Dealing with the appeal
22 Ground 1 of the appeal raises the issue of due proportion between the applicant's sentence and the sentence imposed on Ryker Jennar, his co-offender. Whilst conceding that the different subjective circumstances of the applicant and Jennar required different sentences, Ms Cox for the applicant submitted that the sentence imposed on Jennar was markedly more lenient than those subjective circumstances would justify. She argued that the sentences reveal a marked disparity such that the different sentences imposed do not reflect a due proportion.
23 The Crown submitted that the sentence imposed upon the applicant was commensurate with the significant differences in his circumstances at sentence and those of Jennar. This Court would not be satisfied that the sentence imposed upon the applicant could give rise to a justifiable sense of grievance.
24 Jennar was sentenced by Keleman DCJ on 21 August 2007 to a term of imprisonment of two years and six months consisting of a non-parole period of eighteen months and balance of term of twelve months. He had pleaded guilty to the charge of supplying a prohibited drug, namely, heroin contrary to s 25(1) of the Drug Misuse and Trafficking Act. Two offences on a Form 1, namely a charge of possess prohibited drug (0.38 grams of methylamphetamine) and a charge of goods in custody, namely $976.05 were taken into account on sentence.
25 The facts upon which Jennar was sentenced were similar to the facts before the sentencing Judge. The offences on the Form 1 concerned items found on Jennar at the time of his arrest. The maximum penalty for the charge of supply was the same as for the offence of knowingly take part in the supply.
26 Keleman DCJ when sentencing Jennar expressly considered the principle of parity and referred to the terms of the sentence that had been imposed by the sentencing Judge upon the applicant, to the findings made of the applicant's role in the offence and to his subjective features including his criminal history. Keleman DCJ found beyond reasonable doubt that the criminality in the role played by Jennar was broadly equivalent to that of the applicant and as a result of considerations of parity, Jennar would receive a sentence "that is less than would otherwise have been appropriate".
27 There were proper grounds available in Jennar's case for Keleman DCJ to have imposed a sentence upon him which was shorter than the applicant's sentence.
28 Jennar had no prior criminal history whereas the applicant's prior offending included two offences of supply of a prohibited drug and one offence of ongoing supply. At the time of the commission of the offence, Jennar was not on conditional liberty whereas the applicant was on parole for a similar offence which was an aggravating feature. Jennar was 20-years old whereas the applicant was 44-years old when the offence was committed. Jennar was found to have good prospects of rehabilitation whereas the sentencing Judge found that it was difficult to be optimistic that the applicant would remain drug free. Keleman DCJ found that Jennar's plea represented "genuine remorse and contrition" whereas the sentencing Judge was only satisfied that there was "some contrition" indicated by the applicant's plea and evidence.
29 Jennar's age, first time in custody and anticipated benefit from an extended period of supervision to overcome his drug addiction were found to be special circumstances. The sentencing Judge did not find special circumstances in the case of the applicant.
30 Ms Cox argued that the applicant had come out somewhat harshly in the assessment by Keleman DCJ that the two offenders had played similar roles. She submitted that the role the applicant played was objectively less serious as it was Jennar who was the purchaser of the drugs and stood to make the real profit out of the transaction.
31 The sentencing Judge appropriately assessed the applicant's degree of criminality by defining his role and the level of his actual participation in the criminal offending. His Honour found that the applicant was a facilitator so that heroin could be purchased for Jennar and that he was actively involved in the offence. He had not only made arrangements over the telephone for the purchase of the drug but had accompanied Jennar to Sydney where he had received the drug from Bobby and then handed it over to his co-offender. As his Honour observed in the passage I have quoted at paragraph 10 drug trafficking is often undertaken using facilitators so that buyers and sellers can distance themselves from the illegal drugs to escape detection. It is not to the point that the co-offender was the purchaser of the drugs and stood to profit more than the applicant. An important role of an intermediary, such as the applicant, is to satisfy other parties to a drug transaction that they are not the subject of a police undercover operation.
32 It is well recognised that the culpability of those who engage, at any level, in drug supply is significant and that deterrent sentences are necessary: R v Shi [2004] NSWCCA 135. There was no error in the assessment of equivalence in the role of the co-offenders by Keleman DCJ.
33 Ms Cox contended that so far as prospects of rehabilitation are concerned, the difference between the co-offender and the applicant related in effect to their ages. In my view, this submission has no merit. The applicant had exhibited in the past an inability to remain drug free over extended periods of time and at the time of the offence was on parole for a similar offence. The sentencing Judge's finding that, notwithstanding the applicant's evidence, it was difficult to be optimistic that he could remain drug free was plainly open to his Honour.
34 The issue of parity is not simply determined in the present case by the different subjective circumstances of the applicant and the co-offender. As was said by Dawson and Gaudron JJ in Postiglione v The Queen (1997) 189 CLR 295 at 301:
"Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality."
