R v Man Kong Ho

Court of Criminal Appeal (NSW)|2002-02-06|Before: Wood CJ, Sully J, Dowd J

CITATION : R v Man Kong Ho [2002] NSWCCA 379 FILE NUMBER(S) : CCA 60583/01 HEARING DATE(S) : 6 February 2002 JUDGMENT DATE : 25 September 2002

PARTIES : Commonwealth of Australia Man Kong Ho JUDGMENT OF : Wood CJ at CL at 1; Sully J at 2; Dowd J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0157 LOWER COURT JUDICIAL Job ADCJ OFFICER :

60583/01 WOOD CJ at CL SULLY J DOWD J

R v Man Kong Ho 1 WOOD CJ at CL: I have read in draft the judgment of Dowd J. I agree with the orders proposed, and with the reasons of his Honour. 2 SULLY J: I agree with Dowd J. 3 DOWD J: This is an application for leave to appeal against a sentence imposed by Job ADCJ on 6 April 2001, the applicant, Man Kong Ho, having pleaded guilty to one charge of knowingly taking part in the supply of a prohibited drug, namely heroin, being not less than the large commercial quantity contrary to s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), ("the Drug Misuse Act"), which carries a maximum custodial sentence of life imprisonment. 4 The applicant was sentenced to five years imprisonment from 1 March 2000, the date of his arrest. A non-parole period of three years and six months was imposed, from that same date.

Facts 5 On 29 February 2001, the applicant was observed by police meeting a Fang Xiao He, a person, the subject of investigation by the Police Joint Asian Crime Group, in Anzac Park Campsie where they appeared to be studying a street directory. Later that day He had telephone conversations with another person in relation to the delivery of heroin.

6 On 1 March 2001, the applicant drove his motor vehicle to Kingsgrove and parked it. He then approached a blue Ford Laser and unsuccessfully tried to enter it. After making a telephone call the applicant again approached the Ford Falcon, entered it and appeared to look around inside. He was observed apparently removing an item from the vicinity of the front passenger wheel of the Falcon. The applicant then went to the boot of the car and retrieved a backpack. After placing an item on the front passenger wheel, he took the backpack and drove off. He appeared to become aware that the police were following him and stopped the vehicle and approached them. He was arrested. The backpack was found to contain six blocks of heroin, with a total weight of 4.05 kilograms. The applicant admitted to police he knew the substance was heroin.

7 The applicant gave a detailed voluntary statement as to the events he was involved in and signed an undertaking to give evidence against co-accused Fang Xiao He. His evidence and assistance proved accurate and useful and crucial, particularly in terms of voice identification, in the prosecution of He, who has since been convicted. The applicant also provided useful information to the police on other matters.

Subjective Factors 8 At sentence the offender was twenty two years of age being married with a young daughter. He had no prior convictions. There were tendered on his behalf, five character references one of which came from the Governor of Parklea Correctional Centre showing the applicant never to have been in trouble in custody and that he had worked well. There was also available a psychologist's report setting out a history of a very difficult upbringing. That history was supported by some of the references tendered.

9 The applicant had a serious learning disability which was not diagnosed early. He was also assessed as being clinically depressed which the psychologist opined was probably of long standing. He had a history of problem gambling and had lost and won large sums of money.

Ground 1 : His Honour erred in setting a starting point of ten years before considering discounts for plea and assistance. 10 It was submitted on behalf of the applicant that the Learned Sentencing Judge erred in sentencing in setting a starting point of ten years, prior to considering discounts for the plea of guilty and for assistance given by the applicant to the authorities. It was conceded, on behalf of the applicant, that whilst this may have been an appropriate starting point considering the objective seriousness of the offence and the need for general deterrence in crimes such as this, the Learned Sentencing Judge erred in not giving sufficient weight to the relevant subjective features of the applicant. 11 The Crown submitted that the amount of heroin involved, 4.05kg, was well in excess of the large commercial quantity, and the objective seriousness of the crime, in terms of the dissemination and distribution of heroin in the community, is clearly reflected in the maximum penalty prescribed for this crime, which is life imprisonment. 12 The Crown submitted that an examination of the statistics from the Judicial Commission of New South Wales evidenced in Submissions on Sentence, coupled with sentencing ranges detailed in R v Wong & Leung (1999) 48 NSWLR 340, indicate that the sentence of ten years was in the low range for comparable offences. It is to be remembered that these statistics are for sentences actually imposed and do not indicate a "starting point", which will inevitably be higher. 13 I have reviewed the statistics and make particular reference to cases involving supply of a large commercial quantity of a prohibited drug, from 1 January 1992 to 1 January 1998. The median range sentence for supply of not less than a large commercial quantity of heroin, (in this case 4.05kg is considered in the low range for an offender found by the Learned Sentencing Judge to be an intermediary), is six years for the head sentence with three years and three months non-parole period. The sentences in that category range from six months to twelve years head sentences through to six months to nine years for non-parole periods. 14 It is difficult to extract any further sentencing guidance from these statistics, as apart from the general details that the particular offender was deemed an intermediary (read "courier"), there is no information supplied in these statistics concerning individual circumstances. Further, these statistics are only of indicative assistance and are not determinative: R v Clarke [2001] NSWCCA 223, (unreported, 1 June 2001; revised 7 August 2001).

15 In taking into account the objective circumstances of the offence, his Honour observed that the offence was of a most serious kind and relied on the fact that the amount of heroin involved was more than four times the amount that constitutes a large commercial quantity. The Learned Sentencing Judge found that for the applicant's role as a courier, he was to receive between three and four thousand dollars, his arrest preventing him from receiving that money. Taking into account these and the subjective factors, his Honour found the appropriate penalty for this offence to be one of ten years imprisonment, before taking into account the plea of guilty and assistance to authorities. 16 In assessing whether there has been judicial error in sentencing, the principle enunciated in House v The King (1936) 55 CLR 499 has been universally applied, more recently in the High Court decision in Wong v R (2001) 185 ALR 233 in which Gleeson CJ enunciated the following statement of principle, when examining sentencing error, at para 58: "Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residual category of error, which in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principles, even though where and how is not apparent from the statement of reasons". 17 The kind of disproportion, therefore, that must be demonstrated between a sentence which has been imposed and that which should have been imposed on review before an error of law is found, is not simply a matter that can be reduced to an exercise in mathematics. The question that must be considered is whether the disproportion relied upon is so manifest on its face, as to be indicative of not merely idiosyncratic opinion, but rather a substantive error in law. 18 His Honour obviously took into account the youth of the applicant. In considering the youth of an offender as a recognised mitigating factor, I have considered what was said by James J in R v Lawson (1997) 98 A Crim R 463, in relation to drug couriers, at 475-476: "However, in my opinion, it is not appropriate for a sentencing judge, first to say what sentence would be appropriate having regard only to the objective facts of the offence, and then to say what sentence should be imposed after taking into account the subjective circumstances of the offender. Such a stepped or tiered approach to sentencing has been criticised by this Court in such cases as R v Gallagher (1991) 23 NSWLR 220; R v Beavan (unreported, Court of Criminal Appeal, NSW, 22 August 1991) especially per Hunt CJ at CL at 14-15); R v Lett (unreported, Court of Criminal Appeal, NSW, 27 March 1995). In Lett Hunt CJ at CL said (at 9): "Sentencing is largely an intuitive process. The influences of the different factors to be taken into account are infinitely various. Leaving to one side the special case of any discount for assistance to the authorities, it is both unnecessary and often unwise for a sentencing judge to identify a sentence which he or she regards as appropriate to the particular case without reference to particular factors and then to identify the sentence which is appropriate when those factors are taken into account: Williscroft [1975] VR 292 at 299-300; Holder [1983] 3 NSWLR 245 at 258, 270; Morton [1986] VR 863 at 868; Y oung [1990] VR 951 at 960; Gallagher at 230, 233, 257-258, 260-261; Beavan at 14-15. It is unwise because it will only multiply the possibility of error, and it is unnecessary because it will inevitably increase the incidence of arguable appeal points". 19 The Learned Sentencing Judge clearly adjusted the starting point of the sentence to take account of the applicant's subjective circumstances, including the applicant's gambling addiction, and the objective features of the offence. His Honour in his Remarks on Sentence identified the crime as a most serious one, at p5: "The offence committed by the offender is a most serious offence, carrying as I said before, a maximum penalty of life imprisonment. The amount of heroin involved, being 4.05 kilograms is well in excess of the amount that constitutes a large commercial quantity", and further stated, on p5: "However, for an offence of this nature the penalty must include a strong element of general deterrence". 20 In R v Gallagher (1991) 23 NSWLR 220, Gleeson CJ, with whom Meagher JA and Hunt J agreed, held that when drawing on the statutory sentencing principles such as 16A of the Crimes Act 1914 (Cth) and, relevantly to this matter, s23(2) of the Drug Misuse Act, at 232: "Care must also be taken to ensure that the ultimate sentencing result that is produced is not one that is so far out of touch with the circumstances of the particular offence and the particular offender that, even understood in light of the considerations of policy which support the principles set out above, it constitutes an affront to community standards. If sentencing principles are capable of producing an outcome of that kind, then that calls into question their legitimacy."

