Petrovski v R

The facts

1. His Honour found the facts in accordance with the statement of facts agreed between the applicant and the Crown and from other evidence given at the sentencing hearing. Grounds 1 to 4 effectively challenge the conclusions reached by the sentencing judge in reliance on the agreed statement of facts and the other evidence. Accordingly, it is necessary first to set out those agreed facts in their entirety. 1. The offenders in this matter are Vincenzo Foti (DOB: 2/2/84, 30 years old), Orhan Kalkanli (DOB: 25/6/55, 59 years old), Zeynel Pehniklioglu (DOB: 1/1/66, 48 years old), Steven Petrovski (DOB: 27/6/75, 39 years old) and Francesco Polimeni (DOB: 8/8/50, 64 years old). 2. Strike Force Avant was an investigation into the cultivation and supply of the prohibited plant cannabis by the offenders. 3. On 22 July 2014 and 22 August 2014, Petrovski was monitored under covert police surveillance meeting with the co-offenders Pehniklioglu and Kalkanli at Petrovski's Green Valley workplace. 4. Towards the end of August 2014, the offenders Pehniklioglu and Kalkanli moved into the homestead at 'Wilbertree'. Arrangements had been made for Kalkanli and Pehniklioglu to live onsite at 'Wilbertree' to prepare and look after the cultivation of the cannabis plants at the property. 5. On 5 September 2014, physical surveillance captured Petrovski travelling in a Nissan Navara utility 'CHW49Q' from his workplace at Green Valley to 'Acacia Transport', 27 Nyrang Street, Lidcombe where he entered a White Freightliner Prime Mover NSW registration 'CA97GR' with attached Taughtliner Semi Trailer registration 'X89630'. Petrovski travelled in this vehicle to the Mitre 10 hardware store, Elizabeth Drive, Kemps Creek where a large amount of equipment including poly pipe, watering cans and a green coloured wheelbarrow was placed into the semi-trailer by Petrovski, assisted by an employee of Mitre 10 driving a forklift. Petrovski then travelled in the vehicle to 355 Badgerys Creek Road, Badgerys Creek where a large number of white 'Bulka' bags filled with an unknown substance were loaded into the trailer using a forklift. 6. In the evening of 5 September 2014, Polimeni, Foti, Petrovski and another male known to the police, travelled in the prime mover and attached semi-trailer to 'Wilbertree'. 7. At about 5:00am on 6 September 2014, the truck arrived at 'Wilbertree'. A short time later conversations between Kalkanli, Pehniklioglu, Petrovski, Foti, and Polimeni were captured under the authority of Surveillance Device Warrant 14/0377. The content of these conversations related to the cultivation of a commercial amount of cannabis plants on the property at 'Wilbertree'. At about 2:30pm on 6 September 2014 Petrovski, Foti, and Polimeni left the property 'Wilbertree' in the truck and attached semi-trailer. 8. At about 9:30am on 12 September 2014 physical surveillance captured Pehniklioglu and Kalkanli travel to the Bonnyrigg Plaza, Bonnyrigg in an Isuzu Pantech truck NSW registration BZ74NU. Upon arrival at the Bonnyrigg Plaza, Pehniklioglu and Kalkanli met with Foti and a male known to the police and engaged in conversation for a short time before leaving. 9. On 16 September 2014, physical surveillance captured Pehniklioglu and Kalkanli driving a Pantech truck to Bonnyrigg Plaza, Bonnyrigg where they met with Foti. During this meeting Foti supplied Pehniklioglu and Kalkanli with an amount of food and groceries from within his fruit shop. A short time later, Pehniklioglu and Kalkanli travelled to an address at Badgerys Creek where a 'Dingo' hole digging machine was seen to be loaded into the back of the Pantech truck along with an amount of Poly Pipe. A short time after this Pehniklioglu and Kalkanli left the address and travelled back to 'Wilbertree' 10. At 8:41pm on 24 September 2014, a lawfully intercepted telephone call between Pehniklioglu and Petrovski was captured. During this phone call Petrovski asked Pehniklioglu if they were finished with the machine yet. Pehnikliolgu advised Petrovski they needed at least another week. 11. On 8 and 9 October 2014, investigators travelled to 'Wilbertree' and conducted rural surveillance under the authority of Surveillance Device Warrant 14/0377. During this surveillance a large area approximately 200m x 250m in size was located on the property at 'Wilbertree'. This area had recently been fenced off. Inside the fenced off area were a large number of rows running the length of the area. Along each row spaced approximately every metre was a hole approximately 30cm in circumference and depth. Some of these holes had been filled in with what appeared to be fertiliser and compost. A main irrigation line was located running into the area and continuing to run along the northern end of the fence line. Off this main irrigation line, smaller lines branched off and run over the top of each hole in each row. 12. At about 4:30pm on 24 November 2014 the Pantech truck travelled to an address in Wilbriggie, NSW that was the home address of Polimeni. Upon arrival at the premises a male voice was heard to say "Hey Frankie". A short time later the Pantech truck left POlIMENI's address and travelled to 'Wilbertree'. Physical and electronic surveillance shows that on this occasion Polimeni supplied a number of small cannabis plants, which were then transported to 'Wilbertree' where they were planted into the ground. 13. At about 6:45pm on 24 November 2014 physical surveillance was conducted on the cannabis crop site at 'Wilbertree'. During the period of surveillance investigators observed a large amount of poly pipe rolls and a green coloured wheelbarrow that appeared the same as the one transported by Petrovski on 6 September 2014. Investigators also noted that no cannabis plants were planted in the ground on the crop site. 14. At about 7:00am on 26 November 2014 physical surveillance was conducted on the cannabis crop site at 'Wilbertree'. During the period of surveillance investigators noted that approximately 300 cannabis plants had been planted in the ground on the crop site. 15. On 8 December 2014, Pehniklioglu and Kalkanli again travelled to the home of Polimeni in Wilbriggie, NSW in the Isuzu Pantech Truck BZ74NU where a number of small cannabis plants were supplied for the purpose of planting at 'Wilbertree'. 16. On 19 December 2014, Pehniklioglu again travelled to Polimeni's home in Wilbriggie, NSW, in his own personal vehicle where a further number of cannabis plants were obtained from Polimeni. 17. On 11 January 2015, Foti called Pehniklioglu on the 'Wilbertree' landline number. During this phone call Pehniklioglu and Foti discussed the hot weather they had been experiencing at 'Wilbertree'. Pehniklioglu mentioned to Foti that they had left it too late this year to put the 'animals' into the ground. Foti asked how the 'animals' are going, Pehniklioglu replied that out of what they have, hundreds of them are good and some are pretty weak. The term 'animals' was being used as a code to describe the cannabis plants. 18. On 12 January 2015 the Isuzu Pantech Truck BZ74NU again travelled to Polimeni's home in Wilbriggie, NSW where Polimeni then supplied a further amount of cannabis plants. These cannabis plants were then taken back to 'Wilbertree' and planted in the grounds there. 19. On 17 January 2015, Foti called Pehniklioglu on the 'Wilbertree' landline number. During this phone call Pehniklioglu and Foti discussed the 'animals' specifically how many 'animals' there were. Pehniklioglu explained that some of the 'animals' were doing well but that of the eight boxes recently brought to 'Wilbertree' only two of the boxes were any good, with the rest looking sick and highly likely to die soon. 20. On 26 January 2015, Foti called Pehniklioglu on the 'Wilbertree' landline. During this phone call Pehniklioglu and Foti discussed the cannabis crop site, specifically Foti asked Pehniklioglu how many 'sheep' he had left. Pehniklioglu provided Foti with an estimate of the number of 'sheep' on the farm and of those only a couple of hundred were healthy, with the rest being babies. This conversation related to the cannabis plants planted into the ground on the crop site at that time. 21. On 28 and 29 January 2015, investigators conducted rural surveillance on the property at 'Wilbertree' and observed a large number of cannabis plants had been planted into the ground at the cannabis crop site. During the surveillance observations were made of Kalkanli and Pehniklioglu tending to the cannabis plants. 22. On 17 February 2015, Foti received a phone call from Pehniklioglu. During the phone call, Foti and Pehniklioglu engaged in coded conversations about the health of the cannabis plants at 'Wilbertree'. Pehniklioglu told Foti that there were problems with an irrigation pump. During the conversation, Foti vented his frustration about the situation and instructed Pehniklioglu to 'pull everything out'. 