El Kheir v R

1. [1]

   HOEBEN CJ at CL: I agree with Leeming JA and the orders which he proposes.

2. [2]

   LEEMING JA: The applicant, Mr Fredi El Kheir, seeks leave to appeal against the sentence imposed upon him following his conviction by a jury on one count of manufacturing a prohibited drug (methylamphetamine) not less than a large commercial quantity contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW), and 3 counts of possessing precursors to be used in the manufacture of a prohibited drug contrary to s 24A of that Act.

3. [3]

   Sentence was imposed by the District Court on 10 May 2018. The sentencing judge imposed a sentence of imprisonment of 10½ years, with a non-parole period of 7 years, for the manufacturing count. Fixed term sentences of imprisonment of 2 years were imposed in respect of the counts of possessing precursors. All four sentences commenced on 31 January 2018. Thus the three sentences for possession of precursors were not only wholly concurrent with each other, but also were wholly subsumed by the sentence for manufacturing a large commercial quantity.

4. [4]

   The notice of appeal was filed more than a year after sentence was imposed. Against the possibility that a further extension of time was required, and without any opposition from the Crown, the hearing was conducted on the basis that an extension if necessary would be granted. The orders I propose include an extension of time to the extent one may be needed.

5. [5]

   The only proposed ground of appeal is that the applicant has a justifiable sense of grievance in light of the sentence imposed upon his co-offender, Matthew James. In order to avoid confusion with the applicant’s counsel, I shall refer to him as the co-offender.

6. [6]

   The co-offender had pleaded guilty to a differently framed count of manufacturing a large commercial quantity of methylamphetamine contrary to s 24(2) of the Drug Misuse and Trafficking Act. Although the indictment was not in evidence, it appears from the judgment of the Court of Criminal Appeal mentioned below that it included express reference to a weight of 12.84 kg. The co-offender also pleaded guilty to two counts of possessing an unauthorised pistol contrary to s 7(1) of the Firearms Act 1996 (NSW) and one count of possessing an unauthorised firearm contrary to s 7A of that Act. Importantly, in imposing sentence on him, the District Court (constituted by Delaney ADCJ) took into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a further five offences on a “Form 1”. Three of those five offences were counts of possessing a precursor, and corresponded to the three counts for which the applicant was found guilty. The remaining offences were one count of supplying a prohibited drug and a further count of dealing with property suspected of being proceeds of crime.

7. [7]

   The sentence imposed by the District Court of 10 years with a non-parole period of 5 years and 9 months contained a significant arithmetic error, was manifestly inadequate, and suffered from other deficiencies which need not be mentioned. The Crown’s appeal against that sentence was allowed: R v James [2017] NSWCCA 287. This Court quashed the sentence imposed by the District Court and imposed an aggregate sentence of imprisonment for 12 years and 3 months with a non-parole period of 8 years. This Court indicated, as required by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act, that for the manufacturing count a sentence of imprisonment for 10 years and 6 months with a non-parole period of 6 years and 10 months would have been imposed. The Court also made it clear that the indicative sentence reflected a 25% discount for the co-offender’s early plea: at [78]. Implicitly, that indicative sentence also took into account the co-offender’s acknowledgement of guilt in respect of the five offences on the Form 1. The opening paragraphs of the judgment appear to record the terms of the indictment, including “Sequence 1 – Manufacture a large commercial quantity of methylamphetamine (12.84kg) contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW)”.

The circumstances of the applicant’s and the co-offender’s offending

1. [8]

   Mr James QC, who appeared for the applicant in this Court, but not in the Court below, acknowledged the accuracy of the summary of facts contained in the Crown’s submissions. Insofar as they bear on the relative roles of the applicant and the co-offender, they are relevant to this appeal, and in the interests of transparency it is as well to reproduce parts in their entirety.

2. [9]

   There followed a description of the two manufacturing processes found in the garage, at a level of detail which need not be reproduced or summarised. It suffices to say that what was found was consistent with the 12.84 kg of mixture to the manufacture of which the co-offender pleaded guilty. Police also found items of scientific equipment used in the manufacture of methylamphetamine, various commonly available chemicals such as acetone, caustic soda and distilled water, and the precursors (pseudoephedrine, hypophosphorous acid and iodine) giving rise to the three precursor offences with which the applicant and co-offender were charged.

