LS v R

HOEBEN CJ at CL:

A Form 1, containing the following offences, was to be taken into account in the indicative sentence for Count 1.

The applicant was sentenced to an aggregate sentence of 7 years, commencing 16 December 2014 and concluding 15 December 2021, with a non-parole period of 5 years and 3 months concluding on 15 March 2020.

The indicative sentences were:

A Notice of Intention to Apply for Leave to Appeal was filed on 4 April 2016. The applicant relies upon four grounds of appeal:

The offences occurred over a seven month period in 2014. They occurred during the applicant’s involvement in various drug supply activities in association with members of the Rebels Outlaw Motorcycle Club, Ballina chapter. His involvement arose after he met a co-offender, DK, who was a ranking member of the Rebels gang while he was in prison. After release in 2009, DK became the President of the Ballina chapter and the applicant, having a drug habit and with limited employment prospects, began selling drugs for DK. He subsequently became a nominee and member of the Rebels club.

Following his first contact with DK, upon his release from prison the applicant immediately became indebted to him in relation to drugs. That debt continued throughout their relationship and at the time of his arrest, the applicant still owed DK $27,000. The applicant made a couple of unsuccessful attempts to extricate himself from his indebtedness and from membership of the Club. Since his arrest, he has assisted authorities by providing detailed induced statements and potentially will give evidence in a significant number of trials of his accomplices. He has been in custody since 16 December 2014.

Police investigators, attached to the Richmond Local Area Command Drug Investigation Unit, commenced an investigation targeting the supply of prohibited drugs by members and associates of the Rebels Club in 2014. A controlled operation was part of that investigation. The applicant was soon identified as associated with the Ballina chapter of the Rebels Club.

In relation to Count 1, the quantity of amphetamine that the applicant supplied was 296.88 grams. The commercial quantity is 250 grams.

On 14 May 2014 a co-offender, DNK, was identified through telephone intercepts arranging the supply of speed to a male person. The purchaser phoned DNK on that day asking for “two things” and said that he had been trying to contact the applicant. DNK is heard on the telephone intercept the applicant asking if he had “two of those things”. This was a reference to two ounces of speed.

The applicant gave DNK directions to his house. DNK arrived and retrieved two containers of speed or amphetamine from a log hidden outside the applicant’s house. Phone records reveal that DNK later met with the purchaser at Woodburn, near the Pacific Highway in northern New South Wales, and supplied him with the drugs. That supply is one part of the commercial supply charge. The second and more serious part, relates to the supply by him of 9 ounces of amphetamine to a registered police source.

On 25 September 2014 telephone intercepts identified DK contacting the applicant and another co-offender. Later in the day, DK and that co-offender attended the applicant’s property and arranged for the supply of 9 ounces of amphetamine to the registered police source. The applicant was to act as the middle man in this arrangement. The following day, a co-offender contacted the police source and provided directions to the applicant’s property. The police source later attended the applicant’s property and was supplied with 240.88 grams of amphetamine which was subsequently seized by police.

During the investigation, police captured telephone conversations between the applicant and others, many of which were in coded talk and related to the sale of amphetamine. Those conversations gave rise to the charge of supply prohibited drug between 15 September and 15 December 2014 that is on the Form 1. In addition, the applicant acknowledged that his drug related activities occurred as part of the activities of a wider criminal group of which he was a member. He participated in those activities. He was contributing to the occurrence of criminal activity. In evidence, the applicant said he had to pay dues for his membership of the club. Those facts gave rise to the second count for which the applicant was sentenced.

The applicant was ultimately arrested at his property on 16 December 2014. A search warrant was executed on the property and police found 18 cannabis plants growing there. Those plants gave rise to the matter on the Form 1 of “cultivating 18 prohibited plants”.

After execution of the search warrant, the applicant co-operated with police and told them that he had a number of firearms hidden on his property. He directed them to their location on 17 December 2014. Police found a .22 self-loading rifle and a 12 gauge Bentley pump action shotgun, both of which were shortened and prohibited. Electronic surveillance identified the applicant shortening the barrel of the .22 firearm and test firing it afterwards. There was also a .22 self loading pistol, which is classified as a prohibited pistol, and an imitation Colt self-loading pistol, which under the Firearms Act is taken to be a pistol.

Police found 41 x 12 gauge cartridges and 4 x .22 long rifle calibre cartridges, suitable for use in the .22 self loading rifle and the self loading pistol. Those matters gave rise to Count 5 being in possession of more than three firearms and Count 6, being in possession of a shortened firearm. Another shortened firearm offence was on the Form 1.

Electronic surveillance captured a number of incidents of domestic violence committed by the applicant against his partner. On 30 October 2014, they were heard having an argument in the course of which the applicant said “It’s locked and loaded, I got my finger on the trigger, I will put a bullet straight through your head, don’t f--- with me”. His partner is heard to plead with him. The applicant subsequently admitted that during the course of that altercation, he pointed the firearm at her head. Those matters gave rise to a common assault charge (Sequence 6) and a stalk/intimidate charge (Sequence 7) on the Form 1.

On 12 November 2014 electronic surveillance picked up the applicant verbally abusing his partner, calling her “a low rank piece of s--t” and other derogatory names. He is also heard telling her that he will kill her. He was heard to say to her that he felt like smacking something across her face and splitting her nose clean. She was screaming and pleading with him not to hurt her.

Later the same morning, the applicant expressed his anger over text messages by abusing his partner and calling her a liar. She was again screaming and pleading with him not to hurt her any more. He was heard on several occasions telling her to get up and she is heard saying “Ouch”. He is also heard threatening to slit her throat and bury her. Those matters gave rise to Sequence 8 (common assault) and Sequence 9 (stalk/intimidate) on the Form 1.

On 13 November the applicant is again heard abusing his partner, calling her “a drug f--k slut and a weak dog”. He is heard slapping her and telling her he will kick her head in and kill her. She is again heard begging him not to hurt her and talking to him later that day about being in pain and there is a further conversation discussing bruising on her body. He is later heard saying that she made a huge mistake so he “slapped her around a bit”. Those matters gave rise to Sequence 10 (common assault) and Sequence 11 (stalk/intimidate) on the Form 1.

On 23 November the applicant and his partner were again arguing. She was crying, screaming and pleading. That incident continued for a period of time during which she was crying and the applicant was yelling. That matter gave rise to Sequence 12 (stalk/intimidate) on the Form 1.

On 28 November 2014 the applicant is heard to become angry at his partner. She is heard screaming in fear and begging him not to hurt her. He is heard to slap her. She is heard telling her mother that he had almost knocked her out on the previous night. During phone calls, the applicant admitted assaulting her, referring on one occasion to “kicking the f--k out of her”, throwing her around and dragging her out of bed by the hair. Those matters gave rise to Sequence 13 (common assault) and Sequence 14 (stalk/intimidate) on the Form 1.