35 A marked disproportion between the sentences imposed on co-offenders of a degree or a kind which gives rise to a justifiable sense of grievance is required before appellate intervention. A sentence, which is otherwise appropriate or within the permissible sentencing range, which offends that principle should be reduced: Postiglione at 301; R v Kollas & Mitchell [2002] NSWCCA 491 per Wood CJ at CL at [45]. This Court retains a discretion not to intervene where it is apparent that the sentence under comparison is unjustifiably lenient and that to do so would be to produce a sentence which is totally inappropriate to the objective criminality involved: Kollas & Mitchell at [45]; R v Kairouz [2005] NSWCCA 247 per Wood CJ at CL at [45].
36 The undiscounted starting point of the applicant's head sentence is six years and eight months. The undiscounted starting point of Jennar's sentence is 36 months (round figures). The undiscounted starting point of the applicant's sentence is 122 per cent (round figures) more than the starting point of his co-offender's sentence. The differential of three years and eight months does more than adequately reflect, to my mind, the different subjective cases of the co-offenders. Whilst their subjective circumstances necessarily required significantly different sentences, the disproportion is such as gives rise, in my opinion, to a justifiable sense of grievance.
37 As the applicant came to be sentenced first, the sentencing Judge was not required to consider the issue of parity. The issue of disproportion arises as a consequence of the sentence imposed by Keleman DCJ. Keleman DCJ recognised in his sentencing remarks that as a result of considerations of parity, Jennar was to receive a lesser sentence than otherwise would have been appropriate. It seems to me that whilst Jennar's sentence might be regarded as being lenient, it is not unjustifiably so. The Crown does not complain about Jennar's sentence. Notwithstanding that the sentence imposed on the applicant by the sentencing Judge was, in my view, appropriate and within the permissible sentencing range, (a topic which will be considered under Ground 2 of the appeal), this Court should intervene and reduce the applicant's sentence. I am persuaded that a reasonable person looking at the circumstances of this case would regard the applicant's grievance as justified: R v Ilbay [2000] NSWCCA 251.
38 Ground 1 of the appeal is established.
39 Ground 2 of the appeal is that the sentence imposed is manifestly excessive. In support of that contention, Ms Cox referred to statistics maintained by the Judicial Commission for the offences of both knowingly take part in supply of less than the commercial quantity of heroin and supply of less than the commercial quantity of the same prohibited drug. She submitted that the statistics for the offence of supply demonstrate that the applicant's sentence was in the top 11 per cent of sentences imposed and the non-parole period fell into the top three per cent of non-parole periods. The statistics for knowingly take part in supply demonstrate, Ms Cox contended, that no person had actually received a sentence of five years. She argued that a relatively small amount of drugs of a low purity was involved and the offence of supply was of a low order in the range of offences under s 25(1).
40 Whilst the statistical material provides useful information about the range of sentences imposed, it must be remembered that the upper limit of the range of sentence is not provided by the Judicial Commission statistical information but by the maximum penalty which in this case is 15 years imprisonment: Thompson v R [2007] NSWCCA 299 per Hislop J at [24]. Moreover, each sentence depends on its own facts.
41 The sentencing Judge was entitled to have regard to the applicant's record of repeat similar offending in giving more weight to retribution, personal deterrence and the protection of the community than would be the case if such a record did not exist: R v McNaughton [2006] NSWCCA 242, R v M.A.K R v M.S.K [2006] NSWCCA 381 at [51]. Furthermore, the commission of an offence whilst on conditional liberty has long been regarded as a factor of aggravation requiring the passing of a deterrent sentence: see, for example, Regina v Fernando [2002] NSWCCA 28 at [40-42].
42 It is well established that the quantity of the drugs is not the sole or even the principal determinant for sentencing in relation to drug offences. As was pointed out by Wood CJ at CL in Regina v MacDonnell (2002) 128 A Crim R 44 at [33]:
"What is more important is the role of the offender, and the level of his or her participation in the offence; subject of course to the fact that, in relation to supply offences under State law, there is a gradation of seriousness reflected by an increase in penalty as the quantity of drug involved moves into those levels which answer the descriptions of a commercial quantity, or of a large commercial quantity."
43 The sentencing Judge found that the quantity of drugs indicated that the applicant was facilitating a wholesale drug deal and that his criminality was very much greater than being described at the bottom of the range. These findings were open to his Honour. The quantity of heroin was more than five times the indictable quantity applicable to the prohibited drug and had a street value estimated as being between $6,900 and $12,000.
44 In all the circumstances of this case, I am unable to find that the sentence is manifestly excessive. Ground 2 of the appeal has not been established.
45 It is the sentence imposed upon Jennar which gives rise to the unjustifiable disproportion in this case. The Court, in my view, should form as required by s 6(3) of the Criminal Appeal Act 1912 an opinion that "some other sentence…is warranted in law and should have been passed" and proceed to re-sentence the applicant so as to provide equal justice to him.
46 In an affidavit sworn 6 June 2008 the applicant affirms that he has completed a self management and recovery training program and remains free of illicit drugs. The pre-sentence report before the sentencing Judge noted that the applicant had good family support. It seems that support has continued whilst he has been in custody.
47 I consider that the unjustifiable disproportion between the sentences may be removed by a reduction in the applicant's head sentence and by the finding of special circumstances. An extension of the period on parole might assist the applicant to overcome his drug addiction. The proposed reduction in sentence will not produce a result which is inappropriate to the objective and subjective criminality involved in the offence.
48 The orders I propose are: