Disparity
50In order for an appellant to succeed on the ground of appeal relating to disparity, a justifiable sense of grievance must be disclosed on the material before the Court. Mere disparity or difference in a sentence that is imposed on co-offenders will not be sufficient. There must be a disparity that does not reflect a rational difference between the co-offenders.
51The High Court of Australia dealt with the parity principle in Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 86 ALJR 36. In Green & Quinn, the High Court reiterated that the parity principle derives from the fundamental notion of equal justice, involving the general concepts of "systematic fairness", "reasonable consistency" and "equality before the law". Equal justice is an aspect of the rule of law, which the majority in Green & Quinn traced to 16th century English philosophy and which was described by me in Jimmy v The Queen (2010) 77 NSWLR 540 at [254] - [256], by reference to a judgment of the Canadian Supreme Court, as deriving from Aristotelian concepts. Equal justice is fundamental to the rule of law.
52Further, a ground of appeal that is based upon a lack of parity necessarily involves the proposition that there is no explicable basis for the distinction between the two sentences imposed and sought to be compared. As a consequence, it is only after the Court considers whether the sentence that is subject to appeal is otherwise in accordance with law, and, to the extent it is not, corrects any error, that the Court is able meaningfully to deal with the issue of disparity with a co-offender. It is because of that issue that I have chosen in these reasons to deal last with the ground of appeal that raises disparity in the sentences imposed.
53A difficulty that often arises, as was discussed in both Green & Quinn and Jimmy, is where the alleged sense of grievance associated with the disparity results from a comparison between participants in the one criminal enterprise who are charged with different offences. The majority in Green & Quinn, after dealing with earlier judgements of the High Court on the parity principle, made clear that, because the foundation of the parity principle is "in the norm of equality before the law" and:
"... its application [must] be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application.... The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of the sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant.... Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged" (at [30], per French CJ, Crennan and Kiefel JJ).
54In Jimmy, while each of the members of the Court expressed the principle slightly differently, the Court concentrated on the practical difficulties associated with the application of the principle to persons who were not strictly co-offenders, but, nevertheless, accepted that the principle, by whatever name it is called, applied (at [136], per Campbell JA, at [245]-[246], per Howie J, and in my reasons at [259]-[266]). Ultimately, the question remains, in dealing with a ground of appeal based upon disparity, is the alleged sense of grievance justifiable? It may be that the difference in the charges preferred justifies the difference in the sentence imposed, but that may not always be the case.
55The foregoing is best illustrated by an example. Assume two persons kill another. Also assume that the Crown has, for bona fide reasons, preferred a charge of manslaughter against one of the killers. There is a plea of guilty and a sentence imposed. Thereafter, on the basis of additional evidence obtained, the Crown prefers a charge of murder against the other killer, who pleads guilty. Can it seriously be suggested that there can be a claim for disparity in sentence where one felon is sentenced for murder and the other for manslaughter, if given their objective and subjective circumstances were otherwise indistinguishable?
56It is necessary to examine in more detail the issues affecting the sentences of each different participant in the criminal enterprise, being the circumstances of the charges preferred against the relevant participants and, to the extent that a proper comparison is appropriate, their subjective and objective circumstances.
57On appeal, the Crown tendered a statement of facts detailing the whole of the criminal enterprise. That statement of facts was marked exhibit A in the appeal. It is unnecessary to repeat it. For our purposes, it is sufficient to recite that Mr Hanif was relevantly the most senior member of the syndicate and planned and organised the criminal operation (either alone or with others) and was the person who was intended to obtain a significant part, if not all, of the proceeds of the crime. Relevantly next in seniority was Mr Kumar.
58As earlier stated, Mr Kumar was sentenced to an aggregate head sentence of five years and six months with an aggregate non-parole period of three years and nine months. Mr Khan does not seek parity with Mr Kumar. Nor does he suggest that the sentence imposed on Mr Kumar gives rise to a justifiable sense of grievance.
59Mr Khan also does not suggest that a proper comparison, for the purposes of sentencing, can be made with co-offenders Nazife Akram, Cheema, Deepak Verma, Anjali Verma, Padotan, or Sodhi and no disparity submission is based on their sentences. Mr Khan submits that the justifiable sense of grievance arises from the disparity in sentence imposed upon him compared with the sentences imposed upon Mr Akram and Ms Khera.
60In relation to the charges preferred against each, I have earlier set out the charges against the applicant, to all of which he pleaded guilty. The charges preferred against Ms Khera were two counts of possession of a false foreign passport, eight counts of providing a false foreign passport, two counts of opening a bank account in a false name, and one count of the use of a false instrument (13 charges in all). Mr Akram was charged with one count of possession of a false foreign passport, one count of the use of the false certificate of Australian citizenship, and one count of providing a false foreign passport. As can be seen, the charges preferred against each were quite different and may, of themselves, give rise to a rational difference in the sentences imposed.
61However, Ms Khera was charged with more offences of a more serious kind than Mr Khan. Further, Ms Khera sought to have the sentencing judge take account of two further additional offences on the Schedule, being two counts of open a bank account in a false name. Mr Khan, likewise, sought for the sentencing judge to take account of additional offences on a Schedule, being, one count of provide a false foreign passport, three counts of open a bank account in a false name, three counts of use a false instrument, and one count of obtaining financial advantage by misleading statement. When these additional offences are taken into account, the number of offences (albeit of different kinds) for Mr Khan and Ms Khera are the same. However, it must be remembered that it is only the offences, which are charged (not those on the Schedule), for which the offender is sentenced.
