New South Wales Court of Criminal Appeal CITATION: R v ELZAKHEM [2008] NSWCCA 31 HEARING DATE(S): 16 October 2007 JUDGMENT DATE: 6 March 2008 JUDGMENT OF: Beazley JA at 1; Hulme J at 2; Latham J at 74 Allow the appeal. Quash the sentences imposed on the Respondent by Toner DCJ on 14 May 2007. In lieu of the sentences imposed by Toner DCJ sentence the Respondent as follows:- Count 1 - Imprisonment for a fixed term of 6 years commencing on 26 February 2004. Count 2 - Imprisonment for a fixed term of 6 years commencing on 26 August 2005. DECISION: Count 3 - Imprisonment for a fixed term of 3 years commencing on 26 February 2007. Count 4 - Imprisonment for a fixed term of 1 years and 6 months commencing on 26 February 2008. Count 5 - Imprisonment for a fixed term of 3 years commencing on 26 August 2008. Count 6 - Imprisonment for a fixed term of 8 years commencing on 26 August 2009. Count 7 - Imprisonment for a fixed term of 3 years commencing on 26 August 2013. Count 8 - Imprisonment for a non-parole period of 4 years and 7 months commencing on 26 July 2014 together with a further term of 5 years commencing on 26 February 2019. Record as the date upon which it appears that the Respondent will become eligible for parole, 26 February 2019. PARTIES: Regina Gabriel Elzakhem FILE NUMBER(S): CCA 2007/1393 COUNSEL: Crown: Mr G Rowling Respondent: Mr M Ierace SC SOLICITORS: Crown: S Kavanagh Respondent: S O'Connor LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0874 LOWER COURT JUDICIAL OFFICER: Toner SC 22 IN THE COURT OF CRIMINAL APPEAL 2007/1393 BEAZLEY JA HULME J LATHAM J Thursday, 6 March 2008 REGINA v Gabriel ELZAKHEM Judgment 1 BEAZLEY JA: I agree with Hulme J. 2 HULME J : The Respondent to this Crown appeal pleaded guilty to 5 offences of causing malicious damage by fire and 2 offences of conspiracy to cause malicious damage by fire. Pursuant to s195B of the Crimes Act, the maximum penalty for each of the first group of offences is 10 years' imprisonment. The penalty for the conspiracy offences is at large. Toner DCJ, who sentenced the Respondent expressed the view that, "in relation to counts 1 to 7, the degree of culpability of the offender was approximately the same" and, accordingly, but for the Respondent's pleas, an appropriate sentence for each of these offences would be 7 years. His Honour said that, after allowing a discount of 20% on account of the Respondent's plea, the resultant total sentence would be 5 years and 6 months and this was what he intended to impose. (In fact, 7 years less 20% equals in 5 years and 7 months but the difference of one month may be ignored.) 3 The actual sentences imposed for the first 4 of these offences were of a duration of 6 years made up of a non-parole period of 6 months and a further term of 5 years and 6 months. The actual sentences imposed for the offences the subject of counts 5 – 7 were of a duration of 6½ years made up of a non-parole period of 12 months and a further term of 5 years and 6 months. 4 At the same time the Respondent was also sentenced in respect of an eighth offence to which he had pleaded guilty, viz. of conspiring to maliciously inflict grievous bodily harm upon Andrew Lyons with intent to do grievous bodily harm to Mr Lyons. Although there is no maximum penalty prescribed for the offence of conspiracy, pursuant to s33 of the Crimes Act, the offence of maliciously inflict grievous bodily harm with intent to do grievous bodily harm carries a maximum sentence of 25 years imprisonment. In connection with the eighth count, his Honour was asked to take into account three further offences of causing malicious damage by fire and one of attempting to do so. In relation to this offence, Judge Toner said that, but for the Respondent's plea, an appropriate sentence would be 12 years and that, after allowing a discount of 20% on account of the Respondent's plea, he intended to impose a total sentence of 9 years and 6 months and a non-parole period of 4 years and 1 month. 5 The actual sentence imposed for this offence was of 13 years and 7 months made up of a non-parole period of 4 years and one month and a further term of 9 years and 6 months commencing on 26 December 2009. 6 The total effective sentence imposed was of 18 years and 7 months made up of non-parole periods extending from 26 December 2004 to 25 January 2014 (9 years 1 month) and a further term on 9 years and 6 months expiring on 26 July 2023. In summary, the sentences imposed by Toner DCJ were:- Count Offence Start of NPP Start of Sentence Sentence Further Term Expiry Total 1 Mal Dam by Fire 26/12/04 26/6/05 26/12/10 6 y 2 Mal Dam by Fire 26/6/05 26/12/05 26/6/011 6 y 3 Mal Dam by Fire 26/12/05 26/6/06 26/12/11 6 y 4 Mal Dam by Fire 26/6/06 26/12/06 26/6/12 6 y 5 Con to Mal Dam by Fire 26/12/06 26/12/07 26/6/13 6½ y 6 Mal Dam by Fire 26/12/07 26/12/08 26/6/14 6½ y 7 Con to Mal Dam by Fire 26/12/08 26/12/09 26/6/15 6½ y 8 Con to inflict GBH 26/12/09 26/1/14 26/7/23 13 y 7 m 7 The Crown contends that the individual sentences and their total are manifestly inadequate. 8 Evidence as to the circumstances of the offences was placed before Toner DCJ in the form of an Agreed Statement of Facts. Summarised it showed the following:- 9 At all material times, the Respondent was the owner of G & T Hairdressing Supplies, (hereinafter referred to as "G & T") a company that sold hairdressing products. Count 1 10 In February 1997, a competitor of G & T that traded as "Matrix Essentials Australia" commenced proceeding against G & T for damages and obtained an interim injunction restraining G & T from selling certain products. In May 1998 Matrix commenced proceedings against G & T for contempt of those orders. 11 The Respondent asked a relative Vincent Awit to arrange an arson attack on a warehouse of Matrix at Zetland. The Respondent suggested that a ladder be used to climb onto the roof of the premises where a skylight should be broken and petrol or a Molotov cocktail poured in through the roof, whereby cardboard boxes stored there would be ignited. Awit arranged for another person Anthony Keith Coleman (Snr) (whose son Tony Keith Coleman (Jnr) helped) to carry out the task. At about 3am on 10 August 1998 the warehouse was set alight. The value of the damage was estimated at $4.35M. Form 1 – First Offence 12 As at September 1998 the Respondent was concerned that a competitor, Claudio's Hair and Beauty Supplies of Condell Park would take custom away from G & T and asked Awit to arrange for Claudio's to be burnt, suggesting that entry could possibly be gained through the roof. Awit arranged for Anthony Coleman (Snr) to burn Claudio's premises. 13 Shortly before 2.00am on 2 September 1998 Claudio's was set alight. Fire officers are of the view that this arose in consequence of persons climbing onto the roof and putting accelerant through the skylight. $300,000 worth of stock was lost and a further $250,000 worth of damage caused to the building. Count 2 14 Another company Hairtech Australia Pty Ltd was the sole distributor of a particular hair tint that it would not supply to G & T. The Respondent told Awit that it was costing him a lot of money and he was having trouble surviving without these products. He asked Awit to survey Hairtech's building to see if it could be destroyed. Awit inspected the building and arranged for Anthony Coleman (Snr) to set the building on fire. At about 3.48 am on 11 June 1999 this occurred. Subsequently the Respondent paid Awit who passed the payment on to Mr Coleman. Stock to the value of $1M was lost and damage to the value of $400,000 was caused to the building. Count 3 15 Until 1997 Laxales Hairdressing Supplies bought "Nouvelle" hair care products from G & T and on-sold them. At that time Laxales dropped the product and replaced it with another from a different supplier. Laxales returned certain of the Nouvell products they had in stock and had not paid for and, after some dispute, paid a surcharge G & T had demanded. 16 The Respondent instructed Awit to organise the burning of Laxales. Awit arranged for Anthony Keith Coleman (Snr) (whose son Tony Keith Coleman (Jnr) helped again) to carry out the task. At about 3.25 am on 7 October 1999 an explosion occurred at the Laxales premises and the building was engulfed by fire. The fire was started with the aid of accelerant placed through the roof. The loss of stock and profit was estimated at $262,000 and damage to the building estimated at $65,000. Form 1 – Second Offence 17 At the Respondent's request at about 12.07am on 6 October 1999 a fire started outside and spread inside a garage containing stock belonging to Laxales. Stock destroyed was valued at $49,000. Count 4 18 In late 1999 the Respondent, who owned the unit next door, tried to buy unit 3/99 Ocean Drive, Wamberal. He was unsuccessful and the unit was sold to someone else. The Respondent approached Awit to burn the unit out a bit to cause a bit of fire damage and instructed Awit to set a fire through a side window leading to the bathroom or kitchen. Awit arranged for Anthony Coleman (Snr) to start the fire. Sometime between 22 and 25 January 2000 a small amount of fire damage was caused to unit 3 through a side window that led to the bathroom. Form 1 – Third Offence 19 Raine and Horne Real Estate Agents had been the vendor's agent on the sale of Wamberal unit. The Respondent requested Awit to cause some fire damage to the premises of Raine and Horne. At around 2.10am on 10 January 2000 the front window of the agents was smashed and a Molotov cocktail thrown inside causing a small amount of fire damage. Form 1 – Fourth Offence 20 Complete Hairdressing Supplies Pty Ltd was in a business relationship with G & T supplying chairs, basins and other items which G & T onsold. The relationship soured, and then ended, when Complete discovered that G & T was undercutting Complete's prices. The Respondent complained to Awit that Complete would no longer supply him with furniture and asked Awit to arrange an arson attack on Complete. Awit assessed Complete's premises and reported to the respondent that access would be difficult. The Respondent replied by suggesting access be gained by smashing glass at the front of the premises with a sledgehammer and pouring in petrol. Awit solicited Ellias to carry out the task. 21 At about 1.50am on 1 March 2002 police and fire officers responded to an alarm at Complete's premises finding the front window smashed and a wine bottle containing accelerant and a burnt wick and other accelerant in the premises. Count 5 22 In 2002 a business known as "Hairmart" operating out of Southport, Queensland was involved in purchasing Nouvelle products from G & T. There was a falling out and Hairmart commenced to buy from elsewhere with the result that G & T no longer had a distributor of Nouvelle products in Queensland. The Respondent asked Awit to have Harimart's premises destroyed by fire. Awit asked his nephew Adam Ellias (also known as Adam Awit) to arrange for this to occur. Adam in turn enlisted Carlos Anthony. 23 At about 1.10 am on 13 September 2002, there was a fire at the Hairmart premises after a brown bottle containing petrol and a cloth wick had been thrown in. The total loss of stock and profit was estimated at $135,003.55. 24 After the fire Adam Awit telephoned his uncle and told him that the job at Southport had been done. Payment of $5,000 was discussed in relation to the job. Count 6 25 In November 2001 the managing director of Dateline Imports Pty Ltd, a competitor of G & T, complained to the New South Wales Office of Fair Trading that G & T was importing and distributing products that Dateline said did not comply with Australian Standards. 26 Shortly before 20 August 2003, the Respondent asked Awit to arrange an arson attack on the premises of Dateline at Alexandria. The Respondent suggested that the fire could be ignited through the roof, with the use of fuel dropped through skylights. Awit surveyed the building and reported back that the building was tall and surrounded by security cameras. The Respondent suggested a tree be climbed to see if there were cameras on the roof. Awit arranged for Adam Ellias to carry out the offence. At about 5.30 am on 20 August a fire was lit in the premises, accelerant having been introduced through a ground floor window that had been prised open. 27 Ellias reported to Awit that the job had been done and requested payment. Awit then met with the Respondent who handed over $5,000. The value of the damage to the building, stock and adjoining buildings was estimated at $18M. Counts 7 and 8 28 Prior to October 2004, Andrew Lyons had been in partnership with the Respondent. The partnership had gone sour and by October or November, Mr Lyons was a director of Beautopia Pty Ltd, a competitor of the Respondent, and which had premises at Chatswood. In November 2004 Beautopia issued a catalogue of products and prices that was based on the Respondent's mailing list of in excess of 10,000 clients. 29 The Respondent told Awit that he was losing money as a result of Beautopia stealing his mailing list and said that he wanted Beautopia put out of business for some months by having its premises burnt down and Lyons roughed up a bit. Awit contacted Adam Ellias and the two inspected the premises. The assessment was that the job would not be easy and Ellias said that he would need to involve others and the job would cost more. The Respondent agreed to pay $10,000 and he provided this to Awit. Ellias enlisted the services of Fouad Sassine, Mark Najem and Christoper Duncan in order to burn the premises and injure Mr Lyons. Najen informed Ellias that they intended to carry out the offences on Friday 3 December 2004. 30 The Statement of Agreed Facts records:- "At no stage did Gabriel Zakhem instruct that guns were to be used to injure Lyons. Awit said that he instructed Adam Ellias that there was not to be any shooting or excessive violence of that nature. After the incident, Zakhem was surprised that firearms were used. … On the night of 3 December, police officers posing as employees of Beautopia occupied the premises. At about 9.25pm, a vehicle owned by Najem entered the car-park above Beautopia's premises and Najem, armed with a loaded 9mm semi-automatic pistol took up position as a lookout on the rooftop. Duncan was armed with a shortened point 222 position (sic) calibre bolt action rifle with a loaded magazine. He walked around and eventually approached a police officer, Detective Sergeant Adam Phillips, who was inside the building and who was posing as an employee. Duncan asked him whether he owned a Toyota RAV4 which was parked in a spot reserved for Beautopia. He said "yes" and Duncan immediately discharged a shot towards the legs of the police officer. The bullet missed Phillips but he felt it brush passed his knee. The bullet lodged in the stairs behind Phillips. Police Officers gave chase and during the chase Duncan turned and fired shots towards pursuing police. Najem, Duncan and Sassine were arrested at the scene." Subjective Circumstances 31 The Respondent's plea was first entered in the District Court on 8 September 2006, the day after the matter was listed for trial. He has been in custody since 8 December 2004. All of that custody, except for 18 days, is referable to the offences with which this Court is concerned. 32 He was born in Lebanon in February 1958 and came to Australia as a child with his family in 1975. He married in 1987 someone with whom he had been in a relationship for a number of years and has two children. The marriage was dissolved in 2006 although he and his former wife and children remain in regular contact. 33 After arriving in Australia, he opened first one and then a number of hairdressing salons and then expanded into the wholesale supply of hairdressing products and a variety of investments. At one stage he would seem to have been worth very many millions of dollars. Affidavits and references which were tendered before Judge Toner indicate that the Respondent helped many people in a variety of ways – assisting in the establishment of a business, saving someone else's business, sponsoring someone to come to Australia. He made donations to a variety of causes in Australia and Lebanon and these donations would seem to have been of the order of tens of thousands of dollars a year. His former wife observed that "from the beginning of our relationship Gabriel has always been focused on success" and "Gabriel despite his successes had for a substantial part of his adult life suffered from depression. He was continually visiting doctors, counsellors, taking prescription drugs, attending retreats and transformation courses". 34 In August 1998 Dr Henson, a psychiatrist, was consulted by the Respondent who gave a history of tension and stress over the running of his business and describing "anxiety, depression, frustration and irritability". The doctor observed "evidence of some depression but he did seem to be aware that he would have to change the way he has been living to recover. He has agreed with his wife to plan spending less time at work." 35 From as early as 2001 until 2004 the Respondent and his wife were seeing a counsellor concerning relationship issues and with a view to the Respondent understanding himself better and improving the quality of family life. 36 From early 2001 the Respondent was consulting Dr Galambos, another psychiatrist, who made a provisional diagnosis of a "major depressive disorder on a background of physical abuse from his brother, neglect by his mother, possible complicated bereavement regarding his brother (another who had been killed in a train accident) and obsessive and neurotic personality traits". Dr Galambos placed him on a variety of medications up to what would seem to have been the last consultation in August 2001. 37 A general practitioner, Dr Hood, whose practice the Respondent had attended for the last 10 years said that the Respondent suffered from chronic depression and anxiety for which he had been on multiple medications. Dr Hood and other doctors said also that the Respondent suffered from Crohn's Disease. 38 Another GP whom the Respondent seems to have attended between October 2003 and his arrest also placed the Respondent on medication for depression. 39 Judge Toner also had before him reports from two psychiatrists, Dr Greenberg and Dr Allnut. 40 In findings which were not the subject of challenge during the course of the appeal his Honour concluded that it was hard to see any significant evidence of remorse or contrition on the part of the Respondent and that he was not persuaded that the Respondent had good prospects of rehabilitation. His Honour accepted that the Respondent's psychological makeup contributed to some extent to the commission of the offences, although his Honour was not persuaded that any psychiatric condition drove the Respondent to his crimes. His Honour also said he was not persuaded that depression played any significant part. 41 After quoting a passage from Professor Greenberg's report wherein Professor Greenberg said "psychologically, his personality disorder with obsessive compulsive features would have considerably clouded his judgment" and the opinion of Dr Allnut that, "It is probable that, as a consequence of his depression and anxiety with an obsessive compulsive personality style, your client was more inclined to attempt to take more control of his environment to bolster a flagging self esteem than reduce anxiety without being seen as a failure. Thus, given his wealth at the time of the alleged offence, it is possible that his motive was at least partly driven by his emotional needs rather than purely for secondary gain." his Honour went on to say that nevertheless he was prepared to make some allowance that the Respondent's offending behaviour may have been affected by his obsessive compulsive personality. His Honour also remarked that the Chron's disease would increase the Respondent's difficulties in prison. Parity 42 During the course of the sentencing proceedings before Toner DCJ there was placed before his Honour records of the sentencing of others involved in various aspects of his offending. This material consisted of:- (1) In the case of Awit the judgment of this Court in R v VAA [2006] NSWCCA 44. (2) In the case of Adam Ellias (Awit) remarks on sentence of Solomon DCJ of 16 February 2007. (3) In the case of Duncan, remarks on sentence of Sweeney DCJ dated 23 February 2007. 43 In this Court the Crown also provided remarks on sentence of:- (1) Sweeney DCJ when Fouad Sassine was sentenced on 4 May 2007. (2) Hulme DCJ when Anthony Keith Coleman (Snr) was sentenced on 21 September 2007. 44 I find it convenient to put aside for the moment issues of parity and initially address the topic of the sentencing of the Respondent in accordance with general sentencing principles. Errors by Toner DCJ 45 The above account reveals a number of errors made by Toner DCJ. One was in concluding that:- "In relation to counts 1 to 7 the degree of culpability of the offender was approximately the same". and deciding to impose the same length of sentence on each of counts 1 to 7. Although the Respondent's role in each of these offences may have been the same and his motivation may have been the same or substantially so, it was wrong of his Honour not to have had regard to the difference, in some cases enormous, in the damage caused. To treat an offence under s195 of the Crimes Act that causes damage of $18m as meriting the same punishment as one where, as in the case of count 4, the evidence was that the damage was "a small amount" was to overlook one of the main features of an offence under the section. 46 A second error was to fix the non-parole periods for the offences, the subject of counts 1 to 7 at periods of 6 or 12 months. While I acknowledge that his Honour may have been influenced by considerations of totality in choosing these periods which he then accumulated, they are so far from the periods required to reflect the Respondent's criminality as to amount to error. 47 Thirdly, his Honour erred in not treating the offences the subject of counts 1 and 6 as requiring, subject to any discount for the Respondent's plea, the maximum penalty provided for by the section. Notwithstanding his Honour's findings to the effect that the Respondent's mental condition had made some contribution towards the offending, it is clear that his motivation was in large part out of either greed in maintaining the profits of G & T, or out of revenge or a desire to punish other businesses that were no longer serving the Respondent's interest. When one adds to these factors the extent of the damage caused, these offences came clearly into a worst case category and merited the maximum penalty of 10 years. 48 By parity of reasoning the offence the subject of count 4 where the amount of damage was small merited in my view a lesser starting point than the 7 years his Honour adopted. 49 My mind has vacillated on the question whether his Honour's starting point for the sentence he had in mind to impose for count 8 was erroneous. 12 years is less than half the maximum prescribed for the substantive offence under s33 and the Respondent's criminality was gross. No standards of human decency or merely civilised behaviour can accept the infliction of grievous bodily harm as an incident or consequence of the simple commercial conduct of business competitors. Furthermore, although there is some evidence that might lead to the inference that the Respondent sought to limit the damage to Mr Lyons, he was content to leave it to others to carry out the object of the conspiracy. It takes no great knowledge of the world to know that in the situation the Respondent sought to bring about, things often go further than intended and experience in this Court indicates while the grievous bodily harm intended by the Respondent may have been toward the lower end of grievous bodily harm, what eventuated may well have extended to injuries either physically crippling for the remainder of the victim's life or serious brain damage. 50 It must also be borne in mind that the eighth count was the one where the Form 1 offences were to be taken into account, a factor calculated to increase significantly the sentence for that count. 51 However, ultimately I have concluded that there was no error in his Honour's intended sentence on count 8 and that it was within the legitimate exercise of his discretion. Of course, in that the sentence imposed did not reflect his Honour's reasons, that sentence did contain error. 52 Other error also lies in the total effective sentence imposed by Toner DCJ and in the inadequacy of his Honour's accumulation of sentences for the 8 offences. Probably this is most starkly demonstrated by the fact that for the 7 offences under s195, causing almost $25M damage, the total sentence imposed was only 10½ years – from 26 December 2004 to 26 June 2015 – 6 months more than Parliament has thought appropriate for one "worst case" offence under the section. The result is an effective sentence that is manifestly inadequate. 53 Subject to any considerations of parity, these errors and the extent of the inadequacy of sentence imposed by Toner DCJ are such that, notwithstanding the constraints which arise in the circumstances of this being a Crown appeal, this Court should re-sentence the Respondent. Subject to such considerations, principles of totality, and the possible existence of special circumstances, the sentences which this Court should impose are as follows. 54 In the case of the sixth count, I would impose a sentence of a fixed term of 8 years. The offence the subject of that count was, for reasons I have indicated, one falling into a worst case category. The starting point in the determination of the sentence should be 10 years from which I would make the allowance of 20% Toner DCJ thought appropriate on account of the Respondent's plea. I would not break the ensuing 8 years up into non-parole and balance of term because any sentence not involving 8 years full time custody would be inadequate to reflect the seriousness of the offence. This course is unusual but is authorized by the Crimes (Sentencing Procedure) Act, s45 55 In the case of each of the first and second counts, I would adopt the same starting point and plea discount. However, subject to consideration of whether accumulation of sentences should lead to the imposition of a fixed term, in each case I would divide the ensuing 8 years into a non-parole period of 6 years and a balance of term of 2 years. 56 In the case of each of the third and fifth counts, I would adopt a starting point of 5 years. After discount, in each case I would impose a sentence consisting of a non-parole period of 3 years and a balance of term of 1 year. (Again, and in the following paragraphs, I make the reservation about a fixed term.) 57 In the case of the fourth count, I would adopt a starting point of 2½ years. After discount, I would impose a sentence including a non-parole period of 18 months and a balance of term of 6 months. 58 In the case of the seventh count, I would adopt a starting point of 5 years. After discount I would impose a sentence consisting of a non-parole period of 3 years and a balance of term of 1 year. 59 In the case of the eighth count, and taking into account the matters on the Form 1, I would adopt his Honour's starting point of 12 years. After discount, I would impose a sentence consisting of a non-parole period of 7 years and 3 months and a balance of term of 2 years and 4 months. 60 In arriving at these sentences, I have been conscious that the Respondent's conduct was similar in most of his offences. And while I do not suggest that the penalties imposed should be proportional to the damage caused, it is appropriate to provide in the sentences imposed some reflection of that damage. I have taken into account also such of the factors listed in s21A of the Crimes (Sentencing Procedure) Act as are relevant. Given the issues raised in the appeal, it is unnecessary for me to deal with these seriatim. 61 The total of the non-parole periods is 37 years and 5 months. The total of the balances of terms is 9 years and 7 months. Considerations of totality and the constraints that exist in the case of a Crown appeal would lead me to reduce the sentences or employ a sufficient degree of concurrency such that the effective sentence imposed on the Respondent was one of 20 years, including a non-parole period of 15 years. Parity 62 Attached to these reasons is a schedule summarising the sentences imposed on the offenders involved in one or more of the offences committed by the Respondent. When regard is had to the differences in the number of charges faced by those persons and the differences in roles, I am satisfied that the total effective sentence I propose will afford the Respondent no legitimate source of grievance on parity grounds. It is unnecessary for me to comment further on these total sentences beyond referring to the sentences imposed on VAA and Coleman (Snr). 63 The effective sentence imposed on VAA reflects a discount of 62.5%. If that were added back, that sentence would be of 16 years with a non-parole period of 10 years 8 months and he did not occupy the role of principal as the Respondent did. There is a significant disparity between the individual and total sentences imposed on Coleman and those I propose for the Respondent in for the offences they had in common. However in addition to involvement in the offences committed by Coleman (Snr), the Respondent was involved in the offence at Dateline for which a head sentence of 10 years is warranted, the offence against Mr Lyons which merits a sentence of almost 10 years and 2 other offences. Coleman also had a lesser role. These factors are more than sufficient to justify the differences in total sentences. 64 There is also disparity between some of the individual sentences I propose for the Respondent and some of the individual sentences imposed on his co-offenders, a disparity which I do not regard as adequately explained by their individual roles. One area where this disparity exists lies in the sentences imposed for the offence of conspiring to maliciously inflict grievous bodily harm on Mr Lyons. There is a considerable difference between the sentence of 9 years and 4 months including a non-parole period of 7 years and 2 months that I propose and the sentences imposed for this offence on some of the others. 65 While I acknowledge that this disparity is undesirable and provides a reason to depart from the sentences I have foreshadowed, I am disinclined to do so. Firstly, disparity but enlivens a discretion. It does not compel its use – see R v Diamond (unreported, CCA 18 February 1993); R v Doan (2000) 50 NSWLR 115 at [19]; R v Rexhaj (unreported, NSWCCA, 29 February 1996); R v Ismunander and Siregar [2002] NSWCCA 477 at [38]. Secondly, with the number of offenders and charges here, it is very difficult to avoid some disparity. Thirdly, with the exception of Coleman, there is no unjustified disparity in the total sentences. Fourthly, to adjust the Respondent's sentences downwards to match those imposed on Coleman is likely to create disparity with others. Fifthly, much if not all of the effect of disparity is removed as a result of the application of the principle of totality. Finally, the Respondent's criminality was so great that I regard it as more important that the sentences imposed on him be proper by reference to other principles of sentencing than that they be reduced on parity grounds. As was said in R v Rexhaj (unreported, NSWCCA, 29 February 1996) and quoted in R v Ismunander and Siregar [2002] NSWCCA 477 at [38]:- "The principle which underlies … [intervention for disparity] … is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice … . There are, however, other things which may also lead to an erosion of public confidence in the administration of justice, and they include the multiplication of manifest errors. That is why numerous judges have stressed the unattractiveness of responding to one wrong decision by making another wrong decision." 66 There is disparity also in the effective non-parole periods. However, given the extent to which these are sometimes a somewhat arbitrary product of the need to apply principles of totality, so long as the total effective sentences are fairly comparable, I do not regard this disparity as justifying any legitimate source of grievance or a reason to depart from what otherwise seems appropriate. 67 (For an abundance of caution I should add this. The sentences imposed on the Respondent's co-offenders were not the subject of challenge in these proceedings. No inference should be drawn from my remarks here that I regard any or all of those sentences as adequate.) 68 Toner DCJ made a finding of special circumstances arising from the facts that the Respondent had no relevant prior criminal history or time in gaol despite his age of 40 (or thereabouts) when the first offence was committed, that there was delay in the matter coming to trial and the Respondent's psychological history which inspired a need for support and assistance. The fact and extent of accumulation of sentences that must occur in this case provides a further basis for such a finding. 69 However, I would not be disposed to extend the balance of term at the expense of the effective non-parole period for longer than the 5 years period foreshadowed above. In part that decision is based on the fact that longer than 5 years on parole is most unlikely to be of benefit to the Respondent or the community but primarily it is based on the need for the Respondent's non-parole period to adequately reflect the enormity of his criminality. However, I would alter the sentence foreshadowed above in respect of count 8 to provide that 5 years period when the Respondent will be eligible for parole. 70 In the cause of simplicity, because all of the non-parole periods foreshadowed above except that imposed in respect of the eighth count will be co-existent with other non-parole periods, I propose that the sentences on all counts except the eighth be of fixed terms equal to the non-parole periods foreshadowed. 71 To give effect to the conclusions at which I have arrived, I propose that the Court make the following orders:- 1. Allow the appeal. 2. Quash the sentences imposed on the Respondent by Toner DCJ on 14 May 2007. 3. In lieu of the sentences imposed by Toner DCJ sentence the Respondent as follows:- Count 1 Imprisonment for a fixed term of 6 years commencing on 26 February 2004. Count 2 Imprisonment for a fixed term of 6 years commencing on 26 August 2005. Count 3 Imprisonment for a fixed term of 3 years commencing on 26 February 2007 Count 4 Imprisonment for a fixed term of 1 year and 6 months commencing on 26 February 2008 Count 5 Imprisonment for a fixed term of 3 years commencing on 26 August 2008 Count 6 Imprisonment for a fixed term of 8 years commencing on 26 August 2009 Count 7 Imprisonment for a fixed term of 3 years commencing on 26 August 2013 Count 8 Imprisonment for a non-parole period of 4 years and 7 months commencing on 26 July 2014 together with a further term of 5 years commencing on 26 February 2019. 4. Record as the date upon which it appears that the Respondent will become eligible for parole, 26 February 2019. 72 LATHAM J: I agree with Hulme J. *************** Note:- The periods after the dash in the columns recording sentences represent the effective sentences after allowance for concurrency etc 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.