Ground 5 : If parity does not apply, the sentencing Judge erred in not applying the principles of consistency to ensure there is no justifiable sense of injustice when one compares the applicant's sentence to that of Luigi Romano.
26 Those grounds are obviously associated and can be dealt with together. The sentence received by Luigi followed trial. It has been set out above. The principles relating to parity and consistency are not in doubt and it is not necessary to recite the oft quoted passages of authority which appear in cases such as Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295.
27 In terms of minimum custody Nicola must serve 6 years and Luigi must serve 5 years. There is one month difference in their respective balance terms but this difference is not of significance.
28 A principal matter of discrimination between the two offenders was undoubtedly the circumstance that Nicola was to be sentenced for involvement in the cultivation of two large commercial quantities of prohibited crop whereas Luigi was involved in only the one. Of course, for involvement in the Torrington cultivation the offence by Nicola was taken into account in the Form 1 procedure and he was not to be separately sentenced in respect of it. Nevertheless, it was an offence for which there is a maximum prescribed penalty of imprisonment for 20 years and that offers a measure of its seriousness. It was his Honour's function when dealing with Nicola to impose a sentence for the totality of his criminality: R v Bavadra [2000] 115 A Crim R 152. It was observed in AG's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) 2002 56 NSWLR 146 that taking a matter into account on a Form 1 required greater weight to be given to personal deterrence and retribution with the consequence that a longer sentence will be imposed for the indicted offence and the additional penalty will not necessarily be small.
29 There was no justifiable basis for Nicola to be aggrieved by comparing the sentence received by him with that received by Luigi and these grounds should be dismissed.
30 Ground 6: The Sentencing Judge erred by taking into account matters which were not in evidence before him on the applicant's sentence.
Ground 10 : The Sentencing Judge erred in taking into account material which was not in evidence before him in determining the applicant's role or level of involvement in the cultivation.
31 These grounds effectively articulate the same complaint.
32 At the sentencing proceedings there was tendered to his Honour without objection a folder containing the statements of facts and the remarks on sentence of relevant judges in respect of all the other co-offenders except Luigi (Exhibit E). In that circumstance there can have been no error by McGuire A/DCJ having reference to the content of the exhibit.
33 The argument was focussed on a remark by his Honour concerning findings by Hulme DCJ who sentenced a number of other offenders including Bonfiglio. McGuire A/DCJ said:
"Judge Hulme formed opinions as to where the various figures stood, in the hierarchy of the organisation. He did so on the basis of agreed statement of facts.
As I remarked when sentencing Luigi Romano on 1 May 2004 his Honour made findings relying upon evidence as to the involvements of various participants, different to that available to me. For example a determination was made by his Honour Judge Hulme as to the status of Luigi Bonfiglio as being relatively senior figure in the enterprise albeit that he found Foti and Caparilli (sic) to be of greater importance and placed Bonfiglio in the middle of the hierarchy. With the greatest of respect to his Honour that was a finding that I would not of made having regard to additional information available to me, that was not in the possession of his Honour.
I had the advantage of the evidence given in the trial of Luigi Romano from various co-offenders and the many tape recordings of conversations among various participants, including the offender standing for sentence. I do not consider valid the parity argument advanced in the case of Luigi Romano nor do I find Judge Hulme's assessment to be of real assistance in dealing with the case of the offender before me."
34 However, it should be noted that he went on to say:
"Nicola Romano's conduct in both the offence that is the matter on the indictment and on the Form 1 reflect far greater criminality than was displayed by Bonfiglio.
I have not drawn upon the material before Judge Hulme nor upon his opinions to assign to the offender, Nicola Romano, his role in the venture. Luigi Bonfiglio gave a letter of assistance for which he received a discount and he entered a plea of guilty at a much earlier point in time than the present offender."
35 His Honour's finding as to the role of Nicola was explicitly based upon the agreed statement of facts that had been placed in evidence before him. He made this plain:
"The agreed statement of facts clearly establish that the offender was a member of the top echelon in the organisation. Whether he was a few percentage points more or less responsible than X or Y I consider to be of little relevance. Nicola Romano was involved in activities over a substantial period. His conduct was not spontaneous. It was obviously considered and deliberate."
36 It is true that the transcript shows exchanges between his Honour and counsel then appearing for Nicola (who did not appear in the appeal) in which the obvious fact that his Honour had presided in the trial of Luigi was mentioned and his Honour referred to the great deal of material that he had necessarily then heard. That such exchanges had taken place offers no basis for concluding that his Honour did not do as he said, namely, determine issues including Nicola's place in the top echelon of the organization by reference to the evidence which had been put before him in the instant proceedings. He was not obliged uncritically to apply findings by other judges made upon facts put before those other judges, and he expressly declined so to do. No error was manifest and I would dismiss these grounds.
37 Ground 8: The Sentencing Judge erred in finding that the "agreed statement of facts clearly establish that the offender was a member of the top echelon in the organisation".
38 The written submissions in argument in support of this ground invited this Court to find that his Honour did not make this determination as he had stated that he did, but made his findings on material which had become available to him in his capacity as the presiding judge in the trial of Luigi. This submission was entirely unjustified. A brief reference to some of the salient matters in the agreed statement of facts shows that it was scarcely necessary for his Honour to elaborate this matter. Nicola's position in the "top echelon" was indisputable.
39 As to the Glen Davis crop, it was an agreed fact that Nicola "had a detailed knowledge of the everyday operation of the plantation". He was physically present overseeing the harvest and assisting in setting up the arrangements for drying the harvested material. He made a journey to Griffith to obtain some of the clones to grow the crop. He gave instructions to workers as to how to overcome difficulties with water supply and irrigation. Intercepted conversation about supply of a sample showed plain involvement in trying to market the illicit product. He was involved in obtaining provisions including food and bedding for the field hands. He arranged for the hire of plant and vehicles by Mitin, using the latter's credit card but subsidizing him with cash. As regards the Torrington operation, it was Nicola who gave the instructions, obviously seized of authority up to the level of even giving a direction that the crop be destroyed. It was not suggested that he gave this direction by reason of some change of heart, and the rational alternative would be that a fear had been engendered that the security of the clandestine activity may have been breached. As events turned out it had, but McWhinney had not complied with the direction.
40 This ground should also be rejected.
41 Ground 9: The Sentencing Judge erred in finding that the starting point in Skoran's case did not apply because Skoran was found to occupy an intermediate level in the cultivation.
42 The intended reference is to R v Skorin [2005] NSWCCA 276. Skorin was not involved in either of the matters concerning Nicola. It was referred to in his Honour's remarks on sentence because counsel had submitted that that case provided a close "factual scenario". His Honour was not bound by counsel's submissions.
43 The contention advanced in support of this ground sought to demonstrate error by his Honour in not choosing a similar starting point for sentence assessment as had been chosen in that case. That approach invited the sort of error identified by Hunt CJ at CL in R v Morgan [1993] 70 A Crim R 368-371 where he observed:
"It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range."
44 His Honour gave reasons for choosing a higher starting point than had been chosen in Skorin and he listed the following:
"1. The plea of guilty was at the last moment.
2. There was no assistance offered to the authorities.
3. Nicola Romano was in the top echelon of the criminal organisation rather than an intermediate one.
4. The existence of a serious offence on the Form 1."
45 Whilst the inclusion of all of these items was the subject of some criticism, the simple fact is that Skorin does not stand as some sort of arithmetical authority setting a starting point for sentences for offences like to the present.
46 Skorin had pleaded guilty in the lower court and had been committed for sentence. It came before this Court on Crown appeal and the ultimate sentence, to which the present applicant sought to refer, was imposed with the restraint applicable to resentence after a successful Crown appeal.
47 There was no error by his Honour in not adopting the "mathematics" which could be derived from Skorin and this ground has not been sustained.
48 Ground 11: The sentence imposed on the applicant was manifestly excessive.
49 This ground was sought to be supported by reference to a range of cases. Reiterating the extract from Morgan cited above, it suffices to observe that for the offence by Nicola, with a necessary reflection of the significant criminality of the offence on the Form 1, the imposition was well within the range of sound sentencing discretion.
50 I would grant leave to appeal against sentence but dismiss the appeal.
51 I turn to the application by Luigi Romano.
52 Senior counsel who appeared in the appeal indicated that certain grounds previously filed were abandoned and he essentially relied upon grounds numbered 2 and 3. I will also set out ground numbered 1, which was not pressed as such but, as counsel said, it was included in order to "tease out the point made" and "go behind the label and see what the findings actually are".
53 The grounds as stated were: