R v Dyson

Court of Criminal Appeal (NSW)|2023-06-02|Before: Button J, Hamill J, Sweeney J

HEADNOTE [This headnote is not to be read as part of the judgment] The Director of Public Prosecutions appealed, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), against the aggregate sentence imposed on the Respondent in the District Court for two offences to which he had pleaded guilty in the Local Court, being directing the activities of an organised criminal group and supplying a commercial quantity of cocaine, with an offence of knowingly taking part in a commercial drug supply on a Form 1 in respect of the latter offence. The issues were whether the sentencing judge erred in applying the parity principle, which resulted in the aggregate sentence imposed being manifestly inadequate. An issue in the sentence proceedings in the District Court was the sentence imposed in the Local Court on a co-offender. The sentencing judge was troubled by the difference between the relative roles of the Respondent and the co-offender in the drug supply enterprise as described in the Agreed Facts for the Respondent's sentence and in the different Agreed Facts for the co-offender's sentence in the Local Court. In sentencing the Respondent, the sentencing judge pronounced an aggregate sentence and then reduced that sentence by applying the parity principle. In doing so, his Honour proceeded on the basis of the co-offender's role as stated in the Respondent's facts for sentence, rather than in the co-offender's facts for sentence. The Court found that in adopting that two-staged approach, and having regard to the co-offender's role in the Respondent's Agreed Facts to apply the parity principle, his Honour erred and imposed a sentence that was inadequate. However, because the Respondent had been released from custody on the day of sentence and was progressing well in his rehabilitation, the Court decided to not intervene and resentence him and return him to custody, despite the Crown having established error and the Crown's persuasive submissions. The Court was of the view it could provide the necessary guidance to sentencing courts in respect of the application of the parity principle without resentencing the Respondent. Therefore the Crown appeal was dismissed.

JUDGMENT

BUTTON J: I have had the considerable benefit of reading the judgment of Sweeney J. It accords with my own reasons for joining in the orders of 2 June 2023. I add the following only by way of emphasis.
Imposition of an aggregate sentence shorter than both of the indicative sentences inherently shows that the proceedings on sentence miscarried.
The "two-step" approach to parity was, with respect, erroneous. Questions of parity are to be considered as part of instinctive synthesis.
It can be difficult for a busy sentencing judge or magistrate to reflect on parity when a co-offender has been sentenced for different offences; in a different jurisdiction; pursuant to a different sentencing regime; and, in particular, on different facts, especially when the facts of the offender to be sentenced discuss differently the role of the co-offender, and vice versa.
In my opinion, a practical synthesis of all of the authorities referred to by Sweeney J is that a sentencing judge or magistrate must give effect to parity principles in a common sense way, bearing in mind all of the differences between the two offenders, including any differences in the facts underpinning a sentence imposed upon a co-offender. Ultimately, as Rosenberg v R [2022] NSWCCA 295 at [10] shows, in order to avoid an endless circular conundrum, primacy must be given in sentencing an offender to their facts.
On reflection, the aggregate sentence was manifestly inadequate, as conceded by counsel for the respondent. But it was not so profoundly inadequate as to command intervention.
Finally, in my opinion the evidence established that this was a case in which it was in the interests of nobody for this Court to intervene and reincarcerate the respondent, thereby disrupting his developing rehabilitation in the community. This Court was well able to discuss matters of principle without doing so. And if the respondent received an "unearned benefit" as a result of his erroneous sentence, in my opinion it was far outweighed by the benefit to the community of him continuing to become a law-abiding citizen
HAMILL J: I have the great advantage of reading the judgment of Sweeney J circulated in draft. I agree with it and have nothing of substance to add. Her Honour's draft judgment explains the reasons I joined in the orders made at the conclusion of the hearing and that, while the sentencing proceedings miscarried for the reasons contended for by the Director, it was an appropriate case for this Court to exercise its discretion not to intervene to increase the Respondent's sentence. To do so would have required the Respondent's return to custody at a time when his progress towards rehabilitation appeared to be going well.
SWEENEY J: The Director of Public Prosecutions appealed, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), against the aggregate sentence imposed on Nathan Beau Dyson in the District Court, on the grounds that the sentencing judge erred in applying the parity principle and that the aggregate sentence imposed was manifestly inadequate.
At the end of the hearing on 2 June 2023 the Court indicated that it was unanimously satisfied that at least one ground of appeal must be upheld and also unanimously satisfied that the residual discretion to decline to intervene and resentence the Respondent should be exercised. The Court made orders dismissing the Crown appeal and indicated that reasons would be provided later. These are my reasons for joining in those orders.

