Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Arenilla-Cepeda v R [2012] NSWCCA 267
• Hearing dates: 18 September 2012 (further written submissions closed 12 October 2012)
• Decision date: 13 December 2012
• Before: Macfarlan JA at [1]; Johnson J at [2]; Davies J at [103]

Decision

Leave to appeal against sentence granted and appeal allowed.

Sentence imposed at the Sydney District Court on 29 October 2010 is quashed.

In its place, the Applicant is sentenced for the offence of conspiracy to possess a commercial quantity of a border controlled drug, cocaine, to a term of imprisonment of 12 years and six months commencing on 22 September 2008 and expiring on 21 March 2021 with a non-parole period of seven years and nine months commencing on 22 September 2008 and expiring on 21 June 2016.

The Applicant will be eligible for release to parole on 21 June 2016.

• Catchwords: CRIMINAL LAW - sentence - conspiracy to possess commercial quantity of border controlled drug (cocaine) - co-offenders sentenced by different judges - co-offender sentenced first in time - applicant's sentencing judge not informed of co-offender's sentence - whether applicant has legitimate sense of grievance - parity principle - different roles of offenders - different quantities of cocaine - strong desirability that related offenders be sentenced by same judge - necessity for remarks on sentence to be provided if to be sentenced by different judge - objective foundation demonstrated for applicant's sense of grievance - lesser sentence imposed
• Legislation Cited: Criminal Code Act 1995 (Cth); Drug Misuse and Trafficking Act 1985; Firearms Act 1996
• Cases Cited: R v AB [2011] NSWCCA 229; 59 MVR 356; Lowe v The Queen [1984] HCA 46; 154 CLR 606; Postiglione v The Queen [1997] HCA 26; 189 CLR 295; Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274; R v Chandler [2012] NSWCCA 135; Tyler v R [2007] NSWCCA 247; Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540; Zreika v R [2012] NSWCCA 44; Jones v The Queen [1993] 67 ALJR 376; Rees v R [2012] NSWCCA 47; Rae v R [2011] NSWCCA 211; R v Nguyen [2010] NSWCCA 238; 205 A Crim R 106; Ng v R [2011] NSWCCA 227; 214 A Crim R 191; Green v The Queen [2011] HCA 49; 244 CLR 462
• Texts Cited: ---
• Category: Principal judgment
• Parties: Wilbur Antonio Arenilla-Cepeda (Applicant); Regina (Respondent)
• Representation: Counsel: Mr DB O'Neil (Applicant); Mr CP O'Donnell (Respondent); Solicitors: Legal Aid NSW (Applicant); Commonwealth Director of Public Prosecutions (Respondent)
• File Number(s): 2009/11732
• Publication restriction: ---

Decision under appeal

• Citation: ---
• Date of Decision: 2010-10-29 00:00:00
• Before: His Honour Judge Toner SC
• File Number(s): 2009/11732

Judgment

1 MACFARLAN JA: I agree with Johnson J.

2 JOHNSON J: The Applicant, Wilbur Antonio Arenilla-Cepeda, seeks leave to appeal against sentence imposed by his Honour Judge Toner SC at the Sydney District Court on 29 October 2010 for an offence of conspiracy to possess a commercial quantity of a border controlled drug, cocaine, contrary to ss.11.5 and 307.5(1) Criminal Code Act 1995 (Cth).

3 The maximum penalty for this offence is life imprisonment.

4 Following a plea of guilty, the Applicant was sentenced to imprisonment for 14 years commencing on 22 September 2008 and expiring on 21 September 2022, with a non-parole period of eight years and six months expiring on 21 March 2017.

5 The sole ground of appeal relied upon by the Applicant asserts that he has a justifiable sense of grievance due to the disparity of the sentence imposed upon him and that imposed upon a co-offender, Suleyman Boga ("Boga").

Facts of Offence

6 The Applicant pleaded guilty to an offence that, between 1 April 2008 and 22 September 2008, he conspired with a number of persons, including Boga, Rodolfo Vega-Salvatierra ("Vega-Salvatierra") and others to possess a substance which was unlawfully imported, and which was a border controlled drug consisting of a commercial quantity of cocaine.

7 Although the Applicant pleaded guilty to this offence, there was a contested sentencing hearing which extended over three sitting days - 12 August 2010, 17 September 2010 and 23 September 2010. At this hearing, the Crown called a witness, described as CSN, who gave evidence which significantly implicated the Applicant in the conspiracy to which he had pleaded guilty. CSN was cross-examined at some length by counsel for the Applicant at first instance. The Applicant gave evidence and was likewise cross-examined by the Crown Prosecutor in the District Court. What follows is drawn from the findings of fact of the sentencing Judge, which are not challenged in this Court.

8 The sentencing Judge did not accept the evidence of the Applicant in areas in dispute, finding his version of events to be "simply incredible" (ROS3). Likewise, the sentencing Judge rejected the evidence of the Applicant's partner, Luisa Fernanda Morales-Osorio, in areas where her evidence was under challenge. His Honour largely accepted the evidence of CSN (ROS4).

9 In light of these specific findings concerning the credibility and reliability of witnesses who gave evidence at the sentencing hearing, his Honour proceeded to make detailed findings of fact to the criminal standard of proof (ROS5-16). Given the sole ground of appeal, it is not necessary to recite a detailed account of the facts. A summary will suffice, to be followed by the sentencing Judge's express findings concerning the role of the Applicant.

10 The Applicant was born in Colombia in April 1977 and was 31 years' old at the time of the offence.

11 CSN first met the Applicant in 2005 in Colombia. In about 2006, the Applicant entered Australia under a student visa.

12 In early 2008, the Applicant discussed with CSN a possible plan to import an amount of cocaine from South America to Australia. The Applicant stated that he was interested in finding a buyer for the cocaine.

13 Thereafter, CSN made contact with persons, including a person in custody in Australia, with a view to progressing this criminal enterprise.

14 In due course, CSN spoke to Boga, an Australian national (born in September 1986) and it was agreed that Boga, the Applicant and CSN would meet on 4 June 2008 to discuss the anticipated cocaine importation.

15 On 3 June 2008, an authority to conduct a controlled operation was obtained and thereafter, conversations of the Applicant and others, and their movements, were monitored as part of the investigation.

16 On 4 June 2008, Boga met with a number of persons to progress the enterprise. Boga was informed that the extraction process would be carried out following the arrival of the drugs in Australia. The Applicant informed Boga that, once monies were received, the cocaine could be ready within six weeks. The Applicant informed Boga that the cocaine would be 95% pure, and Boga stated that he was in a position to purchase two kilograms of cocaine.

17 Various meetings took place in June 2008 at which plans for the importation were progressed.

18 Meetings and discussions continued into July 2008. On 4 July 2008, the Applicant informed CSN that his contacts in South America had confirmed receipt of a sum of money, and that the cocaine would be in Australia in the first week of August 2008.

19 On 25 July 2008, the Applicant met with CSN in Sydney, and the Applicant stated that his South American contacts had told him that they were sending four or five kilograms of cocaine. An email sent by the Applicant on 27 July 2008 stated that his South American contacts intended to send at least five kilograms of cocaine in order to make the project worthwhile, with the drugs to be brought into Australia by a person involved in the criminal enterprise.

20 In late July and early August 2008, the Applicant and CSN met on a number of occasions to progress a visa application for the proposed courier, Vega-Salvatierra. Efforts continued in this respect into September 2008.

21 On 22 September 2008, Boga and another person attended Driver Avenue, Moore Park, believing they would meet with the Applicant and CSN. The purpose of the meeting was to conduct the cocaine/money exchange. Instead, Boga and the other person were arrested by New South Wales Police officers. A search of Boga's vehicle led to the discovery of $99,950.00 inside a bag in the foot well of the front passenger area.

22 At about the same time, a search warrant was executed on Boga's residential address at Merrylands. There, police located 107.3 grams of MDMA (ecstasy), and a loaded .22 calibre Beretta brand pistol containing nine rounds of ammunition.

23 In the early afternoon of 22 September 2008, police attended the Amora Hotel in Sydney where the Applicant was employed. The Applicant was arrested, declined to be interviewed and was subsequently charged.

24 The Applicant has been in custody since his arrest on 22 September 2008.

Findings of the Sentencing Judge Concerning the Applicant's Role in the Crime

25 The sentencing Judge observed that the Applicant's case on sentence was that he was, in effect, "lured into this crime, and his motivation was, to some extent, misguidedly chivalrous" (ROS17). His Honour had earlier found, in light of the contested evidence, that the Applicant's evidence to this effect was "simply incredible". His Honour had found that both the tone and the tenor of the Applicant's communications by telephone and email revealed him to be "a competent and involved participant in the criminal enterprise" and not "a reluctant starter whose only role was to introduce CSN to those who could supply drugs for resale" (ROS2-4).

26 His Honour found that the Applicant was "the middle man between those who were to supply the drugs from Colombia and those who were to purchase them in Australia" and that, as such, the Applicant was "intimately involved in the conspiracy", and that it was "fair to characterise his role as being that of a principal in a tripartite arrangement: that is the supplier, the facilitator, and the purchaser", in a conspiracy involving a commercial quantity of cocaine (ROS17-18).

27 His Honour also found that the Applicant "conceived this plan, located a source for the drugs, and was instrumental in having a purchaser located for it when it eventually reached this country, albeit that some of those tasks were performed by CSN" (ROS16).

28 His Honour found that the telephone intercept material demonstrated that the Applicant "was intimately involved in creating fraudulent documentation to enable the 'cook' to travel to Australia", and that the Applicant "opened an email account in such a way that he thought would limit the capacity of law enforcement agencies to intercept material transmitted" through such an account (ROS18).

29 Accordingly, his Honour found the Applicant "was at the top, or at least towards the top of the hierarchy of those who were involved in this conspiracy" (ROS18).

30 The sentencing Judge noted that the commercial quantity of cocaine was two kilograms in its pure form. The evidence was that the cocaine was to be 95% purity. His Honour found that the conspiracy involved an agreement to possess between four and five kilograms of cocaine, more than twice the commercial quantity.

31 His Honour found that the quantity and purity of the drug "bespeaks an agreement which contemplated a substantial enterprise" (ROS19).

32 The sentencing Judge observed that there was no evidence as to what financial gain was to be obtained by the Applicant. His Honour rejected the Applicant's account that he was doing it for nothing. After noting that CSN was to receive some $30,000.00 for his role, the sentencing Judge concluded that the Applicant's "participation in this agreement was significantly greater than that of CSN and commonsense would dictate that had the agreement come to fruition he would have received a significant amount of money for his participation" (ROS19-20).

Other Findings of the Sentencing Judge

33 The sentencing Judge allowed a 20% discount for the utilitarian value of the Applicant's plea (ROS17). It was perhaps fortunate for the Applicant that no submission was advanced by the Crown in the District Court that the 20% discount for facilitating the course of justice by his plea of guilty ought be reduced as a result of a three-day contested sentencing hearing, at which the Crown and the Applicant called evidence, with the evidence of the Applicant being rejected emphatically by the sentencing Judge. This Court has recognised that the utilitarian discount for a plea in State matters is capable of erosion, where a protracted factual hearing takes place on sentence, and the dispute is resolved adversely to the offender: R v AB [2011] NSWCCA 229; 59 MVR 356 at 363-364 [30]-[33]. However, no such submission was advanced at first instance or before this Court (T13-14, 18 September 2012). Should this Court move to resentence the Applicant, the 20% discount for the plea of guilty will continue to apply.

34 The sentencing Judge had regard to the Applicant's co-operation with law enforcement authorities, giving rise to a further discount of 10% for assistance (ROS20-21).

35 His Honour had regard to the Applicant's age (33 years at the time of sentence) and the fact that he had no prior criminal history. A finding was made that the Applicant had excellent prospects of rehabilitation and was unlikely to reoffend in Australia.

36 The sentencing Judge had regard to a report of Mr Taylor, psychologist, dated 29 October 2009.

37 His Honour concluded that, without discount, the proper starting point for sentence was imprisonment for 20 years. After application of the 30% discount, the total sentence was one of 14 years' imprisonment. His Honour determined to fix a non-parole period of eight years and six months, a little over 60% of the head sentence.

 

The Sentences Imposed Upon Boga

38 On 6 October 2010, Boga was sentenced by his Honour Judge Charteris SC, following pleas of guilty to three offences:

(a) conspiring between 1 April 2008 and 22 September 2008 with the Applicant and others to possess a commercial quantity of cocaine - the offence for which the Applicant was sentenced;

(b) between 4 June 2008 and 22 September 2008, dealing with money that could become an instrument of crime with a value of $50,000.00 or more, an offence under s.400.5(1) Criminal Code Act 1995 (Cth) with a maximum penalty of 15 years' imprisonment - this offence involved the sum of $99,950.00 located in Boga's car at the time of his arrest (see [21] above);

(c) an offence of supplying a prohibited drug, MDMA (ecstasy), contrary to s.25(1) Drug Misuse and Trafficking Act 1985, an offence punishable by 15 years' imprisonment - this offence related to the quantity of 107.3 grams of MDMA located in Boga's residence following his arrest (see [22] above).

39 Taken into account on a Form 1 with respect to sentence for the supply prohibited drug charge, was an offence of possession of a prohibited pistol, a .22 calibre Beretta brand pistol, an offence under s.7(1) Firearms Act 1996 with a maximum penalty of imprisonment for 14 years - this offence related to the pistol located in Boga's residence following his arrest (see [22] above).

40 There was no contested sentencing hearing in Boga's case. Boga gave evidence on sentence with respect to subjective matters. The sentencing Judge was cautious as to accepting all that Boga said, but accepted that he wished "to turn his life around" (ROS18, 6 October 2010).

41 Boga was found to be a lesser participant in the conspiracy. His Honour Judge Charteris SC found that Boga drove to Moore Park with the intention of purchasing the first kilogram "with the intention of being the middle man and passing that on to others and then utilising those funds to purchase another kilogram", thus giving rise to a finding that Boga was prepared to purchase at least two kilograms of cocaine (ROS20).

42 The sentencing Judge found that Boga "chose voluntarily to be an enthusiastic participant" in the conspiracy but that, because of the role of the informant (CSN), the criminality of Boga's offence was "below the middle range of offences of this nature", although "still serious criminal behaviour" (ROS20). It was "very much organised criminal activity" (ROS21).

43 Boga had a prior criminal history, including offences of armed robbery, robbery in company and discharge firearm in a public place. He was on parole at the time of the subject offence (ROS20).

44 The sentencing Judge had regard to Boga's youth, 22 years' old at the time of the offence and 24 years' old at the time of sentence (ROS21-22).

45 A combined discount of 27.5% was allowed for Boga's plea of guilty and co-operation with the authorities (ROS22).

46 His Honour Judge Charteris SC sentenced Boga as follows:

(a) for the offence of supplying a prohibited drug contrary to s.25(1) Drug Misuse and Trafficking Act 1985, and taking into account the firearm matter on the Form 1, a fixed term of imprisonment of three years and three months commencing on 22 March 2009 and expiring on 21 June 2012;

(b) for the proceeds of crime offence contrary to s.400.5(1) Criminal Code Act 1995 (Cth), imprisonment for three years commencing on 22 December 2010 and expiring on 21 December 2013;

(c) for the conspiracy to possess a commercial quantity of cocaine, imprisonment for a term of seven years and three months commencing on 22 December 2011 and expiring on 21 March 2019;

(d) with respect to the two federal offences, a single non-parole period of six years was fixed commencing on 22 March 2009 and expiring on 21 March 2015.

47 The effective overall sentence imposed upon Boga was one of imprisonment for 10 years, with a non-parole period of six years.

48 The Crown has not appealed against the sentences imposed on Boga.

The Ground of Appeal - Claim that the Applicant has a Justifiable Sense of Grievance due to Disparity of Sentence Imposed Upon Boga

49 It is appropriate to refer to aspects of the procedural history of the prosecutions of the Applicant and Boga, so as to place in context the arguments advanced before this Court.

The Applicant and Boga Sentenced by Different Judges

50 The Applicant's ground of appeal invites an examination of, and comparison with, the sentence imposed upon Boga on 6 October 2010.

51 At the hearing before this Court on 18 September 2012, concern was expressed by members of the Court that not only had the Applicant and Boga been sentenced by different Judges, but that it did not appear that the remarks on sentence, or information concerning the sentences actually imposed by his Honour Judge Charteris SC upon Boga on 6 October 2010, had been furnished to his Honour Judge Toner SC prior to the Applicant being sentenced on 29 October 2010.

52 The High Court of Australia and this Court have emphasised repeatedly the strong desirability of co-offenders being sentenced by the same sentencing Judge or, if that is not practicable, the second sentencing Judge being fully informed of the sentence imposed upon a co-offender by the first sentencing Judge, with the remarks on sentence of that Judge being provided to assist and inform the sentencing process: Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 617, 622; Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 320; Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274 at 284-286 [32]-[47]; R v Chandler [2012] NSWCCA 135 at [94]-[96].

53 Affidavits filed by the parties following the hearing in this Court have served to explain what happened in the District Court.

54 On 29 July 2009, the Applicant was committed for sentence from the Local Court, and his matter was subsequently adjourned on a number of occasions.

55 On 11 November 2009, Boga was committed for sentence from the Local Court, and his matter was adjourned as well on a number of occasions.

56 On 13 June 2010, the Applicant's sentencing hearing was listed for 12 and 13 August 2010. The Crown had taken the view that it was necessary for the Applicant's matter to be heard separately from that of Boga due to confidential evidence to be led by the Crown.

57 On 6 August 2010, Boga's sentence matter was listed for hearing on 24 September 2010.

58 The affidavit material indicates that the Crown did not seek to have the two matters listed for hearing before the same sentencing Judge due apparently to concerns about the substantial delay in Boga's matter at that point, the uncertainty as to whether the same Judge could be secured and Boga's desire to proceed with his sentencing hearing.

59 The sentencing hearing of the Applicant proceeded before his Honour Judge Toner SC on 12 August 2010, and continued on 17 and 23 September 2010. On the first day, his Honour was informed by the Crown that Boga had pleaded guilty and was to appear a couple of weeks later.

60 On 23 September 2010, his Honour Judge Toner SC remanded the Applicant for sentence on 29 October 2010.

61 On 24 September 2010, Boga's sentencing hearing proceeded before his Honour Judge Charteris SC.

62 On 6 October 2010, his Honour Judge Charteris SC sentenced Boga to the terms of imprisonment set out above. In the course of sentencing Boga, his Honour observed (ROS2-3):

"The [Applicant] has pleaded guilty before another judge of this court. The parties did not wish this sentence proceeding to be listed before his Honour. For my part, I could not see why the matters could not have been dealt with by his Honour, but not heard at the same time as there were aspects of confidential evidence in relation to each of the matters as well as other problems. I am told that one of the disputes in relation to the sentencing of the co-offender is as to which of [the Applicant] and the informant [CSN] first raised the topic of importing cocaine from South America. His Honour Judge Toner, who will be sentencing the co-offender, has heard evidence on the topic and will be determining that issue. No evidence has been called before me and so I proceed on the basis that it is unknown as to whether it was the informant or [the Applicant] who raised the topic of the importation of the drug cocaine."

63 On 15 October 2010, the solicitor from the Commonwealth Director of Public Prosecutions with the carriage of both the Applicant's matter and Boga's matter prepared a supplementary Crown submission on sentence. The submission indicated the sentences which had been imposed on Boga, and observed that the remarks on sentence were not then available. The solicitor transmitted this document by email to the Associate to his Honour Judge Toner SC and to counsel who had represented the Applicant before his Honour.

64 An affidavit of the Applicant's counsel in the District Court states that he did not receive the Crown's supplementary submission.

65 On 29 October 2010, the same prosecution solicitor attended before his Honour Judge Toner SC for the sentencing of the Applicant. The Applicant's counsel was also present. The transcript of that day, and his Honour's remarks on sentence, make no reference to the sentencing of Boga or the provision of a supplementary submission by the Crown on this topic.

66 Upon the basis of the information provided to this Court, it appears that his Honour Judge Toner SC did not receive the communication from the prosecution solicitor, and counsel for the Applicant did not receive it either. Had the Applicant's counsel been in possession of this information, given the sentence which had been imposed upon Boga for the conspiracy offence, it is highly likely that he would have sought to make submissions on behalf of the Applicant by reference to it. However, this did not occur.

67 Likewise, if the sentencing Judge had been in possession of this information, it is likely that his Honour would have placed this matter on the record, and invited any further submission by reference to it, before proceeding to pass sentence upon the Applicant.

68 Of course, as the remarks on sentence of his Honour Judge Charteris SC were apparently not available at that time, it may have been difficult to make meaningful submissions by reference to any findings concerning the role of Boga.

69 What has happened in this case illustrates, once again, the difficulties which can occur where sentencing hearings of co-offenders proceed down separate pathways, before different Judges, and where the Crown, in particular, does not seek to confirm with the Court and opposing counsel the fact that information of this type has been actually received.

70 It is not productive in the context of the present appeal to seek to explore further what happened in this case. The fact is that this Court is now seized of the remarks on sentence of both sentencing Judges, and is called upon to consider submissions by reference to the principles of parity and proportionality, against the background where the Judge who sentenced the Applicant did not have the benefit of this material and submissions made by reference to it.

71 It falls to this Court to consider the present application for leave to appeal against sentence, against the unsatisfactory procedural background which I have described.

Submissions for the Applicant

72 Mr O'Neil, counsel for the Applicant, submitted that the markedly different sentences imposed upon the Applicant and Boga for the conspiracy offence gave rise to a justifiable sense of grievance on the part of the Applicant. Whilst acknowledging that there were differences between the roles of the Applicant and Boga, counsel submitted that these differences could not reasonably explain the disparity between the sentences imposed upon the two offenders.

73 Mr O'Neil submitted that Boga's position was compounded by the fact that he was sentenced for a number of offences, and that his offences had been committed whilst he was on parole.

74 Counsel submitted that a marked disparity was apparent from a starting point of 20 years' imprisonment adopted with respect to the Applicant, and a starting point of 10 years' imprisonment used with respect to Boga for the same offence. He submitted that this Court should interfere and resentence the Applicant in these circumstances.

The Crown Submissions

75 The Crown submitted that it is necessary to keep in mind that conspirators are to be sentenced not just for acts committed in furtherance of the conspiracy, but for the essential feature of the offence itself: Tyler v R [2007] NSWCCA 247 at [83]-[84]. It remained necessary to determine what the offenders did in participating in the offence, to assist in understanding the roles of the particular offenders.

76 The Crown submitted that there was no unjustifiable disparity between the sentence and the non-parole period imposed upon the Applicant compared with Boga. It was submitted that there was a significant difference between the roles of the Applicant and Boga and their ages at the time of the offending, and that different findings had been made as to the relevant quantities of cocaine in each case, for the purpose of sentence on the conspiracy counts.

77 The Crown emphasised the findings made, following a contested sentencing hearing, with respect to the Applicant's senior role in the conspiracy. It was submitted that this stood in stark contrast to the findings made by his Honour Judge Charteris SC concerning Boga, whose role was said to be "below the middle range of offences of this nature" (ROS20).

78 The Crown submitted that the Applicant's role in the conspiracy was at or near the top of the hierarchy, and was much more senior and significant than that of Boga, so that the Applicant attracted a significantly greater penalty.

79 The Crown emphasised the fact that Boga was sentenced upon the basis that he was prepared to purchase at least two kilograms of cocaine, whereas the Applicant was found to have agreed to possess between four and five kilograms of cocaine. It was submitted that this was a significant difference as between the two offenders, which operated against the Applicant's claim of illegitimate disparity.

80 Whilst acknowledging that Boga's criminal history and his additional charges constituted differentiating factors, it was submitted that these were not such as to materially assist the Applicant.

81 The Crown submitted that, even if the sentence imposed on Boga for the conspiracy charge might be viewed as unjustifiably lenient, that fact did not give rise to a disparity calling for appellate intervention: Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540 at [203].

Decision

82 At the conclusion of the hearing, counsel were invited to make submissions on a number of issues, including the consequences of the Applicant and his counsel not having taken steps to ascertain what had happened on sentence concerning Boga, and to advance submissions to the sentencing Judge on that issue. In requesting submissions on this topic, the Court had in mind that this Court is a court of error, and there is an expectation that an offender who asserts error on sentence will have taken the point at first instance: Zreika v R [2012] NSWCCA 44 at [75]-[83].

83 Of course, it has been recognised that an appeal may be brought on a parity ground by the first of two or more offenders to be sentenced: Jones v The Queen [1993] 67 ALJR 376. In such a case, the applicant will not have been in a position to take the point at first instance. However, the present Applicant was sentenced after Boga. The difficulty flows from the fact that the Applicant and his counsel were apparently not aware of this when the Applicant was sentenced on 29 October 2010.

84 As mentioned earlier, the material furnished to this Court after the hearing revealed a course of events whereby the Applicant's counsel did not receive the communication from the prosecution solicitor with respect to Boga's sentence. It is more than highly desirable that the legal representatives for a person in the Applicant's position take a proactive stance in seeking to ascertain what has happened with a co-offender on sentence: Dwayhi v R at 286 [45]-[46]. However, not without some misgivings, I have formed the view that what has happened in this case should not operate against the Applicant before this Court. It is appropriate, in the circumstances of this case, to consider the Applicant's ground on its merits.

85 For the purpose of determining this appeal, I gratefully adopt the statement of principles of Garling J in Rees v R [2012] NSWCCA 47 at [50]:

"So far as I understand it, the authorities on the application of the parity principle in circumstances such as those with which this court is presented in this case, provide the following principles:

(1) The parity principle is an aspect of equal justice, which requires that there be consistency in punishment. Unequal treatment under the law is likely to lead to an erosion of public confidence in the integrity of the administration of justice: Lowe at 610-611 per Mason J; Postiglione at 301 per Dawson and Gaudron JJ, at 335 per Kirby J; Green v R; Quinn v R [2011] HCA 49 at 28 and 30 per French CJ, Crennan and Kiefel JJ;

(2) Because the function of imposing a sentence on an individual has a discretionary character, an appellate court will ordinarily be reluctant to intervene. There is no such thing as perfect consistency in sentencing. A search for perfect consistency is to look for the unattainable and will frequently be an exercise of academic abstraction: Postiglione at 336-7 per Kirby J, R v M (CA) (1996) 105 CCC (3d) 327 at [92] per Lamer CJ;

(3) Hence, the discrepancy required to be identified between sentences is one which is not merely an arguable one, but one which is 'marked', or 'clearly unjustifiable', or 'manifest ... such as to engender a justifiable sense of grievance' or else it '[appears] that justice has not been done': Lowe at 610 per Gibbs CJ (Wilson J agreeing), at 613 per Mason J, at 623-624 per Dawson J; Postiglione at 301 per Dawson and Gaudron JJ, at 323 per Gummow J, at 338 per Kirby J; R v Taudevin [1996] 2 VR 402 at 403 per Hampel AJA, at 404 per Callaway JA; DGM v R [2006] NSWCCA 296 at [46] per Latham J (McColl JA agreeing); Green at [31] per French CJ, Crennan and Kiefel JJ, at [105] per Bell J;

(4) The elimination of an 'unjustified' discrepancy is a matter of importance not just to the individual concerned, but to the administration of justice in the community more generally. This court is therefore concerned not with whether an appellant actually feels a sense of grievance, that is, a subjective test, but rather whether, examined objectively, the sense of grievance is a justifiable one, namely that a reasonable mind looking over all of what happened would see that a grievance was justified. In other words, the matter is considered objectively: Lowe at 613 per Mason J; R v Kelly [2005] NSWCCA 280 ; 155 A Crim R 499 at [11] per Johnson J (Simpson J agreeing); Postligione at 338 per Kirby J; Green at [31] per French CJ, Crennan and Kiefel JJ.

(5) In determining whether there has been a discrepancy of a kind sufficient to give rise to a justifiable sense of grievance, a court:

(i) must consider not just the head sentence, but all components of the sentence including the non-parole period and the total effective period that both offenders will serve: Postiglione at 303 per Dawson and Gaudron JJ, at 338 per Kirby J;

(ii) must also consider all of the facts and circumstances applicable to both individuals involved, including the objective seriousness of the offence, in order to identify whether a differential sentence was justified; Green at [30] per French CJ, Crennan and Kiefel JJ;

(iii) ought not intervene to reduce a sentence below a level, which would mean that the sentence would be wholly inadequate having regard to the offence involved and the criminality of the offender, and consequently the result would be an affront to the proper administration of justice: R v Chen [2002] NSWCCA 174 ; 130 A Crim R 300 at [289] per Heydon JA, Sully and Levine JJ; DGM at [58] per Latham J (McColl JA agreeing); Kelly at [12] per Johnson J (Simpson J agreeing); Green at [33] per French CJ, Crennan and Kiefel JJ."

86 Before moving to the particular circumstances of this case, it is also necessary to mention features relevant to an assessment of a parity ground of appeal, where different Judges have sentenced co-offenders. In Rae v R [2011] NSWCCA 211, with the concurrence of McClellan CJ at CL and Hidden J, I said at [52]-[56]:

"52 There are significant advantages where related offenders are sentenced by the same Judge at the same time, with remarks on sentence containing factual findings and conclusions concerning the relative criminality of the offenders and differing subjective features of each of them: R v Swan [2006] NSWCCA 47 at [71]; Gurney v R; Willetts v R [2011] NSWCCA 48 at [81]-[82]; Dwayhi at [39]-[43].

53 Different Judges may take different views as to the relevant culpability of related offenders: Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 320; R v Mercieca [2004] VSCA 170 at [6]; Dwayhi at [35], [37].

54 Where co-offenders are dealt with separately, there may be differences in the substratum of facts upon which the different sentencing Judges act and the impressions formed by them with respect to the relative roles, levels of responsibility and prospects of rehabilitation of the individuals involved, with this flowing in part from the different emphases which can be expected to be placed on aspects of the offending behaviour and the circumstances of the offenders: R v Rodden [2005] VSCA 24 at [28]; Dwayhi at [38].

55 Strong maintenance of the practice of related offenders being sentenced by the same Judge at the same time will serve the public interest in consistent and transparent sentencing of related offenders which underlies the parity principle itself: Dwayhi at [46].

56 A recurring theme in the authorities is that, where co-offenders are sentenced after hearings before different Judges, there may be different evidence and submissions, leading to different conclusions being expressed by the sentencing Judges concerning criminal conduct of persons involved in the same criminal enterprise."

87 In my view, the present case constitutes yet another clear example of the consequences which may flow from separate sentencing hearings before different Judges, involving different bodies of evidence and different findings arising from the evidence in each case. The position is exacerbated in this case because the second Judge did not have the remarks on sentence of the first Judge, or even information concerning the sentencing outcome.

88 The findings made by the sentencing Judge concerning the role of the Applicant have been set out earlier in this judgment. In the context of a conspiracy to possess a commercial quantity of cocaine, the findings against the Applicant were of a most serious kind. Not only was he at a high level in the so-called hierarchy, but his offence involved a quantity of four to five kilograms of cocaine, more than twice the commercial quantity. This was about twice the quantity of cocaine for which Boga was sentenced.

89 There are significant points of distinction between the findings made with respect to the objective criminality of the Applicant and Boga by the different sentencing Judges.

90 I have had regard to the fact that Boga had a significant criminal history and was on parole at the time of the commission of the offences, and that he committed other offences apart from the conspiracy. These factors must be kept in mind in comparing the circumstances of the two offenders and the sentencing outcomes in their respective cases.

91 Boga (22 years' old) was significantly younger than the Applicant (31 years' old) at the time of the offence. Youth could assist Boga to some extent, but not the Applicant: R v Nguyen [2010] NSWCCA 238; 205 A Crim R 106 at 127 [72](k).

92 It is necessary for the Applicant to demonstrate an objective foundation for his sense of grievance so as to render it legitimate. In Ng v R [2011] NSWCCA 227; 214 A Crim R 191, Bathurst CJ, James J and I said at 210 [82]:

"Where there is a degree of disparity so as to invite a reduction in the sentence imposed, it is not necessary for this Court to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective circumstances. This Court will not necessarily intervene where the co-offender's sentence is so inadequate that the Court should not take it into account: Lewins v R at [7]; Dwayhi at 280-281 [21]."

93 In Green v The Queen [2011] HCA 49; 244 CLR 462, French CJ, Crennan and Kiefel JJ observed at 476 [33]:

"Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences."

94 It may fairly be said that Boga was the fortunate recipient of a lenient sentencing outcome, against which the Crown has not appealed.

95 It is undoubtedly the case that there are significant differences between the roles of the Applicant and Boga, and the quantities of cocaine concerned in each offence, with these differences operating against the Applicant on this appeal. At the same time, there are differences in the criminal histories of the two offenders, and the fact that Boga's offences were committed in breach of conditional liberty, with those differences (adverse to Boga) assisting the Applicant before this Court.

96 There is a very marked difference between the starting points adopted by the two Judges in sentencing the two co-offenders for this crime. Those differences can be explained, to a substantial extent, by the different bodies of evidence before the two Judges, and the different findings made by the Judges by reference to the evidence before each of them. Further, the second Judge was not in a position to have the advantage of the remarks on sentence of the first Judge to aid the exercise of sentencing discretion.

97 Making all due allowance for these factors, I am nevertheless persuaded that there is an objective foundation for a sense of grievance on the part of the Applicant with respect to the very wide difference in the starting points adopted by the two sentencing Judges. This conclusion does not entitle the Applicant to have his sentence adjusted, in some way, to bring it into line with that of Boga. Rather, as stated by the majority in Green v The Queen (at [93] above), marked and unjustifiable disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences.

98 This leads to the position where the Applicant is entitled to have this Court take into account, in a permissible way, the sentence imposed upon Boga on the conspiracy charge, in determining the appropriate sentence to be imposed upon the Applicant.

99 If the point was reached where the Applicant was to be resentenced, Mr O'Neil read the affidavits of the Applicant affirmed 13 September 2012 and his solicitor, Vanessa Carmody-Smith affirmed 12 September 2012. I have taken this evidence into account on resentence.

100 The Applicant's offence was most serious. He played a senior and controlling role in the enterprise. The offence was committed for significant substantial gain. A large quantity of cocaine was involved, at least twice the commercial quantity. General deterrence was a most significant factor on sentence. The Applicant could not claim that the immaturity of youth bore upon his transgressions: R v Nguyen at 126-128 [72].

101 Having regard to the objective gravity of the Applicant's crime, and taking into account his subjective circumstances, the need for general deterrence and the sentence imposed upon Boga, I am satisfied that an appropriate starting point in the Applicant's case is a head sentence of 18 years. After application of the 30% discount utilised by the sentencing Judge, a head sentence (after some rounding) of 12 years and six months ought be passed. A non-parole period of seven years and nine months should be fixed.

102 I propose the following orders:

(a) leave to appeal against sentence granted and appeal allowed;

(b) sentence imposed at the Sydney District Court on 29 October 2010 is quashed;

(c) in its place, the Applicant is sentenced for the offence of conspiracy to possess a commercial quantity of a border controlled drug, cocaine, to a term of imprisonment of 12 years and six months commencing on 22 September 2008 and expiring on 21 March 2021 with a non-parole period of seven years and nine months commencing on 22 September 2008 and expiring on 21 June 2016;

(d) the Applicant will be eligible for release to parole on 21 June 2016.

103 DAVIES J: I agree with Johnson J.

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Decision last updated: 13 December 2012