On 17 December the applicant took part in an electronically recorded interview. He made full admissions in relation to the firearms offences and domestic violence offences. He admitted ownership of the firearms, ammunition and other firearm parts and advised where he had hidden the weapons. He said that he had bought the replica pistol about three years before. He said that he had bought the .22 pistol for $2,200 and agreed that it had three rounds of ammunition in the magazine, though not chambered. In relation to the .22 rifle, he admitted purchasing it illegally and cutting it down a few years earlier when he was living at another address because he claimed the barrel was rusty. The applicant said that he did not know it was an offence to shorten a firearm.

The applicant said that the .22 rifle did not work as it jammed, however, when test fired by ballistics experts, the .22 rifle was shown to be in working order.

The applicant gave evidence in the sentence proceedings. Her Honour rejected his testimony that he did not know that it was an offence to shorten a firearm. This was not only because the .22 rifle was shown to be in working order but because the applicant had said elsewhere that he knew guns and liked guns and was experienced with them. Her Honour noted that the applicant gave conflicting reasons for having shortened the firearms which were found on the property. The applicant admitted to having fired the guns.

Her Honour rejected the submission that but for the applicant’s assistance, police would not have located the guns. Her Honour’s understanding of the evidence was that the police knew of the existence of the weapons, but did not know where they were hidden. Accordingly, her Honour was prepared to make an allowance for the assistance the applicant gave to police in telling them where the weapons were hidden and thereby removing the necessity for police to search for them.

The applicant admitted the offences committed against his partner, including pointing the pistol at her head. He said that he had been drinking at the time and was angry with her because she had run off with his worst enemy for a week. The applicant said that he loved her and did not intend to harm her.

Her Honour noted that his partner gave evidence in his favour during the sentence proceedings, that they remained in a relationship and that she remained supportive of him. The applicant said that in relation to his physical assaults on her, he knew that it was not right and he expressed his remorse for those actions during the sentence proceedings.

Her Honour found that the applicant was frank in disclosing the way he had behaved towards his partner. Her Honour accepted that he recognised that despite the fact that he did not intend to hurt her, his partner would have been terrified by his actions. The applicant said that at the time his behaviour towards her was affected by his ongoing drug habit and the stress of his then lifestyle. He said that during that period, he had a bad attitude and was not thinking properly. He said that the enormity of what he had been doing did not sink in until much later. He conceded that he had been using steroids in order to retain his physique.

He said that all in all, in relation to those matters, he simply was not mentally coping with the situation that he was in.

The applicant confirmed in his evidence what he had told the psychologist, i.e. that he quickly became indebted to the co-offender, DK, because of his drug use and that he started engaging in drug supply on behalf of DK.

He confirmed that he still owed a debt of $27,000. He said that he had tried to extricate himself from the club but because he owed DK money, it was not simple. The applicant said that he understood that DK knew that he would not be able to go anywhere and that he would be found if he did try to get away without paying the debt.

The applicant explained that he had tattoos on his face which were quite marked in order to blend in with the group that he associated with and as a “stay away” factor for other outlaw motorcycle club members. He said that he mainly continued supplying drugs to others because of the debt he owed. He said that he was never asked by DK whether he wanted to engage in particular acts of supply or similar activities. He just knew that he had to do what DK wanted him to do.

When considering the objective seriousness of the drug supply offence in Count 1, her Honour had regard to the maximum penalty of 20 years imprisonment and the standard non-parole period of 10 years. Her Honour also noted that there were two transactions, even though the amount of drugs supplied was just over the 250 grams necessary to establish a commercial supply. Her Honour also noted that it was part of a pattern of offences that had continued for an extended period of time. This was not an isolated example of such offending.

Her Honour took into account as a most serious aspect of this offence that the applicant was part of an organised criminal group that had an almost endless willingness and ability to supply such drugs. She assessed his position as well above that of a street dealer and he was more properly to be regarded as a trusted middle man and at that time, one of DK’s right hand men.

Her Honour noted that he was entrusted with a significant quantity of drugs that were worth a considerable amount of money. Her Honour also took into account that he was motivated in carrying out those offences by the drug debt and by his own drug use. Her Honour found that the objective seriousness of Count 1 to be within the mid-range, although towards the lower end of that range.

In relation to Count 2, her Honour observed that when assessing criminal groups, an outlaw motorcycle club was to be regarded as a most dangerous example of such a group and on the applicant’s own admission during his evidence, the Rebels club was the largest in the country. Her Honour found that the applicant would have been well aware of the strength and size of that organisation, having gone on national rides.

Her Honour noted that on one hand, this made it a more serious example of such an offence, but on the other hand it also confirmed the applicant’s difficulty in extricating himself from such a group. Her Honour accepted that a group of this kind was well organised, well resourced and was prepared to use extreme violence involving weapons. Her Honour found that although the applicant was trapped in this group by debt, he was also fully aware of the seriousness of his behaviour and that it was “a large ugly crime scene”. Her Honour assessed the objective seriousness of the offence in Count 2 to be in the upper range. Her Honour noted that his actual participation in this group was for a period of some months and he demonstrated a preparedness to act under the instructions of DK.

In relation to the domestic violence offences her Honour found that they were extremely frightening episodes for his partner who, on several occasions, was pleading for her life. These were not one-off instances of such behaviour, but were part of a pattern of intimidation. His behaviour towards her involved weapons and in particular, firearms.

Her Honour noted that the applicant admitted to assaulting his partner very seriously on occasions. Her Honour found that although drugs might have affected his judgment, they also made him very dangerous in his behaviour towards his partner in that he was both irrational, unpredictable and armed. Her Honour concluded that although the applicant had apologised for the domestic violence offences, he tended to minimise his behaviour towards his partner by claiming that he believed that she had been unfaithful to him.

Her Honour found that the applicant’s partner had been subjected to these terrifying ordeals for at least a couple of months. Her Honour found that each of those offences fell in the upper range of seriousness for offences of that kind.

In relation to the firearms offences, her Honour took into account that the firearms themselves were of a dangerous kind, being self-loading. They were in working order. Her Honour did not accept that the weapons were not in particularly good working order. Her Honour was satisfied beyond reasonable doubt that the applicant had those weapons for his own protection. She did not regard that as a factor which mitigated the objective seriousness of the possession by him of such weapons. She found that because he was involved in the drug business, this gave rise to a need for him to protect himself by using those weapons. Taking all those matters together, her Honour assessed the firearms offences as falling within the middle range of objective seriousness.

Her Honour took into account the applicant’s subjective case. At the time of sentence he was aged 30, having been born in 1986. His criminal record was serious for his age and he had already been in prison for extended periods. In April 2004 he had committed an offence of breaking and entering a building for which he was sentenced in 2007 to a 2 year s 9 bond. When aged 18 in 2004, he committed offences of possessing prohibited drugs, having custody of a knife and driving a vehicle in a manner dangerous, as well as failing to undergo a breath analysis test. He was sentenced to a s 9 bond for 12 months. When he was 20 he was sentenced to his first term of imprisonment which consisted of a 4 month non-parole period and a 12 month overall sentence. There was a stalk/intimidate offence for which he was given the same sentence. When he was 21 he was sentenced for an array of less serious offences which included intimidating a police officer. For those offences he was sentenced to fines, a s 9 bond for 18 months and a suspended sentence for 7 months. Later the same year, whilst he was still 21, he was sentenced to imprisonment for 3 months for an offence of destroying property. When he was 22 he was sentenced for offences against police, to terms of imprisonment for 6 months and 4 months respectively.

The applicant relied upon a psychological report from Ms Akers, dated 13 May 2013, and a report from Dr Bruce Westmore, dated 21 December 2015. These reports described a childhood characterised by severe physical and emotional abuse at the hands of his father. The applicant was exposed to severe domestic violence and alcoholism. Her Honour noted that alcoholism seemed to run in the family, with both his father and grandfather being afflicted by that disease. There were numerous separations (in the order of 14) between his parents, which caused significant dislocation in his living conditions. His mother would spend time in women’s refuges and he and his siblings would spend time in youth refuges when the necessity arose, to escape from his abusive father.

The applicant formed a relationship when he was very young with a much older partner with whom he had three children. He is unable to see those children. He has a son from another relationship. There are no children from his present relationship.

The applicant’s employment has been irregular and intermittent over the years. He has had ongoing issues with both alcohol and illicit drugs. He commenced using alcohol and cannabis at the age of 12. He was heavily using alcohol from the age of 14. He commenced using amphetamines when he was 19.

Her Honour summarised the effect of the psychological and psychiatric material as identifying problems with anger, aggression, drug and alcohol abuse and criminality. The experts considered that those matters had been shaped by his childhood experiences of significant trauma and a consequent inability to rehabilitate after the periods that he had spent in custody from a young age. Dr Westmore diagnosed alcohol abuse disorder and substance abuse disorder. Dr Westmore was also of the opinion that he displayed symptoms of post-traumatic stress disorder and antisocial characteristics.

Her Honour accepted that the applicant’s plea of guilty was early and allowed him a 25 per cent discount for its utilitarian value. She considered that his assistance to police through admissions and induced statements, was of a high order. Accordingly, her Honour allowed a total discount for both the plea and assistance to police of 50 per cent. Her Honour allowed a discount of 10 per cent for past assistance and 15 per cent for future assistance. Her Honour noted that the opinion of investigators was that his assistance had been significant and useful. Her Honour also had regard to the timeliness of the assistance, i.e. he made comprehensive admissions from 17 December 2014, very shortly following his arrest.

Her Honour also took into account that because of his assistance, the applicant suffers and will continue to suffer harsher custodial conditions. He gave evidence that he generally spent 17-18 hours a day in his cell. Her Honour noted that the applicant would continue to be under threat and would need to remain in protective custody while he served his sentence and beyond that, once he is released into the community.

Her Honour took into account that there was a risk to both him and his family resulting from the assistance which he had given and from his undertaking to assist in the future.

Her Honour took his assistance into account as indicative of a desire to rehabilitate himself. In his evidence, the applicant accepted that by giving such assistance he had no option but to make a clean break from his former associates and that for him, there was no going back.

Her Honour found in line with the opinion of Dr Westmore that there was a direct relationship between his personality difficulties, vulnerabilities and immaturity and his participation in the club and its associated illegal activities.

Her Honour found that the applicant had relatively good prospects of rehabilitation. She characterised his presentation when giving his evidence in court as “intelligent, articulate with some considerable insight into his problems and what he needs to do to rectify those matters”.

Despite those positive factors, her Honour found that the offences were serious, in particular that such serious drug, firearm and domestic violence offences required significant deterrence, both general and specific. Her Honour took into account that his offending would have undoubtedly caused considerable harm to the community. She regarded the offending as requiring significant punishment and denunciation.

In relation to parity, her Honour noted that she had sentenced DNK to imprisonment with a non-parole period of 18 months with a total term of 3 years. She had done so because DNK was convicted of less serious charges than the applicant and for a significantly fewer number of offences. His involvement was shorter than that of the applicant and involved a lower quantity of drugs. Her Honour also noted that DNK had a much stronger subjective case in that he was a younger man at the time of his offending (19/20) and had no criminal record.

Her Honour declined to make a finding of special circumstances. This was because her Honour had taken into account his hardship in custody when applying the discount for assistance and because there were no other circumstances that warranted an adjustment of the non-parole period.

The applicant submitted that when one took into account the 50 per cent discount allowed by her Honour for his early plea of guilty and assistance to authorities, it was clear that the indicative sentences for Counts 1 and 2 were excessive and that this must have affected the aggregate sentence thereby strongly suggesting that it also was excessive. The applicant submitted that when carrying out that exercise, the notional starting point for the indicative sentence for Count 1 was 11 years, with a non-parole period of 8 years and 2 months, and the notional starting point for Count 2 was imprisonment for 3 years and 8 months. This was against a background of the maximum penalty for Count 1 being imprisonment for 20 years and the maximum penalty for Count 2 being imprisonment for 5 years.

The applicant submitted that the quantity of drugs, which gave rise to Count 1, was only 296.88 grams, which was towards the lower end of the range of quantities captured by s 25(2) of the Drugs Misuse and Trafficking Act. He submitted that there was no evidence of the monetary value or purity of the drug and that two incidents of supply were involved, neither of which if dealt with individually would have constituted the offence. The applicant noted that he carried out the supply which gave rise to the offence at the direction of DK, who was then president of the Ballina chapter of the Rebels club.

The applicant submitted that there was no basis in the evidence for her Honour’s finding that he was part of an organised criminal group that had an “endless willingness and ability to supply such drugs”. The applicant submitted that the Agreed Facts contained no reference to an “almost endless willingness and ability to supply such drugs” and only identified two instances of actual supply. Those instances were approximately four months apart. The applicant submitted that this error in fact finding must have influenced both the indicative sentence for Count 1 and also the aggregate sentence.

The applicant submitted that as a result, her Honour had erred in assessing the objective seriousness of this offence as falling “within the mid-range though towards the lower end of that range”. The applicant submitted that her Honour should have found that the offending in Count 1 was towards the lower end of the spectrum of conduct to which s 25(2) applied.

The applicant referred to the decisions of Yeung v R [2018] NSWCCA 52, Why v R [2017] NSWCCA 101; Kemp v R [2014] NSWCCA 153 and Kurniawan v R [2017] NSWCCA 171. The applicant submitted that the amount of drug in those cases was similar to that which gave rise to Count 1 but the sentences imposed were significantly less than the indicative sentence proposed for Count 1.

The applicant submitted that although only four cases were involved, their facts were so similar to what had occurred here as to strongly suggest error in the sentence for Count 1 indicated by her Honour.

When considering these grounds of appeal, one needs to keep in mind the matters to be resolved by the Court identified by Schmidt J (Macfarlan JA and Wilson J agreeing ) in DS v R [2017] NSWCCA 37 at [63]-[64]:

As the High Court has said on many occasions, manifest excess is “a conclusion” (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6]) and one that must be reached after giving due weight to all the circumstances, including the maximum penalty. As Johnson J recently said in Book v R (Bathurst CJ and Price J agreeing) [2018] NSWCCA 58 at [54]-[56], to succeed on this ground the applicant must establish that the sentence was “unreasonable” or “plainly unjust”: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [59].

Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context of there being no single correct sentence, noting that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for each offence by balancing many different and conflicting features: Markarian v The Queen at [27]; Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [34].

To succeed on this ground, it must be concluded that the length of the sentence is such that there was some misapplication of principle even though where and how may not be apparent from the sentence judgment: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58]; Hili v The Queen; Jones v The Queen at [58]-[59], [75]-[76].

Accordingly, this Court will not interfere merely because it may have exercised the sentencing discretion differently (Obeid v R [2017] NSWCCA 221; 350 ALR 103 at [443]; Markarian v The Queen at [28]), as there will be a range of possible sentences that could be imposed without error: AB v The Queen [1999] HCA 46; 198 CLR 111 at [128]. The maximum penalty for an offence is an important guidepost which must be considered in assessing the appropriate penalty to be imposed (Director of Public Prosecutions v Dalgleish [2017] HCA 41; 349 ALR 37 at [10]; Markarian v The Queen at [31]; Muldrock v The Queen [2011] HCA 39; 244 CLR 120).

The applicant also sought to establish manifest excess by pointing to what he submitted were specific errors in Grounds 1.1 and 1.2.

In relation to Ground 1.1, the factor which her Honour was identifying was that the two episodes of supply which made up Count 1 placed in context, were not isolated incidents. They could not be separated from the applicant’s role, both in the Rebels Club and in the supply network. His role was found to be above that of a street level dealer and more akin to a trusted middle man or lieutenant. It was clear from the telephone intercepts that he was entrusted with large quantities of drugs and that the manufacture of amphetamine regularly took place on his property, albeit he does not appear to have been physically involved in that manufacture.

Although the applicant’s position in the criminal group gave rise to the offence in Count 2, it cannot be ignored when considering Count 1. Her Honour was entitled to take into account as a relevant factor when considering Count 1 that the episodes of supply occurred as part of the activities of an organised criminal group. That was an important consideration which clearly distinguished this case from the four cases identified as being similar in the applicant’s submissions.

Moreover, the submission that her Honour made a factual error when referring to an “endless willingness and ability to supply such drugs” overstates the issue. What her Honour was making clear was the context in which the supply offences occurred. What clearly emerges from the agreed facts is the ease with which the Rebels gang arranged for the supply of drugs and when necessary, their manufacture. One also cannot ignore the contents of Annexure “B”, which was referred to in the affidavit of Ms Etnasios, and which set out some of the assistance provided by the applicant. There are also the applicant’s statements of 27 January and 20 April 2015 which set out in detail the activities of the Rebels gang. Accordingly, when all of those matters are taken into account, it is clear that her Honour did not err in making the observation which she did which forms the basis of Ground 1.1.

When regard is had to those matters, and in particular the role of the applicant in the criminal organisation, it is clear that her Honour’s assessment of the objective seriousness of the offending in Count 1 was well open to her. On that issue, the observation of Spigelman CJ (with whom Simpson and Adams JJ agreed) in Mulato v Regina [2006] NSWCCA 282 at [37] remains valid and has been restated by this Court on many occasions:

Her Honour identified the following factors in arriving at her assessment of the objective seriousness of Count 1:

As already indicated, in relation to Ground 1 generally, although the quantity of drugs in the four cases relied upon by the applicant was similar to the quantity involved in Count 1, there are differences not only between those cases and this matter, but as between the individual cases themselves. Most particularly, none of those cases have as their background the operations of a organised criminal group such as we have here. It is trite to observe that four cases are a very small sample, given the broad spectrum of facts to be found in cases concerned with drug supply. It is also somewhat trite to observe that what is required in sentencing is not some kind of numerical equivalence based on the quantity of drugs involved, but consistency in the application of legal principle.

Even if one has regard to the notional starting point of the indicative sentences in Counts 1 and 2, they do not of themselves, indicate manifest excess. A starting point of 11 years with a non-parole period of 8 years and 2 months is appropriate when considered against the maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. It reflects her Honour’s assessment of the objective seriousness of the offending. The same comment could be made in relation to Count 2. Her Honour assessed the objective seriousness of that offence to be “in the upper range”. The notional starting point for the indicative sentence is in accordance with such an assessment, i.e. 3 years and 8 months.

When one has regard to the aggregate sentence (which is the only sentence which can be the subject of appeal), the statutory guideposts, the number, nature and objective circumstances of the various offences, the aggravating factor that the offences were committed in breach of conditional liberty, the list of matters on the Form 1, along with the applicant’s subjective circumstances, the aggregate sentence has not been shown to be outside the range of sentences open to her Honour. This ground of appeal has not been made out.

The applicant submitted that the discount for his assistance to authorities, pursuant to s 23, involved error on the part of her Honour in that it did not to properly accord with her Honour’s findings as to the high degree of assistance that he provided to police in terms of making five statements over a period of five months and undertaking to give evidence against nine co-offenders in numerous proceedings in circumstances where those persons were members of the Rebels Club. The applicant also relied upon what was described as an “additional Ellis factor”, being the location of the firearms.

In support of that submission the applicant noted her Honour’s acknowledgment that the Rebels Club operated Australia wide and that the degree and extent of his assistance had resulted in a real and significant danger or risk of death or injury to himself and his family and that this would continue for the rest of their lives. The applicant noted that her Honour had also acknowledged that the applicant would suffer harsher custodial conditions because of his assistance.

The applicant submitted that a more appropriate discount would have been in the order of 30 to 40 percent and that her Honour appeared to have impermissibly constrained the exercise of her discretion under s 23 by restricting the total discount to 50 percent. The applicant submitted there was nothing in the legislation which required that a combined discount for assistance and an early plea of guilty should not exceed 50 per cent.

Section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) relevantly provides:

Some guidance as to the operation of the section was provided by this Court in Z v R [2014] NSWCCA 323 where McCallum J (Hoeben CJ at CL agreeing in principle but not with the result and Garling J agreeing) said at [24]:

In the present case, her Honour found the assistance provided to be of a “high order”. In assessing the value of the assistance, her Honour had regard to the undertaking to give evidence and the accompanying statements made by the applicant, as well as the material in the sealed envelope. With regard to the matters under s 23(2), her Honour found that:

Her Honour took into account that to some degree, despite the comprehensive and timely nature of the assistance, the assistance was limited to a preparedness to make induced statements and that as a result, the applicant had avoided the consequences of a number of other offences in which he was involved and which he had disclosed in relation to his co-offenders.

Nowhere in her Honour’s discussion of the assistance, and in her reasoning in relation to it, did her Honour say either implicitly or expressly that she felt that she was constrained in the exercise of her discretion not to allow a discount of greater than 50 per cent unless exceptional circumstances were involved. It is, however, clear from her Honour’s remarks that she had specific regard to the requirement that the sentence imposed not be unreasonably disproportionate to the nature and circumstances of the offending. In this regard, her Honour said:

As is clear from her remarks, her Honour took into account in the exercise of her discretion all of the factors now said to warrant a higher discount for assistance and subsequently arrived at a sentence that in the circumstances of the present case she considered reflected the objective seriousness of the various offences committed by the applicant. In other words, her Honour engaged in a process of intuitive synthesis and arrived at a “bottom line” beneath which the sentence could not legitimately be set. No error has been established by the applicant in the manner in which her Honour applied the relevant principles in determining the combined discount of 50 per cent. It was well open to her Honour, given the criminality and the number and nature of the offences for which the applicant was required to be sentenced, to conclude that the aggregate sentence imposed could not legitimately be lower and still be regarded as appropriate in all the circumstances.

This ground of appeal has not been made out.

This ground of appeal was withdrawn during the hearing of the appeal.

The applicant submitted that the most significant of the two actual supplies that made up Count 1 was the offence for which the co-offenders, DK and GM, were sentenced and that he had a justifiable sense of grievance given the sentences imposed on those co-offenders. The co-offenders, DK and GM, were sentenced by her Honour Tupman SC DCJ in the District Court at Sydney with a further offender, TC, in August 2017. Judge Tupman noted that those offenders were to be sentenced for multiple offences, some of which were common but most of which were not. They were committed in circumstances that were, however, common to all offences. All three offenders were arrested on the same day as the applicant, following the police investigation code named “Badim” into the activities of members or associates of the Ballina chapter of the Rebels Motorcycle Club. The applicant accepted that the sentence imposed on TC was not relevant, given the limited nature of his offending.

The applicant argued that his justifiable sense of grievance resulted from the sentences imposed on DK and GM. The first offence, common to all three offenders, was the supply of amphetamines which was Count 1 on the applicant’s indictment, Count 7 on DK’s indictment and Count 13 on GM’s indictment. It is to be noted that the applicant was sentenced for the supply of a commercial quantity of amphetamine (296.88 grams) pursuant to s 25(2) while DK and GM were both sentenced for the supply of 240 grams of amphetamine pursuant to s 25(1) which carried a lesser maximum penalty and no standard non-parole period.

The second offence, common to the three offenders, was that of participating in a criminal group. This offence was Count 2 on the applicant’s indictment and Count 15 on each of DK’s and GM’s indictments. DK was charged with directing a criminal group which is a more serious offence with a higher maximum penalty.

GM was sentenced by Tupman DCJ on 11 August 2017 and DK on 14 August 2017.

The indicative sentence proposed for DK for Count 7 was one of 4 years and for Count 15 it was one of 2 years and 6 months. Both sentences took into account a 20 per cent discount for his plea of guilty.

The indicative sentence proposed for GM for Count 13 was one of 3 years and 3 months and for Count 15 was one of 18 months. Both sentences took into account a 20 per cent discount for his plea of guilty.

The applicant submitted that the offending for which DK was sentenced that involved him as a co-accused, was significantly more serious, given that DK was the president of the Ballina chapter of the Rebels Club with the power and authority to direct the drug supply activities of his co-offenders. The applicant submitted that this offending as co-offenders occurred in a context where the overall offending of DK involved six separate “dis-amalgamated” supply and agree to supply offences which occurred over a five months period and concerned amounts of 374.7 grams of amphetamine and 139.5 grams of methylamphetamine. DK’s position was that of principal of an organised drug supply and manufacture operation, and his offending was considerably more serious than that of the applicant in the comparable offences of Count 1 and the Form 1 supply offence.

Similarly but to a lesser extent, the applicant submitted that the offending for which GM was sentenced that involved him as a co-accused was more serious than his offending in that GM was active in negotiating the supply with the purchaser. The applicant noted that the sentencing judge accepted that GM’s role was that of a middle man acting under instructions from DK, but also exercising some authority as evidenced by his separate negotiations with RS.

The applicant submitted that both co-offenders, DK and GM, had previous convictions for numerous supply prohibited drug offences committed in similar circumstances as members of the Rebels Club. DK was sentenced to imprisonment for 4 years with a non-parole period of 2 years and GM was sentenced to imprisonment for 3 years and 3 months with a non-parole period of 1 year and 9 months. DK had other convictions, including an offence of break, enter and steal, which occurred on 14 November 2014 for which he was sentenced to imprisonment for 3 years and 9 months with a non-parole period of 2 years and 9 months. GM had a lengthy criminal history that also included a further conviction for supply prohibited drug in 1997. The applicant submitted that this criminal history was to be contrasted with his which did not include any previous convictions for drug supply offences.

The applicant noted that Tupman DCJ expressed concerns about DK’s prospects of rehabilitation and likelihood of re-offending because of his continuing drug use in custody and assessed his prospects as guarded. She observed that it was difficult to assess GM’s level of remorse or prospects of rehabilitation. The applicant submitted that this was to be contrasted with his position. The sentencing judge found him to be motivated to rehabilitate himself, and to have relatively good prospects of rehabilitation.

In relation to GM for the offence of participate in a criminal group, Tupman DCJ provided an indicative sentence of 18 months imprisonment after a discount for the plea, meaning that the starting point was 22½ months. Her Honour concluded that there should be complete concurrency with the drug supply sentence because all the conduct relied upon as part of the criminal group had been taken into account as an aggravating factor of the drug supply offences. The applicant submitted that there was a very significant parity between the offending of GM and his offending with respect to this offence in that both carried out drug supply activities at the direction of DK and participated in drug supply activities to fund their own drug use with the Rebels Club. The applicant noted that he received an indicative sentence of 1 year and 10 months, having a notional starting point of 3 years and 8 months. The applicant submitted that as a result, he had a justifiable sense of grievance in relation to the sentences imposed upon the co-offenders for the drug supply and participate in criminal group offences.

The applicant submitted that the sentences indicated by Tupman DCJ for the supply prohibited drug and participate in a criminal group offences were comparable offences to Counts 1 and 2 for which he received indicative sentences. On that issue, the applicant relied upon Kremisis v R [2016] NSWCCA 257 where Button J (Hoeben CJ at CL and N Adams J agreeing) said at [42]:

The applicant noted that Button J in that judgment also acknowledged that it was appropriate to assess the parity argument by reference to the starting points of the indicative sentences (at [59]).

