Pannao v R

Catchwords: SENTENCING — Appeal against sentence — co-offenders — disparity between sentences — methylamphetamine manufacture — applicant “go to man and organiser” — co-accused “cook” — sentencing judge finds stronger subjective case for applicant — indicative sentence nonetheless six months longer than indicative sentence for other offender on corresponding count — marked and unjustified disparity revealing House error — applicant re-sentenced

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44
Crimes Act 1900 (NSW), s 193C
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 24A(1)(a), 25(1), (2)

Cases Cited: Afu v R [2017] NSWCCA 246
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cameron v R [2017] NSWCCA 229
Daw v R [2017] NSWCCA 327
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hung v R [2023] NSWCCA 172
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Miles v R [2017] NSWCCA 266
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Clarke [2013] NSWCCA 260
R v Tran [2023] NSWDC 593
Wilson v R [2025] NSWCCA 86
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category: Principal judgment

Parties: Phatsakon Pannao (Applicant)
Rex (Respondent)

Representation: Counsel:
E Kerkyasharian / S Populin (Applicant)
E Curran (Respondent)
Solicitors:
City Group Legal (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/190062

Publication restriction: Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Phatsakon Pannao, was convicted of two offences in relation to the manufacture and supply of methylamphetamine under the Drug Misuse and Trafficking Act. Count 1 was knowingly take part in the manufacture of not less than a large commercial quantity of a prohibited drug (2,689.41 grams of methylamphetamine) contrary to s 24(2). Count 2 was supply of a prohibited drug (119.2 grams of methylamphetamine) contrary to s 25(1). There was an additional offence included on a Form 1 taken into account, namely dealing with suspected proceeds of crime ($120,650 in cash) contrary to s 193C(1). After a discount of 25% to account for his early guilty pleas, Mr Pannao was sentenced in the District Court to an aggregate term of imprisonment of 9 years, with a non-parole period of 5 years.

The applicant sought leave to appeal against the sentence imposed on him, pursuant to s 5(1)(c) of the Criminal Appeal Act. The sole ground of appeal was that he had a justifiable sense of grievance when comparing his sentence with that imposed upon his co-offender, Van Toan Tran.

Mr Tran was convicted of three offences under the Drug Misuse and Trafficking Act. Sequence 1 was manufacture of not less than a large commercial quantity of a prohibited drug (2,689.41 grams of methylamphetamine) contrary to s 24(2). Sequences 2 and 3 were supplies of not less than commercial quantities of a prohibited drug (1000 grams and 561.8 grams of methylamphetamine) contrary to s 25(2). There were six additional offences included on a Form 1 taken into account, namely two supply offences under s 25(1) and four possession offences under s 24A(1)(a). Mr Tran was sentenced to an aggregate term of imprisonment of 12 years, with a non-parole period of 8 years, having likewise received a 25% discount for an early guilty plea.

Relevant to the appeal was an alleged unjustified disparity between the indicative sentence for Count 1 in respect of Mr Pannao and the indicative sentence for Sequence 1 for Mr Tran, being in each case a manufacturing offence under s 24(2). Mr Pannao facilitated access to a property in Greenacre where Mr Tran ultimately manufactured the methylamphetamine. As described by the sentencing judge, Mr Tran was the “cook”, while Mr Pannao was the “go to man” and “general organiser”, but they had similar roles in the hierarchy. There was a difference between the periods of offending, in that Mr Pannao was charged for conduct from January to June 2022, while the equivalent charge for Mr Tran was confined to the final twenty days during which the drugs were made.

Despite finding that Mr Pannao had a stronger subjective case than Mr Tran, the sentencing judge identified an indicative sentence of 8 years for his Count 1, with a non-parole period of 4 years and 6 months, as compared to his co-accused’s indicative sentence of 7 years 6 months, with a non-parole period of 5 years. With a particular emphasis on the comparison of these indicative sentences, the applicant submitted that the disparity in the sentences between the two offenders gave rise to a justifiable sense of grievance.

The Court held (Free JA, Bell CJ and McGuire J agreeing), granting leave and allowing the appeal:

1. Indicative sentences assume particular importance for the proper application of the principle of parity in the context of aggregate sentences. The appeal is brought in respect of the aggregate sentence imposed and the ultimate point of comparison in considering a grievance about alleged disparity is the sentence as a whole imposed on each offender. Nevertheless, disparity in indicative sentences may provide a basis for showing a justifiable sense of grievance. A significant advantage of indicative sentences is to allow for proper application of the principle of parity and a degree of transparency about how the principle has been applied: [37].