The District Court sentence

Nathan Beau Dyson was sentenced by Priestley SC DCJ in the District Court at Grafton on 22 March 2023 for two offences to which he had pleaded guilty in the Local Court. The offences were Count 1, directing the activities of a criminal group whose activities are organised and ongoing, contrary to s 93T(4A) of the Crimes Act 1900 (NSW), which has a maximum penalty of 15 years imprisonment, and Count 2, supplying a commercial quantity of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), with a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years imprisonment. An offence on a Form 1 of knowingly taking part in the supply of a commercial quantity of methylamphetamine was taken into account in respect of Count 2.
The aggregate sentence his Honour imposed was 2 years and 3 months imprisonment with a non-parole period of 1 year and 9 months imprisonment. The sentence commenced on 23 June 2021 and the non-parole period expired on 22 March 2023, the date of sentence. Mr Dyson was released from custody that day.
The DPP filed its Notice of Appeal on 29 March 2023, in a timely manner. The basis of the Crown's appeal was that his Honour erred in applying the parity principle and that the aggregate sentence imposed was manifestly inadequate.
The Respondent having been released to parole on 22 March 2023, he was at liberty when this appeal was heard on 2 June 2023, and was present in court with family members for the hearing.

The sentence proceedings in the District Court

The sentence hearing for the Respondent occurred at Grafton District Court on 14 March 2023. An issue in the sentence proceedings was the sentence imposed in the Local Court on a co-offender named Paul Pincham.
Mr Dyson's sentence proceeded on the basis of Agreed Facts, to which his Honour referred in some detail in his sentencing judgment. The facts stated the following.
Mr Dyson was a fully patched member of the Lone Wolves outlaw motorcycle gang in Coffs Harbour. He was described as running a commercial cocaine supply syndicate between 11 November 2020 and 8 April 2021, the participants of which included Mr Dyson, Paul Pincham, Deanne Davis, Tyler Sinclair, Darren McGregor and Samuel Turner. The facts stated "The offender was directing the activities of the group. The offender was running the syndicate along with Pincham on a roughly equal partnership financially, although ultimately it was Pincham to whom he was answerable. The offender was the one who retained all of their business money however". These facts seem somewhat confused and inconsistent as to the roles and responsibilities of the Respondent and Mr Pincham. The sentencing judge also noted that paragraph 26 of the facts showed that Mr Pincham had a degree of authority over the Respondent because the Respondent had told another person he could not take particular action over money owed to him because Mr Pincham would "flip".
The facts stated that the Respondent owned and controlled two cars which were used in the drug supply enterprise though registered in other people's names. One had a hidden compartment in which drugs were transported. Another was used by another man to drive the Respondent, who did not have a current driver's licence.
The facts stated that the Respondent obtained cocaine from Brisbane, usually in half kilo quantities. He usually delivered them first to Mr Pincham, before receiving the amount he onsold himself.
The facts described the operation as sophisticated, including having camera surveillance at the Respondent's home, and conducting his communications with associates and customers on self-destructing apps and an encrypted phone.
The Respondent sold cocaine at commercial levels to at least seven associates who were dealing at street level, in quantities of between 1 and 8g, although one such person supplied 56g to one customer on one occasion.
The facts stated that the Respondent spent money on clothes, gambling and tattoos. His Honour did not accept the Crown's submission that the Respondent was living a lavish lifestyle. There was evidence that the Respondent used cocaine himself, but the sentencing judge found his offending went beyond supporting his own addiction and he made a financial gain.
The facts of the commercial supply offence in Count 2 were that on 8 March 2021, the Respondent and a man who drove him to pay off some drug debt drove to Brisbane in the vehicle with the hidden compartment, collected 500g of cocaine and took it back to Coffs Harbour for the purpose of supplying it. The Respondent took 14g of the cocaine for himself before he delivered it to Mr Pincham and told Mr Pincham he had been short supplied by that amount. The sentencing judge noted that that offence was also relied on as part of the offence of directing a criminal group and stated that for that reason the sentences should be significantly, if not totally concurrent. In the end result his Honour made the sentences for the two offences totally concurrent.
