R v Le Van Huu [1999] VSCA 40

5. The applicant subsequently lodged a notice of application for leave to appeal against sentence pleading the following grounds:

"1. The learned sentencing judge erred by failing to give any, or adequate, weight to the applicant's plea of guilty. 2. The learned sentencing judge erred by failing to give adequate weight to the applicant's prospects of rehabilitation. 3. The learned sentencing judge erred in failing to give any, or adequate weight to the applicant's lack of prior conviction. 4. The learned sentencing judge erred in that too great an emphasis was placed on general deterrence. 5. The learned sentencing judge failed to give any, or adequate, weight, to the personal circumstances of the applicant, particularly those factors relating to the age, health and future prospects of the applicant. 6. The sentence imposed upon the applicant was, in all the circumstances, manifestly excessive."

9. Later the learned Registrar allowed an additional ground:

"7. There is an unacceptable disparity between the sentence passed upon the applicant and those passed upon Thi Cuong Le and Cang Ba Nguyen."

13. It is now necessary to set out in summary form the facts of this matter. As to this I rely principally on the opening made to the sentencing judge by the Crown prosecutor.

16. On 12 August, 1997, a meeting was arranged between the applicant and "covert operative 21" (an undercover police officer) for 11.40 a.m. in Market Street, West Footscray. The meeting was for the purchase of one quarter ounce, seven grams of heroin. Upon arrival at this location, the officer telephoned the applicant on his mobile phone with the number 0417379443. The applicant attended a short time later driving a Honda Legend, registered No. OGM 235. The officer then got into the Honda Legend with the applicant. The applicant got out of the vehicle, opened the boot of the car and obtained the heroin from the boot. He returned to the vehicle and handed the officer the heroin. The officer handed $2,600 to the applicant who placed the money in his pocket. The officer then placed an order for 14 grams, one half ounce of heroin, to take place on Thursday, 14 August, 1997 and was quoted a price of $5,000. The result of analysis of the purchase showed 6.96 grams of white powder with a purity of approximately 59 percent giving a result of 4.1 grams of pure heroin. The heroin was in compressed form inside the corner of a plastic shopping type bag, heat sealed and wrapped in tissue paper, and then further wrapped in masking tape. The number 7 was written on the side of the block in red ink. The Honda car was registered to the ex-wife of the applicant. The applicant was subsequently followed to 3 McCubbin Street, Footscray upon the conclusion of the transaction.

19. On 14 August a meeting occurred between the applicant and the officer at 11.14 a.m. in Market Street, West Footscray. This meeting was for the purchase of one half ounce of heroin, 14 grams. The applicant was observed to arrive at the location in the car OGM 235 prior to the officer's arrival.

22. Upon the arrival of the officer, the applicant indicated to him to get into the car. The officer did so and handed the applicant $5,000 which was placed into the centre console without being counted. The applicant then indicated to the officer an object, the heroin, in the gutter who then went and collected the heroin. The results of analysis of it were 13.69 grams of white powder with a purity of 60 percent, resulting in 8.2 grams of pure heroin being obtained. The heroin was sitting in the gutter on a tissue that consisted of two seven gram packages and each was wrapped in an identical manner to the previous transaction. Each package had the number 7 and another symbol, possibly the letter "C", written on the tape in red ink. During this meeting, the officer placed a tentative order for a further half ounce or 14 grams of heroin with the applicant for Wednesday, 20 August, 1997. Again, the applicant was followed to 3 McCubbin Street, Footscray immediately after the transaction took place.

25. On 20 August, 1997, a meeting occurred between the applicant and the officer at 11.04 a.m. in Market Street, West Footscray. This meeting was for the purchase of a half ounce, 14 grams of heroin. The applicant arrived in Market Street prior to the officer driving a red Toyota Corolla sedan, NYA 830 with an Asian woman, Thi Cuong Le in the passenger seat. She was observed to leave the front passenger seat of the vehicle and place an object, the heroin, in the gutter near the vehicle. She then returned to the vehicle. Upon arrival of the officer the applicant indicated for him to get into the vehicle. He did so and was introduced to the woman by the applicant as his "sister". The applicant told the officer that he was to deal with her in future and that future deals would occur in the Target car park at Highpoint Shopping Centre. The officer said that he was from the other side of Melbourne and did not know where Highpoint was. The applicant told him that he would show him. The officer asked the applicant if the quality of heroin he received from her would be the same and was told that it would. He also asked the applicant if he still called the same phone number, 0417379443 to arrange the purchases and he was told that he would be contacted with details. The officer handed the applicant $5,000 who, in turn, handed the money to the woman, who counted it. The applicant then instructed the officer to collect the heroin from the gutter, which he subsequently did. The officer then followed the applicant to Highpoint where he indicated where future transactions would occur.

28. Upon analysis of the purchase, there was 13.88 grams of white powder with a purity of 58 percent resulting in 8.1 grams of pure heroin. The heroin was sitting in a piece of newspaper in the gutter and consisted of two seven gram packages, each was packed in an identical manner to the previous transactions. Each package had the symbol 7C written on the tape in red ink.

31. On 27 August a meeting occurred between the applicant and the officer at about 10.06 a.m. in Market Street, West Footscray. The meeting was for the purchase of one ounce, 28 grams of heroin. Prior to this meeting taking place, police surveillance officers observed a Toyota Cressida DUI 316 arrive and two unknown Asian women leave the vehicle. These women were observed to place an item, the heroin, in the gutter at the base of a tree in Blandford Street, Footscray and cover it with twigs. Shortly after this, the applicant arrived in Market Street driving a car FEL 384. He met with the officer in Market Street where the officer handed the applicant $9,700 which he placed in his pocket. The officer was then instructed to follow him. He drove the vehicle to Blandford Street and stopped on a children's crossing outside the Footscray West Primary School. He got out of the vehicle and uncovered the heroin from the base of the tree. The applicant then walked to the officer's vehicle, opened the passenger door and threw the heroin into the vehicle. It bounced off the passenger seat and fell to the floor and the applicant then opened the passenger side door, picked up the heroin and handed it to the officer. The applicant agreed to sell a further ounce of heroin on the following Wednesday and stated that the officer could purchase heroin from his sister, Chung, if he was not available.

34. The result of the analysis of the heroin purchased on 27 August showed that there was 26.6 grams of white powder with a purity of 49 percent resulting in a yield of 13.4 grams of pure heroin. The heroin was wrapped in a green coloured balloon which was wrapped in a white envelope. Inside the balloon were four individual packages wrapped in a similar manner to the previous transactions.

37. At the completion of the transaction, the applicant was followed to 7 Drake Street, North Melbourne.

40. On 2 September, 1997 at 9.05 a.m. the officer telephoned the applicant and ordered a quarter of an ounce, seven grams of heroin. The applicant stated that he was away and would be back on Wednesday and that his "sister" would conduct the transaction. The purchase was arranged to take place at 10.00 a.m. in Market Street, West Footscray. At 9.40 a.m. the applicant called the officer and confirmed the meeting time with the "sister". He said, "You don't want a big one last time" and the officer said "no, but he would get an ounce and a half off him later in the week". At 9.57 a.m. the officer received a call from the applicant who stated that his "sister" was unable to do the deal and had gone home. He stated it was a small deal and a big deal would be no problem. The officer told him he did not have enough money for an ounce. At 10.28 a.m. the officer received another phone call from the applicant who apologised for cancelling his order. He stated that he was in Perth and would be back on Thursday. The officer said that he wanted one and a half ounces on Thursday and the applicant stated that there was no problem and quoted a price of $14,500. At 10.40 a.m. the applicant again telephoned and stated that the deal for the quarter of an ounce was "back on" with his "sister", and a meeting time of eleven o'clock was arranged. At about 11.30 a.m. the officer attended and parked in Market Street, Footscray. He was approached by an unknown Asian male. This man got into the officer's vehicle and identified himself as "Tony". The officer then handed "Tony" $2,600 and "Tony" handed over the heroin. The officer asked if he would be dealing with him or the applicant and "Tony" replied that it would be him. "Tony" handed over a ripped piece of Asian newspaper which contained a mobile number, 0411715295 with the word "Tony" written on it. "Tony" also stated that he could do deals within two minutes. There was also discussion about the possibility of one and a half ounce deal being done on Thursday, 4 September, 1997.

