Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Williams v R [2013] NSWCCA 168 Hearing dates: 3 July 2013 Decision date: 18 July 2013 Before: Ward JA; Fullerton J; Schmidt J Decision: The application for extension of time to appeal is refused. Catchwords: CRIMINAL LAW - application for extension of time to apply for leave to appeal against severity of sentence - attempted contract killing - merits of application considered - parity - application refused Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Bowtell v R [2004] NSWCCA 17 Edwards v R [2009] NSWCCA 199 El Hassan v R [2003] NSWCCA 252 Flack v R [2011] NSWCCA 167 Green v R; Quinn v R [2011] HCA 49; 244 CLR 462; 214 A Crim R 152 Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 Kauwenberghs v R [2008] NSWCCA 98; (2008) 186 A Crim R 197 Louizos v R [2009] NSWCCA 71; (2009) 194 A Crim R 223 Lowe v R [2013] NSWCCA 141 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 Ng v R [2011] NSWCCA 227; 214 A Crim R 191 Osman v R [2008] NSWCCA 157 Phanith v R [2009] NSWCCA 274 R v Christie [2000] NSWCCA 354 R v Tan (New South Wales Court of Criminal Appeal, 11 March 2004, Unreported) Category: Principal judgment Parties: Chad David Williams (Applicant) Crown (Regina) Representation: Counsel: H Dhanji SC (Applicant) M Cinque (Crown) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2007/10971 Publication restriction: None Decision under appeal Date of Decision: 2008-03-06 00:00:00 Before: O'Connor QC DCJ File Number(s): 2007/10971 Judgment 1THE COURT: Chad David Williams makes application for an extension of time in which to apply for leave to appeal against the severity of a sentence imposed upon him by O'Connor DCJ on 6 March 2008 for his part in an attempted contract killing, which attracted a charge under s 27 of the Crimes Act 1900 of causing grievous bodily harm with intent to murder, to which he pleaded guilty. 2On sentencing he asked that a further offence of malicious damage by fire, contrary to s 195(1)(b) of the Crimes Act be taken into account on a Form 1. That offence involved the destruction of a vehicle which was owned by the victim of the offence on indictment. The vehicle was valued at $42,000. 3The maximum penalty for the s 27 offence was 25 years imprisonment and there was also a standard non-parole period of 10 years imposed by s 54A of the Crimes (Sentencing Procedure) Act 1999. The maximum penalty for the s 195 offence was 10 years. 4The applicant was sentenced to a term of imprisonment of 10 years, comprising a non-parole period of 7 years with a balance of term of 3 years. The sentence reflected a discount of 45 per cent for his early plea and assistance. 5The sole ground of appeal advanced by the applicant is that he has a justifiable sense of grievance as a result of the disparity with the sentence imposed on a co-offender, Ms Louizos. 6Ms Louizos, who was charged with soliciting to murder under s 26 of the Crimes Act, was convicted by a jury at a trial at which the applicant gave evidence. That offence also carried a maximum penalty of 25 years imprisonment and a standard non-parole period of 10 years. On 25 September 2008, Ms Louizos was sentenced by Woods DCJ to a term of imprisonment of 10 years, comprising a non-parole period of 6 years and a balance of term of 4 years. 7The Crown appealed that sentence and Ms Louizos appealed her conviction. Her appeal was dismissed on 20 March 2009, but the Crown appeal was upheld, her sentence having been found to be manifestly inadequate. Ms Louizos was re-sentenced to a term of imprisonment of 13 years and 6 months, comprised of a non-parole period of 10 years and a balance of term of 3 years and 6 months (see Louizos v R [2009] NSWCCA 71; (2009) 194 A Crim R 223). It is the alleged disparity with this sentence which the applicant now seeks to rely on. Extension of time 8The Crown opposed the grant of leave extending the time to permit the application for leave to appeal to be brought, given the delay of five years between sentence and the filing of the application, the circumstances in which his application came to be made and the basis upon which it was advanced. 9For the applicant it was argued that there was no prejudice in leave being granted and the Crown could not be heard to complain about delay. This was said to be because the Crown had always known of the sentence imposed on Ms Louizos, but had neither informed the applicant of the jury verdict, obtained in part as the result of his assistance, or the sentence that was imposed after trial or on re-sentence following the successful Crown appeal. Reliance was placed on R v Tan (New South Wales Court of Criminal Appeal, 11 March 2004, Unreported), where Allen J, with whom Hunt CJ at CL and Blanch J agreed, had observed: "In its joint judgment in Lian this Court expressed concern that the re-sentencing of him disturbed the relativity of his sentence to the sentences imposed upon Han and the present appellant respectively. The Court indicated that each of them should be informed of the outcome of Lian's appeal so that he might make his own application if so advised. The perceived error in the sentencing approach which had been adopted by Finlay J was common to the sentencing of all three of the offenders." 