92 It must also be recognised that the only presently relevant issue in the Court of Criminal Appeal decisions in Gatellari and Licastro was whether the sentences were excessive, and there was never posed for the Court's decision whether they were adequate. The decisions are consequently of limited weight.
93 However, any reliance on the cases summarised in the Schedule to these reasons must take into account two significant factors. Firstly, a number of the sentences imposed in the cases reflected considerations of double jeopardy and principles applicable in Crown appeals prior to the passing of the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009. Secondly, the standard non-parole period for the offence of cultivating a large commercial quantity of cannabis plants only came into force on 1 January 2008 for persons convicted or whose plea of guilty was accepted after that date - see Crimes (Sentencing Procedure) Amendment Act (2007).
94 When regard is had to the fact that the Judicial Commission statistics show that of 39 offenders sentenced between January 2002 and December 2008 and to whom the standard non-parole period did not apply, for cultivation of a large commercial quantity of cannabis plants, the highest sentence imposed was for a full term of 6 years (imposed on 4 offenders) and the mean sentence was 3 years (imposed on 10 offenders), it is clear that Parliament intended that sentences for the offence should increase. I do not of course ignore that the sentences reflected in the statistics will have been after discounts and other matters had been taken into account but the difference between the standard non-parole period and the statistics is too great to be accounted for solely by such matters. It was contemplated in R v Way (2004) 60 NSWLR 168 at [132] et seq. that such an increase might well be a consequence of the introduction of the standard non-parole periods.
95 In the result, I find these previous decisions concerning the penalties for the cultivation of large commercial quantities of cannabis to be of almost no assistance.
96 In so concluding, I do not ignore an argument advanced on behalf of the Respondents that, given that the standard non-parole period did not apply in terms but only as a guide-post, and that much of the cultivation with which they were charged occurred prior to the introduction of the standard non-parole period for cultivation of a large commercial crop, it should not have the weight it would have if all of the cultivation had occurred after 1 January 2008. I do not agree. The Respondent's chose to continue to offend after 1 January 2008 - indeed to a substantial degree - and though they were almost certainly not aware of the introduction of the relevant legislation, the Crimes (Sentencing Procedure) Amendment Act (2007) specifically provides that the amendments made apply, with exceptions not presently relevant, to offences, whenever committed.
97 In opposition to the appeal attention was drawn to the subjective matters to which I have referred above. Although most of these matters have been mentioned previously, it is convenient to repeat here that, in the case of Mr Quinn, mitigating features included his plea, that he had no record of previous convictions that I would regard as significant for present purposes, matters referred to in testimonials, his remorse, that he is unlikely to re-offend and has good prospects of rehabilitation. In the case of Mr Green, there should be added to these matters that he was of good character. Despite them, I have no doubt that when regard is had to the statutory provisions to which I have referred, both the head sentences and non-parole periods imposed on the Respondents were manifestly inadequate.
98 Before I turn otherwise to the issue of what consequences should flow from that conclusion, it is necessary to address some arguments raised on behalf of the Respondents. It was submitted that to increase the Respondent's sentences would create disparity with the sentence of 3 years, including a non-parole period of 18 months, imposed on Taylor and, as has been said, against which the Crown did not appeal and, in light of the decisions of R v McIvor [2002] NSWCCA 490; (2002) 136 A Crim R 366, R v Borkowski (2009) NSWCCA 102 at [69] and Cvitan v R [2009] NSWCCA 156, this was something that the Court, in a Crown appeal, would not do. Indeed as first formulated, the proposition advanced was that the Court could not do so.
99 The Crown submitted that because of differences between Taylor on the one hand and Messrs Quinn and Green on the other considerations of parity did not arise. In that connection the Crown relied on the fact that Taylor's offence involved a commercial and not a large commercial quantity, he was awarded a discount of 25% and not 20% for his plea, he was lower in the hierarchy than Mr Green, he was aged 19 at the time of offending whereas Mr Quinn was 31 and Mr Green 24. On the other hand, contrary to the situation of Messrs Quinn and Green, Mr Taylor was not of good character, could not be said to be unlikely to re-offend and had a need for supervision for a significant period.
100 Because the charge against Taylor was different from that to which the Respondents pleaded guilty and carried a significantly different penalty, the case is not one of strict parity. However, while recognising the difficulties adverted to by Campbell JA in Jimmy v R [2010] NSWCCA 60 at 203, because of the similarity in the charges and the similarity of offending, particularly in the case of Taylor and Green, the case is one where considerations of relative parity should be taken into account - see Jimmy v R at [246], [268]; Shen v R [2009] NSWCCA 251 at [33].
101 In R v McIvor, Heydon JA, with whom Levine J and Carruthers AJ concurred, contrasted the situation where a court was asked to reduce an appropriate sentence to an inappropriate level to achieve parity with a situation where the Court was asked to increase an unduly lenient sentence when the result would be to create disparity. At [9-11] his Honour remarked:-
9. … Is it a fair answer to say to McIvor: "Though you and Hernando played similar roles in the crimes and have similar backgrounds, it is just that he serve six months in gaol and you serve fifteen months because he can take advantage of a mistake by the Crown?"
10. It is appreciated that Lowe v R (1984) 154 CLR 606 does not automatically mean that any difference in sentences for co-offenders should mean that the higher sentence is unjust. See R v Diamond (Court of Criminal Appeal, unreported, 18 February 1993) and R v Steele (Court of Criminal Appeal, unreported, 17 April 1997). Those authorities indicate that what must be compared are appropriately lenient or low sentences with more severe sentences. If a sentence is inappropriately lenient, that is no justification for reducing a more severe sentence on a co-offender. As Brennan J said at 617, it is not the case that where there is one wrong sentence and one right sentence, the court should reduce the right sentence to the level of the wrong sentence. The more severe sentence should not be reduced to a level which is so far out of line with what is right that it is an affront to the administration of justice. But that line of authority deals with attempts by convicted persons to have their severe sentences reduced on appeal by comparison with lenient sentences on co-offenders. They do not deal directly with the present position - a question of whether a sentence on one co-offender should be raised while the identical sentence on another co-offender remains unchanged. In that type of circumstance, illustrated by the present case, questions of justifiable grievance arising by reason of a move from parity to a lack of parity have a different quality.
11. Though McIvor cannot rely on the factor of delay in his particular case to any effective extent, it would be likely to excite a sense of grievance in McIvor if his sentences were increased while those imposed on his co-offender remained the same. That sense of grievance would be justifiable, because the difference would not depend on anything in the objective circumstances of the crimes or in the subjective circumstances of each co-offender's background. This legitimate sense of grievance would be likely to generate a bitter resentment antithetical to the prospects of avoiding recidivism. From this point of view McIvor is perhaps even more fortunate than Hernando, for not only did he share the same sentencing judge, he has been able to take account of a fact which is not peculiar to his own position, namely that, assuming that there were appellable errors in the sentencing judge's approaches in the two cases, Hernando's sentence is not to be changed by reason of the adventitious circumstance of the Crown's gross delay.