Phan v R

HOEBEN CJ at CL:

His Honour Judge Bennett SC (the sentencing judge) sentenced the applicant to an aggregate sentence of 5 years and 6 months, to commence 14 September 2018 and to expire 13 March 2024, with a non-parole period of 3 years and 6 months, to commence on 14 September 2018 and to expire on 13 March 2022.

After discounts of 25 per cent for his pleas of guilty, the indicative sentences were 2 years and 3 months for Sequence 5 and 4 years and 6 months with a non-parole period of 2 years and 6 months for Sequence 6, taking into account the Form 1 offence.

The applicant sought leave to appeal against sentence on the following grounds of appeal:

The results of police investigations were set out in an agreed statement of facts. The applicant did not take issue with those facts. The applicant did not give evidence in the sentence proceedings but relied upon assertions by him to his father and partner contained in letters by them addressed to the Court. He also relied on statements to Ms Tatiana Leist, psychologist, whose report was tendered on his behalf.

The agreed facts were as follows:

In relation to the Form 1 matter – participate in a criminal group – the agreed facts stated that the applicant was part of criminal group, together with Le and the other unidentified males seen at the two properties. The purpose of this criminal group was to grow, harvest and sell hydroponically grown cannabis for commercial gain. This criminal group operated by leasing residential properties under false identity details in order to facilitate the cultivation of commercial quantities of cannabis undetected by the authorities.

The sentencing judge discussed the objective seriousness of the applicant’s offending. He referred to the observations of Johnson J in in Tepania v R [2018] NSWCCA 247 at [112] where his Honour said:

The sentencing judge also had regard to the discussion by Johnson J of moral culpability and the part it played in assessing the objective seriousness of offending.

The sentencing judge did not accept that the applicant had been subject to some form of non-exculpatory duress, this having been abandoned by his counsel in the sentence proceedings. His Honour found that on the whole of the material, financial reward was the applicant’s motive in participating in the offending but he was not able to quantify the amount involved.

The sentencing judge’s conclusion as to the objective seriousness of the offence involving the large commercial quantity was:

In his consideration of objective seriousness, the sentencing judge said:

In fixing the non-parole period and length of sentence, his Honour had regard to the important guideposts provided by the maximum penalty and in the case of the offence involving a large commercial quantity, the standard non-parole period. His Honour also had regard to the sentencing purposes which underpinned ss 3A, 21A and 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). In relation to the commercial quantity offence, his Honour was “of the view that the other offence which does not carry a standard non-parole period would fall somewhere about the same point along the scale of objective seriousness (as did the more serious offence)” (Sentence judgment 5.9).

His Honour had regard to the offence of participate in a criminal group which was dealt with by way of a Form 1, which had to be taken into account when sentencing in respect of the large commercial quantity offence. In relation to that offence, his Honour noted the importance of personal deterrence and denunciation.

In relation to the role of the applicant in the offending, his Honour found:

His Honour had regard to the specific activities performed by the applicant when he was under observation before his arrest. His Honour found beyond reasonable doubt that the gloves which the applicant was seen to be wearing, one of which contained his DNA, showed that his activities for the syndicate were considerable. The gloves appeared to have been used to transport items to and from the two houses and to and from motor vehicles which were acquired from time to time for unknown tasks relating to the two premises where the offending took place. Given the sophisticated layout and equipment used in each location, his Honour found that the applicant would have been fully aware of the substantial extent of the criminal activities taking place at the two locations.

When considering the role of the applicant, his Honour also had occasion to compare his participation with that of Le. On that issue, his Honour said:

His Honour made the following findings in relation to the applicant’s subjective case. He was born in 1988 and was aged 31 at the time of sentence. He had no criminal record, either in Australia or Vietnam. A letter from his father asserted that he had a close and supportive family and had excelled at school. He was allowed to travel to Australia in order to study. His parents had borrowed in order to facilitate that opportunity.

In 2014 the family business in Vietnam failed and his father became sick and had to retire. He was unable to financially support the applicant in Australia. The father expressed the family’s dismay at the decision by the applicant to involve himself in these crimes.

A letter from the applicant’s partner to the court described their close relationship and spoke of his high work ethic. She described his belief that his job as a delivery driver did not involve illegality and he was very upset when he learned that such was not the case. She said that he was embarrassed and remorseful. She said that he understood the irreversible damage which his conduct had brought about to their relationship and to his family.

Before the court was a psychologist’s report which was prepared by way of an audio-visual link with the gaol. His Honour noted that this reduced the value of the report and took into account that the applicant had not given evidence in the sentence proceedings. When assessing the report, his Honour adopted what was said by Smart J in R v Qutami [2001] NSWCCA 353:

The psychologist recorded that the applicant had been brought up in a loving family and that there was nothing in his background that could explain why he would turn to such criminal misconduct. The only possible explanation was that his devotion to his family had to some extent influenced his decision to participate in this criminal enterprise for financial gain. His Honour reiterated that other than the agreed facts recording his joining a criminal group for commercial gain, there was an absence of evidence as to precisely what reward he received from his offending.

In relation to the applicant’s position in the criminal organisation, his Honour found:

His Honour did not accept the proposition that the applicant felt worried when he saw the cannabis plants at one of the residences and that when he raised the matter, he was told to keep it a secret. While his Honour accepted the applicant’s submission that one of his motivations for engaging in the offending was to provide assistance for his family, his Honour did not consider that it constituted a significant mitigating factor.

His Honour rejected the proposition that the Sentence Assessment Report was an objective document which strengthened the applicant’s subjective case. His Honour reached that conclusion because all that the Community Corrections Officer (CCO) could do was to regurgitate what was told to her by the applicant. His Honour found that there was no basis upon which he could assess the veracity or reliability objectively of what the applicant had told the CCO.

His Honour noted that the applicant had accepted that no penalty, other than a sentence of imprisonment, would be appropriate for these offences. His Honour found that all of the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act were engaged in this case. He found that general and specific deterrence had their role to play. His Honour found that the frequency with which persons from Asia engaged in such conduct in this country required that the court give appropriate weight to general deterrence so that such persons would be made aware that they will suffer appropriate punishment if they offend in this way.

His Honour found that the applicant’s prospects of rehabilitation were good but that he must be held accountable for his conduct. Such conduct must be denounced and recognition given to the harm done by persons who participate in this kind of crime.

His Honour was not prepared to make a finding as to the existence of any aggravating factors which were not already part of the offending. In particular, his Honour was not prepared to find that the motivation of financial gain should be taken into account as a separate matter aggravating the offence. His Honour was, however, prepared to accept that the applicant had demonstrated contrition and remorse by his early plea of guilty.

His Honour found special circumstances because this was the first time the applicant had been incarcerated, that he was Vietnamese and English was not his first language, and that he would be to some extent, isolated in the gaol community.

The applicant submitted that the sentencing judge erred in assessing the objective seriousness of the applicant’s conduct in the light of the role he fulfilled in the commission of the offences. The applicant submitted that his Honour’s characterisation of his role as being “significant” was an overstatement of his conduct as revealed by the facts and as could be properly determined by inference from the evidence. The applicant submitted that his role at its highest was to transport and deliver items to each house on two occasions, to assist in the storage of fertiliser, growing medium and stakes and on one occasion to have made a rental payment for the Parramatta grow house. The applicant submitted that in those circumstances it was simply not open to his Honour to make the findings which he did as to his role. The applicant submitted that to the extent that his Honour took into account any contribution by him to bypassing electricity, his Honour was in error.

The applicant submitted that his Honour appeared to conflate the nature and extent of the cultivation operation with his role within the syndicate. The applicant submitted that in doing so, his Honour committed the type of error identified in Kay v R [2019] NSWCCA 275 per Harrison J (Payne JA and N Adams J agreeing):

The applicant submitted that a similar error had occurred in the present case in that there was insufficient evidence for a finding to be made beyond reasonable doubt that his role was anymore than that of a transporter and performer of odd jobs. The applicant submitted that on the evidence, he could be seen to be doing no more than assisting the operation from the periphery on a very limited number of occasions over a relatively limited period of time. He submitted that he was not fulfilling any integral function of actual cultivation of the prohibited plants, nor could he be seen as having any input into the workings of the operation. He submitted that he was not irreplaceable, nor could it be inferred that he stood to earn any great amount of money from his role. The applicant submitted that it could not be inferred that he was well aware of what was going on and played a significant role in both enterprises.

The applicant submitted that it was not open to the sentencing judge to attribute liability to him on the basis of him being a member of a “joint criminal enterprise” engaged in by those involved in the substantive operation, i.e. the cultivation. The applicant submitted that such a finding implicitly carried with it a further finding that he (the applicant) must have been part of that enterprise to the extent of being involved in the substantive cultivation process. The applicant submitted that there was no evidence upon which such a scope of liability could be attributed to him. The applicant submitted that his plea to an offence of “knowingly take part” in the cultivation only carried with it an admission of being involved to such a degree so as to ground the definition of that offence. The applicant submitted that findings which went beyond the minimum level of culpability, admitting the elements of the offence, had to be inferred from the evidence and that in this case such evidence was not available.

The applicant submitted that findings as to an involvement in the electricity bypass and in the joint criminal enterprise of those persons involved in the substantive cultivation operation were not open on the evidence. The applicant submitted that as a result of his Honour’s approach, there was a miscarriage of discretion so that the Court ought proceed to make its own consideration of the appropriate sentence.

To the extent that his Honour relied upon the applicant being part of a joint criminal enterprise and therefore should accept some responsibility for the theft of electricity and for the sophistication and extent of the cultivation process, his Honour was in error. There was no evidence which connected the plaintiff to the theft of electricity and there was no evidence, either implicitly or expressly, of the applicant being part of a joint criminal enterprise which encompassed the whole cannabis cultivation exercise.

It is, however, not clear to what extent his Honour took those findings into account when assessing the objective seriousness of the applicant’s offending. His Honour’s finding was that in relation to both offences, the objective seriousness was somewhere between a point at midrange and halfway between midrange and the low end of what his Honour saw to be a limited scale. Such an assessment appears to be out of step with the anterior findings of responsibility for the theft of a substantial amount of electricity and being part of a joint criminal enterprise engaged in a substantial and sophisticated hydroponic cannabis production operation.

In any event, the factual findings impugned by the applicant were not open to his Honour and involved error on his part. Accordingly, Ground of Appeal 1 has been made out and in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 it will be necessary for the applicant to be resentenced.

The applicant noted that the role of the co-offender Le was not wholly described in the agreed facts tendered in his [the applicant’s] sentence proceedings. The agreed facts in the proceedings against Le revealed that he was seen to visit the Carlingford grow house on a number of occasions throughout August to November 2017 and that when arrested, he made admissions to having attended the residence every two-three days in order to water the plants and ensure the water storage containers were full. In exchange for doing so, he was paid $200-$300 per week and his family in Vietnam were paid $50-$100 per week.

The applicant noted that Le was sentenced for his role in his offence by Judge O’Brien on 4 May 2018 and was found to have participated in the operation in line with his admissions after having been recruited by others to whom he was “vulnerable”. The objective seriousness of his offending conduct was found to fall “well below midrange”. His culpability also extended to being liable for an offence of Use Electricity Without Authority (contrary to s 64(1) Electricity Supply Act 1995 (NSW)). This offence carried a maximum penalty of 5 years imprisonment which was dealt with on a Form 1. Judge O’Brien found that were it not for his plea of guilty, he would have sentenced him to a head sentence of 2 years. After a 25 per cent utilitarian discount was applied, the sentence which was imposed was imprisonment for 18 months with a non-parole period of 12 months.

The applicant further noted that when Judge Bennett SC addressed the issue of parity in his case he assessed his [the applicant’s] role as “more extensive” and noted the evidence of contrition and remorse shown by Le which he did not find present (to the same degree) in the applicant’s case. The indicative sentence imposed on the applicant for the Carlingford offence was 2 years 3 months which was 9 months higher than that of Le for the same offence. The applicant submitted that this was so even though there was no evidence of him actually entering the premises or tending to the crops, nor was there any extra charge dealt with via a Form 1. The applicant submitted that in those circumstances, his role could not properly be described as “more extensive” than that of Le, nor could his objective culpability be seen as greater than Le’s when one considered the additional liability provided for by the Form 1 offence.

The applicant submitted that his Honour erred in his approach to parity by not appropriately providing for the differences in criminality on sentence. He submitted that the nature and extent of his involvement in the Carlingford offence was much less than that of Le, as was his criminal conduct overall. He submitted that the indicative term imposed on him was 9 months higher than that imposed on Le and that this constituted a difference which was not properly justifiable by any difference in subjective circumstances. The applicant submitted that his sentence by comparison ought to have been less than Le’s and that this would have resulted in a lesser aggregate sentence.

In support of those submissions, the applicant relied upon the following cases: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 where the plurality (French CJ, Crennan and Kiefel JJ) said:

In Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 Gaudron, Gummow and Hayne JJ said:

In R v Barri [2004] NSWCCA 221 Dowd J (with whom Beazley JA and Greg James J agreed) said:

In Gill v R [2010] NSWCCA 236 McColl JA (with whom RS Hulme and Latham JJ agreed) said:

The applicant submitted that the instant case was one where the difference in culpability between him and Le did not justify a marked difference in sentences and that his [the applicant’s] overall criminality was so much less than that of Le as to give rise to a justifiable sense of grievance on his part.

It needs to be kept in mind that the appeal in this matter lies against the aggregate sentence not the indicative sentences. It can be accepted, however, that a useful start point is a comparison between the sentence indicated by his Honour in respect of Sequence 5 and the sentence imposed on Le, albeit taking into account the theft of electricity on a Form 1.

A recent statement of the principles applicable to parity can be found in the judgment of R A Hulme J (with whom Beazley P and Button J agreed) in Fenech v R [2018] NSWCCA 160 where his Honour said:

Apart from age (the applicant was 30 at the time of sentence and Le was 24) there is little difference in their subjective case. The major difference is in the position occupied by each of them in the criminal enterprise. Le’s involvement was that of a crop sitter who attended only the Carlingford location on a part time basis, i.e. every two or three days, for which he received a modest payment. It is not surprising that Judge O’Brien characterised his position in the offending as being well below the midrange. His duties were modest in the extreme, i.e. watering the plants and ensuring that the water storage containers were full.

By way of contrast, the position of the applicant was, as Judge Bennett SC found, clearly above that of a crop sitter. A proper analysis of the agreed facts fully supports that conclusion by his Honour.

Unlike Le, the applicant had responsibilities which extended not only to the Carlingford property, but also to the Parramatta property. In October 2017, he assisted in the hiring of a Hiace van which was used to transport heavy items to the Parramatta property where the applicant assisted in the unloading. Again on 19 November 2017, the applicant participated in the transportation of objects out of a Hiace van into the Parramatta premises. Whatever he was doing in those premises involved the wearing of gloves, which were found on those premises and which had the applicant’s DNA inside. There were containers of fertiliser and bags of a growing medium in the Parramatta premises which were identical to similar commodities stored in storage units in Padstow, which had been rented by the applicant. It was also apparent that the applicant had had dealings with the real estate agents responsible for the letting of the Parramatta premises and that these dealings had included on at least one occasion the payment of a substantial amount of rent, i.e. $2,350.

From August 2017, there was an association between the applicant and the Jenkins Road premises where a motor vehicle registered to him was parked. In November 2017, the applicant hired a Hiace van and as with Parramatta, the applicant was engaged in some unloading or loading exercise in relation to the movement of heavy objects either to or from the Jenkins Road premises. The applicant appeared to have some relationship with Le in that there was telephone contact between them in December 2017. It was common ground that these activities were carried out for financial gain, although the precise amount could not be established.

When one has regard to those matters, it is overwhelmingly clear that the position occupied by the applicant in the criminal group was considerably higher than that of Le. The applicant was trusted to make payments as he did in respect of motor vehicles, storage units and the payment of rent for the Parramatta property. Although the precise details of his activities are not known, they encompassed two properties not just one. Given the sophisticated hydroponic set up at each of the premises, it would have been obvious to the applicant that significant criminal activity was taking place at each of the premises. When those matters are taken into account, it is clear that the roles of the applicant and Le were very different and that that of the applicant was more important. It also follows that when his Honour was setting out the indicative sentence for the offending at the Jenkins Road premises, he was also obliged to take into account in the formulation of that sentence that this was not the only criminal activity which involved the applicant but that he was also at the same time engaged in criminal activity at the Parramatta premises.

A comparison of the positions of Le and the applicant make it clear that the activities of the applicant were more significant and important. This is sufficient to distinguish his position from that of Le and to account for his indicative sentence in respect of the Jenkins Road premises being greater than that of Le.

This ground of appeal has not been made out.

Given the applicant’s success in relation to Ground 1, there is no useful purpose to be served in proceeding with Ground 3. However, the submissions in relation to Ground 3 can properly be taken into account as going to resentence and in particular, whether a lesser sentence is warranted in law.

In submissions the applicant accepted that in the case of an aggregate sentence, the principal focus in determining whether it was excessive is whether the sentence reflects the total criminality of the offending. The applicant accepted that indicative sentences were not themselves amenable to appeal. The applicant further accepted that while indicative sentences might be a guide to whether error is established in an aggregate sentence, the fact that indicative sentences are excessive did not necessarily mean the aggregate sentence is excessive.

The applicant submitted that in this case the combination of the length of the indicative terms and the manner in which they were notionally accumulated had resulted in a sentence which was manifestly excessive when one had regard to the total criminality of his conduct.

The applicant submitted that regard could be had to statistics extracted from the Judicial Information Research System compiled by the Judicial Commission of NSW (Sentencing Statistics) as a yardstick against which a particular sentence could be measured in order to compare lengths of sentences imposed. The applicant accepted, however, that the usefulness of such statistics was limited in that they said nothing about the details of the offences or of the circumstances of the offenders reflected in them. The applicant accepted that on their own such statistics provided little guidance for the purpose of sentencing. The applicant did, however, submit that despite these limitations, statistics could nevertheless assist in identifying a pattern of sentencing that might be indicative of an available range of sentences in a broad sense.

By way of illustration, the applicant referred to 126 sentences imposed between January 2008 and September 2018 relating to offences involving a large commercial quantity of a prohibited substance. 86.5 per cent of offenders received fulltime custodial sentences of which 85 per cent received a sentence of between 2 and 4½ years and 25 per cent received sentences of 4½ years or more. The applicant submitted that by reference to those statistics, the sentences imposed in this matter might be said to be high in that sentences of 4½ years or more were in the top 25 per cent.

The applicant submitted that in the case of an aggregate sentence, although the focus in determining a ground alleging manifest excess was whether the sentence reflected the total criminality, one still had to take into account the principles of accumulation, concurrency and totality. The applicant submitted that the requirements of Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 also remained applicable in that the criminality in each offence needed to be assessed separately and the principle of totality needed to be applied.

The applicant submitted that the potential for accumulation of the notional sentences could be examined to determine whether the aggregate sentence represented a sound exercise of sentencing discretion. In making that submission, the applicant accepted that the absence of any requirement to specify the beginning and end dates for each notional sentence might make it more difficult to demonstrate a relevant error in applying the totality principle.

While accepting that subject to the application of established principle, questions of accumulation were discretionary, the applicant submitted that even at the first stage of considering the appropriate penalty for each individual sentence, care had to be taken to ensure that an offender was not subject to double punishment for some element common to two or more offences and that this was not overcome by making sentences concurrent.

Applying those principles to the facts of this case, the applicant submitted that an aggregate sentence of 5 years and 6 months with a non-parole period of 3 years and 6 months, having regard to the indicative sentences, meant that the applicant’s sentences were accumulated by either 3 years and 3 months (on top of the commercial quantity sentence) or 1 year (on top of the large commercial quantity sentence). The applicant submitted that the relevance of that calculation was the need to have regard to the fact that there was some overlap between the facts and circumstances of each offence with the one continuing episode of offending conduct spanning four months from August to December 2017 and the other (Parramatta) spanning approximately two months. In making that submission, the applicant accepted that the sentence for the Parramatta offence also needed to recognise the additional effect of the Form 1 offence.

The applicant submitted that the combination of the length of the indicative sentences and the extent of their (notional) accumulation resulted in an aggregate sentence that was excessive having regard to the total criminality of the applicant’s conduct, i.e. that the aggregate sentence reflected an assessment of total criminality that was greater than that which the facts justified.

As a result of the applicant’s success in Ground 1, the assessment of objective criminality has to be made without there being any reference to the theft of electricity and the applicant being a member of a joint criminal enterprise in the sense that he was part of a senior group responsible for the cultivation of cannabis at the two locations. In carrying out that exercise, however, it is clear that the objective seriousness of the applicant’s offending remains below midrange but certainly well above the bottom of the range. This is apparent when one has regard to the matters which separate the criminality of the applicant from that of Le (at [51]-[52] hereof).

As the analysis of the actions of the applicant set out in Ground 2 makes clear, his actions in relation to both locations where cannabis was grown was significant (whether or not one regards it as a single criminal activity carried on at two locations or as two separate episodes of criminal activity). He was hiring vehicles, transporting heavy objects/equipment, performing work at or about both premises, paying substantial sums of money by way of rent in respect of the Parramatta premises and paying for and hiring storage facilities. Even though it is not known precisely what activities the applicant was engaged in, it is well open to find beyond reasonable doubt that these activities were directed at advancing the success of the criminal activity at both locations, i.e. the cultivation and sale of the cannabis.

For example, even after the police shut down the two cannabis operations at Parramatta and Carlingford, the applicant was still engaged in some level of criminal activity which involved the leasing of the two storage units at Padstow in May 2018. While the applicant was not charged with any offence directly related to the use of those storage facilities, the continuation of some activity beyond December 2017 which involved the storage of fertiliser and similar substances provides some insight into the applicant’s role in the criminal activity.

Far from being a mere transporter, the agreed facts show a much wider range of activity on the part of the applicant, which included the expenditure of money and inferentially allow a finding that the persons higher up in the criminal hierarchy engaged in the cannabis production reposed some trust in the applicant.

Accordingly, I am satisfied beyond reasonable doubt that while the objective criminality of the applicant’s offending is below midrange, it is substantially above that of Le and was one of some importance to the cannabis cultivation activity.

It follows that on resentence, I have reached a conclusion as to the objective seriousness of the offending similar to, if not slightly above, that made by the sentencing judge. Implicit in that finding is a rejection of the applicant’s submission that the proper assessment of the objective seriousness of the offending is at the bottom of the range and less than that of Le. It is that finding which was fundamental to the applicant’s challenge to the sentencing judge’s finding as to the objective seriousness of the offending. Once that is rejected, most of the challenge to the aggregate sentence falls away.

Having determined that the objective seriousness of the offending was substantial, it is then simply necessary to apply sentencing principles having regard to those findings of the sentencing judge which were not challenged in this appeal.

The maximum penalties for each offence were substantial, as was the standard non-parole period, for the large commercial quantity offence. When the indicative sentences and the aggregate sentence are looked at against those guideposts and having regard to my finding as to the objective seriousness of the offending, they are well within an appropriate sentencing range. This is particularly so when one has regard to the Form 1 offence to be taken into account with the large commercial quantity offence.

When regard is had to the principles relevant to sentencing for offences of this kind, questions of denunciation and the application of general and specific deterrence are important. This is particularly so when one has regard to the sophistication of the cannabis growing enterprise carried out at each location.

There is nothing particularly persuasive about the applicant’s subjective case. Apart from the fact that he had had no previous convictions, there were no other compelling features. The motivation for the offending was financial gain. In that regard, it matters not that part of that motivation may have been to assist his family in Vietnam. There was no psychological or mental element which needed to be taken into account. The fact that the applicant was not fluent in English was already taken into account by the sentencing judge when finding special circumstances. The suggestion in the letter from the applicant’s partner to the effect that he did not realise that he was engaged in illegal conduct until it was too late is, with respect, fatuous. The indicia of illegal conduct were overwhelmingly obvious at each location. There is nothing in the statistics relied upon by the applicant which indicate that the sentence imposed by his Honour was outside the available range of sentences.

When one has regard to the principle of totality, the indicative sentences are well within his Honour’s discretion and are consistent with the available guideposts. When regard is had to the aggregate sentence, it is clear that there was a significant degree of notional concurrency having regard to the indicative sentences.

Accordingly, when one takes into account the objective seriousness of the offending, the principles of sentencing and the relative weakness of the applicant’s subjective case, I am not persuaded that on resentencing any lesser sentence is warranted in law.

Accordingly, the orders which I propose are:

ROTHMAN J: I agree with the orders proposed by Hoeben CJ at CL. As I explained in Downes v R [2020] NSWCCA 167, there are circumstances where the norm of equal justice is breached and the error is other than manifest.

An error that gives rise to disparity, or an unjustified difference, may only become obvious or clear after detailed analysis of the comparable, relevant circumstances of the two offenders; or the error may be identifiable after proper analysis.

However, in the current situation, the alleged disparity is not manifest and would need to be. There is no justifiable sense of grievance. The parity principle has been applied and the difference between the two co-offenders is a result that rationally reflects the relevant difference in circumstances of offending and the subjective circumstances of each offender.

I otherwise agree with the reasons for judgment of Hoeben CJ at CL. In particular, even though error has occurred in relation to Ground 1, I consider, in light of the objective circumstances of the offence committed and the subjective circumstances of the offender that, having regard to the guideposts of the maximum sentence for each offence and the standard non-parole period for Sequence 6 (large commercial quantity), the aggregate sentence is lenient and no lesser sentence is warranted in law.

FAGAN J: I agree with the Chief Judge.