Regina v Koklas [2003] NSWCCA 302 | Case summary

1 WHEALY J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court. The applicant had adhered to pleas of guilty before his Honour Acting Judge Shillington QC on 29 August 2002. These related to two charges. 2 First there was a charge of supply prohibited drug on an ongoing basis. This related to a period of time between 17 October and 30 October 2001. This offence carried a maximum penalty of twenty years' imprisonment and/or a fine of $385,000, s 25A(1) Crimes Act 1900. 3 The second charge alleged a supply of a prohibited drug and referred to a total of 0.39 grams of cocaine, this supply having occurred on 30 November 2001. The second charge carried a maximum penalty of fifteen years' imprisonment and/or a $220,000 fine, s 25(1) Crimes Act 1900. 4 In addition the applicant asked the sentencing judge to take into account one charge of goods in custody relating to an amount of $585. So far as one can ascertain from the material in the present application the plea had apparently been first entered before a local magistrate on 27 June 2002. It was expressly conceded by the Crown during the sentencing process that the applicant should have the benefit of his early plea (see transcript of 6 September 2002 p 1, 40 to 45). 5 The learned sentencing judge took into account the matter on the Form 1 and sentenced the applicant in relation to the first charge to a term of imprisonment for four years commencing on 15 March 2002. His Honour imposed a non-parole period of two years expiring on 14 March 2004. 6 In relation to the second charge his Honour imposed a fixed term of imprisonment for two years commencing on 15 March 2002 and expiring on 14 March 2004. The applicant had been in custody since the date of his arrest on 15 March 2002. 7 It is convenient to state first the facts relating to the offences. The applicant was arrested as a result of undercover police operations carried out during October and November 2001. During this period of time the applicant was employed as a "runner" or "street dealer" with other operatives working out of a unit at Mitchell Road Alexandria. 8 Drugs were packaged at this address, the drugs being heroin and cocaine. They were sold in deals nominated by the cost of the package. A street dealer would go to a prearranged place by car and would collect money and hand out deals to customers. 9 Although the applicant was involved in supplies of this nature on an ongoing basis it was agreed at the sentence hearing that he should be sentenced on the basis of three particulars supplies of heroin during the relevant period. These particular occasions were 18 October, 19 October and 29 October 2001. I shall shortly describe them in more detail. 10 The cocaine charge however related to an undercover operative's approach to the offender in a council car park on 30 November 2001 at Petersham. This operative sought and obtained two lots of cocaine being .14 and .25 grams respectively. Generally in relation to the nature of operations relating to the sale of both heroin and cocaine they were, as his Honour described them, "on a large scale". 11 The documents tendered before the sentencing judge included a summary of the facts relating to the undercover operation prepared by the police. At the bottom of p 5 and the top of p 6 the following summary appears. "During the controlled operation police undercover operatives purchased from Koklas a total of 0.33 grams of heroin and 0.39 grams of cocaine. During the controlled operation police undercover operatives purchased from Koklas and the co-defendants Burnett, Gent and Kanjo a total of 1.36 grams of heroin and 0.39 grams of cocaine." 12 Details of the individual components of these amounts were contained in the police statement. For example on 18 October 2001 the facts summary stated that the undercover police operative saw the applicant pass an object to a male customer who had approached the vehicle and asked for "a 40". This happened a second time in relation to a second customer. 13 The operative then approached Koklas and asked for "two 40s". The operative paid $80 cash to the applicant and received two small red balloons from the other person who was in the car with the applicant. While the operative was walking away, she saw another customer approach the vehicle and pass a $50 note to the applicant hearing him ask for "a 50 of coke". The contents of the two balloons supplied to the operative were analysed and each found to weigh .08 grams and 0.07 grams of heroin with purities of 13.5 percent each. 14 The undercover operation continued again on 19 October 2001. On this occasion the operative approached a motor vehicle being driven by a person Burnett. The applicant was in the passenger seat. The operative passed $80 cash to the applicant and asked for "two 40s". Burnett then removed two small red balloons from a plastic container in the console, passed these to the applicant, who in turn handed them to the operative. The contents of these balloons were analysed and each found to weigh 0.05 grams and 0.07 grams of heroin. 15 The third specific supply occasion in relation to the heroin occurred on 29 October 2001. The operative approached a motor vehicle at Bent Street Petersham at about 2.58pm. The operative spoke to the applicant who was in the front passenger seat and asked for "a 40". Forty dollars cash was handed over to the applicant and he in turn handed over a small red balloon to the operative. The contents were analysed and found to weigh a total of 0.06 grams of heroin with a purity of 14 percent. 