KAUWENBERGHS, Tim Leon Mon v R

CASES CITED : Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69 Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300

PARTIES: Tim Leon Mon Kauwenberghs (App) The Crown (Cth)

COUNSEL: Applicant in person MA Wigney SC (Resp)

SOLICITORS: Applicant in person Commonwealth Director of Public Prosecutions (Resp)

• 1 - IN THE COURT OF CRIMINAL APPEAL CCA 2006/4850

BEAZLEY JA HALL J FULLERTON J

19 AUGUST 2009 TIM LEON MON KAUWENBERGHS v R JUDGMENT 1 THE COURT: On 14 July 2008 this Court granted the applicant leave to appeal against sentence imposed in the District Court on 5 May 2006 following pleas of guilty to an indictment containing five counts. Two counts were laid contrary to s 233B(1)(ca) of the Customs Act 1901 (Cth), each of which concerned the applicant's possession of commercial quantities of ecstasy, and three counts laid contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 each of which concerned the applicant's supply of commercial quantities of ecstasy ([2008] NSWCCA 98). 2 The appeal was allowed and the applicant was re-sentenced. The orders of the Court were entered in the Registry on 29 July 2008. 3 This is an application to vary those orders as provided for in rule 50C(2) of the Criminal Appeal Rules. The applicant represented himself at the hearing of the appeal and on the present application. 4 Rule 50C provides as follows: 50C Power to set aside or vary order (1) The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order. (2) If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter, and (if appropriate) set aside or vary the order under subrule (1), as if the order had not been entered. (3) Within 14 days after an order is entered, the Court may of its own motion set aside or vary the order as if the order had not been entered. (4) The Court may not extend the time limited by subrule (2) or (3). (5) Nothing in this rule affects any other power of the Court to set aside or vary an order. 5 The applicant did not file a notice of motion or affidavit in support of the application. His correspondence dated 11 and 13 August 2008 and 11 September 2008, following publication of the judgment of the Court, was treated as an application to vary the orders entered on 29 July 2008 and the grounds upon which the application was based. Having regard to the date of the correspondence and the matters raised in it, the Crown accepted that the application was made within 14 days of the orders being entered, as provided for in r 50C(2), and that the power to entertain the application was thereby enlivened.

6 The applicant was not legally represented at the hearing of his application by the Court on 29 April 2009 and appeared on his own behalf. The Crown arranged for an interpreter in the Dutch and Flemish languages. The applicant stated that he did not consider that he needed the assistance of an interpreter and the applicant proceeded without such assistance. 7 It was the agreed position at the hearing that the applicant's affidavit affirmed on 29 April 2009 would only be read in the event that the application was successful and the Court was called upon to re-sentence. On the same basis, the Court admitted the following documents:-

(1) Exhibit A: Officer Report form dated 20 June 2008. (2) Exhibit B: Letter from the applicant to New South Wales Ombudsman dated 27 August 2008. (3) Exhibit C: Document from Ombudsman dated 11 August 2008. (4) Exhibit D: Document from Embassy of Belgium to the applicant dated 28 April 2008. (5) Exhibit E: Document from N Gelin, solicitors, to David Barrow, Legal Aid Commission dated 28 April 2009. (6) Exhibit GAD1 - annexed to the Registrar's affidavit. The principles to be applied 8 In Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69 this Court (differently constituted) had occasion to deal for the first time with the operation of r 50C of the Criminal Appeal Rules. The operation of the rule commenced on 7 September 2007 (see Criminal Appeal Rules (Amendment No 1) 2007; GG No 116). In Alramadan the Court held that the power to vary or set aside orders made consequent upon an appeal against conviction (or an application for leave to appeal against sentence) is to be understood and applied commensurate with the power the Court has always had under the general law to vary or set aside orders in an appropriate case. The Court also emphasised that after a full hearing on the merits of an appeal against conviction or sentence the circumstances in which further argument should be entertained on an application to vary or set aside its orders are quite limited. In that regard it cited the judgment of Mason CJ in Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300 at 303 where his Honour identified the criteria by which an application to re-open a proceeding should be decided. His Honour said: What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases. It was this approach which the Court in Alramadan accepted as the proper approach when an application is brought under r 50C of the Criminal Appeal Rules. 9 In applying those principles to this application, the Crown submitted, in our view correctly, that there are three questions that require an affirmative answer before the Court would be entitled to consider varying the orders entered on 29 July 2008.

10 The first question is whether, in considering the application for leave to appeal against sentence, the Court proceeded (or apparently proceeded) according to some misapprehension of fact or law. Unless that has occurred the application to vary the sentencing order must be dismissed. If it is established that the Court proceeded according to some misapprehension of fact or law, the Court must then be satisfied that the matter complained of affected its consideration of the merits of the appeal in some material way. That is, the misapprehension must be a material one. Again, unless that matter is established, the application to vary the sentencing order must fail. Assuming the materiality of the misapprehension of fact or law, the final question is whether it was due to the applicant's neglect or default.

11 Although the applicant did not cast his submissions in accordance with the principles to which we have referred, it is essential on this application that the question whether the Court should vary or set aside its orders be resolved strictly in accordance with those principles since to do otherwise is to run the risk that the application takes on the character of an appeal or a re-hearing of the original appeal. The grounds upon which the application is based 12 After a distillation of relevant parts of the lengthy correspondence received from the applicant, and after considering his oral submissions to the extent that they were relevant to the questions the Court has to decide, the grounds upon which the application is based are as follows:

(a) the Court did not have the applicant's grounds of appeal and the written submissions he prepared and filed in advance of the hearing of the appeal but instead had the grounds of appeal and written submissions prepared by his former lawyers, both of which he had specifically abandoned when he assumed the conduct of his appeal; and (b) the Court determined the appeal based upon his former lawyers' submissions and the grounds of appeal filed by them.

The evidence 13 The Registrar of the Court, Ms Gabrielle Ann Drennan, of her own motion provided an affidavit sworn 28 April 2009 in order to assist the Court in understanding the chronology of her dealings with the applicant from the time he assumed carriage of his appeal and, importantly, to trace the provenance of the materials that ultimately comprised the appeal papers the Court was provided with in advance of the hearing. 14 The applicant objected to Annexure "D" to the affidavit. That annexure, by reason of the objection, was removed from the affidavit and handed back to the Registrar (transcript, 29 April 2009, p 5). 15 The relevant dealings between the Registrar and the applicant are as follows: (a) On 23 November 2006 a notice of application for leave to appeal against sentence was filed in the Registry supported by grounds of appeal at that time drafted by the legal practitioners retained by the applicant to act on the appeal (hereinafter referred to as the original grounds of appeal). They also included written submissions prepared by the same legal practitioners.

(b) On the same date, the applicant forwarded a letter addressed to the Court of Criminal Appeal, where he identified aspects of the lawyers' documents with which he did not agree.

(c) On 22 January 2007 the applicant advised by letter that he would represent himself on the appeal and that he intended to file new submissions.

(d) On 31 January 2007 the hearing of the appeal, listed for 14 February 2007, was vacated.

(e) On 14 June 2007 the Commonwealth Director of Public Prosecutions filed the application book in the Registry in accordance with the customary practice. The original grounds of appeal were included at AB5. The application book did not contain the submissions prepared by the applicant's former lawyers. (In addition, it is clear beyond doubt, that the Registrar did not otherwise provide the members of this Court with those submissions in advance of the hearing. In accordance with her usual practice, she retained the original submissions but struck through the first page of the document with the notation "superseded by K's own submissions".)

The six original grounds of appeal, as they appeared in the appeal book are set out in full as follows: 1. The learned sentencing Judge erred in finding the Appellant's level of participation and the quantities involved put his level of offending at the highest end of the scale. 2. The sentence in all of the circumstances was manifestly excessive. 3. The learned sentencing Judge erred in placing too much weight on the Appellant's record of previous convictions as an aggravating factor. 4. The learned sentencing Judge erred in failing to give the Appellant an appropriate discount for his assistance. 5.The learned sentencing Judge erred in miscalculating the appropriate sentences to give affect to her findings. 6. The Appellant has a justifiable sense of grievance by nature of the disparity between the sentence imposed upon him and those imposed upon his co-offender, Doran Yona.

(f) A week later, on 20 June 2007, the Registry received a bundle of documents from the applicant under cover of a letter of three pages addressed to " their honourables Justice's of the supreme court of NSW " and attaching a hand written document of 136 pages headed "Appellant's Submissions". Seven numbered grounds of appeal appear on the first page of the submissions under a subheading entitled "Grounds of Appeal". They are set out in full as follows: 1. Due to unprofessional conduct of legal representation Ken Gilson, Fresh/new evidence. The AFP Phone intercepts of my co offender Doran Yona. 2. The learned sentencing Judge erred in finding that my level of participation and the quantities involved put my level of offending at the highest end of the scale. 3. The sentence in all of the circumstances was manifestly excessive. 4. The learned sentencing Judge erred in placing too much weight on my record of previous convictions as an aggravating factor. 5. The learned sentencing Judge erred in not mentioning or giving due consideration that I was in fact an unwilling participant. 6. The learned sentencing Judge erred in failing to give me an appropriate discount for my assistance. 7. I have a justifiable sense of inequality, unfairness, injustice and grievance by nature of the disparity between the sentence imposed upon me and those imposed upon my co-offender, Doran Yona. (g) Immediately prior to the commencement of the hearing of the application for leave to appeal on 4 September 2007, the Registrar informed the applicant of the various documents that had been provided to the Court in preparation for the hearing including, inter alia, the two volumes of the application books prepared by the Commonwealth Director of Public Prosecutions together with his written submissions. 16 Neither the Registrar nor Mr Wigney SC, who appeared for the Crown on the appeal and on the present application, were apparently aware of the discrepancy between the applicant's grounds of appeal, appearing as the facing page to his submissions, and the original grounds of appeal, as they appeared in the application book. To the extent that the applicant was aware of the fact that the original grounds had been included in the appeal books, and that his grounds of appeal had not, he did not draw it to the Court's attention in the hearing. In making that observation no criticism of him is intended. The Court is conscious that he was unrepresented on the appeal and for that reason may not have appreciated that it is the obligation of an applicant for leave to appeal against sentence to invite attention to the precise grounds upon which it is submitted leave should be granted and the appeal allowed. 17 At paragraph 13 of the judgment Fullerton J set out the grounds upon which the application for leave to appeal had been advanced at the hearing, with a view to addressing the grounds of appeal as they crystallised in the course of the argument. This was by reference both to the grounds as they appeared in the application book and those set out on the facing page of the applicant's submissions filed after the application book was settled. It is clear that the precise terms in which Ground 1 of the applicant's grounds of appeal was expressed were not replicated in the judgment and that the applicant's Ground 5 was not identified separately as a ground of appeal. In addition, Ground 6 was nominated as a ground of appeal which the applicant did not include in his grounds of appeal but which appeared as Ground 4 in the original grounds of appeal.

18 Paragraph 13 of the judgment reads as follows: The applicant, who was unrepresented on the appeal, did not identify or address these specific errors ( referring to the Crown's concession that her Honour failed to comply with relevant sections of the Crimes(Sentencing ) Procedure Act or R v Way ) in either his written or oral submissions. His appeal was advanced on the following grounds:

(1) The incompetence of his legal representation resulted in relevant evidence being withheld from the sentencing judge. (2) The sentencing judge erred in finding the applicant's level of participation in the criminal enterprise and the quantities of drugs involved put his level of offending at the highest end of the scale. (3) The sentences in all of the circumstances were manifestly excessive. (4) The sentencing judge erred in giving undue weight to the applicant's record of previous convictions as an aggravating factor. (5) The sentencing judge erred in failing to give the applicant an appropriate discount for his assistance. (6) The sentencing judge erred in miscalculating the appropriate sentences to give affect to her findings. (7) The applicant has a justifiable sense of grievance by nature of the disparity between the sentence imposed upon him and those imposed upon his co-offender. The discrepancy between the filed grounds of appeal and the grounds of appeal set out in the judgment 19 A comparison between the applicant's grounds of appeal and the original grounds and the grounds as set out in the judgment exposes the extent of the discrepancy. Ground 1 in the judgment is a restatement of the applicant's first ground of appeal. Ground 2 in the judgment equates with the applicant's second ground of appeal (and appears in the original grounds of appeal as Ground 1). Ground 3 in the judgment equates with the applicant's third ground of appeal (and appears in the original grounds of appeal as Ground 2). Ground 4 in the judgment equates with the applicant's fourth ground of appeal (and appears in the original grounds of appeal as Ground 3). Ground 5 in the judgment equates with the applicant's sixth ground of appeal (and appears in the original grounds of appeal as Ground 6). Ground 6 in the judgment was not included in the applicant's grounds of appeal but appears as Ground 5 in the original grounds of appeal. Ground 7 in the judgment equates with the applicant's seventh ground of appeal (and appears in the original grounds of appeal as Ground 6).