21 Whether there be a further discount for plea or for assistance given and notwithstanding the plaintiff's subjective circumstances an offence of this nature with such a large quantity of heroin requires significant denunciation. The sentence is clearly within the range of penalty that his Honour is entitled to fix, taking into account the circumstances of the case, and clearly his Honour the Sentencing Judge quite properly in fixing ten years as his starting point included a strong element of general deterrence. 22 It is my opinion that, taking these principles into account, there was no error made by the Learned Sentencing Judge and that ten years was an appropriate starting point and properly within his Honour's sentencing discretion; and that the Learned Sentencing Judge took into account the appropriate subjective factors. I would not allow this ground of appeal.

Ground 2 : His Honour erred in allowing only ten percent discount for the utilitarian benefits of the applicant's plea. 23 From the starting point of ten years imprisonment, his Honour deducted ten percent for the utilitarian benefits of the applicant's plea of guilty. His Honour noted the strength of the Crown's case. Counsel for the applicant submitted that this was at the bottom of the range set in R v Thomson; R v Houlton (2000) 49 NSWLR 383, and that the trial judge had erred in not taking into account the timeliness of the plea of guilty, as the applicant indicated that he would plead guilty on indictment and thus saved the preparation for and the conduct of the trial. It was further submitted that there was no proper basis for only allowing the minimum discount.

24 The plea of guilty was, in fact, indicated at arraignment, however, this could not be said to be an early plea as it was some twelve months after the date of his arrest. The applicant was quite well aware of the type of drug involved and what he was undertaking in the criminal enterprise and he undertook this role for commercial gain. 25 In the total circumstances of the case the discount allowed for plea was within the sentencing discretion of the Learned Sentencing Judge and, although towards the bottom of the range, it has not been shown that his Honour was in error in that fact alone and I would not, therefore, allow this ground of appeal. Ground 3 : His Honour erred in allowing only a forty four percent discount for the applicant's assistance. 26 In relation to the issue of the discount for assistance, his Honour specified just slightly over forty four percent for the assistance provided to authorities after considering matters that he was required to take into account under s25 (2) of the Drug Misuse Act. It was submitted on behalf of the applicant that the Sentencing Judge erred by not adequately taking into account the considerable assistance given in other matters including material contained in a sealed envelope.

27 It was further submitted on behalf of the applicant that Job ADCJ erred in distinguishing R v Raz ([1992] NSWCCA 121, unreported, 17 Dec 1992) on the basis of the clearly distinguishable timeliness of the plea, the fact that Raz was involved in a controlled delivery and made phone calls to principals, all of which were conceded as being valid distinctions between this case and Raz. Yet, it was put on the applicant's behalf that the extent of the applicant's assistance to offset those distinctions can be determined by the reading of the material in the sealed envelope. 28 In R v Raz a discount of fifty five percent of the head sentence was considered appropriate but in that case the assistance was immediate, the extensive assistance included a controlled delivery leading to the identification arrests of a number persons leading to the effective destabilising of an organised cocaine syndicate. There is no question that the applicant's assistance in this case has been substantial but not offered until a year after arrest with consequent problems of the information becoming stale. The applicant has refused to serve his sentence in protection as against the appellant in Raz. The level of assistance, therefore, in comparison to Raz has clearly been taken into account in his Honour's sentence. 29 This application highlights the tension between differing judicial approaches to sentencing. On one hand, the principle of individual justice requires sentencing judges to maintain a high level of discretion. On the other, social needs for certainty in sentencing outcomes and effective and efficient justice seeks some limitation or guidance of that discretion. Thus two approaches have developed in sentencing practice to reflect these conflicting goals.

30 The first approach in the words of the High Court in Wong v R at para 75 is that it is "the task of the sentencer to take into account all of the relevant factors and to arrive at a single result which takes due account of them all". This is described as the "instinctive synthesis" approach.

31 The second approach is based on quantification of the effect of certain elements on the sentence. This usually manifests itself in what is known as the "two-tier" approach to sentencing. Here the sentencing judge takes into account the majority of factors effecting the sentence and sets a starting point from which the remaining, "quantifiable" factors are taken into account mathematically. This is the approach that the sentencing judge took in this case.

32 The "two-tier" is the subject of judicial controversy. Three members of the High Court specifically disapproved of it in Wong v R, describing it as wrong in principle. Their Honours held that singling out one or a number of factors distorts the task of a sentencing judge in balancing all of the relevant factors (Gaudron, Gummow and Hayne JJ at 76). This Court has held otherwise. In R v Thomson; R v Houlton Spigelman CJ said (at 57): "The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought to be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole."

33 The courts of the states in this country have taken different stands on the "two-tiered" approach. Victorian courts, for example, have been cautious, if not opposed, to the "two-tiered" approach. However the courts in that state have been increasingly inclined to use that approach. Conversely, in South Australia, the Court of Criminal Appeal gives active encouragement to the "two-tiered" approach, at least in respect to the extent of discount given for a plea of guilty. (See discussion of Spigelman CJ of interstate practices in R v Thomson & Houlton at 79 - 113).

34 The situation has been further affected by legislative actions requiring courts to take into account certain matters in passing sentence. Relevant to the case at hand is s22 of the Crimes (Sentencing Procedure) Act 1999, which reflects the previous provision in the Act, which provides that the court is to take into account a plea of guilty and the timing of that plea when passing sentence. Subsection 22(2) provides that a court must give reasons if it does not impose a lesser penalty. 35 Of themselves, provisions such as s22(2) do not necessarily require a quantification of the effect of such a factor. It is, on the face of the provision, perfectly appropriate for a judge to state that he or she has considered the factor, and on that basis, for certain reasons, has decided to reduce the sentence. There is no need for the judge to state by how much or by what percentage. One might note in passing that a discount need not be expressed as a percentage. It is thus perfectly reasonable for a judge to say that a certain factor has the effect of reducing the criminality of the offender in such a way so as to warrant a discount of a particular period. However, in practice, sentencing judges generally find it appropriate to provide a percentage discount. This Court in the guideline judgment of R v Thomson & Houlton encouraged the percentage discount method. 36 The discount allowed for the utilitarian benefits of the applicant's plea is within the range of an appropriate discount and no error has been shown in the discount allowed. The forty four percent discount for assistance is also within the range for an appropriate discount in respect of the circumstances of this case even taking into account the additional assistance of this case, even taking into account the additional assistance as disclosed in the sealed envelope and I, therefore, think Ground 3 is not made out as no error has been shown. 37 The High Court in Wong v R at para 58 (cited above in para 14) noted the accepted theory that there are two situations or kinds of error where an appellate court should intervene. First, a specific error of principle; secondly a "residual category" of "manifest excess or inadequacy", where an appellate court concludes that, in all the circumstances, there must have been some misapplication of principle, which is not apparent on the face of the judgment.

38 The case at hand does not fall into the second part of the test described. While some mention was made to the sentence not being quite on point, it was not argued that the sentence was "manifestly excessive," only that "it was not an appropriate sentence at the end of the day". This is not a situation where the length of the sentence of itself shows error. 39 Turning then to the first part of the test it is necessary to define what is meant by error of principle. It is clear that if a sentencing judge fails to take into account a significant factor, or does not even look at it, this would certainly constitute such an error. It is also clear that if a judge were to not take into account the principles established then she or he would err. The problem arises when considering the application of those principles. It is not always clear on the face of the record of the remarks of sentence how a sentencing judge has weighed in the factors according to principle. 40 Judges may give weight to certain factors when setting one part of the sentence such as the starting point, and counter-balance them in another part such as discount. It is difficult for this court, in the absence of some manifest error in one part of the application of a principle to question the synthesis of a trial judge, who is often better able to discern the appropriate synthesis by virtue of being involved in the trial process, to change a sentence on this basis. The court should be slow to do so. 41 I do not consider error has been shown. I would not allow this ground of appeal.

Ground 4 : His Honour as a combination of grounds 1, 2 or 3, or any of them, imposed a sentence that was too severe.

42 Taking into account what was said above in relation to Ground 1 and, in particular, what was said by Gleeson CJ in R v Gallagher at 228, I do not consider there is any error shown in any of the three grounds or any combination and I do not consider that the sentence imposed was manifestly excessive on either the two-tier or indeed, in this case, three-tier approach or as a matter of judicial synthesis. 43 Furthermore, considering the views I have set out above under Grounds 2 and 3, I do not find that there is any error shown in the overall sentence imposed nor by the effect of any combination of any of the grounds set out above, I do not consider that judicial error has been shown. Therefore, Ground 4 is not made out.

Ground 5 : His Honour erred in setting the non-parole period. 44 The Learned Sentencing Judge found in terms of s44(2) of the Crimes (Sentencing Procedure) Act that the non-parole period should be reduced to three years six months, being less than three quarters of the head sentence on the basis of the applicant's youth, contrition and voluntary treatment for gambling. It was submitted that the reduction of the non-parole period was not sufficient to give effect to the factors and needs demonstrated by the applicant, even when his Honour found such special circumstances to reduce the non-parole period. 45 Clearly, a longer period for supervision would be desirable in terms of the applicant's needs, however, any unreasonably lengthy reduction in the non-parole period would fail to reflect the seriousness of the offence in terms of time actually served and would give undue emphasis to the need for a supervised period of release as against an appropriate period in custody. 46 The need to find an appropriate length for the non-parole period and the period that an applicant must serve before he is entitled to be released to parole, must take into account the severity and the length of the head sentence. 47 I can find no error in terms of the setting of the non-parole period. In the circumstances, the non-parole period is appropriate for the length of the head sentence imposed, but nonetheless allows a lengthy period of supervision. The period fixed was within his Honour's discretion. No error has been made out. I would not allow this ground of appeal.

Ground 6 : That the sentence imposed on the applicant when compared with the co-offender He demonstrates the sentence imposed was excessive and gives rise to a justifiable sense of grievance. 48 Towards the end of the hearing of the application it was brought to the attention of the court that the sentence imposed by Freeman DCJ on the co-offender He, for his involvement in the subject offence, was less than that imposed upon the applicant but as part of a composite sentencing, it being clear that Freeman DCJ considered that He had a more significant role in the offence. 49 The sentence of Freeman DCJ was made available to the court and subsequently written submissions were provided by the applicant and by the Crown in reply. 50 Leave to appeal by He against that sentence was refused by the New South Wales' Court of Criminal Appeal (He v Regina [2002] NSWCCA 370, unreported 28 August 2002). 51 Freeman DCJ on 29 January 2002 sentenced Fang Xiao He for an offence to which He pleaded guilty that he did knowingly take part in the supply of an amount of the prohibited drug heroin which is not less than the large commercial quantity applicable. The amount under that count was described by Freeman DCJ as 4.25 kilos. It was, in fact, however, the same quantity as described by Job ADCJ as 4.25 kilograms. The second count for which He was sentenced, alleged that on 9 April He was concerned in the importation into Australia of prohibited imports to which s233 of the Customs Act 1901 (Cth) applied being heroin being not less than the large commercial quantity and on that occasion it was 14.7 kilograms which on analysis yielded 9.8 kilograms of pure heroin. 52 Freeman DCJ described He as having recruited Ho consistent with the facts in the current application and that He's role showed complete mastery of the organisational details. His Honour was satisfied beyond reasonable doubt that He was a participant at a very senior level. 53 In sentencing, Freeman DCJ said He was not entitled to any discount as compared with others who had been prepared to testify against those higher in the chain of command and does not offer any particular opportunity for leniency or discount on that count but since, on sentencing, Freeman DCJ was dealing with one state and one commonwealth offence and under the commonwealth offence had to reduce by one third as this was an offence occurring in New South Wales and thus no automatic remissions apply. This means that when assessing the combined head sentence imposed for He which Freeman DCJ based on the totality of the two offences, one needs to take into account that the head sentence and the total effective non-parole period are lesser periods, in totality, than the total sentences which would have been imposed if the two sentences were accumulated. 54 Freeman DCJ acknowledged, in sentencing He for the two offences, that he had to take into account the principle of totality reflecting the very serious nature of both offences having taken into account a deduction of a third for the commonwealth offence but made it clear that in assessing the difficult question of proportionality and totality that the sentences reflect the gravity of the "horrific trade" in which He was a principal or equivalent to one. 55 His Honour the Learned Sentencing Judge in He imposed a sentence in respect of the matter involving the applicant to three years imprisonment to be followed by a cumulative sentence for the commonwealth offence for which a sentence of twenty years cumulative on the state offence was imposed effectively being a period of twenty three years, a non-parole period of thirteen years was imposed for the commonwealth offence cumulative on top of the three years for the state offence and thus an effective non-parole period of sixteen years applied for both offences. 56 His Honour the Learned Sentencing Judge clearly gave effect to totality in accumulating the two offences but did not, however, comply with the requirements of Pearce v The Queen (1998) 194 CLR 610 that a fixed term be imposed for each offence and then, by accumulation or partial accumulation or by imposing the sentences concurrently, give effect to the principle of totality. The Pearce point was not taken on the appeal by He against the sentences imposed and is not a matter this court can take into account. 57 The result of the sentencing of the applicant and He as co-offenders is, therefore, that He, who is on any estimate a major participant, received an actual sentence which was considerably less than the applicant who had the role of a mere courier and a courier who received a substantial discount. 58 It was submitted on behalf of the applicant that the sentence for He demonstrates that the sentence for the applicant was excessive but in comparison gives rise to a justifiable sense of grievance in the applicant. It was further submitted, quite correctly, that He had a much more senior role and this was also found by Freeman DCJ, it being conceded that Freeman DCJ had rejected concurrent sentences in applying the principle of totality. 