[289] The principles in relation to parity are well known: Lowe v The Queen (1984) 154 CLR 606: Postiglione v The Queen (1977) 189 CLR 295, subsequent Court of Criminal Appeal (1997) 98 A Crim R 134. A further principle in this context of course is the entitlement in the Court of Criminal Appeal to reduce an otherwise appropriate sentence in order to avoid disparity engendering a justifiable sense of grievance, that entitlement being a discretionary one. The exercise of that discretion may be affected by a view being formed that a stage has been reached at which the inadequacy of the lower sentence is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one, and a reduction of an otherwise appropriate sentence to remove that disparity becomes an affront to the proper administration of justice: Regina v Diamond (NSW CCA, unreported, 18 February 1993 per Hunt CJ at CL at 5-6, with whom James J agreed, Smart J - as he then was- dissenting). The application, if any, of such principles in the light of what the Court chose to decide in Mandagi is, in our view, academic".
16 The applicants submitted that each sentence, in the light of the learned sentencing Judge's approach set out above, and what was said by the Court in Mandagi, was manifestly excessive upon the discrete question of parity, and that by reference to the sentences imposed on Chan and ultimately Mandagi, particularly given Shadbolt DCJ's distinction as to the applicants' lesser level of criminality with respect to Mandagi, the disparity is such as to engender a justifiable sense of grievance. The observations made by this Court in Chen as to the principle in Diamond (paragraph 289, cited above) can be discretely viewed in relation to the greater levels of criminality of Chen and Lau with which this Court was concerned vis-à-vis Mandagi. Reference is made in the submissions to what we observed in Chen paragraph [288] above.
17 It is ultimately submitted that given the considerably lesser role, and thus level of criminality, of each applicant in relation to both Mandagi and Chan, and the subjective features relevant to each applicant, if the sentence is reduced in each case, at least on a relative basis by the difference employed by Shadbolt DCJ, proportionate to the sentence ultimately imposed by the Court in Mandagi, the resultant sentence (in the order of 22 years with a non-parole period of 15 years) would not be one that would be an affront to the proper administration of justice.
18 The Crown, having referred to what this Court said in Chen at paragraphs [287] - [289], argues that whilst the applicants performed different roles as compared to one another, by reason of Siregar's specialist skills as an engineer and Ismunandar's seniority second only to Captain Mandagi, and also their roles compared with that of Mandagi, their respective criminality is indistinguishable and "any adjustment to their sentence should be marginal". We take that to mean, first that no distinction should be drawn between the applicants; and secondly, (as is subsequently developed), any resentencing should itself be marginal as between these applicants and Mandagi as resentenced.
19 The Crown cites the following passage from the judgment of Dawson J Lowe v R (1984) 154 CLR 606 at 623:
"There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even-handed and it has come to be recognized both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence…"
20 The Crown does not concede, (as clearly the applicants appear to be asserting in their written submissions), that the sentences imposed were "manifestly excessive". That the Crown does not so concede is not surprising. That the applicants now so assert may be considered surprising if that proposition is viewed in isolation. That is, the applicants expressly reserved their position in relation to sentence to abide by the outcome of the appeal in Mandagi. What the Crown does concede, however, is that the applicants would have a legitimate sense of grievance should there be no reduction of their sentences following this Court's resentence of Mandagi. The Crown acknowledges in its submissions that in the light of the judgment in Mandagi the sentences of life imprisonment imposed upon each applicant cannot be sustained, and that by necessity a fresh non-parole period should be imposed. It is submitted, however, that conformably with the principles stated in Regina v Gallagher (1991) 53 A Crim R 248 at 260 per Gleeson CJ, care is to be taken to ensure that the ultimate sentencing result 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 the light of the considerations of policy which support the principles [scil. of parity]" it constitutes an affront to community standards. The Crown submits that the posited reduction referred to in the written submissions for the applicants would result in an inadequate sentence and thus an affront to the administration of justice and to community standards.
21 Not surprisingly, the position taken by the Crown provoked a submission in reply that what the Crown suggested ignores the proper basis for the learned sentencing Judge's finding regarding the need for the differential in the first instance; and, it is said, ignores also the appropriate basis for the reduced sentence by the Court in Mandagi and "perhaps more importantly" the sentence in Chan's case, which was far lower than would be the applicant's sentences adjusted by reference to the same differential as contended. The applicants submit that there is no affront in any respect when an appropriate reduction upon proper principles is made to such sentences. This was the case, it is contended, in Chan's matter (there being no Crown appeal and presumably no offence to the principle referred to in Gallagher, referred to above). It is contended that the Court in Mandagi applied the principle: see Smart AJ at paragraph [111] cited above.
22 It is argued that Chan's sentence, whilst much lower than that contended for by the present applicants, is that of a co-offender involving the same amount of drugs and a higher level of criminality than the applicants. The sentence imposed upon Chan does not constitute an "affront" because it is explicable by reference to the discounts. The Crown did not appeal against the inadequacy of Chan's sentence. The applicants contend that similarly the Crown makes no criticism of the sentence imposed by the Court of Criminal Appeal in Mandagi. The submissions then go on to say:
"Indeed, for the Crown to do so, … would itself risk the undermining of the proper administration of justice by seeking a significantly different approach to appropriate sentencing for co-offenders by differently constituted Benches of this Court, as to undermine the public confidence in the consistency of the senior Court of this State".
23 In R v Diamond (Court of Criminal Appeal, 18 February 1993, unreported) Hunt CJ at CL (James J concurring) said of the facts before that Court:
"The issue is whether the particular sense of grievance (or of injustice) is a legitimate one. There is, in my view, a stage at which the inadequacy of the sentence imposed upon the co-offender is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one ….. . In my opinion, that stage has well and truly been passed in the present case, and a reduction of the applicant's sentence to a community service order would similarly be described as an affront to the proper administration of justice. The sentence imposed by Judge Flannery was, as I have said, appropriate and not excessive. That imposed by the magistrate was, as I have also said, irresponsible. The disparity between them may give rise to a sense of grievance on the part of the applicant, but it was not a justifiable one."
24 The ultimate question in this case is whether this Court should reduce the sentences on Siregar and Ismunandar on the ground that they create disparity engendering a justifiable sense of grievance. The disparity arises from the fact that the sentence of Mandagi, the captain of the Uniana, has been reduced to 27 years with a non-parole period of 19 years from a sentence of life imprisonment with a non-parole period of 25 years. This contrasts with the sentences of life with a non-parole period of 20 years for Ismunandar, the chief officer and the second in command after Mandagi, and Siregar, the engineer. The sentencing Judge achieved, it is agreed on all sides, an appropriate balance in the sentences reflecting the greater criminality of Mandagi and the lesser criminality of Ismunandar and Siregar. Let it be assumed that if the sentences were not changed, Ismunandar and Siregar would experience a sense of grievance. The only basis on which that sense of grievance could be regarded as a legitimate one is that if the sentences of Ismandar and Siregar were not changed, the sentencing Judge's balance would be disturbed.
25 The narrow question for decision is whether to substitute for the sentencing Judge's sentences the sentences requested by the appellants would be to select sentences so gravely inadequate that any sense of grievance in Ismunandar and Siregar which might be engendered cannot be regarded as legitimate, so that using this means of removing the disparity between the sentences left after the reduction in Mandagi's appeal would be an affront to the proper administration of justice.
26 The adoption of the sentences proposed by the appellants falls far enough below what is adequate, to ensure that any sense of grievance in Ismunandar and Siregar would not be legitimate. The reasons are as follows.