20 The fact that the Court considered a ground of appeal the applicant did not wish to argue (Ground 6 in the judgment and Ground 5 in the original grounds of appeal) is irrelevant to this application. We simply note that in the course of considering Ground 6, and after considering comparative sentences, the Court was of the view that a more appropriate starting point for the calculation of sentence on the first count was 22 years. 21 At the hearing of the application, there were a number of exchanges between the Bench and the applicant directed to identifying in specific terms the grounds relied upon. This was necessary, given the need for the applicant to establish either a misapprehension of the facts by this Court when deciding the appeal and/or a misapprehension to the relevant law or both. In the course of the exchanges, the Court observed that it was not open to the applicant to simply contend that the judgment of the Court was affected by legal error as to do so would be tantamount to an attempt to involve the Court in exercising an appellable review of its own judgment. The applicant indicated that he understood the point made in that respect. 22 The applicant confirmed that he wished to contend that the Court did not, in dealing with his appeal, consider grounds that he had raised. These were identified as Grounds 1 and 5. Mr Kauwenberghs, however, sought to broaden the scope of his application to argue that Grounds 1 and 5 were effectively inter-related or so connected with other grounds that he should be entitled to revisit the other grounds of his appeal (t.16). 23 The applicant fairly added in this respect that he could not say that the matters concerning Grounds 1 and 5 would affect the other grounds of the appeal but that it could have such an effect (t.16).

24 The applicant's fifth ground of appeal - namely that the sentencing judge was in error in not giving due consideration to his claim that he was an unwilling participant in the drug trafficking enterprise - was not reproduced in the judgment as a separate ground of appeal. We do not regard the failure to nominate the applicant's fifth ground of appeal in the judgment as a discrete ground of appeal as an error capable of being characterised as a misapprehension of fact for the purposes of this application. However, even if it could be so regarded, the issue as to whether the applicant was a willing or unwilling participant (the sole question raised by Ground 5) was both the subject of submissions by the applicant and was expressly addressed and dealt with in the judgment when consideration was given to the impact of the fresh evidence on the applicant's second ground of appeal, namely his challenge to the sentencing judge's assessment of the level of his participation in the drug trafficking enterprise and in the assessment her Honour made of his objective criminality for sentencing purposes. Reference to the following paragraphs in the judgment make that plain: 52 As I have noted, notwithstanding the fact that her Honour accepted that the applicant acted under duress when he initially agreed with Koen to supply 200,000 of the ecstasy tablets , she was satisfied that over succeeding weeks his role changed to that of an active participant in the supply of drugs for reward . She also concluded that his attitude changed from being a person taking a passive role in compliance with those who had duped him into a proactive role, and that this was evidenced by the fact that he unilaterally determined when and how much of the drug he would supply. She also found he attempted to negotiate a much higher financial reward for himself both from Yona as the person to whom he supplied drugs on 26 and 27 June 2004 and Koen as the person on whose instructions he acted. She described the applicant's role in this context as that of a warehouseman and first-line distributor of the drug rather than a courier or mule. In short, her Honour regarded the offending constituted by the commercial supply counts in counts 4 and 5 on the indictment as at the highest end of the scale of criminality.

53 In oral submissions the applicant conceded that while he welcomed the prospect of the financial reward that Koen offered him given his strained financial circumstances, he did not engage in brinkmanship to secure it and that her Honour was in error in interpreting his conduct in that way. He conceded that while the evidence tendered at the sentence hearing showed that he was not a totally unwilling supplier of drugs (in particular in regard to supply of 10.7-12 kilos to the man at The Entrance on 21 June 2004) he maintained he received no reward for doing so. In addition, he submitted that at no time in his dealings with Yona, dealings which culminated in the supply of large quantities of ecstasy tablets on 26 and 27 June 2004, did he demand money before he supplied the drugs and that he only agreed to supply drugs to him at all because of a fear of reprisals and in order to secure his safe passage out of Australia. He submitted that to the extent that he took unilateral action in deciding when, where and how much of the drug would be supplied this was in order that the risk of being caught would be minimised in circumstances where he was the one who had been put in the compromising position of being in possession of the drugs having accepted the job of delivering them. He submitted that her Honour misconstrued his role and that the fully extracted telephone intercepts demonstrate that he was a reluctant warehouseman and first line distributor and that at all times he was acting for and on behalf of others whilst at the same time being manipulated by them. In addition, he asks rhetorically, why if he was seeking to hold Yona and others to ransom would he leave the county after supplying the drugs without being paid the money he had been promised when he had the option of leaving the drugs buried in the ground until he had been paid?

54 In addition the applicant sought to demonstrate, again by reference to the fully extracted calls, that he was subordinate to the role Yona performed in the distribution of the drugs. 56 In my view, after comparing the summary of the intercepted calls in the agreed facts with the fully transcribed calls tendered as fresh evidence, there is some substance in the applicant's submission. However when read in their entirety, I am not of the view that the calls go so far as to compel the conclusion contended for by the applicant. In particular, I find that while his actions were dictated by the contingencies that presented from time to time in the process of delivering the drugs to Yona, he nevertheless performed an active, informed and consultative role .

57 After the applicant was told by Koen to supply Yona with 230,000 tablets on 24 June 2004, he made his way from The Entrance to Bondi to meet with Yona but did not take any drugs with him. From what Yona reported by telephone to others it would appear that the applicant was extremely agitated and concerned about the speed and reliability of the rented car he was driving and the distance he had to travel carrying the drugs as distinct from positioning himself to broker a better financial arrangement. After collecting the Commodore from Yona and over the course of a number of conversations with Koen the applicant also complained to Koen about having to travel a considerable distance with drugs in his possession to supply people that he described as not "Koen's people". This would tend to suggest that the applicant had at least an appreciation of who Koen's people were and that the person he supplied with 10.7-12 kg on 21 June 2004 was in that category whilst Yona was not. The applicant proposed that Koen ask Yona to drive to collect the drugs. (emphasis added) 25 In the course of dealing with the impact of the fresh evidence the following observations were made: 60 It would also appear that in the course of his dealings with the applicant Yona was intentionally downplaying the extent of his own knowledge of the trade in drugs in order to keep the applicant in the dark as to the true extent of his involvement and also so as to encourage the applicant to view him as a person who was also simply acting at the direction of others. That is not to say however that the calls reveal the applicant as reluctant or resistant to the role he had agreed to perform. Importantly, in none of the calls with Koen or Yona does the applicant appear to show any reluctance to supplying the vast quantities of ecstasy with which he is charged even if he was temperamentally ill-fitted to the task.

61 In the result, while I do not regard the role that he performed as in the most serious category of offending, I do accept he was at least on an equal footing with Yona in their possession of commercial quantities of ecstasy (albeit at different times) and that Yona was intimately connected with those who were to receive the drugs the applicant supplied to him, no doubt for the ultimate supply to end users.

62 I will have something more to say about Yona's role when coming to consider the question of parity. At this stage, however, I am satisfied that the applicant was not a reluctant distributor of the drugs but was manipulated by others to secure their objectives. By contrast, I am not satisfied that the evidence discloses that the applicant sought to exploit his control over the drugs to his own financial end otherwise than in an increasingly desperate effort to be paid the money he was promised by way of an advance from Yona to enable him to leave Australia. (emphasis added) The difference in the wording of Ground 1 ("legal representation")

26 The only remaining issue left for consideration on this application is whether the difference in the wording of the first ground of appeal, as it appears at paragraph 13 of the judgment, and the way it appears in the applicant's grounds of appeal, is indicative or suggestive of the fact that the Court considered the application for leave to appeal according to some misapprehension of fact. 27 The Court construed the applicant's first ground of appeal as limited to a complaint about the quality of his legal representation before the sentencing judge due to the failure of his counsel to tender some telephone intercepts, as distinct from the quality of his representation being productive of error in the sentencing exercise in some other way. 28 At the commencement of the hearing of the appeal the Crown consented to the Court receiving the telephone intercepts as fresh evidence. Given the way the applicant expressed the first ground of appeal, we understood that this disposed of that ground of appeal, subject only to the necessity to consider the extent to which the fresh evidence impacted on the findings of the sentencing judge as to the level of the applicant's participation in the criminal enterprise generally, and how this compared with the sentence of his co-offender for parity purposes. 29 The Crown observed that if Ground 1 was considered by the Court as limited to the telephone intercepts, that would be a misapprehension of fact or law. However, the Crown's submission was that, even if there was a misapprehension in that respect, the question then was whether it was a material one. The Crown contended that such a misrepresentation in this case lacked materiality as other matters, in particular, those of delay and parity, were considered by the Court. Accordingly, the Crown's ultimate submission was that the misapprehension in that respect had no bearing upon the Court's approach to the appeal and its determination. 30 We accept that the applicant's written submissions in support of Ground 1, in particular, at pp 6-14 set out a litany of complaints about the quality of his legal representation at the sentencing proceedings extending beyond the failure to tender the full telephone intercepts. He also complains about his counsel's failure to adequately inform her Honour of the reasons for the delay in bringing the sentence proceedings to a conclusion, the harsh conditions of his remand in the interim, and his counsel's failure to consult with him before advancing submissions on sentence, in particular on the issue of parity. 31 However, as the Crown submitted and as discussed below, the issues of delay, the harsh conditions in which the applicant was held in custody and that of parity were dealt with in relation to grounds of appeal other than Ground 1. 32 Dealing first with the issue of delay and the conditions of his remand, it is clear from the sentencing remarks that her Honour took delay and the unusually harsh conditions to which the applicant had been subject as a remand prisoner into account in mitigation of sentence. For this reason we can see no basis for the applicant's claim that his lawyers were incompetent in failing to direct attention to the mitigatory effect of these matters much less that her Honour failed to take account of them. In addition, this Court considered that each of those matters should be afforded weight in the quantification of the discount for the applicant's assistance to the authorities and in the result determined that a discount of 45 per cent should apply. This was dealt with at paragraphs [100] to [102] as follows: 100 While it is true there was no evidence before her Honour that the applicant would be incarcerated in onerous conditions for any nominated or predicted period beyond the date of his sentence because of his assistance, in my view the fact that the applicant was forced to withstand inhumane conditions of incarceration over an extended period prior to sentence, such that his medical condition was exacerbated and his mental functioning compromised, is compelling. I regard this case as legitimately falling within an exceptional class of case where a combined discount of more than 40 per cent should have been allowed, not because of evidence that the applicant will spend his sentence, or a substantial part of it, in more onerous conditions than the general prison population, but because the onerous conditions to which he was subject whilst on remand were directly related to the assistance he offered and the threats to his life that resulted.

101 I note that in Sukkar , Latham J considered that the fact that there was little in the assistance by way of contrition, no evidence of any personal risk to the offender or to any member of his family and no evidence of any hardship arising directly out of the provision of assistance, allowed her Honour to conclude that a combined discount of 45 per cent was unduly generous and that it should be reduced to 35 per cent.

102 By contrast, in the case of this applicant his assistance was significant and all three features were present. For that reason I consider that a combined discount of 40 per cent in respect of counts 1, 2 4 and 5 was inadequate and that a 45 per cent discount should have been allowed. I am not of the view that the combined discount of 60 per cent for count 3 is in the same category, indeed I regard it as generous. 33 In relation to the applicant's complaints about his legal representation, insofar as he complained about what was said to be the paucity of his counsel's submissions on the issue of parity, it is important to observe, as already noted, that this Court dealt with the issue of parity as a separate issue or ground of appeal. For this reason any complaint about the way parity was addressed by the applicant's counsel on sentence was effectively overtaken not only by the Court looking at the issue afresh when considering whether the challenge to the approach taken to parity by the sentencing judge was made out but by the Court ultimately being satisfied that the applicant's sentence was disproportionate to the sentence imposed upon his co-offender and that he would be re-sentenced taking parity considerations into account. The Court dealt with that issue at paragraphs [104] to [109] which are set out below in full: 104 Following his arrest on 28 June 2004, Doran Yona was charged with two offences. The first was laid under the Customs Act (Cth) and concerned his possession of the ecstasy supplied by the applicant on 26 and 27 June 2004 as located by police in the boot of the Holden Commodore parked in the car park at the Swiss Grand Hotel at Bondi Beach on 28 June 2004. He was also charged with money laundering an amount of $1,000,000 contrary to s 400.3(2) of the Criminal Code Act 1995 (Cth). The maximum penalty for the money laundering offence was a fine not exceeding $79,200 or imprisonment for 12 years or both. The maximum penalty for the drug offence was life imprisonment or a fine not exceeding $825,000 or both. The sentencing judge imposed a fixed term of imprisonment of 2 years for the money laundering offence and a term of imprisonment of 5 years and 2 months with a non-parole period of 2 years and 7 months in respect of the drug offence. The sentences were ordered to be served concurrently. His Honour arrived at that sentence after allowing a 60 per cent discount for the combined value in his plea of guilty and assistance to the authorities. From the remarks on sentence it would appear that after assessing the objective seriousness of the drug offence and the offender's role, which his Honour regarded as tangential and marginal, a head sentence of 15 years was considered an appropriate starting point for the calculation of sentence.

105 Although her Honour noted that at the time of the applicant's sentence hearing Yona's sentence was subject to a Crown appeal, she considered that in addition to the sentence being lenient there were good reasons why parity with Yona did not apply. She considered the charges faced by the applicant and Yona were markedly different in that Yona was charged with a money laundering offence and a single count of possession under the Customs Act (Cth), while the applicant faced multiple counts of possession and supply. She also noted that the quantity of drugs involved in Yona's offence were less than the drugs the applicant possessed and supplied and that in Yona's sentencing proceedings the sentencing judge described his role in possessing the drugs as tangential and marginal, that Yona's assistance was far more valuable than the assistance given by the applicant because he gave evidence against other offenders both at committal and trial and that he had a stronger subjective case.

106 Following the sentencing of the applicant, this Court published its decision on the Crown appeal. The majority found that his Honour erred in appointing 15 years as the starting point for the calculation of sentence in circumstances where the quantity of drug involved was almost 33 times the commercial quantity and erred in his description of the offender's role as a "somewhat tangential or marginal". The Court regarded Yona's role in arranging for the applicant to transfer the drugs to him as far more significant than the time he was in actual possession of the drugs and that the offending comprehended by both counts on the indictment reflected a high level of criminality such that it was patent that his Honour's sentencing discretion had miscarried. The Court regarded that finding as reinforced by the fact that his Honour allowed a 60 per cent discount for the combined value of the assistance and his plea of guilty.

107 In accordance with the principles that apply when re-sentencing following a successful Crown appeal, Beazley JA was of the opinion that the lowest sentence that could have been imposed for the drug offence was a sentence of 16 years imprisonment. In arriving at this sentence her Honour took into account Yona's mental condition and compromised capacity to function as diminishing the need for general deterrence without reducing the sentence by any arithmetic calculation an approach taken by the judge at first instance which her Honour found to be in error (see [44]-[69]). Her Honour then allowed a 50 per cent discount for the combined utility of the assistance to authorities and the plea of guilty reducing the head sentence to one of 8 years and imposed a non-parole period of half of the head sentence since that was an approach taken by the sentencing judge, an approach that was not challenged on appeal. Her Honour then ordered partial concurrency in respect of the sentence for money laundering and specified that the sentence for the drug offence commence 12 months after the commencement of the sentence for the money laundering offence. In the result, Yona was sentenced to a period of 5 years imprisonment before being eligible to be released on parole.

108 The Crown submitted that there were sound reasons why the parity principle had no application in sentencing the applicant and that the sentencing judge was correct to find that there were significant differences, both objective and subjective, between Yona's case and the applicant's, and significant differences between the offences committed by Yona and the applicant. The Crown submitted that the applicant's attempts in his written submissions to portray Yona as more significantly involved and more senior than him should be rejected. The Crown also submitted that if there was to be any comparison between the sentence imposed on Yona and the sentence imposed on the applicant, the comparison would only relate to count 1 where the applicant was charged with being in possession of the drugs that he supplied to Yona such that they were in Yona's possession on his arrest. While that comparison is valid, in my view, it does not necessarily stop there given that the applicant was also charged with supplying the drugs in Counts 4 and 5 which Yona was charged with possessing.

