New South Wales Court of Criminal Appeal CITATION : R v Sultan; R v N [2003] NSWCCA 404 HEARING DATE(S) : 03/12/03 JUDGMENT DATE : 3 December 2003 JUDGMENT OF : Wood CJ at CL at 75; Smart AJ at 1 DECISION : (Sultan) See para 74; (N) See para 51 CATCHWORDS : Correct approach to prior criminal history - a few minor offences did not disentitle offender to all leniency - Application of principle of parity. LEGISLATION CITED : Crimes Act 1900 Crimes Act 1900 (Home Invasion) Lowe v The Queen (1984) 154 CLR 606 R v Capper (1993) 79 A Crim R 64 at 74 CASES CITED : R v GDP (1991) 53 A Crim R 112 R v Kama (2000) 110 A Crim R 47 par 14 R v X (2003) NSWCCA 56 PARTIES : Regina v Shadi Sultan; Regina v N FILE NUMBER(S) : CCA 60393/03; 60384/03 (Sultan) I McClintock SC COUNSEL : (N) B Glennon (Crown) D Arnott SOLICITORS : (Appellants) P Ash (Crown) C K Smith LOWER COURT District Court JURISDICTION : LOWER COURT 02/41/0036; 02/41/0068 FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60393/03 60384/03 WOOD CJ AT CL SMART AJ Wednesday, 3 December 2003 Regina v Shadi SULTAN Regina v N __________________________ JUDGMENT 1. SMART AJ: Each of Shadi Sultan and N seeks leave to appeal against the severity of a sentence imposed upon him in the Campbelltown District Court on 8 November 2002. Each pleaded guilty to a specially aggravated break enter and steal offence (home invasion) and each received a sentence of imprisonment for nine years with a non-parole period of five years dating from 1 November 2001 when both were arrested and taken into custody. 2. Facts The victim, Douglas Griffin aged sixty-three, was retired from the building industry and had Parkinson's disease. X, aged thirty-eight at the time of the offence, knew the victim and suspected he kept a lot of money and valuables at his house at Greenwell Point, Nowra. X told Glenn Wilson about his belief. On 24 December 1998, Glenn Wilson arrived at X's house at Berkeley accompanied by Fouad Sultan, Shadi Sultan, N and Brian Broderick. They were all keen to find out particulars of the victim and his possible wealth and it was decided that they would "target" the victim's residence. It was known to them that the victim lived there with his wife and children. All the men (except Fouad Sultan) travelled to the caravan park at Greenwell Point a little later that day. 3. On arriving at the caravan park they went on foot to reconnoitre the victim's home. They took with them some fishing equipment and set up along the waterfront adjacent to that home. At one stage they looked in a bedroom window and saw the victim and his wife watching television. They discussed, even argued, how best to access the house and the part each would play. It was decided that X would remain in the vicinity of the front gate to grab anyone who tried to escape from the house. Shadi Sultan was to wait outside and bang on the window to tell those inside if anyone was coming. In fact Shadi Sultan took a more active part. Broderick and N were to break into the house through the front door. 4. X armed himself with a pistol, Shadi Sultan with a baseball bat, Broderick with a shotgun and N with a knife. X walked to the front gate but, according to him, kept going, deciding not to stay to assist his confreres. The other three made their way to the house. They all wore gloves. Broderick wore a black gorilla mask, N wore a clown mask and Shadi Sultan either a mask or balaclava. To gain access to the living area it was necessary to pass through the locked front door to the house and a stronger locked sunroom door. 5. Around 2am on 25 December 1998 a flyscreen was removed from the partially opened window near the front door and Shadi Sultan climbed into the house. Having gained access to the sunroom area he unlocked the front door allowing Broderick and N to enter. Once inside the sunroom the men had to overcome the locked sunroom door which had a glass panel to it. The glass panel was smashed, an attempt to put a hand through to unlock the door failed and, in the end the door was kicked in. The victim, his wife and three children, were in bed. Awoken by the loud banging noises the victim got out of bed and walked into the kitchen. Broderick pointed the shotgun at the victim's head and threatened to "blow his fuckin' head off" and demanded to know "Where's your safe, where's the money, cunt?" 6. The victim was marched into the bedroom and, with the gun pushing the back of his head, his face was forced into a brick wall of the bedroom, causing a deep cut to the bridge of his nose which bled. They were accompanied by N. The victim indicated a floor safe inside a wardrobe and was forced to open it. The victim took a while to open the safe due to nerves, as N prodded his back with the knife. 7. In the meantime the victim's wife and children had fled from the house and sought assistance from a neighbour. The sound of a car outside caused the offenders to flee the house into nearby paddocks. They thought it was the police. They took with them the wife's purse and shoulder bag. Inside the purse was about $1250 to $1450 cash and jewellery. The car heard by the offenders was that of the next door neighbour. 8. The offenders left in haste. A torch was left near the smashed door, the gorilla mask was found under a shrub outside the house, a knife was found near the victim's truck and gloves were found next to the driveway. A black handled filleting knife was found in the paddock nearby as well as a pair of work gloves. Fishing equipment was found on the beach. About 100 metres from the house a back pack was found containing, amongst other things, a baseball bat, a monster mask and dishwashing gloves. 9. On 27 May 2001 X was charged. Ultimately he co-operated with the police and made statements implicating the other men. Broderick, who was in custody and initially not prepared to name his co-offenders, participated in a walk around and described the movements of persons involved in the offence. On 1 November 2001 Shadi Sultan, his brother Fouad Sultan and N were arrested. There was a great deal of evidence available against both Shadi Sultan and N and the Crown case against each of them was very strong. 10. The judge described this operation as carefully planned and found that both Sultan and N were affected by amphetamines at the time of the offence and that it was very likely that their drug habits were the motive for them committing the crime. However, he observed "they were sufficiently in control of their lives to carry out a carefully planned operation." 11. N was born on 4 April 1981 and was thus aged 17 years 8 months at the time of the offence. N's criminal history commenced in July 1997 when he was placed on probation for the offence of take and be carried in a conveyance. In late 1998 he was charged with a series of serious driving offences but he was not dealt with by Wollongong Local Court until 9 February 1999. He was dealt with for other matters during 1999, 2000, 2001 and 2002 but these matters are of very limited relevance as they arise subsequent to 25 December 1998. In any event these matters were towards the lower end of the criminal scale and did not involve anything approaching an offence of the kind here in question. 12. N was born in South America and came to Australia with his family when very young and they settled on the South Coast. He went to school but in high school he encountered difficulties and did not do well. He was suspended in year 10 and began to use marihuana. His family sent him to Lebanon and he gave up drug use for a while, but began to consume alcohol. When he returned to Australia he began to use cannabis again. He also started to use speed and consume alcohol. At the time of the offence he was using amphetamines. 13. Dr Davies, a consultant psychiatrist, described N as having had a long history of behavioural disturbance and drug use. Dr Davies thought that N's offences seemed to have occurred in the context of his drug use and that at the time of the offences he was likely to have been intoxicated with amphetamines. N's subsequent abuse had continued after the commission of the offence. 14. In her report of 14 August 2002 Lynda McEwan, a probation and parole officer, wrote: "Mr N states that his recollection of the offence is hazy as he states he was under the influence of illicit substances ... he appears to be remorseful. However the depth and the sincerity of his remorsefulness is questionable." 15. N wrote a letter to both the victim and the judge expressing his remorse and sorrow for his actions. His mother wrote a letter pleading for her son in which she set out the difficulties he had experienced in growing up and stating that he had become a changed person who felt "very bad and ashamed of what he's done and what he's put the victim and my family through." She believed that when he reached his teenage years he made the wrong friends and was led astray. 16. The judge, who had the opportunity of hearing N give evidence, expressed the view that Mr N was remorseful and noted that Mr N's family had maintained contact with him while he was in gaol and was supporting him. The judge stated that but for the plea of guilty he would have imposed a sentence of 11 years imprisonment on both offenders but, because of the plea of guilty, the head sentence would be 9 years in each case. 17. The pleas of guilty were entered on 3 June 2002 when the trial was to commence. The material suggests that notification of these pleas was given some weeks earlier, during May. Thus the pleas were not entered at the first available opportunity but they did avoid the necessity for a trial and witnesses having to attend and give evidence. The percentage allowance of about 18 per cent made for the plea of guilty was adequate and sufficient to encompass the expressed remorse. 18. Appeal ground 1 reads: "The sentence was unduly harsh and severe." 19. N submitted that both subjectively and objectively a starting point of eleven years was too high when the applicant was not a planner or a prime mover in the robbery, nor directly responsible for any (minor) physical injury sustained by the victim. N relied on the Judicial Commission statistics and pointed out that of those sentenced to prison only fifteen per cent received a head sentence in excess of ten years and that no offender aged less than twenty-one years received a head sentence in excess of six years or a non-parole period over three years. 20. The offence was very serious. The raid was well planned. Arms and disguises were obtained and gloves were worn. N prodded the victim with a knife and assisted in the terror inflicted upon him by Broderick. Further, N was one of the people who attended at X's residence and expressed enthusiasm for the venture that subsequently took place. Because of the issues of parity and what I regard as the minimum permissible sentence it is not necessary to deal with this ground further. 21. Appeal ground 2 reads: "The sentencing judge erred in failing to make sufficient allowance for the youth of the applicant." 22. N complained that the judge regarded the relevance of the applicant's youth as limited to rehabilitation. He contended that the youth of an offender, particularly if under eighteen should be taken into account in terms of criminal responsibility. 23. It was next submitted that the applicant's emotional immaturity justified greater weight being given to rehabilitation and less weight to general deterrence particularly when all the offenders were at least some years older than N and the offence was planned and led by experienced criminals twice his age. Reliance was placed on R v. Kama (2000) 110 A Crim R 47 par 14. It was further submitted that in the case of a youthful offender considerations of punishment and the general deterrence of others may largely be discarded or modified in favour of individualised treatment of the offender, directed towards his rehabilitation (R v GDP (1991) 53 A Crim R 112). It was submitted the sentence does not reflect this approach. 24. N submitted that if he had been dealt with prior to 25 November 2001 his sentence would have been served in a juvenile justice centre. If the applicant had wanted to serve his sentence in a juvenile justice centre he could, of course, have given himself up shortly after 25 December 1998. 25. I do not think that the judge regarded the relevance of the youth of the offender as being limited to rehabilitation. As the Crown pointed out, the judge found special circumstances because of the age of both applicants and exercised his discretion to fix a non-parole period which was about fifty-five per cent of the head sentence. Unfortunately this was a very serious offence and merited stern punishment notwithstanding Mr N's youth. This was a case where it was imperative that the sentence reflect in significant measure both personal and general deterrence. 26. The judge did not err in the weight he gave the gravity of the crime, the need for specific and general deterrence and the youth of the offender. The judge struck the right balance. 27. Appeal ground 3 reads: "The sentencing judge erred in the weight he attached to the applicant's prior record." 28. The judge observed: "Both these offenders have had some previous convictions, not for terribly serious offences but they are not free from criminal offences ... these are not records which of themselves entitle the court to extend leniency." 29. N emphasised that he had no convictions recorded against him as at 25 December 1998 only a probation order for take and be carried in conveyance in the Children's Court in July 1997. He pointed out that after that date he had, with one exception, only convictions for minor offences dealt with either by way of fine, recognizances or community services orders at the time of sentence. There was a sentence of six months imprisonment for the supply of a small quantity of a prohibited drug imposed on 29 September 2002. He had no convictions for violence. The judge took an unduly severe approach to Mr N's record. He was entitled to some leniency but not the leniency which a completely clean record would entitle him to. 30. The Crown pointed out that the lady with whom he was in a relationship for two and a half years had, in her statement, referred to him assaulting her on several occasions, resulting in her going to a medical centre and hospital for treatment. N was never convicted or charged with any such offence and those matters appear to have been disregarded by the judge, and correctly so. 31. Appeal ground 4 reads: "The sentencing judge erred in giving insufficient weight to the plea of guilty." 32. N submitted that although the plea was not at the first opportunity once it was combined with remorse there was no good reason for limiting the reduction. I have earlier indicated my view that a discount of eighteen per cent was adequate to embrace both the relatively late plea of guilty and the remorse. This ground is not established. 33. Appeal ground 5 reads: "The sentencing judge gave no or insufficient weight to rehabilitation." 34. N pointed to having taken positive steps to overcome his involvement with drugs and the positive family support and submitted that at the time of his sentencing he had commenced the process of rehabilitation. The judge took into account the aspect of rehabilitation. The non-parole period which was fixed indicates that matters of rehabilitation must have been in the judge's mind. This ground has not been established. 35. Appeal ground 6 reads: "Lack of parity." 36. N submitted that he had a justifiable sense of grievance at the disparity between his sentence and those imposed on X and Broderick. Lowe v. The Queen (1984) 154 CLR 606. 37. On 29 January 2002 the judge sentenced Broderick after two pleas to two counts of offences under s.112(3) of the Crimes Act 1900 (Home Invasion). On 10 December 1998 Broderick, in company with others, had broken into a house armed with a shotgun and wearing a mask. One occupant was bashed with a baseball bat. For this offence Broderick was sentenced to 8 years imprisonment commencing on 10 January 1999, with a non-parole period of 5 years. In respect of the offence on 25 December 1998 the judge, after making allowance for assistance, imposed a sentence of 10 years commencing on 9 January 1999 with a non-parole period of 6 years. 38. Broderick, who was 35 at the time of sentencing, had been convicted on 21 September 1999 of another similar offence committed on 9 January 1999 and was, as at 29 January 2002, serving a sentence of 7 years 6 months with a minimum term or non-parole period of 5 years. He had a lengthy criminal record dating back to 1990. N pointed out that the total sentence Broderick was required to serve for three major offences was 10 years and that the effective increase in the non-parole period he was already serving on the sentencing imposed on 21 September 1999 was one year. Thus it was submitted that N had a justifiable sense of grievance, and indeed he has. 39. The Crown pointed out that in respect of the offence on 25 December 1998 the judge's starting point for Broderick was 16 years Broderick had both a more extensive criminal record than X and played a greater role in the offence. The judge referred to X not entering the house but playing the role of "cockatoo". Broderick had caused the injury to the victim's nose. Broderick admitted his guilt when spoken to by police in Long Bay gaol on another offence on 10 August 2001 and was given the full benefit of the plea. He gave assistance to the police not only on this matter but on others. The judge found his prospects of rehabilitation were good and special circumstances due to the fact that he would spend his time in prison on protection. The judge reduced the head sentence from 16 years to 10 years, taking into account the discount for the plea and assistance to the authorities. 40. The Crown contended that N and Shadi Sultan ought to be considered in the same category as Broderick, who had entered the house armed. The Crown submitted that there could not be a justifiable sense of grievance when contrasting the starting head sentence before deduction for Broderick and that for the applicant, even allowing for Broderick's older age and more serious criminal record including similar previous offences. Those propositions are hard to accept. 41. The Crown contended that N did not have a legitimate sense of grievance in relation to the sentence imposed on Broderick. The Crown submitted that, as the judge found, the subject offence and the other two offences for which he sentenced Broderick were part of the one course of criminal activity and the sentence for the subject offence therefore did not give rise to a justifiable sense of grievance. It was contended that making the sentences concurrent in these circumstances was a legitimate approach. These are not propositions which I accept. 42. Apparently, the Crown did not object to the judge treating all three offences as part of the one course of criminal activity. The offences occurred on 10 December 1988, 25 December 1998 and 9 January 1999. In view of the Crown attitude I will not pursue further my disquiet about treating these three separate and well spaced offences as part of the one course of criminal activity. I regard that as impermissible. When one contrasts the three home invasions of Broderick with the one home invasion of N and the resulting sentences N has a legitimate sense of grievance. 43. I turn now to the sentence imposed on X. On 26 October 2001 X was sentenced to imprisonment for 1 year 11 months commencing on 13 June 2001 with a non-parole period of 9 months because of special circumstances. The offence was breaking and entering the house of Douglas Griffin and stealing certain items in circumstances of special aggravation on 25 December 1998. The judge in X's case commenced with a sentence of 5 years which he then reduced by 25 per cent for plea and co-operation and the resulting figure he reduced by a further 50 per cent for assistance to the police. That remarkable sentence attracted a Crown appeal. This court in R v. X (2003) NSWCCA 56 thought that, being a Crown appeal, the lowest permissible starting point was a sentence of 8 years. It held that the total discount which should be allowed was one of approximately 50 per cent. This court imposed a sentence of 4 years imprisonment pointing out that this was the lowest permissible sentence and one imposed on a Crown appeal. It fixed a non-parole period of 2 years and 6 months. It dated the revised sentence to commence on 25 May 2002. Counsel have pointed out that the comparison is between a starting point of 8 years in respect of X and one of 11 years in respect of both N and Sultan. 44. It was submitted by N that X was the prime mover in the robbery as he knew the victim and his house well and advised another offender that he believed the victim had a large amount of money and other valuables in a safe in the house. X was part of the planning and directed the others to the scene. He was a friend of Broderick, who had a sawn-off shotgun which he claimed X had given him. X had a pistol which he claimed was unloaded. X's ultimate role, according to him, was to remain in the vicinity of the front door and grab anyone who tried to escape. He later demanded his share of what had been stolen. N pointed out that, although X gave the police some assistance, it was not until another informant came forward that he decided to admit that he was even present at the scene of the robbery and undertook to give evidence. 45. X, who was 40 at the time of sentencing, had a lengthy criminal record dating back to when he was 10 years old. That record involved many serious criminal offences. He had received numerous gaol sentences. His sentences for assault occasioning actual bodily harm, assault and possessing an unauthorised pistol committed in 2001 were imposed on 5 November 2001 and were backdated to commence on 13 June 2001. He was sentenced to 9 months imprisonment. N submitted that the effect of the sentences imposed on X was that X served the same non-parole period in length and between the same dates for the offence of 25 December 1998 and those of 2001. 46. In response the Crown submitted that the circumstances of X, when compared with those of the applicant, were quite different. X pleaded guilty at the first opportunity and, around July 1999, he became a registered informant and provided assistance to the police, that assistance including the instant offence and other offences. Suspicions held by some co-offenders that he was informing led to him being kidnapped and threatened with death. He had to leave his home in Berkeley and move with his wife and six children elsewhere. He voluntarily returned to New South Wales and surrendered to police when he was charged with the subject offence. He was to spend the term of his imprisonment on protection. X's subjective background indicated that he came from a dysfunctional family, left school at age 12, and had had a hard life. 47. There is a further matter that needs to be mentioned. X escaped from custody on 21 December 2001 and was not recaptured until 5 December 2002. It appears that he served 6 months and 1 week in custody, that is, from 13 June 2001 to 21 December 2001. Thus he had a period of some 2 months and 3 weeks to serve in respect of a sentence of 9 months. It is apparent that this Court, in starting X's sentences from 25 May 2002, took into account both the period X had served, and the period that he had been at liberty. It appears that this Court was not informed of the overlapping of the sentences for the three offences in 2001 with that of the sentence for the offence of 25 December 1998. When allowance is made for the overlapping, X's effective sentence was probably one of 3 years and 3 months. This would also have an effect on the non-parole period. 48. This narration of the facts shows that there is no due proportion between the sentences imposed on X and those imposed on N and Sultan. The question remains as to what should be done. 49. I would apply the principle propounded by Anderson J in R v. Capper (1993) 79 A Crim R 64 at 74, namely: "When a co-offender has been treated with excessive leniency justice may be sufficiently done if the prisoner receives as lenient a sentence as can be justified within the accepted range of sentences for this kind of offence in light of the matters personal to the prisoner, including his record." 50. This accords with the approach taken in this Court in many instances for some years. The lowest permissible sentence which could be imposed on the applicant is one of imprisonment for 7 years and, having regard to the special circumstances which the judge correctly found and including the prospects of rehabilitation and the need for an extended period of supervision, a non-parole period of 4 years. This reduction sufficiently accommodates those grounds raised on behalf of N and sustained. 51. Accordingly, I propose the following orders: 1. Leave to appeal against sentence granted to N. Appeal allowed. 2. Sentence quashed. In lieu of the sentence imposed N is sentenced to imprisonment for 7 years commencing on 1 November 2001 with a non-parole period of 4 years expiring on 31 October 2005 on which date N will become eligible for release on parole. 52. Sultan Shadi Sultan was born on 22 January 1979 and thus was aged 19 at the time of the offence. His criminal history prior to the offence in question comprised a recognizance granted on 23 October 1997 under s 556A of the Crimes Act 1900 for take and be carried in a conveyance. Subsequent to 25 December 1998 he was dealt with for a series of four matters at the bottom end of the criminal scale in respect of which only fines were imposed. The judge found that Sultan belonged to a family which had been and remains very supportive. 53. He is the father of twin sons but he and his former wife have separated and he does not see his sons. Sultan performed poorly at school and he has problems reading and writing. He has limited intellectual functioning and is mildly retarded. This renders him susceptible to the influence and manipulation of his peers. He was using amphetamines heavily. At the date of his sentencing he had been unable to obtain treatment in gaol for his drug and alcohol dependency. The judge found that Sultan had expressed remorse. 54. The probation and parole report states: "Mr Sultan impressed as a person of limited intelligence whose involvement in criminal behaviour has been the result of his leaving the family environment, his previous associates and his digression from the teachings of his religion. He appears to have resolved his addiction to amphetamines and now has regained the full support of family and his girlfriend. Mr Sultan appears to recognise the seriousness of his prior behaviour and the possible consequences of his actions. His present good intention to lead a more constructive lifestyle should be assisted by his return to the family environment." 55. The report indicates that Sultan does have prospects of rehabilitation. It is difficult to assess the extent of these, particularly given his limited intelligence. However, prior to his arrest, he did seem to have formed a constructive relationship which was supported by his family. 56. Appeal ground 1 reads: "The sentence was unduly harsh and severe." 57. Substantially the same arguments were advanced under this ground in support of Sultan as were advanced in the case of N under this ground and I make the same comments. 58. Appeal ground 2 was not pressed. 59. Appeal ground 3 reads: "The sentencing judge erred in the weight he attached to the applicant's prior record." 60. It was submitted that the sentencing judge mistakenly referred to Sultan as having some previous conviction, as well as being in breach of a good behaviour bond. Counsel further submitted that Sultan had no convictions recorded against him as at 25 December 1998, but one finding of guilt dealt with by a s.556A recognizance, and that he had minor convictions subsequently dealt with by way of fines at the time of sentence. He had no convictions for violence. Significantly he had never been sentenced to imprisonment. The recognizance was for a period of 18 months and thus, as at 25 December 1998, the applicant was in breach of his recognizance. 61. The record of Sultan was not such as to disentitle him to some leniency and the judge erred in expressing an opinion to the contrary. The judge made no reference to the statement of Sultan's former wife that he had assaulted her and, in one instance, with serious consequences. There had been no convictions or apprehended violence proceedings and it seems that the judge probably disregarded that material. The judge erred in his approach to Mr Sultan's prior record. 62. Appeal ground 4 reads: "The sentencing judge erred in failing to give weight or sufficient weight to the personal circumstances of the applicant." 63. These circumstances included that Sultan had never been in prison before, that he had significant disabilities, his age, and his prospects of rehabilitation. Sultan conceded that the judge had referred to the report of the psychologist and Sultan's limited intellectual capacity and insight. However, the complaint was that the judge did not appreciate the relevance of the report in terms of assessing Sultan's criminality. This complaint is not substantiated. 64. It was submitted that the offence was committed while Sultan was alienated from his parents and his religion but he had returned to both a considerable time before he pleaded guilty. This, combined with a positive approach to drugs, was evidence, in addition to the plea, that rehabilitation was well underway. It was submitted that this pointed out at least a hopeful prognosis but that the judge made no finding. The judge was keenly aware of the applicant's age and immaturity. The difficulty with rehabilitation is assessing the extent of the prospects. The judge did not ignore rehabilitation. The judge did give weight to the personal circumstances of Sultan. 65. Appeal ground 5 reads: "That the judge erred in giving insufficient weight to the plea." 66. Counsel for Sultan stressed that there was strong evidence that the applicant was remorseful. The judge was well aware of the assertions of remorse contained in the letter of Mrs Andy and in the probation and parole report. 67. As mentioned in the case of Mr N, the plea of guilty was made at a late stage, and, while it had definite advantages which should not be downplayed, a discount of eighteen per cent for the plea and expressions of remorse was adequate. Ground 5 is not established. 68. Ground 6 reads: "Lack of parity." 69. It was submitted that Sultan had, in view of his limited role and lack of any assaults or threats on his part, combined with the other subjective matters, a justifiable sense of grievance between his sentence and those sentences imposed on co-offenders X and Broderick. 70. The description of Sultan as having a limited role needs some qualification. Sultan did arm himself with a baseball bat and climbed in the window of the house. The torch left near the smashed door was his, the baseball bat belonged to him and probably the mask. He did play a significant role in planning the offence and he was present at the house during the planning. 71. As to the sentences imposed on X and Broderick the same arguments were advanced as in the case of N and the same submissions were made by the Crown. I adhere to the views expressed when dealing with N on the parity issue as to the sentences imposed on X and Broderick. Those views apply with equal force in Sultan's case. 72. It was further submitted that Sultan had a justifiable sense of grievance when comparison was made with the identical sentence imposed on his co-offender N who, although younger, had a greater criminal record, had actively participated in the violence in the house by threatening and prodding the victim with a knife and might be said to have lesser prospects of rehabilitation. I do not agree with the submission that N has lesser prospects of rehabilitation. 73. It is not possible to say which of the two men had the better prospects of rehabilitation. I do not agree that Sultan has a justifiable sense of grievance arising out of the sentence imposed on N. While it is true that N prodded the victim with a knife, the applicant participated in the planning and took along a baseball bat, torch and mask. The judge was right to treat their participation in the illegal joint enterprise as being broadly equal. 74. Because of the view I have formed on the parity question and agreeing with the judge's finding as to special circumstances (in which I would include the prospects of rehabilitation and the need for an extended period of supervision), I would reduce the sentence imposed on Sultan to that to be imposed on N. Again, this reduction sufficiently accommodates those grounds raised on behalf of Sultan and sustained. Accordingly, I propose the following orders: 1. Leave to appeal to Shadi Sultan against sentence granted. Appeal allowed. Sentence quashed. 2. In lieu of the sentence imposed Shad Sultan is sentenced to imprisonment for 7 years to commence on 1 November 2001 with a non-parole period of 4 years commencing that day and ending on 31 October 2005 on which day Mr Sultan is eligible to be released on parole. 75. WOOD CJ AT CL: I agree. The orders of the court will be as Justice Smart has proposed. ********** Last Modified: 12/23/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.