Court of Criminal Appeal
Supreme Court
New South Wales

Medium Neutral Citation:

Kwon, Joseph v R [2011] NSWCCA 58

Hearing dates:

4 February 2011

Decision date:

30 March 2011

Before:

Whealy JA at 1
Hulme J at 2
Harrison J at 11

Decision:

1. Grant leave to appeal.

2. Dismiss the appeal.

Catchwords:

CRIMINAL LAW - appeal against sentence - grounds for interference - whether error in assessing objective seriousness of offences as falling "just below the mid range" - whether failure to give proper effect to a finding of special circumstances - whether sentence manifestly excessive - parity between co-offenders - no error established - leave to appeal granted - appeal dismissed

Legislation Cited:

Drug Misuse and Trafficking Act 1985

Cases Cited:

Diesing v R [2007] NSWCCA 326
Fina'i v R [2006] NSWCCA 134
GAC v R [2007] NSWCCA 287; (2007) 178 A Crim R 1
Cicekdag v R [2007] NSWCCA 218
Graham v R [2008] NSWCCA 174
Heron v R [2006] NSWCCA 215
Jimmy v R [2010] NSWCCA 60; (2010) 269 ALR 115
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Melikian v R [2008] NSWCCA 156
Phipps v R [2008] NSWCCA 178
Postiglione v The Queen [1997] HCA 26; (1997) 198 CLR 295
R v Attard [2004] NSWCCA 376
R v Chan [1999] NSWCCA 103
R v Choi [2010] NSWCCA 318
R v Dang [2005] NSWCCA 430
R v Gao [2007] NSWCCA 343
R v Green and Quinn [2010] NSWCCA 313
R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Kairouz [2005] NSWCCA 247
R v Scott [2005] NSWCCA 152
R v Shi [2004] NSWCCA 135
Saad v R [2007] NSWCCA 98
Shen v R [2009] NSWCCA 251
Stoeski v R [2008] NSWCCA 230
Tan v R [2010] NSWCCA 207

Category:

Principal judgment

Parties:

Joseph Kwon (Applicant)
Regina (Respondent)

Representation:

Counsel:
G Thomas (Applicant)
P Ingram SC (Respondent)
Solicitors:
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s):

2009/131094

Decision under appeal

Before:

Williams DCJ

File Number(s):

2009/131094

Judgment

1WHEALY JA : I agree with Harrison J.

2HULME J : In this matter I have had the advantage of reading the reasons for judgment of Harrison J. Subject to the following matters I agree with his Honour's remarks.

3I do not feel able to agree with his Honour's conclusion that when the sentence imposed on the Applicant for his second offence is compared with that imposed on Mr Choi, considerations of parity do not require that the sentence imposed on the Applicant be reduced.

4As Harrison J has pointed out, there were differences - to the disadvantage of the Applicant - in their offending, role and activities in relation to this second offence and Mr Choi was charged with the, in its terms, less serious offence of knowingly take part in the supply. However the difference in their sentences was too great to be fairly accounted for by these matters. After discounts totalling 50 per cent were allowed, the sentence imposed on Mr Choi was of 4 years including a non-parole period of 2 years. After a discount of 25 per cent the sentence imposed on the Applicant was of imprisonment for his second offence was 12 years including a non-parole period of 8 years.

5When the discounts each was entitled to are added back so as to enable a fair comparison to be made, the undiscounted sentence imposed on Mr Choi was 9 years including a non-parole period of 5 years while the undiscounted sentence imposed on the Applicant was of 16 years including a non-parole period of 10 2/3 years. Before discounts, the Applicant's sentence was thus approximately double that imposed on Mr Choi.

6Such an enormous disparity is not justified by the differences between their offending and the charges that corresponded. The Applicant's sentence on the second count against him should accordingly be reduced, before discount, to one of 12 years including a non-parole period of 8 years. After a discount of 25 per cent, the sentence to be imposed on that count is one of 9 years including a non-parole period of 6 years.

7The question then arises how the change I propose should be implemented. The second offence did amount to a significant increase in the Applicant's criminality and there is much to be said for the view that the 1 year degree of accumulation for it that was a consequence of Williams DCJ's orders should not be reduced, even when considered in light of the lesser sentence I propose.

8If the commencing date of the reduced sentence for the second offence remains as Williams DCJ ordered, that sentence will be wholly concurrent with the non-parole period of the sentence on the first count.

9If, on the other hand, the commencing date of the reduced sentence is delayed so as to maintain the 1 year accumulation that Williams DCJ ordered, the Applicant will derive no benefit from the reduction I propose in the sentence for the second count, that one year will be coincident with the first year of the balance of term portion of the sentence on the first count and his effective balance of term will be reduced to 3 years. That last mentioned consequence would mean that the balance of term of 3 years is 25 per cent of the overall sentence of 12 years, setting at nought the impact of his Honour's finding of special circumstances and clear intention that the balance of term should be 4 years. In that connection, his Honour said:

It is also argued that I should find special circumstances in the requirement for supervision, his youth, the likely length of the sentence and the fact that he was not a prior offender of any description.

...

Whilst I am prepared to find special circumstances for the reasons advanced, the fact of the necessary lengthy non-parole period for what must be relatively lengthy sentences, would seem to be sufficient to serve any purpose of rehabilitation. The only exception being that a lengthier parole period would provide a greater incentive for him to avoid further re-offending and enable the court to exercise a supervisory capacity for a longer period.

10It is not possible to accommodate without compromise all of these considerations. Doing the best I can to give each what seems to me proper weight, I would exercise the Court's power under s 6(3) of the Criminal Appeal Act to impose a lesser sentence on count 2, exercise the Court's powers under s 7 of that Act in respect of count 1 so as to change the order in which the sentences take effect (but without otherwise affecting the length of the components of the sentence imposed by Williams J in respect of count 1), and reduce the period of accumulation to 6 months. The result will maintain the period when the Applicant is eligible for parole at 4 years. To express the matter more precisely, the orders I propose are:

(i) Grant leave to appeal;

(ii) Allow the appeal;

(iii) Quash the sentences imposed by Williams DCJ on 7 May 2010;

(iv) In respect of count 2, sentence the Applicant to imprisonment for a non-parole period of 6 years commencing on 28 November 2008, together with a further term of 3 years commencing on 28 November 2014;

(v) In respect of count 1, sentence the Applicant to imprisonment for a non-parole period of 8 years commencing on 28 May 2009, together with a balance of term of 4 years commencing on 28 May 2017.

11HARRISON J : The applicant seeks leave to appeal against sentences imposed on 7 May 2010 by his Honour Williams DCJ in the District Court at Sydney. The applicant was committed for sentence on 10 December 2009 on two charges of supplying large commercial quantities of MDMA. The applicant pleaded guilty to both counts on the indictment, which were in the following terms:

Count 1 : that between 6 November 2008 and 29 November 2008 at Sydney the applicant supplied a prohibited drug, namely 3,4 methylenedioxymethylamphetamine in an amount that was not less than the large commercial quantity prescribed for that drug.

Count 2 : that between 18 November 2008 and 29 November 2008 at Sydney the applicant supplied a prohibited drug, namely 3,4 methylenedioxymethylamphetamine in an amount that was not less than the large commercial quantity prescribed for that drug.

12Each count alleged a contravention of s 25(2) of the Drug Misuse and Trafficking Act 1985 which provided for a maximum penalty of life imprisonment and/or a fine of $550,000: s 33(1)(a) and s 33(3)(a). A standard minimum non-parole period of 15 years applied in each case. The applicant was convicted and sentenced on 7 May 2009 by the learned sentencing judge as follows:

On count 1 : a term of 12 years commencing on 28 November 2008 and expiring on 27 November 2020 with a non-parole period of 8 years commencing on 28 November 2008 and expiring on 27 November 2016 with a balance of term of 4 years commencing on 28 November 2016 and expiring on 27 November 2020.

On count 2 : a term of 12 years commencing on 28 November 2009 and expiring on 27 November 2021 with a non-parole period of 8 years commencing on 28 November 2009 and expiring on 27 November 2017 with a balance of term of 4 years commencing on 28 November 2017 and expiring on 27 November 2021.

13The aggregate term imposed was therefore 13 years commencing on 28 November 2008 and expiring on 27 November 2021 consisting of an aggregate non-parole period of 9 years commencing on 28 November 2008 and expiring on 27 November 2017 with an aggregate balance of term of 4 years commencing on 28 November 2017 and expiring on 27 November 2021.

14The applicant relies upon four grounds of appeal as follows:

(1)His Honour erred in assessing the objective seriousness of the offences as falling "just below the mid range".

(2)His Honour erred by failing to give proper effect to a finding of special circumstances.

(3)His Honour erred in the determination that the head sentence of 12 years for each of the offences was appropriate to reflect the objective and subjective factors in the case.

(4)The sentence of 4 years and 6 months with a minimum term of 2 years and 6 months imposed upon the co-offender Anthony Choi in relation to the offence of knowingly take part in the supply of a large commercial quantity of ecstasy (30,000 tablets) for which the applicant was sentenced, is materially disproportionate with the sentence of 12 years with a minimum term of 8 years imposed on the applicant such as to give rise to a justifiable sense of grievance on the part of the applicant.

Background

15The applicant's parents originally came from Korea to Australia to study. He was born here on 22 October 1987 during their stay and is currently 23 years of age. The family later returned to Korea when the applicant was about three but his parents' marriage failed and his mother returned to Australia with the applicant when he was about five or six. His father remained in Korea. The applicant was cared for by his mother in various suburbs around Sydney although she was required to travel extensively in her work so that he was often cared for by members of the Korean community and church groups. He appears to have grown up in a loving and caring environment.

16When he was about 18 or 19 years of age the applicant returned to Korea in the hope of locating his father and presumably with the intention of resurrecting a relationship with him. However, his father was not interested in doing so or in restoring any familial relationship at that time. There has been no subsequent contact with his father with the exception of the fact that his father provided a letter of support for the applicant for use in the sentencing proceedings.

17As a result of his rejection by his father, the applicant became somewhat disillusioned on his return to Australia and began to associate with people who were a bad influence upon him. After some initial job success he became unemployed and began resorting to alcohol and drugs including ice, ecstasy, methamphetamine and cocaine. He began incurring debts through drug use and gambling and even though he previously had employment as a barista and had been a partner in a seafood franchise and a cleaning business that each failed, and he continued to look for legitimate work, he was inevitably drawn back into an unsavoury environment. He became involved with a series of co-offenders that included Mr Choi. There is a dispute in this application about the applicant's precise role or status within this group, to which later reference is made in these reasons.

18The first count involved the supply of 15 ecstasy tablets on 11 November 2008, 500 tablets on 17 November 2008, 400 tablets on 24 November 2008, 1942 tablets on 25 November 2008 and 2000 tablets on 25 November 2008. The total weight of these tablets was 1.1422kg. The second count involved an agreement to supply 30,000 tablets. The supply did not in fact occur because the intended recipient was an undercover officer. However, the recorded conversations set out in the agreed facts reveal that the applicant was an active and willing participant.

19The applicant was arrested on 28 November 2008 and has remained in custody since then. Despite his involvement in these activities, the applicant has no assets or property and any money gained through commission of these offences would appear to have been used predominantly, if not exclusively, to fund his own drug and alcohol habits and to pay off gambling and other debts.

Subjective matters

20The sentencing judge noted and accepted that the applicant has undergone what he described as "a turnaround" since being in custody. He has had the support of his mother and his stepfather, and now realises that he does not any longer need to look to his biological father for approval. He has become involved in religious activities and is undertaking a small business course. He proposes to do a Bachelor of Business degree and has been offered employment by his stepfather upon his release. He has also expressed a desire to assist other young people who become entangled in a cycle of offending like him. He conceded in cross-examination at his sentencing hearing that he did not think he would have become aware of what was in fact happening to him until much later in the course of his activities if he had not been apprehended and charged.

21It is clear that the applicant has substantial and community support and will continue to have it upon his release. A psychological report from Mr Mark Howard dated 5 March 2010 indicated that the applicant was cooperative and responsive and was not suffering any overt psychological or psychiatric disorder or major health problems. Mr Howard noted positive changes that the applicant has implemented in custody in undertaking a number of rehabilitative programs.

22The applicant's biological father wrote a letter of support for his son in which he accepted blame for not wishing to acknowledge the applicant at an important time in his life. There were numerous other letters to like effect from friends and acquaintances speaking highly of the applicant and all mentioning the significant effect upon the applicant of his father's rejection of him. In addition, there are a number of letters attesting to his involvement in religious activities within the Corrective Services environment and the applicant's tireless work with other young inmates.

Ground 1

23The applicant contended that the objective seriousness of each offence fell below "just below the mid-range" for offences under s 25(2) involving large commercial quantities of drugs. The first offence was an aggregation of six separate supplies to an undercover operative between 6 and 29 November 2008. The second count related to an agreement to supply 30,000 tablets. The applicant argued that it was more important to assess the offender's role and level of criminality for the purpose of sentencing rather than the quantity of the drugs involved, which is not, or ought not to be, the sole or even principal determinant: Melikian v R [2008] NSWCCA 156 at [42]. In R v Shi [2004] NSWCCA 135 Wood CJ at CL emphasised at [34] the importance of giving consideration to the following matters:

"[34] Fourthly, insufficient consideration was given to the weight and purity of the drug involved in this instance; or to the well recognised principle that the culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse: R v Le Cerf (1975) 13 SASR 237 and R v Laurentio and Becheru (1962) 63 A Crim R 402."

24The applicant sought to argue that the sentencing judge had inappropriately and erroneously accepted in evidence a document that purported to place the applicant in a hierarchy of co-offenders that was neither accurate based upon a proper reading or understanding of the document on the one hand nor admitted into evidence for that purpose on the other hand. His Honour's references to which exception in this context is taken are as follows. First, at page 2 of his remarks on sentence his Honour said, "It seems from the facts and organisational chart the [the applicant] was some sort of middle man obtaining drugs from others and passing them on to, in this case, an undercover police officer". Secondly at page 5 his Honour said, "the fact that the drugs supplied ended up in police hands and were not therefore distributed into the community is not, in my view, a factor reducing the objective seriousness, but his position in the hierarchy of these particular supplies would be a factor to be taken into account". Finally, his Honour said, "I would regard this offence as being just below the mid range of objective seriousness for the factual reasons and the part played by [the applicant] in the failed undertaking and the level of his overall involvement".

25The applicant argued that his Honour erred by finding that he was "some sort of middle man" in a hierarchy or organisation that was in the business of supplying prohibited drugs. The applicant contended that his Honour had made that finding by reference to the so-called organisational chart tendered by the Crown without objection. No submissions were made by either counsel appearing before his Honour about the significance or relevance of the chart.

26In proceedings before another judge concerned with the sentencing of related or co-offenders who were named in the chart, the Crown attempted to tender it but an objection was taken upon the grounds of its relevance. The Crown in that case therefore conceded that the chart was only being tendered as an aid to the Court, whatever that may have meant in those circumstances. It was not there tendered as evidence of any organisation or hierarchy relating to the offenders, including the applicant, who was named in it, or upon the basis that on the Crown case the offenders were parties to, or members of, any organisation or hierarchy in the supply of drugs. Indeed, the limited relevance of the chart was specifically referred to by her Honour during her remarks on sentence in those proceedings. The Crown in those proceedings also acknowledged, and the Court accepted, that parity was not a relevant consideration in the light of the concessions concerning the chart or the use that could be made of it.

27In the present case the applicant submitted that he was not part of any drug syndicate, hierarchy or organisation at all. He contended that his role and his level of criminality was that of a "facilitator" in the supply of drugs, in that he was simply obtaining drugs from others and passing them on. He contended that the chart, therefore, might have led the learned sentencing judge into error. This is referred to later in these reasons.

28The applicant also submitted that the circumstances surrounding the precise acts performed by him in the commission of the offences also reduced the objective seriousness of the offences below "just below the mid range". In this respect it was suggested that his actions were in response to requests by an undercover officer for ever larger quantities of drugs. The applicant needed to make inquiries in order to source those quantities, as he did not have them immediately to hand. Ultimately the quantity became so large that the applicant could not source it at all, resulting in the charge of agree to supply.

29The applicant further submitted that the consequences of his conduct, as a result of the six supplies to the undercover operative, did not involve the dissemination of a large commercial quantity of ecstasy to the community. On the contrary, the drugs did not enter public circulation by reason of having been supplied to the police. Thus, objectively, the applicant submitted that the consequences were less serious than had the drugs been sold to the commercial market. The applicant relied upon R v Chan [1999] NSWCCA 103 to the effect that a drug supply to an undercover police officer may give rise to a minor diminution in culpability because the supply does not involve dissemination to the community. The same argument was mounted with respect to the second count.

30It was further contended that the applicant did not engage in the offences for profit or personal gain. In this respect his Honour remarked that "in the present case I have a young offender who I am satisfied became involved to support his own problem with drugs and to pay debts incurred through gambling and failed business enterprises". The applicant submitted that rather than being "some sort of middle man" in a drug syndicate, the applicant was largely buying and supplying drugs to "friends" to support his own heavy drug use. In other words, the offences were motivated by need rather than greed.

Consideration of Ground 1

31In my opinion the learned sentencing judge did not err in his assessment of the seriousness of the offences as falling just below the mid range. This appears to me to be for a number of reasons.

32First, the offences included six discrete supplies. This involved a total of 6042 tablets of which 4957 tablets were supplied to an undercover officer and another 400 to another offender. The total weight of the tablets was approximately 2.3 times the 500g threshold. The purity of the drug was also a relevant factor. Even disregarding entirely the chart that was tendered, the significance of which in my view, if significant at all, was very small in the scheme of things, the applicant was involved in the obtaining and later distribution of these drugs to others. The chart did not characterise the applicant in relation to co-offenders in anything other than a spatial sense, and certainly made no express or implied statement of relative responsibility, or organisational involvement or importance. Counsel for the applicant was understandably unable to point directly to an error created either by the tender of the chart or the manner in which his Honour might be said to have utilised it. It appeared to me to be rather anodyne in appearance and effect and not obviously or even faintly productive of discernible error.

33Secondly, the fact that the drugs were not distributed into the community has to be compared to the fact that in this case the applicant's expectation was that they would be. In R v Chan [1999] NSWCCA 103 at [21] Smart AJ said this:

"[21] In assessing the sentence to be imposed it is relevant to take into account that the prohibited drugs supplied to undercover agents will not be disseminated into the community. Of itself this is usually unlikely to lead to other than a very minor diminution of culpability. The offender had the intention to supply and in supplying knew and believed that the drugs would be likely to find their way into the community. The fact that they did not do so was not due to the offender."

34The fact that the drugs may not have entered the community for distribution does not offend the description or characterisation of it in the way or at the level of seriousness that his Honour selected. See, for example, R v Gao [2007] NSWCCA 343 at [22] where Latham J expressed the matter in these terms:

"[22] In Fahs v Regina [2007] NSWCCA 26, Howie J (with whom Simpson and Buddin JJ agreed) expressed the view at [29] that the fact that a commercial quantity of ecstasy did not reach the public, because of the supply of that quantity to an undercover police officer, reduced the objective gravity of the offence in that case below the mid-range. I do not understand his Honour to have been expressing any matter of principle. Clearly, there may be cases where a combination of factors, including a plea of guilty and supply to undercover operatives, will nonetheless justify a finding that the offence falls within the mid-range of objective gravity and warrants the imposition of a non parole period approaching the standard non parole period. That is, as I understand it, the Crown's argument in the instant case."

35If it were otherwise, the stage at which any particular offender were apprehended, or the techniques used in any particular case to do so, might potentially become fortuitously and for that reason artificially elevated in significance as matters that should influence the sentencing exercise. These factors may inadvertently achieve a significance unrelated to their importance. There may be cases where what happens in the course of an investigation, the apprehension of an alleged offender or the stage of any arrest that follows, can be prayed in aid as subjective matters favouring the applicant, or someone in a like position. The fortuitous circumstance that drugs intended for commercial distribution did not achieve that status because of the use of undercover officers ought not to my mind of itself have a significant bearing upon any assessment of where an offence falls in the range of seriousness that is being considered. I do not consider that the fact that a large quantity of drugs was intercepted of itself informs the question of whether or not the view taken and expressed by the sentencing judge in this case ought to be reconsidered.

36Thirdly, while offences committed for the sole or principal purpose of personal gain may uncontroversially be more easily regarded as in the worst category, the obverse is not necessarily so. His Honour made a finding that the applicant was motivated by the personal matters earlier referred to. The Crown submitted in the present case that "the absence of such motivation [that is to say, greed] and the presence of drug addiction and debt repayment [do] not mandate a finding that the relative objective seriousness of the index offence is below the middle range or that such circumstances provide a relevant mitigating factor": see, for example, R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [178] and [273]; R v Kairouz [2005] NSWCCA 247 at [98]; R v Dang [2005] NSWCCA 430 at [32].

37Subject to any binding authority to the contrary, I would not wish to accede to the general proposition that a demonstrable or arguable connection between the commission of drug-related offences and an offender's own disabling addiction could not, or ought not to, be taken into account as a matter warranting consideration upon the question of where a particular case lay in terms of its objective seriousness. It seems to me to be disingenuous to speak about an offender's role in some particular criminal exercise, or his or her so-called level of criminality in the circumstances of the case, wholly divorced from an appreciation or recognition of the effect that his or her own addiction may have in motivating or influencing the particular conduct concerned.

38In the present case, however, I am satisfied that the learned sentencing judge had proper regard for these matters in imposing the sentences that he imposed. His Honour's reference to the fact that he was dealing with what he described as "a young offender who [he was] satisfied became involved to support his own problem with drugs", among other things, was tacit acceptance of the proposition that his case should not be treated as among those attracting the understandable opprobrium and characterisation as offences committed for the sole or principal purpose of personal gain.

39I would dismiss the first ground of appeal.

Consideration of Ground 2

40The learned sentencing judge made an express finding of special circumstances. He did so upon the basis that the applicant had pleaded guilty, would require and benefit from a period of supervision while on parole, his youth, the likely length of the sentence in any event, the fact of no prior offences or convictions of any description, his good prospects of rehabilitation, the likelihood that he would not re-offend, together with strong family support and support from the wider community. The applicant submitted that these factors were not adequately or sufficiently reflected or given effect to and that in a related sense his Honour did not give any reasons for the actual ratio of the separate sentences or the overall sentence imposed. In this last respect his Honour said,

"Whilst I am prepared to find special circumstances for the reasons advanced, the fact of the necessary lengthy parole period for what must be relatively lengthy sentences, would seem to be sufficient to serve any period of rehabilitation".

41His Honour's reference to relatively lengthy sentences, in the passage from his remarks on sentence just quoted, is replicated later in what he had to say about the nature and seriousness of the offences. He said this:

"These are both serious offences carrying a maximum penalty recognised in Australian law for any offence including murder. That penalty is a reflection of the serious harm caused to the community by recreational drugs such as ecstasy which are easily manufactured by persons who see a significant entrepreneurial profit to be made from the fact that, despite the criminality of the offending behaviour, many within the community are prepared to purchase tablets, the contents of which are unknown to them from persons whose only concern is to how much money they actually make."

42The applicant emphasised that the separate sentences of 12 years with non-parole periods of 8 years in each case involved an adjustment by way of reduction to the statutory ratio to 66.6 per cent. Taken together, the overall sentence of 13 years with a non-parole period of 9 years equated to a non-parole period of 69.2 per cent of the overall sentence. The applicant submitted that the adjustment did not, or did not sufficiently, give effect to the reasons for which a finding of special circumstances was made. In further support of that submission the applicant observed that this Court has found error and intervened on numerous occasions in which there has been an express finding of special circumstances but where the effective sentence imposed did not properly or adequately alter the statutory ratio and where insufficient or inadequate reasons have been given. The applicant referred to a number of authorities in support of this submission, including R v Attard [2004] NSWCCA 376 at [21]; Fina'i v R [2006] NSWCCA 134 at [33] - [40]; Heron v R [2006] NSWCCA 215 at [31]; Diesing v R [2007] NSWCCA 326 at [114]; GAC v R [2007] NSWCCA 287; (2007) 178 A Crim R 1 at [64] - [65]; Graham v R [2008] NSWCCA 174 at [51]; Phipps v R [2008] NSWCCA 178 at [12]. It may also be necessary for a judge to give reasons why the statutory ratio is not being varied: Saad v R [2007] NSWCCA 98 at [36].

43The applicant contended that in this case the Court should intervene because the ratio of the effective non-parole period to the overall sentence failed properly to give effect to the finding of special circumstances: see Cicekdag v R [2007] NSWCCA 218 at [47] - [49], cited in Stoeski v R [2008] NSWCCA 230 at [25].

44In my opinion these submissions should be rejected. I am not satisfied that the learned sentencing judge's reduction of the statutory ratio was erroneous. It may be that minds differ about whether or not his Honour's failure to alter that ratio to something approaching 60 per cent is the manifestation of error having regard to the factors identified by him as constituting special circumstances. No arithmetical or mathematical precision can be applied to the exercise of the sentencing discretion. Instead, rather more blunt and imprecise instruments guide the consideration of whether a particular outcome is, or is arguably, erroneous.

45For my part I would not have thought that his Honour erred by reducing the statutory ratio only to the extent that he did upon the assumption, in the absence of detailed reasons dealing with the influence upon his decision of the factors he identified, that he actually took all of those factors into account. The fact that some other variation may have been available does not of itself invalidate the result that his Honour produced.

46Although not articulated in particularly great detail in the applicant's submissions, it seems reasonably clear that he seeks by inference to raise an argument that having regard to the ratio that his Honour specifically applied to each of the sentences on counts 1 and 2, the accumulation of the sentences by 1 year in contrast has now had the effect, if only inadvertently, of altering his Honour's initial variation of the statutory ratio unfavourably to the applicant when calculated by reference to the overall sentence. This was, in arithmetical terms, a comparative increase in the non-parole period from 66.7 per cent or a ratio of 2:1, to 69.2 per cent or a ratio of 2.25:1. There are certainly no detailed reasons given for that increase and it would appear to me to be the unintended or fortuitous result of the way in which his Honour structured the individual sentences and from the way in which they were accumulated. However, accepting the correctness of the assumption referred to in the preceding paragraph, the difference does not to my mind seem to be either one that bespeaks error on the one hand, or something, which, if it were erroneous, would attract intervention by this Court on the other hand.

47In summary, there does not in my opinion appear to be any merit in the applicant's challenge to the sentencing judge's variation of the statutory ratio, so that this ground of appeal fails.

Consideration of Ground 3

48The applicant's challenge to the length of each sentence commences with the uncontroversial acknowledgment that questions of concurrence and accumulation are matters of discretion for the sentencing judge: R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 at [7]; R v Scott [2005] NSWCCA 152 at [31]. In Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616, Gummow, Callinan and Heydon JJ observed at [26]:

"[26]... Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected. The trial judge here did not offend any of the principles stated in Mill or Pearce . His only error may have been to fail to state starting and ending dates, but this was neither to apply a uniquely Western Australian principle, nor otherwise to make an appealable error. What his Honour intended was obvious enough and did not fail in substance to give effect to the Act."

49Nor was it contended by the applicant that the sentencing judge failed properly to exercise his discretion by partially accumulating the sentences. The thrust of the contention was that the effect of the partial accumulation, resulting in head sentence of 13 years with a non-parole period of 9 years, was to exceed the proper range of sentences for an offender with no prior convictions who pleaded guilty. The applicant drew upon JIRS statistics to underscore a submission that the range of sentences for all offenders sentenced for supply large commercial quantity of ecstasy was from 4.5 to 18 years with a median sentence of 8 years. Non-parole periods for all offenders range from 2 to 12 years. The median non-parole sentence across the same range was said to be 5 years. Adjusted to reflect an offender with no prior convictions and a plea of guilty, the range and median for head sentences were effectively the same but the median non-parole period drops to 4 years. In the case of multiple offences, the median head sentence rises to 9 years and the median non-parole period becomes 5 years. Based heavily upon these statistics the applicant contended that the head sentences in this case "exceeded the range of the sound exercise of his Honour's discretion" and that "an overall head sentence of substantially less than 13 years properly reflects the objective and subjective factors" for the following reasons:

(1)The applicant's role and participation in the offences fell just below the mid range of objective seriousness.

(2)While the Court found special circumstances, the proportion of the effective non-parole period to the overall sentence failed to give proper effect to the finding of special circumstances. (This is only a restatement of Ground 2 referred to and considered earlier).

(3)There are no aggravating factors pursuant to s 21A(2) but there are mitigating factors pursuant to s 21A(3) as follows:

(a)No prior convictions;

(b)Good character;

(c)Unlikely to re-offend;

(d)Demonstrated remorse; and

(e)Plea of guilty at earliest opportunity.

(4)The statistics upon which the applicant relied provided him with "some support".

50What the applicant's submissions perhaps understandably ignore is the extent to which he has benefited from the limited extent of the accumulation of the sentences on each count. His Honour accumulated the sentences by only 1 year so that in purely practical terms the applicant received an effective sentence of only 1 year on the second count. This has to be considered in light of the fact that the maximum penalty for each count is life imprisonment with a prescribed standard non-parole period of 15 years. The role of the applicant was not fleeting or casual but was undoubtedly significant. Count 1 involved repeated acts of supply involving over 6000 tablets with purities between 17 per cent and 24.5 per cent of MDMA. Count 2 involved an agreement with respect to the supply of 30,000 tablets that were to cost in the order of $225,000. It does not seem to me that these factors taken alone or in combination yield to whatever little support, if any, the applicant can derive from the statistics to which he has referred.

51Moreover, and despite the fact that the offences were committed to sustain the applicant's drug addictions, for which appropriate credit has been given, the applicant also faced obligations to other creditors and had gambling debts which the drug offences were at least in part intended to satisfy.

52In Tan v R [2010] NSWCCA 207, Hulme J had cause to review a series of cases involving the supply by various offenders of ecstasy in differing amounts. This review is to be found at [22] to [30] and it is instructive for present purposes to include it in these reasons as follows:

"[22] In R v Woodgate [2009] NSWCCA 137 the offender pleaded guilty to the supply of over 65 kg. He was a senior and trusted figure though not a principal and was sentenced to imprisonment for 14 years including a non-parole period of 10 years. The sentence reflected discounts and the starting point had been, or was deduced to have been, 20 years.

[23] In R v Nikolic [2007] NSWCCA 232, the offender pleaded guilty to being knowingly involved in the supply of almost 44 kg. Nikolic was not a principal, assisted a co-offender out of a sense of obligation, and received no offer of financial reward. After a Crown appeal, and a 15% discount for a plea, the sentence imposed was 12 years and 9 months including a non-parole period of 8 years and 6 months. Shorn of the discount, the total sentence would have been 15 years.

[24] In R v Opa [2004] NSWCCA 464 the offender pleaded guilty to being knowingly involved in the supply of 3.1 kg. He was a participant in an extensive operation and his role was substantial though he was not a principal. After a review of a number of previous decisions, this Court held an appropriate starting point in the determination of the sentence before discounts was 12 years.

[25] In R v Knight and Biuvanua [2007] NSWCCA 238; 176 A Crim R 338 Knight the offender pleaded guilty to the supply of almost 1 kg, though the offence was committed against a background of her having been the controller involved over a period in the business of supply, including use of a number of runners. After a Crown appeal and 10% discount for a plea, the sentence imposed was 14 years and 4 months including a non-parole period of 10 years. Howie J, with the concurrence of the other members of the Court expressed the view that the sentence that should have been imposed at first instance, absent the plea of guilty, should have been 18 years.

[26] Edwards v R [2008] NSWCCA 281 was referred to but, because of complexities in that case, I do not find it useful.

[27] In R v Stricke [2007] NSWCCA 179, the offender pleaded guilty to 2 counts of supplying ecstasy, one involving 1.2 kg and the other 4.5kg. A third offence involving another drug may be ignored. The offender was not a principal although at a level above a runner or courier. After a Crown appeal and 25% for a plea, for the second offence the sentence imposed was 13 years including a non-parole period of 8 years.

[28] In R v Gao and Lim [2007] NSWCCA 343 the offender Lim pleaded guilty to the deemed supply, constituted by an agreement to supply, of some 5000 tablets weighing between 1 and 2.5 kg. Lim's role was that of a middleman albeit he was regarded as 'a fair way up the supply process'. After a Crown appeal and 10% discount for a plea Lim was sentenced to imprisonment for 9 years and 10 months including a non-parole period of 6 years. The Court observed that if the matter had not been a Crown appeal, a starting point of 14 years would have been appropriate.

[29] In R v Thompson [2005] NSWCCA 340; 156 A Crim R 467 the offender pleaded guilty to the deemed supply of almost 2 kg. His role was that of a substantial street dealer operating as a principal involved in wholesale and retail supply but as a one-man show. He was re-sentenced by this Court to imprisonment for 13 years including a non-parole period of 10 years. A discount of 25% was allowed for the offender's plea. This Court observed that had the matter gone to trial, the Applicant would have been a candidate for the standard non-parole period of 15 years.

[30] In Wang v R [2009] NSWCCA 223 the offender was found guilty of, inter alia, supplying ecstasy. The quantity involved in that offence was about 1.5 kg. The Court had difficulty in assessing the offender's role but it was concluded that he was not a mere courier or at a low level. This Court held that the objective seriousness was somewhat below mid-range. The sentence imposed was imprisonment for 16 years including a non-parole period of 12 years."

53As impressed as one must be with the ways in which the applicant is now progressing, and with the strong subjective factors that are at play in his case, and having regard to the intermediate role played by the applicant in the offences, all of which were in evidence at his trial, I am not able to say that the learned sentencing judge fell into any error in imposing the sentences that he imposed. Having regard to the cases reviewed by Hulme J in Tan , I am only fortified in that view. I would reject Ground 3 upon the basis that the sentences were not manifestly excessive.

Consideration of Ground 4

54The applicant contends that he is entitled to have a justifiable sense of grievance when his sentences are compared to the sentence imposed on his co-offender Anthony Choi. Her Honour Sweeney DCJ originally sentenced Mr Choi with respect to his part in the events giving rise to count 2. In the judgment delivered in a Crown appeal to this Court against the sentence imposed upon Mr Choi in R v Choi [2010] NSWCCA 318, R A Hulme J recited some facts concerning the offences at [8] - [36] as follows:

"[8] There was an agreed statement of facts. It is necessary to provide a rather detailed summary as the appeal involves a substantial challenge to her Honour's findings of fact.

[9] Joseph Kwon was targeted in the course of a police investigation into the supply of ecstasy. Kwon engaged in a number of sales of ecstasy tablets to an undercover police officer. His mobile telephone was intercepted and this led police to the respondent. The following events and telephone conversations occurred.

[10] During a telephone conversation on Wednesday 19 November 2008 Kwon asked the respondent if he wished to partner him in the supply of a large quantity of ecstasy tablets to his customer (the undercover officer) and split the profit. Kwon said that if the current drug supply he was engaged in went well, 'he [the undercover officer] would buy 30,000' , meaning 30,000 ecstasy tablets. The respondent replied, 'I can do that' . Kwon asked, ' What price can you give me' and the respondent replied that he would call him back.

[11] There was another conversation later that night in which the respondent told Kwon, 'I'm still waiting for the guy to call me' . In the earlier conversation Kwon had referred to having supplied his customer with 'white teddy bear'. In this conversation Kwon asked, 'do you have something else to show ... just the teddy bears uh?' The respondent replied, 'no, it's not that. It's a different one. It's better' . Kwon asked what it was and the respondent replied that he would get back to him.

[12] Kwon and the respondent spoke again by telephone the following day. At the end of the conversation Kwon asked the respondent to 'give me a price on the 10,000' and the respondent agreed, saying that he would call 'him' today or tomorrow.

[13] On Sunday 23 November they spoke over the telephone about the same subject. The respondent asked Kwon whether his 'friend' still wanted 'it'. Kwon asked the price and the respondent said, 'ten to us' . Kwon asked, 'for one thousand?' The respondent replied to the effect that this was the price for three thousand. There was then some conversation about when the transaction would occur.

[14] The respondent explained that he was leaving in a week (he was booked on a flight to China on Monday 1 December 2008 and would be away for one and a half months). The respondent said, 'Uh when can you get back to me 'cause I've got to tell him' . Kwon told the respondent he was meeting the undercover officer on Tuesday and would ring the respondent then.

[15] In a telephone call on Tuesday 25 November, reference was made to the 30,000 tablets. Kwon said, 'Can we wrap it up this week?' The respondent replied, 'Yeah, the guy will do it straight away' . Kwon asked the price and the respondent replied, 'I think the guy told me ten' . Kwon reiterated it was for thirty thousand to which the respondent replied, 'I have no idea, I have no idea' . The respondent asked, 'what's it gonna take for your guy to take it like?' Kwon replied, 'Straight away. There is money now' . The respondent asked if 'he' needed to try it out and Kwon replied that the respondent should provide two samples. The respondent said he would 'get it today' .

[16] In a further conversation about two hours later, Kwon indicated that he would arrange a hotel room in the city and asked the respondent, 'Are we gonna do it in there?' The respondent approved the suggestion. The conversation moved to the subject of price and Kwon said, 'Give me a cheap price so that we have more to ourselves' . The respondent replied, 'Oh that's alright. Buddy, what, what are you looking at?' Kwon told him the price paid for two thousand tablets in a recent transaction was $10.50 [per tablet]. The respondent suggested seven [dollars per tablet]. Kwon countered with 'seven fifty' ($7.50 per tablet). He also suggested that 'if we put one dollar on top, it's like fifteen grand each' . The respondent said he would get back to him.

[17] Kwon then telephoned the undercover officer and told him the price for the tablets. The officer asked Kwon to speak to his supplier to find out what would be the best day.

[18] Kwon and the respondent subsequently arranged to meet that evening so that the respondent could provide him with a sample of the tablets. Kwon then rang the undercover officer and told him that he was obtaining the sample that night. The officer asked him to hold on to it but to call him back that night to tell him 'about the big one' .

[19] Kwon and the respondent had a further conversation that afternoon in which the respondent quoted a price for the supply of 30,000 tablets at $7.00 per tablet. Kwon indicated that the selling price would be $7.50, making a profit of $15,000 on the transaction. The respondent replied, 'I'm fucking happy with that man ... when is it happening?' Kwon replied, 'Maybe Sunday' . The respondent replied, 'Sunday? I leave on Monday at six in the morning ... can't we organise it a bit earlier?' Kwon undertook to call him back.

[20] Kwon promptly rang the undercover officer and told him he could provide the drugs for $8 per tablet. However, he then called the respondent and told him that the price was $7.50, stating 'it means you and I will earn $7,500 each' and that the undercover officer wanted the transaction conducted on Saturday. The respondent said, 'Oh not yet, not yet, I'll get back to ya' .

[21] Later that evening the respondent met Kwon and provided the promised sample of the ecstasy tablets that were to be supplied to the undercover officer. Kwon then rang the officer and said he had 'the two samples'. Still later that evening the respondent told Kwon that his suppliers required a $10,000 deposit prior to manufacturing the 30,000 tablets 'cause they're just thinking we're blow arsing' .

[22] Interception of the respondent's telephone service by investigating police was authorised and commenced on Wednesday 26 November.

[23] That day, Kwon told the undercover officer that the supplier needed a 10 per cent deposit. The officer asked Kwon to put up the cash because he would not have time until he saw him on Friday. Kwon then telephoned the respondent. They discussed how they could raise $10,000. The respondent said, 'I don't know anyone man' . Kwon indicated that he should be able to borrow some money and would call back.

[24] Kwon proceeded to raise the necessary money by a relatively small sale to the undercover officer and by borrowing some money from a friend. At 8.02pm on Thursday 27 November he rang the respondent and asked him to come and pick up the money. The respondent said that he did not have a car but would try and arrange a lift. Kwon asked if the respondent's supplier was sure 'about this whole thing' and the respondent replied, 'yeah' .

[25] A short time later the respondent spoke with an unknown male who asked whether he had got the 10 per cent deposit and indicated he would provide a different sample of the 30,000 ecstasy tablets. The respondent indicated that he had already provided a sample given by this supplier. The respondent said, 'I gave him hearts because I thought you were gonna give me hearts... can you do it by tomorrow morning?' The male asked, 'what thirty?' The respondent replied, 'cause I already - yeah thirty for tomorrow morning' .

[26] The male said that he would require the deposit. The respondent replied, 'Yeah can you get it off me tonight? The thing is my friends in um Lidcombe ... Do you reckon you can drive - you can drive me ah later tonight to Lidcombe and then pick it up off him?' The male replied, 'Oh sure. Okay' .

[27] At 9.20pm the male rang the respondent back and said, 'don't think the guy can do it by tomorrow morning... it's too late for it' , but that he would call 'him' and then call the respondent back.

[28] At 11.52 that night Kwon called the respondent and said , 'Oi they're not gonna like call it off or anything is it?' The respondent said, 'Ah okay I'll give him a call back and tell him to find anyone, anyone' . Kwon asked, 'What, you haven't got any?' The respondent replied, 'No, the guy that's supposed to be making tonight is not picking up at the moment' . He said that he would call 'the guy' .

[29] Kwon called back about 20 minutes later to find out what was happening. The respondent told him, 'Yeah. I'm just waiting on him now ... might not be able to be tomorrow ... he said he can't get in contact with the guy who has it' . Kwon encouraged the respondent to 'push it for tomorrow' because he had booked the hotel.

[30] About half an hour later, the respondent called an unknown female and asked, 'Do you know anyone who's got a lot at the moment?' The statement of facts does not disclose what her response was. However, the respondent immediately called Kwon and told him that he was unable to source the 30,000 ecstasy tablets for that day (Friday 28 November). He said, 'They said they didn't have 30,000 ... but like if you want it you have to wait for materials. They don't have materials. ... They don't have enough ... Until - I'll be gone by then so' . He did say, however, that they can do 15,000. 'They said probably 15,000 - 20,000 ... by Saturday. He's gonna give me a call tomorrow' . Later that morning Kwon telephoned the undercover officer and told him there was a possibility of supplying 15,000 tablets that day.

[31] At 9.51am on Friday 28 November, Kwon called the respondent and asked if they could 'at least do a couple of thousand today?' The respondent said, 'Yeah' and said he would make some calls to see if anyone was ready. He called Kwon back at 12.20pm and asked, 'Does he still need?' Kwon indicated that he had already organised 'it' but 'he needs it now' . Kwon said that he was in the city and was heading to the hotel 'to give at least 2,000 first' .

[32] At 1.34pm a man named David Lee telephoned the respondent and said, 'Oi you said 10,000 yeah?' The respondent replied, 'Or if you can 20,000' . Lee replied that he would let the respondent know in a couple of hours. He added, 'You know for the 2,000 ... if you'd called me earlier I definitely could have done it' and the respondent replied, 'It's too late now' .

[33] At about 2.30pm, Kwon was arrested whilst conducting a drug transaction with the undercover officer in a hotel room (he sold him 2,000 ecstasy tablets). The respondent was also arrested that day. During a search of his home police located 3 tablets in a small plastic bag - 1 white ecstasy tablet and 2 green 1-benzylpiperazine tablets. The possession of these drugs comprised the offences taken into account.

[34] The statement of facts included information about other transactions between Kwon and the undercover officer. They involved 500 white 'teddy bear' shaped ecstasy tablets (102.2 grams) supplied on 17 November 2008; 500 white 'heart' shaped ecstasy tablets (147.5 grams) on 27 November 2008; and 2000 'teddy bear' tablets (394.1 grams) on 28 November 2008, the day he was arrested.

[35] As to the weight of the substance that 30,000 tablets would entail, the sentencing judge said this:

'When Mr Kwon supplied the 2,000 tablets to the undercover officer he was arrested... The 2,000 tablets were seized and analysed and it seems to be on the basis of the analysis and weight of the various tablets which Joseph Kwon had supplied to the undercover officer that the weight of 30,000 tablets has been calculated to bring the quantity into the large commercial quantity specified for the drug'.

[36] Her Honour did not say anymore as to what this indicated as to the quantity. The statement of agreed facts indicates that the weight of the 2,000 tablets referred to by her in the passage above was 394.1 grams. Applying that as a broad guide, 30,000 tablets would equate to about 5.9 kilograms. The large commercial quantity prescribed for MDMA in Schedule 1 of the Drugs Misuse and Trafficking Act is 0.5 kilograms."

55Later in that judgment, dealing together with the question of whether or not her Honour erred in assessing Mr Choi's role in the relevant events, his criminality and the objective seriousness of the offence, R A Hulme J went on to comment as follows:

"[71] I accept that Kwon's offending was at a more serious level than that of the respondent. The evidence disclosed that he was actively engaged in multi-faceted drug dealing. By contrast, in the respondent's case the evidence disclosed only his involvement in the offence charged. On the other hand, the relative importance of the role played by the respondent should not be underestimated. It appears that Kwon, actively involved in drug supply, had some faith in the respondent's ability to provide him with a larger quantity of drugs than he, Kwon, was in the habit of supplying. Moreover, it is not unimportant that the agreement between Kwon and the respondent was that they would share equally in the profit to be made (even though, unbeknown to the respondent, Kwon planned to take a greater cut).

*****

[75] There are two matters referred to at this part of the submissions for the respondent that were not considered in the context of the previous grounds. The first was the finding of the respondent's role as being "much subordinate to and distinguished from Joseph Kwon's". I accept that the respondent played a role that was different to, and thereby distinguished from, the role played by Kwon. I also accept that, in one sense at least, the respondent's role was subordinate to that of Kwon. The ultimate goal of the pair was to achieve a sale of 30,000 ecstasy tablets to the undercover officer. Kwon was the person who had contact with the officer. Clearly, the transaction could not occur without Kwon. Kwon was otherwise engaged with the officer in the supply of drugs. He looked to the respondent as a person who could acquire the 30,000 tablets. Whether the respondent was the only person who could have provided that service for Kwon is unknown, although I hasten to add that there is no suggestion that Kwon sought out any other potential supplier."

56The applicant's parity argument is limited to the sentence imposed upon him for count 2 and the sentence imposed upon Mr Choi by this Court arising out of the same events. Mr Choi was sentenced by this Court to a non-parole period of 2 years and 6 months with a balance of term of two years. This was to be compared with her Honour's original sentence of 17 months and 15 days, which sentence she wholly suspended. The sentence imposed upon Mr Choi by this Court is further explained by R A Hulme J at [113] as follows:

"[113] The total term I propose is one of 4 years 6 months after a reduction of 50 per cent from a starting point of 9 years on account of the respondent's plea of guilty and assistance to authorities. The non-parole period will be about 55 per cent of the total term."

57The well known remarks of Dawson and Gaudron JJ in Postiglione v The Queen [1997] HCA 26; (1997) 198 CLR 295 at 301 were re-emphasised by the applicant. He submitted that even though the subjective circumstances of the applicant and Mr Choi were different in certain respects, they were substantially similar in others. For example, each was relatively young, both were users of the drug, both were of good character and first offenders who were unlikely to re-offend. In addition, both had shown remorse, pleaded guilty at the earliest opportunity and both were found to have substantial prospects of rehabilitation.

58The Crown conceded that the principle of equal justice affirmed in Postiglione was properly at the heart of a consideration of issues of parity but that in this case the differences between Mr Choi and the applicant were so great that no justifiable sense of grievance could be said to have arisen. The differences to which the Crown drew particular attention for this purpose were as follows.

59First, the applicant was charged with an offence of supply (being an agreement to supply) whereas Mr Choi was charged with the less serious offence of knowingly taking part in that supply. The applicant had sought to emphasise that such a fact was of no consequence and that there was "no rational basis" for such a submission but that only the agreed or established facts giving rise to the particular charge should be considered, regardless of the charge in fact.

60This Court has dealt with this issue on previous occasions. For example, in Jimmy v R [2010] NSWCCA 60; (2010) 269 ALR 115 at [200] and [203], Campbell JA said this:

"[200] There is one case, namely Wurramarbra , that speaks as though as a matter of principle the parity principle is capable of applying only between people who have committed the same crime. The statement in Krakouer that I have set out at para [108] above might be read as suggesting that the principle can be applied only where the offenders in question are charged under the one Act, or (possibly) for the same "kind" of offence.

*****

[203] There are significant limitations, however, on reducing a sentence on the basis of that of a co-offender who has committed a different crime. At least some of the limits on the use of the parity principle in such a case are:

1. It cannot overcome those differences in sentence that arise from a prosecutorial decision about whether to charge a person at all, or with what crime to charge them: Howard ; Wurramarbra ; Formosa

2. If it is used to compare the sentences of participants in the same criminal enterprise who have been charged with different crimes, there can be significant practical difficulties. Those practical difficulties become greater the greater the difference between the crimes charged becomes, and can become so great that in the circumstances of a particular case a judge cannot apply it, or cannot see that there is any justifiable sense of grievance arising from the discrepancy: Gibson ; Howard ; Formosa

3. It cannot overcome differences in sentence that arise from one of the co-offenders having been given a sentence that is unjustifiably low: Armstrong ; Diamond ; Rexhaj ; Isamundar

4. There are particular difficulties in an applicant succeeding in a disparity argument where the disparity is said to arise by comparison with the sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the applicant: Krakouer ; Pham ; Woodgate . See also R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at [127]-[134]. However Nguyen stands as one example where that result arose."

61Howie J at [246] in the same case said this:

"[246] The principle, whether it is called parity or proportionality or relativity between sentences, should be applied to bring about a just result in the sentences imposed upon persons who have been engaged in the same criminal enterprise regardless of the charges that have actually been laid against the offenders. However, I agree with Campbell JA that the principle is subject to the limits stated in [203] of his judgment."

62Previously in Shen v R [ 2009] NSWCCA 251 , Fullerton J at [32] had said the following:

"[32] ...In addition, it is important to emphasise that despite the differences in the objective criminality of the applicant and Reed the dominant offending of both was contrary to the Commonwealth Criminal Code , albeit that Reed was charged with importing the border controlled drug that the applicant was charged with trafficking there was a marked overlap and interconnection between their offending. In the particular circumstances of this case, to point to the different charges and the different State sentencing regimes as justifying the disproportion between the applicant's sentence and Reed's sentence understates the importance of the overriding principle of equal justice and its legitimate operation in this case."

63Further, in R v Green and Quinn [2010] NSWCCA 313, Hulme J at [100] commented in these terms:

"[100] Because the charge against Taylor was different from that to which the Respondents pleaded guilty and carried a significantly different penalty, the case is not one of strict parity. However, while recognising the difficulties adverted to by Campbell JA in Jimmy v R [2010] NSWCCA 60 at 203, because of the similarity in the charges and the similarity of offending, particularly in the case of Taylor and Green, the case is one where considerations of relative parity should be taken into account - see Jimmy v R at [246], [268]; Shen v R [2009] NSWCCA 251 at [33]."

64I do not consider that the Crown submission, drawing upon the difference between the offences with which Mr Choi and the applicant had been charged, when taken alone is either a legitimate or useful guide to deciding issues of parity. The comparative criminality of the offenders should be examined. A similar penalty for the respective offences may helpfully inform the seriousness with which the criminal conduct is to be considered but general assertions that a particular offence is "less serious" than some other offence must have a tendency to divert attention from what is the proper inquiry.

65Secondly the Crown submitted, as the terms of the cited passages from the decision in this Court reveal, that the applicant played the greater role in the supply activities associated with count 2. In particular it was submitted that the applicant:

(a)dealt with the undercover police officer in relation to the offence;

(b)solicited the involvement of Mr Choi;

(c)pursued his inquiries with Mr Choi to provide the 30,000 tablets;

(d)developed the plan to supply the tablets in a hotel room;

(e)negotiated a price with Mr Choi for the tablets;

(f)arranged to get a sample of the drug from Mr Choi to provide to the undercover police officer;

(g)undertook to the undercover police officer to fund the deposit of $10,000 that Mr Choi had said was required by his suppliers; and

(h)separately supplied 500 tablets (part of count 1) to fund the deposit.

66The ultimate effect of the applicant's submission was that on the facts of this case the applicant and Mr Choi played different roles in the commission of the supply offence but that those roles were not so materially different as to warrant what was described as "such a significant and marked disparity in the sentences imposed". Somewhat curiously, the applicant prayed in aid of that contention the very matters outlined by R A Hulme J in R v Choi at [71] and [75] quoted earlier. In my view, it is precisely the differences referred to by his Honour that justify the difference in the sentences under consideration. It seems to me that the different sentences that were imposed do reflect different degrees of culpability in the sense identified in Postiglione and that this is not a case of like being treated differently. I accept that in light of the fact that this Court resentenced Mr Choi, the principle exposed in R v Kairouz [2005] NSWCCA 247 at [45] has no application in the present case.

67I would also reject this ground of appeal.

Orders

68In these circumstances I would make the following orders: