21 As I have mentioned, both the applicant and the co-offender pleaded guilty at the earliest opportunity and full effect was given to the utilitarian value of this plea by each of their Honours Payne DCJ and Toner DCJ, by allowing a 25 per cent reduction in the sentence which otherwise would have been imposed.
22 There is no dispute as to the appropriate principles to be applied when the ground of appeal is that a co-offender has a justifiable sense of grievance, having regard to the sentence imposed upon the co-offender. In Lowe v R [1984] HCA 46; (1984) 154 CLR 606 Mason J stated, at 613, that appellate intervention is called for, not because of error on the part of the sentencing judge, but because:
"… disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander."
23 Mason J had earlier in his judgment commented, at 611, that unequal treatment under the law would lead to "an erosion of public confidence in the integrity of the administration of justice". Dawson J, at 623, observed to similar effect, that:
"… justice should be even-handed and … any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done."
24 These principles were reiterated in Postiglione v R [1997] HCA 26; (1997) 189 CLR 295. In that case, Dawson and Gaudron JJ stated, at 301:
"Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them."
25 In R v Doggett (NSWCCA, 24 March 1997, unreported) Sully J, with whom Newman J agreed, stated that to succeed on an appeal under this ground:
"What has to be demonstrated by the person complaining … 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."
26 Nevertheless, there are limits concerning the circumstances in which a court will intervene, as explained by Hunt J in R v Diamond (NSWCCA, 18 February 1993, unreported). His Honour, at 6, said:
"The issue is whether the particular sense of grievance (or of injustice) is a legitimate one. There is, in my view, a stage at which the inadequacy of the sentence imposed upon the co-offender is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one."
27 I have given consideration to the application of that principle in this case. However, although the sentence imposed on the co-offender, particularly the non-parole period, is somewhat lenient, it could not be said that it was inadequate. Accordingly, the principle in Diamond is not engaged.
28 At the time that the co-offender was sentenced by Toner DCJ, the applicant had already been sentenced and Toner DCJ had available not only the sentence imposed upon him, but also Payne DJC's remarks on sentence. It is apparent from his Honour's remarks that he was conscious of the need to have regard to the principles relating to parity. He was also conscious that there were differences in the circumstances of each offender. His Honour approached the sentencing of the co-offender on the basis that each offence was objectively serious and each involved a degree of planning, although he considered there was some material to suggest the offender's motivation was to finance his drug addiction. However, his Honour correctly observed that this was not an answer to the charge nor did it mitigate the penalty to be imposed: see R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; 106 A Crim R 149.
29 Toner DCJ then made two comments which are relevant to the question whether of the applicant now has a justifiable sense of grievance, in addition to the matters to which reference has already been made. The first comment related to the number of offences to which each offender had pleaded guilty. His Honour noted that the applicant was charged with 7 counts of supply pursuant to s 25(1) of the Drug Misuse and Trafficking Act, whereas the co-offender had been charged with 2 counts of ongoing supply under s 25A of that Act, and 3 counts of supply contrary to s 25(1). His Honour's comparison of the number of offences was erroneous. In specifying the number of offences committed by the applicant, his Honour included the matters on the Form 1. However, when considering the number of offences committed by the co-offender, his Honour did not include the matters on Form 1. As I have already stated above, the co-offender was in fact charged with 10 offences, not 5. The correct numerical comparison, therefore, was that the applicant was convicted of 4 offences, and charged but not convicted of, an additional 3 offences listed on the Form 1 (a total of 7 offences). The co-offender was convicted of 5 offences, and charged but not convicted of a further 5 offences listed on the Form 1 (a total of 10 offences).
30 It is apparent from Toner DCJ's remarks on sentence that the erroneous comparison of the number of offences was relevant to his Honour's approach in sentencing the co-offender, when comparing the sentences imposed on the applicant.
31 His Honour also noted that sentences under s 25A should be more severe than those imposed for offences against s 25(1): Mirza v R [2007] NSWCCA 248 per Howie J at [14]. His Honour then made the following comment in respect of the applicant:
"In the context of [the applicant's] case, however, it is difficult to see why [the applicant] was not charged pursuant to s 25A of the Drug Misuse and Trafficking Act because, on the face of it at least, the facts as revealed in the reasons of her Honour, would have justified such a charge. It would appear that it was only a matter of forensic selection by the Director which resulted in him being charged as he was."
32 This comment gives the appearance that the applicant was fortunate in being charged with the less serious offences under s 25(1) and that it might be thought, therefore, that the sentences imposed on him did not fully reflect his criminality. If that is a correct understanding of his Honour's remarks, then, with respect, they were out of place. If it is not a correct understanding, the comment is irrelevant and should not have been made. Mr Rowling, counsel for the Crown on the appeal, appropriately recognised that having regard to the applicant's lesser role in the offences, it was fairer to charge him with offences under s 25(1), rather than under s 25A. I am of the opinion that this consideration by Toner DCJ was also a factor in his sentencing approach.
33 Ms Loukas, counsel for the applicant, submitted that when regard was had to the greater degree of offending and the more serious role that the co-offender played, the applicant had a justifiable sense of grievance that required redress. She submitted that the more extensive prior criminal record of the applicant and his age did not explain the disparity in his sentence as compared to that of the co-offender. The Crown submitted, however, that Toner DCJ had treated the applicant's criminal record as being a significant factor which differentiated his position from that of the co-offender in accordance with the principles in Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465.
34 In Veen (No 2) Mason CJ, Brennan, Dawson and Toohey JJ commented, at 477, that an offender's prior criminal history was a relevant consideration in determining the sentence to be imposed. In particular, a prior criminal history was relevant to show whether the particular offending with which the court is concerned indicates that such behaviour was aberrant, or whether it demonstrates a continuing attitude of disobedience to the law.
35 In my opinion, notwithstanding Toner DCJ's comparison of the criminal history of each of the applicant and the co-offender his Honour did not treat this case as governed by the principles in Veen (No 2). Nor, in my opinion, does the difference in the offenders' criminal records explain the disparity in the sentences imposed on each of them. I consider that his Honour failed to have proper regard to the co-offender's far more serious offending. With respect to Toner DCJ, I am also of the opinion that his erroneous comparison of the number of offences with which each of the offenders were charged and his comments as to the manner in which the applicant had been charged, that is, with less serious offences, led his Honour to misunderstand the appropriate difference that he, as a matter of law, was required to have regard in order to ensure the principles in Lowe and Postiglione were applied in the sentence he imposed, notwithstanding the differences in the circumstances of each offender.
36 In those circumstances, notwithstanding the fact that the original sentence imposed upon Mr Stanton would not have called for appellate intervention, I am of the opinion that as a result of the sentence imposed by Toner DCJ on the co-offender, the applicant would have a justifiable sense of grievance such as to require this Court to intervene.
37 As I propose to impose different sentences on the appellant, I will take a slightly different approach from Payne DCJ and impose different sentences in respect of counts 2 and 3, so as to reflect the different amounts involved in the transaction. In the case of the transaction in count 2 , an amount of $2,000 was involved, whereas in count 3, an of $340 was involved. Although the drug in each case was different, and notwithstanding that the quantity of drug is not necessarily a determining factor in the objective gravity of the offence: see Wong v R [2001] HCA 64; 207 CLR 584, I consider that the difference in the monetary value of the transaction was substantial and ought to be reflected in the sentences imposed.
38 So far as count 4 is concerned, the drug and the monetary value of the transaction was the same as in count 2. I propose, however, that a slightly heavier sentence be imposed to take account of Mr Stanton's increased offending: see R v Bavadra (2000) 115 A Crim R 152; [2000] NSWCCA 292 at [37]; Qing An v R [2007] NSWCCA 53.
39 Payne DCJ allowed 25 per cent to take account of the utilitarian value of the plea and that is replicated in the sentences I propose. Her Honour also found special circumstances. That should also be replicated in the sentence imposed in respect of count 1 and I have maintained, so far as practical, the ratio between the non-parole period and the additional term as her Honour applied. I have also taken the offences on the Form 1 into account when sentencing in respect of count 1.
40 Accordingly, I would propose the following orders: