24 The Crown provided his Honour with the published remarks of Douglas J in Reed's sentence proceedings however, because of a sentencing practice in Queensland where details of assistance and discounts for assistance are suppressed from publication, neither defence counsel nor his Honour were aware of the precise discount that was applied to the Reed sentence or the reasons for it. Instead his Honour was informed by the prosecutor that Reed had been afforded the "maximum discount" for his past and future assistance. He accepted the Crown submission that because the applicant and Reed were not co-offenders (presumably because they were not charged with the same offences and were dealt with in different jurisdictions) parity considerations did not arise in what his Honour called "the direct sense". Rather, his Honour was invited by the prosecutor to "bear in mind" the sentences that were imposed on Reed in imposing sentence on the applicant. He said that he would do so in his sentencing remarks.
25 This Court was provided with the published remarks in the Queensland sentence proceedings, inclusive of the in camera proceedings. Within days of the hearing of the appeal, the applicant's counsel was also provided with the same material by order of the Supreme Court of Queensland on his undertaking that it would not be published otherwise than for the purposes of the appeal.
26 By reference to this material it is clear that Reed's sentence was reduced by 50 per cent for his past and future assistance and, on one reading of Douglas J's sentencing remarks, also by reason of his plea of guilty. When applied to a notional head sentence of 24 years on all four counts, the discount reduced the head sentence to 12 years on each count with a non-parole period of 8 years. The sentences were ordered to be served concurrently. In the applicant's written submissions it was argued that his Honour may well have thought the discount was higher than 50 per cent, (presumably on the basis that that a 60 per cent discount on sentence has been nominated as '"the maximum discount": see SZ v R [2007] NSWCCA 19; 168 A Crim R 249) and that this may have impacted adversely on the applicant's sentence because his Honour may have assumed a higher notional starting point for the calculation of the Reed sentence. After being given access to Douglas J's reasons for judgment this submission was abandoned.
The first ground of appeal
27 The only remaining submission advanced in support of the first ground of appeal was that despite the fact that the Commonwealth laid different charges against the two offenders, the sentence imposed on the applicant did not bear a reasonable relationship or relativity to the sentence imposed on Reed. After making due allowance for differences in the sentencing practices in New South Wales and Queensland (the most significant being that Reed was sentenced to wholly concurrent terms of imprisonment for all offences, an approach which is contrary to established sentencing principles in this state for repeated offending of the type and scale in which Reed was involved), it was submitted that the sentences were nevertheless disproportionate. This conclusion was also said to be borne out by the fact that the objective criminality involved in Reed's offending was much greater than that of the applicant and for two reasons. The first because of the senior role he played in both importations as compared with the applicant's role in distributing, or agreeing to distribute, some of the drugs imported, and secondly because the drugs imported by Reed in September 2006 exceeded the drugs that the applicant was charged with supplying by a very considerable measure. It was submitted that to the extent that there are relevant differences in the subjective circumstances of both offenders this does not justify the applicant serving a significantly longer effective sentence. I note that Reed was a young man with no prior convictions and the applicant a very much older man also with no prior convictions.
28 The applicant submitted that it was immaterial for the purposes of the appeal whether this Court approaches the question of principle as one of "strict parity" or "relative parity", assuming that there is a practical distinction between the two concepts. It was also submitted that irrespective of whether there is any difference in the approach to the sentencing of co-offenders mandated by Lowe v R [1984] HCA 46; 154 CLR 606 and the approach to the sentence of offenders involved in a course of criminal conduct in circumstances where, despite differences in the type or number of charges, different sentencing outcomes generate a justifiable sense of grievance, due proportion in the sentences of the applicant and Reed is required in order to reflect the principle of equal justice. The applicant relied upon Postiglione v R [1997] HCA 26; 189 CLR 295 where at 301 Dawson and Gaudron JJ said:
The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
29 The Crown submitted that the lack of relativity in the sentences imposed on the applicant and Reed simply reflects the fact that they pleaded guilty to different offences and were sentenced on a different factual basis and that this approach was entirely in keeping with the line of authority most recently considered by Latham J in Pham v R [2009] NSWCCA 25 at [28] - [45]. The Crown submitted that the applicant was seeking to extend the application of the parity principle beyond that of co-offenders contrary to that same line of authority.
30 In Pham the applicant was convicted of knowingly taking part in the supply of a large commercial quantity of pseudoephedrine and was sentenced to a non-parole period of 7 years and 6 months with a balance of sentence of 2 years and 6 months. His role was held to be significant although below that of others jointly involved in the importation and supply of the drug. While all offenders were originally charged with both importation and supply offences, not all offenders were arraigned on both charges. The importation offence carried a maximum of 5 years while the supply offence carried a maximum of life imprisonment with a non-parole period of 15 years. A co-offender, whose criminality was said to be far greater than that of the applicant, was sentenced only for the importation offence, the Crown having accepted that they should elect as to which charge to proceed with to avoid the indictment being stayed, and to a term of 2 years imprisonment that was then suspended under the Crimes (Sentencing Procedure) Act. Another offender was sentenced on both counts, no point having been taken in that sentence proceeding before a different judge that the indictment was duplicitous. That offender was sentenced to an effective non-parole period of 8 years. The applicant complained that his sentence on the supply count should be reduced in light of the sentences imposed on his co-offenders. He relied upon R v Kerr [2003] NSWCCA 234, a decision that addresses the application of the parity principle where co-offenders are charged with different offences. In Kerr Miles AJ, with whom the other members of the Court concurred, stated at [20]:
In other words when it is known that a person implicated in the offence for which an offender is being sentenced has already been convicted and sentenced, care needs to be taken to ensure that as far as possible the sentence about to be imposed is not so severe as to generate, not only a sense of grievance in the offender but also a sense of disquiet in the disinterested observer. The observer must of course be reasonably acquainted with the circumstances. Sometimes such a situation may be unavoidable. A co-offender may be given immunity in exchange for testifying against the accused. That does not in itself require leniency to be extended to the offender being sentenced let alone a sentence that is so lenient that it is out of the range of what is appropriate.
31 In dismissing the appeal Latham J considered the line of authority commencing with Kerr in some detail. After referring to the views of Miles AJ extracted above her Honour observed:
33 This statement of principle was considered by this Court in R v Formosa [2005] NSWCCA 363. There the applicant was charged with malicious infliction of grievous bodily harm in company. The co-offender, Wood, was dealt with as an accessory after the fact to the applicant's offence. In dismissing the appeal, Simpson J stated:
40 The decision in Kerr is capable of being read as extending the principle so that it applies even where co-offenders are charged with different offences. I do not wish to be taken as entirely rejecting the proposition that the principle can be so applied, but here, with the extremely wide divergence between the nature of the crimes charged against the co-offender and against the applicant it is difficult, if not impossible, to see how that principle can be applied.
41 The effect of the submissions made on behalf of the applicant (and the decision in Kerr is at least capable of giving them some support) is that the principle of parity in sentencing is broad enough to extend to redressing disparities or discrepancies in the charging process as well as in the sentencing process.
42 In Kerr , there were marked parallels with the present case. The facts suggested that both the applicant and Oliver had been actively involved in the actual assault, and, so far as the facts are recited in the judgment, to a comparable degree. Yet Kerr was charged with a significantly more serious offence than was Oliver. Quite apart from any other differences, which were recognised in the passage quoted in Postiglione as justifying different sentences, that alone imposed demands upon each sentencing judge that were different.
43 In the present case the divergence was even greater. While Colin Wood does not appear actively to have participated in the assault, he was undoubtedly present for the purpose of supporting the applicant. That he was charged only with an accessorial offence is mysterious and unexplained.
44 I do not understand either Lowe or Postiglione to suggest that the parity principle extends to correcting any imbalance in the manner in which co-offenders are charged. I would be very cautious before proposing or adopting any such principle.
34 The statement of caution made by Simpson J above was repeated in Spinks v R [2007] NSWCCA 52 where a complaint of disparity was rejected in circumstances where one offender had been charged with less offences than the co-offender. The statement was also endorsed in Yin v R [2007] NSWCCA 350 at [23]-[24], in Kauwenberghs v R [2008] NSWCCA 98 at [109] and referred to in McGuiness v R [2008] NSWCCA 80. In the latter case there was no disparity arising where one offender had been dealt with summarily and the other on indictment. In Yin Barr J stated at [24]:
……………….Although I express no opinion about the comparison of an appellant's sentence with that of an offender convicted of a more serious offence, it seems to me that comparison with that of an offender convicted of a less serious offence, as is done in this appeal, is attended with difficulty.
35 For completeness I note that Kerr was referred to in Yassine v R [2008] NSWCCA 139 and a small part of the judgment of Miles AJ quoted, but without critical comment. But the argument on parity failed and the appeal was dismissed. Similarly, Formosa and Spinks were referred to by Buddin J (Basten and Barr JJ agreeing) in Holden v R [2008] NSWCCA 100 at [38] with apparent approval and the appeal was dismissed.