10While it was accepted that the Crown had no obligation to inform an offender of the sentence imposed on another offender, it was said to be relevant to the application for an extension of time that the Crown had not informed the applicant of these matters. 11Those submissions are rejected. 12To the extent that this Court needs to enquire into why a differently constituted Court, which heard Ms Louizos' appeal, did not take the approach of yet another differently constituted court in Tan where the Court was dealing with a quite unique set of facts, or why the Crown did not take a similar approach, of its own volition, the reasons are, it seems to us, obvious. 13Firstly, unlike the situation in Tan where there was an identifiable sentencing error common to all three offenders, the error which resulted in Ms Louizos being re-sentenced was particular to her sentence, being one of manifest inadequacy. 14Secondly, and a critical point of distinction as we see it, is that the sentence imposed upon Ms Louizos on re-sentence was not only fixed by reference to the nature and seriousness of her offending, but also as the result of the ameliorating effect on re-sentence of the principle of double jeopardy (s 68A of the Crimes (Sentencing Procedure) Act 1999 not having any application at the time of her sentence). 15The delay in bringing this appeal was addressed in two affidavits. In his affidavit, the applicant said that he had understood that if he wanted to appeal his sentence, he had to do so within 28 days of sentence being imposed. Ms Louizos had not been tried at the expiration of that period and he said he did not understand that there was, or might be, any significance in her sentence compared to his. It was not until February 2013, after he was notified by Legal Aid that his case had been reviewed, and after he was given advice that he should apply for legal aid for an appeal against the severity of his sentence, that he learned of Ms Louizos' sentence and, after receiving further advice, instructed his solicitor to lodge an application for leave to appeal. 16In an affidavit sworn by Ms Fernando, a solicitor employed by Legal Aid, it was revealed that the challenge to the applicant' sentence was the result of his case having been reviewed as part of Legal Aid's response to the decision in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120. While no Muldrock error was found, the review was said to raise the potential for a parity argument. After receipt of counsel's advice, parity was the only ground for the application for leave to appeal filed in May 2013. 17While that explains why the application for leave to appeal against sentence was lodged almost five years after sentence, it does not automatically follow that leave to extend the time for bringing the appeal should be granted. A similar situation to the present case was recently considered in Lowe v R [2013] NSWCCA 141 where Davies J, with whom Price J and Barr AJ agreed, observed at [99]: "In my opinion where this Court determined the co-offender's appeal also based partly on parity on 15 April 2011, where there is no satisfactory explanation for the delay for most of the period, where the appeal has apparently only been triggered by contact from Legal Aid because the case was thought to involve a Muldrock point but where there was a disavowal of reliance on Muldrock at the hearing of the appeal, where the outcome of the appeal will not result in an alteration to the overall sentence, and having regard to the public interest in the avoidance of delay in bringing appeals to this Court, the application for the extension of time to appeal should be refused." 18For reasons which follow, it seems to us that the same conclusion must be reached in this case. 19It was also common ground on the appeal that the merits of the application for leave to appeal against the sentence must be considered in determining whether leave should be granted (see for example Edwards v R [2009] NSWCCA 199 and Flack v R [2011] NSWCCA 167). Again, for the reasons that follow, having considered the merits of the application we are fortified in the view that leave should be refused. The applicant's sentence 20There were four offenders involved in the attempted murder of Barry Bruce in February 2006: the applicant, Ms Louizos, Mr Denning and Mr Moys. Mr Bruce was Ms Louizos' ex-partner, with whom she was involved in a custody dispute. It was Ms Louizos who recruited the applicant, who in turn recruited Mr Denning to carry out the murder and Mr Moys to drive a getaway vehicle. (The disposition of the proceedings against Mr Moys was not the subject of comment on the appeal.) 21It was known to the applicant that Mr Denning, then a 19-year-old who suffered from a mild intellectual disability, had been the victim of sexual abuse as a child and as a consequence, had a hatred of paedophiles. The applicant told Mr Denning, falsely, that Mr Bruce was a paedophile who had sexually abused his partner, when she was aged between 7 and 14 years. It was accepted that while Mr Denning was offered some money for his part in the offence, he would not have been involved, had he not been provided with this false information. 22There was evidence of planning over some two weeks prior to the attempted killing. It was the applicant who provided Mr Denning with a large knife and a disguise and the applicant and Mr Denning who waited for Mr Bruce in his driveway in the early hours of the morning. When he got out of his Land Cruiser, to move bins which they had placed in the driveway, Mr Bruce was repeatedly stabbed by Mr Denning. He was left to die in a stormwater drain and his Land Cruiser was taken away, set alight and destroyed by fire. 23Mr Bruce was initially not expected to survive. He suffered nine stab wounds, four to his left shoulder and neck, three to his right shoulder/upper chest and two to his abdomen. His bowel was severed, causing it to protrude from his abdomen. He managed to raise the alarm at a neighbour's house and was taken to hospital in a critical condition, having lost 4.5 litres of blood. He had to wear a colostomy bag for a period and underwent numerous operations to rejoin his bowel, as well as operations on his shoulders, to regain mobility. At the time of the applicant's sentencing, further surgery was planned. Mr Bruce was unable to work and continued to suffer considerable pain in his shoulders, stomach and right hand, as well as suffering bleeding from the bowel. 24The applicant received a combined discount of 45 per cent for his assistance to authorities and his early plea. Fifteen per cent of that discount was for future assistance in agreeing to give evidence for the Crown at Ms Louizos' trial. 25The applicant was sentenced at the same time as Mr Denning. His Honour concluded that the applicant's culpability was greater than that of Mr Denning, notwithstanding that Mr Denning was the person who had actually inflicted the wounds. The applicant was found to have actively manipulated Mr Denning into committing the offence by providing false information, Mr Denning's intellectual disability having made him an easy target of such manipulation. Planning of the offence was found to have been more in the hands of the applicant, who recruited Mr Moys and Mr Denning and who directed Mr Denning, at the point at which Mr Bruce was actually attacked. 26The applicant gave evidence and a psychologist's report was also in evidence. His subjective circumstances were that he was then aged 27 years, the product of a supportive family. He had two siblings and retained the support of his parents. He had had a troubled relationship with his partner with whom he had four children, then aged between 7 and 18 months. The three older children had been removed from their care in 2003. They were with foster carers and their daughter was in the care of his former mother-in-law. He was separated from his partner and had not had contact with his children since being in custody. 27While at school he became involved with older people who introduced him to alcohol and drugs. He had had intermittent employment as a welder after he left school, but as a result of escalating drug and alcohol abuse he was unable to maintain employment. He had used cannabis, amphetamines and had been injecting ice since 2002. He had served a six-month sentence for offences of break, enter and steal, drive whilst disqualified and obtaining money by deception. After release from custody he had again become involved in drugs. 28He had eventually obtained secure employment at the Wyoming caravan park as a caretaker, where Ms Louizos was the manager. It was she who approached him about killing Mr Bruce, her former partner. He initially refused to find someone to kill her ex-partner, but agreed when she persisted, fearing that he would lose his job and the house he had access to at the park. 29His Honour took into account relevant aggravating factors, including the vulnerability of the victim and that the offence involved planning and organisation. He concluded that while the applicant claimed to be in fear of losing his job and his home, the anticipation of financial reward was part of his motivation for his offending. His Honour did not consider that the applicant had been acting under duress as a factor in mitigation, but accepted that he had shown genuine remorse. His Honour also considered that a combined discount of 45 per cent was appropriate to reflect the applicant's plea of guilty and his assistance to authorities. 30His Honour concluded that the applicant's offence was serious, observing that contract killings had long been regarded as falling into the worst category of murders. His offence, also committed under contract and involving an intention to kill, resulted in an unprovoked attack on a defenceless man, with a significant degree of ferocity evidenced by the serious life-threatening injuries inflicted on Mr Bruce, who was fortunate to have survived. 31His Honour considered that the offence was above the mid range of offences of this nature, falling midway between the midrange and the top of the range. The standard non-parole period was utilised as a benchmark or reference point. The offence on the Form 1, was also considered to be a serious offence, with the result that when sentencing for the offence on indictment, greater weight had to be given to personal deterrence and to the community's entitlement to exact retribution for serious offences. 