Hung v R [2023] NSWCCA 172, Wilson v R [2025] NSWCCA 86, R v Clarke [2013] NSWCCA 260, JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528, applied.

2. In considering how considerations of parity informed the indicative sentences for the manufacturing offences, it was appropriate to focus on the respective head sentences, in circumstances where the fixing of a non-parole period in the case of the applicant was affected by a finding of special circumstances, where there was no equivalent finding for the co-offender: [38].

3. The parity principle derives from the fundamental concept of equal justice. It requires identity of outcomes in cases that are relevantly identical and requires different outcomes in cases that are different in some relevant respect. The principle tolerates different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances: [40].

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, applied.

4. Where there is observed disparity, the critical question is whether the disparity is objectively unjustifiable. House v The King error must be established to justify appellate intervention. The extent of the disparity need not be “gross, marked or glaring”. Rather, the appellant must demonstrate that the sentence is not reasonably justified in light of the relevant differences, in the sense that there is a “marked and unjustified disparity”: [41]-[44].

R v Clarke [2013] NSWCCA 260, Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, Daw v R [2017] NSWCCA 327, Cameron v R [2017] NSWCCA 229, Miles v R [2017] NSWCCA 266, Hung v R [2023] NSWCCA 172, followed.

Afu v R [2017] NSWCCA 246, not followed.

5. The discrepancy in the head sentence components of the relevant indicative sentences for the applicant and his co-offender was only 6 months. However, in circumstances where the sentencing judge made findings that the applicant had a substantially stronger subjective case than his co-offender which justified a degree of disparity in his favour, this was impossible to reconcile with the longer indicative sentence identified. The disparity between the two sentences was both marked and unjustified, and accordingly plainly unreasonable or unjust: [39], [45].

6. In light of the House error identified, it was necessary to re-sentence the applicant. A comparatively lower indicative sentence for Count 1 was justified to reflect considerations of equal justice, although the same considerations tell against an indicative sentence which is too far below that determined in respect of his co-offender. The appropriate indicative sentence identified for Count 1 is 7 years, with a non-parole period of 4 years. The new aggregate sentence imposed is 8 years, with a non-parole period of 4 years and 6 months: [46]-[54].

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied.

JUDGMENT

1. BELL CJ: I have had the advantage of reviewing the reasons for judgment of Free JA. I agree with those reasons and have reached a similar conclusion as to an appropriate re-sentence. I therefore agree with the orders his Honour has proposed.

2. FREE JA: The applicant, Phatsakon Pannao, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence passed by her Honour Judge N L Williams in the District Court on 27 March 2024. Following pleas of guilty, the applicant was convicted of the following two offences:

3. Knowingly take part in the manufacture of a prohibited drug, being not less than a large commercial quantity (2,689.41 grams of methylamphetamine) between 18 January 2022 and 29 June 2022 at Greenacre: s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (Count 1); and

4. Supply of a prohibited drug (119.2 grams of methylamphetamine) on 29 June 2022 at Belmore (Count 2): s 25(1) of the Drug Misuse and Trafficking Act.

5. There was an additional offence taken into account which was included on a Form 1 attached to Count 1, namely dealing with suspected proceeds of crime ($120,650 in cash): s 193C(1) of the Crimes Act 1900 (NSW).

6. After a discount of 25% to account for his early pleas, the applicant was sentenced to an aggregate term of imprisonment of 9 years, with a non-parole period of 5 years, commencing on 29 June 2022. The sentencing judge identified an indicative sentence for Count 1 of 8 years, with a non-parole period of 4 years and 6 months. The indicative sentence for Count 2 was 18 months.

7. The applicant’s sole ground of appeal is that he has a justifiable sense of grievance when comparing his sentence with that imposed upon a co-offender, Van Toan Tran (Mr Tran). Mr Tran had been previously sentenced by his Honour Judge Bennett SC in the District Court on 7 December 2023: R v Tran [2023] NSWDC 593. Mr Tran was sentenced after discounts of 25% for his early pleas to an aggregate term of imprisonment of 12 years, with a non-parole period of 8 years. Mr Tran was convicted on the following three counts, after his guilty pleas:

8. Manufacture of a prohibited drug, being not less than a large commercial quantity (2,689.41 grams of methylamphetamine) between 10 June 2022 and 29 June 2022 at Greenacre: s 24(2) of the Drug Misuse and Trafficking Act;

9. Supply of a prohibited drug, being not less than a large commercial quantity (1000 grams of methylamphetamine) on 17 June 2022 at Greenacre: s 25(2) of the Drug Misuse and Trafficking Act; and

10. Supply of a prohibited drug, being not less than a large commercial quantity (561.8 grams of methylamphetamine) on 20 June 2022 at Greenacre: s 25(2) of the Drug Misuse and Trafficking Act.

11. An additional six offences were taken into account which were included on a Form 1 attached to Count 1. Two of those offences were supply offences under s 25(1) of the Drug Misuse and Trafficking Act. The remaining four offences were possession offences under s 24A(1)(a) of the Drug Misuse and Trafficking Act.

12. As can be seen, the point of direct overlap between the convictions is Count 1 in each matter. Both the applicant and Mr Tran were convicted under s 24(2) of the Drug Misuse and Trafficking Act in respect of the manufacture of a large commercial quantity of methylamphetamine (2,689.41 grams). In the case of the applicant, the count was framed in terms of being knowingly concerned in the manufacture of methylamphetamine, whereas Mr Tran was charged under the same provision for manufacturing methylamphetamine. There is also a slight variation between the periods of offending in each case. The applicant was convicted on the basis of charged conduct between 18 January 2022 and 29 June 2022. The equivalent charge for Mr Tran was confined to the period between 10 June 2022 and 29 June 2022*.* Judge Bennett SC found the indicative sentence for the relevant count for Mr Tran to be 7 years 6 months, with a non-parole period of 5 years.

13. For the reasons which follow, I consider that the applicant does have a justifiable sense of grievance arising from the comparison between his sentence and the sentence imposed on Mr Tran. There should be a grant of leave, the appeal should be allowed and the applicant should be re-sentenced.

The circumstances of the offending

9. The sentencing of the applicant proceeded by reference to an agreed statement of facts. The following summary is drawn from the agreed facts and the findings of the sentencing judge.

10. On 16 December 2021 a lease agreement was executed in the name of Mohamad El Hassan for a residential property at Juno Parade Greenacre (Greenacre Property). On 18 January 2022 the applicant organised to replace four door locks at the Greenacre Property, the new keys for which were provided to him. On 26 January 2022 he communicated with another person about cutting the grass at the Greenacre Property on the following day. On 27 January 2022 the applicant rented a truck from Budget hire, which he returned the following day.

11. Telephone intercepts recorded a conversation on 15 February 2022 between the applicant and Mai Bao Nguyen, the contents of which indicated that the applicant was engaged in supplying methylamphetamine to Nguyen.

12. Between 10 and 17 March 2022 the applicant organised for the lawns of the Greenacre Property to be mowed again. This occurred again between 13 and 20 April 2022, when the applicant was conscious of an inspection of the Greenacre Property by property management in the following week. The applicant had further communications to arrange lawn mowing on 26 and 27 May 2022. When the police conducted surveillance of the Greenacre Property in May 2022 they observed chemical drums, chest freezers, an esky and hosing at the rear of the property.

13. The applicant facilitated access by Mr Tran to the Greenacre property where Mr Tran eventually manufactured methylamphetamine. In late April 2022 the applicant asked Mr Tran to clean the house at the Greenacre Property, which he did. There were various meetings, conversations and messages between the applicant and Mr Tran in April and May 2022.

14. Police conducted a covert search of the Greenacre Property on 10 June 2022 and located a clandestine laboratory on the premises including items and equipment used to manufacture methylamphetamine. Samples were taken of substances found in the premises, which later tested positive for methylamphetamine. Surveillance and listening devices were installed. Conversations between the applicant and Mr Tran at the Greenacre Property were recorded. Various actions of Mr Tran consistent with the manufacture of methylamphetamine were also recorded. Further meetings between Mr Tran and the applicant occurred in mid-June 2022. Mr Tran supplied the applicant with a quantity of methylamphetamine. Police then arrested the applicant and discovered a hidden compartment in the van being used by the applicant which contained a quantity of methylamphetamine, multiple phones, receipts for certain solvents and acetone and a key for the Greenacre Property. Mr Tran also supplied quantities of methylamphetamine to other persons.

15. Following the arrest of the applicant police found substantial quantities of cash in a second hidden compartment within the van as well as in another hidden compartment in a bedside table in the applicant’s residence.

Subjective circumstances of the applicant and his offending

16. The following summary is drawn from the findings of the sentencing judge. The applicant was born in Thailand in 1994. His parents divorced when he was four or five years old and his mother left soon after for Australia. His father, who was nominally left to care for the applicant, was irresponsible and had little interest in the applicant. An uncle also lived in the house and he had mental health problems and a severe drug addiction. The uncle physically disciplined the applicant. The applicant was later put into the care of a babysitter at his aunt’s house, but she proved to be an abusive drunk who physically abused and spat on the applicant, and subjected him to frightening punishments.

17. The applicant moved to Australia at the age of about nine in 2003 to be with his mother, who had re-married. The applicant’s stepfather was hostile and physically abusive to him. On a visit to Thailand at the age of twelve the applicant was introduced by a cousin to smoking methylamphetamine from a pipe. Back in Australia the applicant and his mother were under great financial stress and the applicant was often left to care for himself while his mother worked night shifts.

18. After the applicant finished school he became addicted to cannabis and abused both cannabis and alcohol. He became part of a drug culture that he could not escape. During the COVID epidemic the applicant felt especially useless and started to consume cocaine, as well as large quantities of alcohol. The applicant acquired a large drug debt and was gambling several times a week.

19. The sentencing judge found that the applicant had a strong subjective case. The applicant as a young child had been exposed to an uninterested father, a brutal and non-caring aunt and a babysitter who was very violent and nasty. Within the context of that clearly dysfunctional family in Thailand the applicant was exposed to drug use. After relocating to Australia he had very few supports, did not understand the language, was bullied at school and subjected to further abuse at home where his mother was in an unstable relationship. He was then exposed to drug use himself at an early stage, which escalated in his early teenage years. The sentencing judge found that given these circumstances it was appropriate to adopt the approach laid down in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy), leading to the conclusion that there was reduced moral culpability on the part of the applicant, which informed the assessment of general deterrence. Her Honour nevertheless emphasised that the need for general deterrence was significant. There was also still room for specific deterrence.

20. The sentencing judge found that the applicant had a very modest criminal record, with a single offence in 2019 of bringing a thing into a place of detention. The applicant entered an early plea of guilty and the sentencing judge was satisfied that he was entitled to the full discount of 25%.

21. The applicant provided to the sentencing judge a letter of apology in which he said that he took full responsibility for what he had done, and felt great shame for his conduct and the harm he has caused to his family, the police and the community. The applicant has two young children, the younger child having been born after he was in custody. He expressed distress that he had failed his family because of his selfishness. He described his actions as stupid, reckless and selfish. The applicant enjoyed programmes in custody designed to help with his rehabilitation, and described his intention to complete more of those programmes. The sentencing judge referred to a number of character references written in support of the applicant.

22. While acknowledging the need for caution in circumstances where the applicant’s assertions of remorse were untested in cross-examination, the sentencing judge found there to be a very articulate reference in the applicant’s letter to a considerable amount of remorse. Her Honour was satisfied that remorse had been established.

23. In terms of rehabilitation the sentencing judge described the steps taken to date by the applicant as baby steps towards rehabilitation, given the process was only in its infancy. Nevertheless, the applicant had completed a significant number of courses in custody, which was promising and reflected well on his prospects of rehabilitation. The very modest criminal record, in circumstances where the applicant had suffered significant disadvantage in early childhood, fed into a conclusion that there were good prospects of rehabilitation. That was further reinforced by the applicant having a stable supportive family.

24. Her Honour found that special circumstances were established for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act), including the need for the applicant to have ongoing support in the process of reintegration in the community. Custody was particularly onerous for the applicant given his separation from his young family. The finding of special circumstances informed her Honour’s assessment of the non-parole period.

25. In terms of objective seriousness, on the manufacturing offence the sentencing judge took into account the significant amount of methylamphetamine and the fact that manufacturing took place over a period of around five months from January to June 2022, this being about average time to establish and operate a clandestine laboratory. Her Honour found that Count 1 sat at the mid-range of objective seriousness. In sentencing the applicant for that offence the sentencing judge took into account the proceeds of crime offence in the Form 1. Her Honour concluded that the supply offence committed by the applicant was below the mid-range, but well above the lower end of the range of objective seriousness.

26. Under the heading of totality and concurrency the sentencing judge concluded that a modest degree of accumulation was appropriate between the manufacturing and supply offences, given the overlap in timing and given that the manufactured drugs were then supplied.

The approach to parity considerations adopted by the sentencing judge

27. The sentencing remarks acknowledge that the co-offender Mr Tran had been sentenced by Bennett SC DCJ in December 2023. Her Honour recognised that in the circumstances it was necessary to take the issue of parity into account. In that connection the sentencing judge recorded that she had re-read the careful judgment of Judge Bennett SC a number of times.

28. There was an anterior factual issue about the findings to be made concerning the roles performed by the applicant and Mr Tran respectively, and their relative degrees of responsibility for the drug operation. The Crown initially submitted in writing that the Court would, like Bennett SC DCJ, find that the applicant and Mr Tran were equally liable for the manufacture. This was said to be an appropriate characterisation notwithstanding that Mr Tran performed the manufacturing, whereas the applicant had control of the Greenacre Property, paid for the locks to be changed, received the keys and organised the maintenance of the property. The Crown submitted that one would expect there to be parity in the indicative sentence for Count 1 with the indicative sentence for the equivalent sequence, sequence 1, as set for Mr Tran.

29. In oral submissions the Crown qualified these submissions, conceding that there were grounds to distinguish the applicant and Mr Tran, including because of the subjective circumstances of the applicant, which meant that there was “scope for there to be some movement without creating a justifiable sense of grievance”. The implication of the submission appeared to be that the imposition of a lesser sentence for the applicant, to the extent that comparisons could be drawn with the sentence imposed on Mr Tran, would not necessarily create a justifiable sense of grievance.

30. The applicant in his submissions to the sentencing judge emphasised that the evidence did not establish that he was the controller of Mr Tran or that he was the principal of the manufacturing. He submitted that the applicant’s case was materially different from that of Mr Tran, including because Mr Tran had been sentenced on further charges, and that six objectively significant offences were taken into account on the Form 1. The applicant urged that Mr Tran did not have any stronger subjective case, and the applicant’s stronger case on moral culpability supported the conclusion that a lesser sentence ought be imposed on the applicant, both in relation to the indicative sentence for the manufacture sentence and overall.

31. The sentencing judge found that the applicant was involved with Mr Tran’s activities in a number of respects. Her Honour could not accept, beyond reasonable doubt, that the applicant was directing Mr Tran on “how to cook, when to cook or what to cook”. More generally her Honour concluded there was no proper basis to be satisfied that the applicant had “any greater role than Mr Tran … in terms of being a principal”. Their respective roles were described as follows:

In all the circumstances, I am of the view that this offender had a similar role in terms of where they sat in the hierarchy, but Mr Tran was a cook. Mr Pannao, the offender, was more of a go-to man and a general organiser. That fits with the charge of being knowingly concerned. He was involved in a significant way in the enterprise, including preserving the premises so as to avoid detection and the role … in terms of the locks.

32. These findings broadly align with those made by Bennett SC DCJ in sentencing Mr Tran. His Honour rejected a submission that Mr Tran was a “mere cook” acting under the control of the applicant. Mr Tran was found to be “integral” to the enterprise, although his Honour found that “at least to some extent” he acted at the behest of the applicant.

33. The sentencing judge in the present matter concluded that there were significant distinguishing factors between the sentencing exercise that she was performing and that performed in respect of Mr Tran. The first was that Mr Tran was charged with a different substantive offence and “his role, whilst no greater or lesser, was different”. With respect to the other charges, Mr Tran was charged in relation to the supply of substantially greater quantities of methylamphetamine. This was singled out by the sentencing judge as “an important distinguishing factor”. Her Honour emphasised that she had accepted the submission that the applicant had a substantially stronger subjective case (particularly because his circumstances attracted Bugmy considerations). This “accounted for a different sentence to be imposed than … was imposed upon Mr Tran”.

34. As noted above, the charge brought against the applicant concerned a longer period of time (being 18 January 2022 to 29 June 2022) than the equivalent charge brought against Mr Tran (being 10 June 2022 to 29 June 2022). The Crown on appeal emphasises that this is a factor warranting a conclusion that there was some greater gravity to the applicant’s offending, which is said to be supported by the sentencing judge having described the offence as spanning a five-month period. While this is a relevant point of factual distinction, it does not serve to explain the conclusion reached by the sentencing judge. Her Honour did not find that this difference in timing signified a material difference in the respective criminality, such as might be said to justify a disparity in sentence that favoured Mr Tran. Nor do I consider that on the facts there is a significant difference in criminality linked to the longer charge period for the applicant as compared with Mr Tran, particularly given that the charge is concerned with manufacture and Mr Tran was the cook who manufactured the drug.

35. In relation to the finding about subjective considerations, Bennett SC DCJ in sentencing Mr Tran did not find that his moral culpability was mitigated by Bugmy factors. Nor was it mitigated by Mr Tran’s propensity for gambling and drug use. Like the applicant, Mr Tran was found to have shown remorse (via admissions), but there was no express finding as to the prospects of his rehabilitation. Bennett SC DCJ did not make a finding of special circumstances warranting a more generous approach to the fixing of a non-parole period. In relation to totality and concurrency, Bennett SC DCJ identified a degree of overlap between Mr Tran’s offences, which supported appropriate concurrence in the assessment of the aggregate sentence.

Principles governing parity as a consideration in sentencing

36. The direct treatment of the issue of parity in the sentencing remarks for the sentencing of the applicant strongly suggests that the sentencing judge was satisfied that, to the extent that sentencing of the applicant involved the same offending conduct for which Mr Tran had been sentenced, the applicant ought be subject to a lesser sentence than was imposed on Mr Tran. However, the application of that identified approach was not straightforward. The submissions before the sentencing judge appropriately focused on the manufacturing offence, being Count 1 in the applicant’s case and Sequence 1 in Mr Tran’s case, which was the point of direct overlap between the convictions of the applicant and Mr Tran. But the applicant was being sentenced for two offences, with one additional offence taken into account because of its inclusion on a Form 1. The sentencing judge imposed an aggregate sentence for the offences. Mr Tran had been similarly sentenced on an aggregate basis in respect of three offences, with six further offences included on a Form 1. These considerations have a tendency to obscure the comparison between the sentencing of the two offenders. This presents difficulties both in the application of parity considerations by the sentencing judge and on appeal in dealing with a complaint that the sentencing judge failed to apply such considerations.

37. It is in this context that the respective indicative sentences assume particular importance. The appeal is brought in respect of the aggregate sentence imposed and the ultimate point of comparison in considering a grievance about alleged disparity is the sentence as a whole imposed on each offender: Hung v R [2023] NSWCCA 172 (Hung) at [36]. Nevertheless, disparity in indicative sentences may provide a basis for showing a justifiable sense of grievance: see Wilson v R [2025] NSWCCA 86 (Wilson) at [44] and the authorities there cited. Indeed, a significant advantage of indicative sentences is to allow for proper application of the principle of parity, and a degree of transparency about how the principle has been applied: Wilson at [44]; R v Clarke [2013] NSWCCA 260 (Clarke) at [68]; JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [39(6)]. In Clarke at [76] McCallum J observed that the “perception of an unjustified disparity is not cloaked by the aggregation of the sentence”.

38. The indicative sentence for Count 1 determined for the applicant was 8 years (with a non-parole period of 4 years and 6 months). The indicative sentence for sequence 1 for Mr Tran was determined by Bennett SC DCJ to be 7 years and 6 months (with a non-parole period of 5 years). In considering how considerations of parity informed these two sentences, it is appropriate to focus on the respective head sentences. The fixing of a non-parole period in the case of the applicant was affected by the finding of special circumstances, which relaxed the ratio otherwise required by s 44 of the CSP Act, and by subjective considerations going to the future reintegration of the applicant into the community. By contrast there was no finding of special circumstances in relation to Mr Tran and his non-parole period reflected the minimum ratio set by s 44. In the circumstances the respective non-parole periods do not allow for a proper comparison of like with like in order to discern the application of parity considerations in the fixing of the sentence.

39. Measured by reference to the head sentences, if the indicative sentences are viewed in isolation the outcome is difficult to reconcile with parity considerations, having regard to the findings made by the sentencing judge about the comparisons to be drawn between the offending of the applicant and the offending of Mr Tran, and the subjective factors bearing on each offender. The outcome is also impossible to reconcile with the sentencing judge’s statement that the applicant’s “substantially stronger subjective case … accounted for a different sentence to be imposed than … was imposed upon Mr Tran”, given that this signalled an intention to impose a lower sentence on the applicant.

40. The parity principle “requires identity of outcomes in cases that are relevantly identical” and requires “different outcomes in cases that are different in some relevant respect”: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [65] (emphasis in original). The language of requirement in both scenarios is important. The principle tolerates “different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances”: Green v The Queen*; Quinn v The Queen* (2011) 244 CLR 462; [2011] HCA 49 (Green) at [28]. The parity principle derives from the fundamental concept of equal justice, which requires that “like should be treated alike but that, 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.

41. Where there is observed disparity, the critical question is whether the disparity is objectively unjustifiable: Clarke at [69]. An appeal court dealing with a complaint about disparity “will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each played in the relevant criminal conduct or enterprise”: Green at [31]. In Green French CJ, Crennan and Kiefel JJ described the circumstances in which a court of criminal appeal will intervene based on parity considerations as follows:

[32] A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself. Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. (Footnotes omitted.)

42. In Daw v R [2017] NSWCCA 327 (Daw) Basten JA emphasised at [18] that notwithstanding these principles the appeal court remains constrained by the requirement that error of the kind identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505 must be established. A complaint that the parity principle, while taken into account, has been misapplied to the facts of a particular case does not necessarily demonstrate error of the kind that justifies appellate intervention. Basten JA in Daw described the correct approach in those circumstances in the following terms:

[21] If attention has been paid by the sentencing judge to parity … and where none of the more specific errors identified in House v The King has been established, this Court should not intervene unless the circumstances bring the case within the residual category where it can be said that the result is so plainly unreasonable or unjust that the Court may infer error. Then the Court may intervene “on the ground that a substantial wrong has in fact occurred.”

43. A critical factor informing the assessment of whether or not the result is so plainly unreasonable or unjust that the Court may infer error is the extent of the disparity in sentences, where it is submitted that there ought to have been parity. In Afu v R [2017] NSWCCA 246 at [15] it was said that any disparity must be “gross, marked, or glaring in order to justify [appellate] intervention”. That approach did not find favour in later decisions. In Daw Basten JA at [19] held that those words should not be read as “marking out some independent, if imprecise, criterion or standard”. In the same case Hamill J at [62] held that this was not the correct test to be applied when an applicant asserts unjustified disparity as a ground of appeal. His Honour had expressed the same conclusion in Cameron v R [2017] NSWCCA 229 (Cameron) at [84]-[90]. In Miles v R [2017] NSWCCA 266 (Miles) Leeming JA and Rothman J adopted the approach articulated by Hamill J in Cameron. Leeming JA in Miles said the following:

[9] … [T]here will always be differences in the objective and subjective elements in any case involving multiple offenders, such that mere difference in sentence alone cannot give rise to appellable error. The question is whether the sentence imposed on a co-offender is reasonably justified in light of those differences, bearing in mind the qualitative and discretionary judgments of the sentencing judge.

44. His Honour revisited the topic in Hung. Leeming JA (with whom Rothman and McNaughton JJ agreed) said:

[32] The question is whether the sentence imposed on a co-offender is reasonably justified in light of those differences, bearing in mind the qualitative and discretionary judgments required of the sentencing judge: C v R [2022] NSWCCA 285 at [33]; Z v R [2022] NSWCCA 286 at [31]- [32]; Labban v R [2022] NSWCCA 275 at [24]. It is not necessary to find a “gross, marked or glaring” discrepancy: Miles v The Queen [2017] NSWCCA 266 at [9], [38], [67]. Instead, it is better to use the expressions of the High Court, namely, “marked disparity” or “marked and unjustified disparity”: Fenech v R [2018] NSWCCA 160 at [30]; Weiss v R [2020] NSWCCA 188 at [89].

45. In the present case, the discrepancy in the head sentence component of the indicative sentence for the applicant in respect of Count 1 and the equivalent head sentence imposed on Mr Tran is only 6 months. Viewed in the abstract, in the context of a sentence of over 4 years and given the variety of factors that may potentially explain a difference in sentences, there may be room for argument about whether this is necessarily a “marked” disparity. However, that is not a matter that should be assessed in isolation from the substance of the complaint, which is that the findings of the sentencing judge based on a close comparison of the two offenders not only did not justify a higher sentence but in fact justified a degree of disparity that favoured the applicant. Given that context, this is a situation where there is a disparity between the two sentences which is both marked and unjustified. This leads to the conclusion that the sentence imposed on the applicant was so plainly unreasonable or unjust that the Court may infer error. This Court may therefore intervene on the ground that a substantial wrong has occurred. It follows that a grant of leave is warranted.

Re-sentencing of the applicant

46. In light of the error identified above, it is necessary to re-sentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. Neither party has suggested that for the purposes of re-sentencing this Court should depart from the factual findings of the sentencing judge. Nor has either party argued for any different assessment of objective seriousness, the subjective circumstances of the applicant or the engagement of Bugmy considerations (leading to the conclusion that the moral culpability of the applicant is reduced). Those findings and assessments by the sentencing judge have been set out above and I have taken them into account for the purpose of re-sentencing. Nor was there said to be any reason to depart from the finding that there are special circumstances warranting a departure from the standard ratio when fixing the non-parole period: CSP Act, s 44(2B).

47. The applicant has provided an affidavit which contains updated evidence relevant to the assessment of his subjective circumstances. It deals with his conduct in prison, explaining that the applicant is working as a Milk Pro at the Emu Plains Correctional Centre. He has been informed that he will be referred to the Commissioner as a suitable person for early work release. He plans to work as a tradesman when released. The applicant has been free of drugs since he entered custody on 29 June 2022. The prison in which he is incarcerated does not offer drug related courses. The applicant maintains regular contact with his wife. He has reiterated in his affidavit that he feels terrible and pathetic because of the position he has put his wife in. I am satisfied that the affidavit of the applicant reinforces the positive findings that were made by the sentencing judge in relation to both remorse and the prospects of rehabilitation, and I have taken those matters into account.

48. Starting with Count 1, the offence under s 24(2) of the Drug Misuse and Trafficking Act of knowingly taking part in the manufacture of a prohibited drug being not less than a large commercial quantity carries a maximum penalty of life imprisonment and/or 5,000 penalty units, with a standard non-parole period of 15 years. As indicated by the maximum penalty and the standard non-parole period, it is a very serious offence. Considerations of general deterrence loom large.

49. The applicant’s subjective case is a relatively strong one, although there remains a need for specific deterrence. It remains appropriate to apply a discount of 25% to reflect the early pleas of guilty.

50. Considerations of parity are of particular relevance when considering Count 1, and favour an indicative sentence that is lower than the indicative sentence identified in respect of Mr Tran for the equivalent count (being 7 years 6 months, with a non-parole period of 5 years). For the reasons I have outlined above, this is a case in which a comparatively lower indicative sentence for the applicant is justified and required to reflect considerations of equal justice. At the same time, the same considerations of parity also tell against an indicative sentence which is too far below that determined in respect of Mr Tran. Otherwise there would be a risk that Mr Tran would end up with his own justifiable sense of grievance.

51. Synthesising these various considerations, and taking into account the sentencing principles in s 3A of the CSP Act and a discount of 25% from the sentence that would otherwise be appropriate, I regard the appropriate indicative sentence for the applicant for Count 1 to be 7 years, with a non-parole period for the indicative sentence of 4 years. In reaching that conclusion I have taken into account the charge on the Form 1, being dealing with proceeds of crime greater than $100,000.

52. Bringing the same considerations to bear in relation to Count 2, I would reach the same conclusion as the sentencing judge, namely that an indicative sentence of 18 months is appropriate.

53. I assess the considerations of totality and concurrency along similar lines to the sentencing judge. The supply charge (Count 2) arose from the manufacturing of the drugs in question, pointing to a degree of overlap in the factual circumstances (including as to timing) which warrants some overlap in the assessment of criminality. Like the sentencing judge, I take the view that it remains important to recognise the distinct criminality involved in each respect. A balance between those considerations has informed my assessment of the appropriate aggregate sentence.

54. The aggregate sentence that I would impose for the applicant is 8 years. I would impose a non-parole period of 4 years and 6 months. The commencement date remains that fixed by the sentencing judge, being 29 June 2022. Accordingly the aggregate sentence that I would impose would conclude on 28 June 2030. The non-parole period would also commence on 29 June 2022 and expire on 28 December 2026.

Orders

55. The orders that I would propose are:

56. Leave is granted pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) for the applicant to appeal against the sentence imposed by the District Court on him on 27 March 2024.

57. Appeal allowed.

58. The sentence imposed by the District Court on 27 March 2024 is set aside and in lieu thereof:

(a) the indicative sentence for Count 1 is 7 years (with a non-parole period for the indicative sentence of 4 years) and the indicative sentence for Count 2 is 18 months; and (b) the applicant is sentenced to a term of imprisonment of 8 years, commencing on 29 June 2022 and expiring on 28 June 2030, with a non-parole period of 4 years and 6 months commencing on 29 June 2022 and expiring on 28 December 2026.

56. McGUIRE J: I agree with Free JA.

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