Parity with Mr Greenaway
9His Honour described the applicant's role as follows:
"The offender was central to each of the offences contained in the two indictments. He stood to gain financially from the manufacturing offence...Although the facts provide in essence only estimates as to the money that would have been generated, one merely has to point to the quantity of chemicals found by police when they executed the search warrant... and the sight [sic, 'site'] of the clandestine laboratory which was at the heart of Count 1, to realise the size of the operation. The estimated street value of the methylamphetamine, which could have been extracted ranged from $500,000 to $2.7 million, depending on the size of the pseudoephedrine tablets and the processing of the methylamphetamine extracted from them."
10His Honour's remarks on sentence for the applicant expressly indicate that he took into account the principles of parity and that he perceived the role of the applicant and Mr Greenaway to be the same. He observed that there did not appear to be any relevant distinguishing features between the two men other than the application of different discounts for their pleas of guilty. His Honour's remarks on sentence include the following comments:
"Further, as I have indicated in these reasons, I find that the role of the offender in relation to Counts 1 and 3 in the indictment for which he stands to be sentenced is the same as that of Greenaway and, accordingly, the sentence I propose to impose for each will be the same here to demonstrate principles of parity.
There does not appear to be any relevant distinguishing feature between the two of them. They are about the same age. Each of them has a chequered criminal history. Each of them was motivated by greed and in each case there does not appear to be any matter that gives rise for a potential for finding special circumstances, other than as I have indicated in these reasons.
I should also note here and importantly, in terms of the arithmetic outcome, that Greenaway received a discount of twenty percent for the utilitarian value of his plea in relation to what is, in effect, Count 1 here where as his co-offender will receive a twenty-five percent discount for the utilitarian value of his plea."
11The applicant complains that despite these comments it is clear that the starting point for the sentences is different. He contends that this difference is "inexplicable" and that the starting point for both sentences should in these circumstances have been the same. The applicant submits that this difference is an arithmetic error, that it is significant, and that it should now be corrected in his favour.
12Moreover, the applicant contends that there was in fact a basis upon which to distinguish between him and Mr Greenaway but that the difference favoured the applicant. His Honour made a finding that there was a prospect that the applicant would succumb to the early onset of dementia and that his time in prison would be correspondingly harder for him. The applicant contended that this should also have produced a starting point for his sentence that was lower than the starting point for Mr Greenaway's sentence. He submitted that this difference was clearly overlooked by the sentencing judge.
13The Crown's response was to say that his Honour's quoted remarks were of a general nature and need to be understood in the context of other specific findings that he made. Accepting that both men were of approximately the same age, both had criminal histories and both were motivated by greed, his Honour's remarks suggest that he regarded the applicant's criminal history as far more extensive that that of Mr Greenaway. His Honour referred to Mr Greenaway's criminal history in the context of the subject offence as "insignificant, consisting mainly of traffic offences and some minor drug matters many years ago". His Honour also found special circumstances in the case of the applicant and in that way took account of his concerns about the possibility of him experiencing the early onset of dementia.
14There was also a further point of distinction between the two men. Even though his Honour found that the applicant was remorseful, he noted his inability to appreciate the consequences of his criminal behaviour. That is to be compared with his Honour's remarks concerning Mr Greenaway in which he expressed the view that his remorse was genuine and unqualified and that he would not reoffend.
15The Crown also emphasised, in my view correctly, that the individual sentences imposed on the applicant must inevitably have been influenced by considerations of totality and the degree of concurrence and accumulation. The applicant was being sentenced for four offences. Mr Greenaway was being sentenced for only two offences. His Honour ordered the sentences for Mr Greenaway's two offences to be served wholly concurrently.
16When his Honour sentenced the applicant he said that "[t]he proper sentence for Count 1 is twenty years". When his Honour earlier sentenced Mr Greenaway he said, "[w]ithout any discount the sentence that I would have imposed would have been twenty years imprisonment on Count 1". It remains unexplained why, in the light of the latter remarks, Mr Greenaway was not sentenced to an effective total sentence of 16 years instead of 15 years and 6 months. The so-called error therefore appears in the calculation of Mr Greenaway's sentence rather than in his Honour's application of principles of parity. That error would not in my opinion give rise in this case to a person in the position of the applicant having a justifiable sense of grievance. On the contrary, it may well have theoretically tempted a Crown appeal in Mr Greenaway's case to adjust his sentence to take account of the "error".
17More fundamentally, however, the difference in the sentences imposed is not such as in my opinion to attract this Court's intervention. There is no single correct sentence: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. Moreover, the authorities make it clear that differences of a relatively small or insignificant degree will not attract the operation of the parity principles concerned. The sentencing judge was required to sentence the applicant for four offences, whereas he was required to sentence Mr Greenaway for two offences. Having regard to principles of totality, accumulation and concurrence, it is not remarkable that an instinctive synthesis approach to the sentencing exercise would produce sentences that differed in some small degree. In this respect I am mindful of the comments of his Honour Blanch J in Lovoni v R [2011] NSWCCA 289 at [24] as follows:
"[24] It is evident from these authorities that a simple disparity is not enough and in order to attract appellate intervention it must be categorised as a manifest discrepancy in the sense of a difference that is clearly excessive..."
18We know from Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 and cases that have followed it that mere disparity between the sentences imposed on co-offenders is not of itself a ground for the intervention of an appellate court. In the present case the only so-called disparity to which the applicant can point derives from the assumed or notional starting point for the two sentences. If the calculation is applied to the applicant's sentence on the subject count it produces an effective head sentence for him of approximately 14 years 6 months and 10 days. In the present case the disparity between that term, and the actual effective head sentence of 15 years that the applicant received, is not sufficient to attract intervention by this Court.
19I do not accept that the applicant is entitled to have a justifiable sense of grievance by reason of the sentence imposed by his Honour upon the applicant's co-offender Mr Greenaway.