The difference in objective and subjective culpability, which is found in these decisions, is such that any search for a correlation between the case at hand and another decided case is to ignore the judicial discretion which is involved in the individual sentencing exercise required. As Barr J said in Trevenna , 'Even if it were possible to say that the culpability in two unrelated cases was the same it would not be correct to say, if the sentences were different, that for that reason alone one of them must be wrong.' Inter alia any such approach would have to assume that the other was correct, and that is an assumption which cannot logically be made."
70 Similar sentiments have been expressed by this Court when arguments have been advanced on appeal comparing sentences imposed for offences of dishonesty or fraud committed by persons who are not co-offenders: R v Hawker [2001] NSWCCA 148 at paragraphs 17-18; R v Swadling [2004] NSWCCA 421 at paragraphs 29, 54; R v Martin [2005] NSWCCA 190 at paragraph 56. In each of those cases, the Court has emphasised that far greater assistance is derived from references to general sentencing policy.
71 In R v Singh [2001] NSWCCA 424, an argument was advanced that an unjustified disparity existed between the overall sentence imposed upon the Applicant when compared with others who might be considered to be his co-offenders. It was submitted for the Applicant that he was one of a group of offenders, most of whom had been dealt with by different District Court Judges, in respect of the sale of amphetamines from a particular café in Kings Cross. In the course of rejecting this argument, Howie J (Grove J agreeing) said at paragraph 12:
"The applicant was never charged with any offence in relation to the supply of drugs to, or by, the persons at the café. The applicant was not a co-offender of any person other than the unidentified person or persons who supplied him with the drugs that he on-supplied to the operative. The supply to the undercover officer was only in the most indirect way connected to the criminal conduct emanating from the café and for which other persons were sentenced. As Judge Woods noted, the applicant was not the target of the police operation and, in his Honour's words, he 'simply became roped in'. Regardless of what sentences the persons connected with the drug dealing from the café received, the applicant could not have a justifiable sense of grievance about them. The sentences of those persons are no more relevant than would be the sentences imposed upon other associates of the applicant for unrelated drug offences. Although Judge Woods said that he would bear in mind the sentence imposed upon one of the barmen at the café for supplying ecstasy, I cannot understand why he did so."
72 It was accepted in this case that the Applicant and Mr Chandra were not co-offenders. Whatever may have been the position with the offences contained in the original indictment, it is the case that none of the offences to which the two offenders ultimately pleaded guilty were committed by them as co-offenders. As will be seen, it appears that there was some association between the two offenders and some overlap in their activities. However, I do not consider that this attracts the parity principle to the Applicant's case. In my view, the correct approach to the present argument involves application of the principles referred to in Morgan, F, George and Singh referred to above.
73 Given the argument advanced on behalf of the Applicant, however, it is appropriate that I refer to Mr Chandra's case and his sentencing outcome. The Court was provided with the remarks on sentence of Ainslie-Wallace DCJ in sentencing Mr Chandra on 9 September 2004. He had pleaded guilty to four counts of obtain financial advantage by deception contrary to s.178BA Crimes Act 1900. The offences were committed on 5 December 2001, 24 February 2002, 9 May 2002 and 29 May 2002. Three of the charges involved the obtaining of air tickets by the provision of credit card numbers with the air tickets obtained in that way having a total value of $5,700.00. One of the counts involves the use of a credit card belonging to a Ms Matthews being the same name as the card number in one of the Applicant's offences (Count 5). It is not known whether this was the same cardholder's name being used by the two offenders.
74 The fourth count against Mr Chandra involved a telephone purchase of three air conditioners for a total amount of $13,700.00 by provision of false credit card details. With respect to this offence, which was committed on 5 December 2001, Mr Chandra later said that he purported to collect the air conditioners on behalf of the present Applicant (whom he had met shortly before the commission of the offence) and that he, Mr Chandra, was being paid $1,000.00 to collect the units. It will be observed that the present Applicant did not plead guilty to any count involving the fraudulent obtaining of air-conditioning units.
75 There were two passing references to Mr Chandra in the Agreed Statement of Facts in the proceedings against the Applicant. First, one of the 15-named persons for whom air tickets were purchased with respect to Count 4 was "Mr J Chandra". Second, the search warrant executed by police on 20 June 2002 related to "accommodation occupied by Araya, Chandra and Paredes". Thus, the material before Ainslie-Wallace DCJ in the Applicant's proceedings pointed to some form of association between the Applicant and Mr Chandra. However, as was common ground before this Court, they were not co-offenders.
76 Mr Chandra was 27 years old, had been born in Indonesia and had been residing in Australia since 1983. He had a prior criminal history of convictions for stealing and break enter with intent to steal for which he had received a community service order which he breached and for which he received a further community service order. He had two convictions for driving whilst disqualified.
77 Mr Chandra was arrested on 23 June 2002 and spent one month and 23 days in prison in relation to the offences for which he was sentenced. Ainslie-Wallace DCJ observed that this was his first time in custody.
78 Mr Chandra pleaded guilty to a reduced number of charges after his trial date had been fixed. Ainslie-Wallace DCJ records (remarks on sentence, 9 September 2004, page 4.7) that the Crown conceded that in the circumstances of the case, the plea should be regarded as being entered at an early stage. Her Honour allowed a 20% discount on sentence in this regard.
79 Ainslie-Wallace DCJ said with respect to Mr Chandra (remarks on sentence, 9 September 2004, page 5.6):
"The objective gravity of these offences are such that an effective sentence of thirty months imprisonment would be required. I take into account the plea of guilty and in relation to which I propose to discount the sentence I would otherwise have imposed by twenty per cent which leads to an effective head sentence of twenty-four months.
I turn now to a consideration of how that sentence should be served. For the offender it was submitted that a suspended sentence would meet the need of a sentence to reflect the objective seriousness but which also would allow for the offender to continue the steps which he has made towards his rehabilitation. The Crown too submitted that a suspended sentence was within the range of appropriate sentences for this case."
80 In the result, Ainslie-Wallace DCJ sentenced Mr Chandra to an effective non-parole period of 16 months and a total sentence of two years' imprisonment, both to date from 19 July 2004. Pursuant to s.12 Crimes (Sentencing Procedure) Act 1999, her Honour suspended the operation of the whole of each of the sentences upon the condition that Mr Chandra enter into a bond to be of good behaviour and accept the supervision of the Probation and Parole Service.
81 Senior Counsel for the Applicant contends that Mr Chandra had a history for convictions for dishonesty and other offences and had previously received community service orders, one of which he breached. Mr Chandra was allowed a 20% discount for his plea of guilty, but the Applicant was only allowed a 15% discount. It is contended that Mr Chandra's criminality was comparable to the Applicant in most respects and that it was surprising that he received substantially lower sentences and, in particular, that his sentence was suspended.
82 The Applicant submitted that the Court should intervene to reduce the Applicant's sentence because of the wide disparity between the sentences imposed upon the two offenders. Alternatively, it is contended that Mr Chandra's sentences illustrate that the sentences imposed on the Applicant are excessive.
83 The Crown submits that Mr Chandra was not a co-offender and was not sentenced for the same offences as the Applicant. He was sentenced on four counts and not six; three of those counts being similar in nature to those of the Applicant.
84 Furthermore, the subjective material in respect of Mr Chandra, and the findings made by Ainslie-Wallace DCJ, differed significantly from the subjective material and the findings made in respect of the Applicant. The Crown submits that these differences should be acknowledged even applying ordinary parity principles: Lowe v The Queen (1984) 154 CLR 606; R v Li and Ors [2005] NSWCCA 154 at paragraph 42.
85 I do not consider that the matters raised in this ground of appeal provide a basis for this Court to intervene with respect to the sentences imposed upon the Applicant. The Applicant and Mr Chandra were not co-offenders. The parity principle has no direct application to this case. It is true that the two offenders are not unrelated. This is not a case such as Morgan, F and George where the Court is asked to compare sentences for entirely unrelated offenders and offences. This case is closer to Singh where a parity-type argument was rejected.
86 The applicable principles, however, are those contained in Morgan, F, George and Singh. The issue is whether the sentences imposed upon the Applicant are outside the appropriate range of sentence for offences of this type. A comparison of the Applicant's case with the sentences imposed upon Mr Chandra does not demonstrate error in this respect.
87 Even if the parity principle is considered by analogy in this case, I do not consider that the Applicant has a legitimate grievance in accordance with that principle. There were differences in the objective and subjective circumstances of the two cases. In Mr Chandra's case, Counsel submitted that a suspended sentence was an appropriate sentencing outcome and the Crown conceded that a suspended sentence was within the available range of sentences for that case. The view might be formed that the suspension of Mr Chandra's entire sentence of imprisonment was a most lenient and fortunate outcome for him.
88 If the parity principle had application here, it would still be for this Court, in the exercise of discretion, to determine whether there is disparity of a kind which should attract appellate intervention: R v Rexhaj (Court of Criminal Appeal, 29 February 1996, BC9600975 at page 7); R v Steele (Court of Criminal Appeal, 17 April 1997, BC9701297 at pages 11-12). In the circumstances of this case, I do not consider that this Court, acting in accordance with the appropriate principles, ought intervene to vary the Applicant's sentence.
89 I reject Ground 5.