King v R

Court of Criminal Appeal (NSW)|2018-10-03|Before: Johnson J, Hulme J

The Applicant's Subjective Circumstances

The Applicant was born in October 1958. He was aged between 51 and 55 years at the time of the offences. He was 58 years old at the time of sentence.
The Applicant has a prior criminal history. PCA offences were dealt with in the Local Court in 1986 and 1998.
Significantly, the Applicant was sentenced in the Sydney District Court on 16 September 2004 for an offence of importing a prohibited narcotic (cocaine). A sentence of imprisonment for seven years with a non-parole period of four years and four months was imposed in the District Court.

Some Findings of the Sentencing Judge

In his remarks on sentence, the sentencing Judge made the following findings concerning the 2010 offences (ROS16): "Coming back to the 2010 offences the facts reveal that the offender was dealing in drugs to at least some substantial extent in 2010. The quantities of drugs involved in these offences are relatively low. They might be higher than mere street deals which can usually be measured in terms of points rather than grams. I do not accept that the offences are ones that fall below the middle of the range of seriousness for such offences. The offences do not demonstrate any particular planning on the part of the offender. In fact it appears that the offender is acting in the role of a middleman between a larger supplier and a customer. The persistence of the drug dealing is such that a full time custodial penalty is the only available sentence."
His Honour made the following findings with respect to the 2013-2014 offences (ROS16-18): "The 2013 offences, these were clearly a series of drug offences committed by the offender. The offender was on bail for the drug offences when he was arrested for the offence of manufacturing prohibited drugs and the other drug offences. The manufacture of drugs is itself a serious criminal offence involving a high degree of criminality. The drug trade is a pernicious business that brings misery to many. Those who cynically manufacture drugs do so inevitably motivated by the huge profits that can result. That must have been the motivation of the offender in this case. The amount manufactured here was between 300 and 440 grams which is well above the bottom of the commercial range but also significantly below a large commercial quantity for methylamphetamine which is 500 grams. This offence therefore falls in and around the middle of the range of seriousness. I note that there is a standard non-parole period of 10 years imprisonment for the offence. That should be regarded as a guide only along with the maximum penalty to the sort of penalty that should be applied. In this case there was a plea of guilty. In other respects however this offence is quite serious and the offender must expect a sentence that is commensurate to the seriousness of the offence. The offender as is revealed in the agreed facts was an active participant in a group of offenders who manufactured the drug including the manufacture of a drug that involved some considerable planning. Having said that there is no evidence in this case that such planning was more than what would normally be required to commit an offence of this kind. The facts also reveal that the offender was in possession of precursors used for the production of drugs. It would appear that he was to engage in the production of more drugs. This offence only carries a maximum penalty of 10 years imprisonment. The offence would appear to be around the middle of the range for such offences. Finally the offender sold to an undercover operative an amount of 56.9 grams of methylamphetamine for $17,000. This drug had a purity of 46.5%. This is a substantial quantity of drugs and is certainly a serious offence in itself requiring the imposition of a full time custodial penalty. These offences all occurred in the context that the offender had previously been convicted of an offence of importing a prohibited narcotic for which he received a sentence of 6 years and 6 months imprisonment. The non-parole period for that sentence was complete on 13 November 2007. The sentence itself expired on 13 May 2010 and just seven months later he committed the first of the 2010 drug offences. The 2013 offences were committed whilst the offender was on bail for the 2010 offences. The persistence of the offending is such that specific deterrence is enhanced in this case which will inevitably result in a longer sentence being applied."
The Crown pointed out in written submissions that the last paragraph in the above quotation involved an error which operated favourably to the Applicant. It was the case that the first of the Applicant's 2010 offences was committed on 9 May 2010, at a time when he was still on parole for the earlier offence.
Having regard to the grounds of appeal, it is appropriate to set out his Honour's findings concerning the Applicant's background and subjective circumstances (ROS18-19): "The subjective circumstances of the offender are outlined in a number of reports prepared for sentencing. Further, the offender and his daughter gave evidence in the sentencing proceedings. There is a report prepared by a psychologist which was not objected to by the Crown. The offender gave the psychologist a history that included what he said was a very normal upbringing in a family that provided him with a positive model for his development. He proceeded through school without incident and rather than going to University he initially undertook a course in electronics and communication at TAFE. Whilst he was undertaking that course the offender was employed in a computer company that provided its own training and consequently he did not finish the TAFE course. He stayed employed in that company for about four years. He then moved to Bali to start a business involved in tourism focussed around surfing. That business became quite successful and continued for around 20 years. The business ran into trouble after a series of terrorist attacks, firstly in New York and then in Bali itself. The business relied to a large extent on customers from America and those customers became concerned about travelling to Indonesia as a result of these attacks. In 2002 his business went into receivership. There were a large number of debts owed by the business. It is in this context that the offender claims to have become involved in a scheme to import narcotics. He was arrested and imprisoned for that offence. When released from custody he intended to commence a new business involved in importing tiles. He also collaborated with another man who was involved in organising a musical festival. Through that introduction he was reintroduced to illicit drugs. It was his involvement in drug taking that saw him involved in the relatively small scale drug dealing which is outlined in the 2010 offences. It is not clear why he became involved in the 2013 offences. Having said that there is no reason to doubt that the ultimate motive was to profit from the sale of drugs that were manufactured. The offender has a long history of drug use. He commenced using cannabis and amphetamine from around the age of 19. His use varied through his twenties but his use became more problematic in his thirties when he started using cocaine. He has tried to deal with his drug and alcohol habits through rehabilitation and as a result he has been entirely abstinent from using both drugs and alcohol for lengthy periods of time. The offender has been married in the past and has a daughter. His daughter gave evidence in the sentencing proceedings. She is a highly qualified young woman. She described her father as a great confidant and her best friend. She relied on him for advice. The offender's former wife is also on good terms with him and is generally supportive. The offender has a number of health issues, including a condition that leaves him with cluster headaches. He was also seriously assaulted whilst he was in custody. I will take those matters into account on sentence. They certainly do make the period in custody for him more difficult."
The sentencing Judge made the following findings with respect to the Applicant's criminal history, special circumstances, contrition and his prospects of rehabilitation (ROS20): "His criminal history is one that cannot be ignored. He has been involved in committing crimes or in gaol for most of the period 2003 to 2014. On any view his history shows scant respect for the law and is one that requires attention being paid to specific deterrence in this case. Drug offences always require attention being paid to general deterrence. I accept that the offender has a long term drug misuse problem that will have to be addressed in custody if programmes are available and also on his release from custody. I will find special circumstances in this case. I also accept the offender's evidence to the effect that he is contrite for his actions. In my view despite his criminal history his prospects of rehabilitation are still reasonable."
With respect to the Applicant's pleas of guilty, his Honour said (ROS20-21): "In relation to the 2010 offences I note that the offender pleaded guilty after the trial of some other offences but in my view he is entitled to a discount of 10% on the sentence that might otherwise have been imposed. In respect of the 2013 offences the offender pleaded guilty at the District Court and is entitled to a discount of 12.5% from the sentence that might otherwise have been imposed."
His Honour explained the indicative sentences and aggregate sentences which he proposed to pass and stated that the two aggregate sentences would be partially accumulated upon each other. After passing sentence, his Honour noted that supervision of the Applicant on parole "should focus on drug rehabilitation" and that "a full time residential drug rehabilitation course would be of benefit" to the Applicant (ROS22).

Ground 1 - The Sentencing Judge Gave Insufficient Regard to the Applicant's Subjective Factors and Erred by the Accumulation and Severity of Sentences for the Applicant's 2010 Offences

The Applicant's principal submissions canvassed a number of topics under the first ground of appeal, which the Crown summarised accurately under a number of subheadings. It is appropriate to utilise these subheadings for the purpose of considering the matters raised under the first ground of appeal.
The Applicant's primary submissions filed on 24 July 2018 and his submissions in reply handed upon on 3 October 2018 were accompanied by a number of documents as annexures. Some of these documents were before the sentencing Judge and some were not. For the purpose of considering the Applicant's grounds of appeal, attention will be confined to the documents which were before the District Court on sentence. First Complaint Under Ground 1
The first aspect raised by this ground is the assertion that the sentencing Judge erred in stating that "the offender pleaded guilty after the trial of some other offences" and erred in affording a discount of 10% in respect of the 2010 offences.
In this respect, the Crown accepted that the sentencing Judge erred in stating that the Applicant "pleaded guilty [to the 2010 offences] after the trial of some other offences" (see [69] above). The Crown acknowledged that the Applicant had pleaded guilty to the 2010 offences in the District Court on 5 September 2013, having been charged with those offences on 26 August 2010. The Crown submitted, however, that it was apparent from the context in which the statement was made by his Honour that the 10% discount for the guilty plea was based on the utilitarian value of the plea rather than when the plea occurred in relation to a trial on other counts.
The discount for a plea of guilty is to be determined largely by the utilitarian value of the plea: R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at 10-11 [32]. In circumstances where the pleas were entered in September 2013, almost three years after the charges had been laid, the Crown submitted that it was well open to the sentencing Judge to extend a discount of 10% for the utilitarian value of the guilty pleas.
It may be accepted that the sentencing Judge erred in the manner identified in the Crown submissions. However, the error is not one which had any effect on sentence in the circumstances of this case.
As the Crown submitted correctly, the foundation for the calculation of a discount for the utilitarian value of a plea of guilty is the time when the plea is entered. In this case, there was no error in identifying the time and, after applying the principles in R v Borkowski, it was well open to the sentencing Judge to set a 10% discount for the pleas of guilty on these matters. The reference to the pleas being entered "after the trial of some other offences" constituted, at its highest, an incidental error which played no part in the determination of sentence so that it is not necessary for the Court to move to consider the application of s.6(3) Criminal Appeal Act 1912 in these circumstances: Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at 216 [72]. Second Complaint Under Ground 1
The second feature emerging from this ground is the claim that the sentencing Judge erred by stating (during an exchange with counsel during the proceedings on sentence) that "all these supply charges which are relatively minor, but obviously accumulated together could have been an ongoing charge".
The Crown submitted that these words did not appear in the remarks on sentence and there was no indication in the remarks that the sentencing Judge proceeded upon the basis that the three supplies could have been charged as an ongoing supply. It was submitted by the Crown that error had not been established in this respect.
This Court has said on many occasions that it is the sentencing remarks which are to be examined for the purpose of determining whether error has occurred, and not the transcript of discussion during a sentencing hearing: R v Thompson (2005) 156 A Crim R 467; [2005] NSWCCA 340 at 474-475 [32]. If the sentencing Judge did make an observation to this effect during the course of the sentencing hearing, it was not a proposition which was applied for the purpose of sentencing the Applicant. Error is not demonstrated in this respect. Third Complaint Under Ground 1
The third topic raised under the first ground asserted that the sentencing Judge had erred in not taking into account the time the Applicant spent on bail or delays in the processing of the Applicant's offences.
The Applicant was arrested with respect to the 2010 offences on 26 August 2010 and was refused bail, remaining in custody until his release on conditional bail on 8 October 2010. He remained on bail subject to various conditions which ameliorated over time until his arrest on 6 February 2014 for the 2013-2014 offences.
Reference was made to this aspect by the Applicant's counsel in the District Court in the course of a submission concerning delay.
It is open to a sentencing Judge to take into account onerous conditions of bail in assessing sentence, but the Court is not obliged to do so: Hello v R [2010] NSWCCA 311 at [47]-[50]. In the present case, the bail conditions applicable to the Applicant were not so onerous as to demand their operation in favour of the Applicant on sentence. Further, the fact that the Applicant committed the 2013-2014 offences in breach of his bail conditions for the 2010 offences was relevant to this issue.
The sentencing Judge had regard to the delay in the proceedings. No error has been demonstrated in the approach of the sentencing Judge in this respect. Fourth Complaint Under Ground 1
The fourth matter relied upon by the Applicant in support of the first ground is the submission that the sentencing Judge erred in the calculation of the sentence in backdating the sentence 42 days when the Applicant had spent 43 days in custody.
The Crown conceded that allowance should have been made for 43 days and not 42 days, but submitted that this Court could correct this aspect of the sentence without proceeding further to resentence the Applicant more generally. In fact, the Applicant was in custody for 44 days from 26 August 2010 until his release on bail on 8 October 2010. Upon this basis, allowance ought to have been made for a period of 44 days by way of backdating.
The arithmetical error involving two days is the type of error which this Court can remedy without conducting a complete s.6(3) exercise of resentencing the Applicant: Lehn v R at 216 [72]. If (as is the case) no other error is demonstrated so as to trigger the s.6(3) resentencing process, this Court can rectify this error alone by a minor adjustment to the existing sentence. Fifth Complaint Under Ground 1
The fifth factor relied upon under the first ground is the submission that the sentencing Judge erred in applying a level of notional (and partial) accumulation for the three 2010 offences to arrive at the aggregate sentence.
The Crown submitted that issues of accumulation and concurrency were a matter for the exercise of discretion by the sentencing Judge and that no error had been demonstrated in this respect.
The extent of (notional) accumulation in setting an aggregate sentence is a matter of judicial discretion: JM v R at 535-538 [39]-[40]; Pannowitz v R [2016] NSWCCA 13 at [40]. In circumstances where each of the indicative sentences for the 2010 offences related to separate supplies, the extent of the notional accumulation involved in the aggregate sentence was open to the sentencing Judge. No error has been demonstrated in this respect.

Ground 2 - The Sentencing Judge Gave Insufficient Regard to the Applicant's Subjective Factors and Erred by the Accumulation and Severity of Sentences for the Applicant's 2013-2014 Offences

Once again, the Crown helpfully divided the arguments advanced by the Applicant under the second ground of appeal into a number of subcategories. I will consider the submissions advanced in accordance with these subcategories. First Complaint Under Ground 2
The first submission under the second ground was that the discount of 12.5% afforded for the Applicant's pleas of guilty for the 2013-2014 offences was insufficient in circumstances where it was not "practically possible" for the Applicant to plead guilty at an earlier stage.
Consideration has already been given to principles applicable to assessment of a discount for a guilty plea (see [75]-[77] above). The discount for the utilitarian value of the pleas was to be determined largely by the timing of the plea so that the earlier the plea the greater the discount. Generally, the reason for the delay in the plea is irrelevant because, if it is not forthcoming, the utilitarian value is reduced: R v Borkowski.
In circumstances where the Applicant's pleas for the 2013-2014 offences were not entered until the matters were before the District Court, it was open to the sentencing Judge to afford a 12.5% discount with respect to these counts. No error has been demonstrated in this respect. Second Complaint Under Ground 2
The second limb advanced under this ground contends that insufficient weight was given to the Applicant's subjective case including his ill health and progress in custody.
This Court is a court of error and, in order to establish a basis for intervention, it is not sufficient for the Applicant to assert that a sentencing judge gave insufficient weight to one factor or another: Zhao v R [2016] NSWCCA 170 at [59]. The circumstances in which matters of weight will justify intervention by this Court are narrowly confined: Vaiusu v R [2017] NSWCCA 71 at [29].
It is apparent from the remarks on sentence that his Honour had regard to the Applicant's subjective circumstances, including his health issues and progress in custody (see [67]-[68] above). No error has been demonstrated in this respect. Third Complaint Under Ground 2
The third complaint made by the Applicant under this ground is that the Crown cited irrelevant conversations out of context which are said to have misled the Court.
In support of this contention, the Applicant does not identify any passage in the sentencing remarks which are said to demonstrate that the sentencing Judge was misled in some way. The matters raised by the Applicant under this heading are misconceived. No error has been demonstrated in this respect. Fourth Complaint Under Ground 2
The fourth complaint raised by the Applicant under this ground of appeal is the submission that the sentencing Judge should have distinguished between the roles of the offenders.
The sentencing Judge noted that the Applicant and Mr Calderwood were each active participants in the manufacture, but noted that the Agreed Facts were "relatively silent on who supplied the money necessary to undertake the manufacture and what was the split of any anticipated profits". In these circumstances, the sentencing Judge found that "each of the active participants should receive in effect an equivalent sentence".
No error has been demonstrated in his Honour's approach on this aspect. As the sentencing Judge observed, the fact that someone has expertise to undertake the manufacture of drugs does not necessarily mean that that person is more responsible for the manufacture than someone who merely assists in that process.
Nor is any error demonstrated in the approach of his Honour to the sentencing of the Applicant and Mr Howland. The Applicant was an active participant in the ongoing manufacture with him sourcing and delivering various items (both chemicals and equipment) that were necessary for the manufacture and he was recorded giving feedback about the quality of the drug and confirming that the manufacturing process was working.
No error is demonstrated in his Honour's approach to the sentencing of the Applicant in relationship to sentencing of the co-offenders, Mr Calderwood and Mr Howland. Fifth Complaint Under Ground 2
The fifth complaint brought with respect to this ground by the Applicant is that the sentencing Judge erred in partially accumulating the aggregate sentences for the 2013-2014 offences and the 2010 offences.
As noted earlier (at [91]), the extent of accumulation and concurrency is a matter of judicial discretion. The 2010 offences and the 2013-2014 offences involved separate criminality over a period of time separated by some three years. No error has been demonstrated in the extent of accumulation with respect to the two groups of offences.

Ground 3 - The Sentencing Judge Erred by Creating a Parity Issue Between the Applicant and his Co-Offender, Mr Howland

In his principal written submissions and his submissions in reply, the Applicant submitted that the sentencing Judge erred with respect to parity considerations in sentencing for the 2013-2014 offences. The Applicant sought to distinguish his own limited experience and knowledge in the manufacture of drugs with that of Mr Howland and Mr Calderwood. The Applicant sought to contrast the roles of the various co-offenders and the sentences imposed upon them for the various offences for which sentence was to be passed.
The Crown referred to the sentences imposed upon Mr Howland and Mr Calderwood for the various offences and noted, in particular, features of the offences and sentences concerning the Applicant and Mr Howland. The Crown noted that the Applicant did not appear to be complaining about the sentence imposed on Mr Calderwood in this respect.
Once again, the Crown provided a helpful breakdown of the arguments emerging from the Applicant's submissions which could be reduced to the following three propositions: 1. that there was disparity between the discount that the Applicant received for his plea of guilty and that received by Mr Howland for his plea of guilty; 2. that there was disparity between the sentence that Mr Howland received for his 2010 ongoing supply offence and the Applicant's sentence for this 2010 offences; and 3. that there was disparity between the sentences imposed on the Applicant and Mr Howland in respect of the 2013-2014 offences.
With respect to these three complaints argued under this ground, the Crown submitted that: 1. Mr Howland received a discount of 25% (as against the Applicant's discount of 12.5%) as Mr Howland had entered his plea of guilty at the earliest opportunity in the Local Court, as opposed to the Applicant who entered a plea of guilty for the manufacturing offence in the District Court; 2. the Applicant was not a co-offender of Mr Howland with respect to the 2010 offences so that no error had been established in this regard; 3. with respect to the 2013-2014 manufacturing offence, the Applicant received an aggregate sentence of six years and six months whereas Mr Howland received an aggregate sentence of imprisonment of seven years despite the Applicant having an additional Form 1 offence.
The Crown acknowledged that there was a greater period of concurrency in Mr Howland's aggregate sentence when compared to that of the Applicant with respect to the 2013-2014 offences. The Crown submitted, nevertheless, that Mr Howland's overall effective sentence was considerably higher than that of the Applicant. The Crown submitted that no error had been demonstrated under this ground of appeal. Decision
The general principles to be applied when considering a ground of appeal which asserts a justifiable sense of grievance by reason of disparity were summarised by Beech-Jones J (Payne JA and Fagan J agreeing) in Wan v R [2017] NSWCCA 261 at [39]: "The reference in this ground of appeal to a 'justifiable sense of grievance' invokes the discussion of the parity principle in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 610 (per Gibbs CJ), at 613 (per Mason J) and at 623 (per Dawson J, 'Lowe'). The parity principle holds that there should not be a 'marked disparity' between the sentences imposed on co-offenders such as to give rise to 'a justifiable sense of grievance' in one of them (Lowe at 610 per Gibbs CJ, with whom Wilson J agreed at 616 and at 612 to 613 per Mason J and at 623 per Dawson J). The parity principle has its foundation in the obligation of the Courts to afford 'equal justice' (Green The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan and Kiefel JJ, 'Green')."
The Court is not concerned with whether the Applicant actually feels a sense of grievance (a subjective test) but rather whether any disparity (or lack of difference) between sentences engenders a justifiable sense of grievance and an appearance of injustice to "that impassive representative of the community, the objective bystander": Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 613 (Mason J); Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at 474-475 [31] (French CJ, Crennan and Kiefel JJ).
In Lloyd v R [2017] NSWCCA 303, RA Hulme J (Payne JA and Garling J agreeing) said at [87]-[89]: "87. It has been said that equal justice requires that like should be treated alike. However, if there are relevant differences, due allowance should be made for them: Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26 (Dawson and Gaudron JJ). 88. The reason why an appellate court interferes in cases where there is an inappropriate degree of disparity between sentences is because it considers such disparity to give rise to a justifiable sense of grievance or the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606 at 610; [1984] HCA 46 (Gibbs CJ). 89. A court will refuse to intervene where the degree of disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at 474-475 [31]; [2011] HCA 49 (French CJ, Crennan and Kiefel JJ)."
These principles should be kept in mind in addressing this ground of appeal.
The sentencing hearing with respect to all three offenders proceeded together before his Honour Judge Blackmore SC between 22 and 24 May 2017. Thereafter, his Honour sentenced each of the Applicant, Mr Howland and Mr Calderwood on separate dates. The Applicant was sentenced on 28 July 2017. Mr Howland was sentenced on 10 August 2017 and Mr Calderwood was sentenced on 25 August 2017. Accordingly, the sentencing Judge had an opportunity to assess the objective and subjective factors relevant to all three offenders for the purpose of application of the parity principle: Usher v R [2016] NSWCCA 276 at [73].
Mr Howland was sentenced by his Honour for three sets of drug offences. He pleaded guilty to an offence of ongoing supply of drugs committed in 2010 and also pleaded guilty to two offences of manufacturing a large commercial quantity of prohibited drugs committed in 2010. The Applicant was not a co-offender of Mr Howland concerning those two sets of offences.
The third set of offences to which Mr Howland pleaded guilty were committed in 2013-2014 and involved the manufacture of prohibited drugs at the Sans Souci premises, in respect of which the Applicant was a co-offender.
For all three sets of offences, and taking into account further matters on Form 1 documents, Mr Howland was sentenced to an aggregate sentence of 15 years' imprisonment with a non-parole period of 11 years and three months.
With respect to Mr Howland's 2013-2014 manufacture offences, his Honour found that Mr Howland pleaded guilty at the earliest opportunity and was entitled to a discount of 25%. An indicative sentence of four years and eight months was nominated for the first manufacture offence. In sentencing Mr Howland, his Honour noted the 12.5% discount extended to the Applicant for his pleas of guilty for the 2013-2014 offences and the indicative sentences nominated for those offences.
Mr Calderwood was sentenced for two 2013-2014 offences - knowingly taking part in the manufacture of less than the commercial quantity of a prohibited drug (methylamphetamine) and knowingly taking part in the manufacture of 13.8 grams of a prohibited drug (4-methoxymethylamphetamine). An offence of attempting to possess a precursor was taken into account on a Form 1 in sentencing Mr Calderwood. For these offences, Mr Calderwood was sentenced to an aggregate sentence of imprisonment for six years and three months with a non-parole period of four years. The indicative sentence for the first count (taking into account the Form 1 offence) was five years' imprisonment and the indicative sentence for Count 2 was a sentence of two years' imprisonment. A discount of 12.5% was allowed for Mr Calderwood's pleas of guilty.
With respect to the first complaint made by the Applicant under this ground (at 110 above), the disparity in the discount for the pleas of guilty extended to Mr Howland and the Applicant are readily explained by the timing of the pleas of guilty concerning each offender. Mr Howland entered his plea of guilty at the earliest opportunity when the matters were in the Local Court in June 2015, whereas the Applicant entered a plea of guilty for the manufacturing offence in the District Court in July 2016.
Having regard to the principles applicable to the assessment of discounts for a plea of guilty, no error is demonstrated in comparing the approach adopted by his Honour to the Applicant and Mr Howland.
Concerning the second complaint of the Applicant under this ground (at 110 above), it is the case that the Applicant and Mr Howland were not co-offenders in the 2010 offences. Although each of them committed offences in that period, there was no overlap as between their offending. Although the parity principle may extend to persons who are not strictly co-offenders, but who are involved in the same criminal enterprise, the principle does not apply to persons who have committed drug supply offences in the same period, but in entirely unrelated circumstances. No error is demonstrated in this respect.
As to the third complaint of the Applicant (at 110 above), application of the parity principle to this case does not reveal any error in the approach taken by the sentencing Judge concerning the Applicant and Mr Howland to the 2013-2014 offences. His Honour had regard to the circumstances of the offences and each offender. The Applicant has not demonstrated an objective foundation to support a legitimate sense of grievance in this respect.

Claim that the Sentences Are Manifestly Excessive

In his written submissions in reply, the Applicant confirmed that he argued that the sentences were manifestly excessive although there was no express ground of appeal to this effect. The Crown's written submissions had noted that this contention was implicit in the Applicant's principal submissions.
It is appropriate to consider the matter upon the basis that the Applicant advances a ground of appeal asserting manifest excess.
The Applicant relied upon the various arguments contained in his written submissions in support of his claim of manifest excess. The Crown submitted that the sentences were open to his Honour and that manifest excess had not been demonstrated.
The Applicant knowingly took part in a sophisticated and well-planned manufacture of illicit drugs. The manufacture took place in a clandestine laboratory in a residential area with the Applicant taking part in the manufacture for personal gain. The 2013-2014 offences were committed whilst the Applicant was on bail for the 2010 offences. The Applicant had previously served a custodial sentence for a Commonwealth offence of importing a prohibited narcotic.
The manufacturing offence carried a maximum penalty of 20 years' imprisonment with a standard non-parole period of 10 years, the supply offences carried a maximum penalty of imprisonment for 15 years and the offence of possession of a precursor carried a maximum penalty of imprisonment for 10 years. There was a particular need for general and specific deterrence, protection of the community and denunciation in respect of the Applicant's offending.
The sentences imposed upon the Applicant for the 2010 offences and the 2013-2014 offences had regard to all relevant considerations, both objective and subjective, together with principles applicable on sentence for this class of offence.
The various sentences set by his Honour, including the aggregate sentences which involved a degree of accumulation, were entirely open in the exercise of discretion in all the circumstances of the Applicant's case.
To make good a claim of manifest excess, it is necessary for the Applicant to establish that the sentence was unreasonable or plainly unjust.
In all the circumstances, it has not been demonstrated that the total effective sentence of imprisonment of seven years and six months with a non-parole period of five years was manifestly excessive.

Conclusion

The Applicant has not demonstrated error in accordance with his grounds of appeal, including the claim of manifest excess.
The sole aspect upon which the Applicant has succeeded is the conceded minor error in commencing the sentence on 26 December 2013, rather than 24 December 2013. A minor calculation error of this type does not require the Court to undertake the resentencing process required for the purpose of s.6(3) and Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37: Lehn v R at 216 [72].
The appropriate course is to allow the appeal on sentence for the 2013-2014 offences for the sole purpose of varying the non-parole period imposed so that the non-parole period will commence on 24 December 2014 and expire on 23 December 2018, a variation of two days.
It is not necessary to vary the indicative sentences for the 2013-2014 offences.
I propose the following orders: 1. leave to appeal against sentence allowed; 2. quash the aggregate sentence of imprisonment imposed for the 2013-2014 offences and, in its place, taking into account the Form 1 offences, the Applicant is sentenced to an aggregate term of imprisonment for six years and six months, comprising a non-parole period of four years commencing on 24 December 2014 and expiring on 23 December 2018 with a balance of term of two years and six months commencing on 24 December 2018 and expiring on 23 June 2021; 3. the appeal against sentence is otherwise dismissed.
R A HULME J: I agree with Johnson J.

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The Offences, Indicative Sentences and Aggregate Sentences

The Applicant pleaded guilty to a number of offences committed in 2010 ("2010 offences") and further offences committed in 2013 and 2014 ("2013-2014 offences").
The Applicant pleaded guilty to an indictment containing the following 2010 offences contrary to s.25(1) Drug Misuse and Trafficking Act 1985, each of which the maximum penalty was imprisonment for 15 years: 1. Count 1 - on 9 May 2010 at Oatley, supplying a prohibited drug (methylamphetamine); 2. Count 2 - on 26 May 2010 at Oatley, supplying a prohibited drug (methylamphetamine); 3. Count 3 - on 18 July 2010 at Oatley, supplying a prohibited drug (methylamphetamine).
The Applicant asked that two further offences of supplying a prohibited drug (methylamphetamine) contrary to s.25(1), committed on 3 July 2010 and 30 July 2010, be taken into account on a Form 1 on sentence for Count 2.
Whilst the Applicant was on bail for the 2010 offences, he committed the 2013-2014 offences in relation to which he pleaded guilty on 1 July 2016. The 2013-2014 offences were: 1. Count 1 - between 4 December 2013 and 7 February 2014 at Sans Souci, knowingly taking part in the manufacture of a commercial quantity of a prohibited drug (methylamphetamine) contrary to s.24(2) Drug Misuse and Trafficking Act 1985, for which the maximum penalty was imprisonment for 20 years with a standard non-parole period of 10 years; 2. Count 2 - on 19 December 2013 at Sydney, possessing a precursor (nitromethane) intended for use in the manufacture of a prohibited drug (methylamphetamine) contrary to s.24A(1) Drug Misuse and Trafficking Act 1985, for which the maximum penalty was 10 years' imprisonment; 3. Count 3 - on 20 December 2013 at Sans Souci, supplying a prohibited drug (methylamphetamine) contrary to s.25(1) Drug Misuse and Trafficking Act 1985, for which the maximum penalty was 15 years' imprisonment.
The Applicant requested the sentencing court to take into account two further offences on a Form 1, the first on Count 1 and the second on Count 2: 1. between 4 December 2013 and 7 February 2014 at Sans Souci knowingly taking part in the manufacture of a prohibited drug, namely 13.8 grams of 4-methoxymethylamphetamine contrary to s.24(1) Drug Misuse and Trafficking Act 1985 for which (if prosecuted separately) the maximum penalty was 15 years' imprisonment; 2. between 16 December 2013 and 7 February 2014 at Sans Souci attempting to possess 20 kilograms of N-methylformamide, a precursor intended for use in the manufacture of a prohibited drug contrary to s.24A(1)(a) Drug Misuse and Trafficking Act 1985, for which (if prosecuted separately) the maximum penalty was 10 years' imprisonment.
On 28 July 2017, his Honour Judge Blackmore SC sentenced the Applicant for the 2010 offences to an aggregate sentence of imprisonment for two years and three months, comprising a non-parole period of one year and six months commencing on 26 December 2013 and expiring on 25 June 2015, with a balance of parole of nine months commencing on 26 June 2015 and expiring on 25 March 2016.
With respect to the 2010 offences, the sentencing Judge nominated the following indicative sentences: 1. Count 1 - imprisonment for one year and three months; 2. Count 2 (taking into account the two offences on the Form 1) - imprisonment for nine months; 3. Count 3 - imprisonment for nine months.
With respect to the 2013-2014 offences, the Applicant was sentenced to an aggregate sentence of imprisonment for six years and six months, comprising a non-parole period of four years commencing on 26 December 2014 and expiring on 25 December 2018, with a balance of term of two years and six months commencing on 26 December 2018 and expiring on 25 June 2021.
His Honour nominated the following indicative sentences for the 2013-2014 offences: 1. Count 1 (taking into account the first offence on the Form 1) - imprisonment for five years; 2. Count 2 (taking into account the second offence on the Form 1) - imprisonment for two years; 3. Count 3 - imprisonment for two years and six months.
It does not appear that his Honour indicated a non-parole period for the offence in Count 1, which was a standard non-parole period offence: s.54B(4) Crimes (Sentencing Procedure) Act 1999. This aspect does not operate to invalidate the sentence (s.54B(7)) and no point was taken in this Court concerning this issue, which may be put to one side: JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at 538 40.
The total effective sentence for all offences comprised imprisonment for seven years and six months, with a non-parole period of five years commencing on 26 December 2013 and expiring on 25 December 2018 with a balance of term of two years and six months commencing on 26 December 2018 and expiring on 25 June 2021.
The sentencing Judge allowed a discount of 10% for the pleas of guilty with respect to the 2010 offences and a discount of 12.5% for the 2013-2014 offences. A finding of special circumstances was made in light of the need for the Applicant to address his long-term problem with drug abuse.

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