43. The applicant was arrested on 11 December, 1997 at Melbourne Airport as he was about to depart Australia for Vietnam. He made, upon interview, a denial of any wrongdoing including using heroin. He was committed to custody and remained therein until his plea and sentence.

46. The re sults of analysis of this purchase revealed a total 6.89 grams comprising 3.91 grams with a purity of 72 percent (2.81 grams of pure heroin) and 2.98 grams with a purity of 70 percent (2.9 grams pure heroin). The total amount of pure heroin from the transaction was 4.9 grams. The heroin was packed in four individual packages both white and green, contained in a plastic bag which was also heat sealed. "Tony" was subsequently identified as Cang Ba Nguyen of 25 Liverpool Street, Footscray. He subsequently became a target of Operation Edinburgh and was arrested on 22 January, 1998.

49. Thi Cuong Le pleaded guilty in a Magistrates' Court on 30 July last to a single count of trafficking in a drug of dependence. She was sentenced to 12 months' imprisonment, which sentence was wholly suspended for 24 months. On 4 November last Cang Ba Nguyen pleaded guilty in the County Court at Melbourne to a single count of trafficking in a drug of dependence, heroin, between 2 September, 1997, and 22 January, 1998. He admitted two minor prior convictions for gambling offences. This Court has been given a deal of information as to Nguyen's plea and sentence. In my opinion, once an arguable ground of manifest disparity of sentence is proffered (as is this case), this information is relevant to this application.

52. Nguyen's trafficking of heroin included, of course, the delivery of a quarter of an ounce of heroin of 74% purity to the undercover officer on 2 September for $2,600. It also included approximately 100 other sales from September, 1997 (many of which were detected by police surveillance) to a woman heroin user. These sales continued up until his arrest. A police search of his home found several hidden caches of heroin of 84% purity, totalling 12 grams. His sentence was one of three years and six months' imprisonment. A non-parole period of two years was fixed.

55. I now turn to the arguments of Counsel on this application. Mr Priest of Queen's Counsel, for the applicant, indicated that he intended to argue grounds one to five as particulars of ground 6 which, it will be recalled, pleaded that a manifestly excessive sentence had been imposed on the applicant. Indeed, Mr Priest submitted that both the head sentence and the non-parole period were manifestly excessive.

58. Developing this submission, Mr Priest drew attention to several matters related to the reasons for sentence of the learned judge. His Honour, it was said, made but brief reference to the applicant's plea and said that he was "prepared to take the view" that the applicant was remorseful. So too, the argument went, while he referred to counsel's submissions as to the applicant's prospects of rehabilitation, lack of prior convictions and personal circumstances, it was not clear whether the judge accepted these submissions or made any findings concerning them although he did describe general deterrence as being a "important factor in the determination of the sentence".

61. Mr Priest also contended that what he called the "magnitude" of the head sentence and non-parole period indicated that in some way the judge must have given insufficient weight to the applicant's plea, his finding of remorse, the applicant's lack of prior convictions and the applicant's personal circumstances while at the same time giving too much weight to the factor of general deterrence. As there were clearly mitigating factors present, Mr Priest argued, it would seem that the starting point for the sentence "must have been far too high".

64. As to ground 7, Mr Priest submitted that the sentence passed upon Nguyen subsequent to the applicant being sentenced was such as to engender a justifiable sense of grievance in the applicant. He did not address the sentence passed on Thi Cuong Le as he conceded this was passed with respect to a single act of trafficking pursuant to a quite different sentencing regimen.

67. Mr Priest relied on three authorities which stand for principles with which the Court is familiar. They were Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; Postiglione v The Queen [1997] HCA 26; (1996-7) 189 CLR 295; and a decision of this Court The Queen v Taudevin [1996] VICSC 7; [1996] 2 VR 402, in which Lowe was applied. The principles to which I refer may be summarised as follows:

* Mere disparity between sentences imposed on co-offenders will not of itself justify intervention by an appellate court - rather, the difference must be manifestly excessive.

* In such an instance, the intervention of the appellate court is based on the ground that the disparity produces a justifiable sense of grievance on the part of the person subject to the heavier sentence.

* Alternatively, intervention is justified on the ground that the disparity creates the appearance that justice has not been done.

73. Mr Priest submitted that these principles each had application to the case of the applicant and, in answer to me, contended that Nguyen was in fact more culpable than his client. Finally, he argued that a comparison between the nature of the offending of the applicant and Nguyen and their personal circumstances indicated that both the head sentence and non-parole period fixed for the applicant were manifestly excessive.

76. Ms Pullen for the Crown, dealing with grounds 1 to 6 inclusive, submitted that the judge gave appropriate weight to the matters referred to by Mr Priest while placing appropriate emphasis on general deterrence. The sentence imposed was within range, she argued, as the applicant was not a street level trafficker. He had acted for reward as a seller for another or others of significant quantities of heroin. The evidence showed, she said, that the applicant was able to supply up to one ounce of heroin in one transaction; that he had indicated an ability to supply an even greater quantity; that the level of purity of heroin sold by him indicated he was close to the source of supply; that the total amount of money involved in the frequent transactions was considerable and that the applicant used borrowed or hired cars in the transactions. It also appeared, she submitted, that the applicant was able to direct with whom the undercover officer was to deal. This, she contended was a plain case for both general and specific deterrence to be significant factors in sentence.

79. As to ground 7, Ms Pullen submitted that the sentencing judge acknowledged the specific involvement of the applicant and Nguyen in the transactions and that the sentence imposed does not reveal an unacceptable disparity with that of Nguyen. The evidence showed, she said, that the applicant was present and directly involved with four transactions and indirectly in a fifth. There was only one transaction with which he was jointly involved with Nguyen. The reality was, she contended, that an issue of parity just did not arise in this application.

82. I now turn to my conclusions and I shall commence with ground 7. In my opinion, the applicant was not, for the purposes of this ground, a "co-offender" in any significant sense. The evidence touching him supported the conclusion that for the transaction of 2 September the applicant arranged "Tony" as a substitute for the "sister". There was no evidence before the sentencing judge as to the terms of this arrangement. This transaction constituted one incident in a count of trafficking laid against the applicant for the period 12 August to 2 September and laid against Nguyen for the period 2 September, 1997 to 22 January, 1998.

85. Subjectively, one can understand a sense of grievance in Le emanating from the sentencing of Nguyen. In circumstances where Le could make no answer thereto, Nguyen accused Le from the witness box of talking him into heroin trafficking and paying Nguyen $200 commission with respect to the transaction of 2 September with the balance going to the applicant. The learned sentencing judge of Nguyen found as a fact that the applicant recruited him "into this pernicious trade of trafficking in heroin". This finding followed statements made to that judge by counsel for the Crown that the applicant had acknowledged on his plea that with respect to the transaction of 2 September Nguyen was acting on his (the applicant's) behalf. I cannot find, in the transcript, any such acknowledgement. It is to be noted that Nguyen admitted under cross-examination that he had been selling heroin to an addict "every once to two days" during the period "September, 1997 to January, 1998". Accordingly, his recruitment to trafficking by the applicant may be a matter of doubt.

88. Both counsel agreed on this application that the test of the engendering of a justifiable sense of grievance was an objective one. But, in any event, all that is revealed by the two cases is that both the applicant and Nguyen trafficked in somewhat different ways with their paths touching on one occasion. It is very common for offenders to be aggrieved when they hear or read of others receiving lighter sentences for conduct similar to their own. But that is not to the point in consideration of this ground. I would not uphold ground 7.

91. Having regard to the conclusion I have reached as to ground 6, it is unnecessary that I state any findings as to grounds 1 to 5 inclusive. But I desire to say the following. An important object of reasons for sentence is to show the cast of mind of the sentencing judge. They should disclose the train of thought involved in reaching the ultimate conclusion and reveal those matters upon which the judge is prepared (or is not prepared) to act. In the reasons for sentence in the instant case, it appears that (other than setting out the details of the offending) the learned judge made findings that the applicant was remorseful but that he could not be treated as a street level trafficker or as a person dealing in order to feed a personal drug habit - rather he was acting for reward as a seller for another or others. Otherwise, His Honour recited a deal of what he had been told by the applicant's counsel, much of which, he added, was in Mr Healey's report. The learned judge continued, "I note what Mr Healey has said in his report and I note your plea". With the utmost respect, this form of words is not helpful in determining the judicial reasoning process. I could not determine whether His Honour was simply reciting counsel's submissions and Mr Healey's statements or making findings touching them.

94. I now turn to ground 6. Such a ground, as counsel for the applicant conceded in argument, does not ordinarily admit of a deal of argument. Once the relevant circumstances are identified then a sentence either appears on its face to be relevantly excessive or it does not. Performing this exercise I have come to conclude that the applicant's sentence is manifestly excessive. Prominent among my reasons for so concluding are the age and antecedents of the applicant, his lack of prior convictions, his plea of guilty at the earliest opportunity, the committal mention, the judge's finding that he was remorseful and his cessation of offending prior to his arrest. While specific error need not be identified, an aspect of this matter readily prompts concern. The substantial part of the plea made on behalf of the applicant was that he returned to Vietnam from May to July, 1997. There he met a young woman with whom he became friendly. All this followed the collapse of his marriage in the previous year. On his return to Melbourne, under pressure of gambling debts and with his judgment impaired by heroin smoking, he accepted an invitation to sell heroin on behalf of others, "not at street level" to use his counsel's expression. After his trafficking he accepted the urgings of the young woman and returned to Vietnam on 6 September, whereupon they became engaged and set a date for their wedding, in Vietnam, of 28 December. He was departing for the wedding when arrested. His last offending had been on 2 September. In his early weeks in custody he successfully overcame such addiction as he had to heroin. This part of the plea consisted of statements by his counsel (none of which were gainsaid by the Crown prosecutor) and repeated references to the report of Mr Healey, which had been tendered without objection. It was squarely put to the learned judge that the applicant was remorseful and that a combination of the above circumstances and his lack of prior convictions made him a good prospect for rehabilitation. His Honour found that the applicant was indeed remorseful but as to the other matters I cannot discern His Honour's view. Of course, a judge is not obliged to specifically advert to every matter he has considered in composing a sentence. But one would expect that reasons would be given if His Honour had taken the view that the undisputed submission of counsel carried little or no weight. Yet, to my mind, the relationship between the non-parole period and the head sentence suggests that this is what has occurred. Ms Pullen has drawn the Court's attention to a decision of this Court in R. v. Van Hung Quach, unreported, judgment given 12 March, 1997, and has submitted that this decision supports the view that in drug cases non-parole periods in the cases of first offenders may be properly fixed at somewhat higher levels than might be regarded as usual. I do not agree that this decision should be so construed. The relevant judgment is that of Charles, J.A. with whom the learned President and Hedigan, A.J.A. agreed. His Honour said (at p. 7):

"Insofar as reliance was placed on the applicant's previous record, it must be remembered that in the case of drug trafficking the absence of prior convictions is of less significance than with other crimes. As the Court of Criminal Appeal in New South Wales said in Leroy (1984) 13 A.Crim.R. 469, at p.474: `This court and other criminal courts have said on many occasions that in the drug traffic in particular the circumstances that the accused has a clear earlier record will have less significance than in other fields of crime. Very frequently, those selected to place themselves in the chain of drug trafficking ... are selected because their records, their past and their lifestyles are not such as to attract suspicion. It is this in particular which has led the courts to take, in the case of drug trafficking, a view which does not extend the same degree of leniency being extended to first offenders.' See also R. v. Zapata (Court of Appeal, unreported, 17 October 1996), at p.5. In all these circumstances, grounds 2, 3, and 4 in my view must fail. Those who participate as couriers in trafficking in heroin must be warned that, upon conviction, they face a custodial sentence (emphasis mine). General deterrence plays a particularly important role in cases of this kind."

In that case the Court confirmed a sentence of three years with a non-parole period of 18 months for offences of trafficking in and possession of heroin.

102. Should the other members of the Court agree, it will fall to us to re-sentence the applicant. The applicant's offence was a serious one involving as it did his acting as a salesman, "not at the street level" (as his counsel admitted to the judge). It also involved the bringing into his criminal conduct his "sister" and Nguyen, but, in my opinion, there is no evidence that he introduced Nguyen to trafficking or of their monetary arrangements. Balancing, as best I can, this seriousness with matters personal to the applicant and the mitigating circumstances, in my opinion a sentence of four years' imprisonment with a non-parole period of two years is appropriate.

107. In this matter I have had the benefit of reading in draft form the judgment of the Chief Justice, but I regret I must differ from him. To my way of thinking there was in the end only one real issue, whether the sentence imposed on the applicant conforms with what has come to be called the principle of parity. None of the other matters raised, either singularly or cumulatively, would require the conclusion that the sentence imposed on the applicant for trafficking in heroin was outside the range appropriate in all the circumstances to the offence and the offender, nor was it otherwise erroneous. To these matters I shall return later.

110. There is one factor of general significance to this application which ought, in the end, to result in the rejection of the application on the ground of want of parity. It is that this is not a true case of co-offenders in the sense of persons charged and found guilty on counts for essentially the same offence. On the surface there would appear to be considerable similarity and the recitation of facts (so far as they can be extracted from the electronic appeal book) emphasised the connection between the two offenders inasmuch as they participated in one common transaction. But the counts are not otherwise the same for, in accordance with authorities such as Giretti [1986] A.Crim.R. 112, they charge trafficking arising from a series of events occurring over specified periods of time, in the case of the applicant between 12 August and 2 September 1997 and in the case of the claimed co-offender Ca Bang Nguyen over the period 2 September 1997 to 22 January 1998, which are obviously not the same periods and relate to different series of events. Even the nature of the transactions conducted in the course of their trafficking differed inasmuch as the count against the applicant relied upon five specific significant sale transactions to an undercover operative, whereas that against Nguyen, although he was a participant in the last of those transactions, thereafter relied, so far as I am able to understand the matter, on a number of small sales to individual users, or at least that may be inferred from the possession of heroin and relatively frequent visits by those users.

113. One may agree that consistency of sentencing is a concept to which the courts aspire so far as it is practicable, (cf. Lowe v. The Queen [1984] HCA 46; (1984) 154 C.L.R. 606 at 610-611) but it is one of the utmost generality whose application for the most part has been seen to be incapable of precise or accurate implementation. If it were to be applied literally then the courts would be constantly engaged on comparative exercises between sentences for seemingly like offences, a practice which has been almost universally condemned not merely for the burden it would place on sentencing judges and appeal courts but also by reason of the seemingly endless variety of facts and circumstances which relate both to the commission of offences and the relevant characteristics of those who choose to commit them. Consequently, otherwise than in cases of "parity", such comparative exercises are normally reserved for newspapers and the like and they not unusually, but unfortunately, lead to agitation for legislation such as the gridlike sentencing laws adopted in some States in the United States in which sentences are required to be imposed by a mechanical application of some statutory formula. By that observation I should not be taken as suggesting that the courts, especially courts of appeal, do not properly attempt to assess the comparative seriousness of offences or the comparative virtues and vices of offenders. However courts ordinarily discourage mathematical comparisons relating to specific facts and circumstances which turn out to be almost invariably diverse: cf. Postiglione v. The Queen [1997] HCA 26; (1992) 189 C.L.R. 295 at 336.

116. That diversity and the discretion given to judges when passing sentence has resulted in a recognition, frequently expressed, that there is no unique sentence which must be passed in consequence of any particular conviction: cf. R. v. Storey [1998] 1 V.R. 359 at 366. As has been said, the search for a single appropriate sentence is almost without exception a fruitless exercise incapable of producing an objectively verifiable correct result. Such an exercise may at best produce a range of appropriate penalties beyond which the sentencing judge ought not to stray. Since there is not a single correct result or sentence which the law prescribes for each case, nor even one which can be deduced as a matter of calculation or logic from provisions in statutes and from those rules which the common law would require sentencing judges to observe, one must be cautious in characterising the court-made rules as principles of the conventional kind which, if properly applied to the facts as found, will produce the "proper" sentence, as rules of that kind ought to do where, say, liability is in issue or special damages are to be assessed: cf. Mill v. R. (1988) 166 C.L.R. 59 at 63; Postiglione at 339. For the most part they are but precepts which guide an exercise of discretion and which are ignored at the judge's peril. Sentencing is not an area of the law where the application of each principle produces a result which is thereafter to be varied mathematically upon the application of each other relevant principle, so that it is seen to be undesirable, except where a statute requires the contrary, for each step to be defined with arithmetical precision. Ordinarily no-one can know the extent to which a particular rule or precept has been observed where it is stated to have been taken into account, unless the end result is in its totality inconsistent with the application of each relevant precept: cf. Postiglione at 339.

119. That is the difficulty which cases of this type continue to pose, for each claim of lack of parity or inappropriate disparity is premised on the justifiable sense of grievance which a sentenced offender may feel upon hearing or learning of some other sentence. As Callaway, J.A. said in R. v. Taudevin [1996] VICSC 7; [1996] 2 V.R. 402 at 404 "a sense of grievance is not justifiable unless it would be shared by an objective observer": cited by Gummow, J. in his dissenting judgment in Postiglione at 323. Dawson and Gaudron, JJ. (who formed part of the majority in Postiglione) in discussing the "marked disparity" which gives rise to a justifiable sense of grievance, as identified in Lowe, expressed themselves in these general terms (at 301):

"Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them ... In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated."

123. However, as was recognised in the same judgment (at 301-302):

"Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." (Emphasis added.)

127. The counts here charged against the two offenders were not for the same offences, as the Chief Justice has pointed out in his judgment, but, even if they were, there are many other factors of difference in relation to the two sentences here sought to be compared. The difficulty, if I might respectfully say so, is that the principles to which I have just referred should in logic make it almost impossible to say that the principles of parity have been broken whenever it is sought to argue that particular offenders should have been treated alike (or differently, as the case may be). There are, occasionally, some obvious cases where, on any understanding of the facts, disparity has resulted from a higher sentence being given to a person with obviously less criminality. Nevertheless, since Lowe was decided 15 years ago the principles and practice in relation to sentencing have so changed that it must be almost impossible for a co-offender to have a legitimate and justifiable sense of grievance based on objective factors. However much a co-offender may know of the circumstances relating to the commission of the offence (and even there separate sentencing hearings may produce different versions of those circumstances which lead without error to different findings by sentencing judges), it is almost impossible for the co-offender to know sufficient of the background, the antecedents and personality of any co-offender for it to be possible for a fair assessment to be made in the other co-offenders's mind. The factors which have to be brought into account make it difficult enough for the sentencing judge and for courts of appeal who have to assess such differences between offenders, let alone is it practicable for the co-offender to know and understand what those differences may be. Of course co-offenders frequently have a sense of grievance, for it cannot be surprising that those sent to gaol, other than those inured to the system, should think that they have been hardly done by, but what do they truly know of the relevant characteristics of their co-offenders? They may know that a co-offender has a record, but do they know when those offences were committed and how counsel has explained the commission of the last or the more serious of those offences? They may know the co-offender has a drug problem or exhibits signs of some psychiatric or psychological condition, but do they know what is contained in the psychological and other reports tendered to and read by the judge? Are they aware of the evidence which has been called as to the social and cultural background of a co-offender or of the significance of factors such as delay in sentencing or co-operation with the authorities which have been relied on? What precisely do they know of the judge's sentencing remarks in the other case, except on a second-hand, hearsay basis, for those remarks are not transcribed unless there is an appeal?

130. All these matters, and many more, may in due course be fought over by lawyers, sentencing judges and appeal courts to see whether the sense of grievance is in fact justifiable, indeed in a number of cases where the other sentence has been imposed long after the first. From time to time inconsistency may be manifest so that grievance may be justifiable but, it is suggested with respect, those cases will be few and far between. Otherwise perceptions of injustice will be unjustifiably engendered by half-truths and misconceptions created by the well-intentioned but ultimately unfounded enthusiasms of lawyers. A grievance cannot be said to arise justifiably in the mind of a co-offender where the other sentence is so far below what otherwise ought to be imposed that it cannot otherwise be supported; otherwise the principle will produce a "lowest common denominator" approach.

133. Here the circumstances of each of the co-offenders were sufficiently disparate for no sense of grievance to be justified, even if the offences had been in fact the same or substantially the same. The ground as to "disparity" must be rejected.

136. As to the other grounds raised I confess that, with the greatest respect, I cannot accept the conclusions reached by the Chief Justice with which Smith, A.J.A. agrees.

139. In the circumstances I do not believe it would be useful if I were to elaborate my reasoning since essentially it goes to whether the sentence was manifestly excessive. In short I was not persuaded that the sentence imposed was outside the range which was open to the learned sentencing judge for an offence of this degree of seriousness, one which carries a maximum term of 15 years. I therefore wish to refer only to one matter of detail where I would respectfully disagree with what the Chief Justice has said. Criticism is expressed of the use by the judge of the expression "I note", when dealing with Mr Healey's report and the applicant's plea of guilty, because it is not helpful in determining whether the judge was merely reciting submissions or making findings. Specifically the learned judge immediately followed those references with the conclusion that he was "prepared to take the view that [he] was remorseful". More generally, with great respect, I would treat observations as to "noting" facts in submissions as, perhaps loosely, connoting that they are accepted for what they are sought to establish, unless the content points to some other conclusion. The task of the sentencing judge is hard enough, inasmuch as so many factors are now said to be relevant, so that further exposition cannot fairly be expected. Moreover, since, in the usual case, they are but factors in the overall process of exercising the sentencing discretion, they cannot ordinarily be said to have precise consequences in the logical process of reaching the appropriate sentence, as noted above. Elaboration might even be misleading. I would not ordinarily require more than that each factor should be recognised appropriately in the judge's remarks.

142. Consequently I would have dismissed this application.

147. I have read the reasons for judgment of the Chief Justice and Ormiston J.A. in this matter. I agree that the appeal falls to be determined on ground 6. As to that ground, I am satisfied that, for the reasons advanced by the Chief Justice, the sentence was manifestly excessive. I agree with the orders he proposes.