Kitson v R

1. [1]

   BELL CJ: On 27 November 2018, Joshua Kitson (the Applicant) pleaded guilty to one count of conspiring to dishonestly cause a loss to the Commonwealth, contrary to s 135.4(3) of the Criminal Code (Cth). That offence carries a maximum penalty of 10 years’ imprisonment and/or 600 penalty units. The count to which the Applicant pleaded guilty was particularised as follows:

2. [2]

   On 28 August 2019, the Applicant was sentenced by Payne JA in the New South Wales Supreme Court, on the basis of an agreed statement of facts. [1] The sentencing judge imposed a term of imprisonment of 4 years and 6 months, with a non-parole period of 3 years, commencing on 28 August 2019. [Redacted pursuant to order 4].

3. [3]

   By application filed 9 March 2022, the Applicant seeks leave to appeal against his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The Applicant also seeks leave to file an application for leave to appeal out of time, pursuant to s 10(1)(b) of that Act. The application for an extension of time is not opposed by the Crown, and should be granted. The Applicant’s non-parole period is due to expire on 28 August 2022, which is just under six weeks from the hearing of his application.

4. [4]

   The Applicant is unrepresented on appeal, and appears to have prepared his grounds of appeal and written submissions himself. He acquitted himself admirably in the course of presenting his arguments. In support of his application, he relies upon two grounds of appeal. The first ground, supported by evidence, concerns the hardship suffered by the Applicant in custody as a consequence of the COVID-19 pandemic. The pandemic began after the Applicant was sentenced and, therefore, was not and could not have been taken into account by the sentencing judge in the exercise of his sentencing discretion. The second ground of appeal invokes the parity principle, by reference to the sentence subsequently imposed upon one of the Applicant’s co-offenders, Simon Anquetil (Anquetil).

Factual background

1. [5]

   The facts of the offending were agreed, and were summarised by the sentencing judge at [4]-[20] of the remarks on sentence. For present purposes, only a brief summary is necessary.

2. [6]

   Between about 1 March 2014 and 18 May 2017, the Applicant participated in a conspiracy with seven others (together, the conspirators) to defraud the Commonwealth. The conspiracy involved the establishment and operation of a payroll services company named Plutus Payroll Australia Pty Ltd (Plutus), and a number of other related companies. The object of the conspiracy was to deprive the Australian Taxation Office (ATO) of “Pay As You Go Withholding” (PAYGW) and “Goods and Services Tax” (GST) payments which Plutus collected from its clients, and which were payable to the ATO. [2]

3. [7]

   Plutus provided payroll services to legitimate corporate and government clients. An incident of these services was that Plutus was responsible for collecting PAYGW amounts and remitting them to the ATO. The payroll services provided by Plutus also attracted GST, which Plutus was similarly responsible for collecting and remitting to the ATO. Over the period of the offending, the conspirators appropriated at least $105,625,304.36 of the funds that Plutus was legally required to remit to the ATO, amounting to 74.7% of all PAYGW and GST amounts that the company collected from its clients.

4. [8]

   The genesis and progression of the conspiracy, and the Applicant’s involvement in it, can be summarised as follows:

   1. (1)

      In early 2014, Messrs Onley, Anquetil, Cranston and Larcombe met with the Applicant and introduced him to the conspiracy. It was agreed that Anquetil would set up the payroll services company, and the Applicant would help manage and conduct the company. Mr Kitson understood he was responsible for building up the apparently legitimate front office business of Plutus.

   2. (2)

      Plutus was incorporated in April 2014, with Mr Anquetil as the sole director. The Applicant initially acted as a consultant for Plutus, recruiting a large number of legitimate clients. He was employed on a full-time basis as the General Manger of Plutus from December 2014.

   3. (3)

      The conspiracy involved the use of separate corporate entities, referred to as ‘bottom companies’ or ‘bots’, which were clandestinely controlled by the conspirators. The ‘bots’ were subcontracted by Plutus to provide payroll and labour hire services, which involved Plutus transferring the payroll amounts collected from clients, and associated tax liabilities, to the ‘bots’. The ‘bots’, in turn, failed to remit PAYGW and GST monies to the ATO as required.