The facts of the offence on the Form 1 of knowingly taking part in the supply of the commercial quantity of methylamphetamine were that on 11 March 2021 the Respondent provided his vehicle with the hidden compartment to some other people for $1000, and they used the vehicle to transport 992g of methylamphetamine from Sydney to Coffs Harbour. The Respondent's liability for that offence was on the basis that he knew the amount of methylamphetamine being transported was at least 250g.
The sentencing judge assessed the objective seriousness of the Respondent's offence of directing the criminal group as in the mid-range. He took into account the regularity of offending, the number of people involved, the significant quantities of cocaine being supplied over the five month period during which the offending occurred, and that the level of direction of the "fairly unsophisticated group" was high. His Honour stated that "in terms of the degree of direction of the criminal group by the offender, on these facts the only person who has equal or greater authority is Mr Pincham". His Honour assessed the offence of supplying the commercial quantity of cocaine collected from Brisbane as "touching on the mid-range", given the quantity of 486g, by comparison to the commercial threshold of 250g, the Respondent's conduct and his role as a "mid-level supplier operating a supply business involving as many as seven people beneath him". His Honour assessed the offence on the Form 1 of providing his car to someone else for $1000 so they could collect at least 250g of methylamphetamine as in the low range, because of his distance from the actual offending. His Honour also took into account that that conduct was also relied on by the Crown as part of the Respondent's offence of directing the criminal group.
His Honour took into account that at the time of the offences the Respondent was serving an Intensive Correction Order. He took into account the Respondent's subjective case, including his age of 26 at the time of the offending, his criminal record of mostly driving while disqualified offences but no prior drug supply offences, trauma he experienced from sexual abuse as a child, his cocaine use, and the conditions he had experienced in custody because of Covid restrictions.
His Honour accepted that a 25% discount for early pleas of guilty was appropriate. His Honour stated that the "indicative head sentence" for the charge of directing a commercial group was 5 years imprisonment, which after the discount would be 3 years 9 months imprisonment. His Honour stated "the appropriate indicative sentence for the supply charge, taking into account the Form 1 matter to be 3½ years. After the discount and rounding down… the indicative term is 31 months". His Honour stated the sentences should be totally concurrent and stated the aggregate sentence to be 3 years 9 months imprisonment, with a non-parole period of 2 years and 3 months, finding special circumstances.
His Honour then stated that he turned to the issue of parity.
In the Respondent's sentencing hearing the Crown tendered the Agreed Facts for the sentence of Paul Pincham for one offence of participating in a criminal group, which has a maximum penalty of 5 years imprisonment, as distinct from the 15 year maximum penalty for the offence of directing an organised criminal group for which the Respondent was sentenced. The Crown also tendered Mr Pincham's criminal record. The Sentencing Remarks from the Local Court were not before his Honour.
In submissions, counsel for the Respondent advised his Honour that Mr Pincham was sentenced in the Local Court to a 13 month Intensive Correction Order, taking into account 5 months custody on remand. Counsel made submissions focusing on Mr Pincham's age of 56, compared to the Respondent's age at sentence of 28, and Mr Pincham's more serious record, including prior convictions for drug supply, drug manufacture and shooting with intent. Counsel submitted that Mr Pincham was either the Respondent's equal or superior to whom the Respondent had to deliver drugs first and provide money "up the line". His Honour noted in the course of hearing submissions that Mr Pincham was sentenced for a difference offence on different facts which said it was not clear what his role was, whereas the facts for the Respondent's sentence seemed to make clearer what Mr Pincham was doing.
His Honour asked if there was any authority dealing with the situation where the facts and the role of the co-offender were stated differently in Mr Dyson's sentencing facts than the facts on which the co-offender was sentenced. His Honour was told that the decision of Greaves v The Queen [2020] NSWCCA 140 did not assist because it was factually distinguished. The Crown submitted to his Honour that his Honour could not go behind the prosecutorial discretion in considering whether the Respondent would have a justifiable sense of grievance that Mr Pincham was charged with a lesser offence and dealt with in the Local Court.
Mr Pincham's facts stated that Mr Dyson was operating a commercial cocaine supply syndicate, and that members of the syndicate included Mr Pincham. They stated "the precise role [Mr Pincham] played in this criminal group is not clear. He dealt directly with Dyson. Dyson in turn had dealings with the other members". The facts also stated that Mr Dyson was responsible for holding Mr Pincham's unknown portion of the profits, essentially keeping it in trust for him and stated "it is clear such profits were not ultimately passed on to [Mr Pincham]".
In the part of his sentencing judgment dealing with parity the sentencing judge referred to the facts on which Mr Pincham was sentenced for his offence of participating in a criminal group. His Honour noted that, consistent with that charge, Mr Pincham was referred to in those facts in largely the same terms as the people being directed by the Respondent rather than as a person giving directions, although both the Respondent and Mr Pincham were identified as fully patched members of the outlaw motorcycle gang. His Honour referred to that part of Mr Pincham's facts which stated that the role Mr Pincham played in the criminal group is not clear and that he dealt directly with the Respondent who in turn had dealings with other members, and that the facts said the Respondent held profits on trust for Mr Pincham but that such profits were not ultimately passed on to him.
His Honour referred to the "significant difference" in Mr Pincham's facts and the Respondent's facts, in that the facts for Mr Pincham stated his precise role in the criminal group was not clear, whereas the Agreed Facts for the Respondent stated that the Respondent was running the syndicate with Mr Pincham on a roughly equal partnership financially and "ultimately it was Pincham to whom [the Respondent] was answerable". His Honour noted that the Respondent's facts stated that he retained all the "business money", and made clear the Respondent was holding money for Mr Pincham.
His Honour noted that Mr Pincham had pleaded guilty to a charge under s 93T(1) of participating in a criminal group, with a maximum penalty of only five years imprisonment, compared to the 15 year maximum penalty of the Respondent's offence. His Honour noted that submissions had been made on the Respondent's behalf about Mr Pincham's age and longer criminal record. His Honour noted Mr Pincham's sentence of a 13 month Intensive Correction Order which included allowance for 5 months on remand. His Honour noted submissions made on the Respondent's behalf that on his facts, he and Mr Pincham were approximately equally involved in the offending, and that the Respondent had a more favourable subjective case than Mr Pincham.
His Honour stated: "The issue that needs to be addressed in this case is that on the facts before me the criminality of the offender is no less than that of Mr Pincham. They have been involved in the same criminal enterprise. Yet Mr Pincham has been charged with a different offence and only one charge with no Form 1 matter and on the basis of facts where it was not known to the sentencing Court precisely what his involvement in the criminal group was. How is that to be dealt with? Is the equality principal offended by two people being dealt with properly on the facts as were agreed in their respective cases when in fact one set of facts understated that offender's involvement (Mr Pincham)? Or would some objective bystander consider that there was a justified basis for grievance on the part of the offender (Mr Dyson) because although he has admitted to the more serious conduct he is nevertheless being dealt with more harshly than Mr Pincham, who committed the same serious s 93T offence as the offender? Put another way, where two offenders have carried out the same or very similar conduct and one is first dealt with on lesser charges, should the second when being sentenced for more serious charges be sentenced without regard to the sentence imposed on the first offender?": [50].
His Honour referred to Lowe v R (1984) 154 CLR 606; [1984] HCA 46 and asked "whether due to the way in which Mr Pincham has been sentenced there should be a lesser sentence for the offender, on the offender's facts, than is appropriate": [52]. His Honour stated "The feature of the present case is that it is the change in the facts concerning Mr Pincham as set out in the Dyson facts that give rise to the argument as to a justifiable sense of grievance": [54].
