New South Wales Court of Criminal Appeal CITATION : R v BARBER [2000] NSWCCA 485 FILE NUMBER(S) : CCA 60317/99 HEARING DATE(S) : 24/11/2000 JUDGMENT DATE : 24 November 2000 PARTIES : REGINA v Anthony Kenneth BARBER JUDGMENT OF : Barr J at 1; Carruthers AJ at 19 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/31/0516 LOWER COURT JUDICIAL McGuire DCJ OFFICER : COUNSEL : Crown: P Hock Applicant: RJ Button SOLICITORS : Crown: SE O'Connor Applicant: DJ Humphreys CASES CITED: Lowe v The Queen (1984) 154 CLR 606 DECISION : Leave to appeal granted; appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60317/99 BARR J CARRUTHERS AJ Friday, 24 November 2000 REGINA v Anthony Kenneth BARBER JUDGMENT 1 BARR J: Anthony Kenneth Barber seeks leave to appeal against sentences imposed in the District Court. He pleaded guilty to one charge of supplying a prohibited drug, namely cannabis leaf. He pleaded not guilty and was eventually found guilty by a jury of two further charges of supplying prohibited drugs, one of ecstasy and one of amphetamines. 2 McGuire DCJ sentenced the applicant on the first two charges to concurrent fixed terms of imprisonment, each of twelve months commencing on 13 May 1999 and on the third charge to imprisonment for three years four months commencing from the same day and comprising a minimum term of two years six months and an additional term of ten months. 3 The sentences are unremarkable and there is only one ground of appeal. 4 At the same time, his Honour sentenced the applicant's partner and co-offender, Donna Ryan, for the same offences. The parts they played in the commission of them were indistinguishable. 5 On the first and second counts, his Honour sentenced Ryan to concurrent fixed terms of nine months' imprisonment and, on the third count, to imprisonment for sixteen months comprising a minimum term of twelve months and an additional term of four months. Thus, the applicant's total effective sentence was one of three years four months and Ryan's one year four months. 6 It was submitted on behalf of the applicant that he had a justifiable sense of grievance by comparison of his sentence with that imposed on Ryan. Hers was sixty per cent lower than his. 7 His Honour gave reasons for discriminating in that manner. Whereas Ryan pleaded guilty of all three offences, the applicant pleaded guilty only of the offence of supplying cannabis, the least serious of the three. The applicant's plea was entered in the face of a strong Crown case and was no evidence of contrition. It had no utilitarian value either because the ensuing ten day trial which followed was rendered no shorter by the plea on the first count. 8 On the other hand, Ryan received acknowledgment for contrition as evidenced partly by her pleas of guilty and for the utilitarian value of her pleas. 9 Secondly, whereas the applicant had a substantial record of offences of dishonesty and violence, including a conspiracy to steal for which he had been ordered to serve eighteen months' imprisonment by way of periodic detention and had manifested his disregard for the law by the commission of a series of driving offences ending in his being ordered to serve one hundred hours' community service during the month immediately before he came before his Honour, Ryan had a good record and had never been sentenced to serve any form of imprisonment. 10 In 1992, she had been dealt with by a Magistrate for a number of offences involving the possession of prohibited drugs and the supply and self-administration of prohibited drugs, together with goods in custody. However, the drug involved was marijuana and his Honour took the view that those offences were minor, having been dealt with by way of a fine, and consequently of little moment for sentencing purposes. 11 Thirdly, there was what his Honour described as impressive evidence about the general good character of Ryan and her worth as an employee. His Honour noted that she would be taken back into her former employment when released on parole. 12 Finally, his Honour observed that the applicant and Ryan had an eleven month old child and the implication was that the primary responsibility for the care of it fell upon Ryan. His Honour observed that the separation from that child which the sentence would require was likely to be distressing for Ryan and make her sentence harder to serve. 13 The simple question in this application is whether the features favourable to Ryan could have justified the imposition upon her of a sentence so much shorter than that imposed on the applicant. I think that the answer is that they could. 14 Her pleas of guilty alone would account for almost half the difference and the other differences between the offenders were substantial. It is recognised that substantial leniency may be extended to a person who has not before served a period of imprisonment. Ryan's good record and the harder time she would have serving her sentence also entitled her to considerable leniency. 15 Mere disparity between the sentences imposed on co-offenders is not of itself a ground for the intervention of an appellate court. The difference between the sentences must be manifestly excessive and the Court will intervene in such a case on the ground that the disparity engenders a justifiable sense of grievance on the part of the applicant on whom the heavier sentence is imposed, or on the ground that the disparity gives the appearance that justice has not been done: see Lowe v The Queen (1984) 154 CLR 606. 16 Underlying this statement is the understanding that there needs to be a comparison of like with like, in order to answer the question whether a difference between sentences amounts to a disparity engendering a justifiable sense of grievance. 17 In my opinion, the cases of the applicant and Ryan were not alike and I am not persuaded that the sentences imposed upon them were so disparate that they fell outside the proper range of his Honour's sentencing discretion. 18 I would grant leave to appeal but would dismiss the appeal. 19 CARRUTHERS AJ: I agree. 20 BARR J: The orders of the Court are as I have proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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