Dawson (a pseudonym) v R

1. [1]

   HOEBEN CJ at CL: I agree with Wright J and the orders which he proposes.

2. [2]

   BELLEW J: I agree with Wright J and the orders that he proposes.

3. [3]

   WRIGHT J: The applicant, Mr Dawson (a pseudonym), seeks leave to appeal against an aggregate sentence imposed on him on 14 April 2020 by Herbert DCJ in the District Court at Parramatta.

Background

1. [4]

   On 18 December 2019, the applicant pleaded guilty in the Local Court at Campbelltown to supplying not less than the commercial quantity of a prohibited drug, knowingly taking part in the supply of not less than the commercial quantity of a prohibited drug, five offences of supplying a prohibited drug, possessing an unauthorised firearm and possessing an unauthorised prohibited firearm. The applicant was committed to the District Court for sentence in respect of six of the offences and asked that the remaining three offences of supplying a prohibited drug be taken into account on a Form 1. In addition, the District Court was asked to deal with a breach of a s 12 bond and a breach of a recognisance release order, where the matters for sentence constituted the breaches, and with an offence of possessing ammunition without a licence, on a s 166 certificate.

2. [5]

   On 14 April 2020, at the end of the proceedings on sentence, her Honour delivered ex tempore remarks on sentence and imposed an aggregate sentence of imprisonment for eight years to commence on 18 October 2018 and to expire on 17 October 2026, with a non-parole period of five years and four months expiring on 17 February 2024. The commencement date for the sentence had the effect that this aggregate sentence was made partly concurrent with:

   1. (1)

      a sentence of imprisonment for two years commencing on 18 October 2017, with a one year non-parole period, imposed in the District Court at Campbelltown on 29 June 2018 for taking part in the supply of greater than the indictable quantity of a prohibited drug; and

   2. (2)

      a sentence of imprisonment for eighteen months commencing on 18 July 2018, with a one year non-parole period, which sentence had originally been imposed for supplying greater than the indictable quantity of a prohibited drug by the District Court at Campbelltown on 28 September 2017 and suspended on a s 12 bond, but the bond was revoked for breach as a result of the offending for which the applicant was being sentenced by Herbert DCJ.

3. [6]

   In accordance with the requirements of s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), Herbert DCJ recorded the sentences that she would have imposed for each offence had separate sentences been imposed instead of an aggregate sentence, as set out in the table below.

4. [7]

   A notice of intention to appeal was lodged on 28 April 2020 and the application for leave to appeal was filed within time on 11 September 2020.

Grounds of appeal

1. [8]

   The applicant seeks to rely on two grounds of appeal:

The sentencing of the co-offender

1. [9]

   Herbert DCJ had sentenced the co-offender on 11 March 2020 to an aggregate sentence of imprisonment for 2 years and 3 months, to be served by way of an intensive correction order, dating from 11 March 2020 and expiring on 10 June 2022. The offences for which the co-offender was sentenced and the indicative sentences were as set out in the table below.

2. [10]

   Given the nature of these grounds of appeal it is necessary to review in some detail her Honour’s remarks on sentence in relation the applicant as well as the co-offender.

Remarks on sentence of the applicant

1. [11]

   Herbert DCJ commenced her remarks on sentence by identifying the six offences for which the applicant was to be sentenced as well as the maximum penalty for each offence and, where applicable, the standard non-parole period. In addition, it was noted that three offences of supply a prohibited drug on a Form 1 were also asked to be taken into account and that the Court was asked to deal with the applicant for the breach of a s 12 bond and of a recognisance release order, where the matters for sentence constituted the breaches.

2. [12]

   Her Honour noted that the pleas of guilty were entered pre-committal and as a result a statutory discount of 25% was applicable for each charge.

3. [13]

   The sentencing judge’s factual findings were based upon the statement of agreed facts signed by the applicant. Relevant aspects of her Honour’s findings are set out in the paragraphs which follow.

4. [14]

   On 1 March 2018, police intercepted calls between the applicant and another male. They exchanged text messages concerning the quality of drugs previously sold and the applicant losing clients due to the quality of the drugs. The applicant said he was unhappy with the drugs supplied to him on the previous two occasions. The co-offender then sent a picture to the unknown male showing a plastic bag containing a white coloured powder on a set of scales that read 31.54 g. The applicant and the unknown male continued discussing the poor quality of the drugs sold to the applicant. The applicant then requested 10 ounces rather than 5 ounces of methylamphetamine.

5. [15]

   At 12:08 PM, the unknown male called the applicant and informed him that he was arriving in one minute. The applicant called the co-offender and directed him to “bring all that powdered shit out please”. The co-offender agreed. The applicant attended an unknown address where he purchased 10 ounces, or 284 g, of methylamphetamine for $31,000. It was agreed that the applicant supplied 284 g of methylamphetamine in that he received that drug for the purpose of supply.

