(ii) on count 2 three years and nine months commencing 28 January 2006 with a non-parole period of two years and six months.
17 The successful appeal in the case of Shamus Vincent (see Vincent v Regina [2006] NSWCCA 78) was based on the fact that Nicholson DCJ had indicated a sentence before being told by the Crown that he had made a factual error by stating that the then offender had played any role in the negotiations beyond being present. This Court held that his Honour erred in failing to give some effect to the facts after the correction.
18 Submissions have been made with respect to what has been called an issue of "parity" involving the comparison between the sentences eventually imposed on the three brothers. The comparison with Tony Vincent's sentences is not particularly material because the circumstances and the nature of the offences differed considerably. However, Shamus Vincent was, as I have indicated involved in the same incident which is the subject of count 1 involving the respondent and he was sentenced for that.
19 No issue of "parity" arises directly on a Crown appeal. Nevertheless, the basis of the Crown appeal is manifest inadequacy and it is pertinent for this Court to bear in mind that, if it decides to uphold the Crown appeal, the issue of parity is relevant when it comes to re-sentencing.
20 The circumstances of the two offences before the Court are set out by his Honour on the basis of an agreed fact sheet tendered before him, as follows:
"[5] From about September 2003, two undercover police operatives began to frequent the Lady Jane Restaurant on a regular basis. There, they met the accused, members of his family and a number of employees. From that time until the time of the arrest a number of controlled purchases of ecstasy took place between the undercover operatives and the offender at that establishment and as well, at his home address in Pyrmont.
[6] The first count in the indictment occurred in circumstances where the undercover operatives attended Lady Jane Restaurant. There they conducted extensive negotiations with this offender and his brother, Shamus Vincent, regarding a purchase of 1000 ecstasy tablets. At the completion of negotiations the offender supplied them with 1000 tablets amounting to 247.8 grams of methylenedioxymethamphetamine. They were distinguished by a four leaf clover motif, the cost was $16,000 and on analysis it was shown that they contained 37.5 per cent of MDMA. That purchase of course was a controlled operation under the authority of the State Crime Command. It was estimated that the street value of the tablets that they purchased was $35,000.
[7] The first offence on the Form 1 occurred next in sequence and it occurred over some time between 4 February 2003 and 18 February 2003. The police undercover operatives and Thomas Anthony Vincent, otherwise known as Tony Vincent, a brother of this offender, negotiated the supply of 1000 ecstasy tablets.
…
[11] On 10 June 2003 police undercover operatives attended the offender's home. During that visit negotiations took place between the operatives and the offender regarding a controlled purchase of another 1000 tablets. At the completion of the negotiations the offender supplied them with approximately 1000 tablets amounting to 326.3 grams of MDMA displaying an MG motif. Again the costs was $16,500, again the estimated street value was $35,000. On this occasion, the quantity of MDMA was said to be 5.5 per cent. All up then, 3000 ecstasy tablets were purchased at a cost of about $105,000.
[12] On 23 February 2004 the offender was arrested and conveyed to the Sydney Police Station. He was given his rights as to what was then Part 10A rights, placed in custody, escorted them to his home and a property tracing search warrant was then executed. In the course of that warrant 80.7 grams of cocaine with a street value of $18,000 was located in his bedroom and .48 grams of amphetamine and a set of knuckle dusters was also discovered. The street value of the amphetamine is $200."
21 His Honour's outline of the objective circumstances was as follows:
"[13] The offender supplied commercial quantities of ecstasy on three occasions and was in a position to supply a substantial quantity of cocaine on another. His supply was to persons who he obviously believed would be on-supplying to others.
[14] I am satisfied the three major actual suppliers that I am dealing with were not isolated instances of his supplying ecstasy to others, believing that it was to be on-supplied. I am satisfied that these offences were part of an ongoing drug distribution network operating from the Lady Jane Restaurant.
[15] Methods were in place to minimise the chances of his detection and arrest. There were levels of planning and of system. In that sense the operation was sophisticated. I am satisfied the profit to this offender from the sale of drugs was substantial. The 80 grams of cocaine is an indictable amount but less than the commercial quantity which was 250 grams. This would represent about one-third of that. It does, however, constitute a deemed supply. There is no attempt to contest the proposition that its possession was for the purpose supply.
[16] I am satisfied beyond doubt it was possessed for the purpose of supply. The significance of this is that the possession of this cocaine demonstrates the willingness of this offender to deal in more than one form of illicit drugs for gain.
[17] The possession of a prohibited weapon, namely, a knuckle duster is a concern. One cannot help but associate its possession with the drug trade going on, that is that this was not a weapon possessed for personal protection but rather one for enforcement.
[18] The matters I am dealing with demonstrates drug dealing from a period from November 2002 to February 2004, a period of some fifteen months."
22 His Honour also set out subjective matters with respect to the respondent. It is unnecessary to repeat his Honour's observations in this respect. There is no relevant issue arising with respect to his Honour's findings, nor is there any contention arising with respect to his Honour's setting out the prior criminal history or his outline of positive and negative factors relating to the prospects of rehabilitation. Nor is there any challenge to his Honour's conclusion that those prospects of rehabilitation were "reasonable".
23 His Honour inquired of the Crown whether or not the regime of standard non-parole periods applied to the counts before him. He was informed by the Crown Prosecutor that they did not. This was an error. The standard non-parole period for this offence did apply to count 2. The maximum penalty for the offence is twenty years and the standard non-parole period is ten years. The Crown did not rely on this error because of the concession that had been made below. The only ground of appeal was that with respect to each count, whether considered separately or together by reason of the degree of cumulation, the sentences imposed by his Honour were manifestly inadequate.
24 The Crown contended that the respondent had a more substantial role in the operation than did either of his brothers. There does not appear to be a significant basis for this contention when the comparison is made between the respondent and his brother Tony. Indeed his Honour in his analysis of the subjective features of the respondent indicated a degree of influence that his elder brother Tony had upon him.
25 Nevertheless, his brother Shamus was present on the occasion involving count 1 and it is clear from the evidence about the occasion, and from the transcript of recording of that transaction, that it was the respondent who played the dominant role with respect to relevant matters such as supply and price. Indeed, as I have noted above, Shamus was re-sentenced in this Court on the basis that he played no role in the negotiations. It is also material to note that, in accordance with that differentiation, the charge to which he had to respond was a charge of being knowingly concerned in supply, whereas the charge against the respondent was one of actual supply.
26 Whilst the maximum sentences for these two offences is the same, nevertheless in my opinion in circumstances such as that before the Court the degree of moral culpability of the offender charged with actual supply is higher than a person who was knowingly concerned in that very same supply, subject of course to the nature of the relationship between the two of them. There can be circumstances in which the moral culpability of an accessory is higher than the person who actually makes a physical delivery, but this is not the case here on the basis of the evidence and the transcript of the recording before us. It was the respondent who negotiated the price and undertook, in the absence of his brother Shamus, the actual exchange of drugs for cash. Mr P. Boulton SC, who appeared for the Respondent, submitted that because of the intervention of the Court in the case of Shamus Vincent this Court cannot now intervene when the Court has acted to reduce the sentence and impose indeed a very low sentence on Shamus for his participation. I would reject the submission. There are a number of bases on which to do so.
27 The respondent, it does appear, was more directly involved in the transaction involved in count 1 and indeed conducted, as I have said, the negotiations on price and the actual exchange, with albeit the encouragement at least, and perhaps the assistance of, his younger brother. It is also pertinent that the respondent was older than Shamus, that he had prior convictions and that indeed this offence, like count 2, was committed whilst he was in breach of a s9 bond. In my view the respondent can have no legitimate sense of grievance if his sentence is significantly higher than that of Shamus Vincent.