Rosenberg v R

1. [1]

   MEAGHER JA: I agree with Beech-Jones CJ at CL.

2. [2]

   BEECH-JONES CJ at CL: This is an application for leave to appeal against an aggregate sentence imposed for two offences of supplying prohibited drugs. The applicant complains that there is a lack of parity, or more correctly an unjustified degree of equivalence, between two indicative sentences that formed part of the aggregate sentence imposed on him and two indicative sentences that were specified for similar offences committed by a co-offender.

3. [3]

   The appeal arises out of the starkly different and, in some respects, inconsistent statements of agreed facts that were provided to the sentencing judge concerning each offender. Despite the careful consideration given by the sentencing judge to the issue of parity and the differences between the two statements of agreed facts, I would uphold the application and resentence the applicant.

The Parity Principle

1. [4]

   The applicant seeks to invoke the parity principle. The parity principle holds that there should not be a disparity, or 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 at 610 per Gibbs CJ, with whom Wilson J agreed at 616, at 612 to 613 per Mason J, and at 623 per Dawson J; [1984] HCA 46; “Lowe”).

2. [5]

   In DS v R [2014] NSWCCA 267 (“DS”) at [39], the Court (Bathurst CJ, Fullerton and Davies JJ) described the approach to be adopted in addressing a complaint of lack of parity (or unjustified parity) as follows:

3. [6]

   Four further matters should be noted about the parity principle.

4. [7]

   First, it has been observed that a complaint of lack of parity is more difficult to sustain when one or more co-offenders have been dealt with by the same sentencing judge (Usher v R [2016] NSWCCA 276 at [73]; Chamon v R [2020] NSWCCA 112 at [36] to [37]; Tatana v R [2006] NSWCCA 398 at [28]).

5. [8]

   Second, a complaint on appeal about parity proceeds on the assumption that the sentence imposed on an applicant is otherwise appropriate (Lowe at 612.8 per Mason J; Lewins v R [2007] NSWCCA 189 at [7]) and this must include any finding about the objective seriousness of the applicant’s offending. Similarly, a complaint on appeal about parity is not a means of challenging the sentence imposed on a co-offender or the findings of fact made in a co-offender’s case (Moran v R [2022] NSWCCA 217 at [30]; “Moran”).

6. [9]

   Third, where the sentencing judge is provided with separate statements of facts that contain material differences in the descriptions of each offender’s conduct, how is so much of the comparison exercise described in the passage from DS set out above which concerns an assessment of the relative criminality of two (or more) offenders to be undertaken?

7. [10]

   The starting point is that, leaving aside any consideration of parity and absent agreement to the contrary, in such cases each offender is only to be sentenced on the factual basis of what was contained in the statement of facts tendered against them and without regard to what might be said about their role in any other statement of facts that concerns another offender. To do otherwise would be to sentence an offender on the basis of material that was not tendered against them. It follows that, in considering parity at first instance, in cases where there are separate agreed facts (or separate trials), the relevant comparison is between what the agreed facts in one offender’s case demonstrate was their culpability and what the agreed facts in the co-offender’s case demonstrate was the co-offender’s culpability (Moran). Where there are separate agreed statements of facts and material differences between the statements, it is erroneous to undertake a comparison between an offender’s role as disclosed in the agreed facts concerning that offender and the co-offender’s role as disclosed in that same set of agreed facts. This is because, a fortiori, the sentence of the co-offender will not (or should not) be based on those facts.

8. [11]

   Fourth, this Court is not bound to intervene if the sentence imposed upon the co-offender is manifestly inadequate and intervention would "produce a sentence [for the offender] that is disproportionate to the objective and subjective criminality involved" (Youkhana v R [2011] NSWCCA 37 at [49] per R A Hulme J; Beazley JA and Hidden J agreeing).

The Offences and the Sentences

1. [12]

   Following his plea of guilty, on 17 December 2021 the applicant was convicted and sentenced by her Honour Judge Noman SC in respect of two offences. The first was an offence of supplying not less than the commercial quantity of a prohibited drug, namely 924.6 grams of MDMA, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (the “DMTA”). As the supply was for an amount that was not less than the large commercial quantity, the maximum penalty for the offence was life imprisonment (DMTA, s 33(3(a)) and it carried a standard non-parole period of 15 years imprisonment (Crimes (Sentencing Procedure) Act 1999 (NSW), the “Sentencing Act”, s 54A). The second offence was for the supply of (an indictable quantity) of prohibited drug, namely 146.19 grams of cocaine, contrary to s 25(1) of the DMTA. The maximum penalty for that offence was 15 years’ imprisonment (DMTA, s 32(1)).

2. [13]

   At the same time, the co-offender was convicted and sentenced by her Honour in respect of three offences. The first offence was supplying not less than a commercial quantity of a prohibited drug, namely 3,831.94 grams of MDMA. The second offence was supplying an (indictable quantity) of a prohibited drug, namely 247.88 grams of cocaine. The third offence was knowingly deal with the proceeds of crime, namely $478,305 in cash, contrary to s 193B(2) of the Crimes Act 1900 (NSW) (“Crimes Act”) . The maximum penalty for the last of those offences is 15-year imprisonment.

3. [14]

   In sentencing the co-offender for the supply of MDMA, her Honour took into account two offences included on a notice filed by the prosecutor under s 32(1) of the Sentencing Act (a “Form 1”) being two offences of supplying not less than a commercial quantity of prohibited drug, namely Lysergide and Psilocin. In sentencing the co-offender for the supply of an (indictable quantity) of cocaine, her Honour took into account four offences included on a Form 1 namely an offence of supplying an (indictable quantity) of N:N-Dimethyltryptamine and three offences of possession of a prohibited drug contrary to s 10 of the DMTA.

4. [15]

   Her Honour sentenced the applicant to an aggregate sentence of imprisonment for 5 years and 5 months with an aggregate non-parole period of 3 years and 4 months commencing on 4 October 2020. Subject to intervention by this Court he will be first eligible for release on parole on 3 February 2024.

5. [16]

   Her Honour sentenced the co-offender to an aggregate sentence of 5 years and 9 months with an aggregate non-parole period of 3 years and 6 months commencing 29 July 2020. He is first eligible for release on parole on 28 January 2024.

6. [17]

   The (discounted) indicative sentence for each offender and each offence specified pursuant to s 53A(2)(b) of the Sentencing Act as well as the undiscounted indicative sentences were as follows:

The Offences

1. [18]

   The sentencing judge received a separate statement of agreed facts concerning each offender. The approach to be adopted in such a case, so far as parity is concerned, is explained above. Undertaking that task was complicated for the sentencing judge and this Court by the differences between the two sets of agreed facts such as the elaborate description of the activities of the applicant in the statement of agreed facts concerning the co-offender compared with the brief description of his conduct in the statement of facts in his own case. It seems that each statement was the outcome of negotiations between the Crown and the legal representatives of each offender. While nothing in this judgment should be taken as discouraging that practice, the contrast between the agreed facts concerning the applicant’s offences and the agreed facts concerning the co-offender’s offences is so stark that it denuded some of the benefit of having the same sentencing judge deal with both offenders.

2. [19]

   Both sets of agreed facts identified only one recipient of the drugs that were supplied being an undercover operative referred to as the “Witness”.

3. [20]

   The agreed facts concerning the applicant noted that the investigating police “uncovered that [the co-offender] sourced and negotiated the sale of prohibited drugs which the Applicant supplied to the Witness” The agreed facts then recount six instances between 2 March 2020 and 26 May 2020 in which the Witness contacted the applicant by telephone to obtain MDMA, they discussed the price and quantity to be supplied and the applicant then supplied the Witness with various quantities of MDMA totalling 505.49 grams. In the conversations attributed to the applicant in relation to the first two sales, he indicated that he did not have the authority to confirm the price.

4. [21]

   The agreed facts concerning the applicant then refer to discussions engaged in by the applicant between 7 June 2020 and 9 June 2020 in which he offered to supply 140.44 grams of MDMA without setting out their effect. These agreed facts also recount part of two conversations between the applicant and the Witness on 16 June 2020 and 17 June 2020 about a supply of MDMA. In the latter conversation the applicant asks the Witness whether they could meet his “associate”, which is clearly a reference to the co-offender. The agreed facts then record that, on 19 June 2020, the co-offender supplied the Witness with 279.6 grams of MDMA, that being a supply for which the applicant is criminally responsible. The agreed facts also note that, in a meeting between the co-offender and the Witness on 3 July 2020, the co-offender stated “[i]t’s just a bit easier if you meet me, cos otherwise I give it to him and he gives it to you so basically Oscar [ie the Applicant] just collects a bit of cream off the top”.

5. [22]

   The total combined weight of the MDMA that the applicant was guilty of supplying comprised the 505.49 grams that he personally supplied to the Witness, the 140.44 grams he agreed to supply to the Witness and the 279.6 grams that the co-offender supplied to the Witness. Otherwise, these facts demonstrate that the applicant did not source the drug, suggested that he did not authorise the price of the supply of the drug, do not provide any evidentiary support for the suggestion that he did anything more than provide, or agree to provide, a drug sourced by another to the Witness and only suggested he had discussions with the Witness prior to introducing them to the co-offender.

6. [23]

   The agreed facts in relation to the offence of supplying cocaine committed by the applicant simply recount that, during three confined time periods, namely 14 March 2020 to 8 April 2020, 15 April 2020 to 22 April 2020 and 9 May 2020 to 12 May 2020, he had “phone message contact” with the Witness and then on the last day of each period supplied him with various quantities of cocaine totalling 146.19 grams. The observations noted above in relation to the supply of MDMA apply with equal force to this offence.

7. [24]

   The total quantity of drugs the subject of the co-offender’s offence of supply of not less than a commercial quantity of MDMA, was 3831.94 grams being approximately four times the amount the applicant supplied. The co-offender’s statement of agreed facts states that amount was comprised as follows:

8. [25]

   The first of these amounts corresponds with the MDMA physically supplied by the applicant to the Witness as outlined in the agreed facts concerning the applicant. However, the agreed facts concerning the co-offender set out far more detail of the exchanges between the applicant and the Witness than in the applicant’s statement of facts. They also include the various supplies of cocaine as part of the narrative of the supply to the Witness as well as conversations in which the applicant referred to the co-offender as his “partner” and assured the Witness that “[t]hat’s alright, that’s alright one of the two of us can try and sort it out for ya”. These statements suggest a more equal role for the applicant compared to the co-offender in the supply of drugs than that suggested by the applicant’s agreed statement of facts. In relation to the supply of MDMA on 26 May 2020, the agreed facts record the results of surveillance suggesting that the applicant and the co-offender travelled together to source the drug.

9. [26]

   The second of the amounts referred to in the extract at [24] reflects the supply by the co-offender of three amounts of MDMA totalling 837.51 grams and attributes responsibility for this to both the co-offender and the applicant. The agreed facts for the applicant only attribute responsibility to him for the first portion of this, namely 279.6 grams. The agreed facts for the co-offender in relation to the other two portions, record that the applicant was involved in those supplies even though the co-offender told the Witness “it’s just a bit easier if you meet me …”.

10. [27]

    The third of the amounts referred to in the extract at [24] reflects the applicant’s offer to supply 140.44 grams of MDMA to the witness between 7 June and 9 June 2020. However, the agreed facts expand on what the applicant said to the Witness including that “we’ve already gone out our way” and “we were never under the impression [the deal was to be done] today”. Again, this suggests a greater role for the applicant than what is suggested in the agreed statement of facts tendered in his case.

11. [28]

    The fourth of the amounts referred to in the extract in [24] is the total amount of MDMA that was found in the co-offender’s car, home and garage all of which were searched upon his arrest. The applicant does not bear any criminal responsibility for these amounts.

12. [29]

    The amount of cocaine the subject of the co-offender’s offence of supply an indictable quantity of prohibited drug was 247.88 grams. This comprised the 146 grams supplied by the applicant to the Witness for which the co-offender was also responsible and a further 101.69 grams of cocaine that was located during the search of the co-offender’s car, home and garage.

13. [30]

    The same search resulted in police finding $2820 in cash at the co-offender’s home, $1000 in his car, $196,485 in his garage as well as $278,000 in cash in a safety deposit box that was accessed using keys found in his car. The total sum of $478,305 was the subject of the offence under s 193B(2) of the Crimes Act.

14. [31]

    The search of the co-offender’s premises also yielded the other prohibited drugs that were the subject of the offences included on the Form 1s, namely a commercial quantity of Lysergide (0.85 grams), an indictable quantity of Psilocin (10.11 grams), an indictable quantity of N:N-Dimethyltryptamine (5.9 grams) and quantities of Ketamine (3.45 grams), gamma-butyrolactone (11.9 grams) and cannabis leaf (10.4 grams).

The Sentencing Judgment

1. [32]

   In the sentencing judgment, her Honour set out the effect of the above agreed statements of fact and carefully identified the differences between them.

2. [33]

   Her Honour made findings reflecting that both the applicant and the co-offender had strong subjective cases. Thus, at the time of sentencing, the applicant was 32 years old and of prior good character. He had a reasonable work history and a supported upbringing but developed a drug habit. Her Honour accepted his remorse was genuine. After his arrest he undertook residential rehabilitation. Her Honour allowed the applicant a credit for this period as “quasi-custody”. Her Honour noted that there was a “consensus” in the material before her that the applicant had “a number of redeeming qualities and a belief in the power to rehabilitate”.

3. [34]

   Similarly, the co-offender was 41 years of age. Her Honour accepted he was of prior good character. He was found to be genuinely remorseful. He had a good academic record and reasonable work history. However, commencing from around the time of his father’s death at age 14, he developed a drug habit. He had been in custody since his arrest in 2020 and was affected by pandemic restrictions. Her Honour accepted that the co-offender “will receive a high level of emotional and practical support upon [his] release”.

4. [35]

   Her Honour noted that general deterrence and retribution were important sentencing considerations but found that personal deterrence had a “limited but continuing role to play” for both offenders. Her Honour made a finding of special circumstances for the purposes of s 44(2A) of the Sentencing Act for each offender. In each case the ratio of the aggregate non-parole period to the total aggregate sentence was approximately 60%.

5. [36]

   Of particular relevance to the application for leave to appeal, is her Honour’s assessment of the objective seriousness of the offending and each offender’s relative criminality. Her Honour noted the factors affecting the objective seriousness of the offending including the role played by each offender, the type, quantity and purity of the drug, the number of supplies and the benefit obtained. Her Honour noted that the supplies were all made to the same customer, each of the offenders was motivated by financial reasons including financing their own drug habit, the co-offender stored the drugs, and no drugs or cash were found on the applicant. Her Honour then found:

6. [37]

   These passages demonstrate that the sentencing judge undertook a careful assessment of the objective seriousness of the applicant’s and the co‑offender’s offending and their respective “roles”. Nevertheless, I do not accept that a comparison of the conduct of the applicant, as revealed by the statement of facts concerning him, with the conduct of the co-offender, as revealed by his statement of facts, can support an assessment that they “performed similar roles”, at least if that is meant to embrace their overall criminal culpability.

7. [38]

   The statement of facts concerning the applicant reveals that he did not source the relevant drugs, had to defer to another for the price of supply to be approved and that his only role was to engage in various brief discussions with the Witness and perform the direct supply of 505.49 grams of MDMA and 146.19 grams of cocaine. The statement of facts concerning the co-offender reveals he stored large quantities of the two drugs, stored cash reasonably suspected to be the proceeds of the supply of prohibited drugs and supplied drugs to the Witness via the applicant, and in his own right. While the quantity of drug supplied is only part of the analysis of the objective seriousness of an offence of supply, when that difference is taken with the balance of the material in this case, it is a revealing when determining the respective criminalities of the two offenders for parity purposes.

8. [39]

   As the sentencing judge recognised, the fact that the co-offender was found in possession of a significant amount of cash suggests that “he held a position of some significance” yet that conclusion was not carried through to an analysis of his criminality compared with that of the applicant. Further, the agreed facts concerning the applicant did not demonstrate that he was “in a position to proceed with the supplies and could access the drugs” if that was meant to suggest that he could do so independently of the co-offender. The agreed facts concerning the co-offender suggest that he could undertake supplies independently of the applicant.

9. [40]

   The suggestion recorded by her Honour that the co-offender was “in a joint criminal enterprise with [the applicant]” needs to be treated with some caution. The applicant and the co-offender were not being sentenced for the same crime. Instead, the applicant was being sentenced for two supply offences that were encompassed by two more serious supply offences committed by the co-offender. The fact that the differences in the amount of MDMA and cocaine supplied were largely attributable to the amount that was located on a search of the co-offender’s premises did not, in the context of this case, diminish the significance of that difference in relation to an assessment of their respective “roles” in what appears to have been a business of selling drugs at a wholesale and retail level.

The Appeal

1. [41]

   Ground 1 of the appeal contends that the sentencing judge erred by finding that the applicant’s role “in the offending” was only “marginally” below that of the co‑offender. Ground 2 of the appeal contends that the applicant has a justifiable sense of grievance as a result of the sentence imposed on the co-offender.

2. [42]

   The applicant’s submissions contended that these grounds are related and should be dealt with together. I agree and will do likewise. At the outset it should be noted that these grounds do not challenge the sentencing judge’s findings about the objective seriousness of the applicant’s offences, namely that his offence of supplying not less than the commercial quantity of MDMA was “moderately below the mid-range” and his offence of supplying cocaine was “withing the mid-range”. Instead ground 1 is only directed to so much of her Honour’s assessment as compared the applicant’s “role” with that of the co-offender which is at least part of the exercise contemplated by the passage from DS extracted above. Hence ground 1 is part of the overall complaint about the application of the parity principle. That complaint proceeds on the basis noted in [8] above namely that the applicant’s sentence is otherwise appropriate and that includes any finding about the objective seriousness of his offending.

3. [43]

   The relevant principles concerning parity are set out above. As noted, the applicant complains of an unjustified level of equivalence between the undiscounted indicative sentences specified for his offences and the undiscounted indicative sentences specified for the corresponding offences committed by the co‑offender.

4. [44]

   The applicant contended that her Honour’s finding that the applicant’s role was only “marginally” below that of the co-offender was an erroneous finding of fact that should be overturned and relied on Hordern v R [2019] NSWCCA 138 (“Hordern”) The applicant contended that the agreed facts in the applicant’s case “admitted of only one possible conclusion”, namely that the applicant’s role was “clearly less than that” of the co-offender and that his “culpability was therefore lower”.

5. [45]

   The Crown submitted that the sentencing judge’s characterisation of the respective roles of the applicant and the co-offender was not affected by error. The Crown submitted that it was based on a careful consideration by her Honour of all the relevant circumstances including that it was not demonstrated that the applicant worked for the co-offender, that both the applicant and the co-offender met with the Witness and both assumed the risk of detection by directly supplying drugs. It was submitted that her Honour was not bound to accept any of the statements attributed to either of the applicant or the co-offender about each other’s role.

6. [46]

   The decision in Hordern cited by the applicant concerns the basis for review in this Court of findings of fact by a sentence judge, a matter of some controversy (R v O’Donoghue (1988) 34 A Crim R 397). However, an assessment of the relative criminality of two offenders based on evidence tendered separately against each for parity purposes is not a finding of fact. Instead, it is an evaluative assessment, albeit one in which the sentencing judge’s assessment will be afforded deference.

7. [47]

   In oral submissions, the applicant’s counsel submitted that the applicant’s offending demonstrated a pattern whereby the applicant would undertake supplies of relatively small quantities to the Witness before the co-offender delivered larger quantities once it was known that the Witness could be trusted. I am doubtful that this submission was made to the sentencing judge. Otherwise it appears to invite this Court to draw inferences about the applicant’s conduct from what is revealed by the co-offender’s agreed facts, an approach that I regard as impermissible.

8. [48]

   This submission was part of a larger point sought to be made by the applicant concerning his alleged subordination to the co‑offender in the system of selling prohibited drugs that they both participated in. This is reflected in the first ground of appeal which focusses on her Honour’s assessment of the applicant’s “role in the offending”. However, as formulated, the ground of appeal, like her Honour’s judgment, appears to wrongly assume that the applicant and the co-offender were participants “in the [same] offending”. Once the comparison is undertaken in the manner explained in [9] to [10], then it becomes clear that, regardless of which offender was subordinate to the other, the applicant and the co-offender’s “offending”’ was not the same. While the co-offender was a participant in a joint criminal enterprise with the applicant in relation to the supplies of which the applicant was convicted, the reverse is not true. As explained above, a consideration of the quantity of the drugs that the co-offender was convicted of supplying, the number and nature of the supplies he engaged in directly or was otherwise responsible for, his other offences and the contents of his agreed facts, reveal that he was involved in more substantial offending in terms of quantity, scope and sophistication, as well as role compared with that of the applicant as revealed by the agreed facts in his case. Given that there were no material differences between the applicant and the co-offender’s subjective cases, the result is that I consider that there is an unjustified degree of equivalence between the (undiscounted) indicative sentences for the two supply offences that each was convicted of.

9. [49]

   Lastly, in oral submissions, the Crown contended that the Court should not interfere with the applicant’s sentence because to reduce it would result in a sentence that was manifestly inadequate. This submission was not elaborated upon. The Court was not referred to any potentially comparable cases concerning similar supplies to those involving the applicant. Accordingly, I do not accept the Crown’s submission save that it can be accepted that any re-sentencing of the applicant should nevertheless reflect the objective seriousness of the offence.

10. [50]

    As I consider that ground 1 proceeds upon the incorrect premise that the applicant and the co-offender were to be considered as having participated in the same offending, I would reject that ground. However, I would uphold ground 2 of the appeal.

Resentence

1. [51]

   An affidavit sworn by the applicant was read on the usual basis. He describes the hardship he has experienced in custody, his separation from his family, the insight he has developed into his offending and his participation in educational programs within the prison system once the pandemic restrictions were lifted. The affidavit is consistent with the sentencing judge’s findings about his subjective case, all of which I adopt. I otherwise adopt all of the sentencing judge’s findings including concerning special circumstances, save those concerning the relative assessment of his criminality compared to the co-offender which has been addressed above.

2. [52]

   Prior to any discount for his plea of guilty I would indicate a sentence of imprisonment for 5 years and 6 months for the offence of supplying not less than a commercial quantity of MDMA. After discount and with rounding, this becomes a sentence of 4 years and 1 month with a non-parole period of 2 years and 5 months. Prior to any discount for his plea of guilty, I would indicate a sentence of 3 years and 6 months for the offence of supplying an indictable quantity of cocaine. After discount and with rounding, this becomes a sentence of 2 years and 7 months.

3. [53]

   I would fix an aggregate sentence of imprisonment for 4 years and 10 months with a non-parole period of imprisonment for 2 years and 10 months.

Proposed Orders

1. [54]

   I propose the following orders:

2. [55]

   GARLING J: I agree with the orders proposed by the Chief Judge. In my view as his Honour’s reasons persuasively show, the sentence imposed on the applicant did not appropriately reflect the differences in the criminality of the applicant and his co-offender. The applicant was entitled to hold an objectively ascertained justifiable sense of grievance.