6. [16]

   On 6 March 2016, there was an intercepted call between the applicant and another male during which the male asked: “10 again?”. The applicant replied “Court Thursday, good chance I won’t be walking out”, which was a reference to a charge of knowingly take part in the supply of a prohibited drug, which was listed at Campbelltown District Court. The applicant asked the male for 5 ounces of methylamphetamine for $3000 (per ounce apparently), saying that he could probably get rid of that by Thursday. The applicant met the male and a third party and purchased 6 ounces, or 170.4 g, of methylamphetamine, for $20,000. It was agreed that the drugs supplied to the applicant were received for the purpose of supply.

7. [17]

   On 9 March 2018, the applicant spoke to an unknown male on the telephone and purchased 5 ounces, or 142 g, of methylamphetamine for $15,500. It was agreed that the applicant supplied that methylamphetamine.

8. [18]

   On 11 March 2018, police intercepted calls between the applicant and another male where the applicant negotiated the purchase of 7 ounces, or 198.9 g, of methylamphetamine. At 8 PM the unknown male called the applicant and arranged to meet, which they did, and the applicant purchased 7 ounces, or 198.8 g, of methylamphetamine for $21,700. It was agreed that the applicant supplied that methylamphetamine in that he received that drug for the purpose of supply.

9. [19]

   On 13 and 14 March 2018, the applicant and the co-offender met an undercover operative (UCO) and another person. The UCO handed the applicant $8,000 and the applicant gave half of the money to the co-offender to count. The applicant supplied the UCO with 55.5 g of methylamphetamine. During this sale, the UCO asked the applicant if he was busy. The applicant replied “always busy”. The UCO asked if the applicant could “do a bit more” and the applicant asked “how much”. When the UCO said “four or five”, the applicant said that he could. The UCO asked the applicant “are you alright with that amount, you can handle that?” and the applicant replied “I can do whatever you need me to get”. This conversation was electronically recorded.

10. [20]

    On 14 March 2018, in communications between the applicant and an unknown male, the applicant told the male that he wanted 6 ounces of methylamphetamine. There followed a discussion about how difficult it was to obtain drugs. Later that afternoon, the unknown male and the applicant communicated about the male getting “2” for the applicant for “35 a pop” being two ounces for $3,500 each. The applicant met the male and purchased 2 ounces, or 56.8 g, of methylamphetamine for $7,000. It was agreed that the drug was supplied to the applicant and the applicant received it for the purpose of supply.

11. [21]

    On 15 March 2018, police intercepted communications between the applicant and an unknown male in which difficulties buying further methylamphetamine were discussed and the applicant said he was “trying” for “Probs at least 3. But 10 if we can loo [?do]”. The male called the applicant and said that he had half an ounce and the applicant agreed to purchase it saying “I got nothing so yeah”. The applicant met with the unknown male and purchased 14.2 g of methylamphetamine for $1,800.

12. [22]

    On 15 March 2018, police intercepted communications between the applicant and numerous other people and it was clear that the upline supplier for the applicant was no longer able to obtain significant quantities of methylamphetamine. The co-offender made contact with an associate asking him if he knew of anyone who could “get him good ice”. The associate provided the co-offender with a number. The co-offender arranged to buy 10 ounces for $30,000 and the co-offender told the male to meet him at the house occupied by the applicant. The co-offender went to the house where the applicant and two other individuals were present. Two unknown males entered the house and $30,000 was present in a bag. After the two males had counted the money, one of them produced a firearm. The applicant and the co-offender had to fight the males to stop themselves from being robbed. During the fight, the man with the firearm discharged about five rounds. One round hit the applicant in the leg, another round hit the co-offender in the right side of his abdomen. The unknown males left in possession of the $30,000.

13. [23]

    That night, the applicant spoke to his father and asked him to take him to hospital. The following morning, the applicant called his father who asked if there was any money involved, to which the applicant replied: “Yeah they took $35,000”. When asked whose money it was, the applicant said “Mine but don’t tell anyone”. The applicant’s father asked: “It was no one else’s?” The applicant replied: “No”.

14. [24]

    It was agreed that the applicant knowingly took part in the supply of 284 g of methylamphetamine in exchange for $30,000. The money used to purchase the drug for the purpose of supply was provided by the applicant and he was present to assist the co-offender with the purchase.

15. [25]

    As a result of the shooting incident police attended the premises and a crime scene warrant was obtained. On 16 March 2018, police attended the applicant’s home and inside the applicant’s bedroom they found a safe with the door ajar.

16. [26]

    Inside the safe, police found a 6 mm black Colt air soft self-loading pistol which did not exceed the prescribed dimension of 65 cm in length. It was not in working order due to a broken slide and internal fault.

17. [27]

    Police also found a .22 automatic calibre keyring pistol of unknown manufacture which was inside a black sunglasses bag. The first barrel for a .32 cartridge was found in working order. The second barrel for a .22 cartridge had a sleeve to allow the cartridge to be chambered; however, the sleeve was not fully inserted into the barrel, which did not allow the rear body of the item to be locked in position.

18. [28]

    In addition, 13 rounds of ammunition were found. A number of rounds were .22 short calibre blank cartridges that would be suitable to be used in weapons chambered for such cartridges but they were not suitable for use in the keyring pistol.

19. [29]

    On 23 March 2018, the applicant was arrested and he participated in an interview with police in which he made full admissions as to possession of the prohibited firearms. He was described as being, during that interview, remorseful and cooperative with police enquiries.

20. [30]

    On 14 August 2018, the applicant was also arrested and participated in an interview. During that interview, in effect, he told police he was using ice but was not supplying prohibited drugs. Her Honour found that he lied about his various offences and about recordings in relation to them. It was noted that he made no admissions in relation to supply in the interview.

21. [31]

    The sentencing judge noted that from 1 March to 15 March 2018, the applicant actually acquired 864 g of methylamphetamine for the purpose of supply. Her Honour was satisfied that the applicant was clearly involved in a significant drug supply operation.

22. [32]

    As to offence 1, Herbert DCJ recorded that it related to the applicant purchasing 284 g of methylamphetamine for the purpose of supply for which the applicant paid $31,000. Her Honour noted that there was no evidence as to the purity of the drug and that the amount was not significantly above the 250 g threshold for the commercial quantity of methylamphetamine. It was also observed that there was no evidence as to quality of the drug or the nature of the drug supply operation but it was noted that the applicant obtained further stock within the week. The offence was found to be “just within the mid-range of objective seriousness”.

23. [33]

    As to offence 2, it was noted that this offence involved the purchase of 170.4 g of methylamphetamine for $20,000 with the intention and belief that the applicant would be able to sell it prior to his court appearance two days later. Again, it was recorded that there was no evidence as to purity but the quantity was substantial for a supply, as the trafficable quantity was 3 g. Her Honour found the offence to be “well within the range of objective seriousness”. This appears to be a misstatement or mistranscription and what was intended was: “well within the mid-range of objective seriousness”.

24. [34]

    As to offence 3, the sentencing judge referred first to the purchase of 142 g of methylamphetamine on 9 March, which is one of the offences on the Form 1, and it was noted that two days later offence 3 was committed when the applicant purchased 198.9 g of methylamphetamine for supply for $21,700. Once again it was observed that there was no evidence as to purity of the drugs but the quantity was substantial for a supply given that the trafficable quantity was 3 g. Her Honour found that this offence was “well within the mid-range of objective seriousness.”

25. [35]

    As to offence 4, the sentencing judge described this as relating to the negotiated purchase of 284 g of methylamphetamine which the applicant was attempting to receive for the purpose of supply. It was noted that the drugs were not received and were not disseminated. It was found that this offence was “below the mid-range of objective seriousness”.

26. [36]

    Herbert DCJ found that offence 5 related to a replica pistol possessed in circumstances where the applicant was involved in a drug supply operation and that it was “below the mid-range of objective seriousness”.

27. [37]

    Offence 6 was noted to relate to a keyring gun which was in working order and which by its nature was readily able to be concealed but was unable to be possessed for any lawful purpose. Her Honour also recorded that it was possessed in circumstances where the applicant was engaged in a drug supply operation. This offence was found to be “within the mid-range of objective seriousness”.

28. [38]

    Under the heading “Subjective Factors”, Herbert DCJ recorded that the applicant was 26 years of age at the time of sentencing and he had convictions for domestic violence offences, driving matters and prior supply prohibited drug offences. Her Honour held that his criminal history disentitled him to leniency.

29. [39]

    It was recorded that the only subjective material tendered on behalf of the applicant related to the operation he underwent as a result of being shot in the leg during the drug exchange.

30. [40]

    The sentencing judge then referred to the psychologist’s report prepared by Ms Fleur Taylor on behalf of the applicant for sentence proceedings in 2017 which resulted in the s 12 bond. That report was tendered by the Crown. It recorded that the applicant came from a close and supportive family and that he had told the author that his parents would support him in remaining abstinent and re-engaging with work. Her Honour also noted that the applicant’s first reported difficulties followed his being expelled from school in year 10 for fighting and that he said he was consistently employed. It was also said that he used drugs as a result of negative peer associations including his cousin, which was assumed to be a reference to his co-offender. It was then noted that following the breakdown of a relationship, the applicant suffered a significant mental health deterioration and increased drug usage and that the applicant said that he was sorry for his offending and expressed a high level of motivation to refrain from further offending. Her Honour noted that the author believed that the applicant required long-term drug and alcohol counselling and mental health support to moderate his risk of recidivism.

31. [41]

    Herbert DCJ also referred to a presentence report prepared for the offender’s previous matter in June 2018 which was tendered by the Crown. Her Honour noted that the applicant was found to be a medium risk of reoffending and that he had a history of anxiety and depression and, at that time, he was being provided with medication whilst in custody. Although the sentencing judge did not refer to the sentence imposed on that occasion, it can be noted here that this sentence related to taking part in the supply of a prohibited drug which resulted in his imprisonment for two years commencing on 18 October 2017 with a non-parole period of one year, expiring on 17 October 2018.

32. [42]

    It was concluded that the applicant’s prospects of rehabilitation were at best guarded and that he needed to address his drug addiction which was his primary criminal need. Her Honour said that she could not be satisfied that he was not likely to commit further offences.

33. [43]

    Under the heading “Moral Culpability”, her Honour said that it was a significant matter of aggravation that the applicant was on conditional liberty at the time of these offences. On the basis of the psychological report prepared in 2017, Herbert DCJ accepted that the applicant had a history of mental health issues, but these were not such as to reduce his moral culpability given the nature of the present offending.

34. [44]

    It was also accepted that the applicant was likely to suffer an additional degree of hardship in custody given his mental health issues and because of the COVID-19 restrictions.

35. [45]

    In addition, it was noted that that the offences on the Form 1 were significant, particularly the offence which involved the supply of 142 g of methylamphetamine. Her Honour expressly found that consideration of these offences increased the relevance of personal deterrence for the applicant.

36. [46]

    Her Honour determined that the applicant was entitled to a total discount of 20% for assistance provided to authorities, with 15% reflecting past assistance and 5% to reflect future assistance. There was no challenge on this appeal to these findings.

37. [47]

    At this point in her remarks, and in fulfilment of the requirements of s 23(4) of the Sentencing Procedure Act, the sentencing judge set out the “undiscounted starting points” for the indicative sentences for the relevant six offences and then quantified the reduction for future assistance in each case, as recorded in the table below.

38. [48]

    As noted above, Herbert DCJ had sentenced the co-offender approximately one month before sentencing the applicant. In her remarks on sentence in relation to the applicant, her Honour gave specific consideration to parity and observed that the applicant and co-offender were only co-offenders in relation to offence 4, the attempted purchase of a commercial quantity of methylamphetamine.

39. [49]

    The sentencing judge made the following specific findings relevant to parity:

    1. (1)

       the applicant was clearly involved in the ongoing supply of prohibited drugs at a significant level and such a finding was not made in respect of the co-offender;

    2. (2)

       unlike the co-offender, the applicant was on conditional liberty at the time of the offences;

    3. (3)

       the applicant’s criminal history was significant and was such as to disentitle him to leniency;

    4. (4)

       the finding as to the applicant’s prospects of rehabilitation was less favourable than for the co-offender;

    5. (5)

       the co-offender’s moral culpability was reduced because of his mental health;

    6. (6)

       the co-offender had positive findings made in relation to his remorse and contrition; and

    7. (7)

       for the co-offender, the considerations under s 23 of the Sentencing Procedure Act were of greater significance because he disclosed his own criminality in the commercial quantity offence, which was otherwise unknown, and the assistance was given from the day of that incident and was additional to the assistance given in relation to the shooting matter. It can be noted here that the co-offender was held to be entitled to a combined discount of 60% (for plea and assistance) in respect of the “shooting matter”, which was the offence corresponding to offence 4 in the applicant’s case, and a 50% combined discount in respect of the other offence for which the co-offender was sentenced but for which the applicant was not sentenced as he had not been charged with that offence.

40. [50]

    In the context of parity, Herbert DCJ also made more detailed findings in relation to the s 12 bond as a result of which the applicant was on conditional liberty at the time of the offending for which he was being sentenced. These findings included that the offence resulting in the s 12 bond was for the supply of 11.3 g of methylamphetamine on 18 August 2016 with a purity of 81%. The applicant was found in a car with the co-offender and a female driver. In the car were indicia of supply including scales, unused resealable plastic bags, multiple phones as well as the applicant’s mobile telephone that contained messages in relation to the supply of prohibited drugs. The applicant made admissions in an electronically recorded interview concerning the supply claiming not to have made any profit from the supply of drugs. Her Honour noted that the s 12 bond was imposed on 28 September 2017 and all of the offences for which she was sentencing the applicant constituted breaches of that bond.

41. [51]

    Due to the objective seriousness of the offences, her Honour found that no less than a sentence of imprisonment was appropriate and noted that this had been conceded on behalf of the applicant.

42. [52]

    It was found that consideration of general deterrence was an important factor in sentencing for offences of this nature as well as personal deterrence and protection of the community. In this context, her Honour referred to the devastation wrought by methylamphetamine in the community.

43. [53]

    The sentencing judge expressed the view that there would have to be a degree of accumulation between the sentence for the offences for which she was sentencing the applicant and “the existing sentence” because of the need to reflect the separate nature of the offending and the overall criminality. It can be noted that the existing sentence was the two year sentence imposed on 29 June 2018, backdated to commence on 18 October 2017, with a non-parole period of one year which expired on 17 October 2018. From his custodial history, it appears that the applicant was not in custody between 13 October 2017 and 24 March 2018, when he was arrested in relation to the offences for which he was being sentenced by Herbert DCJ in April 2020.

44. [54]

    Special circumstances were found in this matter on the basis of the sentencing judge’s view that the applicant would benefit from an extended period of supervision to ensure that he had the opportunity to address his drug relapse prevention while in the community. Her Honour expressly noted, however, that she had considered the overall impact of the accumulation with the previous offences and the s 12 bond offence and as a consequence the resulting allowance for special circumstances would be modest.

45. [55]

    In respect of the breach of the s 12 bond, her Honour ordered that the bond be revoked and that the applicant’s sentence of 18 months’ imprisonment was to commence on 18 July 2018, with a non-parole period of 12 months, expiring on 17 July 2019.

46. [56]

    In relation to the Commonwealth recognisance release order, it was noted that that this order had expired and while the criminality of the breach was substantial it was offending of a different nature and any sentence imposed would be of no effect due to the sentence to be imposed for the offences constituting the breach. Therefore, her Honour determined to take no action on this breach, as permitted by s 20A(5)(c)(ii) of the Crimes Act 1914 (Cth).

47. [57]

    The learned sentencing judge then stated that she intended to impose an aggregate sentence in respect of the six offences (and the three offences on the Form 1) and announced the indicative sentences and the aggregate sentence, which have been set out earlier in these reasons. The aggregate sentence commenced on the day following the expiration of the non-parole period of the two year sentence imposed on 29 June 2018.

48. [58]

    In relation to the offence on the s 166 certificate of possessing ammunition without a license, the applicant was convicted but no further action was taken, as permitted under s 10A(1) of the Sentencing Procedure Act

Order of grounds of appeal

1. [59]

   As noted above, the first ground of appeal effectively raises the issue of parity and the second manifest excess. It is well established that a ground of appeal relating to parity should be dealt with after a ground alleging manifest excess because a complaint of disparity involves acceptance that the sentence is otherwise appropriate: Charbaji v R [2019] NSWCCA 28 at [159]. Consequently, I shall deal first with the manifest excess ground of appeal.

Second ground of appeal

1. [60]

   Under his second ground of appeal, the applicant submitted that the aggregate sentence imposed was manifestly excessive on the bases that the indicative sentences:

   1. (1)

      did not reflect her Honour’s findings as to objective criminality;

   2. (2)

      involved “starting points” that should have been lower, especially compared to the maximum penalties; and

   3. (3)

      after being partially accumulated in the aggregate sentence, rendered the aggregate sentence manifestly excessive.

2. [61]

   The Crown referred to the unchallenged principles applicable to the question of whether a sentence is manifestly excessive and contended that the aggregate sentence was not unreasonable or plainly unjust when regard is had to the significant, repeated drug dealing involved, the fact that the applicant was in possession of two firearms and the relevant maximum penalties. In addition, the Crown drew attention to the applicant’s not insignificant criminal record and the fact that he was on conditional liberty at the time of the offending. It was said that the “starting points” were proportional to each of the offences and the Form 1 offences meant that it was appropriate to give weight to specific deterrence and retribution in the circumstances. The degree of notional accumulation involved in the aggregate sentence was submitted to have been a matter expressly considered by her Honour and was well within her exercise of the sentencing discretion. Accordingly, it was submitted that the Court should not conclude that the aggregate sentence was manifestly excessive.

3. [62]

   The principles to be applied when considering a ground of manifest excess were not in dispute and, as Bathurst CJ observed in Atai v R [2020] NSWCCA 302 at [117], were conveniently summarised by this Court in Hughes v R [2018] NSWCCA 2 at [86] as follows:

4. [63]

   The further principles that apply in relation to appellate review of an aggregate sentence include the following derived from the judgment of R A Hulme J (Hoeben CJ at CL and Adamson J agreeing) in JM v R [2014] NSWCCA 297 at [40] – [42]; 246 A Crim R 528 (and the authorities there cited):

   1. (1)

      indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence;

   2. (2)

      even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive; and

   3. (3)

      a principal focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved.

5. [64]

   Herbert DCJ’s assessments of objective seriousness (which have been set out above) were not sought to be challenged on this application for leave to appeal. It could not in my view be concluded that the notional starting points identified by her Honour (as also set out above), before the application of the 45% combined discount, failed to correspond with the objective seriousness as found. Nor were the notional starting points or the indicative sentences for those offences unreasonable or plainly unjust in light of the maximum penalties, standard non-parole periods, the relevant circumstances of the offending and the applicant’s criminal history and subjective case, essentially for the reasons explained in her Honour’s remarks on sentence.

6. [65]

   In particular, the maximum penalty applicable to the supplying greater than a commercial quantity of a prohibited drug offences, offences 1 and 4, is 20 years and the standard non-parole period (SNPP) is 10 years. Offence 1 involved supply of 284 g of methylamphetamine, on 1 March 2018 and the objective seriousness was found to be “just within the mid-range”. In addition, three further offences of supplying: 142 g of methylamphetamine on 9 March 2018; 56.8 g on 14 March 2018 and 14.2 g on 16 March 2018 were taken into account when sentencing for offence 1. In these circumstances and having regard to the other factors identified by the sentencing judge, including the fact that the offences were committed while the applicant was on conditional liberty and his criminal record, an indicative sentence starting point of 10 years, before the application of the 45% discount, was not outside the range available for offence 1. Nor was the indicative sentence of 5 years and 6 months with a non-parole period of 3 years 9 months unreasonable or plainly unjust, in all the circumstances identified above. Offence 4 was found to be “below the mid-range of objective seriousness” and this was well reflected in the indicative sentence starting point of 6 years, and the indicative sentence of 3 years and 3 months with a non-parole period of 2 years and 3 months. The indicative sentence for offence 4 was plainly within the range of available sentences, given all the relevant circumstances.

7. [66]

   Similarly, in relation to offences of supplying a prohibited drug, offences 2 and 3, for which the maximum penalty is 15 years but for which there is no standard non-parole period, neither the notional staring points before the application of the 45% discount nor the indicative sentences failed to reflect the findings of objective seriousness or were unreasonable or plainly unjust. Offences 2 and 3 were found to be “well within the mid-range of objective seriousness”. The notional starting points were 4 years and 4 years and 6 months, respectively, and yielded corresponding indicative sentences of 2 years and 2 months and 2 years and 5 months. Having regard to all of the factors identified by the sentencing judge, the indicative starting points were not inconsistent with the objective seriousness findings and the indicative sentences were not outside the range of available sentences so as to bespeak error.

8. [67]

   The offence of possessing an unauthorised firearm, offence 5, carried a maximum penalty of 5 years and the objective seriousness was found to be “below the mid-range of objective seriousness”. Once again, the indicative sentence starting point, before the application of the 45% discount, of 2 years, corresponded with the finding of objective seriousness. The indicative sentence of 1 year and 1 month was not, in all the circumstances identified by the sentencing judge, unreasonable or unjust.

9. [68]

   The more serious firearms offence of possessing an unauthorised prohibited firearm, offence 6, carried a maximum penalty of 14 years with a standard non-parole period of 7 years. This offence was found to be “within the mid-range of objective seriousness”. The indicative sentence starting point, pre-discount, of 4 years and the indicative sentence of 2 years and 2 months with a non-parole period of 1 year and 6 months were plainly consistent with her Honour’s finding of objective seriousness and reflected all the relevant circumstances identified in the remarks on sentence.

10. [69]

    Accordingly, in my view, the applicant has not established that any of the indicative sentences were excessive. Thus, it should not be concluded that the aggregate sentence was manifestly excessive on the basis that one or more of the indicative sentences was excessive.

11. [70]

    Furthermore, while the aggregate sentence of 8 years notionally involved a degree of accumulation of the indicative sentences, this was not such as to establish manifest excess. The firearms offences involved quite distinct criminality from the drug supply offences. In light of the statutory guide posts of the maximum penalties, and the standard non-parole periods where applicable, and all of the circumstances and considerations referred to by Herbert DCJ, it appears to me that the aggregate sentence involved a proper reflection of the totality of the criminality and was well within the range of available sentences in the circumstances.

12. [71]

    For these reasons, the applicant has not established that the aggregate sentence was unreasonable or plainly unjust. Thus, the second ground of appeal contending that the aggregate sentence was manifestly excessive should be rejected, if leave to appeal is granted.

First ground of appeal

1. [72]

   The applicant’s other, first ground of appeal was that he had a justifiable sense of grievance by reasons of a marked disparity between his sentence and the sentence imposed on his co-offender.

2. [73]

   In the applicant’s written submissions, Ms Kluss of counsel effectively acknowledged that the applicant and the co-offender were only co-offenders in respect of offence 4 and that the sentencing judge had identified a number of differentiating factors, which have been referred to above. Nonetheless, it was contended that:

3. [74]

   It was also submitted that, whilst it was accepted that the applicant and the co-offender were charged with different collections of offences, the sentences were disproportionate, particularly given that they were largely involved in the same enterprise, primarily motivated by drug dependency and both provided assistance. It was said that the degree of disparity engendered a justifiable sense of grievance and there was an appearance of injustice in the mind of a hypothetical objective bystander. In these circumstances, it was contended that the Court should intervene in the present case having regard to the principles in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 and Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46.

4. [75]

   The Crown said that the gravamen of the applicant’s case was that the imposition of an intensive correction order for the co-offender gave the applicant a justifiable sense of grievance considering the length of his full-term imprisonment but submitted that there were a number of difficulties with that argument. First, it was contended that, since Herbert DCJ had sentenced both the applicant and the co-offender and her Honour had expressly referred to parity considerations in her remarks on sentence, this Court would be cautious and unlikely to intervene, in accordance with the principles in Sheather v R [2020] NSWCCA 162.

5. [76]

   Secondly, it was contended that the objective and subjective features relevant to the applicant were sufficiently different from those of the co-offender so as to justify the different sentences and the different modes of service of the terms of imprisonment. This was said to have been effectively conceded by counsel for the applicant in the proceedings on sentence.

6. [77]

   Lastly, it was submitted that there were practical difficulties in attempting to compare sentences in a case such as the present including those identified in Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 at [203].

7. [78]

   In short, it was submitted that there were significant differences in the two cases which justified significantly different sentencing outcomes and accordingly the applicant would not have a justifiable sense of grievance and this ground of appeal should be rejected.

8. [79]

   Under his first ground of appeal, the applicant in essence invokes the “parity principle”. In this regard, the High Court has held, in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green v The Queen) at [28] (French CJ, Crennan and Kiefel JJ):

9. [80]

   Thus, persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things may not be equal because of matters such as the age, background, previous criminal history and general character of the offenders, and the part which each played in the commission of the offence: Lowe v The Queen (1984) 154 CLR 606 at 609 (Gibbs CJ); [1984] HCA 46 (Lowe v The Queen).

10. [81]

    The Court intervenes in a case of disparity of sentences where it considers that the disparity is such as to give rise to a justifiable sense of grievance or, in other words, is such as to give the appearance that justice has not been done: Lowe v The Queen at 610.

11. [82]

    The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria: Green v The Queen at [31]. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The Court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise: Green v The Queen at [31].

12. [83]

    The parity principle is not limited, however, to co-offenders in the strict sense. In Green v The Queen, it was explained at [30]:

13. [84]

    In the present case, there is some information indicating that the co-offender and the applicant were both involved in at least some aspects of the drug supply offences committed by each of them. Thus, it can be accepted for the purposes of the present application for leave to appeal, without making any specific finding in that regard, that the applicant’s and the co-offender’s relevant conduct arose out of the same general criminal enterprise and the parity principle has application in the present case, notwithstanding the differences in the offences with which each was charged.

14. [85]

    Campbell JA in Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 at [203] recognised that if the parity principle is sought to be used to compare the sentences of participants in the same criminal enterprise who have been charged with different crimes, there can be significant practical difficulties and those practical difficulties become greater the greater the difference between the crimes charged. They can become so great that, in the circumstances of a particular case, a judge cannot apply the principle or cannot see that there is any justifiable sense of grievance arising from the discrepancy.

15. [86]

    Further issues that may arise for an applicant seeking to rely on the parity principle were identified by R A Hulme J, in Chamon v R [2020] NSWCCA 112 at [35]-[37], as follows:

16. [87]

    As formulated in the applicant’s written submissions, the disparity said to cause a justifiable sense of grievance was based on a comparison of:

    1. (1)

       “a non-custodial penalty”, in the case of the co-offender;

    2. (2)

       “an undiscounted head sentence of the order of over 10 years”, in the case of the applicant.

17. [88]

    The first difficulty with this submission is that it seeks to make a comparison between aspects of sentences that are not actually able to be properly compared with one another. The mode of service of the co-offender’s aggregate sentence for two offences is not able to be compared with the applicant’s “undiscounted head sentence” for an offence with which the co-offender was not charged.

18. [89]

    Secondly, the aggregate sentence imposed on the co-offender was imprisonment for 2 years and 3 months, to be served by way of an intensive correction order, commencing on 11 March 2020 and expiring on 10 June 2022. The co-offender’s indicative sentences were:

    1. (1)

       for the offence corresponding to the applicant’s offence 4, imprisonment for 1 year and 9 months with a non-parole period of 1 year and 2 months, after a combined discount of 60%. The pre-discount starting point was 4 years and 6 months; and

    2. (2)

       for the co-offender’s other offence, for which there was no equivalent in the applicant’s case, imprisonment for 1 year, after a combined discount of 50%, and the pre-discount starting point was 2 years.

19. [90]

    The aggregate sentence imposed on the applicant was imprisonment for 8 years commencing on 18 October 2018 and expiring on 17 October 2026, with a non-parole period of 5 years and 4 months expiring on 17 February 2024. The indicative sentence for offence 4 was imprisonment for 3 years 3 months, after a combined discount of 45%, with a non-parole period of 2 years 3 months. The pre-discount starting point was 6 years. The other indicative sentences for offences with which the co-offender was not charged have been set out above.

20. [91]

    In these circumstances, the applicant’s pre-discount indicative sentence for offence 4 of 6 years can be compared to the co-offender’s pre-discount indicative sentence for the corresponding offence of 4 years and 6 months.

21. [92]

    As to the pre-discount indicative sentences for the offending involved in offence 4, the difference between 6 years for the applicant and 4 years 6 months for the co-offender can be readily seen as reflecting not only the different roles of applicant and the co-offender in the attempt to purchase 284 g of methylamphetamine for $30,000 but also the different subjective circumstances of each. It was the inability of the applicant’s upline supplier to obtain sufficient quantities of prohibited drugs for the applicant which led to the co-offender making contact with another person in order to obtain supplies. It was the applicant’s $30,000 which was used to pay for the drugs and it was at the house occupied by the applicant that the supply was to take place. In substance, the co-offender was assisting the applicant obtain drugs for the applicant and the sentencing judge found that the applicant was clearly involved in the ongoing supply of prohibited drugs at a significant level but no such finding was made in respect of the co-offender. On this basis alone, it was well open to Herbert DCJ to adopt indicative pre-discount sentences which reflected a higher level of involvement on the part of the applicant compared to that of the co-offender.

22. [93]

    In addition, the difference in indicative pre-discount sentences was justified on the bases that, unlike the co-offender: the applicant was on conditional liberty at the time of the offences; the applicant’s criminal history was significant and was such as to disentitle him to leniency; there was no favourable finding as to the applicant’s prospects of rehabilitation; there was no finding that the applicant’s moral culpability was reduced because of the applicant’s mental health; and, there were no positive findings made in relation to the applicant’s remorse and contrition.

23. [94]

    Yet a further differentiating factor was that the applicant’s sentence was partially concurrent with the two previous sentences imposed in the District Court for drug supply offences, details of which have been set out above. The co-offender had no similar existing sentences.

24. [95]

    Furthermore, as to the applicant’s 8 other offences (including the 3 offences taken into account on the Form 1) and the co-offender’s 1 other offence, the offences and circumstances were so different that no direct comparison of the indicative sentences or the aggregate sentences imposed on each could be meaningfully made.

25. [96]

    In summary, where a comparison of the indicative sentences imposed can be legitimately made, the difference between the sentences for the applicant and the co-offender can be seen to be justified in all the circumstances. In respect of other sentences, no comparison was possible.

26. [97]

    The applicant also relies upon the contention that the co-offender received a “non-custodial sentence” because his sentence was to be served by way of an intensive correction order, whereas the applicant was sentenced to full-time imprisonment.

27. [98]

    Intensive correction orders are dealt with in s 7 and Pt 5 of the Sentencing Procedure Act. Section 7 is in Div 2 of Pt 2 of the Act and that Division is headed “Custodial sentences”. Further, it has been held that such orders are treated as custodial sentences: Rizk v R [2020] NSWCCA 291 at [19] (Basten JA, Price and Wright JJ agreeing). Thus, it is not correct to describe a sentence of imprisonment to be served by way of an intensive correction order as a “non-custodial sentence”. Intensive Correction Orders are a form of imprisonment and have a significant punitive effect: R v Ball [2013] NSWCCA 126 at [116] (Hall J, Macfarlan JA agreeing). Nonetheless, it can be accepted that service of a sentence by way of intensive correction order in the community is a more lenient penalty than full-time imprisonment, even though such orders may vary in severity depending on the conditions and level of supervision involved: R v Tannous; R v Fahda; R v Dib [2012] NSWCCA 243 at [17]; 227 A Crim R 251.

28. [99]

    A further difficulty with this aspect of the applicant’s submissions is that an intensive correction order was available as an option for the co-offender but not in the case of the applicant. The term of the co-offender’s aggregate sentence of imprisonment did not exceed 3 years, whereas the applicant’s did. Section 68(2) of the Sentencing Procedure Act provides:

29. [100]

    It is apparent that, in sentencing the co-offender, Herbert DCJ acted in accordance with this Court’s decision in Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [113] – [115], the effect of which was usefully summarised by Fullerton J in Remington v R [2018] NSWCCA 98 at [30] as follows:

30. [101]

    In her remarks on sentence in relation to the co-offender, Herbert DCJ relevantly said:

31. [102]

    In the applicant’s case, it was conceded that no lesser sentence than imprisonment was appropriate and the length of the aggregate sentence had the effect that service by way of an intensive correction order was not an option which the sentencing judge could consider.

32. [103]

    In my view, the relevant circumstances of the co-offender and the applicant and the different offences for which they were being sentenced provide an adequate foundation and explanation for the difference in the aggregate sentence imposed on the co-offender compared to that imposed on the applicant. Those factors also support the sentencing judge’s choice as to the mode in which the co-offender should serve his sentence, which choice was not available in respect of the applicant.

33. [104]

    To the extent that the aggregate sentence imposed on the applicant can be properly compared with that imposed on the co-offender, any sense of grievance on the part of the applicant would not, in my view, be justified given the differences in the offences for which he and the co-offender were being sentenced, their different roles in the common offence and their different subjective circumstances.

34. [105]

    The present is an example of a case where the same judge has sentenced both the applicant and the co-offender, has recognised the importance of the parity principle and has given effect to that principle as well as the other sentencing principles engaged in each of the applicant’s and co-offender’s cases. This is clear from her Honour’s remarks on sentence in both cases. In these circumstances, the Court should be cautious and not overly willing to intervene. Sentences imposed upon co-offenders involve a discretionary assessment by the sentencing judge. In my view, the differentiation made by Herbert DCJ between the aggregate sentence imposed on the co-offender and that imposed on the applicant was open to her in the exercise of her discretion and no error has been identified.

35. [106]

    For these reasons, the applicant’s first ground of appeal should be rejected, if leave to appeal is granted.

Leave to appeal

1. [107]

   Since each of the grounds was arguable, I would grant leave to appeal but, for the reasons given above, I would dismiss the appeal.

Proposed orders

1. [108]

   Accordingly, I propose that the orders of the Court should be:

   1. (1)

      The applicant has leave to appeal.

   2. (2)

      The appeal is dismissed.