33 These grounds of appeal raise the issue of parity of sentences.
34 Wood CJ at CL (as he then was) in R v Kollas & Mitchell [2002] NSWCCA 491 [at para 45 - 50] provides a helpful synopsis of the relevant principles in relation to parity when he said:
" 45 The parity principle of sentencing established in Lowe v The Queen (1985) 154 CLR 606 and in Postiglione v The Queen (1997) 189 CLR 295 requires, as a condition precedent to appellate intervention, that there should be a marked disparity between the sentences imposed on co-offenders of a degree of kind which gives rise to a justifiable sense of grievance. A sentence which offends that principle should be reduced. That may occur notwithstanding that it is otherwise appropriate, or within the permissible range of sentencing options (per Mason J in Lowe at 612 and per Dawson and Gaudron JJ in Postiglione at 301) and R v Anderson NSWCCA 25 March 1993 per Justice Hunt, Chief Judge at Common Law at p4. The Court, however, still retains a discretion to intervene in those circumstances, if to do so would be to produce a sentence which was totally inappropriate to reflect the objective criminality involved.
46 In determining whether the parity principle has been observed, as the judgments of Gibbs CJ (at 610) and of Mason J (at 613) in Lowe and of Dawson and Gaudron JJ (at 301), and of Kirby J (at 338) in Postiglione show the different circumstances of co-offenders, including the part which each played in the offence, as well as their subjective circumstances such as age, background, previous criminal history, remorse, rehabilitation prospects and the like, must be considered.
47 That follows from the circumstance, as Dawson and Gaudron JJ confirmed in Postiglione (at 301) that the parity principle is " an aspect of equal justice ". Equal justice requires, as their Honours pointed out, that " like should be treated alike, but that, if there are relevant differences, due allowance should be made for them."
48 The principle is enlivened only where the disparity is such as to give rise to justifiable sense of grievance, or to the appearance of justice not having been done. As Kirby J pointed out in Postiglione (at 337):
"So long as the sentencing Judge has taken into account the relevant considerations of law and fact, the appellate court will not ordinarily intervene merely because some arguable discrepancy appears between the sentencing of otherwise apparently connected or like offenders."
49 This is associated with the principle of appellate restraint, and with the circumstance that sentencing can never be reduced to a precise mathematical exercise, or to one involving analytical certainty. Room must be left for discretion, and or an individual assessment of the facts by the sentencing Judge who has the benefit of seeing and hearing the evidence first hand.
50 The test for determining the existence of a sense of grievance is objective. That is, a person complaining of disparity must show that a reasonable person, looking at the circumstances of the case, would regard the offender's grievance as justified: R v Ilbay [2000] NSWCCA 251 per Grove J (at par6)."
35 It was necessary for the sentencing judge to assess the applicant's degree of criminality by defining his role and the level of his actual participation in the criminal enterprise: R v Olbrich (1999) 199 CLR 270.
36 His Honour found that the applicant's involvement was "substantially less" than that of the co-offender. He noted there was no evidence before him of substantial profit made by the applicant nor was there a suggestion or evidence that he was involved in any way with the other activities of the co-offender. His Honour remarked (ROS at p3):