3. [10]

   The statement continued:

Reasons of the sentencing judge

1. [11]

   The sentencing judge observed that the laboratory revealed “considerable planning and organisation” and “was a sophisticated and large manufacturing operation”. No issue was taken with her Honour’s assessment that the applicant’s role was an “active and important one”. Her Honour described this as “considerably more than the purchaser and transporter of items or a gofer used in the manufacture and rather played an important role in the criminal enterprise”. The factual findings upon which that assessment was based were as follows (again, no issue was taken with any of them):

2. [12]

   The sentencing judge expressly had regard to the sentence imposed upon the co-offender, and did so in response to submissions made by counsel then appearing for Mr El Kheir based on parity. Her Honour addressed parity as follows:

Applicable principles relating to parity

1. [13]

   I did not understand there to be any disagreement at the level of principle. The so-called “parity principle” requires that like offenders should be treated in a like manner, and allows for different sentences to be imposed to reflect different degrees of culpability and/or different circumstances: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [65]. The principle is broader than cases where persons are charged with the same offences arising out of the same criminal conduct or enterprise, and in cases where, say, offenders have been charged with different crimes, there can be significant practical difficulties in applying the principle: Green at [30]. In the present case, those difficulties are lessened, insofar as both the applicant and the co-offender were charged with the same crimes of manufacturing a prohibited drug and possessing precursors.

2. [14]

   The issue, as correctly formulated in the notice of appeal, is whether the sentence imposed on the co-offender gave rise to a “justifiable sense of grievance”: Lowe v The Queen (1984) 154 CLR 606 at 610. In Green at [31], French CJ, Crennan and Kiefel JJ said:

3. [15]

   It is necessary in order for this ground to be made out for there to be “marked disparity”, and Mr James expressly accepted as much. Further, it is significant that the sentencing judge adverted to parity. In Lloyd v R [2017] NSWCCA 303 at [90], RA Hulme J collected authorities for the proposition that where a sentencing judge has recognised the importance of the parity principle and ostensibly given effect to it, this Court will be cautious to intervene and “any disparity must be gross, marked, or glaring in order to justify such intervention”. Mr James did not cavil with this.

4. [16]

   Mr James accepted that given the narrowness of the appeal in this Court, this Court’s consideration was confined to a comparison of the two sentences imposed (“We’re happy to have the proposition that the ground of appeal is to be considered only on the basis of a proper comparison between the two differing sentences and their circumstances”).

The submissions in this Court

1. [17]

   Mr James advanced the following submissions. First, he placed emphasis upon the different weights of drug manufactured as contained in the separate indictments. I understood him not to have disputed, and indeed in substance to have accepted, that both indictments were based on precisely the same drug found in the garage. However, the indictment to which the co-offender pleaded guilty had referred, in terms, to manufacturing 12.84kg of prohibited drug. The indictment on which the applicant went to trial did not refer to any particular weight of methylamphetamine manufactured by him, save it was not less than a large commercial quantity. Importantly, for this aspect of the applicant’s case, at the proceedings on sentence, the prosecutor made it plain that there had been two processes of manufacture, with some which had been advanced but not completed, “so we got a mishmash of product on an admixture basis of about 12 kilograms. The Crown does not rely upon that”. The prosecutor went on to say that by reference to the evidence that 2693.7 grams could have been achieved from what was cooking. Sentencing proceeded on that basis.

2. [18]

   Mr James submitted that the “admixture” provision in s 4 of the Drug Misuse and Trafficking Act applied in all circumstances, including sentencing, with the effect that the applicant’s sentence imposed for manufacturing 2693.7 grams of methylamphetamine was to be compared with the co-offender’s sentence imposed for manufacturing some 12.84 kilograms of methylamphetamine. He said that it was irrelevant that the underlying offending conduct of both men was manufacturing the very same methylamphetamine:

3. [19]

   Indeed, Mr James went further and submitted that the Crown’s attempt in the present case to advance the proposition that the 2693.7 grams was referable to the same 12.84 kilogram admixture to which the co-offender had pleaded guilty amounted to resiling from the way the trial and sentencing process had taken place:

4. [20]

   Mr James candidly acknowledged the consequences of his submission:

5. [21]

   This same distinction between the weight of product and the amount of pure drug which could have been obtained, was addressed in this Court’s decision in R v James where Hoeben CJ at CL, with whom Bathurst CJ and Button J agreed, said at [33]:

6. [22]

   Mr James submitted that it was a matter of prosecutorial discretion to choose the weight of the prohibited drug on which to proceed. Therefore, the first point of difference between the applicant and the co-offender was that the co-offender was sentenced on the basis of manufacturing more than 12 kilograms of methylamphetamine while the applicant was sentenced on the basis of manufacturing some 2 kilograms of the same drug. While accepting that the quantity manufactured is not determinative when assessing the objective seriousness of an offence, Mr James emphasised that it remained a very material consideration: Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104 at [132]. He submitted that the “significant difference” in the amounts manufactured ought to have resulted in the imposition of a sentence which was “significantly below” that of his co-offender.

7. [23]

   The Crown submitted that that was not one of the distinctions which had been advanced to the sentencing judge, to which Mr James’ response was that it was unnecessary to do so, having regard to what the Crown had indicated at the commencement of the sentencing proceedings.

8. [24]

   Secondly, Mr James relied upon the fact that the co-offender had had the same three precursor offences taken into account in imposing sentence. The point was that the indicative sentence of 10½ years with a non-parole period of 6 years and 10 months must have been to some unknown extent inflated by reference to the “Form 1” offences: “Undoubtedly, this Court would have increased [the co-offender’s] otherwise appropriate sentence substantially, to reflect the criminality of the Form 1 offences”. Of course, there were no Form 1 offences for the possession of precursors taken into account in sentencing the applicant, because he was separately charged with and sentenced for those offences. The sentencing structure imposed by the District Court has the result that those separate sentences were wholly concurrent with the sentence for the manufacturing count. Understandably, no complaint was made about that.

9. [25]

   Thirdly, Mr James acknowledged that there were some differences in the subjective cases between the two men. He acknowledged that it had been accepted that the co-offender was remorseful and had good prospects of rehabilitation, which findings were absent from the applicant’s case. Further, the applicant was on conditional liberty at the time of committing the offence. Save for those things, he relied upon the sentencing judge’s finding that the co-offender had a “fairly similar subjective case” compared to that of the applicant. He pointed to a statement concerning the applicant’s mental health made by the sentencing judge:

10. [26]

    That, in Mr James’ submission, was a point of distinction operating in the applicant’s favour.

11. [27]

    The Crown provided a helpful summary table comparing the objective and subjective aspects of the offending by the applicant and the co-offender. The Crown emphasised that both men were sentenced for manufacturing precisely the same drug, but did not otherwise engage with the (admittedly relatively brief) submissions based on the admixture provisions on which Mr James relied. The Crown’s essential submission was that, based on the indicative sentence imposed by the Court of Criminal Appeal on the co-offender for the manufacturing charge, the undiscounted starting point for that sentence was 14 years with a non-parole period of some 9 years and 1 month. Given that significant disparity, there was no substance to the sole ground of appeal.

Consideration

1. [28]

   I start with Mr James’ first point, based on s 4 of the Act relating to “admixtures”. Nothing is found in the passage of her Honour’s reasons concerning the different amount on which the co-offender had been sentenced for the good reason that no such point was taken before the sentencing judge. It is not surprising in those circumstances that the sentencing judge proceeded to observe, when dealing with parity, that the 12.84 kilograms to which the co-offender pleaded guilty reflected a pure weight of methylamphetamine of “2.69 kilograms as is here”.

2. [29]

   There was no challenge to the sentencing judge’s finding that the quantity of 2.69kg of pure methylamphetamine relied upon by the Crown was derived from the 12.84kg of admixture found on the premises. Her Honour referred to Delaney ADCJ’s finding when sentencing the co-offender that although the quantity of the prohibited drug particularised in the co-offender’s case was 12.84kg, the pure weight of methylamphetamine being manufactured was 2.69kg – the exact same quantity and purity of the prohibited drug relied upon by the Crown in the applicant’s case.

3. [30]

   There was no error in her Honour proceeding on that basis, because for the reasons which follow I have concluded that Mr James’ principal submission, based on s 4 of the Drug Misuse and Trafficking Act, is bad in law. Although the point was not taken before the sentencing judge, it is best dealt with on its merits. It is as well, given the nature of the submission, to return to first principles.

4. [31]

   The offence created by s 24(2) of the Drug Misuse and Trafficking Act refers only to taking part in the manufacturing of a commercial quantity of a prohibited drug. Section 33(2)(a) provides that the maximum penalty for the offence created by s 24(2) is a fine of 3,500 penalty units or imprisonment for 20 years. However, in the event that the court is satisfied that the offence involved not less than a large commercial quantity, then s 33(3)(a) provides that the maximum penalty is a fine of 5,000 penalty units or imprisonment for life. The large commercial quantity for the prohibited drug methylamphetamine is 0.5 kg, the commercial quantity is 0.25 kg and smaller weights are specified for each of the “traffickable quantity”, “small quantity” and “indictable quantity” of the drug (see s 33(4) and the row in Schedule 1 for “Methylamphetamine”).

