. W. Ross, Book V3, at p. 1131a-6 (1925). 257 While the High Court of Australia has considered the doctrine of equal justice in relation to parity in sentencing and referred to it as a fundamental of the exercise of judicial power, its more general application as a limitation on legislative power has not been the subject of discussion: but see, in relation to the race power, s 51(xxvi) of the Constitution, Kartinyeri v Commonwealth [1998] HCA 22; 195 CLR 337 (the Hindmarsh Bridge Case) at 365-366, [40]-[42], per Gaudron J; and see also Native Title Act Case (1995) 183 CLR 373 at 461. 258 Whatever be the situation as to limits on the legislature in the promulgation of legislation that irrationally differentiates between classes of persons, it cannot be doubted that the exercise of judicial power must be devoid of capriciousness and arbitrariness. It is to the lack of capriciousness and arbitrariness (and perceived capriciousness or arbitrariness) that the principle of equal justice is directed. 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 in the same way that Howie J has used it 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. 261 The difficulty with an attempt to extend the principle of parity to persons who are not strictly co-offenders is that the attempt itself is likely to cause significant difficulties. In other areas of the law, attempts to compare similar, but not identical, attributes have failed, because the attempt encourages artificial and inappropriate comparisons. 262 On the other hand, the principle of equal justice is such a fundamental and important aspect of the exercise of judicial power, that the courts should not prohibit reference to justifiable sense of grievance, simply on the basis that offenders are not strictly co-offenders, in the sense used above. There are examples where the parity principle has been utilised in that way: see OM v R [2009] NSWCCA 267. 263 Ultimately, the process of sentencing involves an exercise in intuitive synthesis, often seeking to reconcile disparate and conflicting goals. Any tool, which aids the assessment of an appropriate, fair and just sentence, ought not be denied to a sentencing judge. But, a slavish implementation of a sentence imposed on another, who is not a co-offender, simply because the facts are partly or arguably comparable, is not a proper exercise of judicial discretion, nor the independent assessment of an appropriate sentence within the range that is available: R v F (2002) 132 A Crim R 308 at 315, per Simpson J, with whom Meagher JA and Howie J agreed (with a presently irrelevant qualification), cited with approval in R v Araya [2005] NSWCCA 283, at [68], per Johnson J, with whom Simpson J and I agreed. 264 This issue was the subject of discussion by the Court, as presently constituted, in HAN, Zhi Qiang v R [2009] NSWCCA 300, in which I said (with whom Campbell JA and Howie J agreed): "[38] The principles of equal justice, in relation to contraventions of the same law, but different conduct and offences, is implemented through the application of the principle of consistency in sentencing, which seeks to ensure that the sentence that is imposed is within the range of sentences available for the particular offence and the particular offender. As was said by Simpson J in R v F , supra, at 315: 'Consistency in sentencing may be achieved by the slavish adoption, by a subsequent court, of a sentence selected by an earlier court when the facts are comparable. However, that would be consistency purchased at the cost of the sacrifice of the proper exercise of judicial discretion. Within the bounds of the appropriate range of sentences, each sentencing judge (either at first instance or following appeal) must bring to bear his or her own independent assessment of the particular case. ... Consistency is not derived from a single case. Consistency in sentencing will be achieved from a range of cases involving similar features, and also variables. It depends upon the accumulated wisdom and experience of sentencing judges. In my opinion a single case is inadequate to enable a principled consistent approach. ... Moreover, while consistency in sentencing is, no doubt, an important goal, equally important for the administration of justice is the public perception that sentences imposed by criminal courts are appropriate to the nature and seriousness of the crime committed.' Meagher JA (at 309-310) and Howie J (at 316-317) agreed with Simpson J, but preferred to use the words 'more important' rather than 'equally important', when referring to the public perception that sentences imposed must be appropriate to the nature and seriousness of the crime committed. With great respect, I adopt the comment that the appropriateness of the sentence, given the seriousness and nature of the crime committed, is a 'more important', rather than 'equally important', principle." 265 In some circumstances, the principle of consistency and the principle involved in the application of parity in sentencing may coalesce. Fairness, including the principles of equal justice, may dictate that, in some circumstances, the range of sentences available under the principles of consistency, may be so narrow as to be identical with the sentence imposed on an offender in a related crime. 266 Notwithstanding the foregoing, courts should resist attempts to find comparisons or to institute some form of comparative sentencing justice in circumstances that are not identical. Such an attempt will create artificial comparability and probably lead to error. Ultimately, the application of the discretion in sentencing is the combination and consideration of many factors and each case will depend, very much, on its own facts and circumstances.

[71]

Parity of Charging 267 Further to the above, I would also reiterate my agreement with the view expressed by Campbell JA and Howie J as to the appropriate treatment of the judgment of this Court in R v Kerr [2003] NSWCCA 234. It is fundamental to the system of justice operating in this State that it is for the prosecuting authority, alone, to exercise the discretion as to the charge to be preferred; it is for the accused, alone, to determine the plea to be entered; and it is for the sentencing judge, alone, to impose a proper sentence in all of the circumstances for the offence proved. It is no part of the function of a sentencing judge to seek to alter the effect of the exercise of the discretion of the prosecuting authority as to the charge to be preferred. 268 Otherwise, I agree fully with all of the comments made in the reasons for judgment of Howie J, but reiterate that the discount (see [250], infra) refers to a combined discount for assistance and the plea of guilty and refers, where the offender will not suffer more onerous conditions of imprisonment for a substantial portion of the term of imprisonment, to a range up to 40%, unless one can show exceptional circumstances; and, in circumstances where there will be more onerous conditions of imprisonment, up to 50%, unless very exceptional circumstances are disclosed: see R v Joseph Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 at [7], [8], [52], [53]; and FS v R [2009] NSWCCA 301 at [16], [17], [18], [19], [20] and [21]. 269 Particularly, I would confirm the view I expressed in FS v R, supra, with which Campbell JA and Howie J agreed, to the following effect: "[21] There are two quite distinct circumstances that arise. The first is a circumstance where the offender will spend the sentence, or a substantial part of the sentence, in more onerous conditions than the general prison population. The second circumstance is where the offender will not suffer more onerous conditions of imprisonment for a substantial portion of the term of imprisonment. In the latter case, unless one can show exceptional circumstances, the reduction for the plea of guilty and assistance should be no more than 40%. In the earlier case (i.e. where there will be more onerous conditions of imprisonment) the 40% figure is inapplicable. In the latter situation the reduction for the plea of guilty and assistance is no more than 50%, unless very exceptional circumstances are disclosed. Onerous conditions of imprisonment are not exceptional circumstances. They are often a corollary of the assistance granted." 270 With these additional comments, I agree with the reasons for judgment of Howie J (including the general agreement with Campbell JA) and I agree with the orders that his Honour Justice Campbell proposes.

JIMMY v REGINA

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