His Honour stated: "In line with the principles concerning parity the sentencing judge of the second to be sentenced offender needs to take that into account and impose a sentence that would not engender a justifiable sense of grievance. But what is the sentencing judge to do when the first in time to be sentenced offender was dealt with on markedly different facts including being dealt with a marked less degree of criminal conduct and criminality, and where that second sentencing judge is presented with facts that show the criminality of the two offenders is on a par, if not that the criminality of the first offender is greater than the offender to now be sentenced?": [59].
His Honour stated that the decision of Greaves did not assist in the circumstances he was considering: "…where the facts on which the co-offender, Mr Pincham, was sentenced are changed when the other offender, Mr Dyson is to be sentenced. That is, that in respect of Mr Pincham's facts his role was significantly less for the purposes of his sentence than was recognised in the agreed facts in respect of the offender Dyson's sentence. What the Crown here seeks is for the offender to be punished more severely than Mr Pincham for conduct which is now known to be approximately the same": [66].
His Honour recognised his inability to review the prosecutorial charging discretion. His Honour stated: "The difficulty is that if the charges and facts relied upon against Mr Pincham in his case were all that was ever known about Mr Pincham then this would not be a case about like matters being treated in a like fashion or about equal justice because there are clear differences… The difficulty emerges because it is a case of like and like based on the facts on which the offender is to be sentenced. Whilst it is accepted that prosecutorial discretion is not to be gone behind that principle has little work to do when the different and more serious facts concerning Mr Pincham are indeed relied upon or agreed to by the prosecutor in the later case. The conundrum is that it is both a like and like case and not a like and like case, depending on which facts you refer to": [72].
His Honour stated: "The reality is that as matters now stand, and apparently did not stand at the time of the sentence of Mr Pincham, the true extent of Mr Pincham's involvement in this criminal activity is now known": [73]
His Honour then stated that the sentence he had determined: "…must be reduced… by reason of the application of the parity principle and the injustice that would be done to the offender by receiving a significantly greater sentence for in effect the same criminal conduct reflected in the set of facts on which the offender is to be sentenced, which acknowledge that Mr Pincham is as criminally concerned in the same criminal enterprise as the offender albeit that when he was sentenced it would appear that those facts were not as well known as they now are. The alternative way of dealing with the matter is to simply look at the charges faced by Mr Pincham and the facts that he was sentenced on and conclude that the two cases are different. In those circumstances there is only a modest need to consider the parity principle, and it would not change the sentence arrived at above": [75].
His Honour noted the Crown's submission to him that Mr Pincham was charged with a lesser offence and the facts of Mr Pincham's case were consistent with the lesser charge and different from the Respondent's facts, so there was little if any impact on the sentence by the application of the parity principle. His Honour stated: "The reason that approach has not been taken is that it is to accept form over substance and to knowingly look away from what is known now to be the factual situation. Consistent with doing equal justice and to avoid the appearance of injustice, the better approach is the one which sees the parity principle have a marked impact on the sentence of the offender": [79].
His Honour noted that Mr Pincham was sentenced to, in effect, a term of imprisonment of 18 months, with 5 months served on remand taken into account to reduce the sentence to 13 months, to be served by way of an Intensive Correction Order, with a condition to perform 150 hours of community service. His Honour noted that Mr Dyson had been in custody since 23 June 2021, for 21 months, a term already longer than that served by Mr Pincham, "yet it is known that Mr Pincham was as equally criminally responsible if not more so for this offending than the offender, albeit that was not known at the time Mr Pincham was sentenced": [80]. His Honour referred to Mr Pincham's age, criminal history and noted that "his subjective case is not as persuasive as the offender's": [81]. His Honour stated the result for Mr Dyson should be an aggregate term with a non-parole period of 21 months and an additional term of 6 months imprisonment. His Honour so sentenced Mr Dyson, and the sentence having commenced on 23 June 2021, Mr Dyson was released from custody on the expiration of his non-parole period on the date of sentence.

Crown submissions on appeal

The Crown submitted that his Honour's sentencing discretion miscarried in the application of the parity principle. The Crown submitted his Honour erred in assessing the criminality and role of Mr Pincham on the Respondent's facts for sentence rather than the facts upon which Mr Pincham was sentenced. The Crown submitted that the latter was the correct approach, in accordance with this Court's decision in Rosenberg v R [2022] NSWCCA 295.
The Crown also submitted that his Honour erred in adopting a two-staged approach of indicating sentences for each offence, reaching an aggregate sentence, in which the two indicative sentences were wholly concurrent, then considering the parity principle and reducing the aggregate sentence, rather than considering parity as part of the instinctive synthesis. The Crown pointed out that a result of the process adopted by his Honour was that the aggregate sentence ultimately imposed was less than both of the indicative sentences his Honour stated for the individual sentences.
The Crown submitted the aggregate sentence imposed of 27 months imprisonment with a non-parole period of 21 months was manifestly inadequate, in the sense of being unreasonable or plainly unjust, for the two offences, having regard to their maximum penalties and the standard non-parole period for the offence in Count 2, their facts and circumstances, including the nature of the operation, the degree of the Respondent's direction of the group, the five month offending period and the quantity of the drug the subject of the Count 2 offence, their objective seriousness as assessed by his Honour, the Respondent's subjective case and that he committed the offence in breach of an Intensive Correction Order.
The Crown submitted that the Court should correct and give guidance to sentencing courts as to the proper application of parity principles in circumstances of agreed facts disclosing different roles and offences and of different sentencing courts' jurisdiction. The Crown submitted that the Respondent should be resentenced.

Respondent's submissions

Counsel for the Respondent conceded that the sentencing judge erred in the application of the parity principle and that there was an inadequacy in the resulting sentence, though challenged whether it was "profound". Counsel submitted the Court should exercise its residual discretion and not resentence the Respondent.

Principles

In Green v The Queen; Quinn v The Queen [2011] HCA 49, French CJ, Crennan and Kiefel JJ stated: "The primary purpose of appeals against sentence by the Director of Public Prosecutions under section 5D of the Criminal Appeal Act is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under section 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the residual discretion": [1].
The essential starting point or purpose of the principle of parity in sentencing, as stated by the High Court in Lowe v The Queen and Green v The Queen, is that it applies to the sentencing of co-offenders whose culpability for the offence and whose antecedents are comparable: Bell J in Green at [105].
In Lowe Gibbs CJ said at [3]: "It is obviously desirable that people 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 age, background, previous criminal history, the general character of the offender and the part he played in the commission of the offence have to be taken into account".
In Jimmy v R [2010] NSWCCA 60 this Court said the principle of parity is not confined to the sentences imposed on co-offenders in the sense of people charged with very same crime, but applies to bring about a just result in the sentences imposed on people engaged in the same criminal enterprise regardless of the charges laid against each, though it cannot overcome the differences in sentences which arise from a prosecutorial decision about what to charge people with.
Despite many strong statements by the High Court and this Court about the desirability of co-offenders being sentenced by the same judge, it not uncommonly occurs that co-offenders are sentenced by different judges or by different courts and on the basis of different facts or evidence. The following is a summary of the principles which have been stated by this Court in respect of those sentencing situations:

The sentencing principles to be applied in the process of sentencing are the same in the Local and District Courts (albeit that standard non-parole periods do not apply in the Local Court). The parity principle is applicable when co-offenders involved in the same events are dealt with summarily or on indictment: Greaves v R per Cavanagh J, Hoeben CJ at CL and Hamill J agreeing. Regard can be had to sentences of co-offenders in the Children's Court, although involving a different sentencing regime: R v Boney [2001] NSWCCA 432.
The Crown has a duty to inform a sentencing court of the sentence imposed on any co-offender and provide the sentencing court with the factual material and subjective circumstances before that court and the sentencing judgment of the court which sentenced the co-offender, so that the Crown and offender's legal representatives can make submissions about the parity principle to assist the sentencing Court: Shortland v R [2013] NSWCCA 4 per Johnson J, Hoeben JA and Button J agreeing.
Where co-offenders are sentenced separately there may be differences in the "substratum of facts" upon which the different sentencing judges act and the impressions formed by them with respect to the relative roles and levels of responsibility: Dwayhi v R [2011] NSWCCA 67 at [38] and there may be different evidence and submissions leading to different conclusions being expressed by sentencing judges about the criminal conduct of people involved in the same criminal enterprise: Rae v R [2011] NSWCCA 211 per Johnson J at [54] and [56].
While there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different offences of different seriousness: Shortland at [122], to determine whether parity principles apply between an offender being sentenced and a co-offender previously sentenced, the latter sentencing judge must consider the facts of the offences and the charge brought against the offender for sentence and the co-offender, and the findings made by the previous sentencing judge about the co-offender, but should not go behind the findings by the previous sentencing court to assess whether and to what extent they were available: R v Chandler; Chandler v R [2012] NSWCCA 135.
Where pleas are negotiated and agreed on different bases for co-offenders, there will usually be no mechanism by which a sentencing judge can resolve contradictory propositions about the roles of co-offenders. The urge for equal justice may seem to be frustrated by factual inconsistencies. But sentencing occurs on the basis of the evidence before the sentencing judge: PG v R [2017] NSWCCA 179 per Basten JA at [23-24]. Button J and N Adams J agreeing on this point.
An offender is to be sentenced only on the basis of facts tendered against him. The sentencing judge should not have regard to anything said about his role in another statement of facts tendered against another offender. Otherwise an offender is being sentenced on the basis of material which was not tendered against him. Where two offenders come to be sentenced by the same judge or by different sentencing courts, on separate agreed statements of facts which contain material differences the comparison, for parity purposes, is between what the agreed facts for one offender show was his culpability and the culpability of the co-offender as shown by the agreed facts for the co-offender's sentence. It is erroneous to compare the role of an offender as disclosed in his agreed facts and the role of the co-offender described in those same facts, because the co-offender was not sentenced on those facts. He was sentenced on the basis of the facts tendered in his sentence proceedings: Rosenberg v R per Beech Jones CJ at CL at [9-10], Meagher JA and Garling J agreeing.

Decision

It is clear that his Honour did not follow the process stated in Rosenberg. His Honour was not provided with that decision. In considering the role of Mr Pincham in the Respondent's facts as he did, his Honour erred. His Honour also erred in considering the parity issue after he had announced the discounted aggregate sentence and reducing that sentence for reasons of parity. In the result his Honour ultimately imposed a sentence which was manifestly inadequate for the offences for which the Respondent was being sentenced, having regard to their facts and circumstances and seriousness and the Respondent's personal circumstances.
Error having been established it was incumbent on the Crown to demonstrate that the Court should exercise the discretion in s 5D to impose a different sentence on the Respondent: CMB v Attorney General for New South Wales [2015] HCA 9 per French CJ and Gageler J at [33-34].
The Crown appeal was brought without delay.
The Respondent was released to parole on 22 March 2023 and has remained at liberty. There was evidence before the Court, from the Respondent and his Parole Officer, that he is making progress in his rehabilitation, in that he is living with his mother and sister, has re-established family relationships, is employed full time, has secured fortnightly visits with his three year old daughter, is reporting to his Parole Officer, has demonstrated good insight into his offending behaviour, has distanced himself from past negative associates and reports he has not used illicit drugs since his release from custody. To re-sentence the Respondent and return him to custody would likely disrupt his progress towards his rehabilitation which he has demonstrated. His rehabilitation is a purpose of sentencing and a benefit to the safety of the community, and therefore a powerful reason to not intervene.
Having regard to the purposes of Crown appeals, the Court was of the view it could provide the necessary guidance to sentencing courts without disrupting the Respondent's progress towards his rehabilitation, despite the establishment of error and the Crown's persuasive submissions. For those reasons the Court ordered that the Crown appeal was dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 June 2023

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