5. [32]

   A “prohibited drug” is defined in s 3 to mean “any substance, other than a prohibited plant, specified in Schedule 1”. “Substance” is defined inclusively in the same section to include “preparation and admixture and all salts, isomers, esters or ethers of any substance and all salts of those isomers, esters and ethers.”

6. [33]

   Section 4, on which Mr James’ submission is based, provides:

7. [34]

   “Admixture” is not a word in common usage. It derives from much earlier cognate legislation. A similar definition of “substance” (to include “preparation or admixture of any substance”) was found in s 3 of the Poisons Act 1952 (NSW); see now s 4 of the Poisons and Therapeutic Goods Act 1966 (NSW). The word was also found in s 18(2) of the Police Offences Amendment (Drugs) Act 1927 (NSW). That legislation directly criminalised, inter alia, the manufacture of opium (s 19(1)(a)) and authorised the making of regulations to prohibit the manufacture of “any drug to which this Part of this Act applies” (s 20(1)(a)). That Part applied to four drugs in addition to opium: morphine, cocaine, eegonine, and heroin “and any preparation, admixture, extract or other substance containing not less than one-fifth percentum of morphine or one-tenth per centum of eegonine, cocaine or [heroin]”: s 18(2).

8. [35]

   It is clear from the prohibited drugs to which “admixture” applies (and has for many years applied) that it extends to mixtures of powders, mixtures of liquids and cases where a solid is dissolved in a liquid. English in this respect lacks the precision of Latin, where Roman law distinguished between confusio and commixtio: see R Hickey, “Dazed and Confused: Accidental Mixtures of Goods and the Theory of Acquisition of Title” (2003) 66 Modern Law Review 368 at 369-372. For present purposes, I regard “admixture” and “mixture” as synonymous, and will refer to the former only when dealing with the legislation.

9. [36]

   There may be an element of overlap or duplication in the provisions concerning admixtures. It will be seen that there may be two ways in which provisions relating to an “admixture” apply: (a) directly through s 4, by requiring references in the statute to “prohibited drug” to be read as references to admixtures containing a prohibited drug, and (b) indirectly, because the definition of “prohibited drug” turns on “substance” which itself includes an admixture. The precise effect of the provisions need not be analysed in any detail. Indeed the definitions in s 3 were not analysed in the parties’ submissions in this Court – the applicant’s written submissions did not mention any of these provisions, while his oral submissions were confined to s 4 (contrast for example the concession recorded in Woods v R [2017] NSWCCA 5 at [21(e)], which was based exclusively on the definitions in s 3). For present purposes, the consequence is simple enough. The Act requires identifying the weight of a prohibited drug, so as to determine whether the amount in issue is, inter alia, a commercial quantity, a large commercial quantity or an amount which is less than a commercial quantity. In determining the weight, what matters is not the weight of the pure drug which might be derived from a quantity of powder which has been “cut down” with some other substance, or from a volume of liquid in which the crystalline form of a prohibited drug has been dissolved and from which it might be precipitated. What matters is the weight of the impure mixture containing the prohibited drug.

10. [37]

    Section 4 of the Drug Misuse and Trafficking Act is an interpretation provision. It applies to references to “prohibited drugs” elsewhere in the Act. No other sense can be given to its opening words “In this Act, a reference to a prohibited drug includes ...”. Section 4 is not a deeming provision which applies in all circumstances. Its effect is limited.

11. [38]

    Confined as it is to references to “prohibited drugs” in the Drug Misuse and Trafficking Act, s 4 has real work to do. In particular, it will have a powerful effect on the availability of more serious charges available when a “commercial quantity” or a “large commercial quantity” of a prohibited drug is manufactured or supplied. A dilute mixture, which if purified might fall well short of a commercial quantity, might nonetheless sustain a conviction of a commercial quantity or even a large commercial quantity. What matters for the purpose of the elements of the offences created by the Drug Misuse and Trafficking Act, by reason of s 4, is the weight of the mixture, not the weight of the prohibited drug contained within the mixture. Similar consequences may apply in including the weight of cardboard intended to be ingested which has been impregnated with LSD should contribute to the weight of the prohibited drug: see Finch v R [2016] NSWCCA 133 at [117]-[144]. In that way, s 4 alters the elements of the offences created by the Drug Misuse and Trafficking Act. To that extent, I accept Mr James’ submission.

12. [39]

    But it does not follow that for the purpose of sentencing, the court is to shut its eyes to the facts giving rise to the offences of which the offender has been found guilty or to which he or she has pleaded. On that point, I do not accept Mr James’ submissions made orally and in writing after the hearing.

13. [40]

    As the Crown submitted in supplementary written submissions supplied on 29 November 2019 in accordance with the Court’s leave, the purity of a mixture manufactured by an offender is an objective factor that affects the seriousness of the offence within the meaning of s 21A(1)(c) of the Crimes (Sentencing Procedure) Act 1999. How could it be otherwise? There is a material distinction between the objective seriousness in manufacturing, say 5 litres of a liquid from which 4 kilograms of methylamphetamine can readily be extracted, and manufacturing 5 litres of a liquid from which 1 gram of methylamphetamine can be extracted. Both instances amount to manufacturing a large commercial quantity of a prohibited drug. However, the criminality of the former exceeds that of the latter. The harm to the community, and the financial gain potentially available to the offender, are many times greater in the case of the former as opposed to the latter. But the Drug Misuse and Trafficking Act merely specifies the elements of the offences created by it, and the maximum penalties and standard non-parole periods applicable to those offences. That Act does not otherwise speak to the sentencing discretion, which falls to be exercised according to the Crimes (Sentencing Procedure) Act 1999 (NSW) and judge-made law.

14. [41]

    In particular, the interpretation provision in s 4 of the Drug Misuse and Trafficking Act 1985 does not diminish the obligation imposed by s 21A(1)(c) of the Crimes (Sentencing Procedure) Act 1999, which provides that:

15. [42]

    Section 4 of the Drug Misuse and Trafficking Act is merely an interpretation provision applicable to that statute. Section 4 is not expressed to circumscribe the matters to which regard may be had when imposing sentence including as regulated by the Crimes (Sentencing Procedure) Act. Still less is it expressed to circumscribe the matters to which the sentencing court must have regard, such as those in s 21A(1)(c). The purity of an “admixture” which is taken to be a large commercial quantity of a prohibited drug is one such matter.

16. [43]

    It may also be noted, for completeness, that acceptance of Mr James’ construction would lead to the conclusion that the prosecutor had been wrong not to rely on the 12.84 kilograms mixture, and the sentencing judge had been wrong to accede to that course. It would also lead to the conclusion that this Court had erred when allowing the Crown’s appeal against the sentence imposed on the co-offender in having regard to the pure quantity of methylamphetamine which could be obtained from the mixture. And it would lead to the conclusion that many other decisions of this Court disclose error. It would mean that whenever consideration is given to the purity of drugs in a supply or manufacture case, regard is being had to an irrelevant consideration. Thus ground 1 of the appeal in Yacoub v R [2019] NSWCCA 47 at [31]-[36], complaining that the sentencing judge had an erroneous understanding of the purity of the methylamphetamine supplied, would have been decided per incuriam. It would have been irrelevant for there to have been reference to the purity of close to 50% of the 706.8 grams of mixture which contained methylamphetamine, when Mr Nguyen had pleaded guilty to manufacturing a large commercial quantity, namely 706.8 grams, of that prohibited drug, in Nguyen v R [2019] NSWCCA 213. Examples could very readily be multiplied.

17. [44]

    I would accept Mr James’ submission that the co-offender was sentenced for the manufacture of 12.84kg of methylamphetamine in an admixture whereas the applicant was sentenced on the basis that he had manufactured 2.69kg of pure methylamphetamine yet to be extracted from the admixture. But it does not follow that there would on this basis be a justified sense of grievance.

18. [45]

    Contrary to Mr James’ submissions, the sentencing judge was not required to proceed on the basis only that the co-offender had pleaded guilty to manufacturing an amount of prohibited drug some five times as large as the amount on which sentence was to be imposed on the applicant. Had her Honour taken that course, she would have fallen into error. Her Honour was entitled and in fact required to have regard to the fact that sentence was imposed on the co-offender for a larger quantity of a more dilute admixture, from which precisely the same quantity of pure methylamphetamine could have been obtained as that on which the applicant was to be sentenced.

19. [46]

    The foregoing is a complete answer to Mr James’ first point based on s 4. However, there are further matters which detract from that point. Both the applicant and the co-offender were charged with the same offence of manufacturing a large commercial quantity of methylamphetamine contrary to s 24 of the Drug Misuse and Trafficking Act. This is not a case where the quantity of prohibited drug manufactured was border-line as between a “large commercial quantity” and the lesser offence of manufacturing a prohibited drug not less than a “commercial quantity”.

20. [47]

    The quantity of a prohibited drug, although material, is not a determinative factor: see for example Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [33]; Roberts (a Pseudonym) v R [2019] NSWCCA 102 at [51]. So much is trite; after all, the maximum sentence applicable to both the applicant and the co-offender was life imprisonment, and the same would have been true if the applicant had manufactured only a fifth of the quantity. The sentencing judge correctly proceeded on the basis that quantity was not the only relevant factor in assessing the objective seriousness of the offending conduct:

21. [48]

    In particular, a highly relevant factor is the offender’s role and level of participation in the offence. In Melikian v R [2008] NSWCCA 156, Price J said (Spigelman CJ and Hidden J agreeing) at [42]:

22. [49]

    That proposition was accepted in Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318; 247 A Crim R 272 at [51]-[52] (RA Hulme J, Basten JA and Button J agreeing). In Lam v R; Lam v R [2015] NSWCCA 87, Schmidt J said (Meagher JA and Bellew J agreeing) at [72]:

23. [50]

    There was no challenge to the sentencing judge’s findings that the applicant had engaged in a sophisticated and large manufacturing operation that required considerable planning and organisation or that the offender played “an important role in the criminal enterprise” albeit a lesser role than the co-offender.

24. [51]

    All those matters further discount the force of Mr James’ submission that the applicant’s sentence should have been “significantly below” that of the co-offender.

25. [52]

    Mr James’ second and third points fall in a different category. In determining whether the applicant entertains a justified sense of grievance, it is correct to acknowledge that the indicative sentence imposed on the co-offender for manufacturing took into account five other offences, all of which were serious. There is, however, no reason to doubt that the sentencing judge was conscious of the difference in the sentence structures imposed in relation to the three precursor counts, which reflected the different ways in which guilt had been determined – a plea incorporating a Form 1 on the part of the co-offender, as opposed to the applicant standing trial on the precursor offences. It is to be borne in mind that the sentences imposed on the applicant for the precursor counts did not of themselves make any separate contribution to his total overall sentence. That cannot be said of the co-offender. Of course no complaint based on parity has been made, nor could it be, in relation to the sentences imposed for the precursor offences. But those sentences cannot be entirely put to one side for the purposes of parity. They operate to heighten the difficulty faced by the applicant in establishing the requisite marked disparity.

26. [53]

    It is also relevant to have regard to what was said about the applicant’s mental health. But this aspect of the appeal also has limitations, and Mr James very properly acknowledged the limited nature of the finding, which fell short of a finding that the applicant’s sentence would be more onerous than that experienced by the co-offender (“I do not apprehend by that that she is saying more onerous than that experienced by Matthew James. It’s simply more onerous than the general run of prisoners”).

27. [54]

    The difficulty confronting Mr James’ submission is that it is necessary to look at all of the relevant facts when assessing whether the applicant suffers from a justified sense of grievance. When that is done, it is clear that there are signal differences between the applicant’s circumstances and those of his co-offender, especially:

    1. (1)

       The comparison is between the sentence imposed on the applicant of 10½ years imprisonment with a non-parole period of 7 years, with an indicative undiscounted sentence of 14 years with a non-parole period of just over 9 years.

    2. (2)

       The applicant was on conditional liberty at the time of committing the offence.

    3. (3)

       The co-offender’s sentence incorporated favourable findings of contrition and remorse, which were not made in relation to the applicant.

    4. (4)

       The co-offender was found to have good prospects of rehabilitation, while the applicant was found only to have moderate prospects of rehabilitation.

28. [55]

    When all those matters are borne in mind, I would not conclude that there could be any justified sense of grievance on the part of the applicant. In order to compare like with like, the comparison must be with the undiscounted indicative sentence of 14 years. That is 133% of the sentence imposed upon the applicant – an additional 3½ years. The non-parole period is more than an additional 2 years. Of course, that longer sentence incorporates a finding that the co-offender’s offending was objectively more serious than that of the applicant, and it also takes into account five serious offences. But when it is borne in mind that the co-offender’s subjective case was considerably better than that of the applicant, the requisite marked disparity is not made out.

Orders

1. [56]

   Accordingly, I propose the following orders:

2. [57]

   LONERGAN J: I agree with Leeming JA and the orders which he proposes.