59 It was submitted on behalf of the Crown that Freeman DCJ was made well aware of the applicant's sentence imposed by Job ADCJ on the applicant and also on the other sentences of all other co-accused of He. The Crown submitted that, clearly in He, the court applied the principle of totality and rejected imposing concurrent sentences. The Crown submitted that the cumulative sentence imposed on He is condign and it appears that all Freeman DCJ has done is fail to comply with Pearce in fixing an appropriate sentence for each offence and then consider questions of cumulation, concurrence and totality and that it is not appropriate to take the supply sentence in isolation for there to be any basis for disparity. 60 The Crown submitted that such an approach is not available to the present applicant. It is further significantly submitted by the Crown that, in the operation of the totality principle on the two offences for his co-accused He, there was a substantially longer non-parole period for an unrelated crime. The Crown also submitted that there is clearly no disparity against this applicant when considering He's sentences in totality. However much his Honour Freeman DCJ may have failed to comply with Pearce it is clear that the accumulation of the two sentences was to reduce in applying the principles of totality, from what would otherwise have been a very much larger cumulative sentence. 61 The applicable principles of parity are set out by the High Court in Lowe v The Queen (1984) 154 CLR 606, where it was held that a mere disparity between the sentences imposed upon co-offenders is not itself a ground for the intervention of an appellate Court. The difference between the sentences must be manifestly excessive, and the Court will intervene in such cases on the ground that the disparity engenders a justifiable sense of grievance on the part of the accused upon whom the heavier sentence is imposed, or on the ground that the disparity gives the appearance that justice has not been done: Per Gibbs CJ at 609-610, Mason J at 611-612, Dawson J at 623-4 and per Wilson J at 616 in agreement with Gibbs CJ and Dawson J. 62 This is an objective, not a subjective, test and it must be shown that a reasonable person looking at the circumstances would consider an applicant's grievance as justified. In the decision of Postiglione v The Queen (1997) 189 CLR 295 the High Court considered the relationship of parity and totality and although expressed in various ways by different members of the court it is a matter to be determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability. After the High Court remitted Postiglione to the NSW Court of Criminal Appeal, Hunt CJ at CL, in the Court of Criminal Appeal held that the principle in Lowe remains unaffected by the High Court's decision in Postiglione: (1997) 98 A Crim R 134 at 138. 63 Sentencing an accessory more severely than a principal does not necessarily create a justifiable sense of grievance. The circumstances of each case must be looked at individually: Houvardis (Michael) [2000] NSWCCA 203. The issue before this court is whether the particular sense of grievance of the applicant is a legitimate one. There may, indeed, be such an inadequacy of sentence imposed upon a co-offender which is so grave that the sense of grievance engendered can no longer be regarded as legitimate: Diamond (Jason David) (unreported, NSW CCA, 18 February 1993) per Hunt CJ at CL. In Bell (1999) NSW CCA for 23 (27 October 1999) the actual time served is relevant in determining whether a justifiable sentence of grievance exists. 64 Notwithstanding the relative disparity between the two co-accused on the specific offence the total sentence imposed on He is a very substantial sentence as is the non-parole period. The time to be actually served before He will become eligible for parole is clearly part of an accumulation where one or other sentence has been reduced to reflect the principle of totality. The actual time to be served as the non-parole period by He for the two offences is more likely to be the matter that the court should take into account than the formal structure of the individual sentences. 65 Since that total non-parole period is clearly very much greater I do not see any basis on which there could be a justifiable sense of grievance on the part of a reasonable observer and I, therefore, consider that the issue of justifiable grievance is not made out. I also do not consider that the comparison with He is in any way an indication, in terms of the state offence, that the sentence for the applicant is severe. 66 I, therefore, would not allow this ground of appeal. 67 The orders, therefore, that I would propose are:

That leave to appeal be granted.
That the appeal be dismissed. **********

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