23. Later on 17 February 2015, Foti called Pehniklioglu and they had another coded conversation about the cannabis plantation at 'Wilbertree'. Pehniklioglu was concerned about the plants dying, and requested soil, pumps and piping. 24. On 21 February 2015, Foti called Pehniklioglu. Foti and Pehniklioglu engaged in a coded conversation about the current cannabis plantation and their intention to plant another cannabis crop next season. 25. On 21 February 2015, Investigators conducted rural surveillance on the property at 'Wilbertree'. Police observed Kalkanli at the cannabis crop site and tending to several cannabis plants. Kalkanli was then arrested by Police on the cannabis crop site. Crime Scene Warrant 7/2015 (Dubbo) was executed on the property 'Wilbertree' resulting in a total of 801 cannabis plants being located on the cannabis crop site, with a further 15 cannabis plants at the homestead seized. 26. Kalkanli was taken to Bourke Police Station and entered into custody. Kalkanli participated in an electronically recorded interview during which he made full and frank admissions regarding his involvement as a crop sitter on the property at 'Wilbertree'. Kalkanli advised that Pehniklioglu and he were the crop sitters, and detailed the roles of the others involved. Kalkanli also made admissions to the cannabis plants being sourced from Polimeni from Polimeni's home at, Willbriggie, NSW on a number of occasions with the last occasion being on 12 January 2015. Kalkanli was responsible for the care, maintenance and physical cultivation of the cannabis plants at 'Wilbertree' and was to receive an undisclosed financial reward for his role in the operation. 27. At about 8:43am 22 February 2015, Pehniklioglu was travelling in his own vehicle, CC45KE (NSW), along Coolabah-Brewarrina Rd, Brewarrina, towards 'Wilbertree' where he was stopped by Police, placed under arrest and cautioned. Pehniklioglu declared that he had about 30 cannabis 'babies' in the boot. Police located a cardboard box wrapped in black plastic packaging inside the boot of the vehicle. Inside this cardboard box were 33 cannabis plants. A short time later Pehniklioglu was conveyed to Bourke Police Station and entered into custody, where he was informed of his rights under Part 9 of LEPRA. 28. Pehniklioglu participated in an electronically recorded interview during which he made admissions to taking part in the cultivation of cannabis at 'Wilbertree'. Part way through the interview Pehniklioglu expressed concern about his own mental health and as a result the interview was concluded and medical attention was sought for him. On 14 December 2015, Pehniklioglu participated in a further electronically recorded interview during which he provided additional information in relation to the matter. 29. On 24 February 2015, investigators attempted to arrest Foti and attended his address and place of employment, but Foti was not present at either location. While making these enquiries, investigators requested that Foti's family and associates notify him that he should contact investigators immediately. On 25 February 2015, Foti attended Parramatta Police Station in company with his solicitor. Foti was placed under arrest and cautioned in the presence of his solicitor. Foti was introduced to the Custody Manager and informed of his rights under Part 9 of LEPRA. Foti was then offered the opportunity to be interviewed, to which he declined. Foti along with Petrovski was partially responsible for the organisation and planning the operation and was to receive an undisclosed financial reward for his role in the operation. 30. On 24 February 2015, Petrovski was arrested at an address in Green Valley, NSW and taken to Green Valley Police station where he was placed under arrest and cautioned. Petrovski was afforded the opportunity to speak to his legal representative after which he declined to be interviewed in relation to the matter. Petrovski along with Foti was partially responsible for the organisation and planning the operation and was to receive an undisclosed financial reward for his role in the operation. 31. At about 11am on 24 February 2015, police executed a search warrant at Polimeni's home in Wilbriggie, NSW. Located during the search, the police located cannabis seeds and equipment suitable for use in the cultivation of cannabis. At about 1:30pm on 24 February 2015, Polimeni attended Green Valley Police Station at the request of the police and was placed under arrested and cautioned. Polimeni was afforded the opportunity to speak to his legal representative after which he declined to be interviewed in relation to the matter. Polimeni was responsible for the sourcing and supplying of the cannabis plants used in the operation and received an undisclosed financial reward for his role in the operation.
2. Mr Foti gave evidence. Relevantly for the present applicant he said that he (Mr Foti) became involved in the cultivation because he borrowed about $70,000 from the applicant. He told the applicant that he needed the money for his house but he was in fact using it to buy drugs. By that time he was using cocaine very heavily. He said that he was using it as a coping mechanism because of the stress of work and because his father had cancer at the time. Additionally, he had a car accident in September 2014 to which further reference will be made.
3. He said that he was trying to hide his drug use from his wife so he borrowed money from people including the applicant. He wanted to pay the applicant back and he became involved in the cultivation arrangement.
4. In cross-examination by Mr Dhanji SC for the applicant he gave evidence of working in the fruit and vegetable business and of co-operative arrangements he had with the applicant in relation to his business and the applicant's business.
5. He gave evidence that in about 2013 he borrowed about $10,000 from the applicant and repaid that money. At the beginning of 2014 he asked for another loan and said it was for a house he was building at the time. The amount was initially $35,000 but it extended to $60,000 or $70,000. He repaid small amounts but the debt was about $50,000 or $60,000 by the time the applicant started asking for the money to be repaid. He then gave this evidence which needs to be set out in full: Q. Did you, at that time, say something to him along the lines of "I'm doing a job in the bush and I need a hand to get your money back"? A. I sure did. Q. Was that the first he knew of any job in the bush? A. That's the first he knew it, yeah. That's the first time he knew about it. Q. And at that stage, obviously the land had been secured up near Brewarrina? A. Correct. Q. Presumably, you had Mr Penigologlu (sic), I think generally known as "Zach" up at the farm? A. Correct. Q. And also Orhan Kalkani (?)? A. Correct. Q. They were there because arrangements had been made for them, obviously, to attend the farm and to plant seedlings that were obtained, I think from Mr Polomini (sic)? A. I'm not sure where they came from. Q. In any event, you told him that to pay him back you had this job up in the bush and you needed to get that done to get the money back? A. Correct. Q. You said to him that you needed a hand with it? A. Correct. Q. And he said to you something along the lines of "You're fucking mad". Is that right? A. Yeah. That's correct. Q. He wasn't happy about it--- A. No he wasn't happy at all. But I convinced him to do it. Q. As a result of that, was it the case you were also aware that he had a heavy vehicle licence? A. Correct. Q. And you also knew that his family had a background in farming? A. Correct. Q. Was it your thinking at the time that some of that background might be of assistance to you? A. Yep. Q. In relation to that though, the connections - well you thought that he might have some connections where he could get some equipment? A. Yep, correct. Q. But it's the case, isn't it, that - certainly that - I mean the equipment was nothing special, could have been obtained from any--- A. From anywhere. Q. Similarly with transporting goods, anyone. A. That's right. Q. in any event, you've told us that you also had yourself, some further difficulties as a result of this car crash? A. Yep. Q. Is it the case that because of that car crash you became even less reliable than you were with the drug taking? A. That's right. That's why everyone started contacting Steve. Q. In other words, you weren't picking up your phone from time --- A. I wasn't picking up my phone. I - when - I went into paranoia, yeah. Q. You understood that Steve's phone number had been given to these other people --- A. I gave them the number. Q. You understood that those people were then ringing Steve --- A. That's right. Correct.

Subjective Matters

1. The applicant did not give evidence at the sentencing proceedings. Various documents were tendered on his behalf including a psychological report from Tim Watson-Munro dated 10 August 2016 and a presentence report dated 19 August 2016. There were a large number of character references from friends, family and employees, and the applicant's wife gave some short evidence.
2. The evidence disclosed that the applicant was a married man with three young children. He was the owner of the Valley Fresh fruit market in the Green Valley plaza. The evidence disclosed that he was a hard worker and a generous and considerate person. His employees spoke very highly of him.
3. The sentencing judge appeared to accept Mr Watson-Munro's diagnosis that the applicant was suffering from a broad range of symptoms indicative of a depressive illness and an anxiety disorder according to DSM-V criteria. The sentencing report indicated that he appeared to display genuine contrition for his offending. That was also the evidence of his wife and those who wrote references for him.
4. The applicant had never before been involved with drugs or used them. He had no prior criminal record.
5. The sentencing judge appeared to accept that the applicant only became involved in the cultivation because he had not been repaid the substantial amount of money he had lent to the co-offender Foti. That debt, financial problems as a result of embezzlement by a partner in the business, and his mother's cancer from which she died shortly after he was released from custody following his arrest, produced an emotional vulnerability that led to the offending.

1. His Honour erred in his appreciation of the role of the applicant in the offence and its duration.

2. His Honour erred in sentencing the applicant on the basis that he was a 'principal offender', in circumstances that the co-offender, Foti, provided evidence to the effect that it was he, Foti, who was the main and principal offender in the operation. Further, his Honour erred in sentencing the applicant on the basis that he was a 'principal offender', in the absence of any, or sufficient, evidence to support that fact.

3. His Honour failed properly to take into account how the applicant became involved in the commission of the offence.

4. His Honour failed to have adequate regard to the applicant having been recruited by Foti in circumstances where it was not open to the trial judge to conclude beyond reasonable doubt that the applicant took over the role of principal from Foti, particularly where the agreed facts merely asserted the applicant's partial responsibility and even that was for a lesser and limited period than Foti and Polimeni.

Submissions

1. Submissions were addressed to these grounds jointly.
2. The applicant submitted that the role of an offender and level of criminality is more important in determining a sentence than the quantity of drugs involved. However, for supply offences, an offender's role is not to be determined by the use of shorthand labels but rather by assessing what his or her involvement was in the steps taken to effect supply.
3. The applicant submitted that the sentencing judge formed the view that the applicant was a principal in the enterprise even though the facts upon which he was sentenced stated that he and the co-accused Foti were "partially responsible for the organisation and planning of the operation". His Honour then went on, in effect, to restrict the evidence of Foti (which his Honour accepted) by imposing a qualification that, in Foti's absence, it was the applicant who was "engaged in conducting conversations with the cultivators and doing those things which Mr Foti would previously have done". In this regard the applicant submitted that his Honour engaged in impermissible reasoning in circumstances where the evidence did not allow his Honour to make the particular finding that he did which elevated the position of the applicant in the enterprise to a level higher than what the evidence permitted.
4. The applicant submitted that his Honour's further characterisation of the applicant as a "principal or at least a very significant figure in the enterprise" was a finding not open to his Honour on the evidence.
5. The applicant submitted that his Honour's remarks about the co-accused Polimeni downgraded or reduced the role of that offender when it was not open to do so.
6. The applicant submitted that the sentencing judge contaminated his own mind by impermissibly citing and having regard to the "earlier version of the statement of facts" as well as the agreed facts in the case against Foti in circumstances where they contained distinctly different facts from those upon which the applicant was to be sentenced.
7. The applicant submitted that it was not open to his Honour to be satisfied beyond reasonable doubt that the applicant was a principal in the enterprise nor that he became significantly involved in running the enterprise.
8. The Crown submitted that the inclusion of the word "partially" (as in, "partially responsible") in the agreed facts was not inconsistent with the sentencing judge's findings that the applicant could be regarded as a principal. That is because, as explained in Hanh Thi Nguyen v R [2011] NSWCCA 92; 208 A Crim R 432 and other cases, there could be more than one principal in an operation.
9. The Crown noted that the evidence of Mr Foti, which was also relevant as to the applicant's role, was such that for about five months when he, Mr Foti, was not picking up the phone, the other members of the organisation were telephoning the applicant.
10. The Crown submitted that the sentencing judge did not sentence the applicant on the basis of a label but, as his Honour's careful reasons made clear, his Honour accepted that it was necessary to look carefully at the actual role performed by the applicant in the enterprise.
11. The Crown submitted that, contrary to the suggestion that the sentencing judge's mind was contaminated by a different statement of facts, his Honour was careful to note the amendments to the facts and the effect of those amendments on the position of the applicant, particularly by modifying the previous reference to the applicant's responsibility for organisation and planning to a reference of "partial" responsibility.
12. The Crown submitted that, in relation to the comparison made with the applicant's role against that of the co-offender Polimeni, his Honour did not downplay Mr Polimeni's role. Rather, he repeated what he had said when sentencing Mr Polimeni that Mr Polimeni had a substantial involvement in the cultivation of the cannabis and that was by way of supply of all or the bulk of the plants which were the subject of the cultivation. However, his Honour held that there was nothing in the evidence to suggest that Mr Polimeni's role approached that of the level of seniority or hierarchical significance of the roles played by Mr Foti and the applicant. Such a finding was consistent with his Honour's earlier findings concerning the co-offenders including Mr Polimeni.
13. The Crown submitted that no error was demonstrated in the sentencing judge's findings concerning the applicant's role. The finding that he was a principal offender and with a more significant role in terms of organisation or seniority than co-offenders other than Mr Foti was a finding that was well open to him on the evidence.

The sentencing judge's approach to the facts

1. The sentencing judge first dealt with the matter of labelling participants in a venture with particular role names. His Honour said in that regard: I accept that the conventional categorisation of participation in cultivation offences, while usually convenient, can sometimes be misleading and lead a court to reach the wrong conclusion about the role of an offender. I accept Mr Dhanji's submission that the Court needs to look carefully at the actual role played in the enterprise without being unduly swayed by the label which might be attached to it. As the formulation in Andreata implies, there are principals and there are babysitters, but there are people who are somewhere in between, and even within the two named categories, a particular role played by a person will vary from case to case and it is the particular circumstances of the individual case that must be analysed and evaluated by the sentencing court. His Honour's statement in that regard was consistent with what was said in R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [19].
2. His Honour then went on to deal with the various agreed statements of facts for each of the offenders and to note the changes that had been made in respect of the applicant. His Honour said: The Crown has presented a statement of facts. The statement of facts was identical in relation to the earlier three offenders but, in relation to the present offenders before the Court today, some amendments have been made. Thus, the question of the role played by each of the offenders today should be read in the light of what are alleged to be the conduct of those respective offenders in the amended statement of facts. The amendments are relatively slight though, in relation to the offender, Petrovski, the reference in the statement of facts concerning Mr Foti is not repeated. That is, the allegation in the statement of facts concerning Mr Foti was that, since about March 2014, the offenders, Petrovski and Foti, planned and prepared for a commercial cannabis cultivation on a remote rural property located near Brewarrina, New South Wales, named "Wilbertree". That allegation is omitted from the statement of facts concerning Mr Petrovski. The general allegation was made in the earlier version of the statements of facts that, in respect of each of these offenders, he was responsible for the organisation and planning of the operation and was to receive an undisclosed financial reward for his role in the operation. In respect of each of the accused, the statement of facts now asserts that that was a partial responsibility, reflecting, as I understand it, some discussions which took place in order to avoid the necessity for a contested facts hearing. Thus, the statements of facts previously relied upon in sentencing need to be read in the light of the amendments which have been made and which represent, at least to some extent, a measure of agreement as to the facts of the matter. Those facts have, in any event, been supplemented in the evidence, particularly when Mr Foti gave evidence, evidence upon which Mr Dhanji has placed some reliance on behalf of his client, Mr Petrovski. As I understand it, the approach of both counsel has been to treat the statement of facts as not being contested in each case but, rather, provided with a context by that additional evidence so that the conclusions that might be drawn from it may be qualified in the light of that additional evidence, particularly the sworn evidence of Mr Foti. Although most of the material in the statement of facts in each case is repetitive of what appears in the material tendered concerning the sentencing of other offenders, it is, I think, necessary to make some reference to the current statements of facts.
3. His Honour then commenced to summarise the agreed statement of facts. As to the applicant's first involvement in the offending his Honour commented on meetings in July and August 2014 at the applicant's workplace: What may have transpired at that meeting is by no means established in the evidence before the Court.
4. His Honour made reference to the evidence by Mr Foti and went on to say this: In that regard, it should be noted that Mr Foti had obvious interests in relation to the account which he gave, but it is one which, on the face of it, is a possible explanation for the involvement of Mr Petrovski. The abandonment of any reference to planning between the present two offenders in March 2014 from the statement offacts of Mr Petrovski rather suggests that there is no proof of earlier involvement in the enterprise than a period towards the end of August or the beginning of September 2014, on the part of Mr Petrovski.
5. After making reference to the applicant driving the prime mover to Brewarrina on 5 September his Honour said: It seems that, by 5 September, there was no doubt that the offender, Petrovski, had become involved in the arrangements for the cultivation of cannabis plants at the property at Brewarrina, the two cultivators having already moved into the homestead at Wilbertree.
6. His Honour next made reference to the telephone call between the applicant and Mr Pehniklioglu on 24 September during which the applicant asked if they were finished with the machine that had been transported to Brewarrina. His Honour noted a submission by the applicant's counsel that the discussion about the machine did not really yield any particular insight into the applicant's role because it did not suggest the applicant was asking how the task for which the machine was to be used was going but rather whether the use of the machine had concluded. That suggested, the submission asserted, that the applicant's role was not as deeply implicated in the enterprise as the Crown suggested. Of that submission his Honour said this: That is a somewhat attractive submission but it seems, in the context, that the offender, Petrovski, had been involved in the delivery of equipment to the site but not apparently including the holing machine. It is an available inference, which the Court would draw beyond reasonable doubt, that the offender, Petrovski, was aware of the purpose for which the machine had been sent to Brewarrina. He was clearly aware that it was there and that it was to be used for a purpose. In the circumstances, it is difficult to see that it was any purpose other than the cultivation of the cannabis plants.
7. His Honour then continued to summarise the facts, none of which thereafter concerned the applicant until his arrest but did show Mr Foti's continued involvement in the cultivation including his participation in telephone calls, somewhat inconsistently with the evidence he gave in answer to questions from Mr Dhanji.
8. Having discussed the cultivation in terms of its size and sophistication, his Honour said this about the applicant: So far as Mr Petrovski is concerned, his argument, in essence, is that he had lent money to Mr Foti. He discovered, in about September 2014, when there was still some $50,000 or perhaps $60,000 owing to him, that the money was effectively lost or that its return depended on the success of the cannabis plantation. That is essentially the account given by Mr Foti. As I indicated earlier, it is really a matter as to whether the Court would accept Mr Foti's evidence but, in the circumstances, it seems to me that there is no reason why the Court should reject his account of the involvement of Mr Petrovski in this enterprise with him. What it does mean, of course, is that the acceptance of Mr Foti's evidence must entail also an acceptance that Mr Petrovski understood that his best hope of getting the money back which he lent Mr Foti depended on the income or profit from the cannabis plantation. In that sense, he had a real stake in that enterprise after he had discovered what was happening and then physically involved himself in the enterprise. There is a submission that his actual physical contribution to the enterprise was somewhat limited in that he helped to deliver some of the equipment to the farm but that his contact with the enterprise was a somewhat limited one. That is a-submission which must be heavily qualified by reference to Mr Foti's evidence that he was having difficulty in focusing on his various business activities due to a motor vehicle accident, which had not left him physically injured in any serious way but which had a significant psychological impact on him to the point where it appears that he was suffering from post-traumatic stress disorder and, certainly, had features of anxiety and depression, according to the psychologist's report. His evidence was that he was finding it difficult to concentrate and to order his life, having progressed from a long term and significant usage of cannabis to an addiction to cocaine in the two or three years prior to his involvement in this offence and in the motor vehicle accident. The accident was itself associated with the loss of a significant business opportunity by way of a wedding car business. Mr Foti's evidence was that he, in effect, stepped back from the cannabis enterprise and that, by default, the co-offender, Mr Petrovski, was engaged in conducting conversations with the cultivators and doing those things which Mr Foti would previously have done. That evidence is not reflected in the statements of facts which have been tendered for this hearing in that Mr Petrovski's involvement appears to be relatively minimal after the initial delivery of the goods and, perhaps, after the inquiry about whether the machine had finished being used. However, the evidence does not disclose whether there was any other contact between the parties, other than that which appears in the agreed facts and, again, it seems to me that the Court can properly accept as reliable Mr Foti's evidence as to what happened, with this qualification, that it does seem that Mr Foti remained significantly involved in the enterprise, despite his problems about focus and concentration, but I otherwise accept that he had co-opted Mr Petrovski at a time when he was finding it difficult to cope and that, consequently, Mr Petrovski became significantly involved in the running of the enterprise. His role, I am satisfied, was one which could properly be described as that of a principal; that is to say that he was a person, albeit one of two persons, to whom the cultivators at Brewarrina looked for instructions and guidance as to the conduct of the joint criminal enterprise. He came into the matter somewhat later than its inception and so he is not a person who could be regarded as the person whose idea it was that cultivation should take place, but, once he found out that he depended on the success of that cultivation for the repayment of the substantial debt owed to him, then it is clear that Mr Petrovski became actively involved and became a significant figure in the cultivation. While labels may be misleading and perhaps not particularly useful, it would, I think, be proper to find, as I do, that M[ Petrovski was, beyond reasonable doubt, a person who could be regarded as a principal or, at least, as a very significant figure in the enterprise from at least early September 2014 and right throughto the time when the police openly arrived on the scene at the property at Brewarrina. So far as the role of Mr Foti is concerned, it was submitted that there is no evidence to support the proposition that he instigated this offence, that he had arranged any lease or ownership for the property at Brewarrina and that the silence of the evidence in those areas, and others identified by his counsel, means that the Court would be unwilling to accept that he was, in truth, a principal in this event. I find that submission difficult to accept though there is, of course, at least the theoretical possibility that there was someone further up the chain or somebody who might be described as the kingpin or the mastermind, but the evidence, in my view, very clearly establishes beyond reasonable doubt that Mr Foti was a principal in the general and unscientific sense in which that term is used in cases relating to sentencing for offences of this type. He co-opted Mr Petrovski into the venture but remained significantly active in the venture thereafter. He was not incapacitated to the point where he had to delegate or assign all of his involvement in the offence to Mr Petrovski but, rather, they appeared to be acting together in being the effective directors of the enterprise, certainly at a level senior to that of the two cultivators. (emphasis added)
9. The sentencing judge also said this about the circumstances in which the applicant became involved in the offending: Mr Petrovski, at the time of his involvement in this offence, was himself under some significant financial pressure. He has a significant and creditable work history, as does Mr Foti. He was engaged in a business where one of his employees stole a very considerable sum of money from him and he was feeling particularly upset about that as it represented a considerable intrusion on his financial security. That situation, which might properly be described as something of a crisis for him and his family, was compounded when he discovered that the money which he had lent to Mr Foti, ostensibly to assist Mr Foti in relation to a house, was, in fact, not available and in circumstances where his best opportunity for recovering the money he had lent would be through the proceeds of the cultivation which Mr Foti was undertaking. This was clearly a difficult situation or a difficult time for Mr Petrovski and may provide some explanation as to how he became involved in something which appears quite out of character for him, though the initial lending of the money is not something which appears to be out of character. He appears to have been a person with a reputation for generosity and openheartedness.

Is error shown?

1. In my opinion, it cannot be said that his Honour's determination of the role of the applicant was not a conclusion that was not open to his Honour. The agreed facts said that the applicant along with Mr Foti was "partially responsible for the organisation and planning of the operation" and said also that the applicant was to receive "an undisclosed financial reward for his role in the operation". It may be accepted that the financial reward was the repayment of the $50,000 or $60,000 that Mr Foti owed him.
2. Further, his Honour had the evidence from Mr Foti led by the applicant's counsel that when Mr Foti became less reliable and paranoid after the car accident and ceased picking up the phone, the other offenders were then ringing the applicant because his phone number had been given to them. His Honour accepted that evidence with the qualification that Mr Foti in fact remained more involved than he had said. The faint suggestion by senior counsel for the applicant at the hearing of the appeal that the co-offenders might have been ringing the applicant about fruit and vegetables should be rejected.
3. The inference that is available from that portion of Mr Foti's evidence, an inference that the sentencing judge clearly drew, was that despite there being no direct evidence in the agreed facts of precisely what the applicant was doing, he was involved in a similar capacity as Mr Foti when Mr Foti was in fact answering the phone and dealing with the matters from the other offenders. That evidence lends support to the statement in the agreed facts that the applicant was partially responsible for the organisation and planning of the operation.
4. Although his Honour was careful not simply to affix a label to each of the participants, but to examine what each actually did, some guidance as to what constitutes a principal in the context of an offence of cultivation of a commercial quantity or a large commercial quantity of cannabis is provided by Simpson J (as her Honour then was, and with whom I agreed) in Hanh Thi Nguyen at [4]: There was, in my opinion, no proper basis for the finding that the applicant was a principal. "Principal" is an expression that is commonly used in sentencing in respect of drug offenders, but may not have a commonly accepted or applied meaning. In my opinion, the indicator of the role of an offender as "principal" involves at least some of the following characteristics: * contributing financially to the cost of setting up the operation; * standing to share in the profit (as distinct from receiving payment); * having some hand in the management of the operation (although it is well recognised that principals will, so far as possible, distance themselves from the day to day operation, they nevertheless maintain considerable control over the enterprise); * having some decision making role (which may not be different from the item above). * This does not purport to be anything like an exhaustive list. There may well be other features that indicate that an offender ought to be characterised as a principal.
5. In my opinion, the sentencing judge was not distracted by labelling the roles of the various participants and his use of the term "principal" was, as his Honour explained, a shorthand for a person (one of two) to whom the cultivators at Brewarrina looked for instructions and guidance as to the conduct of the enterprise.
6. The matters challenged in grounds 1 to 4 are essentially factual findings which the sentencing judge made. For a successful challenge to be made to such factual findings a House v The King (1936) 55 CLR 499 error must be shown. The problem is particularly highlighted in relation to grounds 3 and 4 where the complaint is that his Honour "failed properly to take into account" and "failed to have adequate regard" to particular matters. In Zhao v R [2016] NSWCCA 179 N Adams J (with whom Hoeben CJ at CL and Button J agreed) said: [59] This Court is a court of error. It is not sufficient, in order to establish a basis for the intervention of this Court, for an applicant to assert that a sentencing judge gave insufficient weight to one factor or another: Bullock v R [2016] NSWCCA 131 at [65]; Bland v R [2014] NSWCCA 82; 241 A Crim R 51 at 66 [112]-[113]; R v Kennedy [2016] NSWCCA 123. To impugn the exercise of the sentencing discretion, the applicant is required to demonstrate error of the type in House v The King. As Gleeson CJ, Gummow and Callinan JJ observed in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]: "Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of a sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as 'manifest excess', or in a prosecution appeal, as 'manifest inadequacy.'"
7. The sentencing judge carefully considered the agreed facts in the context of Mr Foti's evidence. In the applicant's favour, his Honour did not entirely accept Mr Foti's evidence that he left all of the oversight of the arrangement to the applicant.
8. Further, his Honour was careful to note the amendments made to the agreed facts, and the differences in those facts pertaining to each of the offenders. Far from his Honour's mind being "contaminated" by the earlier version of the facts, his sentencing remarks make clear that he perceived and appreciated the changes that had been made in a manner that benefited the applicant.
9. No House v The King error is shown in relation to the asserted failures of the sentencing judge in grounds 1 to 4. Nor is it the case that there was no evidence upon which the sentencing judge could have concluded that the applicant was a principal, in the way his Honour described that position, within the group of co-offenders involved in the cultivation.
10. I would reject these grounds.

Ground 6: His Honour erred in assessing the sophistication and scale of the cultivation and thus the gravity of the offence.

Submissions

1. The applicant submitted that the finding that the relevant operation was sophisticated in nature was an error. The applicant submitted that the evidence generally coupled with the poor quality of the cannabis plants where the majority that were seized were wilted and suffering from heat stress showed the amateur nature of the operation. These matters pointed to a finding that the operation was no more than an unprofessional, incompetent, poorly organised and unsophisticated setup, very much limited in its scope. The applicant referred to cases which were said to involve sophisticated operations that were reflected in the sentences imposed such as R v Clarke [2014] NSWDC 35 (2000 plants) and R v Green; R v Quinn [2010] NSWCCA 313 (1354 plants).
2. The Crown submitted that the assessment of objective seriousness is classically within the role of the sentencing judge: Mulato v R [2006] NSWCCA 282. The Crown submitted that, while the ultimate outcome of the crop may not have been as successful as was intended, that outcome was apparently principally due to the effect of the hot weather on the young plants.
3. The Crown drew attention, however, to the evidence of what the scheme involved, including the size of the area, that the area was fenced off, that there were a large number of rows in which the holing machine had been used to prepare holes for the plants, that fertiliser and compost were used, that there was a main irrigation line and subsidiary lines, that two men were the crop sitters and appeared to have been on site for a six month period and that the value of the crop at about $800,000 did not reflect the much higher potential value according to the evidence of Detective Senior Constable Nathan Green.

Consideration

1. His Honour said the following in the ROS: On 8 and 9 October the police conducted surveillance under a surveillance device warrant and discovered a large area about 200 x 250 metres in size on the property. It had been recently fenced off and inside the fenced off area were a large number of rows running the length of the area. Along each row, spaced approximately every metre, was a hole about 30 centimetres in circumference and depth. Some had been filled in with what appeared to be fertilizer and compost. The main irrigation line was located running into the area and continuing to run along the northern end of the fence line Off the main irrigation line, smaller lines branched off and ran over the top of each hole in each row. … Clearly, this involved considerable work and planning, the acquisition of equipment for irrigation and cultivation, the acquisition of plants and the provision of that material and its transport to the fairly remote property on which the cultivation was to take place. In that sense, this was a planned and fairly relatively sophisticated operation. On the other hand, when it comes to the quality of that enterprise, it is clear from what has been recited so far from the statements of facts that those involved in the enterprise were having some difficulty in obtaining a useful crop, to the point where it was suggested at one stage that the crop might need to be, in effect, abandoned and the whole enterprise left to the next growing season.
2. His Honour then made reference to the evidence of Senior Constable Green of the drug squad. Senior Constable Green had significant experience in the investigation of offences concerning the cultivation of cannabis plants. His Honour quoted from the police officer's statement where the officer placed an estimate on the value of the crop of $801,000.
3. His Honour then commented as follows: In relation to that issue, I observed in the earlier sentencing proceedings that the valuation given by Detective Senior Constable Green, undoubtedly based on his experience generally and his knowledge of these plants, should be regarded as being at the optimistic end of the range for value. It is appropriate, I think, to treat this.as being a large scale, but ultimately failed, cannabis cultivation. Nonetheless, it is clear that failure on this occasion was not likely to deter Mr Foti, at least, from deciding to revive the plan for the next growing season and, in any event, despite the poor quality of the plants, they certainly had some substantial value. Whether it was $801,000 or some lesser figure is perhaps beside the point. It still had some value and all steps had been taken to try and ensure that the plants would grow and thus provide at least an opportunity, should their growth be successful, for plants to yield between a quarter of a pound and three pounds of head, where one pound of outdoor cannabis head is usually valued at $3,000 to $4,000. Ultimately, had this been a successful cultivation, or a more successful cultivation, then the prospect of a very substantial financial reward would have come to fruition. Thus, although ultimately not a particularly successful cultivation, the effort and planning which had gone into it and the steps taken during the course of the cultivation to seek to make it successful would mean that this was a significant instance of an offence of the cultivation of a commercial quantity of cannabis plants. That much is inherent in any event in the number of plants, which are particularised at 801, a very substantial inroad into the range of plants which constitute a commercial quantity under the legislation. In other words - and this is an observation which really applies to all of those who have been caught up in this enterprise - it was a substantial, though ultimately less than wholly successful, cultivation which, on that score alone, would point to the need for general deterrence and a substantial punishment for those involved in it.
4. His Honour's conclusions can be summarised by saying that he found it was "a planned and fairly relatively sophisticated operation", that it was a "large scale, but ultimately failed, cannabis cultivation" and that it was "a significant instance of an offence of the cultivation of a commercial quantity of cannabis plants". Those conclusions involved a fact finding exercise and an evaluative judgment which, as Mulato makes clear, is classically within the role of the sentencing judge. In the same way, Harrison J (Payne JA and Schmidt J agreeing) said in Alkanaan v Regina [2017] NSWCCA 56 at [57]: It is of course not sufficient for an appellant merely to assert what a sentencing judge should have found. It is trite to observe that views may vary even upon the same facts. A successful challenge to a finding of objective seriousness requires that error be established. House v The King (1936) 55 CLR 499; [1936] HCA 40 describes the types of error that will suffice. The assessment of the objective seriousness of an offence is definitively evaluative, so that differing outcomes within a range of acceptable tolerances is permissible.
5. No House v The King error has been demonstrated. There was ample material upon which the sentencing judge could have drawn the conclusions he did and assessed the enterprise as a significant instance of the offence. Of some significance is the fact that there were 801 plants, more than three times the threshold for a commercial quantity of the drug. Even in its badly affected state as a result of heat and other matters the cultivation was worth many hundreds of thousands of dollars. When this is coupled with the preparation and extent of the cultivation as evidenced by the surveillance, the conclusion of the sentencing judge that this was a significant instance of the offence was amply justified.
6. I would reject this ground.

Ground 5: The applicant has a legitimate sense of grievance in the light of the sentence imposed upon the co-offenders Polimeni and Foti

Submissions

1. The written submissions on behalf of the applicant dealt only with the sentence imposed on Mr Polimeni. However, senior counsel for the applicant said that the parity ground was pursued in respect of Mr Foti also. In that regard oral submissions were made.
2. Mr Polimeni was charged with the same two offences as those with which the applicant was charged.
3. As noted earlier, the sentencing judge determined the sentence he proposed for Mr Polimeni on 7 October 2016. His Honour proposed to impose a sentence of 21 months' imprisonment, and he adjourned the sentencing proceedings so that an Intensive Corrections Order assessment could be carried out.
4. On 2 December 2016, having received an assessment enabling the imposition of an ICO, his Honour sentenced Mr Polimeni on the principal charge to a term of imprisonment for 21 months to be served by way of an Intensive Corrections Order. In relation to the charge on the s 166 certificate, his Honour sentenced Mr Polimeni to nine months imprisonment commencing on 2 December 2016 and suspended that sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) upon Mr Polimeni entering into a bond for that nine month period to be of good behaviour. That sentence was wholly concurrent with the ICO.
5. The applicant submitted that his justifiable sense of grievance arises from the following matters: (a) It was Mr Polimeni who provided the enterprise with the plants; (b) In sentencing Mr Polimeni his Honour found that Mr Polimeni had a "substantial involvement in the cultivation of cannabis"; (c) Mr Polimeni had at the time of sentencing a previous conviction for cultivating less than a commercial quantity of cannabis plants for which he received a suspended 12 month sentence.
6. The applicant also pointed to what was said to be his limited role in the cultivation. The applicant accepted that, although Mr Polimeni performed acts different from those performed by the applicant, that did not mean that Mr Polimeni's criminality was less than the applicant's. The applicant submitted that a provision of some 801 cannabis plants was arguably more serious criminal conduct than the hire and delivery of machinery and the answering of a number of phone calls from other co-offenders.
7. The applicant submitted that where he was described as a principal of the enterprise, the starting point for the sentence ought to have been the same as that adopted for Mr Polimeni. The applicant submitted that his involvement was less in gravity and seriousness than that of Mr Polimeni. He submitted that, having regard to the sentencing judge's findings, the sentence imposed exceeded that which was reasonably proportionate and, in that way, was manifestly excessive.
8. The Crown submitted that different sentences between the co-offenders in the present case were reasonably explained by the degree of differences between the offenders and their offending, and the applicant could have no justifiable sense of grievance. Reference was made to what Rothman J said in Miles v R [2017] NSWCCA 266 at [40].
9. The Crown submitted that the sentencing judge was plainly conscious of the parity principle and addressed it in his sentencing judgment. His Honour had sentenced two of the offenders and was aware of the sentence imposed on the third.
10. The Crown submitted that the applicant's submission concerning parity was said to arise from the error of the sentencing judge in finding that the applicant's role was objectively more serious than that of Mr Polimeni. The Crown also pointed to the subjective differences between Mr Polimeni and the applicant to which his Honour had regard.

Consideration

1. When sentencing Mr Polimeni, his Honour noted that he was responsible for the sourcing and supplying of the cannabis plants used in the operation and that Mr Polimeni received an undisclosed financial reward for his role in the operation. His Honour said that Mr Polimeni would not ordinarily be regarded as a principal, with his role apparently limited simply to the provision of the plants.
2. His Honour noted that Mr Polimeni was 66 years old but he was not before the Court as a first offender. He had been sentenced on 30 March 2005 in Griffith Local Court for cultivating less than a commercial quantity of cannabis plants and sentenced to seven months' imprisonment, suspended under s 12.
3. His Honour noted the substantial body of character evidence put forward for Mr Polimeni. His Honour accepted that Mr Polimeni had expressed genuine remorse and thought that he had very good prospects of rehabilitation.
4. His Honour referred to Mr Polimeni's health problems and also to some serious health issues that Mrs Polimeni had because of the financial pressures under which they were living. His Honour found that his previous offending and the present offending came about through indebtedness. His Honour had regard to the period of two and a half months that Mr Polimeni had spent in custody before he was granted bail. His Honour found that Mr Polimeni had a substantial involvement in the cultivation.
5. Having particular regard to the time he had spent in custody, his age, health and prospects of rehabilitation, and to the fact that there would be a finding of special circumstances which would mean a significantly lower proportion than 75% would be required to be served in custody, his Honour considered that a sentence of 21 months imprisonment was appropriate. His Honour then considered whether the sentence should appropriately be served by other than full-time custody and adjourned the proceedings to enable Mr Polimeni to be assessed for suitability for an Intensive Corrections Order.
6. In the sentencing remarks concerning the applicant his Honour summarised the matters which I have set out above in relation to Mr Polimeni including his role in the offending. His Honour made reference to the other co-offenders who had been sentenced and to the different penalties imposed. His Honour said: Those differing results are reflective of the differing personal circumstances of each of the offenders, together with consideration of the periods with (sic) each of them had spent in custody and an appropriate evaluation of their particular criminal histories.
7. The principles applicable to the determination of a ground asserting a justifiable sense of grievance by reason of disparity of sentence between co-offenders were recently summarised by Beech-Jones J (Payne JA and Fagan J agreeing) in Wan v R [2017] NSWCCA 261: [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 v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan and Kiefel JJ, "Green"). [40] Two aspects of the parity principle are of relevance to this application. First, the principle is not just concerned with identical outcomes in cases that "are relevantly identical". It also seeks "different outcomes in cases that are different in some relevant respect" (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at 608 per Gaudron, Gummow and Hayne JJ, "Wong"). Thus, in this case, the applicant accepts that his overall sentence was not materially different from that imposed on Choy but contends that his circumstances were relevantly different to those of Choy. [41] Second, the application of the parity principle is not excluded by the circumstance that participants in a criminal enterprise are charged with different offences. The application of the principle is governed "by considerations of substance rather than form" (Green at [30]). Nevertheless, the "greater the differences between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the [applicant]" (Green at [30]). These "practical difficulties" can be compounded in a case such as this where the two offenders are sentenced under two different statutory regimes, namely the Crimes Act 1914 in the case of Choy and the Sentencing Act in the case of the applicant. [42] In DS v R [2014] NSWCCA 267 at [39] the Court (Bathurst CJ, Fullerton and Davies JJ) described the approach to be adopted as follows: "The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender or co-offenders, is to be assessed objectively governed by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders is disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and in an offender's subjective circumstances. There are necessarily degrees of both similarity and difference in the criminal conduct of co-offenders and in their subjective circumstances. In some cases this requires that different sentences be imposed. However, it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending that the disparity is such that appellate intervention is required. For there to be a justifiable sense of grievance, the disparity must be 'gross', 'marked' or 'glaring'….."
8. In Gill v R [2010] NSWCCA 236 McColl JA (with whom RS Hulme and Latham JJ agreed) said: [58] Finally, it should be understood that considerable obstacles are faced by an applicant seeking to invoke the parity principle in circumstances where the sentencing judge was fully aware of sentences imposed upon a co-offender, and the reasons for those sentences, and indicates in the sentencing remarks why the judge is departing from the co-offender's sentences: Tatana (at [28]).
9. Similar remarks have been made in Loader v R; Dunn v R [2013] NSWCCA 215 at [91]-[96] where the authorities are gathered, in Lam v R [2014] NSWCCA 50 at [42], and more recently in Burrows v R [2017] NSWCCA 45 at [67].
10. A number of the applicant's submissions in relation to parity with Mr Polimeni proceed on the basis that the sentencing judge incorrectly characterised the applicant's role in the cultivation. For reasons already given, I consider that the grounds concerned with that issue should be rejected. The question of parity must be considered here, as elsewhere, on the basis that no other error is shown in the sentencing process.
11. Although the judge found that Mr Polimeni's role was substantial his Honour did not characterise him as he did the applicant, nor indeed as the agreed facts characterised the applicant's role as being partially responsible for the organisation and planning of the operation. Moreover, the sentencing judge carefully considered the subjective matters relating to each of Mr Polimeni and the applicant. How all of those matters manifested themselves in the ultimate sentences imposed was a matter for the assessment and discretion of the sentencing judge.
12. The applicant, who was characterised as a principal, in the manner explained by his Honour, received an overall sentence of two years and six months with a non-parole period of 18 months. Mr Polimeni received an overall sentence of 21 months. Given the differing roles found and the differing subjective features there is not a marked discrepancy between those sentences. The fact that Mr Polimeni was able to serve his sentence by an Intensive Corrections Order is of no great significance where such a consideration for the applicant was not available by reason of the sentence which the judge determined should be imposed. That is consistent with the way sentencing ought to proceed, namely, the length of the sentence is first to be determined and only after that is done is consideration to be given to how that sentence is to be served.
13. It is not sufficient for the applicant to identify particular matters of similarity or difference between the two offenders because these are ultimately matters for assessment by the sentencing judge. A reading of the ROS shows that his Honour considered all of those matters and the issue of parity amongst all of the offenders.

Submissions

1. The applicant's submissions concerning Mr Foti concentrated on a comparison of his role with that of the applicant. The applicant submitted that the evidence disclosed that, despite Mr Foti's evidence that he was not contactable for a period of some months after his car accident, telephone intercepts and other material showed that he continued to be involved in the enterprise and to give instructions. The applicant submitted that, if one only accepted what the sentencing judge found which was that the applicant came in at the later stage in September, Mr Foti had been planning and organising the cultivation since March on his own agreed facts, he had put the money in, he found the property and he had established the crop sitters. In that way, it was submitted, his role was more significant than that of the applicant. The applicant submitted that despite all of this Mr Foti's non-parole period was only three months longer than that imposed on the applicant.
2. The applicant also drew attention to the sentence imposed on Mr Foti on 6 December 2016 for offences committed by him after he had been arrested for the present offending and was on bail. For offences of destroy or damage property and two counts of stalk or intimidate he was given a 12 month s 9 bond. The applicant submitted that as his custody commenced on 25 February 2017 the period of the bond was almost concurrent with the sentence imposed for the present offending.

Consideration

1. Mr Foti was sentenced at the same time as the applicant. He was sentenced to an overall term of imprisonment of three years comprising a non-parole period of 21 months. In respect of the charge on the s 166 certificate he was sentenced to a fixed term of imprisonment that was entirely concurrent with the other sentence.
2. As noted earlier at [41], his Honour did not accept Mr Foti's evidence that he withdrew entirely from the arrangement for a four to five month period leaving the running to the applicant. However, the applicant principally relied for his parity submissions with Mr Foti on what was said to be the clear distinction between their roles. It may be accepted that Mr Foti's involvement predated that of the applicant and also that Mr Foti was effectively responsible for the applicant becoming involved in the offending. Nevertheless, for the reasons I have given when dealing with grounds 1-4, his Honour was not in error in finding that the applicant had a significant role in the cultivation from the time he became involved.
3. Further, his Honour sentenced Mr Foti, as I have noted, at the same time as he sentenced the applicant. His Honour carefully considered their respective roles in the organisation as well as their subjective circumstances. What was said in Gill and similar cases mentioned at [76] and [77] above point to the difficulty in the applicant demonstrating a justifiable grievance in the present case. There is no marked or unjustified disparity between the sentences imposed on the applicant and Mr Foti.
4. Further, when the maximum penalty for the principal offence, the extent of the cultivation and the role played by the applicant are taken into account, even if a justifiable grievance been demonstrated, I consider that any lesser sentence than that imposed would not have been within the range of appropriate sentences: Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 at [33].
5. I would reject this ground of appeal.

Conclusion

1. I propose the following orders: (1) Extend time for the filing of the Notice of Application for Leave to Appeal to 23 November 2017. (2) Grant leave to appeal. (3) Dismiss the appeal.
2. ADAMSON J: I agree with Davies J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2017