   4. (4)

      The conspirators appointed financially unsophisticated people to be directors of the ‘bots’, in order to conceal their involvement in those companies. The directors were selected on the basis that they were unlikely to ensure compliance with corporate responsibilities and taxation requirements. They were paid to sign documents as and when required. However, it was the conspirators who maintained effective control over the ‘bots’.

   5. (5)

      The intended consequence of the conspiracy was that the ‘bots’ would accrue substantial debts to the ATO, and would then be liquidated, leaving the debts unpaid. In the event of any investigation or audit, it would be the directors of the ‘bots’ who would be responsible for any outstanding tax debt.

5. [9]

   In 2016 and 2017, covert video and audio footage was recorded of the conspirators in which they variously posed as directors of the ‘bots’, arranged the misappropriation of the PAYGW and GST payments due to the ATO and discussed at length how best to avoid the attention of the ATO.

6. [10]

   In February 2017, one of the conspirators made demands for a combined amount of $25 million from the other conspirators, threatening media exposure of the conspiracy and violence. The Applicant attended a series of meetings with the other conspirators to discuss the demands, and the drafting of a deed to conceal the conspiracy. In response to the demands, the Applicant personally authorised the payment of a total of $24.4 million, which was drawn from money owed to the ATO.

7. [11]

   On 17 May 2017, the Australian Federal Police executed search warrants on the Plutus office in Sydney, and on the residential premises of the Applicant. The Applicant was arrested shortly thereafter.

8. [12]

   In total, the Applicant received an illegitimate financial gain of over $1.3 million as a result of the conspiracy. During the final stages of the conspiracy, he told the other conspirators that he would take an additional bonus of $500,000. Only a portion of this amount had been paid to the Applicant when the AFP raided Plutus.

The sentencing judge’s findings

1. [13]

   With respect to the objective seriousness of the Applicant’s offending, the sentencing judge said the following: [3]

2. [14]

   The sentencing judge considered the amount of money involved and the length of time over which the offending occurred to be significant considerations in assessing the objective seriousness of the offending, citing R v Hawkins. [4] In this context, his Honour considered it important that the conspiracy continued for a “significant period” of approximately three years, and caused a “significant loss to the Commonwealth”, being $105,625,304.36.

3. [15]

   In an important passage of his remarks on sentence, the sentencing judge described the Applicant’s degree of involvement in the conspiracy in the following terms: [5]

4. [16]

   The sentencing judge also made the following relevant findings:

   1. (1)

      that, although the Applicant was not aware of the precise amount of the loss to the Commonwealth caused by the conspiracy, he was aware that approximately $80 million had been misappropriated; [6]

   2. (2)

      that the Applicant was aware of large illegitimate payments being made to his fellow conspirators, and in one case authorised the payment of $24.4 million to Lands Legal in response to the demand outlined above; [7]

   3. (3)

      that the Applicant was motivated by personal financial gain, and received over $1.3 million from his participation in the conspiracy; [8]

   4. (4)

      that the Applicant’s conduct represented a persistent course of criminal conduct for the purposes of s 16A(2)(c) of the Crimes Act 1914 (Cth); [9]

   5. (5)

      [redacted pursuant to order 4]; [10] and

   6. (6)

      that the Applicant had good prospects of rehabilitation. [11]

5. [17]

   The sentencing judge allowed the Applicant a sentencing discount of 25% by reason of his guilty plea, which was entered at the earliest opportunity. In doing so, his Honour noted that at that stage the Applicant was the only one of the conspirators to enter a guilty plea, and that the Applicant’s guilty plea had spared the Crown considerable time and expense.

6. [18]

   [Redacted pursuant to order 4]

7. [19]

   Importantly for the purposes of the issues raised on this application for leave to appeal, and as noted above, the Applicant was sentenced prior to the outbreak of the COVID-19 pandemic.

8. [20]

   Before turning to the two grounds of appeal, it is necessary to supply relevant detail in relation to the sentencing Applicant’s co-offender, Anquetil.

The sentence imposed on Anquetil

1. [21]

   The Applicant’s co-offender, Anquetil, was sentenced in the New South Wales Supreme Court on 31 July 2020, also by Payne JA. [12] He stood to be sentenced for two offences, being one count of conspiring with others with the intention of dishonestly causing loss to the Commonwealth, contrary to s 135.4(3) of the Criminal Code (the common conspiracy offence), and one count of dealing with the proceeds of crime in the sum of $1,000,000 or more, contrary to s 400.3(1) of the Criminal Code. Count 1 was in substantially the same terms as the offence for which the Applicant was sentenced.

2. [22]

   [Redacted pursuant to order 4]. He was sentenced to a term of imprisonment of 4 years and 8 months in respect of count 1, and a term of 6 years in respect of Count 2. The total effective term of imprisonment was 7 years and 6 months taking into account accumulation, with a single non-parole period of 5 years.

3. [23]

   [Redacted pursuant to order 4].

4. [24]

   In his sentencing remarks, the sentencing judge made the following findings concerning Anquetil’s offending which are relevant for present purposes:

   1. (1)

      that the conspiracy to which Count 1 related was “objectively one of the most serious offences of its kind to come before a court in this country”; [13]

   2. (2)

      that Anquetil was “a principal of the conspiracy” and “one of [its] key architects”, who “operated at the apex of the hierarchy of offenders involved in the scheme”; [14]

   3. (3)

      that Anquetil was the beneficiary of not less than $12,218,148.55 as a consequence of the two offences; [15]

   4. (4)

      that Anquetil’s offending was committed out of greed, and his motivation was at all times financial reward; [16] and

   5. (5)

      that Anquetil had good prospects of rehabilitation. [17]

5. [25]

   In sentencing Anquetil, the sentencing judge had express regard to considerations of parity with the sentence imposed on the Applicant, particularly in the following passage: [18]

6. [26]

   [Redacted pursuant to order 4]. [19] His Honour also rejected a submission that Anquetil’s good character was relevantly distinguishable from “Mr Kitson's equally impressive case of positive good character”. [20]

The first ground of appeal

1. [27]

   The Applicant’s first ground of appeal is expressed as follows: “[n]ew information that was not available to the sentencing Judge at time of sentencing”. As developed orally, the gravamen of this ground of appeal was that the Applicant had been impacted in prison in very adverse ways that could not have been contemplated by the sentencing judge when imposing his sentence. No error was pointed to as justifying this Court’s intervention.

2. [28]

   In support of this ground of appeal, the Applicant relies upon evidence of impact of the COVID-19 pandemic on the custodial conditions he has experienced while serving his sentence. This evidence included:

   1. (1)

      material obtained pursuant to the Government Information (Public Access) Act 2009 (NSW), which indicates that contact visits and various correctional programs were suspended or reduced for protracted periods of time at the correctional centre where the Applicant is detained; and

   2. (2)

      affidavits affirmed by the Applicant on 7 March 2022 and 6 May 2022, which concern the onerous impact of COVID-19 and related social distancing requirements on custodial conditions.

3. [29]

   In oral argument, the Applicant also relied upon an asserted failure by Correctional Services to protect him from actual and threatened violence from other detainees [redacted pursuant to order 4]. This submission was supported by an affidavit affirmed by the Applicant during the hearing on 15 July 2022. That affidavit detailed [redacted pursuant to order 4] threats of violence and one violent assault suffered by the Applicant at the hands of three other detainees.

4. [30]

   It may readily be accepted that the Applicant has suffered more onerous conditions of incarceration than could have been expected at the time of his sentencing by reason of the impacts of the COVID-19 pandemic. The evidence establishes that his experience in custody has been marked by a lack of visitations, repeated cell lock-ins, an inability to participate in work release programs, and an inability to take day and weekend leave.

5. [31]

   It may also be accepted, for the purposes of considering his argument, that the Applicant has experienced fear and, on at least one occasion, violence at the hands of other detainees [redacted pursuant to order 4] (although this has not been corroborated and the Applicant indicated that he did not report the violent attack on him out of fear of further violence).

6. [32]

   The insurmountable difficulty with the Applicant’s first ground of appeal, however, is that evidence of the hardship experienced by the Applicant in custody is not demonstrative of any error on the part of the sentencing judge. This Court’s power to interfere with a sentence pursuant to s 6(3) of the Criminal Appeal Act has been held to be conditioned on the establishment of error, [21] and, generally speaking, error cannot be established by facts or events which have arisen entirely after the primary sentencing exercise. As Street CJ (Moffit P and Lee J agreeing) observed in R v Munday, [22] “[t]he review of a sentence in the light of subsequent events is the proper province of the executive Government and not of an appeal court.”

7. [33]

   Consistent with this observation, the principles governing the admission of fresh or new evidence on a sentence appeal were explained by Beech-Jones CJ at CL (Macfarlan JA and Davies J agreeing) in Toller v R, [23] which also concerned the impacts of the COVID-19 pandemic on the custodial conditions of an offender. In that case, his Honour said the following (at [21]-[23]):

8. [34]

   This statement of principle is consistent with a number of earlier authorities of this Court, including Douar v R, [24] R v Willard, [25] R v Fordham [26] and R v Many. [27]

9. [35]

   In a number of recent decisions of this Court where an offender was sentenced before the onset of the COVID-19 pandemic, this Court has held that the fact that the sentencing judge did not (and indeed could not) have regard to the more onerous custodial conditions that were to be brought about by the pandemic supplied no warrant for appellate intervention: see, for example, Cabezuela v R, [28] Borg v R; Gray v R, [29] GAR v R, [30] and Shannon v R. [31]

10. [36]

    To say this is not to ignore or diminish how severe the impact of COVID-19 related restrictions undoubtedly has been on those in prison, whose liberty is already severely curtailed by reason of their incarceration. It must be observed, however, that whilst the impact of COVID-19 restrictions has no doubt differed as between different sections of the community, that impact, in some cases equally severe, has also been felt by all members of the community during the pandemic.

11. [37]

    To the extent that the Applicant’s first ground picks up his complaint about being mistreated by other prisoners, the sentencing judge was aware and took into account the hardship the Applicant was likely to suffer whilst in prison. In any event, this matter falls into the category of subsequently occurring facts which generally cannot be called in aid to attack a sentence: see [32] above.

12. [38]

    This ground of appeal therefore must fail.

The second ground of appeal

1. [39]

   The Applicant’s second ground of appeal invokes the parity principle, by reference to the sentence imposed upon Anquetil for the common conspiracy offence against s 135.4(3) of the Criminal Code.

2. [40]

   In essence, the Applicant submits that the moderate difference in the sentences imposed upon each of the two co-offenders in respect of the common conspiracy offence does not reflect the disparities in the nature and gravity of their offending. In other words, given what are said to be marked differences between the conduct of each offender, it is the similarity between their respective sentences that is relied upon by the Applicant to engage the parity principle.

3. [41]

   In support of this ground, the Applicant emphasised the following matters:

   1. (1)

      that Anquetil stood to be sentenced for two offences, whereas the Applicant was sentenced for only one;

   2. (2)

      that Anquetil was found to have occupied a higher level in the criminal scheme than the Applicant, as one of its “key architects”;

   3. (3)

      that Anquetil received a greater personal benefit from the offending than the Applicant, being approximately $12.2 million, as opposed to approximately $1.3 million; and

   4. (4)

      that the sentencing judge took into account the onerous nature of COVID-19 restrictions in sentencing Anquetil, he having been sentenced several months after the beginning of the pandemic.

4. [42]

   The application of the parity principle was explained by French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen (Green) [32] in the following terms:

5. [43]

   In determining whether a disparity in sentences between co-offenders is justified by differing circumstances, an appellate court must have regard to the discretionary and qualitative nature of the process of drawing relevant distinctions between co-offenders. [33] Accordingly, the proper enquiry for an appellate court is that expressed by R A Hulme J in Lloyd v R: [34] “was the differentiation made by the judge one that was open to her [or him] in the exercise of her [or his] discretion?”

6. [44]

   Unlike a typical parity appeal, where an Applicant appeals from a sentence which was imposed simultaneously with, or after, the sentence imposed on their co-offender(s), here, the Applicant was sentenced some eight months before Anquetil.

7. [45]

   In R v Jones, [35] this Court expressed the strong view that a sentence could not be attacked on parity grounds if it preceded the sentencing of a co-offender. Sully J observed that: [36]

8. [46]

   On appeal in Jones v The Queen [37] (Jones), the High Court (Brennan, Deane and McHugh JJ) held, on the basis of a concession but consistent with the facts and sequence of sentencing in Lowe v The Queen [38] (Lowe), that in an appeal against sentence, an applicant may advance a parity ground by reference to a sentence subsequently imposed upon a co-offender. This was held to be so notwithstanding the fact that no point of comparison existed when the first sentence was imposed, and notwithstanding that the first sentence may have been otherwise appropriate. The Court said that it was “erroneous to regard the principle of comparability of sentences laid down in Lowe as incapable of application in favour of the first of two or more co-offenders to be sentenced.” [39] That approach has since been followed in this Court on many occasions: see, for example, R v Bellorini [40] (Bellorini), Shortland v R, [41] Saraya v R, [42] Humphreys v R, [43] and R v Ferris. [44]

9. [47]

   There is some tension between this line of authority, faithfully following Lowe and Jones, and the High Court’s later statement in Kentwell v The Queen [45] (Kentwell) to the effect that an appellate court’s authority to intervene on a sentence appeal is dependent upon the demonstration of error. In a sentencing scenario such as is presented by the current application, it could perhaps be said that any “error” in the first sentence must of necessity be latent, as no point of comparison giving rise to a justifiable sense of grievance will have existed at the point of time when the sentence was imposed. But characterising the first sentence as “erroneous” would be inconsistent with the observations of Sir Anthony Mason in Lowe [46] who said:

10. [48]

    A similar point emerges from R v Bellorini, [47] in which Sully J (Grove and Simpson JJ agreeing) returned to the issue post-Jones:

11. [49]

    His Honour’s intervention was in respect of a sentence which was not itself vitiated by error at the time it was passed but which, in light of the subsequent sentence imposed on a co-offender, generated the unjustifiable sense of grievance which the High Court in Lowe made clear warranted appellate intervention in an appropriate case.

12. [50]

    Two alternative propositions follow from this. Either the observation in Kentwell [48] that an appellate court’s authority to intervene is “dependent upon the demonstration of error” is, with respect, overly broad or requires qualification, or, contrary to the general position that error cannot be established by facts or events which have arisen entirely after the primary sentencing exercise (see [32] above), the principle of parity is of such “abiding importance to the administration of justice and to the community”, to quote Sir Anthony Mason in Lowe, [49] that a subsequently passed sentence of a co-offender is an exception to this otherwise important principle, and may be had regard to when an earlier sentence is being challenged by reference to considerations of parity.

13. [51]

    In any case, the sequence in which the sentences were imposed necessarily modifies or informs the nature of the task to be undertaken by this court. The relevant exercise for this court cannot be to ascertain whether the sentencing judge failed to take into account considerations of parity in his sentencing remarks: indeed, as has been pointed out, at that point in time, no other sentence had been imposed which could be taken into account for parity purposes. Rather, as Lowe and the passage from Green already cited make clear, the Court’s attention is to be directed to whether the subsequent sentence is objectively capable of giving rise to a justifiable sense of grievance on the part of the Applicant.

14. [52]

    The nature and focus of this enquiry reflects that the source of the parity principle lies not in the search for error in the reasons of a sentencing judge, but rather in the norm of equal justice that underlies the common law. As was said by French CJ, Crennan and Kiefel JJ in Green at [28]-[29]:

15. [53]

    Notwithstanding that the Applicant was sentenced many months before Anquetil, it is important for present purposes that the sentencing judge had express regard to considerations of parity when sentencing Anquetil. Thus, although parity obviously could not be taken into account when the Applicant was sentenced, it could be and was taken into account when Anquetil was sentenced. In other words, it is not as though the relationship between the two offenders’ criminality has not been taken into account. The Applicant’s second ground of appeal thus encounters the difficulty that, as was said by Basten JA, Adamson J and Bellew J in Afu v R, [50] “[w]here a sentencing judge recognises the importance of the parity principle and ostensibly gives effect to it, this Court will be cautious to intervene.”

16. [54]

    It is also of importance that it was the same judge, Payne JA, who sentenced both the Applicant and Anquetil. Where the sentencing of co-offenders has been undertaken by the same judge, this fact similarly tends against appellate intervention: see, for example, Tuivaga v R; [51] Huckstadt v R; [52] and Contos v R. [53] As was said by Button J in Huckstadt v R [54] (albeit in the context of simultaneous sentence proceedings), where the same judge hears the sentence matters of two co-offenders, “[he or she is] in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way.”

17. [55]

    It is convenient to begin with a discussion of the observations made by the sentencing judge in respect of parity when sentencing Anquetil (see above at [25]–[26]). His Honour considered that the Applicant was “near the top of the hierarchy in the tax fraud conspiracy”, whereas Anquetil was “at the very top of the hierarchy” (emphasis added). To reflect this difference, his Honour said that the starting point for Anquetil should be “slightly higher” than for the Applicant. His Honour also noted the lower amount of the benefit obtained by the Applicant, being approximately $1.3 million. His Honour drew no relevant distinctions between the subjective case for each offender, or their good character.

18. [56]

    On appeal, there was no dispute that a disparity exists between the degree of criminality inherent in the conduct of each offender. In this context, no challenge was made by either party to the findings of the sentencing judge referred to in the previous paragraph. Rather, the Applicant contended that the differences noted by the sentencing judge should have resulted in a greater difference in the sentences imposed on each offender than was in fact reflected in the sentences.

19. [57]

    Five observations can be made about this argument. First, although it may be accepted that the Applicant did not devise the scheme and was not “at the very top of the hierarchy”, the findings of the sentencing judge nonetheless portray a profound, serious and protracted involvement in the conspiracy. The Applicant was a co-conspirator from the genesis of the conspiracy; he was instrumental in concealing the conspiracy from other unsuspecting staff of Plutus; and he displayed considerable dishonesty in his efforts to ensure the conspirators evaded detection by authorities, including concealing and destroying evidence (see above at [15]). This was not a case where one co-offender was merely acting at the behest or direction of another higher in the hierarchy of a criminal scheme. As Payne JA said, the Applicant was “near the top of the hierarchy”.

20. [58]

    Second, it should be noted that the Applicant’s argument in respect of the parity principle was predicated almost entirely on a comparison of the starting points and head sentences imposed upon the Applicant and Anquetil for the common conspiracy offence. However, as was observed by Dawson and Gaudron JJ in Postiglione v The Queen, [55] when comparing sentences for the purposes of the parity principle, “the head sentence is but one component”. When considering issues of parity, a court should have regard to all components of a sentence disposition, including the head sentence, the non-parole period and total effective sentences of each offender. [56] In this respect, a direct comparison between the two offenders was rendered more difficult by the second offence with which Anquetil was charged.

21. [59]

    In particular, the fact that Anquetil was sentenced for a further offence complicates the reliance placed upon the differing monetary benefits obtained by each offender. At first blush, perhaps the most significant point of disparity between the two offenders arises from the fact that Anquetil obtained approximately $12.2 million from the offending conduct, while the Applicant obtained approximately $1.3 million. The utility of this direct comparison, however, is somewhat diluted by the fact that Anquetil was sentenced for a second offence of dealing with the proceeds of the conspiracy offence, which was necessarily significantly informed by the amount of the benefit he obtained. As was observed by counsel for the Crown in oral argument, when sentencing Anquetil, the sentencing judge primarily referred to the magnitude of the financial benefit obtained by him in the context of assessing the objective seriousness of the second offence. [57]

22. [60]

    Third, and importantly, the fact that the offending of both the Applicant and Anquetil fell towards the top of the range of objective seriousness rendered it difficult to impose sentences which differed greatly in absolute terms. The Crown submitted that because the offending of both offenders fell towards the upper end of the range, the relatively modest difference in head sentences was a necessary consequence of the fact that the sentencing judge was required to sentence both offenders within a relatively confined range. As a result, it was submitted, any greater disparity between the notional starting points for each offender would have resulted in a sentencing outcome which did not appropriately reflect the objective seriousness of the offending.

23. [61]

    This submission has considerable force. As was emphasised by the sentencing judge in his sentencing remarks for both offenders, the Plutus conspiracy is one of the most serious instances of fraud on the government revenue to come before an Australian court. The magnitude of the funds misappropriated, the duration and complexity of the criminal scheme, and the lengths to which the conspirators went to conceal their misconduct combine to depict a brazen, calculated and self-interested course of criminality. In this context, it stands to reason that a divergence in the seriousness of two offender’s conduct is less likely to be capable of justifying a large reduction in sentence. [Redacted pursuant to order 4].

24. [62]

    Fourth, the thrust of the preceding submission is, in my view, supported by the particular considerations that apply when sentencing for a conspiracy offence. The sentencing judge rightly acknowledged that regard must be had to the nature of the offence as a conspiracy when attempting to discern differences between the criminality of the co-offenders. His Honour said:

25. [63]

    Fifth, to the extent that the Applicant’s argument in respect of the parity principle placed reliance on the fact that the sentencing judge had regard to the impacts of COVID-19 on custodial conditions when sentencing Anquetil, but not when sentencing the Applicant, this argument should be rejected. The parity principle’s focus is on the criminality of co-offenders being assessed differently, necessarily taking into account differences in the offender’s subjective circumstances. The fact that, by virtue of being sentenced at a time pre-dating the pandemic, the Applicant did not have a particular matter taken into account in his sentencing which Anquetil did, does not offend or attract the parity principle. That can be illustrated by the fact that the accident of timing affected not only the Applicant but also many other prisoners who were sentenced before the onset of the pandemic. It is not relevant for the purposes of parity.

26. [64]

    For the reasons I have outlined, I am satisfied that the sentences imposed by the sentencing judge on the Applicant and Anquetil are capable of being “justified by differences between… the part each has played in the relevant criminal conduct or enterprise.” [58] Having regard to the differences in the offenders’ conduct, and bearing in mind the discretionary nature of the sentencing process, the fact that parity was expressly taken onto account in sentencing Anquetil and the fact that the same judge was involved in sentencing both co-offenders, there was no relevant disparity warranting appellate intervention.

Conclusion and orders

1. [65]

   For these reasons, I would make the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is dismissed.

   3. (3)

      Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), these reasons for judgment are not to be published (other than to the parties and their legal representatives) until the earlier of:

   4. (4)

      Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), after order (3) ceases to have effect, the parts of these reasons for judgment which are marked as redacted on the file copy of the judgment initialled by the Chief Justice are not to be published (other than to the parties and their legal representatives) until further order of the Court.

   5. (5)

      Orders (3) and (4) are made on the ground specified in s 8(1)(a) of the Act, namely that it is necessary to prevent prejudice to the proper administration of justice.

   6. (6)

      Pursuant to s 11(2) of the Act, orders (3) and (4) are to apply throughout the Commonwealth of Australia.

2. [66]

   GLEESON JA: I agree with Bell CJ.

3. [67]

   YEHIA J: I agree with Bell CJ.