Federal Court of Australia|1991-09-04|Before: Gallop J

Re R v Omar Ahmed Omar Re Victoria Louise Rushton and Neil James William Thomason v R [1991] FCA 421; 55 A Crim R 373 (4 September 1991)

Re: VICTORIA LOUISE RUSHTON and NEIL JAMES WILLIAM THOMASON

Sentencing - Appeal against leniency - Grounds of review of primary Judge's decision - Manifest inadequacy - Surrounding circumstances and respondent's prior history - Whether factors only relevant to entitlement to leniency or whether also relevant to degree of criminality - General and personal deterrence.

Sentencing - Appeal against severity - Manifest excess - Primary Judge's discretion - Disparity between sentences - Accumulation of multiple sentences.

Veen v The Queen (No.2) [1988] HCA 14; (1987-88) 164 CLR 465

Counsel for The Queen : Mr G.R. James, QC and Mr K. Archer

Solicitor for The Queen: Director of Public Prosecutions

2. The sentence of five years and six months' imprisonment be set aside and that in lieu thereof the respondent be imprisoned for ten years, the sentence to date from 30 August 1990.

3. A non-parole period of ten years and two months be fixed, to commence on 17 June 1987.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

These are three appeals against sentence. In the first appeal, the Crown appeals against what it claims to be the inadequacy of a sentence imposed upon Omar Ahmed Omar by Miles C.J. on 26 March 1991. On that date, Omar appeared for sentence after being convicted of one count of possessing on 30 August 1990 a trafficable quantity of heroin for the purpose of supply to other persons. He was sentenced to five years and six months' imprisonment to date from the expiration of another sentence imposed on 17 June 1987, with a non-parole period of eight years and six months to date from 17 June 1987.

2. In the appeals of Rushton and Thomason, the appellants appeal against sentences imposed upon them by Gallop J on 26 April 1991. Each of these appellants pleaded guilty to five charges of selling a prohibited substance, namely, heroin, to a person or persons unknown. The offences were committed on five separate days in August 1990. Both appellants asked that a total of 125 offences of supplying heroin be taken into account in respect of each of them. Those offences took place between 2 and 12 August 1990.

3. The appellant Rushton was sentenced to eighteen months' imprisonment on each charge to which she pleaded guilty, the sentences to be cumulative on each other making a total of seven years and six months. A non-parole period of four years to date from 8 March 1991 was fixed.

4. The appellant Thomason was also sentenced to eighteen months' imprisonment on each of the five charges, the sentence to be cumulative on each other, and in his case a non-parole period of four years was fixed, to date from 11 September 1990 which was the date when he was taken into custody.

5. All the offences arose out of what was described by Gallop J as a "very busy, flourishing, illegal business of selling heroin in Canberra". Of the three appellants, it is plain that Omar had the dominant role in the illegal business. At the time of his arrest on 30 August 1990 he was found to be in possession of some 70 separate packages containing a heroin mixture which contained, with other heroin found in his possession, a total of about 4.5 g of heroin. Miles C.J. found that there was compelling evidence that during the month of August 1990 Omar was making trips to Canberra from Melbourne and was concerned in the distribution by Rushton, Thomason and a third person, McPhee, of heroin within Canberra. Miles C.J. was of the opinion that the accused knew that the three other persons were all heroin addicts and that they were all using the network to requite and finance their own addiction as well as to supply other people. Omar was himself a heroin user, but was apparently not an addict.

6. Miles C.J. found that the participation by Omar in the distribution ring was a serious aggravating factor and that there was no doubt that the ring received a good deal of direction from Omar. When sentencing Omar, Miles C.J. took into account that he had been charged and convicted on one count only under s.164 of the Drugs of Dependence Act 1989 (A.C.T.). He said that Omar was not to be sentenced for the crime of conspiracy or for a multiplicity of offences in respect of which he was not charged.

7. Omar's prior record is not good. He was born in 1956 in Lebanon. He came to Australia in 1977. In 1979 he met Rushton, who became the mother of five of his children. Four of the children live with Omar's mother in Victoria and the fifth is a handicapped child and is a ward of the State of Victoria. Omar first came to Canberra in 1980 and lived here until 1987, working in various jobs. He has a long list of criminal offences. His first offence relating to drugs was in respect of a matter for which he was convicted on 12 July 1979. The offence, for which he was fined, was possession of Indian hemp. Between 1979 and 1984 he was convicted of seven other charges relating to Indian hemp or cannabis. On 31 July 1984 he was given a six months' suspended sentence for possession of heroin. On 19 October 1984 he was convicted of supplying cannabis resin and was given a four months' suspended sentence.

8. On 13 December 1985 he was convicted of possession of heroin and given a three months' sentence. On 7 June 1987 he was convicted on ten counts of supplying heroin and was sentenced effectively to a total term of imprisonment of six and a half years with a non-parole period which was fixed to expire on 16 August 1990. He was released on parole on 2 June 1989 because of the operation of statutory provisions to which it is unnecessary to refer. On 30 April 1990 he was charged with offences of supplying heroin in Queanbeyan and he is awaiting trial on those matters. He was granted bail. He was thus on parole and also on bail at the time of the commission of the offence on 30 August 1990.

9. The possession of the heroin which gave rise to his conviction was, on the prosecution's case, joint possession of heroin with McPhee. McPhee and Omar had a de facto relationship. She also played a significant organisational role in the ring, being, for practical purposes, in charge in Canberra when Omar was away. McPhee pleaded guilty before Gallop J to a single count of possessing the heroin for supply and also pleaded guilty to thirteen counts of selling heroin to a number of persons on various dates in October 1990. McPhee also asked that 121 offences of supplying heroin be taken into account. McPhee was sentenced to five years' imprisonment on a charge of possessing a trafficable quantity of heroin for the purpose of sale or supply, the 121 offences also being taken into account. A cumulative sentence of three years was imposed upon her in respect of the 13 offences of selling heroin. The last mentioned sentences were concurrent with each other and a non-parole period of four years and six months was fixed. Gallop J was satisfied that McPhee showed evidence of true contrition and had realistic prospects of rehabilitation.

10. In sentencing Omar, Miles C.J. took into account the circumstance that, as a result of the sentence, Omar would be required to serve, pursuant to the relevant provision of the Parole Act 1976 (A.C.T.), the unexpired residue as at the date of parole of the previous sentence imposed on him and in respect of which he was on parole. His Honour considered the unexpired residue of that sentence to be about one year and nine months. Miles C.J. took into account that the sentence he imposed would be added to that period of one year and nine months. He also took into account that Omar had served 206 days in custody awaiting trial and sentence and that that period would not count towards the serving of the unexpired period of the previous sentence. Taking all those matters into account and the seriousness of the offence, Miles C.J. sentenced Omar to five and a half years' imprisonment to date from the expiry of the sentence imposed by the Court on 17 June 1987. He fixed a non-parole period of eight years and six months which, under s 8(4) of the Parole Act, was taken to have commenced on 17 June 1987. Effectively, therefore, Omar's non-parole period will expire on 17 December 1995.

11. In sentencing Rushton, Gallop J made the following observations:

"In the case of the accused Rushton, it seems to

me on the evidence that (Omar has) dominated her

for years. She's had five children by him and

when he came out of gaol, it wasn't long before

he exerted his influence over her yet again and

got her into this business of selling heroin

during 1990. First of all, he got her addicted

to heroin, then he got her into the distribution

of heroin and got her into the position where

she had to account to him for the profits that

she'd made. One can't describe the influence of

the man any better than she described it

herself. In a record of interview with the

police on 10 September, she said:

`I never ever wanted to get involved, but

it's just as I said. I was desperate

after six or seven months roaming around

like a gipsy with my child. To be told I

could have a key to a flat to live in, I

was in the middle of winter, I felt I was

under severe pressure to accept the flat

and to accept any obligation that was made to me."

In my opinion, that statement by the accused Rushton just

about says it all and says how she came under the dominating

influence of Omar."

12. It appears that the role of Rushton and Thomason was to take telephone calls and, having received supplies from Omar or McPhee, to sell heroin to purchasers by telephone. Most deliveries were made by Thomason. Gallop J referred to the great number of separate offences which had occurred in the month of August 1990, and to the fact that the heroin was often of good quality and could be further diluted. He accepted that Thomason had a substantial heroin habit and that, in an effort to extricate himself from it and from the drug distribution ring, he had gone to Queensland in August and had been off heroin ever since. Gallop J thought that Rushton was not unintelligent, but must have been very greatly under the influence of Omar. He found that her involvement in the distribution ring was the same as Thomason's. He was of the view, which was plainly correct, that neither Rushton nor Thomason were mere couriers, since they were actually making deals over the telephone. He expressly found that neither Rushton nor Thomason made any profit from their activities. The only benefits they received were that they were given accommodation and the means of sustaining their own respective heroin habits.

13. Thomason is 25 years of age and although he has some criminal convictions he has no prior convictions in respect of drug offences. Gallop J was of the view that Thomason was determined not to revert to his drug addiction and that he should be encouraged in that aspiration. Rushton has four convictions for possession of cannabis or Indian hemp, and one conviction of supplying Indian hemp.

14. Rushton and Thomason were sentenced after Omar was sentenced by Miles C.J. Gallop J took cognisance of the sentence imposed on Omar. He made it plain that he regarded Omar as the "arch villain of this heroin distribution business". He said, and we agree, that it was difficult to arrive at parity between the various accused. He took the view, and again we agree, that the degree of Rushton's criminality was very similar to that of Thomason's.

15. In support of the appeal in Omar, the Crown submitted that his Honour's sentence was manifestly inadequate in light of the surrounding circumstances and his prior history and that insufficient weight was given to the need for general and personal deterrence. It was also submitted that his Honour had erred in principle, as indicated by a passage in his Honour's reasons for sentence, in taking into account certain significant aspects of Omar's behaviour only on the question of whether he had demonstrated any entitlement to leniency, whereas these matters should more properly have been considered in relation to the proper location of the offence in the scale of criminality for such offences. We shall consider the detail of these submissions later in these reasons.

16. Mr James QC, on behalf of the Crown, also submitted that the method adopted by his Honour for establishing the commencing point for the head sentence imposed by him resulted in unacceptable uncertainty. We find it unnecessary to set out the detail of this submission. Suffice it to say that as the sentence in respect of which release on parole had been granted was being served in the New South Wales prison system, questions arose as to the applicability of remissions to that sentence and the effect of remissions upon the expiry date. This, in turn, produced the result that there was in fact only 16 days of unexpired residue as against the one year and nine months taken into account by his Honour. The situation is undoubtedly involved and difficult if a sentencing procedure is adopted which requires that, in circumstances such as the present, a new head sentence commence upon the expiry of a current one. The Court's task has been rendered much easier in the present case by the acceptance by Mr Livingston, Omar's counsel, of the existence of this very real problem and his consequent invitation to the Court to deal with the case on the basis that the Court confirm what his Honour intended to do and give effect to that intention by rearranging the sentence so that it be for the period that his Honour intended, but commencing from the date of arrest, namely 30 August 1990.

17. Mr Livingston submitted that what his Honour intended to do was to impose a head sentence which, having regard to its commencing date in the future, would be at least closely equivalent to that imposed by Gallop J on McPhee, namely eight years. Certain passages in his Honour's reasons, indeed, suggest that this is what his Honour had in mind. The Chief Justice, whilst regarding Omar as having a more dominant role than McPhee in the activities of the ring, nevertheless bore steadily in mind that he was sentencing Omar for one offence only, whereas McPhee had received her sentence for possession of the same heroin but also for a further 13 convictions for supplying heroin together with the numerous offences dealt with in the schedule. His Honour had also taken into account the 206 days already spent in custody by Omar. Mr Livingston was prepared to accept that the Chief Justice in imposing the head sentence of the size and in the manner that he did, was giving effect to an intention to impose a sentence of approximately eight years. There was no difficulty as to the commencement of the non-parole period imposed as it necessarily commenced from the date of the prior sentence, 17 June 1987. The effect of the fresh non-parole period imposed by his Honour to date from that date, viz eight years and six months, was to provide an effective non-parole period in respect of the head sentence, when the days already spent in custody were taken into account, of approximately five years and three and a half months. This period was in fact approximately two thirds of the eight year period of the intended head sentence.

18. In our view, the disposition of this appeal can best be approached by an acceptance of the correctness of this exposition of the result of his Honour's sentencing. Mr Livingston seeks no more, in opposition to the Crown's appeal, than that his client be re-sentenced by this Court in such a way as to confirm with certainty what his Honour had apparently sought to do. In this regard he does not seek to argue against the imposition of a head sentence of eight years to commence on 30 August 1990 together with the retention of the current order as to the non-parole period.

19. Mr James does not cavil at Mr Livingston's interpretation of the effect of his Honour's orders. However, he submits that the sentence if reimposed so as to produce certainty, would nevertheless remain manifestly inadequate. He submits that, in effect, this Court would impose a fresh head sentence, to commence from the date of arrest and, additionally, suitably enlarge the non-parole period so as to give effect to what he submits is the true criminality of Omar's offence. He therefore asks that this Court review the exercise by the Chief Justice of his discretion in sentencing. The principles upon which such a review proceeds are set out in the well known case of House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 as follows:

"But the judgment complained of, namely,

sentence to a term of imprisonment, depends upon

the exercise of a judicial discretion by the

court imposing it. The manner in which an

appeal against an exercise of discretion should

be determined is governed by established

principles. It is not enough that the judges

composing the appellate court consider that, if

they had been in the position of the primary

judge, they would have taken a different course.

It must appear that some error has been made in

exercising the discretion. If the judge acts

upon a wrong principle, if he allows extraneous

or irrelevant matters to guide or affect him, if

he mistakes the facts, if he does not take into

account some material consideration, then his

determination should be reviewed and the

appellate court may exercise its own discretion

in substitution for his if it has the materials

for doing so. It may not appear how the primary

judge has reached the result embodied in his

order, but, if upon the facts it is unreasonable

or plainly unjust, the appellate court may infer

that in some way there has been a failure

properly to exercise the discretion which the

law reposes in the court of first instance. In

such a case, although the nature of the error

may not be discoverable, the exercise of the

discretion is reviewed on the ground that a

substantial wrong has in fact occurred."

20. In addition to reliance upon the question of manifest inadequacy, Mr James also relies upon a passage in the Chief Justice's reasons which, he submits, indicates error of principle. The passage in question reads as follows:

"...The participation of the offender in the

ring is a serious aggravating factor as there is

no doubt that it received a good deal of

direction from him. The extent to which Rushton

and Thomason were themselves exploited by the

operation of the ring is, in my view, another

aggravating factor.

However, it has to be remembered that the

offender Omar was charged and convicted on one

count only under s 164 of the Drugs of

Dependence Act. He is not to be sentenced for

the crime of conspiracy or for a multiplicity of

offences. It is simply that he is unable to

claim any leniency that might be extended to one

who commits an offence of this nature in

isolation or simply to finance his own addiction.

The offender's own personal history confirms

this approach to the sentencing for the offence,

although, again, it must be born in mind that he

is to be sentenced for this offence and not for

his prior record."

21. It is submitted on behalf of the Crown that this passage indicates that the Chief Justice was incorrectly restricting the use to which he could properly put the offender's participation in, and direction of, the drug ring and also his prior criminal record. Although he had before him only one conviction, it was a conviction within the context of other accepted facts as to the role played by Omar in the drug ring's activities. This matrix of fact could properly be used to evaluate the seriousness of the offence of which Omar stood convicted, an offence which carried a maximum penalty of 25 years' imprisonment. His dominant role in the direction of the ring's activities was of significance in the location of the offence in the scale of seriousness of such offences. To regard the material only as potentially countervailing subjective considerations which might tend towards leniency in the imposition of sentence or non-parole period was to commit an error of principle. Furthermore, Omar's prior criminal record was relevant to an evaluation of the seriousness of the offence in respect of which sentence was being imposed. It was not relevant merely to subjective considerations weighing for or against leniency. It has been made clear in Veen v The Queen (No.2) [1988] HCA 14; (1987-88) 164 CLR 465 that this is the correct approach. In the judgment of the majority (Mason C.J., Brennan, Dawson and Toohey JJ.) at p 477 reference is made to the following principle:

"...the antecedent criminal history of an

offender is a factor which may be taken into

account in determining the sentence to be

imposed, but it cannot be given such weight as

to lead to the imposition of a penalty which is

disproportionate to the gravity of the instant

offence. To do so would be to impose a fresh

penalty for past offences: Director of Public

Prosecutions v. Ottewell (1970) AC 642, at

p 650. The antecedent criminal history is

relevant, however, to show whether the instant

offence is an uncharacteristic aberration or

whether the offender has manifested in his

commission of the instant offence a continuing

attitude of disobedience of the law. In the

latter case, retribution, deterrence and

protection of society may all indicate that a

more severe penalty is warranted. It is

legitimate to take account of the antecedent

criminal history when it illuminates the moral

culpability of the offender in the instant case,

or shows his dangerous propensity or shows a

need to impose condign punishment to deter the

offender and other offenders from committing

further offences of a like kind. Counsel for

the applicant submitted that antecedent criminal

history was relevant only to a prisoner's claim

for leniency. That is not and has never been

the approach of the courts in this country and

it would be at odds with the community's

understanding of what is relevant to the

assessment of criminal penalties."

22. We have felt some hesitation about this aspect of the case. The words used by his Honour raise the possibility that he fell into the error suggested. However, we are not persuaded that he did so. It is, in any event, unnecessary to reach any concluded view on this aspect of the Crown's submissions as we are persuaded that the sentence imposed is inadequate to the point of requiring appellate intervention.

23. We consider, with respect, that his Honour, in his careful endeavour to avoid disparity between the sentence he contemplated imposing upon Omar and the sentence which had been imposed upon McPhee, failed to give appropriate weight to considerations which rendered Omar's offence a very serious one indeed. Omar was in possession, when arrested, of a significantly large amount of heroin, the packaging of only portion of which indicated the contemplation of 70 or more future sales. The offence evidenced a high degree of organisation. It could properly be seen as an aspect of Omar's organisation and direction of the flourishing drug ring to which Gallop J made reference. These considerations necessarily gave colour and substance to the facts in respect of which he was convicted: (H (1981) 3 A Crim R 53). Moreover, questions of deterrence, general and personal, are of major significance in sentencing for drug offences: (Osenkowski (1982) 5 A Crim R 394). Such considerations must, in our view, be given very considerable weight in the present case, as must the offender's prior record of convictions for drug offences. We are of the view that the sentence should be set aside.

24. It is necessary to bear in mind that, as this is a Crown appeal, it is appropriate for the appellate Court, if disturbing the sentence of the trial judge, to exercise restraint and give consideration to the imposition of a lesser sentence than it might otherwise feel is appropriate (Michael John Hayes (1987) 29 A Crim R 452, at 465-466). We bear this principle in mind but nevertheless come to the conclusion that the seriousness of the offence requires a head sentence of ten years rather than the sentence of approximately eight years which was, in effect, imposed by the Chief Justice. As indicated, the commencing date for this sentence should be the date of arrest, namely, 30 August 1990.

25. It is also our view that the case calls for a longer than usual non-parole period. Although the possibility of rehabilitation cannot be totally excluded, Omar's past record in relation to drug offences gives little ground for optimism in this regard. Furthermore the offence of which he is convicted was, as previously indicated, committed not only whilst on parole in respect of a prior conviction but also on bail pending trial in respect of similar alleged offences. In our view, a non-parole period should be prescribed which will result in the provision of an effective non-parole period of approximately seven years in relation to the head sentence of ten years. This non-parole period must, of course, commence from the date of imposition of the earlier sentence, namely 17 June 1987 and, consistently with the proportion being sought to be achieved between the fresh head sentence and fresh non-parole period, take into account that the fresh head sentence is to date from 30 August 1990. Accordingly we fix a new non-parole period which must be taken to have commenced on 17 June 1987 to expire on 17 August 1997, being a period of ten years and two months.

26. We turn to the appeals of Rushton and Thomason. As already indicated each of these appellants was sentenced to a total period of imprisonment of seven and a half years made up by the accumulation of five separate sentences of eighteen months' imprisonment each. In each case, Gallop J, fixed a non-parole period of four years. Each appellant appeals against the head sentence and non-parole period, claiming that each was manifestly excessive in itself. Claims are also made that insufficient weight was given by his Honour to certain mitigating factors. It is also asserted in each case that significant disparity, indicative of error, occurred between the sentences imposed upon the appellants and that imposed upon McPhee. Claims were also made, in the individual cases, that relevant significant disparity existed between the sentences and the non-parole periods imposed upon each appellant.

27. As at least some of the factors allegedly given insufficient weight by his Honour were matters depending upon the acceptance of facts given by the appellants themselves in evidence before his Honour or in statements made to others, it is well to remember that his Honour observed each of the appellants when giving evidence before him, and formed adverse views of their credibility. He indicated that where their evidence was at variance with the statement of facts provided by the prosecution, he preferred to accept the statement of facts. He considered that each appellant was obviously seeking to play down his or her degree of involvement in the flourishing business in which all were participating.

28. In Thomason's case it was submitted that his Honour erred in accumulating the sentences on each of the five counts in the indictment. There is no weight in this submission. The Court looks at the totality of the sentence imposed. It exceeds by two and a half years the maximum sentence available for any one of the five offences charged. It also reflects the 125 similar offences set out in the schedule. It is clear that his Honour had in mind that the total sentence of seven and a half years was appropriate as a head sentence having regard to the whole of the criminal conduct under consideration. He was not led to this length of sentence by adopting the procedure of accumulating each sentence upon the other. No relevant error is demonstrated.

29. In so far as the same submissions were made in the case of Rushton, they are similarly rejected.

30. Much was sought to be made, in the case of each appellant, both before his Honour and this Court of what was submitted to be the relatively minor roles played by the appellants in contrast to those of Omar and McPhee. It was put that, for practical purposes, each was at the lowest end of the distribution chain, selling, for practical purposes, only to end users. His Honour did not accept these submissions and, in our view, was amply justified in refusing to do so. His Honour was impressed, as we are, by the exceedingly large number of individual transactions which occurred over a short period of days. His Honour was entitled to find that each of these appellants was involved in these transactions in an active way. Neither was a mere courier; each actually organised individual sale transactions, as to quantity, price and delivery. Furthermore, the quality of the heroin involved in these transactions was indicative, as his Honour found, that, in a significant proportion of cases, the purchasers were likely to break down the amount of the drug purchased into further saleable units and then onsell to customers of their own.

31. His Honour accepted that neither of the appellants made any financial profit from the operations. They received, however, free accommodation and heroin to supply their own habits. His Honour was obviously well seized of the arguments put to him, and repeated to this Court, that to a significant extent the appellants were driven by their addiction to commit these crimes and that their position must be distinguished from that of a non-addict who coldly and deliberately organises narcotic drug transactions for his own personal gain. He clearly took this into account. He also clearly took into account the dominant role played by Omar in the overall operation and the personal dominance which he exerted over each of these appellants. He made his own assessment of the degree of that dominance based upon the evidence and his appreciation of each appellant.

32. In summary, we find no indication that his Honour was not seized of, or failed to take into account, matters bearing upon penalty which have been placed before this Court. His Honour acknowledged the difficulty involved in comparing the criminality of each of these appellants one with the other. He came to the conclusion that no worthwhile distinction could be made. This was a view formed in the exercise of discretion. Obviously, opinions could differ. However, we are certainly not persuaded that there was error in the exercise by his Honour of his discretion in this regard.

33. Nor do we consider that the submission that the sentences and non-parole periods are manifestly excessive has been made good. The Court has been referred to a number of decisions at first instance in which, in roughly comparable situations, shorter sentences and non-parole periods have been imposed. A consideration of these cases does not, in our view, indicate anything other than that these present offences were viewed by his Honour as being amongst the more serious of the class of offences committed by distributors towards the lower end of the distribution chain. Both the sentences and the non-parole periods were long, reflecting as we think they did, his Honour's views as to the seriousness of the offences. Although severe, they were not, in our view, manifestly excessive.

34. Each appellant asserted that there was significant disparity, indicative of error, between sentences and non-parole periods imposed upon them and upon McPhee. The head sentence and non-parole period imposed in respect of McPhee was in each case only six months greater than those imposed in respect of the appellants. It was submitted that, having regard to the fact that McPhee's position in the hierarchy of the business was at least one step above those of the appellants, this disparity bore "the badge of unfairness" (Lowe [1984] HCA 46; (1984) 154 CLR 606 at 611 (per Mason J); Michael John Hayes (1987) 29 A Crim R 452 at 466-468 (per Kirby P.)). At first sight, there is, perhaps, greater similarity between the penalties imposed than might have been expected having regard to the differences in the roles of McPhee and the appellants. However, it must be remembered that his Honour formed a more favourable view of McPhee's contrition and prospects of rehabilitation than he did in respect of the appellants. Furthermore, it must be borne in mind that his Honour formed the view that the role played by the appellants, although at a lower organisational level, was nevertheless a very active one.

35. The question is, is the disparity between the treatment of McPhee and these appellants "such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done." (Lowe [1984] HCA 46; (1984) 154 CLR 606 at 610 (per Gibbs C.J.))? We do not think that the disparity falls into this class. Mcphee's sentence and non-parole period, although not the subject of a Crown appeal, is not reasonably to be regarded as a benchmark from which to test the potential excessiveness of the sentences and non-parole periods passed in respect of these appellants. Clearly enough, the sentence and non-parole period imposed upon McPhee was well within a permissible range having regard to the degree of criminality evinced by her offences and the various mitigating factors considered by his Honour. It may be that it could properly be said that she was dealt with more leniently than were the appellants. It would seem, indeed, that his Honour considered McPhee's overall criminality to be relatively low in the class of offenders in which she must be placed. Conversely, he found that the appellants must be placed high in the range appropriate to their level of criminality. His Honour clearly gave consideration to all relevant matters when arriving at the views he formed of all three persons. In the result, there was not a great deal of difference between the penalties he imposed upon McPhee and those he imposed upon the appellants. These differences, however, fall well short, in our opinion, of disparity requiring the intervention of this Court.

Re R v Omar Ahmed Omar Re Victoria Louise Rushton and Neil James William Thomason v R [1991] FCA 421; 55 A Crim R 373

At a glance

Court

Decision date

Before

Source

Judgment (56 paragraphs)

Re R v Omar Ahmed Omar Re Victoria Louise Rushton and Neil James William Thomason v R [1991] FCA 421; 55 A Crim R 373 (4 September 1991)

Legislation Cited (4)

Cases Cited (2)