Daw v R

1. [1]

   BASTEN JA: The applicant, Kylie Ann Daw, sought leave to appeal from a sentence imposed on her by Sides QC DCJ in the District Court at Parramatta on 11 February 2016. A notice of application for leave to appeal was filed on 3 October 2017.

2. [2]

   Although there were two grounds of appeal, they did not raise independent issues. Each sought to compare the sentences and criminality of the applicant and a co-offender, Brad Kowalin. The applicant was charged with three offences; Kowalin with one principal offence. The offence for which Kowalin entered a plea of guilty was the supply of 6 kilograms of methylamphetamine, being a large commercial quantity of the drug; the applicant was charged with being knowingly concerned in the supply of the same quantity.

3. [3]

   The first ground of appeal alleged that the judge had erred in concluding that Kowalin’s criminality “was less than the applicant’s because his was ‘an isolated aberration’ and the drugs were ‘not being stored or processed in his garage’.” The second ground alleged an unjustified disparity in that the sentence imposed on Kowalin for the supply offence was 6 months less than the individual sentence for being knowingly concerned in the same supply, as indicated by the sentencing judge in fixing an aggregate sentence for the applicant.

4. [4]

   So far as the first ground is concerned, each of the factors was a material consideration relevant to the assessment of the respective criminality of the offenders. Neither the ground of appeal, nor the submissions in support thereof, demonstrated any arguable error which would warrant the intervention of the Court.

5. [5]

   With respect to ground 2, it was not entirely clear whether there was a real basis for the complaint of disparity in the event that ground 1 were to be rejected. There were further difficulties with ground 2. First, it was by no means clear how the indicative sentence fed into the aggregate sentence. Secondly, this was a case in which (i) the judge sentenced all three offenders involved in the supply offence together; (ii) the judgment on sentence covered 64 pages and gave careful consideration to all material circumstances, including those the subject of submissions in this Court; (iii) much of the reasoning was addressed to factors which were directly material to comparative culpability, and (iv) the judgment expressly addressed the question of parity, identifying specific aspects relevant to each offender. In a careful and comprehensive judgment, no House v The King error was established.

6. [6]

   Leave to appeal should be refused.

7. [7]

   In my view, it is not necessary to say more. The full flavour of the reasoning of the sentencing judge cannot be fully reproduced by selective quotation or in summary form. Nor is it necessary to set out the facts or the reasoning: both are well known to the parties to the appeal who have access to all relevant documents, including the judgment under appeal. The case raises no issue of principle. However, because it is common practice for the Court to give full reasons in such circumstances, it is appropriate that I should spell out my reasons for considering that approach unnecessary. Further, because there has been some disagreement as to the correct approach to grounds raising unjustified disparity, it is convenient to say something more about that issue.

Refusing leave to appeal

1. [8]

   There is no doubt that the demands made on sentencing judges have multiplied over recent decades. That is partly a function of the increased regulation of the process through statutory prescription of various kinds. It is also a function of the increasingly sophisticated reasoning adopted by appellate courts. Nevertheless, most exercises in sentencing can be undertaken by reference to three principles, namely determining whether (i) the severity of the sentence is proportionate to the objective seriousness of the offending and the subjective circumstances of the offender; (ii) equal justice has been achieved, having regard to the range of sentences imposed on others for like offending and any sentences imposed on co-offenders, and (iii) transparency has been adequately achieved in what is an inherently evaluative process through the giving of reasons for judgment.

2. [9]

   It is not necessary to say anything further about the first and third principles in this case. With respect to the third, the reasons were comprehensive. With respect to the first, it is well understood that the evaluative assessment of the seriousness of the offending and the subjective circumstances of the offender are very much matters for the sentencing judge, with which this Court should be slow to interfere. [1] That consideration is, however, directly applicable with respect to ground 1.

3. [10]

   It is the second principle, relied on for ground 2, alleging “disparity”, which calls for further comment.

4. [11]

   The scheme for criminal appeals in indictable matters (and indeed summary matters) is entirely statute-based. Relevantly for this matter, a right of appeal, with leave, against sentence is provided by s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The Act sets out no particular grounds, s 6(3) merely providing that on such an appeal, the court shall quash the sentence “if it is of opinion that some other sentence, whether more or less severe[,] is warranted in law and should have been passed”. If not so satisfied, the court is required to dismiss the appeal.

5. [12]

   While the statutory language would leave the court at large to determine the bases on which it will intervene in the exercise of a discretionary power, the scope of the appellate function is confined by well-established principles which are not in doubt. The commonly cited source for those principles is House v The King and, although the principles should be well known, they bear repetition: [2]

6. [13]

   In a case such as the present, in which the judge expressly referred to the parity principle and made a comparative assessment of the offending of the applicant and her co-offenders, it cannot be said (nor was it said) that the judge acted upon a wrong principle nor that he allowed extraneous or irrelevant matters to guide him, mistook the facts, or failed to take some material consideration into account. The question can only be whether, if the last limb of the test is applied, it can be said that “upon the facts” the sentence imposed was “unreasonable or plainly unjust”.

7. [14]

   This is a principle of restraint; the question is not what sentence the appellate court may think appropriate, but whether the sentence in fact imposed can properly be said to be unreasonable or plainly unjust.

8. [15]

   The relevant injustice in a case of alleged disparity is a breach of the principle that all must be treated equally under the law. In applying that principle, no different test should be adopted than that of an outcome which is unreasonable or plainly unjust, in the terms identified in House v The King. Further, that test does not involve a fixed criterion or standard, but rather envisages a range of outcomes outside which the sentencing judge could not reasonably stray. The range may be imprecisely defined and there will be room for different views as to where the outer limits should be placed. However, the exercise is not different because the alleged error is unjustified disparity, rather than, for example, a challenge to the objective seriousness of the offending.

9. [16]

   As explained in Green v The Queen; Quinn v The Queen, [3] “[u]njustifiable disparity is an infringement of the equal justice norm.” In a passage directed to resentencing, but equally applicable to a sentencing judge at first instance, the joint reasons continued:

10. [17]

    On the other hand, although, in the language of Lowe v The Queen, [4] it has become commonplace to ask whether the “disparity is such as to give rise to a justifiable sense of grievance”, that phrase was used in Lowe to refer to “the appearance that justice has not been done.” [5]

11. [18]

    There is no basis in the authorities to treat unjustifiable disparity as identifying a different category of appeal ground, not subject to the approach dictated by House v The King. At least that is so in a case, such as the present, where the same judge has sentenced the relevant co-offenders on the one occasion; the approach taken may need to differ where those conditions are not fulfilled and the question of disparity arises, in effect, for the first time on appeal.

12. [19]

    Different language has been used on occasion to describe the kind of disparity which may justify intervention. Hamill J has addressed below the statement in Afu v R, [6] that a ground based on disparity between co-offenders must identify a disparity which is “gross, marked, or glaring in order to justify such intervention.” I agree that those words should not be read as marking out some independent, if imprecise, criterion or standard. [7] To the extent that such language “may distract from the underlying principle”, I also agree with the scepticism expressed by Leeming JA in Miles v R. [8] Nevertheless, the use of such language in the present case is not always misplaced.

13. [20]

    Afu was a case, like the present, in which the sentencing judge had been responsible for sentencing the relevant co-offenders, on the same occasion. It is convenient to set out the full passage from which the impugned phrase has been extracted: [9]

14. [21]

    If attention has been paid by the sentencing judge to parity, which in such circumstances will usually be the case, and where none of the more specific errors identified in House v The King has been established, this Court should not intervene unless the circumstances bring the case within the residual category where it can be said that the result is so plainly unreasonable or unjust that the Court may infer error. Then the Court may intervene “on the ground that a substantial wrong has in fact occurred.”

15. [22]

    As was said by Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu: [10]

16. [23]

    When an appellate court is operating within the residual category of undefinable error, applying principles not dissimilar to those which operate in relation to judicial review, such language as “gross, marked or glaring” is not intended to provide a standard, but rather constitutes a reminder that something palpably wrong has occurred, which may require correction. If the language does “heighten the test”, that is appropriate in circumstances where appellate restraint is required. On the other hand, it would be wrong to take such language out of context and apply it as a standard of general application.

Conclusion

1. [24]

   If this approach is erroneous, I agree with Bellew J that the appeal must be dismissed, and with the reasoning for reaching that conclusion. Bellew J has concluded, with respect to ground 1, that “[t]he findings of the sentencing judge were completely justified”; [12] and, with respect to ground 2, that “there is no basis on which to conclude that the applicant has a justifiable sense of grievance.” [13] These are strong findings; while my view that they should lead to a refusal of leave to appeal will provide no different result for the applicant, the reason for refusing leave is to discourage offenders and their legal advisors from bringing unmeritorious applications.

2. [25]

   BELLEW J: Kylie Ann Daw (“the applicant”) pleaded guilty in the District Court to the following offences:

3. [26]

   The maximum penalty in respect of count 1 is 20 years imprisonment and a standard non-parole period of 10 years imprisonment is prescribed for that offence. The maximum penalty in respect of count 2 is 15 years imprisonment. The maximum penalty in respect of count 3 is life imprisonment, with a standard non-parole period of 15 years imprisonment.

4. [27]

   The applicant appeared for sentence with two co-offenders, Robert John Richards (“Richards”) who is her husband, and Brad Kowalin (“Kowalin”). Richards and Kowalin were each charged with the supply which was the subject of count 3 against the applicant. That was the sole count against Kowalin. Richards pleaded guilty to two further counts involving:

5. [28]

   Pursuant to s. 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge gave the following indicative sentences in respect of the three counts against the applicant:

6. [29]

   The sentencing judge imposed an aggregate sentence of 10 years imprisonment with a non-parole period of 5 years and 6 months commencing on 22 December 2015. The applicant will be eligible for release on parole on 22 June 2021.

7. [30]

   Kowalin was sentenced to imprisonment for 7 years and 6 months, with a non-parole period of 4 years.

8. [31]

   An aggregate sentence of imprisonment for 12 years, with a non-parole period of 8 years, was imposed on Richards.

9. [32]

   The applicant now seeks leave to appeal against the sentence imposed on the grounds set out below.

THE FACTS OF THE OFFENDING

1. [33]

   The offending in count 1 involved the applicant’s participation in the transportation, from Sydney to Townsville, of 531.3 grams of methylamphetamine secreted in the roof lining of a rented motor vehicle driven by her father. The applicant had booked flights for her brother and Richards to travel from Sydney to Townsville for the purposes of taking receipt of the methylamphetamine on arrival. The vehicle carrying the drugs was subsequently intercepted by police. When the applicant became aware that her father had been arrested, she sent a text message to Richards advising him that he should dispose of his phone because an earlier message that she had sent him contained her father’s contact number.

2. [34]

   The offending in count 2 was detected as a consequence of the lawful interception by police of telephone calls between the applicant and her brother involving the supply of drugs to an associate. The evidence established that the applicant had attended the associate’s home and supplied him with 7 grams of methylamphetamine.

3. [35]

   In respect of the offending in count 3 (which is the focus of the present application for leave to appeal) the sentencing judge found the facts to be as follows [14] :

Kowalin

1. [36]

   The sentencing judge was satisfied beyond reasonable doubt that Kowalin’s involvement in the offending was pre-meditated and that he had appreciated that he was “enmeshing himself in organised criminal activity”. His Honour then said [15] :

2. [37]

   In terms of Kowalin’s role in the offending, his Honour said [16] :

The applicant

1. [38]

   As to the applicant’s role in the offending in count 3, his Honour said [17] :

CONSIDERATIONS OF PARITY PRINCIPLES BY THE SENTENCE JUDGE

1. [39]

   The sentencing judge specifically considered the question of parity as follows [18] :

Ground 2 – The sentence imposed upon the co-offender Kowalin for the supply of a large commercial quantity of methylamphetamine, being 6 months less than the indicative sentence arrived at in relation to the applicant for her offence, gives rise to a parity error.

1. [40]

   Both grounds may be conveniently dealt with together.

Submissions of the applicant

1. [41]

   Counsel for the applicant submitted that there was no proper basis for the sentencing judge to find that Kowalin’s criminality was less than that of the applicant. It was emphasised, in particular, that the applicant’s “less active role” which his Honour had referred to was limited to permitting, or acquiescing in, the garage of her premises being used for the storage and repackaging of the drugs.

2. [42]

   It was further submitted that in circumstances where the sentencing judge had found that neither the applicant nor Kowalin was remorseful, the “minor discrimination” in each offender’s prospects of rehabilitation did not justify a conclusion that Kowalin should be penalised in any significantly lesser way.

3. [43]

   Counsel also submitted that the applicant was not to be sentenced for agreeing with Richards and Kowalin to supply a large commercial quantity of drugs, or as an accessory. It was emphasised that the applicant was in fact to be sentenced for taking steps in the process of drug supply. It was submitted that in all of the circumstances the applicant’s criminality was necessarily lower than that of both of the co-offenders and that both grounds of appeal were made out.

Submissions of the Crown

1. [44]

   The Crown submitted that it was firstly necessary to bear in mind that the same judge had sentenced all three offenders and as a result, was in a position to properly consider the interrelationship between the various objective and subjective considerations in respect of each of them. It was submitted that in these circumstances, it was necessary for this court to adopt a cautious approach in determining whether the applicant had a justifiable sense of grievance in light of the different sentencing outcomes.

2. [45]

   The Crown submitted that the sentencing judge was obviously mindful of parity principles, and had taken care to assess the differences in objective culpability, and the subjective circumstances, between each of the offenders. It was submitted that the applicant’s objective criminality was not less than that of Kowalin and that the sentence imposed the applicant was justified in light of the assessment which had been undertaken of the respective cases.

Consideration

1. [46]

   In terms of ground 1, it was open to the sentencing judge to reach the conclusions that he did concerning the relative criminality of Kowalin and the applicant in respect of the supply which was the subject of count 3.

2. [47]

   The sentencing judge properly emphasised that the methylamphetamine was being stored and processed in premises the applicant shared with Richards. In other words, the applicant had played a part in making those premises available for the purposes of conducting significant drug related activity. The submission that the applicant’s “less active” role was limited to permitting the use of her premises has a tendency to understate that aspect of her criminality. The fact is that by making her premises available, the applicant played a significant role in facilitating the commission of a serious offence.

3. [48]

   Further, and in addition to making her premises available, the applicant also had a significant “hands on” role. As the sentencing judge outlined, she performed a number of activities which were directed towards preparing the drug for the purposes of actual supply.

4. [49]

   It follows that, when viewed as a whole, the applicant’s criminality in respect of count 3 was greater than that of Kowalin. The findings of the sentencing judge were completely justified and ground 1 is not made out.

5. [50]

   Ground 2 raises a parity issue. In Afu v R [19] this Court made the following observations regarding the operation of parity principles (citations omitted):

6. [51]

   The written submissions of the Crown contained the following table summarising the sentences imposed upon each of the offenders, as well as aspects of their individual circumstances:

7. [52]

   For a number of reasons, ground 2 is not made out.

8. [53]

   Firstly, the differences in the objective criminality of the applicant on the one hand and Kowalin on the other which I have discussed when dealing with ground 1 go some way to explaining the different sentences which were imposed.

9. [54]

   Secondly, the applicant’s offending in respect of count 3 was part of a significant and ongoing involvement in the supply of prohibited drugs. That alone raised the totality of her objective criminality substantially beyond that of Kowalin, whose offending was centred solely upon the circumstances giving rise to count 3. In those circumstances, Kowalin’s offending was properly described by the sentencing judge as an isolated aberration.

10. [55]

    Thirdly, the sentencing judge sentenced all three offenders. In doing so, he specifically adverted to the necessity of considering parity principles.

11. [56]

    Fourthly, the sentencing judge took into account the assistance rendered by Kowalin by surrendering himself to the authorities upon being made aware that they had sought his arrest. Whilst that may have been a relatively minor factor, it was not a characteristic of the applicant’s subjective case.

12. [57]

    Finally, the sentencing judge found that Kowalin’s prospects of rehabilitation were greater than those of the applicant and indeed, were the best of all three offenders. In concluding that the applicant’s prospects were “not more than reasonable”, the sentencing judge highlighted:

13. [58]

    The submissions of counsel for the applicant tended to suggest that the sole difference in the subjective cases of the applicant and Kowalin was the “minor discrimination” in each offender’s prospects of rehabilitation. For the reasons to which the sentencing judge referred, the “discrimination” was not minor but in any event, the differences in the two subjective cases were not limited to that factor.

14. [59]

    In my view, there is no basis on which to conclude that the applicant has a justifiable sense of grievance. The sentence imposed upon her is completely explained by the circumstances which I have outlined. It follows that ground 2 is not made out.

ORDERS:

1. [60]

   I propose the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is dismissed.

2. [61]

   HAMILL J: I agree with the orders proposed by Bellew J and, with one qualification, with his Honour’s reasons.

3. [62]

   The qualification arises from the reference at [50] to the decision in Afu v R and the observation in that case that “any disparity must be gross, marked, or glaring in order to justify such intervention”. [20] As I explained in Cameron v R, [21] I do not accept that this is the correct test when an applicant asserts unjustified disparity as a ground of appeal. There is no need to repeat what I said in Cameron v R on this issue. However, in Miles v R, [22] both Leeming JA and Rothman J adopted the approach I took in Cameron v R. [23] I maintain the view that the application of epithets such as “marked”, “gross” or “glaring” do not form part of any relevant legal test and is not justified by reference to High Court authority. I adopt the observation of Leeming JA in Miles v R that:

4. [63]

   I also note his Honour’s observation that the approach does not appear to be followed in other states.

5. [64]

   However, I do not understand that Bellew J has applied such a test (if it be a test) in the present case. The application of the principles explained by the High Court in cases such as Lowe v The Queen, [24] Postiglione v The Queen, [25] and Green v The Queen [26] lead to the conclusion that the grounds of appeal in the present case cannot be upheld for the factual reasons explained by Bellew J.