16 It is to be observed that the total combined weight of those balloons whose contents were analysed, that is those that related to the specific supplies by the applicant to the operative, was 0.33 grams. This is in fact the amount identified in the police statement at the bottom of p 5 to which I have made earlier reference. The amount mentioned at the top of p 6 was of course considerably higher. 17 In this regard it is to be noted that Mr Dalton, who appeared for the applicant during the sentencing process, specifically asked the judge to note the discrepancy between the amounts at the foot of p 5 and the top of p 6 of the summary. Mr Dalton also asked the sentencing judge to note that it had been agreed, as he understood it, between the Crown and the applicant that the applicant was to be sentenced only in relation to the actual amounts that related to the supply by the applicant to the operative, that is they were not to include those that related to any other supply referred to in the police summary. 18 Putting the matter slightly differently, as I understand the agreement referred to by Mr Dalton, the quantities noted at the top of p 6 were only to be taken into account in a general and not in any specific manner. As to the three specific supplies his Honour said this, - (I quote from p 1 of his Honour's remarks on sentence and over to p 2). "The three occasions related to incidents which occurred on 18 October 2001 when an undercover police operative rang a mobile phone service and was told to go to the address at Petersham where the operative saw two males approaching a motor vehicle and obtaining a 40, that is 0.5 grams of heroin. The operative then asked for and obtained two 40s costing $80. The physical handover was from the prisoner. On 19 October, the following day, an undercover made a phone call on a mobile phone, again met the prisoner who was the passenger in the vehicle in a motor vehicle at a Petersham address. He then bought 2.05grams of heroin for $80. The third occasion was on 29 October when the undercover again purchased a $40 weight of heroin from the prisoner in the passenger seat of a motor vehicle near Mandrill Park." 19 The sentencing judge dealt with the prisoner's subjective circumstances quite briefly. He noted that he was then twenty-eight years of age; he had a substantial criminal record which began in 1992; he noted that the entries were almost entirely drug-related, although this was his first period in custody. The sentencing judge then referred to his upbringing in a supportive family environment, to the fact that he had regular work and that he was leading a productive life until his addiction to hard drugs about five years earlier. 20 His Honour noted that the addiction to heroin had had a devastating effect upon the applicant causing the loss of legitimate work and had occasioned financial pressure, both upon his family and himself. Nevertheless, the applicant's family had continued to support him. The applicant had attributed the commission of the offences to financial demands resulting from his addiction. 21 That this was so was confirmed by the references which had been tendered before the sentencing judge. There was in addition a letter from the applicant himself in which he claimed he was now determined to rid himself of his drug habit. 22 In relation to the sentence his Honour said: "I have formed the view that clearly a full-time custodial sentences must be imposed. On the charge of the s 25A matter the prisoner is sentenced to four years' imprisonment which is to date from 15 March this year and there will be a non-parole period of two years. I find special circumstances being his need for rehabilitation upon his release. The form 1 charge will be taken into account on that charge." 23 In relation to the second charge, as I have already indicated, the applicant was sentenced to a fixed term which was to be served concurrently with the sentence imposed on the s 25A offence. 24 Six grounds were identified in the written submissions filed on behalf of the applicant in support of the submission that the sentence was too severe. 25 First it was alleged that the learned sentencing judge had erred in relation to his calculation of the quantity of drugs supplied in relation to the heroin charge. In fact it was submitted that his Honour treated the overall criminality on count 1 as involving a weight of heroin of at least 2.55 grams excluding the weight of the third supply: that is, an amount over seven times greater than that which was actually involved in the subject offence. Additionally it constituted an amount of well over four times the weight of the drugs combined from both counts 1 and 2. 26 Secondly it was submitted that his Honour had failed to properly assess the applicant's level of criminality. It was suggested the applicant had in fact been at the "bottom of the line" of responsibility and had been subject to a regime of violent subrogation at the hands of the organiser, one Nader Barakat. 27 Thirdly his Honour was said to have erred in failing to take into account the fact that the applicant pleaded guilty at the earliest opportunity. There should have been attributed a discount for the utilitarian benefit of the plea at the upper level of the range, that is 20 percent to 25 percent. (See R v Sharma [2002] NSWCCA 142 and R v Thompson [2000] 49 NSWLR 383. 28 Fourthly it was submitted that his Honour erred in failing to take into account the fact that the applicant had served and would in the future be required to serve all his time in prison in strict protection because of the real fears for his safety. One co-offender, Asad Barakat, in fact had been killed in custody as the pre-sentence report identified. 29 Fifthly it was submitted that the overall sentence was excessive having regard to certain stated comparative sentences. 30 Finally it was argued that the principle of parity was infringed so as to give rise to a legitimate sense of grievance. This was said to arise out of the fact that a co-offender, Albani, a runner at the same level as the applicant, had been sentenced to a suspended fixed term of 12 months. 31 Overall, counsel for the applicant was critical of the sentencing judge for failing to give adequate reasons for the views he expressed. This submission encompassed a complaint about the manner in which it was alleged the sentencing judge had dealt with the submissions which had been made by Mr Dalton on behalf of the applicant. Those submissions had been made in written form. A copy of the submissions was provided to this Court during the hearing. 32 In my view there is no substance in any of the grounds argued on behalf of the applicant. I shall deal with each separately. As to the first matter I am perfectly satisfied that there is a simple misprint or mistype in the remarks on sentence which have given rise to this submission. I have set out that paragraph from the remarks on sentence earlier. 33 It is apparent to me however that his Honour intended to convey at p 2 of the remarks in relation to the supply of heroin on 19 October that the undercover operative bought "two" .05 grams of heroin for $80. It is quite clear, as his Honour had identified on p 1, that "a 40" was .05 grams of heroin. Such a parcel cost $40. The reference on p 2 to the purchase of two such parcels for a combined total of $80 indicates that each parcel was approximately .05 of a gram. 34 Moreover, as I have indicated earlier, Mr Dalton had specifically taken his Honour to the quantities at the bottom of p 5 of the statement of facts prepared by the police and had indicated his Honour should accept that these rather than the figures stated on p 6 were the specific supplies for which the applicant should be sentenced. 35 His Honour made it quite clear in the relevant part of the transcript that was what he intended to do. It is quite easy to accept, I think, that when his Honour was reading out his remarks on sentence, the reporter mistakenly took down the number "2" rather than the number of parcels or balloons. Thus it may be seen that his Honour, in fact, had acceded precisely to Mr Dalton's submissions and in fact treated the applicant favourably in relation to the amounts actually supplied during the period of the undercover operation. 36 Similarly I am not satisfied there is any substance in the second matter argued. In my opinion his Honour correctly identified the level of criminality involved and the role the applicant played in the supply operation. His honour in fact referred to the dictatorial regime imposed by the person Barakat in his remarks on sentence. The police summary, as had been observed in the submissions, referred to the calls made by this person from time to time threatening violence to the runners if they were not efficient in their supply operations. Despite all that, the applicant made it quite clear in the pre-sentence report interviews that "he became involved in the supply of the drugs because he had exhausted all his resources and needed to support his own habit". 37 In one of the references his sister-in-law Penny Koklas, said: "I believe that he broke the law as a consequence of becoming a drug addict to support his habit". 38 There is, in my opinion, no substance in the suggestion that he was involved in this supply ring because he was the victim of a regime of violent subjugation at the hands of Barakat. It was his own choice to become involved because he needed money to feed his own drug habit. 39 In relation to the third point I accept that it would have been preferable for his Honour to have precisely said that he had made an allowance for the early plea. Equally it would have been preferable if he had quantified it. His Honour however had made specific reference to the plea of guilty before the Local Court at the commencement of his remarks on sentence. This was the first matter he mentioned. 40 Secondly, on that very day, 6 September 2002, shortly before his remarks on sentence were delivered, his Honour had been informed by the Crown representative that the Crown conceded that the offender should benefit by his early plea. 41 Thirdly, it is clear that on 29 August 2002 his Honour had been informed of the early plea and in fact asked the applicant whether he adhered to the pleas made on the earlier occasion. In the particular circumstances I have outlined there can be no doubt whatsoever that his Honour took into account the fact of the early plea and gave consideration to it as part of the sentencing process. His Honour is a very senior experienced criminal judge and it cannot be accepted that he failed to take this matter into account. 42 In the R v Thompson at paras 160 to 162, Spigelman CJ published the well-known guideline applicable to questions of discount for a plea for offences against state laws. There is no need for me to repeat the guideline but it is important to note that at para 113 his Honour had said: "As Gleeson CJ and Hunt J said in Gallagher it will not always be possible or appropriate to specify a discount for a plea. Whether or not it is possible or appropriate is a matter for the exercise of the discretion of the sentencing judge. This Court should go no further than encouraging judges to do so." 43 Earlier at para 72 the Chief Justice had remarked that: "A guideline is not binding in a formal sense. It does not constrain the exercise of the discretion. Accordingly a guideline which indicates that judges should where appropriate quantity a discount for a plea operates by way of encouragement and not by way of prescription." 44 Although it would have been preferable for his Honour to have indicated in this case the level of discount he applied I do not consider that his failure to do so constitutes in the circumstances an error of law nor do I consider that his Honour's failure to give reasons for the nature of the discount amounted to an error of law. I shall however return to this matter again when looking at the sentence in its overall context. 45 I turn now to the submission made that the sentencing judge failed to take into account the fact that the applicant had served and would in the future be required to serve his time in prison in strict protection. There is no doubt that the sentencing judge made no reference to the question whether the applicant would serve any part of his sentence in protective custody. The starting point in relation to this argument is the recognition that a sentencing court is entitled to take into account the fact that an offender is likely to spend part or perhaps all of the sentence in protective custody. This is because a position may become apparent that while in protective custody the offender will be subject to conditions of custody which are more onerous and more disadvantageous than those to which prisoners in the general population are subject. 46 If those circumstances are shown to exist or shown to be likely to exist, then they are matters relevant to determining the length of the sentence which should be imposed and they may be relevant in determining whether the sentencing judge should find that there are special circumstances so as to warrant a variation of the statutory proportion between the non-parole period and the head sentence. It should be borne in mind however that where, because of the prospect of protective custody, there is a reduction in the total term it will not necessarily be reflected a second time in the non-parole period unless there is good reason to do so. (See R v S NSWCCA 13 at 33 and R v P G [2001] NSWCCA 231 at para 34.) 47 The first question to determine in the present matter is what material was in fact before his Honour. Was there for example any evidence from the applicant as to the conditions of custody at the time of sentence? Was there any evidence to suggest what would happen in terms of custody after the imposition of sentence? It seems the answers to those questions are these: that there was no evidence in relation to the conditions of custody, either at the time of sentence or in the future. There was however a reference to the topic, admittedly a brief one, in the report of Mr Simon West, a Probation and Parole officer, whose report was dated 14 August 2002. There was also a submission in writing from Mr Dalton. 48 The section in Mr West's report, dealing with the possible alternatives of periodic detention, stated: "The offender has been assessed as unsuitable for a periodic detention order as per the requirements of s 66(1) of the Crimes (Sentencing Procedure) Act for the following reasons. He is presently on protection. One of his co-offenders, Asad Barakat, was recently murdered in Parklea prison. Mr Koklas said he would have fears for his safety in a periodic detention centre because he would not be on protection and would therefore prefer not to be considered for this option." 49 It may be inferred from this material that the applicant was in protection at his own request. The reference in Mr West's report to the murder of the co-offender does not by any means make it clear that the murder was related to the heroin and cocaine supply scheme. It may have been a random murder as unfortunately occurs from time to time in the violent atmosphere of prison life. 50 Mr Dalton's submissions included the following matter at the top of p 3 in the paragraph (iv): "Whilst his prior criminal record reveals he is not of good character and has one prior matter of a like kind, 25 March 1998, his record is not of the worst kind. It is certainly consistent with his history of addiction and reveals that this is his first term of imprisonment. He has been in custody since 15 March 2002 and given real fears for his safety has been in strict protection at all times. Asad Barakat has in fact been killed while in custody. Any further sentence of full-time custody imposed will also have to be served in protection and it is submitted this should be taken into consideration when determining sentence." 51 The Crown has placed before the Court an affidavit sworn 13 October 2003 by one Vicky Brunskill. She is a correctional officer working at Junee Correctional Centre. In that capacity she has access to information relating to the applicant's custody. She states in her affidavit: "Mr Koklas is currently on a Special Management Area Placement (normal protection) order (SMAP). He has been on a SMAP order since 21 march 2002. SMAP orders are reviewed every six months. Mr Koklas was placed on the current SMAP order on 15 April 2003. This order will expire on 14 October 2003 whereupon the area manager will review the order and make a decision as to whether to revoke or extend the order. Mr Koklas' current protection order states that he is a fearful inmate. Mr Koklas is housed in the general population at Junee Correctional Centre. His incarceration does not differ from that of other inmates housed at Junee Correctional Centre as most of the other inmates are also on SMAP orders. Mr Koklas has access to employment and educational courses, counselling and any other facility at Junee Correctional Centre. Mr Koklas is currently doing the NETT General Course in Education which is a seventeen week intensive therapeutic course available at Junee Correctional Centre. Mr Koklas is currently a C2 classification and this is in no way affected by his protection status." (Paragraph numbers omitted) 52 This material appears to have been confirmed by Mr Dalton today who informed the Court the applicant was not here as he was presently involved in a course, presumably the one to which reference was made in Ms Brunskill's affidavit. I should interpolate that there is a body of material before the Court relevantly tendered for the purposes of re-sentencing, should that become necessary. This, I might say, gives a very encouraging picture of the applicant's progress in prison and gives hope for a successful return to a normal life after his release. For present purposes however, it is relevant to note that he has recently been recommended for a C3 classification within the Junee Correctional Centre. 53 The Crown submissions in reply on the protection point focus on the fact that his Honour found special circumstances in the present case, citing the need for the applicant to undertake rehabilitation on his release. Secondly, the Crown pointed to the fact that there was no evidence before the sentencing court as to the nature of the custodial conditions that would apply to the applicant once he had been sentenced. 54 Thirdly, the Crown placed reliance upon the affidavit material to which I have made reference. This demonstrates, so it was argued, that it cannot be said that the applicant has experienced or will experience hardship because of his protection status, at least while he remains at Junee. Next the Crown submits that in any event there was no error in the judge's failure to mention the protection issue in circumstances where he was already intending to give the applicant the benefit of special circumstances. 55 Finally the Crown reminded the Court of the principle stated in R v Simpson [2001] 53 NSWLR 704 that there is an ultimate constraint upon a Court considering special circumstances, namely the fact that the non-parole period must itself appropriately reflect the criminality involved in the offence and must not be reduced below that level. In my opinion the Crown's submissions are well-founded. Whatever the position may have been in earlier times, it cannot now be assumed, without some evidentiary basis, that protective custody requires an automatic adjustment of the head sentence or the non-parole period. 56 The situation revealed at Junee Correctional Centre, so far as the present applicant is concerned, is a very good example of why this is so. Moreover it is important that the sentencing court have before it a sound basis on which it can understand the reasons for the particular offender requiring protection. 57 It may be the case that protection has been sought out by the offender; or it may be the case protection is necessary because he or she has given assistance to the authorities, has acted as an informer or is proposing to give evidence in the trial of co-offenders. Each of these situations, depending upon the material revealed by the evidence, may call for a different response. The need for an evidentiary basis for an understanding of the situation is plainly important (see R v Totten [2003] NSWCCA 207 at paras 39-43). 58 At para 43 in the judgment of James J with whom Sheller JA and O'Keefe J agreed said the following statement was made: - "There are difficulties in a sentencing judge taking into account a circumstance that part or all of the sentence of imprisonment is likely to be served in some form of protective custody. Taking such a circumstance in account involves the sentencing judge in making a prediction about how the offender will be dealt with in the correctional system. The sentencing judge's prediction may not be fulfilled. Furthermore, as Bell J pointed out in her judgment in Scott , there are within the correctional system not just one form of protective custody with fixed conditions as to custody but a number of different kinds of protective custody, the conditions of which vary considerably in the extent to which they depart from the conditions of custody to which prisoners in the general prison population are subject. Not all forms of protective custody involve the serious disadvantages referred to by Hunt J in Burchell , such as being obliged to serve the sentence under heavy protective guard and in isolation, even from other inmates on protection." 59 The reference to Bell's decision was to a decision of a two judge bench of this Court in R v Scott [2003] NSWCCA 28 at para 34. See also the decision of Howie J in R v Wahabzadah [2001] NSWCCA 253. The latter was a decision of a two judge bench of the Court. Wood CJ at CL concurred with Howie J. Howie J stated at para 19: - "Although the fact that the applicant had placed himself into protective custody was a matter relevant to the question of special circumstances, it was not decisive. It will not always require the sentencing judge to find special circumstances justifying a reduction in the non-parole period. Much will depend upon the particular circumstances such as the reasons for the prisoner being in protection, the prospect of his remaining in protection throughout the sentence and the actual effect that it has upon the prisoner and his prospects of reform. What weight such a factor will have will also depend upon the objective seriousness of the offence for which the sentence is passed and the extent to which other factors such as general and specific deterrence must be reflected in the non-parole period." 60 The question that was at issue in the last mentioned case related to whether or not there should have been a finding of special circumstances. Nevertheless it seems to me that considerations of a similar nature are applicable to the issue as to whether the head sentence should be reduced. 61 In the present case having regard to the seriousness of the offence, the purposes of punishment, the nature of the conditions of custody which are applicable to the applicant and the sentencing judge's finding of special circumstances, I am satisfied that no error has been shown. 62 That leads me to the next point. May it be said that his Honour's sentence was in any event manifestly excessive? My reaction to the sentence, uninfluenced by statistics and comparisons with other sentences for similar offences, is that it is a relatively stern sentence, perhaps towards the upper level of the anticipated range. In expressing that view of the sentence I am acting on the assumption, one I consider fully justified, that his Honour gave an appropriate discount for the utilitarian value of the plea. I am not satisfied however, that the sentence exceeds that range. 63 There is no doubt the applicant had a number of valuable subjective features in his favour. I have no doubt that they were carefully weighed by his Honour in the sentencing process. The fact remains that the offence to which the applicant pleaded was a serious one and his role in the drug supply operation, although limited to that of a street dealer or runner, as his Honour categorised it, called for a stern punishment which would act as a deterrent to the applicant himself and to others who were minded to participate in the destructive and organised distribution of prohibited drugs. 64 Viewed in this light I do not see the sentence as overly harsh or beyond the limits of a sound sentencing discretion. It needs to be recalled that the undertaking of this illegal drug operation was described by his Honour as one "on a large scale". It is also the fact that it could not be carried out without willing and compliant street dealers such as the applicant. 65 I am, despite Mr Dalton's forceful submissions, confirmed in this general view of the sentence by the statistics placed before the Court in this matter. Of course statistics, as the cases selected for analysis in the submissions, before the sentencing judge show, can be sparse and difficult to apply with any degree of utility. Those statistics, in my view, do not detract from the Crown contention that the sentence is within an acceptable range. 66 I do not think it was incumbent upon his Honour the sentencing judge, in the circumstances of this matter, to have gone through the cases selected for comparison and to have given chapter and verse as to the differences between the factual situation in each of those cases and the present matter. Nor do I consider it is incumbent upon this Court to do so. What was required was the selection of a sentence, which fell within the confines of a sound sentencing discretion, having regard to the facts of the matter and the application of proper and appropriate sentencing principles. The statistical material does not persuade me that the sentence imposed was otherwise than within those proper boundaries. 67 I agree also with the Crown submission that the case of R v Hoon and Pouoa [2000] NSWCCA 137, is not a truly comparable reference point for the present sentence. The offenders in that case were seventeen and nineteen years of age respectively. Each had completed the minimum term of her sentence by the time the appeals were heard. There was, at least in the case of Miss Hoon, a situation where she had fully cooperated with the police. 68 Their cases were unsuccessful Crown appeals dismissed on discretionary grounds. I note however that the Court was in fact divided on the issue as to whether the sentences were or were not manifestly inadequate. All these points of difference persuade me that these sentences do not establish any reliable benchmark for the present sentence. 69 Finally I do not consider that there is any substance in the argument based on disparity between the treatment of the offender Albani when it is compared to the sentence imposed on the applicant. Albani was sentenced upon six counts of supply, (s 25(1) of the Crimes Act). He was not charged with or sentenced for the same offence as the applicant. Albani also gave what was described in the written submissions of the applicant here as "considerable assistance and an undertaking to give evidence". 70 It is plain and beyond argument that the position of the two offenders, namely the applicant and Albani, is quite different for at least these two reasons. A justifiable sense of grievance does not necessarily arise on the part of an applicant simply because his co-offender has appeared to receive more favourable treatment when being sentenced. This is especially so, as is the situation here, where the sentences relate to different offences and necessarily in my opinion therefore to different levels of criminality. 71 It is trite to say that the mere fact that there is disparity between sentences imposed upon an applicant and a co-offender does not of itself enliven the Court's discretion to interfere with a sentence passed upon the applicant which is otherwise appropriate. It is only where the disparity cannot be explained by reference to a relevant difference in the criminality of the two offenders or their subjective circumstances or the proper application of sentencing principles that an asserted grievance is a justifiable one calling for appellate intervention. (Lowe v The Queen (1984) 154 CLR 606 at 609 at 618; Postiglione v The Queen (1996) 189 CLR 295 at 301, 303, 313 and 325). 72 In this matter I would propose the following orders, that leave be granted but that the appeal be dismissed. 73 STUDDERT J: I agree. 74 BARR J: I also agree. 75 STUDDERT J: The orders of the Court then will be those proposed by Justice Whealy.

Regina v Koklas

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Judgment (8 paragraphs)

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