Sadiq v R

Court of Criminal Appeal (NSW)|2022-12-07|Before: Leeming JA, Garling J, Adamson J

Judgment

LEEMING JA: Mr Bashir Sadiq seeks leave to appeal from an aggregate sentence of 11 years imprisonment with a non-parole period of 6 years imposed by the District Court on 23 July 2021 following pleading guilty to two counts to knowingly taking part in the manufacture of a large commercial quantity of a prohibited drug, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for each offence was life imprisonment with a standard non-parole period of 15 years. The indicative sentences for each count, specified pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), were 7 years and 2 months and 9 years imprisonment respectively. Her Honour found that there should be a discount of 10% for the applicant's guilty pleas, and thus those indicative sentences reflected undiscounted starting points of around 8 years and precisely 10 years.
The first count was based on some 5.759kg of 3,4- methylenedioxymethamphetamine (MDMA). The second count was based on 9.870kg of methylamphetamine. Schedule 1 of the Drug Misuse and Trafficking Act specified 0.5kg as the large commercial quantity of each drug, and so the amounts of drug were, in each case, vastly more than the quantity which constituted a large commercial quantity.

Factual background

The applicant did not give evidence at the sentencing hearing. The agreed facts may be summarised as follows.

The offending conduct

The co-offender commenced leasing a residential dwelling at Stanhope Gardens on 8 December 2017, and when obtaining the lease, the cooffender provided two character references, one of which was a mobile telephone number which was registered to Mr Sadiq.
On 28 August 2018, the applicant visited Bunnings Seven Hills and purchased methylated spirits, respirator masks, rags, sugar soap wipes, duct tape and a plastic scraper, all of which were recovered at the Stanhope Gardens premises. On the following day, the applicant visited Kmart at Stanhope Gardens and purchased a large plastic tub with a purple lid and a variety of inexpensive clothing including tracksuit pants, a jumper and shoes. An identical plastic tub was recovered at Stanhope Gardens.
On both days, the applicant was wearing brown leather casual shoes, a collared dress shirt and navy-blue jeans, and on both days he carried a brown leather shoulder bag.
On 30 August 2018, Mr Tashman was captured on CCTV footage at Stanhope Village shopping centre, where he too purchased tracksuit pants, tracksuit top and shoes. Mr Tashman was captured on footage walking towards the applicant's car and the applicant entered the driver's seat a short time later after purchasing numerous trays of sushi.
Also on 30 August 2018, the applicant was seen on camera ordering sushi at the same shopping centre. This time he was wearing a white long sleeve T shirt with distinctive motifs, blue jeans and black shoes with white trims. Once again he was carrying the same brown leather shoulder bag.
Later that afternoon, at around 4.50pm, residents heard an explosion and saw smoke coming from the Stanhope Gardens residence. The explosion was later identified to have impacted the plumbing of neighbouring properties. Fire and rescue services were contacted and attended the scene a few minutes later and at around 6.40pm, police attended the scene and declared it a crime scene due to the existence of items believed to be used in the manufacture of prohibited drugs. The applicant's vehicle was parked inside the garage of the residence when officers arrived. The vehicle contained keys for a unit at Walsh Bay, the same clothing that the applicant had been wearing when seen at the shopping centre earlier that afternoon (ie, the white long sleeve Tshirt with distinctive motifs, blue jeans and black shoes with white trims) and a black mobile phone not registered to the applicant.
At around 9.30pm that evening, the co-offender approached police at the crime scene. He said he had left earlier that day at about 8am to attend work and that another man by the name of Abraham lived in the rear bedroom of the house.
On the following day, detectives returned to the premises and located large amounts of scheduled chemical precursors, scheduled scientific glassware and apparatus, used gloves and face respirators, clothing and the prohibited drugs, methylamphetamine and MDMA. Items relating to the manufacture of the drugs were located in nine different rooms or sections of the property. The amounts of prohibited drugs giving rise to the charges were located on that occasion. There was also uneaten sushi on the dining table, being the sushi purchased by the applicant on the afternoon of the previous day.
On that same day, 31 August 2018, Mr Tashman applied for a new passport and on 5 September 2018, he boarded a flight to China. He has not returned to Australia.
On 3 November 2018, the applicant's brother retrieved the applicant's vehicle from Stanhope Gardens. The vehicle was located in a nearby suburb on 5 December 2018. The applicant and his brother left a BodyFit Health Club and walked towards the vehicle a few minutes later. At that stage, the applicant was arrested. The vehicle contained a "Cipher" encrypted phone, identification cards and $405. The search warrant executed at the applicant's home address located clothing and shoes which were consistent with that worn by the applicant in the CCTV footage, as well as the brown leather shoulder bag. A further $1600 was located in the bedside table of the applicant's bedroom.
A mobile phone seized from the co-offender on the night of the incident was forensically examined. The statement of agreed facts stated that "[i]t contained a number of photographs of another mobile phone displaying text messages between the co-offender and the [applicant] using the handle 'Entrepreneur'". The text messages outlined a plan between the applicant and the co-offender relating to the latter attending the premises to speak to police. Some of the text messages sent by the co-offender to the applicant read: "They will have evidence on me." "Did it blow up in front of the house in the drain?" "Bro I can't breathe u have to talk to me ... is it obvious that our house did it?" "Bro my DNA is there probably on all the shit."
The messages sent by the person operating under the handle "Entrepreneur" to the co-offender read (including typographical errors): "They will vontact me ... coz my car is in uour house." "Just say you borrowed my car and that's why its there." "II get my bro to drop off my keys to you." "ill pay for everything." "Im talking to the biggest and best lawyers:"
The sentencing judge concluded that each offence fell within the mid-range of objective seriousness. That conclusion was based on: 1. the quantities of drugs recovered; 2. the scale of the clandestine drug laboratory; 3. the substantial quantity of precursor chemicals which were present; and 4. the finding that while it was not possible to find that the applicant actually engaged in the manufacture process, he was present at the scene during the process and had purchased items to be used in the process and was available if necessary to assist in the manufacturing process.
Her Honour concluded that the applicant fulfilled an "important role" in these offences.
Proposed ground 2 challenged the assessment of objective seriousness.