The applicant submitted that the indicative sentences nominated by the sentencing judge in this case were markedly higher than those indicated by Tupman DCJ and that there is no explanation based upon differences between the co-offenders and the applicant or any other basis, justifying that manifest divergence.

It is clear from the authorities that it is open for an offender to advance a parity argument by reference to the sentence subsequently imposed on a co-offender (Shortland v R [2013] NSWCCA 4 at [108]). Nevertheless, it remains necessary for the applicant to demonstrate an objective foundation for his sense of grievance so as to render it legitimate.

In Fenech v R [2018] NSWCCA 160 at [29] R A Hulme J (with whom Beazley P and Button J agreed) summarised the relevant principles as follows:

The principle of parity in sentencing applies to the sentencing of co-offenders whose culpability for the offence and whose antecedents are comparable. Where the degree of culpability or subjective circumstances are different, or offenders are charged with less serious or more serious versions of an offence such as in the present case, the principle will permit different sentences to be imposed: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [105].

I have concluded that, looking at all of the facts and circumstances applicable to the applicant and the two co-offenders, this is not a case in which the applicant’s sentence should have been markedly more lenient than that imposed on DK or GM. When consideration is given to the offences for which the applicant was charged, compared to the offences with which the co-offenders were charged, the applicable maximum penalties and standard non-parole period, the sentencing judge’s findings as to the objective seriousness of the offences, the findings as to the roles played by each of the offenders, as well as their subjective cases, the applicant’s complaint of disparity between his sentence and that of either DK or GM is not substantiated.

What the applicant cannot avoid is that he was charged with a more serious offence which unlike the offences of the co-offenders, involved a longer maximum sentence and a standard non-parole period of imprisonment for 10 years. In addition, Count 1 had attached to it 10 serious matters on a Form 1. Included in those Form 1 matters were serious instances of domestic violence, intimidation and a firearm offence. It is also not without significance that Tupman DCJ described to the applicant’s offending as more serious than that of the co-offenders. In doing so, of course, she was taking into account the Form 1 offences. Nevertheless, it provides the basis for the sentences which she imposed on the co-offenders.

It also needs to be kept in mind that what is being challenged is the aggregate sentence, not the two indicative sentences proposed for Counts 1 and 2. Even if it were the case that the indicative sentences proposed for the applicant lacked parity when compared with the indicative sentences for a similar course of offending, albeit for a lesser offence, the applicant still has to persuade the Court that a problem with one or other of those two indicative sentences was such that it would lead to the setting aside of the aggregate sentence. This is particularly so when one has regard to the very large amount of concurrency which the aggregate sentence must reflect. One also cannot ignore the objective seriousness of the other offences in relation to which indicative sentences were proposed which contributed to the aggregate sentence actually imposed.

Accordingly, I have concluded that even if there has been a level of disparity, it is not such as would give rise to a justifiable source of grievance and require the intervention of this Court to reduce the sentence. As R A Hulme J reiterated in Fenech v R at [31]-[33], the difference between the sentences must be manifestly excessive before the intervention of this Court is warranted:

In relation to the co-offender, DK, although the applicant was operating under his direction, the applicant played a key role in both the supply offence and in the position which he held in the criminal group. There is no challenge to her Honour’s assessment that the applicant’s role was that of a “trusted middle man” and one of DK’s right hand men.

As already indicated, the applicant was sentenced for a more serious offence than DK which attracted a higher maximum penalty (20 years instead of 15 years), as well as a standard non-parole period (of 10 years). Her Honour’s finding that the objective seriousness of the offence was at the lower end of the middle of the range was open on the facts. Attached to the count setting out that offence were the 10 Form 1 matters.

Finally, the indicative non-parole period proposed for Count 1 in relation to the applicant was only 1 month greater than the indicative sentence proposed for DK. Considering the higher maximum penalty and the standard non-parole period applicable, the indicative sentences proposed for the applicant was not only open to her Honour but also appropriate given the Form 1 with its 10 serious offences being taken into account in the indicative sentence proposed for this offence.

In relation to the co-offender, GM, the principal complaint relates to the indicative sentence proposed for the applicant in relation to Count 2 when compared with that for Count 15 in relation to GM. It is argued that their offending was essentially the same, yet the notional starting point for the indicative sentence proposed for the applicant in Count 2 was significantly higher than that proposed for GM in relation to the same offence. There is some force in that submission although it needs to be kept in mind that the applicant was also subject to two s 9 bonds at the time of this offending, whereas no such aggravating factor affected GM. Even if it be accepted that there was a lack of parity in the notional starting points for the indicative sentences in respect of that offence as between the applicant and GM, its overall effect on the aggregate sentence is minimal. Given the large amount of concurrency which must have been involved in the calculation of the aggregate sentence a discrepancy of this kind does not necessarily indicate error in the aggregate sentence.

Fundamental to the applicant’s submissions on parity is that the notional starting point for the indicative sentences proposed for him was too high compared to that of the two co-offenders. While it is accepted that a parity argument may be assessed by reference to notional starting points of indicative sentences (Kremesis v R) as Bathurst CJ observed in Jeyavel Thangavelautham v R [2016] NSWCCA 141 at [74]-[75] (Hoeben CJ at CL and RS Hulme AJ agreeing) one must not lose sight of the fact that the aggregate sentence imposed may include (such as in the present case) sentences for a number of other offences. In the present case, the other offences included very serious domestic violence matters committed against his partner together with serious firearms offences. Thus while the indicative sentences proposed for the applicant and the co-offenders may be a guide to whether the aggregate sentence is excessive, it is the aggregate sentences which must ultimately be compared (Thiu Dieu Vu v R [2018] NSWCCA 122 at [56] (Payne JA with whom Johnson and Adamson JJ).

Parity does not require that the co-offenders receive the same sentence because they were involved in the same conduct (R v Chandler; Chandler v R [2012] NSWCCA 135 at [6] per Basten JA (with whom Bathurst CJ, Hoeben JA; McClellan CJ at CL and Johnson J agreed). Differences in sentences can be explained by “age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise” (Green v The Queen; Quinn v The Queen).

It follows from the above that I am not persuaded that the applicant has demonstrated a justifiable sense of grievance by reference to the indicative sentences proposed for him and most particularly, has not demonstrated error in the aggregate sentence based on the parity principle. This ground of appeal has not been made out.

The orders which I propose are:

PRICE J: I have had the advantage of reading the judgment of Hoeben CJ at CL and the judgment of Beech-Jones J in which his Honour expresses his disagreement as to Ground 4. I agree with Hoeben CJ at CL’s conclusion that the applicant’s complaint of disparity between his sentence and that of either DK or GM is not substantiated. In my view, the applicant has not demonstrated that there is a marked disparity between his sentence and the sentences imposed on DK or GM which gives rise to a justifiable sense of grievance. In respect of all of the grounds of appeal, I agree with the reasons and orders proposed by Hoeben CJ at CL.

