He said that May, on each occasion, drove the car in which the applicant was transported but his Honour accepted that May knew little about the supply of the drug (although he did know that what he was doing was illegal) and that his involvement was limited. He noted May's age - twenty-two years at the time of the offences - and that he had no relevant criminal record. He said that May was not a member of the motorcycle club but was "a nominee". This meant that he was required to assist the club members, and O'Reilly DCJ inferred that the applicant took advantage of May's inferior position in the organisation to recruit him into the transactions. He said that May had severed contact with the club, had a nine month old daughter whose mother he assisted financially and that he also assisted his widowed mother. May's mother gave evidence that May was ashamed of his involvement in the offence and his conviction. It is plain that O'Reilly DCJ had real confidence in the evidence pointing to May's rehabilitation. He concluded that it would be "utterly counterproductive" to impose a term of full-time custody upon him.
22 The various circumstances alluded to by O'Reilly DCJ make it plain that, even though May was a co-offender, the circumstances of the two offenders were so disparate as not only to warrant, but positively to demand, different sentences. The applicant was, at the time of the offences, twenty-five years older than May; he was the president of the motorcycle club that May aspired to join; he had a lengthy record of criminal offences, including one previous drug offence; he was on parole at the time of the commission of the offences; and, on no view of the material placed before Gibson DCJ, could any reasonable confidence be had in his rehabilitation.
23 I would reject the argument that any question of proportionality arises between May and the applicant.
24 Indeed, counsel who appeared for the applicant on the application recognised that "no direct parity" arose and directed his arguments to "proportionality".
25 The next matters raised under this "proportionality" ground concerned sentences imposed on 18 October 2002 by Finnane DCJ on Ivan Tesic and David Anthony Snow. Snow pleaded guilty to four charges, these being of knowingly taking part in the manufacture of not less than the commercial quantity of methylamphetamine and the second of supplying the same quantity of that drug, both offences having been committed over a period in the first half of 2000. The third and fourth counts were of assaulting police officers in the execution of their duty. There were also some offences taken into account pursuant to Part 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999 but the nature of these does not clearly emerge from the remarks on sentence. The counts of assaulting police officers were particularly serious instances of their kind, such as to lead the sentencing judge to the view that they called for the imposition of the maximum penalty available, although he reduced that by reason of the offender's pleas of guilty.
26 All that links these offenders and their offences with the applicant and his offences, is their membership of the same motorcycle club. In the written submissions filed on behalf of the applicant it was asserted that Snow and Tesic were the manufacturers "of the drug", presumably meaning the drug which the applicant supplied to the undercover operative. No issue was taken with this assertion although there is no direct evidence to support it. It is on this basis that they are put forward as persons to whose sentences the sentences imposed upon the applicant should bear reasonable proportionality.
27 On each of the drug charges against Snow Finnane DCJ sentenced him to imprisonment for six years with a non-parole period of three years, the sentences to be served concurrently, commencing 2 May 2000. On the assault counts Finnane DCJ sentenced Snow to imprisonment for three years and nine months with a non-parole period of one year, to commence on 1 May 2002.
28 The effective head sentence imposed upon Snow was thus imprisonment for six years with an overall non-parole period of three years.
29 Snow was about thirty-five years of age at the time of the offences and had a rather serious criminal history, including what was described by the sentencing judge as "various sentences imposed upon him" for supplying prohibited drugs. He had abused leniency when it was afforded to him. However, Finnane DCJ accepted that, at thirty-seven years of age (at the time of sentence) that there was some basis for confidence in his rehabilitation.
30 Tesic was a co-offender of Snow, charged with one count of knowingly taking part in the manufacture of not less than a commercial quantity of methylamphetamine and another of knowingly taking part in the supply of not less than the commercial quantity of the same drug. Two further counts of the same kind but excluding the circumstance that not less than a commercial quantity was involved were taken into account pursuant to the Crimes (Sentencing Procedure) Act. Tesic was sentenced to an overall head sentence of six years and nine months with a non-parole period of three years.
31 Tesic was about twenty-seven years of age at the time of the offences and had a criminal record, although it appears to have been not as serious as that of Snow. Again, Finnane DCJ appeared to accept the evidence of rehabilitation.
32 I will return to the question of proportionality so far as it involves the sentences imposed upon Snow and Tesic.
33 The final matter raised under this ground of appeal concerned a sentence imposed on John Edward Parkinson who was initially sentenced in the District Court on 2 February 2001 on three counts of supplying methylamphetamine, one of supplying not less than the commercial quantity of the drug, one of knowingly taking part in the manufacture of amphetamines, and sale of an unregistered firearm. A further seven matters, involving three instances of supplying amphetamines, one of supplying a firearm, goods in custody ($2,000 in cash), possession of a small amount of cannabis and possession of a semi-automatic pistol were taken into account pursuant to the Crimes (Sentencing Procedure) Act. An application for leave to appeal was successful: see R v Parkinson [2001] NSWCCA 244, unreported, 27 June 2001 (revised 1 July 2001).
34 The reason Parkinson is said to be relevant on the issue of proportionality is to be found in an exchange between counsel for the Crown, counsel for the applicant, and Gibson DCJ during the applicant's sentencing proceedings. The Crown Prosecutor provided to the judge, as part of Crown material, a copy of the judgment in Parkinson's case, who she then described as a co-offender. Counsel for the applicant took issue with that description to which the Crown Prosecutor replied:
"Your Honour, they're not co-offenders strictly speaking in the sense of embarking on the same criminal enterprise at the same time, however there were parallel situations your Honour, where two police undercover operatives were purchasing drugs - "