62Mr Akram's offences were committed over a period in excess of three years but, given the nature of the charges, there were significant periods of time in which no offences were committed. Mr Khan's offences were committed over a period of some 12 months. Ms Khera's offences were committed in 2002 and again in 2006 and 2007. The last mentioned duration must be qualified by the fact that Ms Khera was overseas for a significant period between 2003 and 2006.
63Mr Khan's conduct, as has been stated, can generally be summarised as opening bank accounts and credit accounts with financial institutions by means of presenting false identity documents. As has already been stated, Mr Khan was neither the instigator nor planner of the offences. Mr Akram attended at RTA registries and fraudulently applied for drivers licences in false names using false identities.
64It is necessary to deal, to some extent, with the role of Mr Kumar. Ms Khera was Mr Kumar's wife. To some extent they acted together and their roles included the obtaining of drivers licences in false names, opening and operating bank accounts in false names and maintaining and storing information obtained and used by the syndicate relating to false identities.
65However, Ms Khera was in the nature of a "runner" or "courier", acting under the directions of Mr Kumar and very much as a subordinate to him. As a consequence, the role and objective criminality of her offences are significantly less than that associated with Mr Kumar.
66Mr Khan originally became involved in the criminal enterprise on the basis of a promise by Mr Hanif of full-time employment and an amount of money ($500), to which reference has already been made. After his initial involvement, Mr Khan continued to be involved, on the evidence given by him, as a consequence of threats made by Mr Hanif that his involvement in the criminal enterprise would be disclosed to law enforcement authorities. Nevertheless, Mr Khan did not rely upon duress as a defence to the commission of the offences. Further, it is relevant that the only threat made was the disclosure of his initial involvement in crime.
67Mr Kumar initially became involved in the criminal enterprise, and continued to be involved in it, because of the financial circumstances associated with some failed business ventures. There was some suggestion that Mr Hanif made threats of physical harm against Ms Khera and Mr Kumar's children, but the relevant sentencing judge did not accept that these threats occurred or were the motivating reason for Mr Kumar's criminal conduct.
68Whatever Mr Kumar's motives were, the sentencing judge accepted that Ms Khera became involved, and continued to be involved, because of her husband and because of her misplaced loyalty and submissiveness to him. In other words, the sentencing judge took account of the fact that under Ms Khera's traditional Hindu upbringing and culture she was overborne and required to be submissive to the wishes of Mr Kumar, even when he was acting illegally. This was a significant subjective factor in determining the sentence to be imposed on Ms Khera.
69Further, Mr Kumar received between $200 and $1000 for each false bank account that he opened and Ms Khera benefited from those amounts because they were used to purchase household appliances and pay food and living expenses.
70Mr Akram had prior offences of a relevant kind. Ms Khera had none and, as earlier stated, Mr Khan had some traffic offences. Ms Khera was given a 25 percent discount for her plea of guilty because she entered a plea at the earliest possible opportunity. Mr Akram was provided with a 50 percent discount for both the plea of guilty and the assistance given to police. Again, as earlier stated, the discount allowed for the late plea by Mr Khan was 10 percent.
71Further to the foregoing, the law enforcement authorities do not consider that Mr Khan has provided assistance of any note. This fact, in terms of disparity should be compared, as stated, with the substantial assistance provided by Mr Akram for which he was provided a significant discount and for which he is, according to the relevant sentencing judge, likely to suffer more onerous conditions of incarceration. Ms Khera provided no assistance but, on the material before the Court, Ms Khera's children were threatened as a result of the perceived assistance by her husband, Mr Kumar. These threats are different to the allegations relating to Mr Kumar's motives (see [68] above) for the crime and occurred much later in time, when it was thought Mr Kumar was providing assistance to police.
72In the case of Mr Khan, the sentencing judge made no finding of remorse. In the case of Ms Khera and Mr Akram, the relevant sentencing judges made findings of genuine and significant remorse and insight into the offending that had occurred.
73The foregoing facts were before the sentencing judge (or found by the sentencing judge) as part of the process of sentencing Mr Khan. In summary, the charges preferred against Mr Akram are significantly different from those preferred against Mr Khan and that, of itself, may well explain the difference in sentencing between them. However, to that must be added the discount afforded to Mr Akram for the early plea of guilty and assistance to authorities and the other matters to which reference has now been made. In my view, there is no justifiable basis for feeling a sense of grievance as to the different sentence imposed upon Mr Akram, as compared to Mr Khan.
74Similarly, the difference between the sentence imposed upon Ms Khera and that imposed upon Mr Khan is, in my view, justified by the different circumstances relevant to each offender. Even though Ms Khera has been seemingly charged and sentenced with more offences, each of which is serious, her role in carrying out the directions of Mr Kumar ameliorates the effect of that circumstance on objective seriousness. In my view, as an overall enterprise and in terms of the role of each of Ms Khera and Mr Khan, it cannot be said that Ms Khera's role was greater than that of Mr Khan, nor that the objective seriousness of the offences was greater.
75Ms Khera was not, as submitted by Mr Khan, higher in the hierarchy than Mr Khan. Further, Ms Khera's sentencing judge took into account, as a significant factor, her submissiveness and cultural role together with the threat to her children as a result of the perceived assistance of her husband.
76The difference in the sentence, on aggregate, imposed upon Ms Khera and Mr Khan were that Ms Khera received a sentence that was three months lighter in terms of aggregate non-parole period and six months lighter in the aggregate head sentence. The different circumstances, both objective and subjective, relating to Ms Khera and Mr Khan permitted different treatment. The difference between them does not give rise to a justifiable sense of grievance and is explicable on the facts before each of the sentencing judges.
77This ground also must fail.