109 Although her Honour was correct in identifying differences in the number and type of offences with which Yona and the applicant were charged, and while I am conscious that parity as a sentencing principle does not extend to redressing any imbalance or discrepancies in the manner in which prosecuting authorities might charge co-offenders (see R v Formosa [2005] NSWCCA 363), I am also mindful of the fact that a justifiable sense of grievance may arise in cases where even though a co-accused is sentenced on a different factual basis so as to justify the imposition of unequal sentences, the sentences are nevertheless disproportionate to that degree of difference (see Formosa , per Simpson J at [49]). For these reasons, I propose to take into account the issue of parity when re-sentencing the applicant. I am not however of the view that equal sentences will be the result. It cannot be ignored that Yona was re-sentenced after a Crown appeal where, consistent with principle, Beazley JA calculated the head sentence from a starting point at the lowest end of the range, namely 16 years. On this appeal the Court is not so constrained. In addition, Yona's subjective circumstances were such as to entitle him to leniency by reason of his mental health which was of a different nature to the psychological stresses from which the applicant suffers.

34 In determining the question as to whether there was a misapprehension of fact and/or of law in the judgment of Fullerton J (with which the other members of the Court agreed) and, if there was, the question of its materiality, it is necessary to observe that the issues which the applicant relied upon in this application to set aside or vary the orders entered on 29 July 2008 were considered and dealt with by the Crown though not strictly in accord with the particular numbered grounds of appeal. 35 It is not uncommon for this Court on appeal to consider issues that relate to different grounds together, rather than separately, when determining the outcome of an appeal. This may occur, for example, where issues overlap or are inter-related in some way or ways. Accordingly, in the present case, for example, the matter of the telephone interceptions was relevant to the issues of the applicant's role as well as to that of his willing participation and also to the complaint concerning the applicant's legal representation. 36 In general terms, it may be said, of course, that it is the substance of the grounds of an appeal, rather than the form or manner in which they are presented or dealt with by the Court that is of fundamental importance. We do not consider that any of the issues or the grounds pursued by the applicant on the appeal were overlooked or were the subject of a misapprehension of a kind that enlivens an exercise of the Court's power under Rule 50C. 37 In the course of the hearing of the application, it was indicated to the applicant (t.28) that the Court may need to consider, for the purposes of Rule 50C, the appropriate approach to be taken in order to determine the significance, if any, of Grounds 1 and 5 to any of the other grounds of the appeal. The three possible courses identified were:-

(1) That the Court considers the whole of the applicant's written submissions in order to determine whether Rule 50C is engaged in this case.

(2) That the Court considers the whole of the applicant's submissions and then determines how or, if at all, Grounds 1 and 5 impact upon or are integrated with other matters raised in the applicant's submissions.

(3) That the Court only considers matters concerning Grounds 1 and 5 and such of the material in the applicant's submissions that deal with those two grounds. 38 In determining which of the above mentioned three courses is appropriate, the primary issue is whether there was misapprehension of fact and/or law by the Court of a material kind concerning any relevant aspect or matter concerning either Ground 1 and/or Ground 5. If there was no misapprehension of that kind, then there would be no occasion to consider the possible inter-relationship between Grounds 1 and 5 and the other grounds relied upon by the applicant. If there was any misapprehension by the Court of the kind to which reference has been made, then it would be necessary to consider whether there is any consequential impact upon other grounds. In the latter event, the Court would need to consider the applicant's submissions relating to other grounds additional to his submissions on Grounds 1 and 5. 39 It is apparent from what has been stated in this judgment that the Court did not, in fact, proceed according to a misapprehension of the facts or as to the relevant law of a material kind in determining the applicant's appeal. It follows from that conclusion that it is not open nor would it be necessary or appropriate for this Court on this application under Rule 50C to undertake a general review of the grounds of appeal and the applicant's submissions in relation thereto (other than Grounds 1 and 5) those grounds having been determined by the Court in its judgment given on 29 July 2008. 40 For the above reasons, the application to vary the orders of the Court entered on 29 July 2008 is dismissed.

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