Sentencing must remain an exercise for intuitive synthesis, in which any relevant guideline judgment and sentencing patterns are recognised as important parts of the material available, to be considered alongside any other relevant sentencing principles, the objective and subjective considerations of the instant case, and most significantly, the maximum sentence prescribed for the offence, since it is that which indicates the legislative intentions as to its seriousness."
95 The Court in Mas Rivadavia did not find error in Nield DCJ's remarks on sentence solely by reference to his Honour's failure to mention Wong or the repeal of s.16G. However, the Court concluded that his Honour had fallen into error in sentencing Mr Mas Rivadavia, Mr El-Akkaoui and Mr Aksu in the following respect at 16-17 (paragraph 87):
"By reference to the pre existing sentencing pattern, and the range suggested in R v Wong for cases which were subject to the s 16G discount, it does appear to me that the sentences were lenient. Even allowing for the favourable subjective circumstances of these three offenders, insufficient weight seems to have been given to the punitive, retributive, and deterrent elements that should have been reflected, having regard to the objective criminality of these offenders. This was a well planned operation, that had been assessed as being capable of exploiting potential loopholes in the FedEx system. The case was one calling, in particular, for a very considerable deterrent element for the well recognised reasons analysed in the decisions such as R v Wong and Ng (1988) 39 A Crim R 1; and R v Saxon (1996) 86 A Crim R 353 as well as for a significant degree of punishment."
96 Prima facie, the successful Crown appeals in Mas Rivadavia, and the increase in sentence of Mr Mas Rivadavia and Mr El-Akkaoui, raises a question concerning the adequacy of sentences imposed by Nield DCJ on co-offenders in the heroin conspiracy.
97 In supplementary written submissions filed by leave of the Court following the hearing, Mr Boulten SC referred to sentences imposed upon Mr Andres' co-offenders in the ecstasy conspiracy. He did so as part of a submission that the sentence imposed upon Mr Kardoulias was not manifestly inadequate. On 18 March 2005, Dodd DCJ sentenced Rafael Cesan and Mr Mas Rivadavia in relation to their complicity in the ecstasy conspiracy. Both of these offenders had pleaded not guilty to that charge which involved a commercial quantity of ecstasy. They were found guilty by a jury on 28 June 2004. Dodd DCJ sentenced Mr Cesan to 13 years and six months' imprisonment with a non-parole period of nine years. His Honour sentenced Mr Mas Rivadavia to a term of imprisonment of 11 years to date from 8 April 2006 with a new non-parole period of 10 years to commence on 8 April 2002. Neither the Crown nor the convicted persons have appealed to this Court with respect to the sentences imposed by Dodd DCJ.
98 Accordingly, Mr Boulten SC notes that Mr Mas Rivadavia's total effective sentence with respect to both the heroin conspiracy and the ecstasy comprised imprisonment for 15 years with an effective non-parole period of 10 years. Dodd DCJ accepted a Crown submission that Mr Cesan played a role in the ecstasy conspiracy that was "more significant than that of Mas Rivadavia and was equal to the role played by Andres" (remarks on sentence, 18 March 2005, page 4). Dodd DCJ found that Mr Mas Rivadavia was "of less culpability than either Cesan or Andres but that [his] role nevertheless remained a significant one".
99 Mr Boulten SC emphasises that the maximum penalty that applied to the ecstasy conspiracy was life imprisonment whilst the maximum penalty for the heroin conspiracy (to which Mr Kardoulias was a party) was imprisonment for 25 years.
100 Mr Boulten SC submits that Mr Kardoulias' sentence bears a remarkable similarity to Mr Cesan's sentence. It is contended that Mr Kardoulias played a role similar to, but not more culpable than, that played by Mr Cesan. The offence for which Mr Kardoulias fell to be sentenced related only to a trafficable quantity of heroin, whereas Mr Cesan's offence related to a commercial quantity of ecstasy. Yet, Mr Kardoulias' sentence is only 18 months less than the total effective sentence of 15 years imposed on Mr Mas Rivadavia in relation to his complicity in the two separate conspiracies.
101 In these circumstances, Mr Boulten SC submits that it is not open to the Crown to contend that the sentence of 13 years and six months imposed upon Mr Kardoulias was manifestly inadequate.
102 In response to these submissions, the Crown notes that the remarks on sentence of Dodd DCJ obviously do not reflect the entirety of the evidence which was adduced by the Crown at trial. His Honour found that Mr Cesan had played a substantial role in the ecstasy conspiracy. Importantly however, such role had been carried out in association with, and with the assistance of, Mr Andres. Dodd DCJ drew a clear distinction between the roles of Mr Cesan and Mr Andres on the one hand, and Mr Mas Rivadavia on the other.
103 More fundamentally, however, the Crown submitted that the sentences imposed by Dodd DCJ upon other persons, arising out of a quite separate and distinct conspiracy involving a different narcotic, are of a limited relevance in determining Mr Kardoulias' appeal. The Crown submits, in any event, that the roles played by Mr Kardoulias in one conspiracy and Mr Cesan in a different conspiracy were not comparable. The evidence in the present case established, the Crown submits, that (unlike Mr Cesan), Mr Kardoulias carried out his particular role in the heroin conspiracy essentially on his own. To the extent that he was assisted by others in performing that role, such assistance took the form of those others doing no more than acting in accordance with the various directions that Mr Kardoulias had given to them. Moreover, there was no evidence that Mr Cesan took the elaborate steps which were taken by Mr Kardoulias to deliberately distance himself from co-conspirators in order to avoid detection. The Crown submitted that it was also significant that Mr Cesan's activities extended over a period of some two months, as opposed to eight months in the case of Mr Kardoulias and the heroin conspiracy.
104 The Crown submits that it is apparent that it was factors such as these which led Nield DCJ to conclude that Mr Kardoulias was "a principal, if not the principal" in the heroin conspiracy. Whilst Dodd DCJ found that the role of Mr Cesan in the ecstasy conspiracy was "significant", his Honour certainly did not make any finding that he played a role approaching that of a "principal" in the sense that such term was used in sentencing Mr Kardoulias. The Crown submits that such matters served to demonstrate that the culpability of Mr Kardoulias' conduct far exceeded that of Mr Cesan. In these circumstances, the two roles are clearly distinguishable. The Crown submits that the sentence imposed upon Mr Cesan does not lead to a conclusion that the Crown appeal involving Mr Kardoulias should be dismissed.
105 Mr Boulten SC relied upon Postiglione v The Queen [1995-1996] 189 CLR 295 at 301 in support of the proposition that equal justice requires that like should be treated alike. If there are relevant differences, due allowance should be made for them.
106 It is open to Mr Boulten SC to rely upon the principle of parity with respect to the sentencing of Mr Kardoulias and Mr Andres for the heroin conspiracy in which they were co-offenders. Of course, the parity principle applies to the sentences of co-offenders: Lowe v The Queen (1984) 154 CLR 606; Jones v The Queen (1993) 67 ALJR 376. However, 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: R v Morgan (1993) 70 A Crim R 368 at 371; R v F (2002) 132 A Crim R 308 at 315; R v George (2004) 149 A Crim R 38 at 47; R v Araya [2005] NSWCCA 283 at paragraphs 67ff. I do not consider that it is open to Mr Kardoulias to rely upon the sentences imposed upon Mr Cesan and Mr Mas Rivadavia for the ecstasy conspiracy in support of an argument concerning his own sentence for the heroin conspiracy.
107 In my opinion, the submissions which Mr Boulten SC advances by reference to sentences imposed upon Mr Cesan and Mr Mas Rivadavia for the ecstasy conspiracy do not assist either Mr Kardoulias or the Crown with respect to the appeals presently before this Court.
108 In Mas Rivadavia, the Court did not find a specific error on the part of Nield DCJ resulting from his Honour's failure to refer to Wong and to the repeal of s.16G. Rather, the Court approached the matter upon the basis that, while patent error was not shown, the sentences imposed upon Mr Mas Rivadavia and Mr El-Akkaoui were manifestly lenient and lay outside the proper range for offences of the objective criminality that was involved: Mas Rivadavia at 19 (paragraph 101).
109 In my view, a similar approach is appropriate with respect to the Crown appeal concerning Mr Kardoulias arising from the judgment of Nield DCJ on 11 February 2004, being the same judgment as was considered by this Court in Mas Rivadavia. I do not consider that patent error is demonstrated in his Honour's failure to refer to Wong and the repeal of s.16G. Rather, the question is whether the sentence imposed upon Mr Kardoulias was manifestly inadequate and was outside the proper range for offences of the objective criminality that was involved.
110 I am not persuaded that the sentence imposed upon Mr Kardoulias lay outside the proper range of sentence for the offence and the offender. The sentence was significantly greater than those imposed upon Mr Mas Rivadavia and Mr El-Akkaoui even after they had been resentenced by the Court of Criminal Appeal. The differential between the sentences makes due allowance for the different levels of criminality and other points of distinction between the cases. I propose that the Crown appeal against sentence concerning Mr Kardoulias ought be dismissed.