BEECH-JONES J: I have had the benefit of reading the judgment of Hoeben CJ at CL which set outs the background to the application. I respectfully agree with his Honour’s conclusions and reasons in relation to grounds 1.1, 1.2 and ground 2. I note that ground 3 of the application was not pressed. However, I respectfully disagree with the conclusion in relation to ground 4 which is a complaint of lack of parity between the indicative sentences specified for counts 1 and 2 on the indictment and indicative and actual sentences subsequently imposed on two-co-offenders, DK and GM, for the same or similar offences. I consider that the effect of those sentences is to create a relevant lack of parity warranting interference with the sentence imposed on the applicant, notwithstanding that there was no error in the sentencing judge’s reasons or conclusion at the time the applicant was sentenced.

The parity principle holds that there should not be a “marked disparity” between the sentences imposed on co-offenders such as to give rise to “a justifiable sense of grievance” in one of them (Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 610 per Gibbs CJ, with whom Wilson J agreed at 616 and at 612 to 613 per Mason J and at 623 per Dawson J). Its foundation is the obligation of the Courts to afford “equal justice” (Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan and Kiefel JJ, “Green”).

Two aspects of the inquiry required by a complaint of lack of parity should be noted.

First, it is necessary to identify what sentences should be compared. In this case the relevant comparison that is sought to be undertaken is between the indicative sentences specified by the trial judge for count 1 and the indicative sentences for similar offences committed by DK and GM and between the indicative sentence for count 2 and the actual sentence imposed on DK and GM for the same or similar offences. Previous decisions of this Court have considered a complaint of a lack of parity in relation to an indicative sentence by emphasising that ultimately it is the aggregate sentence that is being appealed from while also recognising that “a primary consideration” in determining whether equal justice has not been afforded is to “consider the indicative sentence for the equivalent offence” (R v Clarke [2013] NSWCCA 260 at [68] per McCallum J with whom Rothman J relevantly agreed; Jeyavel Thangavelautham v R [2016] NSWCCA 141 at [74] per Bathurst CJ with whom Hoeben CJ at CL and R S Hulme AJ agreed; see also Kremisis v R [2016] NSWCCA 257 at [42] per Button J with whom Hoeben CJ at CL and N Adams J agreed). This approach is consistent with the one of the purposes of requiring indicative sentences to be specified, namely that “it exposes for appellate review how it is that the aggregate sentence was arrived at” (R v Nykolyn [2012] NSWCCA 219 at [58] per R A Hulme J).

The approach of comparing indicative sentences should be adopted in this matter save that it must be remembered that it is ultimately the aggregate sentence imposed on the applicant that is the subject of the appeal and thus the impact of any lack of parity upon the aggregate sentence must be addressed before it could be concluded that it “affect[ed] the exercise of the sentencer’s discretion” (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]; “Kentwell”; JM v R [2014] NSWCCA 297 at [40] per R A Hulme J; “JM”). Further, as aggregate sentences “offer ... the benefit when sentencing for multiple offences of obviating the need to engage in the laborious and sometimes complicated task of creating a ‘cascading or stairway’ sentencing structure" when the principle of totality requires that sentences be made partly or wholly concurrent (JM at [39]), it follows that establishing a contention that there was a lack of parity flowing from a differential application of the totality principle to individual sentences is that much more difficult with an aggregate sentence (see Kelly v R [2017] NSWCCA 256). However it was not contended that any lack of parity followed from a differential application of any approach to totality in this case, although if it had it could only have reinforced my conclusion given the relatively generous approach to totality that Tupman DCJ adopted when sentencing DK and GM compared to that adopted by the sentencing judge in relation to the applicant.

Second, it is necessary to identify the nature of the inquiry. The parity principle “requires that like offenders should be treated in a like manner” (Green at [28]) while also “allow[ing] for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances” (Green at [28]). A complaint of a lack of parity cannot be rejected simply because the participants in a criminal enterprise are charged with different offences. The application of the principle is governed “by considerations of substance rather than form” (Green at [30]). However, the “greater the differences between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the [applicant]” (Green at [30]).

In Green at [31], the plurality further described the basis for appellate intervention in cases of an alleged disparity in sentences as follows:

Thus, in DS v R [2014] NSWCCA 267 at [39] this Court (Bathurst CJ, Fullerton and Davies JJ) held that a sense of grievance only arises “where differences in the sentences imposed on co-offenders [are] disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and in an offender's subjective circumstances”. The result is “it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending that the disparity is such that appellate intervention is required” (id).

GM was sentenced by Tupman DCJ on 11 August 2017. GM was a member of the Ballina Chapter of the Rebels and was described as being under the control of DK. He pleaded guilty to nine offences described as counts 4, 5, 6, 7, 8, 11, 13, 14 and 15 on an indictment. Counts 4 and 5 were discrete charges of supply of 25.9 and 49.6 grams of amphetamine that took place on or around 10 August 2014 and 23 August 2014 respectively. Counts 6, 7, 8, 11 and 14 were charges of receiving proceeds of crime being cash from drug dealing. Count 15 was a charge of participating in a criminal group contrary to s 93T(1) of the Crimes Act, the particulars of which were the various drug supply and laundering charges. On this application the Crown accepted that it was either the same or similar offending to count 2 of the applicant’s indictment (and it was the same offence).

Count 13 was a charge of knowingly take part in the supply of a prohibited drug namely 240 grams of amphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence was 15 years imprisonment and the offence did not carry a standard non-parole period. GM is the “co-offender” referred to in Hoeben CJ at CL’s judgment (at [12]). Thus, GM was a co-offender with the applicant although his offence involved around 50 grams less and he was not charged with supplying a commercial quantity of a prohibited drug as he was under the relevant threshold for a commercial quantity of 250 grams.

For the three drug supply offences, Tupman DCJ imposed an aggregate sentence of 4 years and 6 months and a non-parole period of 3 years. The indicative term for count 13 was 3 years and 3 months. For each of the money laundering charges her Honour imposed a fixed term of 2 years’ imprisonment. For count 15 her Honour imposed a fixed term of imprisonment of 18 months. All of the sentences were made fully concurrent with each other. Her Honour allowed a 20 per cent discount for all of the offences on account of GM’s plea.

DK was sentenced by Tupman DCJ on 14 August 2017. He pleaded guilty to eleven charges described as counts 1 to 10 and 15 on an indictment. Counts 1, 2, 3, 4, 6, 7 and 10 were charges of supplying amphetamine, counts 5, 8 and 9 were charges of dealing with the proceeds of crime and count 15 was a charge of directing the activities of a criminal group contrary to s 93T(4A) of the Crimes Act. Of the supply charges, count 7 concerned the supply of 240 grams of amphetamine that was part of count 2 committed by the applicant. DK’s role in that supply is described in Hoeben CJ at CL’s judgment at [12]. The other supplies all occurred between 15 July and 22 October 2014 and concerned amounts of amphetamine between 13.2 grams and 80.1 grams. The money laundering charges all concern dealing with cash derived from drug dealing. DK was also sentenced for an offence of manufacturing not less than a commercial quantity of amphetamine following his conviction after a trial. The manufactured amphetamine was the drug the subject of the supply in count 7.

For the supply sentences, Tupman DCJ imposed an aggregate sentence of 6 years with a non-parole period of 4 years. The indicative sentence for count 7 was 4 years’ imprisonment. Tupman DCJ imposed fixed terms of imprisonment of 2 years and 6 months for each of the money laundering offences and a fixed term imprisonment of 2 years and 6 months for count 15. For the manufacturing charge, her Honour imposed a sentence of 10 years’ imprisonment with a non-parole period of 7 years. All of the sentences, other than the sentence for the manufacturing charge, allowed for a 20 per cent discount on account of DK’s plea. All of the sentences were made concurrent so that the total sentence corresponded with the sentence for the manufacturing offence.

As noted, in respect of count 1 on the indictment, the relevant comparators are the indicative sentences specified by Tupman DCJ for the same or similar offences namely count 7 on DK’s indictment and count 13 on GM’s indictment. In respect of count 2, the relevant comparators are the fixed term sentences imposed for count 15 for each of DK and GM.

In relation to count 1, when the relevant discounts are unwound the indicative sentence for the applicant was 11 years, for count 7 on DK’s indictment it was 5 years and for count 13 on GM’s indictment it was just over 4 years (48.75 months). Three significant matters warranted a greater sentence for the applicant. The first was the offences on the Form 1 which were serious. There were no Form 1 offences for count 7 on DK’s indictment. There was a Form 1 offence for count 13 of GM’s indictment but that was for possession of 6 grams of cannabis which is negligible compared to the Form 1 offences for the applicant. The second was the fact that two supplies were included in count 1 on the applicant’s indictment and hence the amount supplied was higher by 50 grams. The third was the greater maximum penalty for the applicant’s offence compared to DK and GM’s offence (20 years against 15 years) and the specification of a standard non-parole period of 10 years. The differing nature of the offences warranted differential treatment but is not necessarily determinative of a complaint of lack of parity (Green at [30]).

In his excellent submissions, the Crown Prosecutor identified the other salient features of the three cases which help facilitate the inquiry described in [125]. At the time of these offences both the applicant and DK were on conditional liberty whereas GM was not. The sentencing judge characterised the applicant’s offending as at “the lower end of mid-range” whereas Tupman DCJ found that DK and GM’s offending was in the middle of the range. Consistent with the agreed facts and his plea to count 15, DK was found to be directing the activities of the group. The applicant was found to be the “trusted middle man” and “one of DK’s right hand men” and GM was found by Tupman DCJ to be the “middle man”. All of the offenders had disadvantaged personal backgrounds and criminal records that did not entitle them to leniency. At the time of offending the applicant was 28 years old, DK was 33 and GM was 46. Both the sentencing judge and Tupman DCJ accepted their pleas (and the applicant’s assistance) as evidence of remorse. The applicant was assessed as having “good prospects of rehabilitation” whereas both DK and GM’s prospects were only found to be “guarded”. The sentencing judge found that the applicant had suffered and would suffer hardship in custody by reason of the assistance he gave and his undertaking to further assist the police. Tupman DCJ made a finding of special circumstances in relation to both DK and GM whereas none was made in relation to the applicant.

Overall the applicant’s subjective case was stronger than DK and GM bearing in mind his youth, his prospects of rehabilitation and the hardship he would experience in custody. His role in the supply of 240 grams of amphetamine was not relevantly different to GM but below that of DK. However, his offending was worse given that it embraced another supply of a not insignificant amount. He was also charged with a more serious offence with a specified non-parole period and he had serious matters included on a Form 1. Overall, the circumstances warranted the applicant receiving a longer sentence for count 1 than either DK or GM. However, it did not warrant a sentence that was between two and three times as long (before discounts are considered). Such a differential clearly answers the description of “marked”, “gross”, “glaring” or “manifestly excessive” such that a “justifiable sense of grievance” clearly arises from a comparison of the indicative sentences (Lowe supra).

In relation to count 2 on the indictment, the relevant comparators are the sentences imposed for count 15 on DK and GM which undiscounted were 3 years and 7½ months and 1 year and 10½ months respectively. The undiscounted sentence for the applicant was 3 years and 8 months. This also reveals a “marked” difference. DK was sentenced for an offence that had a maximum penalty three times higher than the offence that the applicant pleaded guilty to. DK was the person directing the activities of the group and the particularised criminal activities that he directed were more extensive than those particularised against the applicant. Despite this, the applicant’s undiscounted indicative sentence was longer than the sentence imposed on DK for count 15 on his indictment. The applicant’s conduct was broadly similar to that of GM’s conduct in committing count 15 on his indictment which was the same offence, yet the applicant’s undiscounted indicative sentence was twice as long as the sentence imposed on GM.

Accordingly, I consider that the complaint of a lack of parity in relation to the indicative sentences for counts 1 and 2 on the indictment is made out. However there remains to consider whether the aggregate sentence imposed on the applicant is affected by error. If the indicative sentences specified for the applicant are cumulated then they total 152 months, 88 months of which were attributable to counts 1 and 2. The aggregate sentence was 84 months. In circumstances where the indicative sentences for two offences are such a large proportion of the total of the indicative sentences (and the aggregate sentence), it follows that if a complaint of parity is made out in relation to those two indicative sentences, then the aggregate sentence is relevantly affected by error

At the hearing of the application an affidavit was read from the applicant’s solicitor on the “usual basis” (Betts v The Queen [2016] HCA 25; 258 CLR 420). The affidavit and its annexures confirm that the applicant has continued to provide assistance to the police including giving evidence, that he is in a special form of protective custody which restricts his access to education and employment opportunities with the prison system and that he and his family continue to be a risk of harm by reason of the assistance he has provided.

There was no challenge to the findings made by the sentencing judge save for the level of discount that should be afforded and the objective seriousness of count 1. I agree with and adopt her Honour’s findings on those matters and the indicative sentences for counts 3 to 6. However in relation to count 1, and having regard to the indicative sentences specified for DK and GM, I would indicate a sentence prior to any discount of 8 years and, after a discount of 50 per cent, 4 years’ imprisonment with a non-parole period of 3 years. In relation to count 2 I would, prior to any discount, indicate a sentence of 2 years’ imprisonment and, after discount, of 1 year imprisonment. Overall, I would impose an aggregate sentence of 5 years and 6 months with a non‑parole period of 4 years and 1 month.

Accordingly, I propose the following orders: