Woodgate v R [2009] NSWCCA 137 | Case summary

7 May 2009 Rees WOODGATE v R Judgment 1 GROVE J: On 16 November 2007 the applicant pleaded guilty to a count in an indictment charging the supply of a large commercial quantity of prohibited drug, methylenedioxymethylamphetamine (MDMA) commonly called ecstasy. The legislated maximum penalty for that offence includes imprisonment for life. The sentencing judge (Charteris DCJ) was asked to take into account, pursuant to the Form 1 procedure, a conceded offence of goods in custody reasonably suspected of having been unlawfully obtained. His Honour sentenced the applicant to imprisonment consisting of a non-parole period of 10 years with a balance term of 4 years. A standard non-parole period of 15 years is prescribed for the indicted offence. 2 The applicant seeks leave to appeal against severity of sentence. A Crown appeal asserting that the sentence was manifestly inadequate was abandoned. 3 The applicant was born in Whangarei, New Zealand and is now aged nearly forty five. He did not give evidence but his Honour was prepared to accept some history which the applicant had given to a psychologist. He noted the extent of his acceptance: "He left home at age sixteen years and as a young adult left his native New Zealand and has not returned. For the reasons given in the history to Mr Watson-Munro the offender recounts his estrangement from his mother. His father died some twenty years ago. The offender travelled the world for some twenty years, living and/or working in Australia, England, India, Japan, South America and Spain, amongst other places." 4 The applicant arrived in Australia in February 2006 and his Honour accepted "the basic history of the offender's life" up to his arrival here. That did not include extensive detail of asserted drug abuse and the consequences of it in claims which the applicant had made to the psychologist. 5 An agreed statement of facts, signed by the applicant and senior counsel then appearing for him (who did not appear in the appeal), was tendered. A summary can be extracted therefrom. 6 A joint task force was established by the New South Wales Crime Commission and the Police Force inquiring into information received about a British syndicate said to be involved in the supply and manufacture of prohibited drugs here in Australia. The applicant became a person of interest to that inquiry. He was subjected to surveillance and, pursuant to warrants, his calls on a number of telephone services were intercepted. 7 In particular, two premises, a serviced apartment at Bondi Junction and an unfurnished rental house in Malabar Road, South Coogee, as well as two hired vehicles came under surveillance. The applicant was seen coming to and from the premises and engaging in activity with the vehicles. Both the premises had been leased by a co-offender, Barton, and they were staying in the apartment from 14 June 2006. 8 On 17 June the applicant (and Barton) were arrested when they were seated in one of the vehicles. Search of the applicant located a receipt in the name of "Robert Matkin" for a shed storage facility at Waterloo as well as keys to the Malabar Road house. 9 Police executed search warrants on the premises and the storage facility. At the apartment, which consisted of three bedrooms, there were found in the applicant's bedroom, pills which amounted to a total of 67.79 grammes of MDMA and a locked suitcase. The applicant supplied police with the code to unlock the combinations on the suitcase. It contained AUD $31,805. It was this cash which the applicant acknowledged may have been reasonably suspected of being unlawfully obtained thus founding the offence that his Honour was asked to take into account on sentence pursuant to the Form 1. 10 Also seized in the applicant's bedroom was a lanyard to which numerous keys were attached. These keys were taken to the storage facility at Waterloo. One of the keys taken from the applicant when he was arrested opened the padlock which allowed entry into the relevant shed. Inside it was a trunk which was able to be opened by use of one of the keys on the lanyard. The trunk contained twenty two sealed bags within which were numerous smaller bags of ecstasy tablets. The nett weight of MDMA in the tablets within those bags was 42.956 kilogrammes. 11 Search of the Malabar Road premises located two automated pill presses, dye press stamps, sundry accoutrements and a backpack containing sealed plastic bags of ecstasy tablets. These weighed 10.921 kilogrammes. As well, there was located and seized 12.234 kilogrammes of MDMA in powder form. 12 Interviewed by police on the day of arrest, the applicant claimed that he came to Australia at the request of a man in Spain in order to do carpentry work at the Malabar Road premises. He had arrived in February but he had not commenced to do such work. He had brought some money with him. A man, only known to the applicant by his first name, used to call each week and give him money for rent. The applicant denied that he was involved in the manufacture and supply of prohibited drugs whilst he was in Australia although he agreed with police that "his story did not make sense." After committal for trial, discussions concerning a plea were initiated and he conveyed his intention to plead guilty to the charge in the indictment in October 2007. 