Postiglione v The Queen

The application of the totality and parity principles to this case

In my opinion, the disparity between the sentences imposed on the appellant and Savvas is justifiable because of the different custodial situations of the appellant and Savvas as at the dates of sentencing and because of the application of the totality principle.

The appellant and Savvas came before their respective sentencing judges with different custodial positions. Only the second or "due discrimination" limb of the parity principle could apply to them. Different histories make it impossible for co-offenders to receive equal sentences, as Doyle CJ recently pointed out in the Court of Criminal Appeal of South Australia [41] :

I do not understand the principles stated by the High Court in Lowe v The Queen [42] to require a reduction in a sentence when the disparity between it and a sentence imposed upon a co-offender is justified by significant differences in their antecedents. As I understand the principle it applies when, although the higher sentence cannot on its face be said to be erroneous or excessive, there is no identifiable factor in the sentencing process which objectively assessed supports the different approach. If there are factors which support different treatment then, to use expressions in the authorities, there can be no justifiable sense of grievance on the part of the offender who receives the heavier sentence, no appearance of unfairness to the community. 1. R v Cox (1996) 66 SASR 152 at 159. 2. (1984) 154 CLR 606.

The application of the totality principle to Savvas also meant that his non-parole period would differ significantly from that of the appellant. Where the totality principle has application to persons with different histories or culpability, due discrimination may require a large nominal disparity in their respective sentences or non-parole periods. That is the case here. If, for example, the sentence imposed on Savvas had not commenced until 23 August 2006 when his then current non-parole period expired, there would have been no disparity between the sentences of the two men. But if Savvas's current and new sentences had been structured in that way, their total effect would have imposed a crushing burden on Savvas which Grove J thought could not be justified having regard to Savvas's total criminality.

The difference in the effective increases in the non-parole periods was therefore directly attributable to the correct application of the totality principle to two quite different sets of circumstances. Each sentence, viewed in isolation from the other, was an appropriate sentence. Each sentence had the objective of imposing an aggregate period of imprisonment that would properly reflect the totality of the criminal conduct of the offender after taking into account not only the criminal record of the offender but also his current sentence. It is true that Savvas effectively received a lighter sentence for the conspiracies than the appellant. But given the period of his current sentence that he still had to serve, his aggregate sentence simply reflected the just and appropriate measure of his total criminality. Similarly, given the period of the appellant's current sentence that he still had to serve, his aggregate sentence reflected the just and appropriate measure of his total criminality [43] . Each prisoner therefore received parity of treatment although their different histories produced significantly different results.

1. Indeed, there is something to be said for the conclusion that the appellant received a lighter sentence than he should have because of an overly favourable application of the totality principle by Mathews J. In applying that principle, her Honour appears to have given consideration not only to the present offences and the offence for which the appellant was sentenced in March 1987, but also to the Italian offence for which the appellant was still liable to serve the unexpired portion of his sentence. It is not clear from the judgment of Mathews J whether her Honour regarded the Italian sentence as merely a factor contributing to a reduction in the sentences before the totality principle came into play, or whether she regarded it as conduct to which that principle applied.

Although her Honour was entitled to take the Italian sentence into account as a mitigating factor, whether under s 16A(2) of the Act or otherwise, she was not entitled to take it into account under the totality principle recognised by s 16B of the Act. The totality principle to which s 16B refers is confined to sentences imposed for federal, State or Territory offences. Nor was her Honour entitled to take the Italian sentence into account under the totality principle as formulated by this Court in Mill (1988) 166 CLR 59 or the recent extension of that principle evident from the decisions of the Court of Criminal Appeal.

To some extent the difference in the effective increases in the two non-parole periods is also the product of each judge taking a different view on the evidence before them as to the extent of Savvas's role in the conspiracies. If Grove J had accepted that Savvas was the chief conspirator, he would almost certainly have given Savvas a higher sentence and longer non-parole period and thereby reduced the disparity in the non-parole periods of the two men. On the material before this Court, it is impossible to say whether Grove J or Mathews J reached the correct conclusion concerning Savvas's guilt.

Thus, the difference in the sentences between the appellant and Savvas is explicable by reference to identifiable factors in the sentencing process which objectively support the different approaches in the two cases. That being so, no error necessarily occurred because the appellant's non-parole period was longer than that of Savvas.

Parity between sentences imposed on co-offenders is an important sentencing goal. But a disparity between sentences will not give rise to a "justifiable sense of grievance" [44] where the disparity can be explained on the basis of different antecedents and/or an application of the totality principle. It follows that the Court of Criminal Appeal was correct in holding that there had been no breach of the parity principle.

I agree with the conclusion of Gummow J that the discount given for the appellant's co-operation with the authorities does not constitute such a gross violation of sentencing principles as to warrant the intervention of this Court.

In their judgment, Dawson and Gaudron JJ refer to two procedural difficulties which arise in the appeal. First, there is an inconsistency between the orders proposed in the reasons of Badgery-Parker J in the Court of Criminal Appeal and the formal record of those orders. Although Badgery-Parker J purported to grant leave to appeal and to dismiss an appeal against sentence, the formal order indicates a grant of leave to appeal and the dismissal of an appeal against conviction. Second, the competency of the Court of Criminal Appeal to hear the second appeal is called into question by uncertainty as to whether the first order of the Court of Criminal Appeal was perfected. If the first order was perfected, the appeal against sentence had already been conclusively determined on its merits by the first appeal. In that event, the Criminal Appeal Act 1912 NSW does not permit the Court of Criminal Appeal to conduct a further appeal [45] .

As I have reached the same conclusion on the merits of the appeal as Gummow J, I propose to adopt his approach to the resolution of these procedural uncertainties. Although I am of the view that the appeal should be dismissed on its merits, the procedural difficulties require that the appeal should be allowed and the matter remitted to the Court of Criminal Appeal so that that Court can take such steps as are available to it to give effect to these reasons for judgment.

The appellant appeals by special leave against the rejection by the New South Wales Court of Criminal Appeal of his appeal against sentence. He seeks an order that he be re-sentenced.

On 12 March 1993, the appellant, Mario Postiglione, pleaded guilty before a magistrate to two counts of conspiring, between 1 January and 11 September 1991 and 1 January and 3 May 1991 respectively, to import narcotic goods into Australia contrary to s 233B of the Customs Act 1901 Cth. In each of the two conspiracies, the appellant's co-conspirators included George Savvas. The magistrate committed the appellant to the Supreme Court of New South Wales to be dealt with pursuant to s 51A of the Justices Act 1902 NSW.

The appellant was sentenced by Mathews J on 7 May 1993 in the Supreme Court at Wollongong. As both of the offences with which he had been charged were federal offences, the appellant was sentenced in accordance with the provisions of Pt 1B (ss 16-22A) of the Crimes Act 1914 Cth.

At the time of sentencing, the appellant had undertaken to co-operate with the authorities by giving evidence against his co-conspirators. The appellant complied with that undertaking and eventually gave evidence at the trial of his co-offenders, including Savvas. In accordance with s 21E of the Crimes Act, Mathews J specified that on account of the appellant's co-operation with law enforcement agencies it was appropriate to reduce both the head sentence and the non-parole period by three years [6] . On the first count, Mathews J imposed a sentence of eighteen years with a non-parole period of thirteen years, ten months from 7 May 1993, the date on which the appellant was sentenced. The sentence in relation to the second count was imprisonment for ten years, to be served entirely concurrently with the other sentence.

1. Section 16A(2) lists a number of factors which, if relevant, a court must take into account in determining the sentence to be passed. One such factor is "the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences" (par (h)).

Mathews J took into account the appellant's custodial history in determining the appropriate sentence. The appellant was born in Rome in 1942, came to Australia in 1961, and returned to Italy in 1979 after re-acquiring Italian citizenship. In December 1980, the appellant was sentenced in Italy to twelve years imprisonment for drug trafficking and conspiracy to traffic in drugs. After an appeal had been dismissed on 5 March 1983, the appellant lodged a further appeal. Because the matter was not disposed of within a certain period, as required by Italian law, the appellant was provisionally released on 29 September 1984. In breach of a requirement that he remain in Italy, the appellant obtained an Australian passport on 19 November 1984 and arrived in Australia on 15 December 1984. On 23 October 1986, the Italian court in Rome rejected his appeal [7] . The appellant is now required to serve a further five years, four months, two days in Italy and is the subject of a warrant for arrest issued on 12 December 1986 by the General Public Prosecutor's Office of Rome. Mathews J proceeded on the assumption that, when released on parole, the appellant would be liable to be deported to Italy to serve the balance of his Italian sentence.

At the time he was sentenced by Mathews J, the appellant was already serving a term of imprisonment in New South Wales. This was consequent upon his conviction in 1988 [8] on a single count in an indictment charging him with being knowingly concerned in the importation into Australia of a commercial quantity of heroin. The appellant pleaded guilty and was sentenced by Roden J. Savvas was not implicated in those events. Roden J sentenced the appellant to life imprisonment. On 25 November 1991, the New South Wales Court of Criminal Appeal (Handley JA, Grove and Newman JJ) allowed an appeal [9] and reduced the life sentence to one of twelve years with a non-parole period of nine years. The appellant was due for release on parole on 8 March 1996 in respect of that sentence. Therefore, at the time of his sentencing by Mathews J on 7 May 1993, the appellant had two years, ten months to serve in respect of the non-parole period fixed for the earlier sentence. The result of the sentence imposed by Mathews J was to add eleven years to the appellant's non-parole period and twelve years, two months to the head sentence.

1. R v Postiglione (1991) 24 NSWLR 584 at 587. 2. R v Postiglione (1991) 24 NSWLR 584.

On 17 June 1994, Savvas was sentenced in the Supreme Court of New South Wales (Grove J) in respect of the conspiracies to which the appellant had been a party. At the time of sentence, Savvas was serving an earlier sentence of twenty-five years imposed by the Supreme Court (Hunt J), with a non-parole period of eighteen years. The convictions were for conspiracy to import heroin and conspiracy to supply heroin, the first being a federal and the second a State offence [10] . The appellant was not involved in either of these offences. Savvas still had twelve years, two months of that sentence to serve before he would be eligible to be released on parole. Grove J imposed a new sentence of twenty-five years in respect of each count, with a non-parole period of eighteen years to commence on the date of sentence. Savvas' sentences and non-parole periods were to be served concurrently. The effect of that sentence was to extend by five years, ten months the term which Savvas would serve in prison before being eligible for release on parole. As I have outlined above, this compares with an effective increase in the non-parole period of eleven years for the appellant.

1. An appeal against conviction was dismissed by the Court of Criminal Appeal on 25 June 1991 (R v Savvas (1991) 55 A Crim R 241). An appeal against sentence was dismissed on 16 December 1991 (R v Savvas [No 2] (1991) 58 A Crim R 174) and this Court dismissed an appeal on 1 June 1995 (Savvas v The Queen (1995) 183 CLR 1).

It is the apparent disparity between the effective increase in the non-parole periods in the sentences of the appellant and Savvas imposed by Mathews J and Grove J respectively that gives rise to the present appeal. The appellant complains that he has a "legitimate sense of grievance" as a result of the sentence imposed on his co-offender, Savvas. He submits that, even if it is not appropriate to compare the differences in the amounts by which their respective non-parole periods were increased, "the totality of criminality of the co-offender Savvas (looking at the two offences in combination) is manifestly much greater than that of the appellant and yet their respective total Australian sentences are" non-parole periods of twenty-three years, ten months for Savvas and twenty years for the appellant. It is therefore said that the Court of Criminal Appeal erred in its application of the principles of totality and parity.

The Crown adheres in this Court to a concession made in the Court of Criminal Appeal that there is a disparity between the sentences of Savvas and the appellant sufficient to give rise to a "legitimate and justifiable sense of grievance" on the appellant's part. The Crown also reiterated its concern that the discount allowed by Mathews J for the appellant's co-operation with the authorities was inadequate in the circumstances. The Crown "concedes" that it is open to the Court "to intervene in the interests of the administration of justice generally and in this particular case". However, particular caution is required of a court in such a situation [11] .

1. See R v Gallagher (1991) 23 NSWLR 220 at 232-233.

In considering the question of disparity between the sentences of the appellant and Savvas, it is appropriate to consider the findings of the sentencing judges as to the relative culpability of the two offenders. Mathews J considered the respective roles of the appellant and Savvas in the conspiracies when determining the appropriate sentence to impose on the appellant. Her Honour stated that:

[The appellant], although deeply involved in each of these conspiracies, was not the prime mover. It is clearly Savvas who was calling the shots in relation to both of them. Savvas also had the Customs contacts which were essential for the successful implementation of the schemes. A diagrammatic chart depicting this conspiracy in pyramid form would clearly show Savvas at its pinnacle.

The [appellant], however, would be not far below. His role was a pivotal one.

In sentencing Savvas, Grove J dealt with that issue as follows: I have already mentioned the Crown assertion of Savvas' principal role. It is to be compared or contrasted with that of [the appellant] I have considerable suspicion which I believe to be well founded that the Crown contention is correct, however on application of the necessary standard of proof I find that Savvas and [the appellant] were both principals with different but generally equivalent culpability in respect of both matters. Later in his judgment, Grove J said: I do not overlook that the extension of non parole period amounts to about six years, whereas [the appellant] - whose merit on balance I consider exceeds yours - was extended by eleven years. Nevertheless I do not think I should impose a disproportionately high sentence on you to assuage any grievance which may - I repeat, may - be engendered in [the appellant]. I express no opinion on whether, if he does come to harbour such a grievance, it would be justifiable.

Following his sentencing on 7 May 1993, the appellant appealed to the Court of Criminal Appeal (Finlay and Abadee JJ, Loveday AJ) against sentences imposed by Mathews J. Judgment was delivered on 13 December 1993. As the appeal was against sentence, leave was required by s 5(1)(c) of the Criminal Appeal Act 1912 NSW. Leave to appeal was granted but the appeal was dismissed. However, as Dawson and Gaudron JJ explain in their reasons for judgment, it is not clear whether the order granting leave but dismissing the appeal was perfected. Abadee J, with whom Finlay J and Loveday AJ agreed, concluded that the sentence imposed was appropriate in the circumstances. This decision was given before Savvas had been sentenced by Grove J. The situation which has given rise to the appellant's complaint of disparity may have been avoided, or the cause of complaint diminished, if the Court of Criminal Appeal had not proceeded to dispose entirely of the matter forthwith and instead had stood over, as part heard, the application for leave to appeal against sentence until Savvas had been sentenced and any application by Savvas for leave to appeal in respect of that sentence also was before the Court.

In the event, after Savvas had been sentenced by Grove J, the appellant again sought leave to appeal to the Court of Criminal Appeal (McInerney, Badgery-Parker and Dowd JJ) against the sentence imposed by Mathews J. Judgment was delivered on 23 February 1995. The orders proposed by Badgery-Parker J, with the concurrence of McInerney J and Dowd J, were that leave to appeal against sentence should be granted but that the appeal be dismissed. Special leave was granted to appeal to this Court against "the whole of the judgment and order of the Court of Criminal Appeal New South Wales given and made on the 23rd day February, 1995". However, the Notification of Court's Determination of Application (the Notice), which, as Dawson and Gaudron JJ explain, apparently served as the formal order of the Court of Criminal Appeal, indicates that leave to appeal was granted and the appeal against conviction, rather than sentence, was dismissed.

Two difficulties arise. As I noted earlier, it is unclear whether the order in the first appeal, dated 13 December 1993, was perfected. Further, the Notice in respect of the second proceeding does not implement the decision of the Court given on 23 February 1995. If the Notice did serve to perfect the order proposed on 23 February 1995, it may be amenable to correction under the slip rule [12] . But the materials before this Court do not suggest that any such step had been taken. The matter now being before this Court, the better course will be to allow the appeal, and to remit the matter to the Court of Criminal Appeal for further consideration and for determination in accordance with the decision of this Court.

1. L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590 at 594-595.

I turn to consider the substantive merits. I do so on the footing that it is the first appellate consideration of the application to the appellant of parity principles. Mathews J compared the roles of the appellant and Savvas in the conspiracies but could not have considered Savvas' sentence, nor could the Court of Criminal Appeal on the first appeal.

Brennan J pointed out in Lowe v The Queen [13] that to facilitate the comparison of conduct and antecedents of two co-offenders it is desirable that, where practicable, co-offenders be sentenced by the same judge at the same time. However, it is important for this appeal to emphasise that, whilst Mathews J and Grove J sentenced the appellant and Savvas respectively upon conviction for conspiracies to which both were parties, each of them at the time of conviction was serving in New South Wales a sentence (imposed by Hunt J upon Savvas and by Roden J upon the appellant and reduced on appeal) for offences with which the other had no connection. Further, at the time Mathews J sentenced the appellant, there were still on foot appellate processes in respect of the sentence imposed upon Savvas by Hunt J. Those processes were not finally resolved until Savvas' appeal to this Court failed on 1 June 1995 [14] . Accordingly, this appeal does more than illustrate the problem that can arise in applying the parity principle to co-offenders when they are sentenced by different judges taking different views as to the relevant culpability of the two offenders in respect of those offences.