32Special circumstances were also found, with the discretion given by s 44(2) of the Crimes (Sentencing Procedure) Act, exercised in the applicant's favour, justifying a departure from the statutory ratio. In the result, a non-parole period of 7 years with a balance of term of 3 years was imposed. Ms Louizos 33In sentencing Ms Louizos the trial judge considered that the question of her motivation in soliciting the applicant and Mr Denning to kill her ex-partner was important, in that by the jury verdict and her evidence, it had to be assumed that it related to her children. Although there were Family Court proceedings on foot in relation to custody of the children at the time of the offence, his Honour was unable to find that her motive was to derail or pervert those proceedings. He also noted that, in any event, she had primary care for most of the children and significant access to the others. In the absence of any suggestion that she was the subject of domestic violence or that she stood to gain from her ex-partner's death, his Honour considered that her motivation remained "obscure, even mysterious". 34His Honour concluded: "Notwithstanding the objective seriousness of the offence, the absence of comprehensible motivation causes me to impose a lesser non-parole period than the standard non-parole period. In the range of offences involving soliciting to murder, there are commonly motivations involving the diversion of legal proceedings and financial gain. These are common ones. Love gone wrong is another. Hatred and revenge are other motives which do appear from time to time. In this case as I have said, it is difficult to discern a motivation but there are certainly worse motivations to crime than the desire to be with one's children, even if that desire provokes, as the jury found in this case it did, seriously wrong conduct." 35His Honour also considered the sentences imposed on the applicant and Mr Denning, but considered they were not comparable for parity purposes, noting that they had both had a history of prior criminality and imprisonment. His Honour also considered that their motivations were different, the applicant's being material gain, including the entitlement to have use of a cottage on a continuing basis, and Mr Denning's because he sought to exact misplaced revenge or retribution believing Mr Bruce to be a paedophile and, for that reason, the sentences imposed upon them were not suitable for comparative purposes. 36Finally, his Honour also found special circumstances in Ms Louizos' case, with the result that her sentence also involved a departure from the statutory ratio imposed by s 44(2) of the Crimes (Sentencing Procedure) Act. 37In upholding the Crown's appeal, Howie J, with whom McClellan CJ at CL and Grove J agreed, concluded that the sentencing judge's discretion had miscarried as the result of a fundamental error in his approach to sentence in two related respects: firstly, that he had failed to determine the objective seriousness of Ms Louizos' offending and, secondly, that he had failed to give any consideration to the standard non-parole period in the sentencing exercise, in circumstances where Howie J considered her culpability was great and the objective seriousness of the offence significantly above the mid-range. On any view, Ms Louizos was criminally responsible for the injuries which were inflicted, a matter which needed to be reflected in her sentence, despite not being charged, as her co-offenders were, with inflicting those injuries. 38Howie J went on to hold that if a sentencing court cannot determine what motivated an offender to commit an offence, motive was not a factor that could be taken into account in determining the objective seriousness of the offence and that it was not relevant in any other way to fixing the sentence to be imposed. 39As to the question of the applicant's motivation, he observed at [104]-[105]: "104 Nor do I understand why the motivation of the appellant, however mysterious it might have been, in wanting to retain custody of her children was any less serious than that attributed to Williams in wanting to ensure a stable life so that he could persuade the authorities to return his children. Yet his Honour disregarded the sentence imposed upon Williams on the basis that his motive was apparent and he had a criminal record. But Williams was given the same sentence as the appellant and a greater non-parole period notwithstanding that he received a 45 per cent discount for assistance. Whatever be the extent and nature of Williams' criminal record, I do not understand how it could have justified such a disparity between the sentences imposed upon him and that imposed upon the appellant when her criminality was significantly greater than his. 105 Of course the purpose of a Crown appeal is not to redress disparity and I do not take into account the substantial disparity between the sentence imposed upon the appellant and that imposed upon her co-offenders in determining whether error has been shown or whether this Court should intervene. But the discrepancy is so great that it should have alerted his Honour to the possibility that his discretion had miscarried in relation to the sentence he intended to impose upon the appellant." 40Before moving to re-sentence, his Honour said at [110]-[112]: "110 Were I sentencing the appellant afresh and unconstrained by the fact that this is a Crown appeal, I would have imposed a non-parole period above the standard prescribed, because the objective seriousness of the offence was significantly greater than mid-range. This is notwithstanding the mitigating factors of her good character and prospects for rehabilitation. I would have considered a non-parole period of 13½ years with a balance of term of 4½ years the appropriate sentence. Having regard to the length of the balance of term there would be no reason to find special circumstances as the parole period would be adequate for her rehabilitation after release and there is no other reason to reduce the non-parole period. I do not believe that the simple fact that the appellant had prior good character itself justified a finding of special circumstances. Nor do I consider that the impact upon her of being separated from her children a reason to reduce the non-parole period. (emphasis added) 111 The appellant relied upon statistics derived from other sentences imposed for this offence. They are of very little, if any, significance. First, there are only 9 cases listed. Secondly, the statistics supplied to the Court do not discriminate between those cases where there were pleas of guilty. The least sentence imposed was two years and the highest 16 years. The non-parole periods imposed are remarkable given that there is a standard non-parole period of 10 years specified for the offence. Only one case received that sentence. One case received 6 years; this is probably the appellant's sentence. The rest received less than 3 years one being as low as 18 months. As is usually the case when consideration is given to statistics for offences where there is a standard non-parole period specified, the only conclusion that can be drawn is that courts are apparently paying little or no regard to the standard non-parole period. In any event, the appropriate sentence is determined by a proper application of the standard non-parole provisions regardless of what the statistics reveal. 112 It should be apparent that in my opinion the sentence is manifestly inadequate to a very significant degree. It is less than half of what it should have been. Therefore, before this Court would exercise its discretion to refuse to intervene, there would need to be some matter of quite remarkable significance that would justify the Court staying its hand. There is not. A psychological report was tendered on this issue that reveals that the appellant is not dealing with custody well and it has affected her physical and mental health. That is unfortunate but it would be so whatever sentence the appellant was called upon to serve. The appellant's children are suffering but the dismissal of the appeal would hardly ameliorate that problem." 41The 18 year sentence which his Honour considered ought to have been imposed on Ms Louizos at first instance to reflect the seriousness of her offending was not imposed on re-sentence because, as we noted earlier, at that time the principle of double jeopardy applied on re-sentencing after a successful Crown appeal. His Honour observed at [114]: "As is normally the case in order to address to some degree the double jeopardy that attends a Crown appeal, the sentence I propose is less than I believe should have been imposed at first instance. It is the very least that can reflect the culpability of the appellant and address Parliament's intention by passing the provisions relating to the standard non-parole period. There are no special circumstances." (emphasis added) 42While his Honour's views reflect the fact that on re-sentence, a sentence of 13 years and 6 months, comprised of a non-parole period of 10 years and an additional term of 3 years and 6 months was appropriate, in our view it remained a most lenient sentence given the gravity of her offending. Parity 43It was the sentence imposed on Ms Louizos by this Court which is said to offend the parity principle and which is said to leave the applicant with a justifiable sense of grievance, given that after application of a discount of 45 per cent he was sentenced to a term of imprisonment of 10 years, comprised of a non-parole period of 7 years and a balance of term of 3 years such that, undiscounted, his head sentence was 18 years. Senior counsel for the applicant submitted that despite Ms Louizos' criminality as the person who solicited others to kill being greater than the applicant's and despite the gravity of his offending, the starting point for his sentence was significantly greater than hers thereby creating an unjust disparity. It was submitted that in light of the sentence finally imposed on Ms Louizos (who was not entitled to any discount), the starting point for his sentence should have been no higher than the 13 years 6 months term imposed upon her which, after applying the combined discount of 45 per cent to which he was entitled, would have resulted in a sentence of 7 years and 5 months. 44In our view, despite the difference in the sentences, the submission that the disparity attracts a justifiable sense of grievance should be rejected for the following reasons. 45While a maximum penalty of 25 years and a standard non-parole period of 10 years applied to both the s 27 and s 26 offences, the offences for which the applicant and Ms Louizos were sentenced at first instance, and in Ms Louizos' case on re-sentence, were different, one being a solicit to murder, the other being the infliction of injury with murderous intent. 46As Howie J discussed in Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 at [246]: "The principle, whether it is called parity or proportionality or relativity between sentences, should be applied to bring about a just result in the sentences imposed upon persons who have been engaged in the same criminal enterprise regardless of the charges that have actually been laid against the offenders. However, I agree with Campbell JA that the principle is subject to the limits stated in [203] of his judgment." [We do not consider the limitations to which Campbell JA referred to have any practical impact on the application of the principle of parity raised on this appeal.] 47For his part, Campbell JA said: "[202] Even though there was no issue squarely raised in the cases mentioned in the previous paragraph except AAH & AAG, as there has been in this, of whether as a matter of principle the parity principle can apply between people who have not committed the self-same crime, it is not to be supposed that the large number of judges who proceeded in this way did so by oversight. As the facts of Sumner, Nguyen, Rend, Shen, OM and Melikian illustrate, unequal treatment that is so great as to bring about a justifiable sense of grievance can sometimes arise between participants in a common criminal enterprise who have committed different crimes. In my view there is no obstacle of the type the Crown submits to the parity principle being applied simply because a case is one in which the sentence by comparison with which the sentence under appeal is sought to be reduced was for a different crime. [203] There are significant limitations, however, on reducing a sentence on the basis of that of a co-offender who has committed a different crime. At least some of the limits on the use of the parity principle in such a case are: 1. It cannot overcome those differences in sentence that arise from a prosecutorial decision about whether to charge a person at all, or with what crime to charge them: Howard; Wurramarbra; Formosa 2. If it is used to compare the sentences of participants in the same criminal enterprise who have been charged with different crimes, there can be significant practical difficulties. Those practical difficulties become greater the greater the difference between the crimes charged becomes, and can become so great that in the circumstances of a particular case a judge cannot apply it, or cannot see that there is any justifiable sense of grievance arising from the discrepancy: Gibson; Howard; Formosa 3. It cannot overcome differences in sentence that arise from one of the co-offenders having been given a sentence that is unjustifiably low: Armstrong; Diamond; Rexhaj; Isamundar 4. ..." 48That said, and despite the fact that the offences in this case arose from the same criminal enterprise, there remain some practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes (see Green v R; Quinn v R [2011] HCA 49; 244 CLR 462; 214 A Crim R 152 at [30]). However, that practical limitation does not exclude the operation of the parity principle in an appropriate case, although the effect given to it may vary according to the circumstances of the case. 49In addition, in this case it should not be overlooked that a serious offence was taken into account on the Form 1, when the applicant was sentenced. Contrary to the arguments advanced on his behalf in this Court, that offence, which carried a maximum penalty of 10 years, necessarily resulted in an increase in the sentence imposed from what would otherwise have been appropriate were he to be sentenced only for the s 27 offence (see Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [42]). The law as it applied at the time of sentence was reviewed in Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115. As we see it, the Form 1 offence is an important point of distinction between the two offenders and, of itself, would not have warranted an undiscounted sentence of 13 years and 6 months as a starting point. 50It may be accepted that had the applicant complained about the disparity between his sentence and Ms Louizos' original sentence (and had his appeal been heard and determined before she was re-sentenced), an appeal based upon breach of the parity principle would likely have succeeded. However, after the successful Crown appeal against the inadequacy of her sentence, the position was materially different since the increase in her sentence, ameliorated significantly by the application of the principle of double jeopardy, operated to redress that disparity. It is also of significance that a complaint of disparity accepts that the sentence appealed from is otherwise appropriate (see England v R; Phanith v R [2009] NSWCCA 274 at [22]; Jimmy v R at [251].) 