The applicant's subjective case

Much of the sentencing remarks concerned the subjective case put forward by the applicant, which in many respects was highly favourable. They may be summarised as follows.
The applicant had a short criminal record and the prior matters were not significant, such that the sentencing judge said he was not disentitled to leniency and was otherwise a person of good character. He was 27 years old at the time of the offence, and suffered from a severe amphetamine-type substance use disorder, a cocaine use disorder, a post-traumatic stress disorder and an adjustment disorder with mixed anxiety and depressed mood. The applicant's upbringing was in Afghanistan but he had been constantly moving as a child with his family between Afghanistan and Pakistan. When he was about 5 years old, he saw his mother being stabbed and his father abducted by armed men. He said that the family migrated to Australia when he was about 12 years old, although his father had not been released by the Taliban until he was aged about 15. He suffered bullying throughout his school years when he was in Australia, and in response engaged in fights and developed antisocial behaviour. He started professional boxing when he was about 15 years old which gave him structure, discipline and acceptance from friends. He also suffered from head trauma after being hit by a bus when he was about six, and spoke of sexual abuse by an uncle between the ages of seven and 12. He had an interrupted education but succeeded in completing Year 12 at a Sydney high school, where he had been suspended for fighting.
The applicant's boxing career was from the age of 17 to 24 but ended due to a motor vehicle accident. During that career, he achieved some success, having been selected to compete for Afghanistan in the 2012 Olympics but was told that he could not represent that country. He trialled for the Asian Olympic qualifying team but was beaten by his opponent; nonetheless at some stage he became both the NSW and Australian amateur boxing champion. He first consumed alcohol when he was 14 but stopped drinking when 15 and did not drink during his boxing career. After that ended, he would drink between 10 and 15 spirits on a daily basis as well as taking up cocaine and crystal methamphetamine.
The sentencing judge found that the applicant was suffering from post traumatic stress disorder, which, together with his drug addiction, was regarded as attributable to events that he was not primarily responsible for, thereby removing personal choice. On that basis her Honour found that his moral culpability was reduced.
The sentencing judge referred to a letter of remorse written by the applicant to the Court, noting that he did not give evidence, and to a variety of supporting references from friends and family members, including his fiancée. The sentencing judge concluded from all these materials, including a sentence assessment report, that the applicant had engaged well since being in custody, that he was seeking to address his drug addiction, which was a significant criminogenic factor, that he had reasonable prospects of rehabilitation but that she could not be satisfied that he would not commit further offences.

Parity

The sentencing judge addressed parity on the following basis. Her Honour was satisfied that the objective seriousness for the applicant was higher than for the co-offender. Her Honour said: "The use of the offender's mobile number as a referee in the rental process is consistent with a level of involvement from the outset. The offender purchased materials over a number of days and was present at the time of the manufacture. Both men have backgrounds involving significant hardship. Both have limited criminal records, and they were the same age at the time of the offence. For the co-offender, it was accepted that there was to be no monetary gain beyond free accommodation. That is not a finding that is open to me to make in this matter. While I cannot quantify monetary gain, I find that there was to be some monetary benefit. The co-offender's level of remorse and contrition demonstrated was found to be exceptional and is significantly higher than for this offender."
That passage was central not only to proposed ground 1 based on parity, but also to a new point raised by the applicant.

The appeal to this Court

There were three proposed grounds of appeal: 1. The applicant has been left with a justifiable sense of grievance when comparing his sentence to that of his co-offender. 2. The Court has erred in the assessment of the objective criminality of the offending conduct. 3. The overall sentence of 11 years and the minimum term of 6 years is manifestly excessive.
In accordance with numerous authorities (many may be found in Tsimingos v R [2021] NSWCCA 107 at [19] and Er v R [2018] NSWCCA 286 at [40]), the parity ground should be addressed last. This ground presupposes the sentence is otherwise free from error. However, most of the oral hearing was occupied with a new point, first developed in supplementary written submissions supplied the day before the hearing, which was said to affect all three proposed grounds. It is necessary therefore to address this immediately.