1. (1984) 154 CLR 606 at 617; see also at 622, per Dawson J. 2. Savvas v The Queen (1995) 183 CLR 1.

In imposing a sentence on the appellant, Mathews J took into account the relative roles of the two offenders in the conspiracy and concluded that Savvas was "calling the shots". By contrast, in sentencing Savvas, Grove J considered that, in relation to their respective roles in the conspiracies, Savvas and the appellant "were both principals with different but generally equivalent culpability". The appellant accepted that this finding was more favourable to Savvas than that made by Mathews J. As Grove J pointed out, that result may have related to the standard of proof operating in each case. It was only in relation to their overall merits on sentence that Grove J considered the appellant's merit to exceed that of Savvas.

It follows that, if the decision of Grove J had been less favourable to Savvas in relation to his role in the conspiracy, then, in considering his total criminality, a higher penalty may have been appropriate. Seen in that way it is apparent that any sense of grievance on the part of the appellant stems from the fact that his co-offender received a lesser sentence than he otherwise might have if the view of their relative culpability had been that adopted by the appellant's own sentencing judge.

The question for this Court is whether there was any error made by the Court of Criminal Appeal in its consideration of the parity principle as applied to the sentences of the appellant and Savvas on the basis of the findings made by Mathews J as to, among other things, their respective degrees of criminality.

In this Court, the appellant made submissions as to the relationship between the principles of totality of sentence and parity of sentence. The appellant suggested that the principle of parity should be applied before totality. The Crown initially suggested that totality should be addressed before parity but eventually conceded that a rigid formulation was undesirable. That concession was rightly made. If the parity principle is applied last as a strict rule, the result could be a sentence in excess of what is justified taking into account the totality of the accused's criminality. Thus Grove J correctly declined to impose a higher sentence than he would otherwise have imposed on Savvas if his Honour had been seeking to achieve a proper measure of discrimination between the sentences of Savvas and the appellant.

The totality principle receives recognition in the Crimes Act in relation to the passing of sentence generally (s 16B) and the fixing of non-parole periods (s 19AD). Section 16B provides:

In sentencing a person convicted of a federal offence, a court must have regard to:

(a) any sentence already imposed on the person by the court or another court for any other federal offence or for any State or Territory offence, being a sentence that the person has not served; and

(b) any sentence that the person is liable to serve because of the revocation of a parole order made, or licence granted, under this Part or under a law of a State or Territory.

Section 19AD applies where a non-parole period has been fixed in respect of a federal sentence and while the offender is serving the existing non-parole period a court imposes a further federal sentence on the person (sub-s (1)). Where the section applies, the court must, in fixing a non-parole period, consider the existing non-parole period, the nature and circumstances of the offence concerned and the antecedents of the person (sub-s (2)).

There is no reflection of the parity principle in the Crimes Act. Both the appellant and the Crown submitted that the applicable principles in relation to disparity of sentence are as set out in Lowe v The Queen [15] . In that case both Lowe and Smith were charged with robbery while armed with an offensive weapon. Smith had kept watch while Lowe carried out the robbery. At the time of the offence neither of the men had a criminal record. Both offenders pleaded guilty. Although Lowe and Smith were jointly indicted, they were sentenced separately. Lowe was sentenced to imprisonment for six years with a non-parole period of two years. Subsequently, Smith was sentenced by a different judge who ordered that he be admitted to probation for three years and that he perform 200 hours community service. Lowe appealed to the Queensland Court of Criminal Appeal. The Court varied the order by recommending that Lowe be released on parole after one year. Lowe then applied for special leave to appeal to the High Court. By majority, the application for special leave to appeal was refused [16] .

1. (1984) 154 CLR 606. 2. Gibbs CJ, Wilson and Dawson JJ, Mason and Brennan JJ dissenting.

Lowe determined that disparity in sentencing of co-offenders may call for intervention by a Court of Criminal Appeal and that the court may intervene even in cases where the challenged sentence, standing alone, would be regarded as appropriate. Different views were expressed by members of this Court as to the rationale for intervention by Courts of Criminal Appeal in these cases. Gibbs CJ expressed his views as follows [17] :

It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. Mason J stated the rationale in similar terms [18] : The authorities do not speak with one voice on the question whether marked disparity in sentences imposed on co-offenders whose circumstances are comparable is itself a ground for reducing the more severe sentence or whether such marked disparity is merely indicative of the presence of an undisclosed error in the process of sentencing. As a matter of general principle it is important that this Court should declare unequivocally that marked disparity is itself the ground. Mason J also stated that because it is preferable to err on the side of leniency, it is permissible in a case of disparity to reduce the more severe penalty, even where that sentence is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate [19] . 1. Lowe (1984) 154 CLR 606 at 610. 2. Lowe (1984) 154 CLR 606 at 611. 3. Lowe (1984) 154 CLR 606 at 612-614.

Brennan J [20] repeated what he had said in Lovelock v The Queen [21] :

Where offenders whose circumstances are comparable receive disparate sentences, or where offenders whose circumstances are disparate receive comparable sentences, that circumstance is not sufficient by itself to warrant interference by an appellate court with the sentence imposed on any of the offenders. The court does not interfere with a sentence imposed on one offender merely because "a disparity has been created by another sentence which was far too lenient, and even though, as a consequence, the appellant may be left with a sense of injustice or grievance" (per Walters J in O'Malley v French [22] ; and see R v Steinberg [23] ). But if there be differentiating circumstances which favour the case of an appellant from the case of another offender who received a comparable sentence in respect of the same offence, the lack of disparity between the sentences bespeaks an error of some kind. 1. Lowe (1984) 154 CLR 606 at 618. 2. (1978) 33 FLR 132; 19 ALR 327 at 331. 3. [1971] 2 SASR 110 at 114. 4. [1947] QWN 27.

The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done.

In R v Taudevin [24] , Callaway JA said, in a passage with which I agree:

The important words are "manifestly", "justifiable" and "objective". There is much to be said for the view that all three requirements are variations on the same theme, ie that only a manifest discrepancy in the sense of a difference that is clearly excessive will satisfy the other two requirements. However that may be, it is certainly true that a sense of grievance is not justifiable unless it would be shared by an objective observer.

That proposition may be found in Lowe's case in the judgment of Gibbs CJ [25] , where his Honour said that the disparity must be "such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done" Mason J [26] spoke of the disparity as engendering a justifiable sense of grievance "and" an appearance of injustice to the objective bystander. It is not to be thought that Dawson J intended a different test by using the word "or" [H]is Honour [27] was using it, as I have done, in its epexegetical, not its disjunctive, sense. Wilson J agreed with both the other members of the majority.

1. Lowe (1984) 154 CLR 606 at 610. 2. Lowe (1984) 154 CLR 606 at 613. 3. Lowe (1984) 154 CLR 606 at 623.
   1. [1996] 2 VR 402 at 404.
   2. Lowe (1984) 154 CLR 606 at 610.
   3. Lowe (1984) 154 CLR 606 at 613.
   4. Lowe (1984) 154 CLR 606 at 623.

Regardless of the precise formulation of the principle for which Lowe is authority and the rationale for that principle, Lowe does not support the appellant in the way contended. The appellant bases his case for disparity on a comparison between the amounts by which the respective non-parole periods of Savvas and the appellant were increased following sentence on the federal charges of conspiracy. Those non-parole periods depended respectively on the non-parole periods that each offender was already serving for previous offences with which the other offender was not involved. In other words, the appellant submits that the court should apply the parity principle to the total custodial sentence of the two offenders. That total custodial sentence is the product not only of convictions upon conspiracy counts, applying to both offenders, but also convictions of each for prior offences in which the other was not involved. Like is not being compared with like.

The application of Lowe in a situation where co-offenders with significant criminal histories committed an offence while serving time in custody was considered by the South Australian Court of Criminal Appeal in R v Cox [28] . The appellant and another prisoner who were handcuffed together were charged with escaping from custody. The appellant pleaded guilty and was sentenced to two and a half years imprisonment cumulative on the sentence he was serving which was five years, twenty-two days with a non-parole period of three years, twenty-one days. The non-parole period was extended by two years. His co-offender was sentenced by a different judge to two years imprisonment for the escape and to three months imprisonment for assault with intent to rob. A non-parole period of sixteen months was fixed. This sentence attracted remissions. The appellant complained of the disparity between his sentence and that imposed upon his co-offender. In giving the judgment of the South Australian Court of Criminal Appeal, Doyle CJ said [29] :

In my opinion no criticism can be made of the sentence imposed upon [the appellant's co-offender]. There is a marked disparity between that sentence and the sentence imposed upon the appellant, but if that disparity is justified by the appellant's record, it must be permitted to stand. Otherwise, a hardened offender sentenced with a new offender would not receive an appropriate sentence. I do not understand the principles stated by the High Court in Lowe to require a reduction in a sentence when the disparity between it and a sentence imposed upon a co-offender is justified by significant differences in their antecedents. As I understand the principle it applies when, although the higher sentence cannot on its face be said to be erroneous or excessive, there is no identifiable factor in the sentencing process which objectively assessed supports the different approach. If there are factors which support different treatment then, to use expressions in the authorities, there can be no justifiable sense of grievance on the part of the offender who receives the heavier sentence, no appearance of unfairness to the community. Doyle CJ did not make those comments in answer to a submission that the appropriate comparison for the purposes of the parity principle is between the effective increase in the custodial sentences of the two offenders. However, his Honour's comments demonstrate why significant differences in the antecedents of co-offenders result in the failure of such a submission. 1. (1996) 66 SASR 152. 2. R v Cox (1996) 66 SASR 152 at 159.

The disparity principle in Lowe only applies to co-offenders [30] . In its submissions the Crown placed reliance on the following passage in R v Tiddy [31] :

Where other things are equal persons concerned in the same crime should receive the same punishment; and where other things are not equal a due discrimination should be made. 1. Lowe (1984) 154 CLR 606 at 609, per Gibbs CJ; at 611, per Mason J; at 617-618, per Brennan J. 2. [1969] SASR 575 at 577.

In particular, the Crown emphasised the reference in this passage to "punishment" and the fact that in the present case the extra period of imprisonment imposed on the appellant exceeded that of Savvas and thus resulted in greater punishment. This, however, ignores the consideration that part of the punishment giving rise to the appellant's extra period of imprisonment was for an offence in which Savvas was not concerned, namely the conviction upon which he was sentenced by Roden J.

It is also clear that the principle only applies where a genuine comparison can be made between the two sentences. In making that point Gibbs CJ stated [32] :

It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account. 1. Lowe (1984) 154 CLR 606 at 609.

In this case, if the comparison is between the increase in the non-parole periods of the two offenders then that will, at least in part, involve comparison between sentences in which Savvas and the appellant were not co-offenders. That is clear from the following comments of Mathews J when imposing on the appellant the sentence of eighteen years with a non-parole period of thirteen years, ten months:

I must stress however that the first two years and ten months of that sentence is attributable entirely to the sentence presently being served by the [appellant]. I have also taken into account the fact that there is a further sentence in Italy of over five years which the [appellant] will probably have to serve upon his release from prison in Australia.

In the Court of Criminal Appeal, McInerney J and Dowd J agreed with the judgment of Badgery-Parker J. His Honour stated that the foundation of the parity principle is "the existence of disparity when other things are equal, or, where other things are not equal, a relativity between sentences which does not properly reflect the extent of the inequality". He concluded:

[W]hen the sentences now under discussion are viewed in the light of the well understood legal principle of totality, any sense of grievance which results is seen to be without justification. The outcome does not result from any lack of even handedness in the sentencing for the instant case, but only from the prior custodial situation of each man respectively. The asserted disparity is apparent but does not exist in fact.

A disparity was bound to appear in some measure of the severity of the particular sentences because of the different custodial histories of the appellant and Savvas. However, the difference between the sentences of the appellant and Savvas did not require the intervention of the Court of Criminal Appeal on the basis of the principle outlined in Lowe.

There remains one further issue. It has been considered three times, once by Mathews J and twice by the Court of Criminal Appeal. Both the appellant and the Crown submitted that the discount of three years allowed by the sentencing judge for the appellant's co-operation with the authorities was unduly modest and that the consequence might be to discourage other offenders from adopting a similar course. In various decisions, this Court has emphasised both the discretionary nature of sentencing and its refusal to interfere with the decision of a Court of Criminal Appeal unless there be disclosed an error of principle affecting the sentence or unless it was manifestly excessive [33] . While the discount may not have been generous to the appellant, it cannot be said that the sentence imposed on the appellant represents such a gross violation of sentencing principles as to warrant the intervention of this Court.

1. Lowe (1984) 154 CLR 606 at 608-609, 621-622; Veen v The Queen [No 2] (1988) 164 CLR 465 at 478.

It follows that, if the proceeding in the Court of Criminal Appeal before McInerney, Badgery-Parker and Dowd JJ was competent, the appeal against sentence was correctly dismissed. However, what appears to have been the perfected order reflects, on its face, an error in reducing to formality the orders proposed by Badgery-Parker J. Further, it may be that the status of the first appeal was such as to render the later proceeding incompetent [34] .

What then is to be the outcome in this Court? I agree with Dawson and Gaudron JJ that the appeal should be allowed and the matter remitted to the Court of Criminal Appeal for it to take such steps as are open to it to give effect to the decision of this Court. However, as I differ from the majority with respect to the substantive merits, different consequences would follow on that remitter to the Court of Criminal Appeal.

The result on that remitter, consistently with my conclusions, would be as follows. If it transpired that the orders on the first appeal to the Court of Criminal Appeal were perfected so that the second proceeding was incompetent, the result first reached there would stand. Nevertheless, that outcome would accord with that which would be reached on the merits. If the orders on the first appeal were not perfected, the Court of Criminal Appeal should proceed to achieve the effective dismissal of the appeal to that Court against sentence.

I add my agreement to what is said by Dawson and Gaudron JJ with respect to the reliance upon Pantorno v The Queen [35] .

This appeal from the Court of Criminal Appeal of New South Wales concerns the sentence imposed on a person convicted of a succession of federal offences within the meaning of the Crimes Act 1914 Cth (the Act) (s 16(1)).

The appellant says that the disparity between the way in which he and a co-offender were sentenced is such as to give rise to "a justifiable sense of grievance" on his part and "the appearance that justice has not been done" [36] . His complaint was dismissed by the Court of Criminal Appeal, in the second of two applications to that Court in which the sentence imposed by Mathews J, the sentencing judge, was confirmed [37] . By special leave, an appeal has now come to this Court.

1. Lowe v The Queen (1984) 154 CLR 606 at 609-610, 613. 2. R v Postiglione (unreported; Court of Criminal Appeal of NSW; 23 February 1995), per Badgery-Parker J, McInerney and Dowd JJ concurring.

Successive convictions and sentences of the appellant

It may be accepted that Mr Mario Postiglione (the appellant) feels a grievance about the way in which he has been punished following conviction of his latest offences when compared to the punishment imposed on a co-offender, Mr George Savvas [38] . However, appellate intervention upon the ground of unjust disparity in sentences, is reserved to cases where the grievance is "justifiable" [39] . In order to decide whether this is so, it is necessary to start with an understanding of the offences for which the complaining prisoner, and the suggested comparable prisoner, were sentenced and then to have regard to their respective criminality and to their respective criminal records, all such considerations being relevant to the exercise of the sentencing discretion.

1. After the matter stood for judgment Mr Savvas died in prison. However, his death does not affect the matters discussed in these reasons. 2. Lowe v The Queen (1984) 154 CLR 606.

The appellant was sentenced by Mathews J in the Supreme Court of New South Wales on 7 May 1993 following his conviction of two offences of conspiring to import narcotic goods into Australia contrary to s 233B of the Customs Act 1901 Cth. Mr Savvas was alleged to be a co-conspirator, involved in each offence. At the time of the offences, both the appellant and Mr Savvas were in custody in the Long Bay Prison in Sydney serving extended sentences of imprisonment for previous serious drug offences to which it will be necessary to refer. The conspiracies were alleged to have taken place in prison.

The first count of the indictment charging the appellant related to an alleged conspiracy to import a commercial quantity of cocaine from countries in South America. The second count related to an alleged conspiracy to import a commercial quantity of heroin from Thailand. Friends and associates of both the appellant and Mr Savvas were introduced to the conspiracies. The success of the plans depended upon contacts which Mr Savvas claimed he had within the Customs Service at Sydney International Airport. What neither the appellant nor Mr Savvas knew was that another prisoner, who was allegedly brought into the heroin conspiracy, reported it to the authorities. This resulted in the Federal Police commencing surveillance of the conspirators, including the appellant and Mr Savvas, in prison.

For various reasons, those conspirators who were not in custody became suspicious. Following the standing down of certain customs officers, the suspicions of Mr Savvas were also aroused. In the end, the conspiracies did not result in the importation of any cocaine or heroin into Australia. But this was largely the result of the penetration by the authorities of what otherwise would have been well planned, detailed and significant arrangements for the importation into Australia of large quantities of prohibited imports.

The maximum penalty for the offences of which the appellant and, eventually, Mr Savvas were convicted was life imprisonment [40] . Mr Savvas (and certain others of the conspirators) pleaded not guilty, stood their trial and were convicted by a jury and sentenced by Grove J in the Supreme Court of New South Wales. However, the appellant took the opportunity of an earlier appearance before the magistrate conducting the committal proceedings to plead guilty. He adhered to that plea when he came for sentence before Mathews J.

Because the appellant had been convicted of federal offences, his case had to be determined in accordance with Part 1B of the Act which governs "Sentencing, Imprisonment and Release of Federal Offenders". Mathews J outlined carefully and accurately the facts relevant to the two offences to which the appellant had pleaded. Correctly, her Honour noted their objective seriousness, aggravated by the fact that the conspiracies were formulated whilst the appellant was already serving sentences of imprisonment, also for serious federal offences, likewise involving the planned importation into Australia of prohibited drugs. Because Mr Savvas had pleaded not guilty and was awaiting trial, Mathews J did not have the responsibility of sentencing the co-offenders together. Nor did she have, as a consideration relevant to the sentence to be imposed on the appellant, knowledge of the sentence which would later be imposed on Mr Savvas. She therefore proceeded, in the orthodox way, to sentence the appellant taking into account the facts relevant to the offences to which he had pleaded guilty and the facts relevant to his past record and life.

The appellant was born in Italy in 1942. He was thus fifty-one years of age when sentenced by Mathews J. He suffered various deprivations in post-War Italy but came to Australia in 1961 and married here. In 1978 he voluntarily re-acquired his Italian citizenship and returned to Italy with his wife. However, within a year he was charged with offences described as "conspiracy to traffic in drugs" and "trafficking in drugs, particularly heroin". He was convicted of these offences in the Rome Tribunal in December 1981 [41] . The detail of what then happened is conveniently recorded in a report of earlier proceedings in the Court of Criminal Appeal of New South Wales concerning the appellant [42] . The appellant was sentenced to twelve years imprisonment, a fine and other civil burdens backdated to his entry into custody. He appealed to the Court of Appeal in Rome. In March 1983, that Court confirmed the initial sentence and prohibited the appellant from travelling abroad. Meanwhile, apparently under a Presidential decree (presumably in the nature of a remission) the appellant's prison sentence was reduced by two years. The appellant lodged a further appeal to the equivalent of the Italian Supreme Court. Because that appeal was not disposed of in accordance with a time requirement provided by Italian law, the appellant was granted provisional release from prison in September 1984. Such release was pending the completion of the Supreme Court hearing. His Italian passport was confiscated. However, contrary to the orders of the Italian court, he acquired an Australian passport and returned to this country in December 1984. In October 1986, the Italian Supreme Court rejected the appellant's appeal. He was therefore required by Italian law to serve the remainder of his Italian sentence, viz five years four months and two days. But by then he was in Australia.

1. In her reasons, Mathews J states that this occurred in December 1980. This may be a mistake but, if so, it is one without significance. See R v Postiglione (1991) 24 NSWLR 584 at 588. 2. R v Postiglione (1991) 24 NSWLR 584 at 588-589.

It did not take long before the appellant offended again. In March 1987 he was charged on a single count of being knowingly concerned in the importation of a commercial quantity of heroin (5.56 kg). Police intercepted the drugs before they were distributed in Australia. Roden J accepted the appellant's plea of guilty. He was convicted and sentenced to life imprisonment. Roden J imposed this sentence on the footing that the crime was serious and that the appellant was continuing a significant involvement in attempted drug trafficking and was, at the time of the offence, an international fugitive. The Court of Criminal Appeal reduced this sentence [43] . A consideration relevant to its decision was the conclusion that, as against a co-offender, the appellant would have a "justifiable sense of grievance" [44] arising out of the disparity between the sentences. The appellant thus secured for the first time the benefit of the application of Lowe which he now seeks to invoke once again.

1. R v Postiglione (1991) 24 NSWLR 584 at 595. 2. R v Postiglione (1991) 24 NSWLR 584 at 594.

It was whilst the appellant was serving the sentence imposed by the Court of Criminal Appeal in the foregoing proceedings that the conspiracies took place which brought him before Mathews J. For the life imprisonment previously ordered, the Court of Criminal Appeal had substituted a sentence of imprisonment for twelve years, with a non-parole period of nine years. The latter was to expire on 8 March 1996. Therefore, at the time the appellant appeared for sentence before Mathews J, he had two years and ten months imprisonment of that sentence still to serve.

Mathews J considered a number of factors relevant to the appellant personally. Some of them told against him, including: (a) that the offences had taken place when he was serving a sentence of imprisonment for a serious offence of a similar character; (b) that he was a fugitive from justice in Italy and was likely to be deported there at the conclusion of his custody in Australia, to serve the balance of the sentence still outstanding in that country; (c) that the offence to which he had pleaded was objectively serious, involving, in particular, a very large quantity of cocaine with a large street value. However, as against these considerations, her Honour took into account, as s 16A(2) of the Act and general sentencing principles required [45] , a number of matters ameliorating the appellant's case. These included: (a) the appellant's age and plea of guilty; (b) his promise of assistance to the authorities; (c) his consequential transfer to the "special purposes" facility for protected prisoners which would deny him many privileges otherwise enjoyed by prisoners; (d) his signed undertaking to give evidence against the co-offenders and police reports of his genuine co-operation with them; (e) A conclusion that he was not the prime mover in the conspiracy. The prime mover was considered to be Mr Savvas, although the rank of the appellant was found to be not far below Mr Savvas in the organisation chart of the conspirators.

1. Director of Public Prosecutions (Cth) v Said Khodor el Karhani (1990) 21 NSWLR 370.

Mathews J then considered whether the maximum available sentence of life imprisonment was appropriate. She concluded that it was not. She proceeded to impose a sentence of eighteen years imprisonment with a non-parole period of thirteen years and ten months in respect of the first count (the cocaine conspiracy). In respect of the second count (the heroin conspiracy) she imposed a sentence of ten years imprisonment. The sentences were to be served concurrently with the same non-parole period. The sentences were to commence on the date on which they were pronounced, 7 May 1993. As stated the appellant then had two years and ten months remaining of his existing non-parole period. Thus the appellant, in effect, gained a benefit from the overlap of the new sentence and his existing sentence. In practical terms, the result of the sentence imposed by Mathews J was to add eleven years imprisonment to the applicant's aggregated non-parole periods. In accordance with the Act (s 21E), Mathews J specified the extent of the reduction which she had made for the appellant's co-operation with authorities, and his promise to give evidence against the co-conspirators. She indicated that this was three years in respect both of the head sentence and of the non-parole period.

The appellant sought leave to appeal to the New South Wales Court of Criminal Appeal against the foregoing sentence. His application came before that Court in December 1993. At that time, the Court did not have knowledge of the sentence of Mr Savvas for he was not sentenced until June 1994. The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error of principle in the approach which Mathews J had taken [50] . It was after 17 June 1994, when Mr Savvas was convicted and sentenced by Grove J, that the appellant made a further application for leave to appeal to the New South Wales Court of Criminal Appeal. It is the adverse disposal of that appeal which gives rise to the present proceedings.

1. R v Postiglione (unreported; Court of Criminal Appeal of NSW; 13 December 1993).

Mr Savvas, like the appellant, was no stranger to the Court of Criminal Appeal. The background to the sentence which he was serving at the time of the prison conspiracy may be found in the reports [51] . In the last of these decisions, this Court confirmed the orders of the New South Wales Court of Criminal Appeal. That Court had dismissed an appeal from a sentence imposed in the Supreme Court of New South Wales by Hunt J. By his Honour's orders, Mr Savvas was sentenced to twenty-five years imprisonment, with a minimum term of eighteen years, following his conviction of conspiring with others to import a quantity of heroin not less than the commercial quantity contrary to the Customs Act 1901 Cth [52] . At the same time, Mr Savvas had been convicted of an offence of conspiring with others to supply heroin contrary to the Drug Misuse and Trafficking Act 1985 NSW. Upon the latter State offence he was dealt with under the Sentencing Act 1989 NSW and sentenced to a minimum term of eighteen years together with an additional term of six years imprisonment. However, the sentence for the federal offence being longer, it is the one which was immediately relevant to Mr Savvas's prospects of release until the supervening convictions of conspiracy occurred.

1. R v Savvas (1991) 55 A Crim R 241; R v Savvas [No 2] (1991) 58 A Crim R 174; Savvas v R (1995) 183 CLR 1. 2. On the second count, he was also convicted and sentenced to a minimum term of eighteen years imprisonment.

Following his first convictions, Mr Savvas went into custody on 24 August 1988. His non-parole period for the federal offence was expressed to expire on 23 August 2006. It was to be followed by seven years on parole. By the time Mr Savvas was sentenced by Grove J on 17 June 1994, he had served five years ten months of the first sentence. He therefore had twelve years and two months of the non-parole period of that sentence still to serve. Grove J took into account the considerations listed in s 16A of the Act. He noted that the appellant had been sentenced by Mathews J and that under her sentence "eleven years were effectively added to the date relative to his existing sentence". He recorded his recognition of the need to observe a rule of parity which would take into account the "criminality between Savvas and Postiglione". However, he referred to "[P]ostiglione's more extensive prior record on the one hand and his pleas of guilty and co-operation with authority on the other".

Acknowledging Mr Savvas's existing sentences, Grove J sentenced him on both counts to be served concurrently. The sentence was for imprisonment for twenty-five years from that day with a new non-parole period of eighteen years commencing immediately. This resulted in a new date of eligibility for parole of 16 June 2012. The result was an extension of the period of imprisonment before which Mr Savvas would be eligible for release on parole of five years and ten months.

It is the contrast between the effective increase in the custodial punishment of the appellant and Mr Savvas which has given rise to the present controversy. The appellant suffered an effective increase in his custodial sentence, before he would be eligible to parole, of eleven years. By contrast, Mr Savvas had an increase of only five years and ten months. When to this apparent disparity was added the consideration that the appellant, upon completing the non-parole period in Australia, would, or might, be deported to Italy to continue serving the residue of his Italian sentence of more than five years, the result was said to be plainly unjust. It involved a disparity which gave rise to a justifiable sense of grievance in the Lowe sense.

Grove J, at the time of sentencing Mr Savvas, anticipated the problem [53] :

I do not overlook that the extension of non parole period [sic] amounts to about six years, whereas Postiglione - whose merit on balance I consider exceeds yours - was extended by eleven years. Nevertheless I do not think I should impose a disproportionately high sentence on you to assuage any grievance which may - I repeat, may - be engendered in Postiglione. I express no opinion on whether, if he does come to harbour such a grievance, it would be justifiable. The appellant did indeed harbour that grievance. He returned to the Court of Criminal Appeal to give voice to it. 1. R v Savvas (unreported; Court of Criminal Appeal of NSW; 17 June 1994) at 14.

A preliminary question arose in the Court of Criminal Appeal as to whether that Court had jurisdiction to hear a second application by the appellant for leave to appeal against his sentence following the order dismissing his first appeal. In the conclusion which it reached on the merits, the Court did not consider that it was necessary to determine that point. Nevertheless, Badgery-Parker J, who gave the reasons of the Court, expressed the opinion that the appellant was entitled to bring a second application for leave to appeal in the circumstances of the case.

This Court was informed that the orders of the Court of Criminal Appeal following the first appeal were not perfected. In the second application, that Court certainly purported to exercise and affirm its jurisdiction. Both parties before this Court supported that conclusion. In the nature of complaints of disparity in sentencing (and as the facts of this case demonstrate) it will quite often be the case that the disparity which is said to give rise to the justifiable sense of grievance is not finally known until a considerable time after the complaining prisoner was sentenced. Where the final sentencing of a co-offender, or of another relevant offender, remain outstanding it may well be sensible for a Court of Criminal Appeal to adopt the expedient proposed by Dawson and Gaudron JJ in their reasons. I shall assume that there was no jurisdictional barrier to the appellant's second application. I shall return to that question in determining the orders which should be made.

The Act provides a facility to the Director of Public Prosecutions, where a federal offender has been sentenced on the basis of undertakings to co-operate and fails to do so, to appeal against the inadequacy of the sentence or of the non-parole period (s 21E). The Director may appeal at any time whilst the offender is serving the sentence, imposed on an assumption of co-operation. It is as part of this legislative scheme that the sentencing judge is required, when reducing a sentence on the basis of a promised undertaking of co-operation, to specify that the sentence is being reduced for that purpose and to state the sentence the judge would have imposed but for that reduction (s 21E(1)(a), (b)). This provides both a warning to a prisoner and guidance to a Court of Criminal Appeal should resentencing be required. No broader statutory facility of a later or second appeal is provided by the Act.

Mathews J appeared to consider that s 21E was the foundation for the reduction in the appellant's sentence for his co-operation with authorities and undertaking to give evidence if called upon to do so. As the Court of Criminal Appeal pointed out, this was incorrect. Section 21E concerns the consequences of non-cooperation where it has been promised. It does not deal with co-operation as a mitigating factor. Co-operation is specifically mentioned in s 16A(h) of the Act, although the paragraph is expressed in terms of co-operation which has already occurred rather than that which is promised. The checklist in s 16A(2) has been construed as non-exclusive [54] . However, the foregoing mistake of Mathews J was unimportant because her Honour certainly gave credit to the appellant for past co-operation and the prospect that it would continue.

1. Director of Public Prosecutions (Cth) v Said Khodor el Karhani (1990) 21 NSWLR 370 at 375-378.

The Court of Criminal Appeal, in the second proceeding, noted the suggested disparity between the additional non-parole period to be served in the case of the appellant and that to be served in the case of Mr Savvas. It recorded the features in the evidence and the findings which, on the contrary, were said to support a more lenient punishment for the appellant than for Mr Savvas, namely:

1. That he had pleaded guilty and adhered to that plea.

2. That he had been found by Mathews J to be a less significant actor in the conspiracies.

3. That prior to the committal he had commenced his co-operation with police and provided material which was helpful.

4. That this had led to his isolation in prison which was likely to continue.

1. That he had undertaken to give evidence at the trial of his co-offenders and had done so.

The Court also recorded the concession made for the Crown that the circumstances had "produced such disparity as might engender a legitimate and justifiable sense of grievance on the part of the [appellant]". This concession was maintained before this Court as was the expression of the Crown's concern that, if the disparity were not rectified, it might discourage other persons in a like situation from pleading guilty and giving assistance to the authorities as Mr Postiglione had done. In cases of this kind, the importance of such co-operation is plain enough.

However, the Court of Criminal Appeal concluded that the concession was not correctly made by the Crown [55] :

The concession ignores the foundation of principle, namely, the existence of disparity when other things are equal, or, where other things are not equal, a relativity between sentences which does not properly reflect the extent of the inequality.

The unusual outcome in this case has to be understood in the light of the custodial situation of each prisoner at the time of sentence, and the need for a sentencing judge to have regard to the principle of totality to ensure that the ultimate sentence actually imposed was not excessive having regard to the total criminality involved in all of the criminal activities to which it attached [W]hen the sentences now under discussion are viewed in the light of the well understood legal principle of totality, any sense of grievance which results is seen to be without justification. The outcome does not result from any lack of evenhandedness in the sentencing for the instant case, but only from the prior custodial situation of each man respectively. The asserted disparity is apparent but does not exist in fact; and any sense of grievance founded upon it is not justifiable.

As to the Crown's concern about the consequences for co-operation of other offenders, that Court held that that did not warrant a departure from established principle regulating its intervention in cases of alleged disparity in sentencing. Leave to appeal was granted but the second appeal was also dismissed. 1. R v Postiglione (unreported; Court of Criminal Appeal of NSW; 23 February 1995) at 12-13.

The following principles, derived from the authorities, may be stated as relevant to the consideration of the appellant's complaint of unjust disparity:

1. Consistency in punishment is "a reflection of the notion of equal justice". It is an attribute of "any rational and fair system of criminal justice". On the other side of the coin, inconsistency in punishment is regarded as "a badge of unfairness" which erodes public confidence in the integrity of the administration of justice [56] . The removal of serious and unjustifiable disparities in the treatment of like cases is a legitimate goal of the administration of criminal justice. There are various ways to promote this objective. However, so long as sentencing remains a judicial task (as distinct from a function of a sentencing commission or like body) consistency may be promoted by the provision of appellate decisions on points of principle, by the supply to sentencing judges of data on sentencing practice, by statutory guidelines of the kind attempted in Part 1B of the Act and by general appellate supervision.

2. The quest for perfect consistency involves a search for the unattainable. The facts of no two crimes, nor the criminality of any two individual offenders involved in a single crime, will be exactly the same. No two offenders will have precisely the same antecedents and experience of life when they appear for sentence. Inevitably, different judicial officers will respond differently to particular features of the evidence relevant to the offence or the offenders. The independence and individual responsibility of each sentencing judge require that, subject to appellate supervision, his or her sentence will ordinarily be respected. The powers of, and practices within, appellate courts exercising jurisdiction in criminal appeals will differ. In the case of federal offences, there is the added complication that federal prisoners are held in State prisons, often alongside State prisoners sentenced under State sentencing laws with different potential to occasion disparity in the treatment of apparently like offences and like offenders [57] . Part 1B of the Act contains provisions designed to address at least some of the disparities which may exist between the treatment of federal offenders in different Australian jurisdictions, in particular in those in which remissions have been abolished. In Leeth v The Commonwealth, [58] a question arose as to whether the provisions of the federal legislation then applicable, which allegedly discriminated between people in different parts of the Commonwealth who came before the courts, were constitutionally invalid [59] The Court held that they were valid. However, three Justices [60] found that the differentiation required by the Act was incompatible with the Constitution. After that decision, Part 1B was inserted into the Act. No constitutional point was raised in this appeal. Nor is this a case where the added complication arises of comparing federal and State sentences. Nevertheless, the difficulties of securing perfect equality of treatment in the punishment of convicted offenders is increased in a federal polity. And it is inherent in the process of judicial sentencing

3. Out of recognition of the discretionary character of the sentencing function, and the unavoidable scope for disparity where that function is performed by different judicial officers, it is well established that when performing their function sentencing judges must be accorded a wide measure of latitude which will be respected by appellate courts. So long as the sentencing judge has taken into account the relevant considerations of law and fact, the appellate court will not ordinarily intervene merely because some arguable discrepancy appears between the sentencing of otherwise apparently connected or like offenders [61] . Similarly, this Court will respect the discretion which the law reserves to courts of criminal appeal and their equivalents, acting under their respective statutes, in disposing of sentencing appeals and applications for leave to appeal against sentences, including on the ground of suggested disparity [62] . The proper approach is one of vigilance within a context of appellate restraint. It was recently expressed by Lamer CJ for the Supreme Court of Canada in R v M (CA) [63] in words which are applicable here: Appellate courts, of course, serve an important function in reviewing and minimising the disparity of sentences imposed by sentencing judges for similar offenders and similar offences committed throughout Canada But in exercising this role, courts of appeal must still exercise a margin of deference before interfering in the specialised discretion that Parliament has explicitly vested in sentencing judges. It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime Sentencing is an inherently individualised process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

4. The restraints which authority and legal principle impose upon courts of criminal appeal and their equivalents are even more severe when it comes to this Court. It will not grant special leave to appeal against a sentence, still less allow an appeal, merely because the sentence appears to be excessive, including on the ground of disparity, when considered with a sentence which is arguably comparable. As the Judiciary Act 1903 Cth (s 35A) indicates, the authority and practice of the Court [64] and the necessities imposed by its workload and composition require, it cannot, and should not, fulfil a general function of re-scrutinising sentencing decisions of appellate courts. Special leave was granted in this case only because it was suggested that the circumstances raised the general question of the relationship between the principles of totality of sentence and parity of sentencing of like offenders and because a serious injustice was said to have occurred which, in effect, the Crown conceded.

1. The problem of disparity will ordinarily arise not so much out of a suggested departure from the requirement to punish equally like offenders convicted of like offences, [65] as out of the disparate punishment of co-offenders or offenders in a situation demanding comparison and contrast [66] . It is in these cases, where discrimination has occurred in the sentences imposed on two or more offenders said not to be justified by the facts either of the offence or of the circumstances of the offender, that the problem of alleged disparity in sentencing presents itself in sharp focus [67] . It is then that the appellate court must apply the tests which have been propounded and decide whether it should intervene.

2. Those tests express the criteria for intervention in language which is necessarily very broad. Mere disparity is not enough. What is needed is that the disparity engenders a "justifiable sense of grievance" on the part of the prisoner or "give the appearance that justice has not been done" [68] . It has been stated many times that the fact that the prisoner feels a sense of grievance is not determinative. Say what they may, appellate courts cannot "prevent an unjustified sense of grievance from arising in the minds of sentenced persons" [69] . But the object of the language chosen is to make it plain that some disparities, being inevitable, must be tolerated out of respect for the discretion of sentencing judges and a modest appreciation of the capacity of appellate courts to rectify discrepancies without causing new or different problems. The focus of the attention of an appellate court is not upon the nominal sentence but upon the actual punishment which it appears likely the prisoners in suggested comparison will undergo [70] . Due allowance will be made for their respective criminality. Due allowance will also be made for their differing antecedents, personal circumstances and mitigating factors. But if, having made these allowances, the resulting disparity is clearly unjustifiable, the appellate court must intervene for otherwise it will condone the "badge of unfairness" [71] .

3. The risks of disparity in the sentencing of co-offenders may be reduced by the adoption, wherever possible, of arrangements within a court which ensure that co-offenders, or those with relevant connecting factors, appear for sentence before the same judicial officer. But as this case illustrates, that course will not always be possible or appropriate. Even where a second sentencing judge (such as Grove J) comes to the task with full knowledge of what the first sentencing judge (in this case Mathews J) has done, his or her duty will remain that of imposing the sentence which is appropriate and just to the offence found and the offender before the court. In the case of federal offences, the duty of the sentencing judge is, first and foremost, to conform to the law within the maximum punishment for the offence of which the offender is convicted and to conform also with the provisions in Part 1B of the Act governing the sentencing of federal offenders. Some of the latter provisions appear to repeat established sentencing principles.

Thus, in s 16B, the Act contains a statutory formula which reflects, in part, the totality principle:

In sentencing a person convicted of a federal offence, a court must have regard to:

(a) any sentence already imposed on the person by the court or another court for any other federal offence or for any State or Territory offence, being a sentence that the person has not served; and

(b) any sentence that the person is liable to serve because of the revocation of a parole order made, or licence granted, under this Part or under a law of a State or Territory.

No general principles, whether of parity, totality or otherwise, can override the duties imposed by the Act [72] . In the nature of things, where a co-offender has pleaded not guilty and the trial, and thus the conviction and the sentence, of the co-offender have not occurred the sentencing judge cannot perform any function of comparison to avoid discrepancies. That must be left to an appellate court. If its jurisdiction is invoked, that court must, as best it can, retrospectively apply to the sentences imposed the foregoing principles.

1. Director of Public Prosecutions (Cth) v Said Khodor el Karhani (1990) 21 NSWLR 370 at 383-385.

4. It is a mistake to endeavour to reduce judicial sentencing to mathematical accuracy or analytical certainty [73] . The provision of statutory guidelines and the principles expressed by appellate courts may be useful to reduce the causes of disparity. Little more can be done than to ensure that the correct considerations are taken into account and that irrelevant considerations do not intrude. In the present case, there were two general principles of sentencing, not excluded by the Act, which it was the duty of each of the sentencing judges, Mathews J and Grove J, to take into account in the respective tasks before them. These were to apply, so far as they could, the principles of "parity" and "totality". In the event that they failed to do so, or imposed a sentence which suggested that their endeavour to do so had miscarried, it was the duty of the Court of Criminal Appeal to intervene if the result was so apparently wrong as to occasion a justifiable sense of grievance or the conclusion that an injustice had occurred.

The parity principle, properly applied, will help to avoid the kinds of disparities which occasion the conclusions spoken of in Lowe. But the parity principle itself must operate upon sentencing facts which will inevitably provide grounds for discrimination on the basis of the offender's involvement in the offence and relevant circumstances personal to the offender.

The totality principle has a dual aspect as explained recently in the Supreme Court of Canada [74] . First, in the words of D A Thomas, Principles of Sentencing [75] :

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate". Lamer CJ in R v M (CA) [76] expressed approval of this passage and gave his own explanation: The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. However, there is a second task for the totality principle to perform. This is that stated by Clayton Ruby in his Treatise on Sentencing, also cited with approval by Lamer CJ [77] : The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects.

1. R v M (CA) (1996) 105 CCC (3d) 327 at 349. 2. 2nd ed (1979), p 56 also cited with approval in Mill v The Queen (1988) 166 CLR 59 at 63. 3. (1996) 105 CCC (3d) 327 at 349. 4. Ruby, Sentencing, 4th ed (1994), pp 44-45, cited in R v M (CA) (1996) 105 CCC (3d) 327 at 349-350.

5. The "parity" and "totality" principles are in the nature of checks required of sentencing judges out of recognition that the task of sentencing is not a mechanical due. The task could hardly be so given the many, sometimes conflicting, goals of sentencing which are "broad and varied" [78] . The sentencing judge must first reach a conclusion as to what seems to be the appropriate sentence having regard to the maximum fixed by Parliament for the worst case and the norm that is appropriate to the objective criminality of the case. The judge must then adjust that sentence, where appropriate, for the factors personal or special to the offender, discounted by any relevant considerations (for example co-operation with authorities or absence of remissions). But it still remains for the judge to look back at the product of these calculations and discounts. It is then that the sentencing judge must consider whether the resulting sentence needs further adjustment. It may do so because it is out of step with the parity principle requiring that normally like cases should be treated alike. Or it may offend the totality principle because, looking at the prisoner's criminality as a whole, the outcome is, in its totality, not "just and appropriate". The last-mentioned conclusion will the more readily be reached where the judge comes to the conclusion that the outcome would be "crushing" and, as such, would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform. Obviously, the adjustments for the parity and totality principles, whether performed by a sentencing judge or an appellate court, involve subtle considerations which defy precision either of description or implementation. It has been recognised by this Court [79] that the adjustments for totality will sometimes result in a lower sentence which might even fail to reflect adequately the seriousness of the crime in respect of which it is imposed. Whilst this is unfortunate, it is to be preferred to imposing a sentence which is excessive in its totality or unfair when tested by parity in the punishment of comparable offenders. The risks of unacceptable disparity will be lessened if it is remembered that the touchstone adopted by the law is the avoidance of a justifiable sense that an injustice has occurred.

6. It is comparatively unusual for the Crown to concede that a justifiable sense of grievance is established by successive sentences. It is even more unusual for the Crown to persist in that concession where it has been held not to be warranted. The fact that the Crown supports the grievance voiced by the prisoner is not, of course, conclusive of the issue in the appeal, which must be judged by the Court, not the parties. The Crown's concern, fairly obviously, is that where appropriate, grievances on the part of prisoners who co-operate with authorities and give evidence for the Crown should be avoided. Doubtless such grievances have a tendency to become known in the circles from which such co-operation must be procured. The fact that the Crown has persisted with its support of the appellant's case, although not determinative, cannot be put entirely out of account. Justified or not, it would have a tendency to reinforce the appellant's own conclusion that an injustice has been done to him.

1. Lowe v The Queen (1984) 154 CLR 606 at 610-611. 2. Director of Public Prosecutions (Cth) v Said Khodor el Karhani (1990) 21 NSWLR 370 at 374-375. 3. (1992) 174 CLR 455. 4. Commonwealth Prisoners Act 1967 Cth, s 4(1) 5. Deane, Toohey and Gaudron JJ. 6. R v Tiddy [1969] SASR 575 at 579. 7. Lowe v The Queen (1984) 154 CLR 606 at 610. See also Dickson J in R v Gardiner [1982] 2 SCR 368 at 404-405; applied in R v M (CA) (1996) 105 CCC (3d) 327 at 346. 8. (1990) 105 CCC (3d) 327 at 375. 9. Lowe (1984) 154 CLR 606. 10. R v Goldberg [1959] VR 311. 11. R v Beaumont [1955] SASR 110; R v Ball (1951) 35 Cr App R 164. 12. R v Tiddy [1969] SASR 575 at 577. 13. Lowe (1984) 154 CLR 606 at 610. 14. R v Tiddy [1969] SASR 575 at 579. 15. R v Tiddy [1969] SASR 575 at 577. 16. Lowe v The Queen (1984) 154 CLR 606 at 611. 17. Director of Public Prosecutions (Cth) v Said Khodor el Karhani (1990) 21 NSWLR 370 at 383-385. 18. Mill v The Queen (1988) 166 CLR 59 at 63; R v Yun Choi Ng (unreported; Court of Criminal Appeal of NSW; 25 July 1991). 19. R v M (CA) (1996) 105 CCC (3d) 327 at 349. 20. 2nd ed (1979), p 56 also cited with approval in Mill v The Queen (1988) 166 CLR 59 at 63. 21. (1996) 105 CCC (3d) 327 at 349. 22. Ruby, Sentencing, 4th ed (1994), pp 44-45, cited in R v M (CA) (1996) 105 CCC (3d) 327 at 349-350. 23. R v M (CA) (1996) 105 CCC (3d) 327 at 369, quoting R v Goltz (1991) 67 CCC (3d) 481 at 495. 24. Mill v The Queen (1988) 166 CLR 59 at 67.

Conclusion: a justifiable sense of grievance is demonstrated

It is difficult to say in this case that a new principle has been invoked because, essentially, the parity principle remains that stated by this Court in Lowe. The totality principle remains that stated by the Court in Mill [80] . The real issue in this appeal is the interaction between the principles. One explanation of the source of the suggested disparity in the punishment of the appellant and Mr Savvas was said to be that Grove J imposed on Mr Savvas a lighter sentence than he might have done. Yet the sentence which Grove J imposed on Mr Savvas may have been no more than the application in that case of the aspect of the "totality principle" which is designed to avoid the imposition of "crushing" sentences.

The other explanation for the disparity between the "real time" added to the sentence of the appellant and that added to the sentence of Mr Savvas is the explanation offered by the Court of Criminal Appeal itself. The prisoners came to sentencing with differing criminal histories and, most importantly, with a different "prior custodial situation". The appellant had only two years and ten months of non-parole sentence left on his then current Australian sentence to absorb, and overlap with, a portion of the new sentence to be imposed for his part in the conspiracy. Mr Savvas, on the other hand, had twelve years and two months of unserved non-parole imprisonment available for that purpose.

In Lowe, this Court made it plain that the proper approach of the appellate court is an objective one. Mason J described it thus [81] :

The undisclosed error may have occurred in the sentencing process as it affected the co-offender. The sentence under appeal may be free from error except in so far as discrepancy itself constitutes or causes error. And the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander. 1. Lowe (1984) 154 CLR 606 at 613.

When pronounced, the sentence imposed by Mathews J may, objectively, have been unimpeachable, just as the first decision of the Court of Criminal Appeal found. But once it fell to be considered in the light of the sentence imposed by Grove J on Mr Savvas, a new objective situation was presented. It is perfectly possible to construct explanations of how the disparity between Mr Savvas and Mr Postiglione came about. However, differing antecedents do not render a consideration of the comparative criminality of the co-offenders irrelevant when an appellate court assesses the effective increase in their respective custodial sentences. The parity principle between co-offenders continues to operate as a consideration in sentencing notwithstanding the application of the totality principle to one offender.

The parity principle could hardly have a better illustration than the present case. Mr Savvas, who had been at the "head of the pyramid" in the prison conspiracies, had pleaded not guilty, had given no co-operation and was not in protective custody, suffered an increase of his non-parole custodial sentence by five years four months. The appellant, who had co-operated fully, discharged his promise of giving evidence at the trial of the co-conspirators and is to be held for the rest of his sentence under the strictures of protective custody, had his non-parole custodial sentence extended by twice that length. And it would have been even three years longer had the appellant not co-operated with the authorities.

The outcome is clearly offensive to the sense of justice, as the appellant says, and the Crown agrees. It is even more so when the appellant's age is considered with the extended period he has served in custody, the need to avoid the extinguishment of hope altogether and, especially, the fact that on the expiry of his Australian sentence, he will probably be deported to Italy to continue more than five years of the unexpired period of his Italian sentence. It is plain that an error has occurred. By failing to correct that error, the Court of Criminal Appeal in the second hearing left unrepaired the appearance of an injustice and the appellant's justifiable sense of grievance about it. This constitutes a significant error in the application of the parity principle.

Although this Court has the power to resentence the appellant [82] , it is inappropriate for it to do so in this case. Under the Act, explanations have to be given to a federal offender when resentenced (s 16F). In the ordinary case it will be more appropriate that resentencing be performed by the Court of Criminal Appeal.

1. cf s 16(1) where "federal court" means "the High Court or a court created by the Parliament, other than a court of a Territory".

There is a further reason in this case for adopting that course. Dawson and Gaudron JJ have explained the procedural errors which may have occurred in the Court of Criminal Appeal. This Court has not received submissions or formal evidence about these possible errors. I am far from convinced that the Court of Criminal Appeal lacked jurisdiction to hear and determine the second application. However, in the circumstances, the desirable course is the one which their Honours propose. I therefore agree in the orders which they favour.