51It is also well settled and, as we see it, critical to the disposition of this appeal, that a relevant difference between the situations of an applicant for leave to appeal against sentence and another offender with whom a comparison is sought to be drawn for the purposes of a parity argument may be that the sentence of the co-offender was the result of a successful Crown appeal (see El Hassan v R [2003] NSWCCA 252 at [13]; Bowtell v R [2004] NSWCCA 17 at [35]; Kauwenberghs v R [2008] NSWCCA 98; (2008) 186 A Crim R 197 at [109]). That is this case. 52As noted above, on re-sentence Howie J considered that the sentence initially imposed on Ms Louizos was less than half of what should have been imposed upon her at first instance. Extrapolating from his Honour's view, on re-sentencing, but for the impact of the double jeopardy principle, the starting point for her sentence would have been 18 years. It was only the application of the double jeopardy principle which resulted in a sentence of 13 years 6 months being imposed. 53In our view it is this that stands in the way of the applicant succeeding in achieving a reduction in sentence to achieve parity with Ms Louizos' ultimate sentence. Again in Jimmy v R, Howie J said at [249]: "I also confirm the obita view I expressed in Osman v R [2008] NSWCCA 157, with which McClelland CJ at CL agreed, that an applicant should not be able to seek parity with a sentence imposed upon a co-offender after a successful Crown appeal simply on the basis that the sentence imposed upon the co-offender was reduced because of double jeopardy or for some other discretionary reason that does not apply to the applicant." 54In Osman v R [2008] NSWCCA 157, Howie J, with whom McClellan CJ at CL agreed, referred to R v Christie [2000] NSWCCA 354, where Fitzgerald JA had held at [19]: "In this difficult area, the law yields logic to justice. An otherwise appropriate sentence imposed on an offender is reduced if that is necessary to ensure that he or she is not treated unjustly compared to a co-offender, even a co-offender to whom leniency has been extended, unless the co-offender's sentence is unsuitable as a basis for comparison because of manifest error. When comparison is legitimate, it is necessary for the Court to decide whether, after due allowance has been made for all material differences, the sentence of the offender seeking a reduction is so much more severe than the sentence imposed on the co-offender that the resulting disparity gives rise to a justifiable sense of grievance." 55Howie J observed in Osman, at [37]-[38]: "In that case [referring to Christie] there was no issue of parity arising because of the difference between the criminality of the applicant and the co-offender and the different subjective considerations, including a plea of guilty by the co-offender. It was held that, even taking into account that the co-offender was treated leniently because of the Crown appeal, there could be no justifiable sense of grievance held by the applicant in all of the circumstances of that case. It is unnecessary in order to resolve this matter to consider the issue of parity in relation to a sentence imposed by this Court following a Crown appeal where that sentence was less than it might otherwise have been because of the effect of double jeopardy. For my part, and with respect to the members of the Court in Christie, I have some difficulty understanding why an offender should receive a reduced sentence because of the effect of double jeopardy on a co-offender... " 56In the result, we do not consider that the applicant has a justifiable sense of grievance, or that there is a breach of the objective of equal justice arising from the re-sentence of Ms Louizos, where she received a lenient sentence after a Crown appeal as a direct result of the operation of the principle of double jeopardy. In our view, the leniency of Ms Louizos' sentence by operation of law rendered her sentence unsuitable for comparative purposes. 57Further, assuming on re-sentence the applicant was entitled to a finding of special circumstances and the statutory ratio provided by s 44 of the Crimes (Sentencing Procedure) Act was applied, a non-parole period in the order of 5 years and 7 months would result. 58Given the nature and seriousness of the applicant's offending, a mandatory sentence of that duration would fail to reflect the nature and seriousness of the offences for which he was sentenced and would be productive of a sentence that would, in our view, be wholly inadequate. 59Finally, even if we were of the view that there was a relevant disparity in the sentences, which we are not, there is no obligation to reduce a sentence to one which is inadequate and for the reasons discussed above we would not in this case. In Green v R; Quinn v R, French CJ, Crennan and Kiefel JJ observed at [33]: "... the existence of a discretion, where unjustified disparity is shown, to reduce a co-offender's sentence to one which is inadequate does not amount to an obligation to do so... 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." 60In Ng v R [2011] NSWCCA 227; 214 A Crim R 191 Bathurst CJ, James and Johnson JJ said at [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]." Orders 61For these reasons the application for extension of time to appeal is refused. ******* 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. Decision last updated: 18 July 2013