The new point raised shortly before the hearing

The applicant's new point turned on the indictment, which specified that the applicant's participation in the manufacture of MDMA and methylamphetamine took place "[b]etween the 28th day of August 2018 and the 30th day of August 2018". This, so it was said, gave rise to two distinct errors.
The first and principal error was said to be the sentencing judge's reliance upon the provision of the applicant's mobile phone number as one of the references to the tenancy in December 2017. It was said, referring to the passage in her Honour's remarks on sentence addressing parity reproduced above, that: "it should have been no part of the assessment of the criminality of the applicant's involvement in the offence that the co-offender provided a phone number registered to the applicant and provided it in another name to the real estate agent when applying for the lease at the subject premises as a character reference. … This application was made by the co-offender on 8 December 2017 (Agreed Facts [2]) and therefore was not available evidence regarding the subject offence given it was outside the date range of the indictment which was limited to the period 28-30 August 2018. It is submitted that this is an error. Further, and in any event, given such a finding constitutes a matter of aggravation, it would need to be found beyond reasonable doubt and the mere fact that the co-offender provided a phone number registered to the applicant in a false name back in December 2017 does not mean that the applicant was knowingly involved in that event and/or was knowingly involved in a proposed drug manufacturing enterprise of that time."
Secondly, also in connection with the remarks on parity, it was submitted that the "implied finding that the applicant was receiving cash from the drug enterprise to pay his rent prior to the 28th of August 2018 was also not an available finding given the date range of the indictment."
I do not accept either submission.
The sentencing judge approached the process of imposing sentence in a conventional way. Her Honour first addressed the matters bearing upon objective seriousness, then turned to the balance of the considerations bearing upon the sentencing discretion, including the applicant's subjective circumstances and considerations of parity. The assessment of objective seriousness was based on what was agreed, and what followed as a matter of necessary inference from those agreed facts, which were in turn based upon the applicant's guilty pleas, the quantity of prohibited drugs found, the applicant's movements and purchases (including the food to be eaten that day which was left uneaten, and equipment such as respirators) and conduct (including taking off his clothes on 30 August 2019 and leaving them in his car parked at the Stanhope Gardens property). No challenge was made to the reasoning that although it had not been established to the criminal standard that the applicant was actually engaged in the manufacturing process, he was present at the scene during the process and was available if necessary to assist. Nor was any challenge made to the conclusion that he fulfilled an important role in the offences.
Although the finding of objective seriousness was made after the agreed fact that the co-offender had supplied the applicant's mobile phone number at the commencement of the lease was recited, none of the reasoning on which that finding was based turned on that fact.
The reasoning upon which the applicant's submissions are based concerned the evaluation of parity in relation to the co-offender who had been sentenced a year before. But the consideration of parity was not circumscribed by facts agreed to have occurred in the three day period specified in the applicant's indictment. This Court constituted by five judges said in R v Chandler; Chandler v R [2012] NSWCCA 135 at [80] that "[i]n order to determine whether the parity principle applies, it is necessary to not only consider the factual background to the offences and the charges which were brought against the applicant and [the co-offender], but to also have regard to the findings made in each case by the sentencing judge." That is to say, the operation of the principle of parity is inevitably broader than the time during which the offence is alleged to have occurred.
In the present case, it was necessary in order to address parity to have regard to the fact that the co-offender had resided in the premises (or at least had taken out a lease of the premises) since the previous December but the applicant had not. But in order to capture the difference between the two men, it would have been wrong to proceed on the basis that the co-offender had been residing at the premises since the previous December, while the applicant had no connection with the premises until 28 August 2018. That was not the position, because the applicant's mobile number was given, with a false name, as a reference on the tenancy application.
Further, all that was said was that the use of the applicant's mobile number as a reference in the rental process was "consistent with a level of involvement from the outset". There is no reason to read those words in any way other than their natural meaning. It is not a finding that there was involvement in any manufacture of prohibited drugs outside the dates specified in the indictment.
As it happens, the error may also be seen in another way. Unlike the applicant, the co-offender had pleaded guilty at an early stage, and so there was no indictment. The co-offender's Court Attendance Notices in fact specified a narrower timeframe in respect of the offences under s 24(2) of the Drug Misuse and Trafficking Act, namely, "between 5:00pm and 5:15pm on the 30th day of August 2018". Neither the three days specified in the applicant's indictment nor the 15 minutes specified in the co-offender's Court Attendance Notices precluded the Court from having regard to the cooffender's residence at the premises for some months, or to the fact that the applicant's mobile phone number was provided on the tenancy application, for the purposes of addressing the principle of parity.
Nor do I accept the second submission, which senior counsel candidly acknowledged was weaker than the first. This point turned on the benefits derived by the applicant and the co-offender. The co-offender was sentenced on the basis that he received rent-free accommodation, while the applicant was sentenced on the basis that he received material gain, although her Honour said that the material gain could not be quantified. Counsel for the applicant accepted that no point was taken about the timeframe specified in the indictment. Counsel's point was that if the material gain could not be quantified, then it was not available to suggest that the applicant received a greater benefit than the co-offender. But her Honour was merely summarising the different circumstances accompanying the offending of the co-offender and the applicant. Her Honour did not say, nor did she imply, that the rent-free accommodation was of greater significance or lesser significance than the unquantified material benefit received by the applicant. This was an issue, like so much of the facts surrounding the offending, where the forensic choices made in the District Court meant that the sentencing had to proceed on an uncertain factual basis. That is not said by way of criticism; it is commonplace and it is easy to see why there could be sound reasons for taking that course. Her Honour's findings respected the limitations of the factual material on the basis of which the sentencing discretion fell to be exercised.
That disposes of both submissions. But the following may be added. The matters of fact of which the applicant now complains were contained in the statement of agreed facts on the basis of which he was sentenced. The applicant was represented by experienced counsel at that time. No submission was made to her Honour that the material agreed in the statement of agreed facts was unavailable for use in relation to resolving the submissions made about parity. I mention this because a threshold question is whether the applicant should be granted leave, which is required pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). One factor, which may be significant in other cases, telling against the grant of leave is that a proposed ground of appeal is antithetical to the way the sentencing proceedings were conducted at first instance.
For those reasons, I do not accept the new submissions advanced by the applicant.

Proposed ground 2 - assessment of objective criminality

No substantive oral submissions were made in support of this ground. The applicant submitted that he fell to be sentenced on the basis that he was not found to be manufacturing the prohibited drugs, or to have supplied the precursors or critical chemicals, or had demonstrated links with other persons involved in the manufacturing process, or was involved in any peripheral supply. The written submissions said that there was error in the finding that the objective criminality "falls within the mid-range of objective seriousness" and that instead, the sentencing judge should have concluded that the objective seriousness "was below the mid-range and towards the lower range", in accordance with the finding made in relation to the applicant's co-offender.
This ground is without merit.
The matters raised on behalf of the applicant are correct so far as they go, but they are far from a complete description of the quality of the applicant's offending, as opposed to that of the co-offender. Unlike the co-offender, the applicant personally purchased supplies such as methylated spirits and equipment such as respirator masks to be used in the manufacturing process (as was apparent from the facts agreed, based on CCTV footage). Unlike the co-offender, the applicant drove Mr Tashman to the premises (again, as was apparent from what was agreed to be depicted by the CCTV footage). The purchase by the applicant of sushi, which was found after the explosion, and of inexpensive tracksuit pants, jumper and shoes, none of which were found although the distinctive clothes worn by the applicant earlier that afternoon were located in his vehicle, all point inexorably to the applicant being at the scene and available to assist in the manufacturing process, and being concerned not to have any of the chemicals involved in the manufacturing process finding their way onto his regular clothes. The finding by the sentencing judge that the applicant was available if necessary to assist was, given that evidence, the most favourable available to the applicant. Nor is there any challenge to it.
The position then is that the applicant was closely involved in the manufacture of very large quantities of prohibited drugs, many times more than large commercial quantities, and had personally purchased methylated spirits, respirator masks and other equipment to be used in the process. The finding that the objective seriousness of each offence was within the mid-range was amply open to her Honour.

Proposed ground 3 - the sentence was not manifestly excessive

The applicant's oral submissions focused on the strengths in the applicant's subjective case, summarised above. There is force in those submissions. In many respects, the applicant's subjective case is a powerful one. Although arriving from a war-torn country in Australia as a young boy, and despite suffering very serious challenges through no fault of his own, the applicant made real steps towards a productive successful life. His descent into serious criminality, associated with his drug addictions, is tragic.
The applicant identified five decisions said to be comparable. They were sentences imposed on persons whose role in the manufacturing process was either unclear, or were not directly involved in the manufacture. The undiscounted starting points for the sentences imposed were just about 7 years (R v Forero-Gomez [2021] NSWDC 131), 7 years (R v Wensor [2019] NSWDC 399), 6 years (R v Merhi [2020] NSWDC 910), some 8 years and 11 months (Greentree v R [2018] NSWCCA 227) and around 6 years (Nguyen & Tran [2021] NSWDC 576).
Care should be taken when considering cases said to be comparable, noting in particular that the sentences imposed in other cases do not mark the outer bounds of permissible sentencing discretion: see MLP v R [2014] NSWCCA 183 at [41]-[44]. But in any event, the cases relied upon do not establish manifest excess.
None of those decisions involved two offences contrary to s 24(2) (although I shall return to Greentree below). Three of the decisions reflected involvement of the offender falling well short of the applicant. The applicant was present when the manufacturing process occurred and available to assist if necessary, and had acquired equipment such as respirator masks and supplies such as methylated spirits to be used in the manufacturing process. In contrast, Mr Forero-Gomez "well knew what was happening at the premises" and was capable of translating instructions about the manufacturing process, which were written in Spanish ([2021] NSWDC 131 at [31]-[32] and [36]); Mr Wensor and Mr Merhi merely made their properties available for use for the purpose of manufacture ([2019] NSWDC 399 at [14]; [2020] NSWDC 910 at [13]-[14]).
No real attempt was made to compare the extremely large quantities of prohibited drugs - more than ten times the large commercial quantity - recovered from the premises, with the quantities in most of the other cases said to be comparable.
Mr Greentree made his property available, and was sentenced on the basis that he "provided equipment and chemicals for the clandestine laboratory": [2018] NSWCCA 227 at [15], and had been involved in manufacturing 5kg of methylamphetamine. Mr Greentree's involvement was, accordingly, more direct than the applicant. However, the large commercial quantity at the time of Mr Greentree's offending was 1kg, rather than the 500g threshold applicable when the applicant offended. Further, Mr Greentree's sentence incorporated a discount of 30%, so that the undiscounted starting point was almost 8 years and 11 months.
Mr Nguyen was present during the manufacturing process of some 4.8kg of methylamphetamine, and while there was no direct evidence as to his role, his fingerprint was found inside a pair of gloves and on a glass scientific flask in the premises. He was sentenced on the basis that he performed some role, presumably at the direction of others: [2021] NSWDC 576 at [39]-[40]. The sentence of 5 years and 4 months followed a defended trial, and appears to reflect a finding of objective seriousness "towards the lower end": at [44]; a subjective case that included "significant trauma and adversity" (including capture and imprisonment in Vietnam): at [51], and seems also to have been influenced by parity considerations: at [64]-[74].
The only decision relied upon which is a decision of this Court is Greentree and that decision is also more closely comparable than the others. The undiscounted sentence imposed by this Court of some 8 years and 11 months is not out of line with the sentences imposed on the applicant, bearing in mind that the 10 year indicative sentence was for around double the quantity of prohibited drug, at a time when a large commercial quantity had been reduced to 500g, and incorporated the proceeds of crime offence. It is true that the sentence imposed on Nguyen is significantly lower than that imposed on the applicant, but that falls far short of establishing that the applicant's sentence is manifestly excessive. The applicant's sentence is well within the range of the other four decisions relied upon by the applicant, when the quantity of drug and the extent of his involvement are borne in mind.
The applicant also pointed to two decisions where greater sentences were imposed on offenders whose involvement was closer than that of the applicant: Grogan v R [2019] NSWCCA 51 and El Kheir v R [2019] NSWCCA 288. Mr Grogan was a live-in caretaker, actively involved in manufacturing a large commercial quantity but acting under the direction of another, who received an indicative sentence of 10 years imprisonment with a non-parole period of 6 years and 6 months in respect of a single count. Mr El Kheir had purchased items for the manufacture of 2.694kg of methylamphetamine and was injured in the eye during the process, and received a sentence of 10 years and 6 months with a non-parole period of 7 years.
The Crown for its part relied on two further, and more recent decisions of this Court. In Qin v R [2022] NSWCCA 137 this Court did not interfere with a indicative sentence of 14 years and 4 months for involvement in the manufacture of 11.58kg of methylamphetamine. Mr Qin was not a principal but "more than a mere labourer" (at [15]), and the sentence included a 10% discount. In Tsimingos v R [2021] NSWCCA 107 this Court resentenced the offender, upholding a parity ground, to imprisonment for 8 years and 3 months for involvement in and presence during the manufacturing of 13kg of methylamphetamine. The undiscounted starting point was 11 years.
Even allowing for the strength of the applicant's subjective case, I am unpersuaded that this ground is made out. The maximum sentence for each offence was life imprisonment, and the standard non-parole period 15 years imprisonment. The undiscounted indicative sentences of around 8 years and 10 years imposed on the applicant do not seem manifestly excessive to the sentences of 6 and 7 years to other offenders involved in producing (for the most part) substantially smaller quantities of prohibited drugs and not being so closely involved in the process as the applicant, and they sit easily with the sentences imposed by this Court in Greentree, Qin and Tsimingos. There was also a significantly favourable finding of special circumstances, reducing the ratio between nonparole period and total sentence from 75% to just less than 55%.
The premise of this ground is that error is to be inferred from the sentence actually imposed, even though it is not apparent on the fact of the reasons. The need for error to be inferred is explicit in the formulation in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40: "[i]t may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance." This was confirmed in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [59], and in Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 at [9].
I am unpersuaded that the sentence imposed, or for that matter the indicative sentences for each count, were so unreasonable or plainly unjust, such that it may be inferred that the sentencing discretion has in some way not been properly exercised, even though the nature of the error does not appear in the reasons given by the sentencing judge.

