Sinkovich v Regina

Factual background 6Since there were no agreed facts, it was necessary for his Honour to make findings by taking into account the implications of the jury verdict and by reference to the evidence at trial and in the sentencing proceedings. There was no challenge to the findings of his Honour but there was a challenge to the use which he made of them. 7In May 2008 Operation Fiesta was formed to investigate the supply of methylamphetamine in the Minto and Claymore areas. As part of this, a controlled operation was authorised on 5 June 2008. This involved a Police Undercover Operative (UCO) known as "Peter" attending Swettenham Road, Minto on 12 June 2008 carrying $2,700 in cash. He wore a listening device. 8The applicant drove a co-offender, Lowe, to this location and waited nearby. Lowe walked to the UCO's car. Lowe supplied the UCO with a quantity of methylamphetamine in exchange for $2,700. This was later analysed and weighed, which indicated a net total of 27.2 grams. During this meeting, there was a conversation about a further supply. Lowe then left the UCO's vehicle and returned to where the applicant was waiting and they drove from the area. 9His Honour found that the applicant and Lowe were in the business of drug trafficking. This was based on telephone intercepts of conversations between the applicant and Lowe. 10Lowe and another co-offender, Tutton, met with the UCO on 20 June 2008 and supplied him with more methylamphetamine. At that time, a discussion took place about the possible future purchase by the UCO of an "elbow" (i.e. one pound of methylamphetamine). A price of $30,000 was discussed. 11In a telephone conversation between Lowe and the UCO on 30 June 2008, arrangements were made for the delivery of the "elbow" early the next week. Shortly after that conversation, Lowe called the applicant and asked if he could postpone the delivery for another week. The applicant responded that he would get it anyway as it did not matter. 12On 2 July 2008 the UCO met with Lowe and Tutton when a further supply of methylamphetamine took place. The transcript of a conversation which took place on this occasion indicated that the "elbow" was being delivered to Lowe's home that day. Later in the conversation, the UCO asked Lowe if he would have the "elbow" by Friday, to which Lowe responded "I got it now he's - the boss dropped it off at my house". His Honour found that the reference to "the boss" by Lowe was a reference to the applicant and that the applicant was the person who organised the collection and on-supply to Lowe of methylamphetamine. As a result, his Honour found that in the joint criminal enterprise to supply the "elbow", the applicant was slightly above Lowe in the hierarchy. 13On 4 July 2008 just before midday the UCO met with Lowe and Tutton, at Swettenham Road for the supply of the "elbow" of methylamphetamine for $32,000. They entered the UCO's car and Lowe removed three packages from his backpack. The gross total weight supplied to the UCO during this transaction was 512.8 grams, which was later analysed and weighed to show a net total of 443.8 grams. The UCO then handed over the money to Lowe and as he began to count it, other police officers moved in and made arrests. The drugs were seized, as was the $32,000 in cash. 14At 12.20pm the same day, search warrants were executed at premises in Bernardo Street, Rosemeadow. Lowe was leasing those premises. When police entered, the applicant was sitting on a lounge. The applicant told police that the house was not his, but that he had stayed there overnight. The police noticed that the bonnet of his car was still hot. The police located at those premises 479.6 grams of methylamphetamine in various packages in freezers, 18 cannabis plants being hydroponically grown and 1,650.4 grams of packed and loose cannabis leaf. They also located various firearms and about $30,000 in cash. 15Lowe pleaded guilty to charges in respect of all drugs and other items located in those premises. His Honour found that Lowe was substantially involved in drug trafficking and that the applicant had a similar involvement.

Remarks on Sentence 16In relation to count 1, his Honour assessed the objective seriousness of the offence as falling within the mid-range for offences of that type. He found the applicant to be an integral part of the supply allowing Lowe to conduct the actual transactions. 17In relation to count 2, his Honour noted that a standard non-parole period of 10 years applied and that s54B of the Crimes (Sentencing Procedure) Act , 1999 (the Act) required that a Court set the standard non-parole fixed for the offence unless the Court determined that there were reasons for setting a non-parole period which was either longer or shorter than the standard non-parole period. By reference to R v Way [2004] NSWCCA 131, (2004) 60 NSWLR 168 his Honour noted that where a standard non-parole period applied to an offence, one had to ask whether reasons existed for not imposing it. As a first step, it was necessary to assess the objective seriousness of the offence to determine whether it fell within the mid-range of objective seriousness for offences of the relevant kind. Such a determination would include a consideration of the applicable circumstances of aggravation and mitigation provided for in s21A(2) and s21A(3) of the Act. 18In relation to the objective seriousness of the offence in count 2, his Honour said: "... I am satisfied as I have already indicated that it involved a considerable degree of planning. First there were those negotiations between Lowe and the UCO in respect of the purchase price and the timeframe when the delivery could be made. The offender was the go to man for the supply of the commercial quantity. It involved this offender organising for the supply and collection of the commercial quantity and then organising its supply to Lowe so that he could on-supply it to the UCO. A driver had to be organised to take Lowe and Tutton to the Sweetenham Road location. A large sum of money changed hands. The amount supplied was almost twice the prescribed commercial quantity (250 grams). The offender Sinkovich waited at Lowe's premises while the transaction was going down. My assessment of the objective seriousness of this offence, so far as this offender is concerned, is that it falls slightly above the midrange." (ROS 6.1) 19In assessing the objective seriousness of the count 2 offence, his Honour also took into account under s21A(3) of the Act, that the applicant did not have any significant history of criminal offending and that he had reasonable prospects of rehabilitation. His Honour did note, however, that no remorse had been exhibited and that despite an overwhelming prosecution case, he continued to deny his guilt. 20His Honour had regard to the applicant's subjective circumstances. The applicant was 54 years of age at the time of sentencing. He had only a minor criminal record, comprising four convictions in 1974/75 for which he received small fines. 21His Honour referred to the presentence report which showed that the applicant had been born in Croatia and emigrated to Australia with his mother when he was four, his father having relocated to Australia some three years before. He had been educated to school certificate level, before undertaking an apprenticeship as a heavy vehicle mechanic. He was employed in various companies before commencing his own business in 1989. He had ultimately closed down his business in order to pay costs associated with the property settlement following the dissolution of his marriage. Since the end of that marriage, he had been in receipt of a parenting payment and was the sole care giver of four children of that marriage. He had obtained full legal custody of the three youngest children. Their ages were 18, 14 and 10. The oldest child, Stacey, was aged 21. 22Following the applicant's incarceration, the Family Court had granted responsibility in respect of the two youngest children to Stacey. At the time of the sentence hearing, the 14 year old was residing with her mother. 23His Honour also had before him a report from Professor Stephen Woods, clinical and forensic psychologist. Professor Woods recorded a history that the 18 year old child had suffered extensive and severe facial injuries when aged about 3, following an attack by a dog. Due to her young age, facial surgery could not be carried out for some years. She was due to undergo further reconstructive facial surgery in early 2010. 24Professor Woods recorded that the children's mother had been deeply traumatised by the dog attack and required antidepressant medication. Subsequently she was diagnosed as suffering from schizophrenia. In 2003 the children were removed from their mother's care by DOCS and returned to the applicant. The applicant had sold his business in order to care for them. 25The applicant told Professor Woods that he felt that he had failed his children and that he was suffering sleep disturbance and was unable to stop ruminating and worrying about them. His Honour accepted that the applicant's incarceration would most likely have a negative impact on the children. 26In conclusion, Professor Woods said that the applicant was suffering from a range of symptoms of an adjustment disorder with mixed anxiety and depressed mood (severe). He said in relation to the applicant: "Whilst it is to be expected that any reasonable parent would suffer grief and loss with depressed mood as a result of being incarcerated an thus separated from their family, it is likely that Mr Sinkovitch's reaction has been particularly aggravated by his awareness of and concern for his children's special circumstances. The risk of Mr Sinkovich's condition deteriorating to the extent that he develops a major depressive disorder must be considered." 27The applicant told his probation officer that he had previously been the President of the Wollongong Chapter of the Rebels Motor Cycle Club. He had retired from the club some years before the sentencing proceedings, but continued to maintain his membership status as a result of having performed 20 years of service. 28In formulating the sentences, his Honour had regard to the devastating impact of drugs on the lives of both young and not so young people. He noted that in respect of offences of this kind the element of deterrence, both specific and general, was a significant factor to be taken into account. 29His Honour specifically referred to the principle of totality. Because at 54 years of age, this would be the first time that the applicant had served a custodial sentence, his Honour found special circumstances and varied the statutory ratio. Nevertheless, his Honour said that there had to be an appropriate relationship between the standard non-parole period fixed in respect of the offence and the objective criminality of the offence regardless of other matters that might be taken into account by way of mitigation.

Appeal ( i) The sentences imposed are excessive in the circumstances. (ii) The sentences imposed offend the principles of totality and proportionality. 30Grounds of Appeal (i) and (ii) can be dealt with together since they raise the same issue. 31The applicant submitted that the principle of proportionality required that a sentence imposed should bear a reasonable relationship to the facts of the crime itself, i.e. that the sentence should not exceed that which was appropriate to the objective seriousness of the crime. The applicant submitted that this principle was breached in that the sentences, particularly that in respect of count 2, were clearly outside the commonly accepted pattern of sentences imposed for the particular offences ( R v Visconti (1982) 2 NSWLR 104). He submitted that the sentences were simply not within the appropriate range. 32To make out that proposition, the applicant relied upon sentencing statistics applicable to these two offences as showing a range of sentences which was well below that imposed by his Honour. In making that submission, the applicant conceded that in some cases statistics were of only limited use ( R v Bloomfield (1998) 101 A Crim R 404). In this case, however, the applicant submitted that the sentencing statistics were important and relevant in that they ensured consistency in sentencing and indicated general sentencing trends. As such, he submitted, they demonstrated a range of sentences which was considerably below those imposed by his Honour. 33In relation to the sentence for count 1, the applicant submitted that of 353 sentences passed for that offence, 85 percent of offenders received total sentences of less than 36 months. The applicant submitted that this indicated that the sentence was outside the range for an offence in the midrange of objective criminality. The applicant submitted that this Court should infer latent error in accordance with R v House (1936) 55 CLR 499 at 504-5. 34In relation to the sentence passed in respect of count 2, the applicant challenged his Honour's finding that the objective seriousness of this offence was "slightly above the midrange". The applicant submitted that his Honour's reasons did not demonstrate how his Honour arrived at such a conclusion. He submitted that the factors of organisation and planning specifically identified by his Honour were common to many drug offences and that there was nothing in the applicant's criminal history to justify such condign punishment. 35The applicant also relied upon sentencing statistics to support that proposition. He identified a sample of 29 cases where the offence in count 2 had been found to have occurred and noted that in 83 percent of those cases, the non-parole periods or fixed terms had been 54 months of imprisonment or less. The applicant contrasted that with the 9 years non-parole period imposed on him. 36The applicant relied upon the low level of purity in the methylamphetamine, which was the subject of the offence in count 2, i.e. 6 percent. By reference to a list of 9 cases decided between 2004 and 2009 in relation to this offence, the applicant noted that the level of purity of the drug concerned was much higher varying between 70 percent and 84.5 percent. The applicant submitted that in assessing the objective seriousness of the offence, his Honour had failed to have regard to the extremely low purity of the drug supplied. 37In further support of the argument concerning the sentence imposed in respect of count 2, the applicant referred the Court to sentencing statistics relating to the more serious offence of "supplying a large commercial quantity of amphetamines". By reference to a sample of 17 offenders sentenced in respect of that more serious offence, the applicant noted that 65 percent received sentences of 8 years or less. The applicant submitted that even allowing for a maximum 25 percent discount allowed for the pleas of guilty in those cases, the sentences were considerably lower than that imposed on him for a lesser offence. The applicant submitted that an examination of the sentencing statistics showed a similar disparity in relation to the non-parole period imposed for the more serious offence than that which was imposed on him. 38There was no doubt, and the Crown properly conceded, that the sentence imposed by his Honour in respect of count 2 was towards the upper end of the range. The issue before the Court under these two grounds of appeal is whether the sentences in respect of both counts were outside the appropriate range so as to indicate error on the part of the sentencing judge. 39Garling J identified the test in Fogg v R [2011] NSWCCA 1 at [59] - [60] as follows: "59 ... but for many offences culpability varies over so wide a range that the statistics are of limited utility for a particular case ... 60 ... I accept that the statistics referred to demonstrate that the sentence in this case falls at the high end of the range of sentences imposed for the offence. But the question remains whether it falls within the range of the permissible exercise of the sentencing judge's discretion." 40As this Court has said on a number of occasions, undue weight should not be given to sentencing statistics. This is because of the "vast range of factors relevant to sentencing for such an offence" (RA Hulme J in Furia v R [2010] NSWCCA 326). The large number of variables is simply not reflected in mere statistical figures and percentages. 41What is important when considering a particular sentence are the specific findings as to the objective seriousness of the offence and the culpability of the offender. These are the considerations which are determinative when assessing whether a particular sentence is manifestly excessive, rather than a comparison of the sentence with statistics ( Holloway v R [2011] NSWCCA 23 at [85]). The critical question is whether the sentence imposed was appropriate for the particular case ( R v F (2002) 132 A Crim R 308, adopted in Ayoub, Omran v R; El Masri, Ali v R [2010] NSWCCA 196 at [58]). 42The applicant appreciated the necessity of successfully challenging his Honour's assessment of the objective seriousness of the offence if he were to be successful in making out the first two grounds of appeal. It was for this reason that he challenged his Honour's "absence of reasons" for concluding that the objective seriousness of the offence was slightly above midrange for offences of this kind. 43That criticism of his Honour's conclusion does not do justice to his Honour's reasoning. His Honour did not refer just to planning and organisation, but to the "considerable degree" of planning which the evidence clearly demonstrated. His Honour also stressed, albeit in somewhat colloquial terms, the position of the applicant in the supply hierarchy, i.e. he was in a superior position to Lowe and he was the "go to" man for the supply of commercial quantities of the drug. In his reasons, his Honour set out the detail of the planning and organisation required to commit the offences which was considerable (see [18]) hereof. 44These were important matters and were properly taken into account by his Honour in assessing the objective seriousness of the offence and the applicant's culpability. The other matter to be kept in mind is that an assessment of this kind, i.e. the assessment of the objective seriousness of an offence, is not the sort of factual finding which is susceptible to detailed analysis. It inevitably involves a discretionary assessment by the sentencing judge. 45This has been made clear in a number of decisions of this Court. In Ali v R [2010] NSWCCA 35 the Court said at [33] - [34]: "33 This Court has emphasised that characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in finding facts and drawing inferences from those facts: Mulato v R [2006] NSWCCA 282 at [37], [46]. This Court is slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion, and the question must be whether the particular characterisation was open: Mulato v R at [37], [46]-[47]. 34 The assessment of objective criminality when a standard non-parole period is provided should be approached intuitively based upon the general experience of the courts in sentencing for the particular offence at issue: R v AJP [2004] NSWCCA 434; 150 A Crim R 575 at [13]; R v PGM [2008] NSWCCA 172 at [26]." 46I can find no error, patent or latent, in his Honour's approach or conclusions on the issue of the objective seriousness of the offence in count 2 and the applicant's culpability generally. 47That being so, the applicant's success in making out these two grounds of appeal must depend upon the effect of the sentencing statistics being so great as to indicate error on the part of his Honour. In my opinion, the sentencing statistics do not have that effect. 48The first problem with seeking to give sentencing statistics such weight is that the sentencing range in any case must extend to the maximum penalty ( Ma & Pham v R [2007] NSWCCA 240 at [91]). Sentencing statistics of their nature do not reflect the range which the legislature had intended by the maximum penalties ( Williams v R [2010] NSWCCA 15 at [23], Clinton v R [2009] NSWCCA 276 at [35]; England v R, Phanith v R [2009] NSWCCA 274 at [49]). In R (Cth) v Nguyen; R (Cth) v Nguyen [2010] NSWCCA 331 the statistics reflected a wide range of sentences (as occurred in this case) from 3 years to 12 years for 17 cases. This range, however, was significantly less than the maximum penalty of 25 years (the offence was conspiracy to traffic in a marketable quantity of drugs). As Simpson J noted at [71]: "Exposing those figures dramatically exposes one of the limitations on the use of statistics - they do not say anything about the vast range of relevant circumstances including the quantity of drug and the role of the offenders". One could add to that observation that they say nothing about the vast range of subjective considerations which often affect the sentence ultimately passed. 49In relation to the applicant's reliance upon sentencing statistics, the observations of this Court in R v George [2004] NSWCCA 247 at [48] remain valid: "48 ... It is necessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority: see Regina v Morgan (1993) 70 A Crim R 368; Regina v Salameh NSWCCA 9 June 1994 and Regina v Trevenna [2004] NSWCCA 43 per Barr J at 98 - 101. At the most, other cases can do no more than become part of a range for sentencing ...". 50Moreover, the applicant's submissions are silent as to the effect of the standard non-parole period of 10 years applicable in respect of the offence in count 2 and the applicant's relatively modest subjective case. 51Once it is accepted that his Honour was entitled to assess the objective seriousness of the offence, at or slightly above the mid-range for offences of this kind, s54B of the Act requires that the standard non-parole period be applied unless the Court determines that there are reasons for setting a non-parole period which is either longer or shorter than that fixed for the offence. Howie J referred to this issue in Davis v R [2009] NSWCCA 279 at [21]: "One of the problems with statistics in cases where the standard non-parole period applies is that they tend to suggest that the standard non-parole period is being largely disregarded. If an offence is within midrange of seriousness and there is no reason to reduce the standard non-parole period, then the appropriate sentence is the standard non-parole period whatever the sentencing statistics might reveal." 52One of the considerations which may be taken into account by a sentencing judge in deciding whether or not to apply a standard non-parole period, is the strength of an offender's subjective case. Here the offender's subjective case was modest at best. The fact that he had no previous significant offences is of much less importance in a drug supply case ( R v Cheikh [2004] NSWCCA 448 at [50]). 53His apparent good character is of even less weight here where the offence involved deliberate and planned criminality ( Van Can Ha v R [2008] NSWCCA 141 at [43)]. 54In Ryan v The Queen (2001) 206 CLR 267 the offender's good character was given little weight because the offences were not isolated incidents and the offender was living a double life - an appropriate description for the applicant here. Deterrence (in particular general deterrence) remains a significant consideration. 55Not only was the applicant's apparent good character of little weight in this case but it was offset by the significant part which his Honour found that the applicant played in the supply process and his apparent absence of remorse. Even so his Honour took into account the absence of any significant criminal record and used it to conclude that there were reasonable prospects of rehabilitation. In the circumstances, this was a generous finding and was one which impacted on the total sentence imposed. 56The strongest part of the applicant's subjective case related to the effect upon his children of his incarceration. That, of course, is a matter to which only limited weight could be given since it was never suggested that their disadvantage constituted "highly exceptional circumstances" as the authorities require: R v Edwards (1996) 60 A Crim R 510. 57The applicant's submissions in respect of the sentencing statistics for the more serious offence of supplying a large commercial quantity do not take these two grounds of appeal any further. There is still the same lack of specificity in the statistics to which reference has already been made. The other difficulty is that most of the sentencing statistics referred to, relate to sentences imposed prior to the commencement of the standard non-parole period applicable to that offence (15 years). They therefore, have little utility in the present case. Moreover, the sample size is small. 58Another problem with the submission is that the differentiating feature between an offence of supplying a large commercial quantity and supplying a commercial quantity, is the quantity of the drug involved. The individual circumstances of the latter offence may nevertheless cause it to be characterised as a more serious offence by comparison. The quantity of drug involved is not necessarily determinative of the level of criminality. The observation of the plurality in Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357 at [33] forcefully makes this point: "33 A serious fallacy in his Honour's reasoning is that it assumes that any case involving more than 250 grams of heroin is likely to be a worse case than any case involving only 250 grams or less. That cannot be so in the virtually absolute terms in which his Honour puts it. Little imagination is required to envisage a case involving a relatively small quantity of heroin, as being of very great seriousness, for example, supply to create an addiction in an infant. ..." 59Finally, the applicant in his submissions made no reference to the important consideration of deterrence, both specific and general, when sentencing for a drug supply offence. This Court has consistently given effect to the principle that "those who involve themselves in trafficking of illicit drugs for profit can expect to receive substantial custodial sentences" ( R v Mahmud [2010] NSWCCA 219 at [80]). That is a matter to which his Honour specifically referred and to which he was obliged to give effect. 60In relation to the count 1 offence, an examination of the statistics does not support the applicant's argument that the sentence imposed was outside the range. Even ignoring the matters referred to above, and by reference only to sentencing statistics, the sentence imposed was within the range. A significant number of offenders were sentenced in total terms (and to non-parole periods) which were longer than the applicant's sentence. 61In relation to the sentence for count 2, and also taking into account the element of accumulation with count 1, I am not satisfied that the sentence imposed was excessive or that the principles of totality and proportionality were offended. 62It follows that the sentence passed, both in total and in relation to the individual offences, was well open to his Honour and albeit towards the top of the range of sentences for offences of this kind, was well within the range of the permissible exercise of his Honour's sentencing discretion. Error has not been demonstrated. Accordingly, grounds of appeal 1 and 2 have not been made out. (iii) The sentences imposed are such as to cause the applicant a justifiable sense of grievance due to the disparity between his sentence and the sentences imposed upon the co-offender, David Sydney Lowe. 63The applicant submitted that he had a justifiable sense of grievance when he compared his sentence to that passed in respect of the offences committed by Lowe. Lowe pleaded guilty to the following offences. (i) Ongoing supply of methylamphetamine contrary to s25A of the Drug Misuse and Trafficking Act , maximum penalty imprisonment for 20 years. (ii) Supplying not less than the commercial quantity of methylamphetamine contrary to s25(2) of the Drug Misuse and Trafficking Act, maximum penalty imprisonment for 20 years with a non-parole period of 10 years. (iii) Supplying not less than the commercial quantity of methylamphetamine contrary to s25(2) of the Drug Misuse and Trafficking Act , maximum penalty imprisonment for 20 years with a standard non-parole period of 10 years. (iv) Cultivating prohibited plant by enhanced indoor means for commercial purposes contrary to s23(1)A of the Drug Misuse and Trafficking Act , maximum penalty imprisonment for 15 years. (v) Possess unauthorised firearm, contrary to s7(1) Firearms Act , maximum penalty imprisonment for 14 years with a standard non-parole period of 3 years. (vi) Possess unregistered firearm, contrary to s36 of the Firearms Act , maximum penalty imprisonment for 5 years. (vii) Possess prohibited weapon without permit, contrary to s7(1) Weapons Prohibition Act , maximum penalty imprisonment for 14 years with a standard non-parole period of 3 years. A further eight firearm/ammunition offences were taken into account on a Form 1 when sentencing for offence number (vii) and two further offences on a Form 1 were taken into account when he was sentenced in respect of offence number (i). 64The complaint by the applicant is that Lowe was sentenced to the same effective sentence as he was but that the offences for which he was sentenced were significantly greater in number and seriousness. In making that submission the applicant accepted that because he had entered early pleas of guilty to those offences, Lowe received an across-the-board discount of 25 percent in respect of all of those offences. Nevertheless, the applicant submits that the disparity between his sentences and those imposed on Lowe was such as to engender in him a justified sense of grievance. 65The applicant relied upon the well-known decisions of Lowe v The Queen (1984) 154 CLR 606 at 194, 623-4 and Postiglione v The Queen (1997) 189 CLR 295. The applicant submitted that the Court should intervene because the disparity here was such as to engender in him a justifiable sense of grievance and the appearance of injustice in the mind of an objective bystander. The applicant submitted that both he and Lowe were co-offenders but that Lowe had the burden of vastly more objective criminality reflected in the greater number of separate offences. 66His Honour passed sentence in respect of Lowe on 23 October 2009. Accordingly, his Honour would have been well aware of those sentences when he came to sentence the applicant on 6 November 2009. As a start point, it is important to directly compare the sentence passed by his Honour in respect of the one offence which the applicant and Lowe had in common, i.e. supplying a prohibited drug being not less than the commercial quantity of methylamphetamine contrary to s25(2) of the Drug Misuse and Trafficking Act 1985. The applicant was sentenced to imprisonment with a non-parole period of 9 years with a balance of term of 4 years. Lowe was sentenced to imprisonment with a non-parole period of 8 years with a balance of term of 4 years. In sentencing Lowe, his Honour made similar findings about his criminality as he did about the applicant, although he did note that Lowe had a slightly lower position in the drug supply organisation. Lowe was 37 years old at the time when he was sentenced. 67When one compares the two sentences for the only common offence, and when one takes into account that Lowe's sentence included a 25 percent discount, there is no basis for any complaint by the applicant. This is because the undiscounted sentence for Lowe was 16 years with a non-parole period of 10 years and 8 months. The real complaint by the applicant is that Lowe's total sentence for all of his offences was equal to the overall sentence imposed on him. 68This is not a legitimate basis for any justifiable sense of grievance on the part of the applicant. Such a complaint fails to have due regard to the effect of other sentencing principles, such as totality and proportionality which inevitably come into play in a sentencing exercise such as that with which his Honour was engaged when sentencing Lowe. Were his Honour to impose appropriate sentences for each offence on an accumulated basis without some level of concurrency, the end result would be crushing for an offender in Lowe's position. In such situations it is necessary that the total sentence passed include within it a balance between the need to pass sentences appropriate to the level of criminality involved and restraint to avoid the imposition of a crushing sentence. It is that balancing process which provides the rationale for the principles of totality and proportionality in sentencing. 69Moreover, it is not inevitable that a co-offender facing sentence on fewer charges will have a legitimate sense of grievance merely because his co-offender is sentenced on additional charges to a lesser term (or to a term which is not significantly longer). Each offender must be sentenced in accordance with their own overall criminality ( Baleiovalau v R [2009] NSWCCA 153, Bell v R; Jelisovac v R [2009] NSWCCA 206). 70It should be kept in mind that a ground of appeal asserting disparity is concerned with markedly and unjustifiably different sentences imposed on different offenders. In England v R; Phanith v R [2009] NSWCCA 274 Howie J (McClellan CJ at CL and Fullerton J agreeing) said at [61] - [63]: "61 ... A ground asserting disparity is concerned with such markedly and unjustifiably different sentences imposed on co-offenders that they give rise to a genuine feeling on the part of an impartial observer that justice has not been achieved because one offender has been unfairly treated having regard to the sentence passed upon the co-offender. Yet frequently, as in this case, the Court is asked to trawl through the sentencing remarks and the facts and circumstances of the two offenders in detail in order to dissect and weigh every aspect of their competing objective and subjective facts to see whether some variation, however minor, should be made to the sentence of the person who, it is asserted, has a grievance. 62 It should be borne in mind that the High Court's decisions on this area of appellate intervention speak of "gross", "marked", "glaring" or "manifest" disparity. These terms are used throughout the judgments in Lowe v The Queen [1984] HCA 46; 154 CLR 606. Another way of considering the issue is to ask whether the two sentences give rise to an appearance that justice has not been done: per Gibbs CJ at 610 and Dawson J at 623. It should be recalled that the sentences being compared in that case were, on the one hand, a sentence of 6 years imprisonment and, on the other, a non-custodial sentence. 63 No different approach was taken in Postiglione v The Queen [1997] HCA 26; 189 CLR 295. Dawson and Gaudron JJ in their joint judgment stated at 301: "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." Gummow J stated at 323: "The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done." H is Honour then quoted with approval from a decision of Callaway JA in R v Taudevin [1996] 2 VR 402 in which it was pointed out that the important words in considering the issue of disparity were "manifestly" "justifiable" and "objective" and emphasising that the difference between the sentences must be "clearly excessive"." 71Once one takes into account that all the sentences passed on Lowe included a 25 percent discount, the necessary level of disparity, i.e. one which is "gross", "marked", "glaring" or "manifest" does not exist. 72The parity principle of its very nature only applies if all other things are equal: R v Martin [2005] NSWCCA 381 at [11]. That is not the case here. Lowe was charged with a significantly larger array of offences. This required an adjustment by way of accumulation and concurrency between those sentences so as to meet the principles of totality and proportionality. Lowe also had the advantage, which the applicant did not, of a 25 percent discount in respect of all the offences. 73The test for whether the necessary disparity exists, so as to justify the intervention of this Court, is an objective one. In R v Wei Pan [2005] NSWCCA 114, Johnson J (with whom Giles JA and Hoeben J agreed) said: "34 The elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community - the issue is whether the particular sense of grievance or injustice is a legitimate one: Lowe v The Queen (1984) 154 CLR 606 at 611 per Mason J. The test for determining the existence of a sense of grievance is objective not subjective. What has to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved, but that a reasonable mind looking overall at what has happened would see that the offender's grievance is justified: R v Doggett (Court of Criminal Appeal, 24 March 1996, unreported) per Sully J; R v Ilbay [2000] NSWCCA 251 at paragraph 6." That statement of the parity principle has been applied in a number of subsequent decisions: Lewins v R [2007] NSWCCA 189 at [7], Nguyen v R [2008] NSWCCA 308 at [37] and Gurney v R ; Willetts v R [2011] NSWCCA 48 at [83]. 74Applying those principles I have concluded that no reasonable person looking at the circumstances under which each offender's overall sentences were determined would regard the applicant's grievance as justified. The applicant (who did not plead guilty) is now seeking a benefit for himself to which he was not entitled as a result of the benefit properly afforded to Lowe for his pleas of guilty. The applicant's submission not only ignores this fact but also ignores the inevitable adjustment which had to take place when Lowe was sentenced to have regard to the principles of totality and proportionality. It follows that ground of appeal (iii) has not been made out. 75The orders which I propose are as follows: (1) Leave to appeal is granted. (2) The appeal is dismissed. 76GARLING J: I agree with Hoeben J.

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