If I may respectfully say so, this explanation is essential to understanding correctly the application of the second stage consideration mentioned by Johnson J. (See also Wilson v R [2008] NSWCCA 245, per Price J at [39]).
41 Such an approach was implicitly accepted by Howie J in R v SY [2003] NSWCCA 291 at [95] and in Lewins by his Honour's reduction of the applicant's sentence following a reference to the submission of counsel for the applicant that the Court should reduce the sentence "to the lowest point within the available range". Since, by definition, such a sentence is within range, the duplication of error is avoided. The consequence would then be that the discrepancy has been reduced as much as can be done without duplicating the imposition of an inadequate sentence and the Court has done as much as could be done to correct the reproach of unequal justice. To undertake this course strikes me as necessary. Not to do so is to condone a miscarriage of justice. I note that, in Lewins, Howie J described the course his Honour proposed (of reducing the overall sentence imposed on the applicant because of the manifestly inadequate sentence imposed on the co-offender) as "very exceptional" but I take it that this was because the ultimate sentence proposed was, in Honour's view, below the available range for his offences since, if it was within an appropriate discretionary range, it could not, ex hypothesi, be other than a sentence that rightly addressed all the relevant sentencing considerations. Put another way, if the reduced sentence was a sentence that could have been imposed at first instance without appealable error, it cannot have been one that became wrong on appeal.
42 That it cannot be right in principle to disregard for the purposes of parity a manifestly inadequate comparator where the sentence less than that under appeal is still within range is demonstrated by pointing out that, where the comparative sentence is unfairly lower than that appealed from but nevertheless within range, reduction of the latter will certainly be ordered (on the assumption that manifest unjustified discrepancy is demonstrated). To refuse to substitute that lower but within-range sentence because the comparator was manifestly inadequate is to visit unfairly on an applicant the mistakes made when sentencing his or her co-accused. The result would be to turn one capricious result into two.
43 If I may respectfully say so, the analysis of the problem by Street CJ in R v Tisalandis (1982) NSWLR 430 at 434-435 is particularly helpful -
A second matter upon which I think it necessary to comment concerns the task of a sentencing judge who is called upon to pass sentence at a point of time after another co-offender has been sentenced by another judge to what appears to the second judge to have been an erroneously lenient sentence. The second judge is obliged, of course, to pass that sentence which, in his view, is proper in all the circumstances. It at times happens that the second judge, being in disagreement with the earlier sentence and finding it difficult to the point of being unacceptable to assent to the approach of the first judge which led to what he regards as an erroneously lenient sentence, will proceed to pass a sentence which he finds proper leaving out, in so doing, a discussion or evaluation of the relevance of the first sentence passed by the first judge. One can understand the diffidence of the second judge in criticizing the decision of another judge in a matter not directly before the second judge for decision. Equally one can understand the considerations leading the second judge to give effect to his own view of what is proper in the particular circumstances of the case before him irrespective of what may have befallen a co-offender before another judge. But, whilst understanding these difficulties, their solution is to be found in recognizing that the sentence passed by the first judge is a most relevant and material consideration to be weighed by the second judge. I see no reason for the second judge to feel diffident in criticizing the earlier decision and expressing his disagreement with it. But equally, as the first decision is an established fact, the second judge is bound to take it into consideration and to give it appropriate weight in deciding what sentence to pass. Having given it full and adequate weight he may feel obliged to pass a sentence which in his own unfettered judgment he would regard as erroneously lenient. It is better, however, to strive to avoid disparity when the second offender comes before the court at first instance than for the second judge to give effect to his own unfettered view and leave it to an appellate court to take the responsibility of reducing what might on its face be a proper sentence to one which is objectively too lenient by reason of considerations [of eliminating or diminishing disparity in the interests of justice, sometimes to a level which could probably be criticised as inadequate] such as are touched upon in the cases to which I have referred to earlier in these reasons. The true rationalization from the point of view of the second judge in cases such as these is not that he is passing a sentence which appears to him to be too lenient but rather that he is passing the sentence which is shown to be appropriate having regard to the whole of the relevant circumstances including, very particularly, the established circumstance of an unduly lenient sentence already passed by a brother judge upon the co-offender. In short, the particular considerations of eliminating or reducing a disparity are equally significant to be taken into account by a second sentencing judge as they are by this Court when entertaining an appeal in which a contention of disparity is advanced.
44 Certainly, Tisalandis is authority for the proposition that a manifestly inadequate sentence passed on a co-offender cannot be disregarded when considering whether there is an inappropriate disparity in the sentences of co-offenders. Nor is it correct to say that, to correct marked disparity, an otherwise manifestly inadequate sentence will not be passed on appeal, though this will only be done in a very exceptional case (pace Lewins). But there can be no good reason, where manifest unjustified disparity is demonstrated, for this Court to refuse any downward adjustment of the impugned sentence where there is room to substitute a sentence that is within the appropriate sentencing range and, in an appropriate case, it will to do so. Indeed, as Mason J said in Lowe (154 CLR at 614) the Court of Appeal is entitled to reduce an otherwise appropriate sentence "to the point where it might be regarded as inadequate". I take it that this is justified by reference to the fundamental importance in the administration of criminal justice to maintain the principle or equal justice, even where the outcome in a particular case is unsatisfactory.
The comparative cases
45 It is tolerably clear that the major reason for suspending the co-offender's sentences was the desirability in the interests of her baby to maintain the mother/child bond and that it would be "regrettable" (to use the language of the psychiatrist quoted by the sentencing judge) if this were broken. His Honour referred to the details in the doctor's report of the "very harmful consequences to the young child if separated from his mother at this very early stage". Weighing up the extent of potential harm that might result from such separation is very much a matter of judgment, of fact and degree upon which reasonable people might reasonably differ. Breaking the naturally and very important close relationship between mother and child is a situation likely to excite sympathy, and rightly so. Furthermore, the evidence as whole, in particular the difficult domestic circumstances of the co-offender, her attempts to put things right by assisting the authorities and the very real danger in which, as the police said, she had therefore placed herself, might have instigated that merciful humanity that, in rare cases, can lead to a substantial departure from the strictures of criminal justice.
46 So exceptional was suspending the co-offender's sentences in this case that it could only have been justified, if at all, by reference to this rarely exercised residual discretion. However, Boulten ADCJ did not purport to approach the question in this way. Rather, his Honour acted upon the basis that suspending the sentences was to exercise what I might call the conventional sentencing discretion. Moreover, taking the matters to which I have referred into account on the question of suspension involved a high degree of double counting, in that the starting point of five years must necessarily have already taken them into account. This is important because, had his Honour not given substantial weight to the subjective features, a starting point of greater than five years must have been inevitable and, if increased, would not have been reduced to two years on application of the discounts, hence precluding the ability to suspend the sentences.
47 It is, perhaps, worth mentioning that his Honour may have given some significance to that fact that the Crown "did not oppose, certainly with any vehemence" the submission by the defence that, if the term of imprisonment was two years or less, the sentence could appropriately be suspended.
48 Perhaps ironically, if these matters meant that the suspension of the sentences was not appealably wrong, that could only be so because of considerations that were purely personal to the co-offender and so exceptional that they explained the disparity of which the applicant complains and, hence, must lead to the dismissal of his appeal. In other words, the differences between the sentences are explained by the greatly differing subjective features of their comparative circumstances and thus do not provide a basis for reduction of the applicant's sentence.