Proposed ground 1 - parity

The judge who sentenced the co-offender found that "the offender played a far lesser role" than the other two men, and regarded the objective seriousness of the two offences as "somewhat below the mid-range and towards the lower range", in contrast with the mid-range finding of objective seriousness found by the primary judge. The differentiating features between the offender and the co-offender were: 1. the applicant's purchase of the equipment and materials in the days prior to the manufacture; 2. the applicant's presence and capacity to be involved if necessary in the manufacturing process itself; 3. the finding that there was some (albeit unquantified) monetary benefit as opposed to free accommodation; 4. a significantly higher level of remorse and contrition than was demonstrated by the applicant; 5. different offending taken into account in relation to the more serious charge (proceeds of crime as opposed to possessing instructions for manufacturing drugs).
In relation to remorse and contrition, the co-offender (who gave evidence) was found to be exceptionally remorseful. The applicant's counsel accepted that the level of remorse was "significantly higher" than for the applicant, and made no challenge to that conclusion.
In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31], the joint judgment said: "The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise." (footnotes omitted)
When the undiscounted starting point of the sentences imposed on the applicant and on his co-offender are compared, having regard to those findings, there is no basis for any grievance based on parity. The applicant had a very strong subjective case, but with less contrition and remorse, and was sentenced on the basis that he was more closely connected with the offending. That produced the result that the undiscounted starting points for the actual and indicative sentences in relation to both men were roughly comparable. No sound basis for grievance with that exercise of discretion is established.
While there should be a grant of leave, the appeal must be dismissed.
GARLING J: I agree with Leeming JA.
ADAMSON J: I agree with Leeming JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2023

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