HOEBEN CJ at CL: I agree with Button J and the orders which he proposes.
CAMPBELL J: I agree with Button J.
BUTTON J:
Introduction
This application for leave to appeal is founded on a single ground: "the indicative sentences arrived at in relation to the co-offender give rise to a justifiable sense of grievance on the part of the applicant".
It is convenient therefore to set out a summary of the position pertaining to the applicant, and thereafter a similar summary with respect to Mr Jon Baias (the co-offender). The Tables (159 KB, pdf) attached to this judgment provide a thumbnail sketch of what follows.
Summary of the position of the applicant
The applicant was sentenced by her Honour Judge Huggett in the District Court of New South Wales at Sydney on 12 September 2013. He had pleaded guilty in the Local Court to two counts.
Count 1 asserted that he had knowingly taking part in the supply of a commercial quantity of heroin. The amount of the prohibited drug involved was 336.4 grams. Pursuant to s 25(2) and 33(2) of the Drug Misuse and Trafficking Act 1985 (NSW), the maximum penalty for the offence was imprisonment for 20 years, with an applicable standard non-parole period of 10 years (s 54 of the Crimes (Sentencing Procedure) Act 1999 (NSW)).
Count 2 was knowingly taking part in the supply of a large commercial quantity of heroin: 1049.8 grams. Pursuant to s 25(2) and 33(3) of the Drug Misuse and Trafficking Act, the maximum penalty was imprisonment for life, and there was an applicable standard non-parole period of 15 years (s 54 of the Crimes (Sentencing Procedure) Act).
Taken into account when sentencing on count 2 (the large commercial quantity offence) were two offences on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act. The first was a supply of 1.4 grams of the well-known precursor pseudoephedrine. The second was the supply of 118.6 grams of heroin, that quantity of the drug having been found by the police at the home of the applicant.
Objective features
To state the objective features of the offending of the applicant succinctly, the co-offender supplied heroin to a police source on a large number of occasions, as follows.
On 31 May 2012, the police source contacted the co-offender in relation to the supply of two ounces of heroin (a little over 56 grams) at a price of $8,500 per ounce. The co-offender contacted the applicant, spoke in a primitive code about an item that had already been "cut", and asked the applicant to bring it to the workplace of the co-offender. In the presence of the police source, the applicant provided the prohibited drug to the co-offender, who thereafter promptly provided it to the source, in return for the agreed sum of $17,000 cash.
On 16 June 2012, the applicant was in the company of the co-offender in a car park at Coffs Harbour. The police source arrived by arrangement, and the applicant observed the interaction between the two men. The co-offender provided the source with 4 ounces of heroin (112.2 grams) in return for $34,000 cash. The drug was later found to have a purity of 40.5%.
The co-offender also provided a small amount of ephedrine as a sample, so that the source could test it for purity. That actual supply appears on the Form 1 of the applicant, which, as I have said, was "attached" to the large commercial quantity offence.
On 16 August 2012, the co-offender met with the source in the southern suburbs of Sydney. They negotiated the supply of 6 ounces of heroin at a price of $8,500 per ounce, giving a total of $51,000. The co-offender spoke of needing to go and see his "friend" in order to obtain the heroin. Later that evening, the co-offender visited the home of the applicant, and later again met the source at a location close to the home of the applicant. The co-offender entered the applicant's home a second time, reappeared, and supplied the source with 168.1 grams of heroin at a purity of 40.5%, in return for the agreed sum of $51,000 cash.
In short, the involvement of the applicant in the supply by the co-offender on three occasions of a total of 336.4 grams of heroin, in return for a total of $99,000 cash, underpins count 1.
As for count 2, during August 2012 the co-offender and the source negotiated the supply of a kilogram of heroin. The co-offender spoke of being able to supply three blocks of 350 grams of the drug. The price for four blocks was said to be $295,000. Again, the co-offender spoke of the need to organise things with his "friend". There was a degree of contact between the co-offender and the applicant, including an organised meeting at the home of the applicant. Ultimately, the applicant, the co-offender and another offender (whose role and sentence are not relevant to the ground), were arrested in the car park of a suburban fast food restaurant. Found secreted in a footwell of the co-offender's vehicle was a block of heroin weighing 1049.8 grams, with a purity of 40%.
After his arrest, the home of the applicant was searched by police. In his garage were found tools that could be used to compress powder. Also found were a blender containing an amount of white powder, a clear plastic bag containing the same substance, a piece of foil enclosing the same substance, and a set of digital scales.
The powder in the blender weighed only 0.18 grams. It was heroin, as was the substance in the clear plastic bag. The latter weighed 118.6 grams, and had a purity of 42%. It is the much larger quantity that forms the second charge on the Form 1 of the applicant.
Judge Huggett found that "the offender played somewhat of a subordinate role" to the co-offender. However her Honour also (inevitably) found that the applicant was far more than a runner or storeman; rather, he was involved in the business of the supply of heroin at "a wholesale level", fulfilling a vital and important role.
Subjective features
Turning to subjective features, her Honour accepted that the applicant suffered from an addiction to gambling at the time of the offending, and that it motivated his crimes. Her Honour did not find, however, that that addiction should mitigate his moral culpability.
Her Honour accepted the following matters of background. The applicant was 53 years of age when he was sentenced. He enjoyed a close and happy childhood in Romania until his family migrated to Australia in 1984. As at the time of sentence, the applicant was in a supportive relationship with a woman who spoke well of him not only as a husband, but also as a father to her adolescent son, whom the applicant had adopted. Her Honour found that the applicant had applied himself to various forms of employment throughout his life. Her Honour also accepted that, in 2010, when his father and brother both passed away, the applicant began to drink alcohol excessively, and his gambling became more damaging.
Her Honour noted that the applicant had a limited criminal record. Of significance, however, was that he had been fined $600 for supplying prohibited drugs in 1988.
Her Honour also accepted that the applicant was remorseful with regard to his offending, despite the fact that he did not give evidence to that effect.
Her Honour expressed a guarded optimism about the prospects of rehabilitation of the applicant.
Aspects of sentence
Her Honour decided to impose an aggregate sentence. With regard to count 1 (knowingly taking part in the supply of the commercial quantity of 336.4 grams), her Honour adopted a starting point for the indicative head sentence of 8 years. Applying an uncontroversial discount of 25% for the early plea, her Honour indicated a head sentence of imprisonment for 6 years with a non-parole period of 4 years.
With regard to count 2 (knowingly taking part in the supply of the large commercial quantity of 1049.8 grams), her Honour adopted a starting point of 10 years. Applying the same discount, her Honour indicated a head sentence of imprisonment for 7 years and 6 months with a non-parole period of 5 years.
It can be seen that each of those indicative non-parole periods was two thirds of its indicative head sentence.
Ultimately, her Honour imposed an aggregate head sentence of imprisonment of 9 years and 6 months with a non-parole period of 6 years and 6 months. Again, special circumstances were given effect to globally: the aggregate non-parole period is a little over 68% of the aggregate head sentence.
The position of the co-offender
Turning to the co-offender, an overview of his position is provided in a recent judgment of this Court pertaining to the dismissal of his own application for leave to appeal: see Baias v R [2016] NSWCCA 269.
Objective features
In a nutshell, the co-offender was sentenced by his Honour Judge Townsden in the District Court of New South Wales at Sydney on 18 September 2015, two years after Judge Huggett sentenced the applicant. Again, his Honour imposed an aggregate sentence. Comparative analysis of his position for the purposes of the ground is made more difficult because the co-offender was sentenced for two further offences that did not involve the applicant: knowingly taking part in manufacturing methylamphetamine, and supplying a large commercial quantity of the same drug. Because the ground asserts erroneous disparity in the sentences relating to the supply of heroin, I shall not discuss those offences to do with methylamphetamine further.
Turning to the shared offences, the co-offender pleaded guilty in the Local Court to supplying a large commercial quantity of heroin. That was the block of heroin, weighing 1049.8 grams, that was located in his car when the co-offender and the applicant were arrested together on 24 August 2012.
The co-offender also pleaded guilty in the Local Court to supplying a commercial quantity of heroin. The amount of the drug was 613.89 grams (it will be recalled that the applicant knowingly took part, with the co-offender, in the supply by the co-offender of only 336.4 grams).
In short, the co-offender had further interactions with the police source, above and beyond those that I have outlined, in which the applicant did not feature. The four further occasions upon which the co-offender supplied heroin to the police source featured supplies of: 111.1 grams of 44% purity and 0.18 grams of 28% purity for $34,000 cash; 27.67 grams of 35.7% purity for $8,500 cash; 55.387 grams of 31.5% purity for $17,000 cash; and 83.132 grams of 32.8% purity for $25,500 cash.
The co-offender also asked Judge Townsden to take into account offences contained on a Form 1. In contrast to the applicant, however, the Form 1 of the co-offender was "attached" to the supply of a commercial quantity (it will be recalled that the Form 1 of the applicant was "attached" to the offence of knowingly taking part in the supply of the large commercial quantity).
In further contrast to the applicant, the Form 1 of the co-offender featured three charges: actually supplying pseudoephedrine in the amount of 1.44 and 9.612 grams, and offering to supply one kilogram of ephedrine. Again, those two actual supplies, and the offer to supply, arose from the interactions between the co-offender and the police source.
Subjective features
Subjectively, the co-offender was 58 years of age when sentence was imposed. He also had enjoyed a happy childhood in Romania. At the age of 30, he immigrated to Australia. Here he came into contact with sex workers and the drug milieu. By the time of sentence, he had developed a stable relationship with a woman who was of good character.
Judge Townsden accepted that the co-offender was not a well man: he was taking medication for high blood pressure and high cholesterol, and had suffered some kidney damage from untreated diabetes.
His Honour noted that the position of the co-offender (as recounted to a psychologist) was that his criminal activities were an ill-conceived effort to assist a debtor (himself a substantial drug dealer) in the repayment of a substantial debt that was owing to the co-offender.
His Honour noted that the co-offender was being held on protection for reasons that do not need to be discussed further.
The wife of the co-offender spoke of her commitment to him, and their shared plan to life a quiet life away from Sydney once he is released.
As for his criminal record, his Honour noted that the co-offender served a period of imprisonment for some years for supplying prohibited drugs (including heroin) in 1990.
His Honour assessed the prospects of rehabilitation of the co-offender as good.
A 10% discount was provided for assistance given, itself divided into 40% for past assistance and 60% for future assistance.
Judge Townsden had the remarks on sentence of Judge Huggett available to him. The following extract shows that his Honour made a considered assessment of the sentences imposed by her Honour, for the purposes of achieving parity between the two offenders:
In respect of the offences involving both the large commercial supply and commercial supply of heroin, the co-offender George Prelipceanu was sentenced for the same offences on 12 September 2013 by her Honour Judge Huggett. I would note, however, that the co-offender also admitted to a further two offences contained on a Form 1 schedule, the first being identical to this offender's Form 1, although the second involved a substantially larger amount of prohibited drug. However, this offender admitted to a third offence involving 1 kilogram of ephedrine. Both offenders entered early pleas of guilty. I am mindful that the co-offender Prelipceanu's Form 1 offences were attached to the offence of supply a large commercial quantity of heroin as opposed to this offender, now before the Court. Although the quantity in respect of the commercial supply is considerably less than the co-offender, the Form 1 offences are to be taken into account in respect of this offence. Given the offences as set out on the Form 1 schedule, I am satisfied that an increase in penalty is warranted for the principal offence.
Similarly, having regard to the principles of parity, the sentence in respect to sequence 13, I have taken into account that no Form 1 schedule is attached to that offence. In respect of these offences I would reduce the offender's overall sentence by 25% in respect of each offence having regard to the timing of his pleas.
The co-offender was sentenced to an aggregate sentence of nine years and six months imprisonment comprising of an aggregate non-parole period of six years and six months and an aggregate balance term of three years. The indicative sentence for each offence was six years with a non-parole period of four years in respect of count 1; and seven years and six months with a non-parole period of five years.
Notwithstanding her Honour's remarks as to the offender's role during the course of her remarks on sentence, the parties agreed that the facts presented to the Court in respect of this offender do not suggest he played a greater role. The Crown has accepted this position. I would accept the offender's role was not as a principal but that of an intermediary. Nor could it be said that his role was to any extent lesser than that of the co-offender. In taking into account the sentence imposed on the co-offender, I note that these are subsumed by the overall aggregate sentence I would impose, which includes the further offences of supplying methamphetamine.
I interpolate that I respectfully think that Judge Townsden made an error when his Honour said "the quantity in respect of the commercial supply is considerably less than [the applicant]" in sentencing the co-offender. In fact, as I have explained, the quantity actually supplied by the co-offender Baias in the commercial quantity was over 613 grams. As I have said, the applicant Prelipceanu knowingly took part in the supply of a commercial quantity with the co-offender, but only in the amount of 336.4 grams. That error by his Honour in favour of the co-offender will be discussed further later in this judgment.
Aspects of sentence
With regard to sequence 15 (the supply of a commercial quantity of heroin), Judge Townsden adopted a starting point for the indicative head sentence of 9 years (mathematically it was in fact 8 years and 11.7 months, but in my judgment in Baias v R, I have explained why I infer without hesitation that the starting point was in fact the round figure). Applying a total discount of 35% (25% for the early plea, and 10% for the assistance) to that starting point, and rounding down slightly, his Honour provided an indicative head sentence of 5 years and 10 months with an indicative non-parole period of 4 years.
For sequence 13 (the supply of a large commercial quantity of heroin), I confidently infer that his Honour adopted a starting point of 8 years and 6 months. Applying the same combined discount of 35%, his Honour provided an indicative head sentence of 5 years and 6 months, with an indicative non-parole period of 3 years and 9 months.
I shall not record the indicative head sentences for the offences to do with methylamphetamine that the co-offender did not share with the applicant, because they are irrelevant to the ground of appeal.
Although the aggregate sentence ultimately imposed is also irrelevant (because it inevitably reflects, to a degree, those irrelevant indicative sentences), for completeness only I record that his Honour imposed an aggregate head sentence of imprisonment for 11 years, with an aggregate non-parole period of 7 years and 6 months.
Submissions of the applicant
In asserting that erroneous disparity had occurred, the focus of counsel for the applicant was very much on the undiscounted starting points of the shared offences.
With regard to the offences to do with a commercial quantity of heroin, it was pointed out that the starting point of the applicant was 8 years. The starting point of the co-offender was 9 years. It was emphasised that the applicant was being dealt with for knowingly taking part in a supply, not a supply itself (although it was accepted that the maximum penalties were the same). It was also emphasised that the amount pertaining to the applicant was only a little over half the amount that related to the co-offender. Finally, it was said that the co-offender had a Form 1 attached to the commercial quantity, which included an offer to supply one kilogram of a precursor. The applicant had no Form 1 attached to his offence to do with the commercial quantity.
In short, it was accepted that the starting point of the applicant for the commercial quantity was shorter than the starting point of the co-offender. But it was submitted that it should have been even shorter than it was, giving rise to erroneous disparity.
As for the large commercial quantity, the starting point of the applicant was 10 years. The starting point of the co-offender was 8 years and 6 months. It will be recalled that the applicant had attached to the offence of knowingly taking part in the supply of the large commercial quantity a Form 1 that featured possession for supply of almost 120 grams of heroin. The co-offender had no Form 1 attached to this offence. Whilst counsel accepted that the starting point of the applicant should, as a result of that contrast, have been longer than the starting point of the co-offender, nevertheless it was submitted that it should not have been that much longer.
It was said that the subjective positions of the two offenders were to be roughly equated; certainly, it was submitted, there was no subjective feature that justified the divergence in starting points.
In short, counsel submitted that, once one engages in an analysis of the undiscounted starting points of the indicative head sentences of the shared offences, one can see that the applicant would experience an objective justifiable sense of grievance when he compares his position to that of the co-offender, thereby leading to the demonstration of erroneous disparity.
Determination
Turning to my determination of this matter, there are a number of aspects that argue against success of the ground.
The first is that I accept that it is not inappropriate to engage in an analysis of starting points of indicative sentences. Indeed, affording an ability to analyse sentence structures, and to compare sentences imposed upon offenders who share crimes, is one of the reasons why indicative sentences must be provided when aggregate sentences are imposed. It is also one of the reasons why transparent discounts for pleas of guilty and assistance are to be provided in sentencing.
Nevertheless, it needs to be borne in mind that it is neither the starting point nor the indicative sentence that can ultimately be the subject of an appeal. Rather, it is the aggregate sentence ultimately imposed that would need to be shown to be disparate to the point of error for the applicant to succeed.
Secondly, demonstration that the aggregate sentence imposed upon the applicant is erroneous is made more difficult in this case by the fact that, as I have said, the aggregate sentence actually imposed upon the co-offender incorporates indicative sentences for two completely unshared, serious offences that were nothing to do with the applicant.
Thirdly, I accept that, with regard to the shared offence to do with a commercial quantity of heroin, Judge Townsden made an error when sentencing the co-offender. As I have shown, his Honour believed that the quantity supplied by the co-offender was less than the quantity in which the applicant involved himself. In fact, it was much more.
In other words, the starting point of 9 years adopted by Judge Townsden with regard to the co-offender could very well be the result of a misapprehension about a significant comparator. If that be the case, that would argue against the applicant being able to rely on that erroneous starting point, just as a manifestly inadequate sentence imposed on a co-offender loses much of its force in a claim of disparity: see Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [33].
Fourthly, the fact that this Court will intervene to correct erroneous disparity demonstrated by an objectively justifiable sense of grievance inevitably calls for a degree of mathematical comparison of sentences imposed upon co-offenders. But sentencing judges are not required to measure and replicate, with mathematical strictness, sentences that they (or other judges) have previously imposed on a co-offender. In other words, parity analysis by a sentencing judge (or this Court) should not be mechanistic or deterministic; there will always be a range of sentences that comfortably fit within the pre-existing structure of sentences already imposed upon a co-offender.
Fifthly, it is true that there was not much to differentiate the two offenders subjectively. But Judge Townsden may have given weight to the fact that the co-offender was not in good health, and was on protection; his Honour was entitled to do so.
Sixthly, in light of the criminal conduct that I have outlined, the fact that the co-offender was dealt with for supply and the applicant was dealt with for knowingly taking part in that offence is of very little moment.
Here, with regard to the offending to do with the commercial quantity, Judge Huggett adopted a starting point of 8 years. Comparing that to the starting point subsequently adopted by Judge Townsden of 9 years gives one pause for thought, bearing in mind that (as I have said) the co-offender was to be sentenced for far more heroin than the applicant, and the offending on the Form 1 of the co-offender was to be taken into account in his sentence for that offence.
Bearing in mind the slip made by Judge Townsden, however, the parity argument with regard to the commercial quantity must fail. That is because I infer that the error made by his Honour played a role in the length of the starting point with regard to that offence. If that error had not occurred, I infer that the starting point of the co-offender would have been longer.
In short, I would draw the inference that the starting point of the co-offender with regard to the commercial quantity is a reflection of error, and that error should not lead to adjustment of the aggregate sentence actually imposed on the applicant. In other words, I cannot accept that an error that affected the sentence imposed on the co-offender should be permitted to play a role in reducing the sentence of the applicant; far from correcting the error, that would only compound it.
Turning to the large commercial quantity, as I have said the starting point of the co-offender was 8 years and 6 months. The starting point for the applicant was 10 years. But that divergence can be explained by the fact that the Form 1 of the applicant was taken into account with regard to that count. It featured the possession for supply of over 118 grams of heroin. As I have said, counsel for the applicant did not deny that a higher starting point was appropriate for her client as a result. She simply submitted that the extent of the divergence in starting points of 18 months gives rise to a justifiable sense of grievance on the part of the applicant, with respect to the aggregate sentence ultimately imposed upon him.
It is true that the divergence in starting points of 18 months is a substantial one. But it must be remembered that the divergence in starting points was immediately diluted by way of the (diverging) discounts afforded to the applicant and the co-offender. It was diluted further by the fact that the two indicative sentences in the case of the applicant were self-evidently the subject of a degree of implicit concurrency and accumulation between them. And the effect of the divergence was diluted yet again by the fact that an aggregate sentence was ultimately imposed on the co-offender that reflected two other serious drug offences.
Separately, it is to be recalled that Judge Huggett approached the sentencing of the applicant generally on the basis that his criminality was less than that of the co-offender. In contrast, Judge Townsden approached the sentencing of the co-offender on the basis that his offending was equal to that of the applicant. Therefore, the positive finding made by Judge Huggett in favour of the applicant was not maintained by Judge Townsden as a negative finding against the co-offender that favours the applicant. In other words, Judge Townsden did not sentence the co-offender on the basis that his objective crimes were worse than that of the applicant. That different approach by the two sentencing judges to the roles of the two offenders makes it harder for the applicant to succeed on the parity ground with respect to that offending.
Furthermore, the possession of almost 120 grams of heroin, unquestionably for supply and for profit, cannot be characterised as anything other than substantial criminality.
Finally, as I have said, parity analysis must admit of differences in emphasis in the evaluative judgments of appropriate sentences (and appropriate starting points) between different sentencing judges. It must also admit of a degree of flexibility in ultimate outcomes.
In all of the circumstances, I consider that the divergence in starting points with regard to the offences to do with the large commercial quantity of heroin does not give rise to a justifiable sense of grievance on the part of the applicant with respect to the aggregate sentences actually imposed upon him and the co-offender.
Accordingly, I do not consider that the ground is made out with regard to either indicative sentence of the applicant. It follows that I do not consider that there should be interference with the aggregate sentence actually imposed upon him.
Proposed Orders
Leave was required to argue the appeal, because it was out of time. In light of the fact that the ground was arguable, I propose that leave be granted.
I proposed the following orders;
1. Leave to appeal granted.
2. Appeal dismissed.
[2]
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Decision last updated: 02 December 2016