Rae v R

Court of Criminal Appeal (NSW)|2011-06-22|Before: McClellan CJ, Hidden J, Johnson J, Clellan CJ

Judgment 1McCLELLAN CJ at CL : I agree with Johnson J. 2HIDDEN J : I agree with Johnson J. 3JOHNSON J : The Applicant, Toni Maria Rae, seeks leave to appeal with respect to a sentence imposed in the District Court on 23 August 2010 for a significant drug supply offence. 4The Applicant pleaded guilty to a charge that, on 25 September 2009, at Edgecliff, she did knowingly take part in the supply of an amount of a prohibited drug, namely 1,000 tablets purported to be MDMA (ecstasy), being an amount not less than the commercial quantity applicable to that prohibited drug. This is an offence contrary to s.25(2) Drug Misuse and Trafficking Act 1985 carrying a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years. 5The Applicant was sentenced by Garling DCJ to a non-parole period of three years and six months commencing on 8 October 2009 and expiring on 7 April 2013, with a balance of term of two years commencing on 8 April 2013 and expiring on 7 April 2015.

Facts of Offence 7A detailed statement of agreed facts was tendered before Garling DCJ. The Applicant did not give evidence in the sentencing proceedings. As will be seen, this is an important point of distinction as between the sentence imposed on 17 December 2010 by Hosking SC DCJ upon the Applicant's co-offender, Adel Abhari. 8Garling DCJ found the following facts (ROS1-4, 23 August 2010): "The facts which I have been supplied with are lengthy and they form part of exhibit A. The police set up an operation. On 23 September 2009 an undercover operative met with the offender. During the meeting the undercover operative indicated he wanted 1,000 MDMA tablets, or ecstasy. The offender told the undercover police operative that she would be willing to supply in lots of 1,000 tablets. She said they would cost thirteen dollars. The cost of the tablets could come down if the relationship continued. There were certain discussions about money she felt was owing to her. That meeting was subject to physical surveillance and the conversations were recorded. On 24 September she contacted the undercover police officer and said she was able to supply 1,000 ecstasy tablets. She arranged to meet the undercover police operative the following day to provide samples of the tablets. The police then intercepted a text message from the offender to a co-offender, Abhari, which bears some importance in that there is a third person involved in all this, a person quaintly named Peter Pan who appears to be the person actually supplying the drugs to Abhari and then to the offender. On 25 September the offender spoke to Abhari. They discussed the availability of the 1,000 ecstasy tablets and she was told there were plenty of tablets available. They were discussing ways in which the transaction could be carried out, and she confirmed that she would pay eight dollars per tablet. She said she was willing to drop the price to the customer to twelve dollars a tablet, which would have given a profit of four dollars per tablet. On 25 September they met at a cafe and there was a discussion re the supply. The offender stated that her supplier had twenty-five bags, each containing 1,000 tablets. She stated that her supplier could supply tablets with different stamps, et cetera. During the meeting she telephoned Abhari asking for an estimate as to how long the deal would take to complete. A short time later she was observed to enter premises at Darling Point and then she came out with Abhari. They followed the car to Brighton-Le-Sands. There was then a text message sent by Abhari to the offender, again indicating some of the conditions about when the drugs would be available and again nominating Peter Pan as the person who would be supplying them. The police say the message related to Abhari supplying Rae with ecstasy tablets and the leader of the syndicate is referred to as Peter Pan. There were more telephone conversations recorded and more text messages. On 29 September a further text message was sent by Abhari to the offender about the supply and about the agreement to supply the undercover police operative with 1,000 ecstasy tablets, to be delivered in a container of fish oil tablets. On the same day there were further telephone calls, and indeed I think it was Abhari who had to deposit the rego papers and car keys of his car, which appears to be a BMW, to enable him to get the drugs. There was then a telephone call from Abhari to Rae. He says, 'I will come, jump in the cab. He will follow me to give it to you. Get the bag, get back in the cab, go to your street and fix you up there. You will get in the cab' -- Abhari said: 'He will get in the cab, he will meet me in your street, straight from here, straight there. I will see you, give it to you, I will get the bag, go to your place or he will come down and do it himself.' He was worried it was a rip. A little later on the same day she was again telephoned. He said he was looking for a cab. She said the undercover police operative would be there in twenty minutes and she directed him to a place near New South Head Road, Edgecliff. He asked how they were going to deal. She said 'jump out in the middle of the street, bang bang'. She said she was in her car. Abhari said 'when you get here come over, I will look out for you and when you come into the street past the first car park, turn into there'. He said he was jumping in the cab. She was going to the supermarket to get an appropriate bag. Police were conducting surveillance. At about 3.50 on the same day a taxi was observed to enter this area. Abhari exited the taxi, met the offender, they walked to the undercover police operative's car parked nearby. She placed a green-coloured enviro bag containing a newspaper in the car boot, Abhari placed the blue, red and white-coloured Lonsdale brand bag in the car boot, the undercover police operative opened the bag and saw it contained a plastic container. Located within the container was an amount of powder and a white plastic bag which also contained white powder. The undercover police operative handed Abhari a green-coloured enviro bag which contained $12,000 in Australian currency. He then ran to the taxi and police followed the taxi. A short time later police met with the undercover police operative and got the drugs. In the container was an amount of powder. Located within the powder was a plastic bag which contained 249.2 grams of white powder. A little later on the same day police intercepted a call between the undercover police officer and the offender. He told her he had only received the powder, 'I only got powder nothing else'. Abhari could be heard in the background and it seems he formed the opinion that he had provided the wrong drugs and wrong bag. There was then a discussion about what was contained in the bag and Abhari says, 'It is the coke for the Asians. It was to go to the Asians. They are going to go off their head. Tell them I will call you back, I will call you back.' The powder was subsequently analysed and contained no prohibited drug. On 8 October a search warrant was executed. The offender was located within a unit. The mobile phone with the number which had been used was confirmed as hers. It was located in the premises. She declined to participate in a record of interview and notes were found which indicated she was clearly involved in this dealing. Mr Abhari has been charged." 9The Applicant remained in continuous custody from 8 October 2009 and the sentence was backdated to that date.

The Applicant's Subjective Circumstances 10The Applicant was born in New Zealand in February 1972. She was 37 years' old at the time of the offence and 38 years at the time of sentence. 11The Applicant's criminal history contains one entry. On 23 July 2008, she was sentenced at the Downing Centre Local Court for an offence of possess prohibited drug and received a six-month bond under s.10 Crimes (Sentencing Procedure) Act 1999 . 12A report dated 11 August 2010 prepared by Michelle Player, clinical psychologist, was tendered in the defence case on sentence. The sentencing Judge extracted the Applicant's personal history from that report. 13After leaving school, she was employed in the hospitality industry for many years. She managed a massage parlour in Auckland for about two years from 1999 and came to Australia in about 2001, where she worked thereafter as a sex worker and in the escort industry. 14His Honour accepted that the Applicant had abused methylamphetamine on a daily basis over an eight-year period and that some of the Applicant's drug usage related to her area of work. His Honour observed that the Applicant had gone into gaol with "a very significant drug problem" and that the Applicant had availed herself of a drug and alcohol program in custody and required further assistance.

Some Other Findings on Sentence 15The Applicant was allowed a 25% discount for her early plea of guilty to reflect the utilitarian value of that plea. Further, his Honour observed that the Applicant had "expressed some remorse" . 16The sentencing Judge found "special circumstances" by reference to the Applicant's need for ongoing assistance with her drug problem and her good prospects of rehabilitation in that respect, together with the fact that this was her first term of imprisonment.

Findings Concerning Objective Seriousness of the Offence 17To place in context the findings concerning the objective seriousness of the Applicant's offence, it is helpful to refer to submissions made for the Crown and the Applicant at the sentencing hearing in the District Court on 20 August 2010. 18As mentioned earlier, the only evidence before his Honour was the statement of agreed facts together with the report of Ms Player. The Applicant did not give evidence on sentence. 19Counsel for the Applicant submitted that, in terms of objective seriousness, this offence was "in the low end of the range for offences of this type" . This submission was made "primarily because no drug was supplied" . It was submitted that the Applicant's role was at the lower end of any hierarchy and was motivated by a desire to obtain money to repay a debt (T2, 20 August 2010). 20The Crown submitted that the offence lay above the lower end of the range of objective seriousness. The Crown pointed to the Applicant's agreement to supply 1,000 tablets with the intention that they be disseminated into the community to end users. It was submitted further that it was immaterial that the powder supplied did not contain any prohibited drug. A quantity of about 249 grams of powder had been supplied. The Crown observed that this quantity lay about half way in the commercial quantity for MDMA, which lay between 125 and 500 grams. The Crown submitted that the Applicant was more of a "middle person" than a "facilitator" (T5-6, 20 August 2010). 21The sentencing Judge made a number of factual findings, culminating in a finding that the Applicant's offence "probably falls just very slightly under the middle of the range" . His Honour made the following findings (ROS6-8): "The offender was the person who dealt with the undercover police officer. She offered to supply a thousand ecstasy tablets. He, at all times, dealt with her and she did it to make a profit but it appears that above her was a co-offender who seems to me to play a greater part in this. In other words, to get those tablets she goes to the co-offender, he then goes to another person, referred to as 'Peter Pan', and I will conveniently use that reference, who supplies to him. So she, in effect, whilst negotiating and making a profit, is still reliant on her co-offender who is reliant on this other person. She is there physically when the drugs are meant to be handed over and she plays an active part in that. The amount of drug to be supplied was significant. The drug itself was not supplied. I am not sure of what occurred. There was no doubt that the intention was to supply it but for some reason it was not. However, as the Crown has pointed out in their submissions and, in particular, referring to the decision of R v Yaghi (2002) 133 ACR at 490 where [it was] said: 'It is regrettably a fact of life within the organised drug trade that 'rip-offs' occur, that those who choose to cloak such an endeavour with the appearance of a genuine drug [deal] , must accept the consequences if their conduct happens to fall within the specific provisions of the Drug Misuse and Trafficking Act.' And several cases are quoted. Each of those cases 'confirmed that the relevant mens rea was that relating to the agreement or conspiracy to make an offer to supply which would be regarded by the offeree as genuine rather than an intention to perform it'. But in this case it is slightly different than that because she did intend to perform it. She intended to hand over those pills in return for a significant amount of money. However, also present with her at the time was the co-offender who was playing a very active role. The point of that case, as I see it, is that whether you actually supply the amount or whether you offer to supply it but for some reason it does not get handed over the [law] still regards that as supply. It is argued on her behalf that I should assess this matter at the lower end of the range. I do not agree and I do not agree for these reasons. The amount to be supplied was significant. The part played by the offender was significant. Whilst lesser than the other two she was actively sourcing these drugs and was actively there to hand them over. I concluded, having reviewed a number of matters, that she probably falls into a category which is slightly under the middle range. I concluded that by taking into account the part she played, the fact the drugs were not actually supplied, that she did not at any stage actually have the thousand tablets, but she certainly intended to. But also taking into account that the amount of powder supplied, even though it was not a prohibited drug, was still a very significant amount and I take into account also the amount of the drugs to be supplied. Taking all those matters, and particularly the part she was playing in all this, into account I feel that it probably falls just very slightly under the middle of the range. Under those circumstances and because of the plea of guilty I do not have to impose the standard non-parole period, but I must have reference to it."

Ground 2 - Suggested Error in Assessment of Objective Seriousness 22It is appropriate to consider the second ground of appeal first. This ground is to be determined by reference to the sentencing proceedings before Garling DCJ. Any question of comparison with findings made by Hosking SC DCJ, following the sentencing hearing for Adel Abhari, do not arise for consideration under this ground. Submissions 23Mr Barrow, counsel for the Applicant, submitted that it was not open to the sentencing Judge to make a finding that the Applicant's offence fell slightly under the middle of the range of objective seriousness. Although Mr Barrow sought to draw some assistance from a number of the findings of Hosking SC DCJ when sentencing the co-offender, he accepted that it was necessary for him to demonstrate error on the part of the Judge who sentenced the Applicant. 24Mr Barrow submitted that the findings of the sentencing Judge ought to have led to a conclusion that the offence fell towards the bottom of the range of objective seriousness. Although Garling DCJ was not taken to the decision in Vu v R [2006] NSWCCA 188, Mr Barrow submitted that this decision assisted the conclusion that his Honour fell into error in sentencing the Applicant. He submitted that the Applicant's offence was an isolated one and was not part of a course of conduct. Her role, according to the submission, was that of a facilitator or conduit. Whilst the Applicant appeared to believe the transaction was genuine, counsel submitted that she had no capacity whatsoever to fulfil the offer to supply the drugs. 25Mr Barrow submitted that the part played by the Applicant was exceedingly limited, with the background to her involvement appearing to be as a consequence of an unpaid substantial debt arising from her work as a sex worker. He submitted that it was open to the sentencing Judge to find that the Applicant had been manipulated and exploited by Adel Abhari into participating as she had done. 26Whilst acknowledging that the quantity of powder supplied in this case (249.2 grams) was substantial, counsel submitted that it was well below the upper threshold for this offence, with the commercial quantity range being 125 to 500 grams. 27The Crown submitted that it was open to the sentencing Judge to make the finding which he did concerning the objective seriousness of the Applicant's offence. The Crown submitted that it was not accurate to describe this as an isolated offence, given the stated willingness of the Applicant to continue the relationship, with a reduced price if further supplies were to occur. 28Further, the Crown submitted that the Applicant's motivation was profit. It was submitted that it was not accurate to portray the Applicant's role as that of a facilitator or conduit. The Crown pointed to the statement of agreed facts which demonstrated that the Applicant negotiated and secured the order with the undercover police operative. As the sentencing Judge had found, the Applicant had every intention to fulfil the order. There was nothing in the agreed facts to indicate that this was a scam or was obviously so to the Applicant. 29To the extent that the Applicant sought to rely upon the decision in Vu v R , the Crown submitted that most of the factors identified by Hall J in that decision existed in this case. Decision 30To make good the first ground of appeal, it is necessary for the Applicant to demonstrate that the finding concerning the objective seriousness of this offence was not open to the sentencing Judge: McBeth v R [2009] NSWCCA 235 at [30]. 31In Mulato v R [2006] NSWCCA 282, Spigelman CJ (Simpson J agreeing) observed at [37]: "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour." 32The following features are of particular significance to the assessment of objective seriousness in this case: (a) the Applicant was the point of contact with the buyer and negotiated quantity and price - she was not a mere conduit or facilitator, but rather a significant frontline participant engaged in negotiation of price and quantity; (b) the Applicant was engaged in this activity for profit, and with the expectation of further profit should the offending continue - her explanation for needing the money does not reflect materially upon the objective seriousness of the offence; (c) at all times, the Applicant believed that she was to supply 1,000 ecstasy tablets which would make their way into the community and to end users of the drug - she did not believe or suspect that this was a "rip off" or scam being perpetrated on the buyer, rather she believed it was a substantial drug supply which was unlikely to be an isolated one; (d) the fact that the powder supplied was sodium bicarbonate was unknown to the Applicant - this feature does not significantly reduce the level of objective seriousness of this offence. 33I accept the Crown submission that, even when measured by reference to the factors in Vu v R , the objective seriousness of the Applicant's offence cannot be minimised. I keep in mind, as well, the fact that Garling DCJ did not have the benefit of submissions by reference to factors mentioned in Vu v R . It is important that this Court does not engage in an artificial process, removed from the reality of the sentencing hearing, in determining whether error has been established in the imposition of sentence at first instance. 34Of course, the list of factors in Vu v R at [89] constitutes a helpful summary, but it does not constitute a form of mandatory checklist. Consideration of the factors in Vu v R at [89] in this case leads to the following assessment. 35Firstly, the terms of the offer, particularly as to quantity of the drug and price, reveals an offer to supply 1,000 ecstasy tablets at $13.00 per tablet, with a reduced price per tablet if the relationship continued. An actual supply of 249.2 grams of a substance which the Applicant believed to be ecstasy was made, just under half the upper limit of the commercial quantity for this drug. 36Secondly, the agreed facts did not indicate that the Applicant's offer to supply was an isolated one, intended to be committed as a one-off offence. Rather, the negotiation between the Applicant and the buyer pointed at least to the prospect of an ongoing drug supply relationship. 37Thirdly, the Applicant was motivated at least by commercial gain, if not greed. Some explanation was suggested by way of the need for money to pay a debt. However, this could not greatly assist the Applicant and, in any event, the Applicant did not give evidence which would have permitted some testing of her financial motivation. 38Fourthly, the evidence established that the Applicant, at all material times, had the intention to fulfil the offer to supply 1,000 ecstasy tablets and believed that she had the capacity to satisfy this intention. 39Fifthly, it was the case that, unbeknown to the Applicant, the substance that was being supplied was not ecstasy so that, viewed objectively, she did not have the capacity to fulfil the offer to supply the 1,000 ecstasy tablets. However, she believed that she did and this was not, in her mind, a "rip off" or scam arrangement. 40Sixthly, it is clear that the Applicant attempted to fulfil the offer. She was directly involved in the supply of 249.2 grams of a substance which she believed was a prohibited drug. This was not a case where there were mere words, unaccompanied by significant action on the part of the Applicant. 41To my mind, the finding concerning the objective seriousness of the Applicant's offence was open to the sentencing Judge. This is not a case where the factual findings of the Judge simply do not fit the ultimate classification of the offence. Nor is it a case where the recital of the matters disclosed in the agreed statement of facts ought have led to an inevitable conclusion that the Applicant's offence fell towards the bottom of the range of objective seriousness. 42I would reject the second ground of appeal.

Ground 1 - The Parity Ground 43The Applicant was sentenced by Garling DCJ on 23 August 2010. For reasons that were not explained in this Court, the co-offender, Adel Abhari, appeared before Hosking SC DCJ on 10 December 2010. The records of the two sets of proceedings in the District Court do not shed light on how the Applicant and her co-offender came to be dealt with at different times, before different sentencing Judges. 44Following a lengthy sentencing hearing, at which Adel Abhari gave evidence and was cross-examined, Hosking SC DCJ adjourned the matter to 17 December 2010 for sentence. On that date, for an offence of supplying a commercial quantity of a prohibited drug, Adel Abhari was sentenced to a non-parole period of 18 months commencing on 20 December 2009 and expiring on 19 June 2011, with a balance of term of 18 months commencing on 20 June 2011 and expiring on 19 December 2012. Submissions 45Mr Barrow submitted that the disparity between the sentence imposed upon the Applicant and that imposed upon Adel Abhari is so marked as to give rise to a justifiable sense of grievance on the part of the Applicant. 46Although acknowledging that Adel Abhari gave evidence at his sentencing hearing, and that significantly different factual findings were made by Hosking SC DCJ to those reached by Garling DCJ in sentencing the Applicant, Mr Barrow submitted that the extent of the disparity between sentences was such as to make good the ground of appeal based upon parity. Counsel submitted that the differences between the objective seriousness of the offences committed by the two co-offenders could not reasonably give rise to the difference between sentences actually imposed. Further, counsel submitted that the subjective circumstances of Adel Abhari were less favourable than those of the Applicant. Adel Abhari had a prior conviction for a drug supply offence. 47The Crown pointed to the significantly different findings made by the two sentencing Judges which served to explain the difference in sentences. The remarks on sentence of Garling DCJ had been brought to the attention of Hosking SC DCJ and his Honour concluded, for reasons which he gave, that no direct question of parity arose between the two offenders. The Crown submitted that Hosking SC DCJ certainly took a lenient approach in sentencing the co-offender but that, upon examination of the different findings of the two sentencing Judges based upon different bodies of evidence before each of them, the Applicant had not demonstrated a legitimate sense of grievance so as to make good the first ground of appeal. Related Offenders Sentenced by Different Judges 48Before turning to determine this ground of appeal, some observations are appropriate concerning the sentencing proceedings for the two offenders before the District Court. 49Although the Applicant and Adel Abhari were co-offenders in the same criminal enterprise, they came to be sentenced before different Judges on different occasions. It is not clear why this happened. The Applicant was committed for sentence from the Central Local Court on 24 June 2010 in relation to the charge for which she was sentenced. Adel Abhari was committed for sentence from the Central Local Court on 1 July 2010. There is an indication in the transcript of the sentencing hearing of 10 December 2010 concerning Adel Abhari, that his sentencing hearing had not been reached on a prior occasion. There is nothing to indicate why he did not proceed to a sentencing hearing, together with the Applicant, before Garling DCJ on 20 August 2010. 50Courts have emphasised the desirability of related offenders appearing for sentence at the same time before the same Judge, and the problems which may arise where that practice is not followed. 51The authorities were gathered in the decision of this Court in Dwayhi v R; Bechara v R [2011] NSWCCA 67 ( "Dwayhi" ) at [33]-[46]. It is appropriate to once again refer to these principles. 52There are significant advantages where related offenders are sentenced by the same Judge at the same time, with remarks on sentence containing factual findings and conclusions concerning the relative criminality of the offenders and differing subjective features of each of them: R v Swan [2006] NSWCCA 47 at [71]; Gurney v R; Willetts v R [2011] NSWCCA 48 at [81]-[82]; Dwayhi at [39]-[43]. 53Different Judges may take different views as to the relevant culpability of related offenders: Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 320; R v Mercieca [2004] VSCA 170 at [6]; Dwayhi at [35], [37]. 54Where co-offenders are dealt with 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, levels of responsibility and prospects of rehabilitation of the individuals involved, with this flowing in part from the different emphases which can be expected to be placed on aspects of the offending behaviour and the circumstances of the offenders: R v Rodden [2005] VSCA 24 at [28]; Dwayhi at [38]. 55Strong maintenance of the practice of related offenders being sentenced by the same Judge at the same time will serve the public interest in consistent and transparent sentencing of related offenders which underlies the parity principle itself: Dwayhi at [46]. 56A recurring theme in the authorities is that, where co-offenders are sentenced after hearings before different Judges, there may be different evidence and submissions, leading to different conclusions being expressed by the sentencing Judges concerning criminal conduct of persons involved in the same criminal enterprise. 57The present case constitutes a vivid illustration of that problem. The Parity Principle 58The relevant principles are well known, but it is useful to restate them before moving to the resolution of this appeal. 59Disparity between sentences is not of itself a basis of appellate intervention, but a factor to be weighed when the Court considers whether the sentencing process has been attended by error and, if so, whether the Court should intervene: R v Li [2005] NSWCCA 154 at [44]; Dwayhi at [25]. 60A complaint of disparity accepts that the sentence imposed on an offender cannot otherwise be challenged. It is the sentence imposed upon a co-offender which is said to give rise to a sense of injustice, not the sentence imposed upon the offender: Lewins v R [2007] NSWCCA 189 at [7]; Dwayhi at [26]. 61The test for determining whether there is a legitimate sense of grievance is objective. What has to be demonstrated by an applicant is not that he or she feels aggrieved, but that a reasonable mind looking overall at what has happened would see that the applicant's grievance is justified: R v Wei Pan [2005] NSWCCA 114 at [34]; Dwayhi at [21]. 62Where there is a degree of disparity so as to invite a reduction in the sentence imposed, it is not necessary for this Court to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective circumstances. This Court will not necessarily intervene where the co-offender's sentence is so inadequate that the Court should not take it into account: Lewins v R at [7]; Dwayhi at [21]. 63A ground asserting disparity is concerned with such markedly and unjustifiably different sentences imposed on co-offenders that they give rise to a genuine feeling on the part of a reasonable and impartial observer that justice has not been achieved because one offender has been unfairly treated, having regard to the sentence passed upon the other offender. What is required is a gross, marked, glaring or manifest disparity: England v R; Phanith v R [2009] NSWCCA 274 at [61]-[67]; Dwayhi at [23]-[24]. Decision 64Adel Abhari gave extensive evidence and was cross-examined at his sentencing hearing concerning his involvement in the criminal enterprise (T7-29, 10 December 2010). The remarks on sentence of Garling DCJ concerning the Applicant were placed before Hosking SC DCJ. Submissions were made by reference to the evidence adduced before Hosking SC DCJ, which sought to differentiate the sentencing decision for that offender from that which had been made, four months earlier, with respect to the Applicant. 65Hosking SC DCJ reached a different conclusion concerning the objective seriousness of Adel Abhari's offence (ROS2-3, 17 December 2010): "Judge Garling took the view that in Ms Rae's case the objective criminality of her part in this offence fell just below the mid range of objective seriousness. For the reasons I am about to give, I take the view that in relation to Mr Abhari that the objective criminality of what he did fell very much towards the lower end of the applicable scale. I will soon set out my reasoning for that conclusion." 66Hosking SC DCJ proceeded to make findings of fact. His Honour observed that Adel Abhari had referred at times to another person, Peter Pan, with his Honour being "satisfied on the balance of probabilities that there was no such person as Peter Pan, not only a person by that name, but that no person even using that name ever existed" (ROS2). His Honour referred again to the evidence of Adel Abhari (ROS4): "In the offender's sworn evidence he said that there never were any Asians. He said that Peter Pan was a fiction. He said that he never intended to supply a prohibited drug to Rae or the undercover operative. In effect he did not have the wherewithal to supply any prohibited drug to Rae, the undercover operative or anyone else. He said that his reference to 'it's the coke for the Asians, my God it was to go to the Asians' was a kind of ruse like Peter Pan was a ruse in what to my mind was an almost comical attempt to explain away the fact that he had recently participated in what is commonly called colloquially a drug rip off." 67Hosking SC DCJ stated that he found the evidence of Adel Abhari credible and that he was inclined to believe him (ROS5). His Honour then proceeded to consider the factors referred to by Hall J in Vu v R at [89] (ROS5-7). After considering Adel Abhari's subjective circumstances, Hosking SC DCJ returned to the sentence imposed by Garling DCJ on the Applicant (ROS9): "I have factored in, in a general way, or at least I have taken into account, Ms Rae's sentence by his Honour Judge Garling. In my view there is no direct question of parity between the two of them because their mental states were so different, even though they committed the same offence. Ms Rae evidently is appealing what she says is the severity of her sentence. I simply note that as a fact I have been told. For reasons I have indicated, in my view there are significantly different factors applying to the sentence of Mr Abhari compared to the sentence of Ms Rae." 68This Court has observed that considerable obstacles are faced by an applicant seeking to invoke the parity principle in circumstances where the sentencing Judge was fully aware of the sentences imposed upon a co-offender and the reasons for those sentences, and indicates in the sentencing remarks why the Judge is departing from the co-offender's sentence: Gill v R [2010] NSWCCA 236 at [58]. In this case, Hosking SC DCJ explained why he was reaching different conclusions, based upon a significantly different body of evidence, to those conclusions that had been reached by Garling DCJ with respect to the Applicant. 69There is a substantial difference in the quantum of sentences imposed upon the Applicant and Adel Abhari. However, there was a significant difference in the evidence before the two Judges, and the findings and conclusions reached by those Judges by reference to the evidence adduced at the separate sentencing hearings. 70In my view, the Applicant has not demonstrated an objective legitimate sense of grievance so as to make good this ground of appeal. A reasonable and impartial observer would have regard to what took place at the different hearings, and the conclusions reached by the respective Judges by reference to the evidence and submissions before them. The substantial difference between the sentences imposed upon the two offenders is explained by the substantially different factual findings arising from the very different evidentiary foundations before the two Judges. 71It might be readily concluded as well that Adel Abhari was fortunate to achieve a lenient sentencing outcome. That, however, was the product of a hearing which took a very different course to that of the Applicant. 72In my view, this ground of appeal has not been made good.

Conclusion 73The Applicant has not demonstrated error on the part of the sentencing Judge in accordance with Ground 2, nor has she established an objective legitimate sense of grievance in accordance with the first ground of appeal. 74I observe that, even if error had been demonstrated, I would not have been persuaded that some lesser sentence should have been passed so as to warrant a substituted sentence for the purposes of s.6(3) Criminal Appeal Act 1912 . 75I propose the following orders: (a) leave to appeal granted; (b) appeal against sentence 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: 14 September 2011

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