13 The applicant has filed a notice setting out four grounds of appeal: "1. His Honour did not give effect to the principals (sic) of parity between the appellant and the co-offender Barton. 2. The court has erred in rejecting a substantive amount of evidence of the appellant, by reason of the fact that the appellant did not give evidence. 3. His Honour inadequately reduced the non-parole period in imposing (sic) special circumstances. 4. The sentence was manifestly excessive." 14 It is convenient to deal first with ground 2 which is taken to refer to evidence called on behalf of the applicant. Complaints were raised about the rejection by his Honour of certain contentions advanced upon this material. In order to succeed the applicant must show that it was not open to his Honour to reject these contentions. 15 A letter from Emirates Airlines showed that the applicant had bookings to travel from Sydney to Dubai and onwards from Dubai to Paris on 21 and 22 June 2006. An attached "PNR" excerpt seems to indicate further onward travel on 22 June, apparently by a different airline, from Paris to Amsterdam. It is the intended departure from Australia which is claimed to be significant, not the destinations. About this evidence his Honour stated: "Evidence was tendered from an international airline, Emirates, concerning a ticket issued to the offender and apparently in his possession on his arrest. It is contended by his counsel that I could conclude that, but for his arrest, the offender would have left Australia on 21 June 2006 when he had a booking to Europe on Emirates. That evidence in no way could satisfy the court of what is asserted. It was open to the offender to tell the court of his departure intentions but he chose not to testify. A mere booking of course can be changed, and indeed the records tendered revealed he had changed earlier departure dates. I am unable to draw any conclusion from the evidence tendered from Emirates." 16 The reasons for his Honour's conclusion, or his inability to draw the conclusion invited on behalf of the applicant, were rational and there is no basis upon which this Court should hold that his Honour fell into error. 17 The next contention was that his Honour should have found that the applicant was merely storing the drugs for others with the implication that such a finding would reduce his culpability for the offence. His Honour observed that there was no evidence from the offender to support that proposition. His observation was plainly correct. His Honour rejected a Crown submission that the applicant was the principal offender but he characterised him as a "senior trusted figure". Not only did the applicant have, inter alia, the keys to enable access to the drugs, he had the not insignificant amount of tainted money. The findings made by his Honour were clearly open to him. 18 It is complained that his Honour erred in the rejection of the opinion of the psychologist, Mr Watson-Munro. His relevant findings about this were expressed in these terms: "Mr Watson-Munro diagnosed a longstanding depression and anxiety condition complicated by later drug abuse. The psychologist accepted that the offender's capacity to appreciate the consequences of his actions was 'significantly impaired but not to the point where he was unaware of his wrongdoing'. I do not accept that opinion. The offender has not given evidence confirming the extensive history of drug abuse given to Mr Watson-Munro, he has not subjected himself to cross-examination to test any version he has given. I am prepared to accept the basic history of the offender's life leading up to his travelling to Australia early in 2006, but I reject any suggestion that this offender's capacity to appreciate the consequences of his actions was impaired, let alone to a significant extent. The agreed facts reveal an organised individual involving himself in the illicit drug trade. He was obviously a very trusted person in this regime of drug supply. He displayed ample capacity to engage in this drug supply as observed by the investigating police, and supported by the evidence." 19 His Honour's approach reflected a correct appreciation of warnings by this Court that judges at first instance ought to be cautious about statements to persons (frequently psychiatrists, psychologists and probation officers) which are unverified. A useful summary was made by Beazley JA in Munro v R [2006] NSWCCA 350 where the sentencing judge had, at first instance, drawn attention to counsel about those warnings. In that context her Honour said: "17. His Honour's understanding of the law was correct. In R v Elfar [2003] NSWCCA 358, Whealy J (Ipp JA and Davidson AJA agreeing) referred to the acceptance without reservation by the trial judge in that case, of the accounts recorded in various medical reports and other documents tendered at the sentence hearing, notwithstanding that the respondent did not give direct evidence of those matters. The Crown had referred the Court in R v Elfar to the decisions of this Court in R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 and R v McGourty [2002] NSWCCA 335. His Honour quoted from the statement of Wood CJ at CL in McGourty as follows: '24. So far as I can see, there was no factual basis for the finding made by his Honour beyond a self-serving and untested statement made by the respondent to a psychologist. Recently this Court has criticised the practice of placing material of this kind before sentencing judges, in an attempt to minimise the objective seriousness of a crime otherwise apparent on the face of a record: Regina v Qutami [2001] NSWCCA 353, at paras 58 and 59 per Smart AJ, and at para 79 per Spigelman CJ. 25. I whole heartedly agree with the criticism offered in that case. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his/her criminality, then it should be done directly and in a form which can be tested.' 18 Whealy J concluded at [25]: 'The matters of principle stated in R v McGourty and R v Qutami are plainly important. They require emphatic endorsement by this court. Indeed it needs also to be further emphasised that this principle extends not only to statements in psychological reports, but also to statements by offenders in pre-sentence reports - ( R v Palu per Howie J with whom Levine J and Heydon J agreed (2002) 134 A Crim R 174 at 185). In addition, the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment. Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court. The essential reason for treating the material in that way is precisely because it remains untested. Indeed, where the Crown has either objected to the tender of this type of material or has made it clear, either at the time of tender or when submissions are made, little or no weight should be placed upon the material, that the sentencing court would be entitled to treat the material as being of little or no weight. Indeed, in an appropriate case, it ought to do so.' 19. In R v Palu (2002) 134 A Crim R 174; [2002] NSWCCA 381 Howie J, with whom Levine and Hidden JJ agreed, said at [41]: 'A probation officer preparing a presentence report merely questions an offender about the offence because it may reveal some matter about the offender's attitude which is relevant to the primary purpose of the report, that is to indicate matters which might be addressed by the service in aiding in the rehabilitation of the offender and to advise on available sentencing options as required by the provisions of the Crimes (Sentencing Procedure) Act … The officer does not offer an opinion as to the reliability of what is said. Such comments have little evidentiary value if not supported by other material.' " 20 Finally in support of this ground, the applicant complained that his Honour had, when dealing with the co-offender Barton, accepted "unsworn statements in support of his (Barton's) case." In R v Olbrich (1999) 199 CLR 270 it was observed in the joint judgment of Gleeson CJ and Heydon and Callinan JJ (at 281): "…..it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say 'if necessary' because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)" 21 If, in dealing with Barton, his Honour was prepared to act upon particular assertion it was, as the parenthetical observation set out above recognizes, within the ambit of his function. In the present case the issue was whether his Honour was prepared to act upon the applicant's assertions and not whether, in respect of someone else, albeit a co-offender, he was prepared to act upon that person's assertions. In any event, as the Crown has pointed out, an examination of the Barton proceedings shows that in accepting opinion by the psychologist who examined Barton (again Mr Watson-Munro) his Honour had corroboration of the history given and the observations about the offender in evidence from the offender's wife and from his father. 22 I would reject ground 2. 23 I turn to ground 4 which alleges that the sentence was manifestly excessive. As above stated, there is a legislated standard non-parole period of 15 years applicable to this offence. In fact, the total sentence received by the applicant was less than that non-parole period. Of course, for at least the reason of the plea of guilty, departure from the standard non-parole period was appropriate: R v Way (2004) 60 NSWLR 168. Nevertheless specification of the standard non-parole period remains what has been described, inter alia, as a benchmark or guidepost. Statistical surveys which antedate or reflect sentences imposed before the parliamentary expression of will implicit in the prescription of the standard non-parole period, are, for those reasons, of very limited utility if any. 24 Another benchmark or guidepost to which his Honour was obliged to have reference was the maximum penalty which was, as above noted, imprisonment for life. 25 The argument in support of this ground again sought to rely upon asserted error by his Honour in finding that the applicant's role was "senior", that he was merely storing the drugs, he was planning to leave Australia and in failing to accept the diagnostic opinions of Mr Watson-Munro. For the reasons given in rejecting ground 2, these matters were determined by his Honour in the sound exercise of his sentencing discretions. They do not provide a basis for demonstration that the sentence was excessive. 26 It is further contended that his Honour failed to give weight to the delay in prosecution. The Crown pointed out that the applicant's counsel had noted that adjournments had been given on a number of occasions in order to allow the applicant to speak to Crime Commission officers. Although this was said in the context of a complaint about delay there was no demonstration of any fault on the part of the prosecution for delay in the proceedings. 27 His Honour said that he would allow some discount for assistance to authority by the applicant which it appears was given through the Crime Commission. The transcript shows that counsel for the applicant was, upon undertaking as to confidentiality, shown the relevant document and this exchange thereafter took place: "(COUNSEL FOR THE ACCUSED): Your Honour, the letter accords with what I was told. I would ask your Honour to assess the relevance of this in relation to the sentencing proceedings, on the basis of intelligence information provided. I think that is as high as I can put it. HIS HONOUR: Under the Sentencing Procedure Act it's s 23 or thereabouts, about cooperation with authorities, and that's how you're putting it, assistance to law enforcement officers. Is that how you are putting it before the court? COUNSEL FOR THE ACCUSED: Yes, your Honour, just as intelligence assistance only. HIS HONOUR: Not all of the remarks are positive, to say the least. COUNSEL FOR THE ACCUSED: They're not, but as its highest there is material there that falls within that category. There is certainly the suggestion that in relation to some of the earlier paragraphs of the latter that that information relates to those people who may be - I won't go any further than that. There's certainly in my submission, despite some of the negative aspects of the letter, material there to suggest that there is intelligence now available to the Crime Commission." 28 There has been no complaint of his Honour's treatment of the applicant's assistance. It is not shown that his Honour erred in declining to mitigate sentence by reason of delay. 29 It was submitted that his Honour failed to give weight or to refer to the applicant's remorse and contrition. The applicant gave no evidence to those effects. A plea of guilty does not bind a judge to find that an offender is necessarily remorseful or contrite: R v Thomson (2000) 49 NSWLR 383. The applicant was given full, and perceptibly generous, allowance for the utilitarian value of the plea of guilty. Arrested in possession of some of the drug and the means of controlling the balance was as consistent with the applicant recognizing the inevitability of conviction as being remorseful. 30 For the reasons above adumbrated, his Honour was not obliged to accept hearsay statements of contrition and the like attributed to the applicant and it was open to him to reject that hearsay. 31 A calculation of a notional starting point of 20 years imprisonment against a prescribed maximum penalty of life imprisonment, does not suggest undue excess. The quantity of the drug involved was huge, a multiple of over one hundred and thirty times the minimum required to constitute a large commercial quantity. 32 Whilst the mere quantity of the drug may not generally be the chief factor to be taken into account in fixing sentence, it retains significance: Wong v The Queen (2001) 207 CLR 584. In this case it includes a multiplicity of the statutorily significant quantity abovementioned. A sentence reflecting that enormity was demanded. As Howie J (McClellan CJ at CL and Harrison J in agreement) said in Mirza v R [2007] NSWCCA 248 "there will clearly be cases where the amount of drug supplied is determinate of the sentence." That in this instance supply was deemed, does not detract from the applicability of that statement. 33 Counsel referred the Court to R v Stankovic [2006] NSWCCA 229. In that case the offender pleaded guilty to the supply of a large commercial quantity of MDMA (approximately 44 kilogrammes) and taken into account on sentence were offences including cultivating a prohibited plant (cannabis) and possession of unlawfully obtained goods ($5,000 cash). He ultimately received a sentence consisting of imprisonment for a non-parole period of eight years and nine months and a balance term of two years and eleven months. 34 That sentence was imposed after a successful Crown appeal against inadequacy of that assessed at first instance and reflected the restraint applicable to imposition in that circumstance. It also was affected by the inclusion of a combined "discount" of 35 percent for early plea of guilty and valuable assistance. 35 The reference does not demonstrate that the sentence received by the applicant was excessive. 36 Ground 4 should not be sustained. 37 I turn to ground 1. 38 His Honour had himself dealt with Barton and was in a good position to assess the comparisons or contrasts between the two offenders. 39 An asserted need for parity was the topic of submission and his Honour dealt with it thus: "Counsel for the offender submits that I should address the issue of parity concerning the sentence I imposed upon Nicholas Barton on 20 December 2007. Mr Barton pleaded guilty to a charge of being knowingly concerned in the supply of a commercial quantity of ecstasy, not a large commercial quantity. That offence carried a twenty year maximum penalty with a standard non-parole period of ten years. I imposed a three year head sentence upon Mr Barton. In his sentencing I accepted the evidence presented on his behalf, that he had sub-let the Malabar Road premises to this offender, Mr Woodgate, for a short period commencing early in June 2006. I accepted on balance on the evidence before me that Mr Barton had become aware of Mr Woodgate's drug supply enterprise shortly thereafter and had failed to act to bring it to an end. In my judgment on sentence I concluded that Barton's offence fell well below the mid range of seriousness of an offence of that nature, considering the standard non-parole period provided for by the Parliament. Mr Hanley for the offender urges upon me that I take into account the sentencing of Mr Barton so as to address the issue of parity. The culpability of Mr Barton is substantially below that of this offender and involved, as I have observed, an offence of a lesser seriousness. I do however take into account the sentence I imposed upon Mr Barton in determining the appropriate sentence for this offender." 40 For the applicant to succeed on this ground it is necessary for him to demonstrate that his Honour was wrong and he has not done so. 41 The principles to be applied when a ground such as this is advanced are well established and do not presently require re-statement. This has recently been done in R v Delfino [2008] NSWCCA 18 and I will not pause to recite what appears there and it will suffice to record an endorsement of what has been said in that judgment. 42 A stark matter of contrast relating to the respective sentences was that the Crown, acknowledging an absence of proof of a more serious category of offence, charged Barton with being knowingly concerned in the supply of a commercial quantity of drug which offence attracted a maximum possible penalty of imprisonment for 20 years. As above observed the applicant's culpability related, not to a commercial quantity, but to one hundred and thirty times a large commercial quantity. 43 As distinct from the situation of the applicant, his Honour made the following findings which can be extracted from his Remarks on Sentence in dealing with Barton: "On the evidence before me I am satisfied that the offender entered into a bona fide agreement with Mr Woodgate for the purposes of subletting the Malabar Road premises. The purpose of that sub-rental was to benefit the offender financially in that he would not be liable for rent in the period that he was away from Sydney and he would have secured residential premises for himself, his wife and stepdaughter to live in on his return from England in around September 2006. I accept on the evidence before me, and not without some doubt, that shortly prior to his arrest the offender became aware that Mr Woodgate was intending to use the premises in relation to the supply of illicit drugs. I note that the range for commercial quantity of drugs is at 500 grams and the offender acknowledges that he had the knowledge of that degree of drug supply. I find also that it was open to the offender, when he became aware of Mr Woodgate's intentions, to terminate the sub-leasing arrangement immediately and thus prevent the supply of drugs from the Malabar Road property. I accept that in a gross error of judgment the offender allowed Mr Woodgate to remain at Coogee, knowing belatedly what Mr Woodgate intended to do there. By allowing Mr Woodgate to remain there, the offender had facilitated the eventual supply of the illicit drug to consumers in due course. I am not without some doubt as to any further extent of the offender's involvement but the evidence satisfies me of the matters to which I have referred. I repeat that I must sentence him on evidence, not on suspicion. The Crown has not in my view, in a meaningful way, challenged the case put forward by the offender which limits his involvement in the drug supply." 44 The thrust of submissions on behalf of the applicant focussed upon the agreed statement of facts, acknowledged as I have indicated above, seeking to demonstrate a comparable culpability as between the applicant and Barton. Barton was, of course, sentenced upon the basis of facts found by his Honour in his case, whether emerging from agreement or otherwise. He was not sentenced on the basis of facts limited to those which the applicant agreed. 45 Be that as it may, it was recognized that the applicant and Barton faced different charges, the upper limit of drug quantity which could be involved in the charge against Barton (500 grammes) being a fraction of the quantity involved in the charge against the applicant. In support of argument that parity was germane where offenders face different charges, the applicant relied on R v Kerr [2003] NSWCCA 234. To the extent that the decision in that case has been said to have possible applicability, it must be in a very limited class of case. It is not shown how the applicant's situation falls within any such class and no example of a case falling within such a class has been able to be identified or even hypothesized. The status of Kerr as authority has been the subject of a series of later decisions in this Court. It was recently summarized by Latham J (Giles JA and Mathews AJ concurring) in Pham v R [2009] NSWCCA 25: "But the applicant relies upon a decision of this Court in R v Kerr [2003] NSWCCA 234, that suggests that parity can apply notwithstanding that two offenders are charged with completely different offences. There the applicant, who was sentenced for aggravated robbery, complained of a lack of parity with his co-offenders, one of whom was charged with simple robbery and the other with concealing a serious offence. The judge sentencing the applicant stated that there was no issue of parity between the co-offenders. Miles JA, with whom the other members of the Court concurred, stated: 'It is established that disparity so called can arise when a co-offender is sentenced after the aggrieved offender has been sentenced: Postiglione v The Queen . In such cases there can be no error on the part of the judge sentencing the offender later aggrieved: Lowe v The Queen (1984) 154 CLR 606 at 610-611. It is also recognised that the parity principle is of wide application and is not to be applied or withheld in a technical or pedantic way. It is indeed part of or a reflection of the wider principle that consistency in sentencing by the courts overall is to be aimed at as desirable in the public interest. Perfect consistency is a goal that can never be reached because of the infinite variety of the circumstances of offences and offenders. However there is a danger that it may be compromised by the selection of differing charges so that one offender may be charged with a serious offence and given punishment at the top of an acceptable range for that offence, and a co-offender charged with another less serious offence and dealt with at the very bottom of the acceptable range for that other offence. There may be no impropriety in that course, which will often arise from negotiation between co-offenders and law enforcement authorities. Sometimes, however, and it is not necessary to put it higher than that, the result may have the appearance of injustice. 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.' 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: '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. 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. 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. 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. 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.' 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.' 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. In my opinion, if Kerr has any applicability, it must be in a very limited class of case. This Court is not generally concerned with addressing the consequences of prosecutorial discretion as it impacts upon the sentences imposed upon offenders. As Miles AJ recognised, it could not be seriously argued that a person should receive a reduction in sentence because a co-offender is not charged or where, for some reason, the charge does not proceed. Why then should a sentence be reduced because another offender is charged with a less serious offence or a lesser number of offences? How does the court inform itself of the reasons why the prosecutor acted as he or she did? Does the court interfere even if the prosecutor's actions were completely justified? If the disinterested observer is to be consulted then that observer should understand the reasons why the prosecutorial discretion was exercised as it was. If this observer also understands that the courts do not generally supervise the legitimate exercise of prosecutorial discretion or seek to address the results of its exercise, then the observer would feel no disquiet about the different sentencing outcomes. But if such disquiet does arise, it is a result of the prosecutor's actions and not the sentences imposed by the court." 46 Counsel also drew attention to the Remarks on Sentence by Charteris DCJ in R v Moynihan (26 September 2007). It is not of assistance to the determination of this application to examine different facts and circumstances of an offender whose offence had nothing to do with the applicant. It was submitted that the case had potential use in a way analogous to sentencing statistics. I comment that one case would scarcely suggest a pattern. This Court has often cautioned about the nature of statistics as "a blunt tool" especially because they do not reveal individual circumstances. It can be observed that Moynihan was patently different from the applicant if for no other reason than that he gave evidence and his Honour concluded that histories which he had given were truthful and opinions based on them reliable. 47 The applicant cannot harbour a grievance which is justifiable having regard to the way he was treated in comparison with Barton. 48 I would reject ground 1. 49 Ground 3 complained of the small reflection of his Honour's findings of special circumstances when he came to set the non-parole period. His remarks show that he was precisely aware of the consequences of his specification of the non-parole period. He referred to it in these terms: "I do find that there are special circumstances which will moderate slightly the relationship between the minimum period and the additional period. The offender has not previously been in custody. He suffers from a longstanding depressive condition. …….. But for any finding of special circumstances the minimum period would be ten years and six months. I have reduced that period on the finding of special circumstances to ten years." 50 Fixing the lesser term of non-parole period as against total sentence involved a determination of the minimum period, according to accepted principles of sentencing, during which the applicant should be imprisoned: Power v The Queen (1974) 131 CLR 623. Those principles include assessment of the objective gravity of the offence and the need for general deterrence: R v Simpson (2001) 53 NSWLR 704. 51 There was no error by his Honour in fixing the non-parole period which would warrant intervention by this Court. 52 Ground 3 should also be rejected. 53 I propose the following orders:

Woodgate v R

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