Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Loader v R; Dunn v R [2013] NSWCCA 215 Hearing dates: 29 August 2013 Decision date: 19 September 2013 Before: Latham J at [1] Rothman at [2] Davies J at [3] Decision: Application for leave to appeal by Mr Loader (1) Extend time for filing of Notice of Application for leave to appeal to 11 July 2012. (2) Grant leave to appeal. (3) Dismiss the appeal. Application for leave to appeal by Mr Dunn (4) Grant leave to appeal. (5) Dismiss the appeal. Catchwords: CRIMINAL LAW - sentence - drug supply - co-offenders - parity - all offenders sentenced by same judge - judge refers to earlier remarks when sentencing later offenders - sentencing judge misstates maximum penalty for some offences - whether sentencing infected by error - whether some other sentence warranted Legislation Cited: Criminal Appeal Act 1912 Drug Misuse and Trafficking Act 1985 Cases Cited: Butler v R [2012] NSWCCA 23 Dusan Pavicevic v R [2010] ACTCA 25 Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 274 EJDG v R [2012] NSWCCA 251 England v R; Phanith v R [2009] NSWCCA 274 Gill v R [2010] NSWCCA 236 Muldrock v The Queen [2011] HCA 39; (2012) 244 CLR 120 R v Spizzerri [2001] VSCA 49 R v Swan [2006] NSWCCA 47 Shortland v R [2013] NSWCCA 4 Trevor Essex v R [2013] NSWCCA 11 Category: Principal judgment Parties: Scott Loader (Applicant) Peter Leslie Dunn (Applicant) Crown Representation: Counsel: P Bodisco (for the Applicant Scott Loader) S Kluss (for the Applicant Peter Leslie Dunn) S Herbert (Crown) Solicitors: Mark A Riviere Solicitors (for the Applicant Scott Loader) Elamrousy Solicitors (for the Applicant Peter Leslie Dunn) Solicitor for Public Prosecutions (Crown) File Number(s): 2009/245105 & 2009/245005 Decision under appeal Before: Ellis DCJ File Number(s): 2009/245105 & 2009/245005 Judgment 1LATHAM J: I agree with Davies J. 2ROTHMAN J: I agree with Davies J. 3DAVIES J: On 15 September 2010 Scott Patrick Loader pleaded guilty in Wyong Local Court to the following offences: Count 1: Ongoing supply of Benzylpiperazines and Methylamphetamine between 7 September and 29 September 2009. The maximum penalty was imprisonment for 20 years and/or 3500 penalty units. Count 2: Supply 282 tablets of MDMA being not less than the commercial quantity between 17 September and 7 November 2009. The maximum penalty was imprisonment for 15 years and/or 2000 penalty units. Count 3: Supply of 863.15g of methylamphetamine being not less than the commercial quantity between 15 September and 11 October 2009. The maximum penalty was imprisonment for 20 years and/or 3500 penalty units. There is a standard non-parole period of ten years. Count 4: Supply 348g of methylamphetamine being not less than the commercial quantity on 6 November 2009. The maximum penalty was imprisonment for 20 years and/or 3500 penalty units. There is a standard non-parole period of ten years. Count 5: Supply 70 tablets of MDMA being an indictable quantity on 6 November 2009. The maximum penalty was imprisonment for 15 years and/or 2000 penalty units. 4He came before his Honour Judge Ellis for sentence in the District Court. His Honour provided for a discount of 25% for an early plea. He was sentenced on 15 March 2011 as follows: Count 5: A non-parole period of one year three months commencing 6 November 2009 and expiring 5 February 2011 with an additional term of one year expiring 5 February 2012. Count 2: A non-parole period of 2 years commencing 6 May 2010 and expiring 5 May 2012 with an additional term of one year expiring 5 May 2013. This sentence took into account two matters on a Form One as follows: (1) Supply 14.2g of methylamphetamine being greater than the commercial quantity between 16 September and 6 November 2009; (2) Supply 75 tabs of LSD between 16 September and 6 November 2009; Count 4: A non-parole period of three years commencing 6 November 2010 and expiring 5 November 2013 with an additional term of three years expiring 5 November 2016. That sentence took into account two matters on a Form One as follows: (1) Knowingly deal with the proceeds of crime being $1500. (2) Knowingly deal with the proceeds of crime being $19,000. Count 1: A non-parole period of three years and three months commencing 6 May 2011 and expiring 5 August 2014 with an additional term of two years expiring 5 August 2016. Count 3: A non-parole period of six years commencing 6 November 2011 and expiring 5 November 2017 with an additional term of four years expiring 5 November 2021. This sentence took into account one matter on a Form One being supply 28.4g of methylamphetamine on 22 October 2009. 5The overall sentence was a non-parole period of eight years with an additional term of four years. 6In relation to Count 3 an error was made in setting the non-parole period. His Honour said this: In relation to count three and taking into account the one matter on the Form 1, you are convicted and sentenced to a total of nine years imprisonment. ... The Court imposes a non-parole period of six years to date from 6 November 2011 and to expire on 5 November 2017 with an additional term of four years to date from 6 November 2017 and to expire on 5 November 2021. That is a total effective sentence of twelve years to date from 6 November 2009 and to expire on 5 November 2021 with a total effective non-parole period of eight years to date from 6 November 2009 and to expire on 5 November 2017. 7His Honour had intended to impose a non-parole period for Count 3 of five years with an additional term of four years. 8The sentence was amended on 11 February 2013 when further Remarks on Sentence were delivered and the error was corrected. Accordingly, Count 3 was amended to read: A non-parole period of five years commencing 6 November 2011 and expiring 5 November 2016 with an additional term of four years expiring 5 November 2020. 9As before, that count took into account the matter on the Form 1 of supplying 28.4g of methylamphetamine. 10On 24 November 2010 Peter Leslie Dunn pleaded guilty at Wyong Local Court to the following offences: Count 1: Attempt to receive and supply 307.7g of methylamphetamine being a commercial quantity on 6 November 2009. Count 2: Knowingly take part in the supply of 594.3g of methylamphetamine being a commercial quantity between 15 September and 11 October 2009. The maximum penalty for each offence was 20 years imprisonment and/or 3500 penalty units. There was a standard non-parole period of ten years. 11On 14 December 2011 Mr Dunn was sentenced by his Honour Judge Ellis. He also received a 25% discount for an early plea. The sentences imposed were these: Count 1: A non-parole period of four years commencing 6 January 2010 and expiring 5 January 2014 with an additional term of three years expiring 5 January 2017. Count 2: Taking into account matters on a Form One a non-parole period of five years commencing 6 July 2010 and expiring 5 July 2015 with an additional term of three years 6 months expiring 5 January 2019. The overall sentence was a non-parole period of five years six months with an additional term of three years and six months. 12The matters on the Form 1 were these: (1) Knowingly take part in the supply of 27.5g of methylamphetamine on 28 September 2009. (2) Knowingly take part in the supply of 28.4g of methylamphetamine on 22 October 2009; 13Each of Mr Loader and Mr Dunn seeks leave to appeal against the severity of the sentences imposed upon them. 14Two other persons, Jennifer Anne Lapham and Cameron Ross Murray were involved in the supply of the same drugs with Mr Loader and Mr Dunn. They were also sentenced by Judge Ellis and those sentences are relevant because each of Mr Loader and Mr Dunn appeals (inter alia) on a parity ground. Details of the charges and sentences in relation to Ms Lapham and Mr Murray will be referred to later in the judgment. 15Mr Loader appeals on the following grounds: Ground 1: The learned Sentencing Judge erred by ascribing 25 years as the maximum penalty for counts three and four on the indictment. Ground 3: The learned Sentencing Judge's treatment of the standard non-parole period is now erroneous. Ground 4: Disparity of sentence between the Applicant and his co-offenders gives rise to a justifiable sense of grievance. 16There were two further grounds originally relied upon but these have now been abandoned in the light the sentence correction that took place on 11 February 2013. 17A Notice of Intention to Apply for Leave to Appeal was filed by Mr Loader on 29 March 2011. Extensions of time were granted with the last expiring on 29 June 2012. The Notice of Appeal was not filed until 11 July 2012. Accordingly, Mr Loader needs leave of the Court for an extension of time in which to appeal. The Crown does not oppose leave being granted. An extension should be granted. 18The amended grounds of appeal filed by Mr Dunn are these: Ground 1: His Honour's sentences were flawed by an incorrect assessment of the maximum penalty for the offences; Ground 2: The disparity of sentence between the Applicant and his co-offenders gives rise to a justifiable sense of grievance. Ground 3: His Honour erred in imposing sentences which are manifestly excessive. Facts 19The following facts were found by the Sentencing Judge largely from a Statement of Agreed Facts. 20In June 2009, investigators from the Brisbane Water Drug Unit initiated Operation Kosmina, a covert operation undertaken to investigate the alleged distribution of prohibited drugs namely 3,4-Methylenedioxymethamphetamine (commonly known as ecstasy) and methylamphetamine by Scott Patrick Loader within the Brisbane Water and Tuggerah Lakes Local Area Commands. As a result, a controlled operation was authorised and telephone intercepts were set up in relation to mobile phones used by Mr Loader. 21The persons identified during the telephone intercepts were Mr Loader, a man named Cameron Ross Murray, a man named Peter Leslie Dunn and a woman named Jennifer Anne Lapham, all of whom were charged with various offences against the Drug Misuse and Trafficking Act 1985. They pleaded guilty to a number of counts and, as noted, have all been sentenced by Judge Ellis. 22Mr Dunn was the regular buyer of commercial quantities of methylamphetamine from Ms Lapham for the purpose of the on-supply to people on the Central Coast. He was responsible for the cutting down of the drug and the on-supply of those drugs to Mr Loader for the street level distribution. 23To avoid detection by police during the period of the police operation, Mr Dunn used no fewer than five different mobile phone numbers to contact the co-offenders. Checks with Vodafone revealed that all of these phones were registered in false names and addresses. The size of their operation was illustrated in the large numbers of telephone calls made between all the parties. 24Between 16 September 2009 and 6 November 2009, Mr Dunn was responsible for calling or texting Mr Loader 243 times and Mr Murray 302 times. Similarly, in the same period, Mr Loader either called or texted Mr Dunn 212 times while Mr Murray called or texted him 302 times. 25Mr Loader was responsible for picking up the drugs from Ms Lapham in Sydney and dropping them off to Mr Dunn. Mr Loader would then provide Ms Lapham with the money given to him by Mr Dunn. Ms Lapham would ring Mr Loader to tell him to come down to see her for lunch and/or dinner. This was code that the drug was ready to be picked up. 26Mr Loader and Mr Murray worked for Mr Dunn in relation to these commercial transactions. Mr Loader performed the role of the middle man. In addition to the drop-offs of the money from Mr Dunn and the pick-ups of the drugs, Mr Loader arranged and negotiated all the commercial supplies including having discussions about payment and quality. He was the link between both Mr Dunn and Ms Lapham. There was no evidence of direct contact between Mr Dunn and Ms Lapham. 27Mr Murray was a friend of Mr Loader's. He was responsible for introducing Mr Loader to Ms Lapham. He was involved in the joint criminal enterprise of the supply of commercial quantities of methylamphetamines as he would assist Mr Loader with making arrangements and negotiating between both Ms Lapham and Mr Dunn as well as travelling with Mr Loader to Sydney to pick up and deliver the drugs and money. 28Both Mr Loader and Mr Murray received about $200 each from Mr Dunn for each ounce of methylamphetamine supplied as payment for fulfilling this role. All the money was given to Mr Loader who was then responsible for providing it to Mr Murray in either cash or in drugs. 29In addition to the above role, it was clear from the evidence of both direct supplies to an undercover operative and recorded telephone conversations that Mr Loader was also a street and mid-level supplier of drugs to members of the community. He had his own customers and was capable of supplying methylamphetamines, ecstasy pills and acid (LSD). 30Police maintained that Mr Loader was supplied drugs by Mr Dunn for this purpose. Ms Lapham was the supplier of commercial quantities of methylamphetamines on a regular basis to the above three co-offenders. The amount on each occasion varied from between nine to twelve ounces with a value of between $25,000 to $35,000. Ms Lapham was essentially the source of the methylamphetamine that the above three offenders used to distribute throughout the Brisbane Water and Tuggerah Lakes areas of the Central Coast. 31In performing her role as the source, Ms Lapham used to ring Mr Loader when she had drugs available to supply. She was capable of arranging for an exchange in drugs when the quality was bad providing large amounts of drugs on tick and was responsible for money collection. Whilst it was evident from the telephone conversations that Ms Lapham was supplied these drugs from someone else, she still fulfilled an autonomous role of a commercial drug supplier. 32Between 16 September 2009 and 6 November 2009 Mr Loader's mobile phone service was lawfully recorded. These recorded telephone conversations showed that he regularly supplied methylamphetamine, ecstasy and LSD to different individuals. 33In addition to the occasions included in the charges, throughout the period of the telephone intercept warrants, Mr Loader was recorded engaging in hundreds of calls that were related to the supply of drugs. Mr Loader was thus a street to mid-level supplier of these drugs on the Central Coast. 34Count one charged against Mr Loader related to the period between 7 September 2009 and 29 September 2009. That count of ongoing supply involved three separate supplies on three different occasions. The first on 8 September 2009 involved 6.74 grams of benzylpiperazine valued at $400. The second on 17 September involved 3.35 grams of methylamphetamine for $300 and the third on 28 September 2009 was for 28 grams of methylamphetamine valued at $3000. Those three supplies were to an undercover operative. 35The Sentencing Judge said that while the number of supplies was the minimum, that is three, the quantities involved in each of the three was higher than normal given that often the amounts involved only a taste such as .02 of a gram. He said that the criminality involved in that matter was within the mid range of offending against that particular provision of the Act. 36In relation to count two charged against Mr Loader he agreed on 21 separate occasions between 17 September and 7 November 2009 to supply a total of 282 ecstasy tablets. Each of those agreements was recorded on the telephone intercept warrant. 37The Sentencing Judge noted that supply of 282 ecstasy tablets was an offence which would fall slightly below the mid range of offending against that particular provision because of the quantity involved. On count two, Mr Loader asked the Court to take into account two further matters, one of supplying 14.2 grams of methylamphetamine and one of supplying 75 discrete dosage units of LSD. 38Count three charged against Mr Loader was a transaction that involved charges against all four offenders. It was Count 2 charged against Mr Dunn. It related to the period between 15 September 2009 and 11 October 2009 when Mr Loader supplied a commercial quantity of a prohibited drug namely a total of 863.15 grams of methylamphetamine. That involved his travelling to Sydney to pick up from Ms Lapham an amount of 254.7 grams on 16 September 2009; on 8 October 2009 an amount of 339.6 grams and on 10 October 2009 an amount of 268.85 grams. He then supplied 594.3 grams to Mr Dunn who on-supplied it to various users within his network. 39The Sentencing Judge noted that the total of 863.3 grams was slightly above the middle of the range constituting a commercial quantity (250 -1000g). His Honour noted that Mr Loader's role as a facilitator was perhaps slightly less than usual. He said that the criminality fell within the mid range of criminality for that offence of commercial supply. He held that Mr Dunn's criminality was slightly below Mr Loader's in respect of that transaction. 40In relation to that count, Mr Loader asked the Court to take into account on the Form 1 one further matter of supplying 28 grams of methylamphetamine to Mr Dunn. Mr Dunn, in respect of this count, asked the Court to take into account two matters on a Form 1 being the supply of 28.4g and 27.5g of methylamphetamine. 41Count four charged against Mr Loader also included the involvement of the other three offenders. It involved the supply of what has variously been described as 348 and 307 grams of methylamphetamine. The explanation for the difference is that the supply was originally thought to have been 348 grams but when weighed by the analyst its net weight was 307.7 grams. Nothing turns on the difference. This count was count one charged against Mr Dunn. 42This offence, which took place on 6 November 2009, involved Mr Loader and Mr Murray sourcing the methylamphetamine from Ms Lapham and conveying it to Mr Dunn for Mr Dunn to distribute within his network of users. In relation to this offence the Sentencing Judge considered that 348 grams was just above the lower end of the range in terms of quantity, that Mr Loader's role was that of a facilitator or courier and that his criminality was slightly below mid-range, and that Mr Dunn's level of criminality was higher than Mr Loader's because he was to distribute the drugs within his network of users. 43In relation to this count, Mr Loader asked that two matters on the Form 1 involving dealing with $1500 and $9000, being the proceeds of crime, be taken into account. 44Count five charged against Mr Loader related to a count of deemed supply of 70 ecstasy tablets (17.4 grams of ecstasy) on 6 November. That was the quantity which he was carrying on him when he was arrested by police on that day. That quantity was found in a separate compartment of his car underneath the ignition and separate from the larger quantity which was count four. 45His Honour held that the offending against count five was below the mid range of offending given the amount of the substance located. 46His Honour held that in terms of the various roles played Ms Lapham, was the main source of supply for the methylamphetamine. He said that both Mr Dunn and Mr Loader had their own clients that they supplied to from time to time and that Mr Dunn used Mr Loader to source the methylamphetamine from Ms Lapham. Bearing in mind the quantities, he said that the suggestion seemed to be that Mr Dunn had a more thriving supply customer base than Mr Loader but nevertheless Mr Loader was both involved in Mr Dunn's business by acting as the conduit to Ms Lapham, in terms of money going one way and drugs the other, and running his own supply business on the side including the supply of ecstasy which was sourced other than from Ms Lapham. 47At the time his Honour sentenced Mr Loader he determined that the order of the hierarchy was as follows in descending order: Ms Lapham at the top, then Mr Dunn, Mr Loader slightly below Mr Dunn and Mr Murray slightly below Mr Loader. 48On 28 March 2011 Judge Ellis sentenced Mr Murray in relation to two counts of knowingly take part in the supply of a commercial quantity of methylamphetamine. The first count related to a quantity of 348.8g of methylamphetamine and was the same transaction as count one charged against Mr Dunn and count four against Mr Loader. The second count related to the supply of 863.15g of methylamphetamine and was the same transaction as count two charged against Mr Dunn and count three against Mr Loader. He was given a 25% discount for his early plea. 49Judge Ellis sentenced Mr Murray as follows: Count one: A non-parole period of two years and three months from 6 November 2009 and expire 5 February 2012 with an additional term of two years and three months to expire 5 May 2014. Count two: Taking into account the two matters on the Form 1, a non-parole period of two years and six months commencing 6 November 2010 and expiring 5 May 2013 with an additional term of four years expiring 5 May 2017. 50The overall sentence was a non-parole period of three years and six months with an additional term of four years. 51The two charges on the Form 1 were these: (1) Knowingly take part in the supply of 27.5g of methylamphetamine; (2) Knowingly take part in the supply of 28.4g of methylamphetamine. 52On 20 July 2011 Judge Ellis sentenced Ms Lapham in respect of two counts of supplying a commercial quantity of methylamphetamine. The first count was the same as count two against Mr Dunn, count three against Mr Loader and count two against Mr Murray. 53The second count against Ms Lapham was in respect of the supply of 348g of methylamphetamine and was the same count as count one charged against Mr Dunn, count four against Mr Loader and count one against Mr Murray. Ms Lapham was given 25% discount for an early plea and a further 10% for assistance to authorities. 54She was sentenced as follows: Count two and taking into account a matter on the Form 1 - a non-parole period of one year and three months from 4 June 2011 expiring 3 September 2012 with an additional term of two years expiring 4 September 2012. The Form 1 offence was dealing with the proceeds of crime although the amount involved was not disclosed. Count one and taking into account a matter on the Form 1 - a non-parole period of one year and two months to commence 4 January 2012 expiring 3 March 2013 with an additional term of four years expiring 3 March 2017. 55The total effective sentence was a non-parole period of one year nine months with an additional term of four years. The Form 1 offence in relation to count two was the supply of 28g of methylamphetamine to Mr Loader and Mr Murray. Grounds of Appeal Error in maximum penalty - Ground 1: Loader Ground 1: Dunn 56His Honour referred three times in his Remarks on Sentence when dealing with Mr Loader and once when dealing with Mr Dunn to the fact that the maximum penalty for supplying a commercial quantity of the drugs concerned was 25 years imprisonment. In doing so, he was led into error in each case by the Crown Sentencing Summary. 57It does not follow that because such an error is made the sentence should automatically be reduced: EJDG v R [2012] NSWCCA 251 at [24]-[25]. Regard must still be had to s 6(3) Criminal Appeal Act 1912. 58His Honour found that the offending of Mr Loader in count three fell within the mid range of criminality particularly because the amount of the drug involved, 863.3g, was slightly above the middle of the range. It was also on the basis that his role as a facilitator was perhaps slightly less than usual. 59In relation to count four concerning Mr Loader his Honour found that the offending was slightly below mid-range having regard to his role and to the amount of the drug being 348g. 60When the maximum penalty of 20 years imprisonment is borne in mind it is difficult to see how the corrected sentences imposed for counts three and four were infected by his Honour's erroneous view of the maximum penalty. The notional starting point for the sentence for count three (25% discount for an early plea) was 12 years. That was within the mid-range of sentences on the basis of a 20 year maximum penalty. Moreover his Honour adjusted the non-parole period favourably to the applicant. 61Similarly, the starting point of eight years in respect of count four was below the mid-range. In both cases there were Form 1 offences. In the case of count three that included a further offence of supplying greater than an indictable quantity of methylamphetamine. 62The sentences for these two counts cannot be seen in isolation from the other offences (including those on the Form 1 for counts 2, 3 and 4) and the sentences imposed, particularly the approach the Sentencing Judge took to the matter of accumulation. Any reduction in the sentences for counts 3 and 4 would require a reconsideration of the level of accumulation on the other offences. 63In Shortland v R [2013] NSWCCA 4 a similar issue arose. In that case Johnson J (with whom Hoeben JA and Button J agreed) said: [147] It is sufficient to observe that a substantial sentence was imposed, which was partly cumulative. However, where an offender is sentenced for several offences so that the principles of concurrency, accumulation and totality are brought into play, it is necessary for this Court to take care where challenge is made to one particular sentence of those which are imposed, so as to guard against an element of artificiality being introduced: R v Thalari [2009] NSWCCA 170; 75 NSWLR 307 at 320 [82]. The Court must keep in mind the obligation of a sentencing court to fix an appropriate sentence for each offence in accordance with the principles in Pearce v The Queen [1998] HCA 57; 194 CLR 610. However, the selection of one sentence for challenge as being manifestly excessive, from a range of several partly accumulated sentences, requires particular caution on the part of this Court. 64There is no appeal against the extent of the overall sentence. In my opinion, no other sentence, either for counts 3 and 4 nor on an overall basis, was warranted than the sentences imposed notwithstanding the error. 65When his Honour came to assess the objective criminality of Mr Dunn in relation to the offences with which he was charged he did so by comparing that criminality to the other persons who had been sentenced. He said that Mr Dunn's criminality in respect of his count one (the supply of 307.7g of methylamphetamine) was higher than that of Mr Loader on the basis that Mr Dunn intended to distribute that prohibited substance into his network of users whereas Mr Loader had simply been the conduit which enabled Mr Dunn to obtain the substance. 66His Honour had found for the related offence for Mr Loader that his criminality was slightly below mid-range. 67In relation to the second count against Mr Dunn his Honour found that Mr Dunn's level of criminality was slightly lower than Mr Loader's although he added "it may be said that that is a reasonably generous conclusion". 68The non-parole period imposed on each was the same (five years) but Mr Dunn's additional term was six months less than that imposed upon Mr Loader. 69Again, bearing in mind the notional starting points, because Mr Dunn also received a 25% discount for an early plea, it cannot be said that the sentences have been infected by the Sentencing Judge's error regarding the maximum penalty. As with Mr Loader, although Mr Dunn's overall criminality was less, bearing in mind both offences and the offences on the Form 1, no lesser sentence was warranted. Standard non-parole period - Loader: Ground 3 70Mr Loader was sentenced prior to the High Court's judgment in Muldrock v The Queen [2011] HCA 39; (2012) 244 CLR 120. In relation to the standard non-parole period his Honour said this: The Court notes that the standard non parole periods which are fixed in relation to counts three and four do not strictly apply because of the pleas of guilty and in relation to count four because of the Court's finding that the level of criminality is slightly below the mid range. Nevertheless, the standard non-parole period in those two counts acts as a guidepost for this Court's assessment of the appropriate penalty. The Court generally has taken into account decisions of the Court of Criminal Appeal in such cases as R v Way, R v Ohar and R v AP. 71His Honour made no further reference to the standard non-parole period. Nor is there any suggestion in his Remarks on Sentence that he was engaging in a two-stage process of identifying the standard non-parole period and then finding factors to justify departure from it. 72In Butler v R [2012] NSWCCA 23 I said (with the agreement of Whealy JA and Rothman J) at [26]: ...Merely showing that a sentencing judge sentenced pre-Muldrock following the dictates of Way will not be sufficient to demonstrate error. What should be ascertained in each case is whether a reliance on Way has sufficiently infected a sentence with such error that this Court must intervene. Ordinarily this might occur in cases where an applicant is found guilty by a jury, with the result that the sentencing judge will have considered that a two-stage process must be applied and that the standard non-parole period is mandatory unless factors can be found to justify a variation from it. It is far less likely that intervention will be required from this Court where a sentence has been imposed following a plea of guilty and the sentencing judge has referred to the standard non-parole period as simply a guideline or yardstick. 73As Bellew J (with whom McClellan CJ at CL and Rothman J agreed) said in Trevor Essex v R [2013] NSWCCA 11 at [30]: ...when considering whether or not such an error has been established, it necessary to consider the reasons of the sentencing judge as a whole. 74Those reasons in the present case do not suggest error. Indeed, the selection of the non-parole period for counts three and four by the Sentencing Judge points strongly to the fact that the standard non-parole period was not used as a starting point. 75Whilst Mr Dunn had no similar Ground of Appeal his written submissions, in relation to his ground of appeal concerning the sentence being manifestly excessive, said that his Honour's treatment of Mr Loader was "affected with reasoning disapproved in Muldrock and [was] thus an unreliable comparative base". For reasons given, that was not so. It is not apparent, in any event, that his Honour compared the sentences he imposed on Mr Dunn with the sentences imposed on Mr Loader - rather, he assessed their relative criminality. Manifestly excessive - Dunn: Ground 3 76Counsel for Mr Dunn submitted that the statistics provided to his Honour were all pre-Muldrock sentences and were likely to have a higher starting point than applied to Mr Dunn who was sentenced after Muldrock. As noted earlier it was also submitted that his Honour had erred in his approach to the sentence for Mr Loader in a way disapproved in Muldrock so that the sentences for Mr Loader were an unreliable comparison. For reasons given earlier, that latter submission is rejected. 77There is no evidence that his Honour was guided by the statistics - he certainly did not refer to them. In any event this Court has warned time and again of the limited use that can be made of statistics in determining whether a sentence is manifestly excessive. The relevant considerations are the maximum penalty and the standard non-parole period when all other relevant matters, objective and subjective, are considered. Even if the sentences cannot be considered lenient it cannot be said that they are manifestly excessive. 78This ground fails. Parity - Loader: Ground 4 Dunn: Ground 2 79The sentences imposed on the offenders for the two common offences were these: (a) Supply of 348g methylamphetamine: Dunn: Four years non-parole plus three years; Loader: Three years non-parole plus three years; Murray: Two years three months plus two years three months; Lapham: One year three months plus two years. (b) Supply of 863.15g methylamphetamine: Dunn: Five years plus three years six months; Loader: Five years plus four years; Murray: Two years six months plus four years; Lapham: One year two months plus four years. 80It should be noted that in Mr Dunn's case the amount of the drug in each case was less than for the co-offenders. In relation to the supply of 863g he was charged only in relation to 594.3g because that was all that was to be provided to him by Mr Loader. As noted earlier, the amount of 348g was determined to have a pure weight of 307.7g. 81The chronology of sentencing was this: Loader: 15 March 2011 Murray: 28 March 2011 Lapham: 20 July 2011 Dunn: 14 December 2011 Loader (correction): 11 February 2013 82The first of the offenders sentenced was Mr Loader on 15 March 2011. At that time his Honour assessed the relative positions of the offenders in the hierarchy in this way: The offending against count five is below the mid range of offending given the amount of the substance located. It would seem that in terms of the various roles played, that the offender, Jennifer Lapham, was the main source of supply for the methylamphetamine. It would appear that both Peter Dunn and Scott Loader had their own clients that they supplied to from time to time and that Peter Dunn used Scott Loader to source the methylamphetamine from Jennifer Lapham. Bearing in mind the quantities, the suggestion would seem to be that Peter Dunn had a more thriving supply customer base than Mr Loader but nevertheless Mr Loader was both involved in Peter Dunn's business by acting as the conduit to Jennifer Lapham in terms of money going one way and drugs the other and running his own supply business on the side including the supply of ecstasy which was sourced other than from Jennifer Lapham. In my view, Scott Loader is slightly below Peter Dunn; Scott Murray slightly below Mr Loader and in terms of the supply chain, Jennifer Lapham was at the top in terms of these four individuals albeit clearly she also must have had a supplier. 83His Honour maintained that view when he sentenced Mr Murray on 28 March 2011. 84When his Honour came to sentence Ms Lapham on 20 July 2011 he said this: Both Murray and Loader worked for a man by the name of Peter Dunn. Peter Dunn was heavily involved in the supply of illicit substances on the Central Coast. He had a number of suppliers and a large clientele base. ... This offender [Lapham] had no contact directly with Peter Dunn, but what she did have was a contact with a person who was able to supply reasonably large quantities of amphetamines. She, when approached, acted as a conduit for the supply of amphetamines from her supplier through to Mr Loader and Mr Murray who then in turn on supplied to Mr Dunn who had his own distribution network. Mr Loader also had his own business on the side and was not just working for Peter Dunn and he also had other sources of supply for various drugs. ... Mr Murray assisted Mr Loader and was below him in terms of the level of criminality. In my remarks I indicated that his level of criminality was at about seventy-five percent of that of Mr Loader. [It is not apparent where this reference to 75% is to be found.] On the material which has been placed before me in relation to all three of these sentences, while Ms Lapham was further up the chain in terms of the back tracking of the sourcing of the illicit substances she was in my view, having considered all the material, below, just below Mr Murray in terms of the respective criminality of Murray, Loader, Dunn and this offender. (emphasis added) 85It is apparent, therefore, that on the material his Honour had by the time he came to sentence Ms Lapham, his view about her position and role had changed considerably. 86The last offender sentenced was Mr Dunn on 14 December 2011. His Honour said that the drugs were sourced via the auspices of Mr Loader and Ms Lapham, with Mr Loader transporting the substances from Ms Lapham's home in Sydney partly at least to supply Mr Dunn. He noted there that Mr Loader had his own network of users and that his role was also to facilitate Mr Dunn's obtaining of the drugs. His Honour referred back to his Remarks at the time of sentencing Mr Murray and Ms Lapham as to the distinction made in their objective level of criminality. 87Mr Loader's principal complaint concerning parity was in relation to the sentences imposed on Ms Lapham. Mr Dunn's complaint was threefold. First, his sentences compared with Ms Lapham's, although intended to be lower, were out of proportion to hers especially where the objective criminality was concerned. Secondly, his Honour wrongly identified that the subjective circumstances of all four offenders were relatively identical. Thirdly, the adjustment of Mr Loader's count three left Mr Dunn with the same non-parole period and only 6 months less additional term when compared to Mr Loader. It was submitted that his Honour had, by the sentence originally imposed on Mr Loader, intended that his sentence would be more severe than Mr Dunn's particularly where Mr Dunn's criminality for that offence was said to be slightly lower than Mr Loader's. 88The starting point for any consideration of parity in the present appeals is that the same judge sentenced all four offenders, that he had available to him and referred to the sentencing remarks in those he had already sentenced, and that he drew careful comparisons between their respective criminalities. In fact, when sentencing Ms Lapham his Honour said this: In conclusion the reason for the different sentence imposed on this offender than sentences imposed on the others are: 1. I find her level of criminality to be lower. 2. Her subjective material in terms of her prior life and community service entitle her to a greater level of credit, 3. She has the benefit of a s 23 discount, 4. The not insignificant impact of the difficulties she will encounter in custody by reason of her fragility in terms of both her age, physical well being and mental health situation, and lastly, 5. That the impact on third persons being her two daughters, her mother and her brother is not insignificant. 89The only matter which can be pointed to as an error by his Honour was in his Remarks when dealing with Mr Dunn. He said this: During their respective sentencing processes, Mr Loader, Mr Murray and Ms Latham (sic) all received credit for please of guilty, expressions of genuine remorse and contrition. Essentially there is no difference between the subjective material put forward for those three co-offenders and the present offender, Mr Dunn. Clearly each had slightly different backgrounds and different pluses and minuses but in the wash-up of a consideration of their respective subjective material, there is no basis for distinguishing between the four of them. There is clearly a basis for distinguishing between them on the basis of their objective criminality. (emphasis added) 90That assessment was not entirely accurate in respect of Ms Lapham. But it was an error that was favourable both to Mr Dunn and Mr Loader because Ms Lapham's much more favourable subjective circumstances (as had been found by his Honour on her sentencing proceedings) justified the much lower sentences she was given when compared with both Mr Loader and Mr Dunn. 91In R v Swan [2006] NSWCCA 47 Barr and Howie JJ said at [71]: This was a case where the sentencing of both offenders was by the same judge on the same occasion. Where the same judge sentences two offenders at the same time and gives detailed reasons for imposing the sentences he did by having regard to the differing criminality of each, the differing subjective circumstances and the relevant sentencing principles, in our view this Court should be cautious before determining that one of the offenders has a justifiable sense of grievance just because of the different sentencing outcomes. 92That passage was cited with approval in Dusan Pavicevic v R [2010] ACTCA 25 where co-offenders had appeared before the same sentencing Judge. The ACT Court of Appeal observed that the Judge "was in the best position to assess the relative criminality of the offenders and to distinguish the circumstances relevant to each of the offenders" and that "an appellate court will exercise caution before determining that the disparities between two sentences are unjust". 93Similar sentiments were expressed by Winneke P in R v Spizzerri [2001] VSCA 49 at [10]: ... an appellate court should be careful in concluding manifest disparity, particularly where the offenders have been sentenced by an experienced judge who has sentenced a large number of offenders engaged in the same criminal enterprise. In those circumstances the appellate court is at risk of upsetting the symmetry of the sentencing process employed by the judge and introducing its own disparity into that process. To that extent the Court is constrained in rectifying a disparity which it perceives. Because of those constraints, it runs the risk of "tinkering". 94These and other authorities were referred to with approval in Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 274 at [39] - [41]. 95To similar effect is what McColl JA (with whom Hulme and Latham JJ agreed) said in Gill v R [2010] NSWCCA 236 at [58]: Finally, it should be understood that considerable obstacles are faced by an applicant seeking to invoke the parity principle in circumstances where the sentencing judge was fully aware of sentences imposed upon a co-offender, and the reasons for those sentences, and indicates in the sentencing remarks why the judge is departing from the co-offender's sentences. 96As far as the sentences imposed on Ms Lapham are concerned I do not consider that, taking into account the matters considered by the Sentencing Judge, the sentences imposed on either Mr Dunn or Mr Loader can be said to be "grossly", "glaringly", "markedly" or "manifestly" disparate: England v R; Phanith v R [2009] NSWCCA 274 at [62]. 97It necessarily follows that as far as the respective sentences given to Mr Loader and Mr Dunn are concerned those sentences cannot be said to demonstrate other than minor if any disparity. An examination of his Honour's assessment of the two applicants demonstrate that their objective criminality and subjective circumstances were sufficiently similar to justify similar sentences and that his Honour has recognised small differences in the slightly different sentences imposed. I do not consider that Mr Dunn demonstrates that the adjustment to Mr Loader's sentence on his count three (Mr Dunn's count two) gives rise to any parity issue. It is to be remembered that his Honour said when sentencing Mr Dunn, In my view Mr Dunn's level of criminality is slightly higher in count 1 and slightly lower in count 2 although it may be said that that is a reasonably generous conclusion. 98In my view the grounds based on parity fail in each appeal. Conclusion 99I propose the following orders: Application for leave to appeal by Mr Loader (1)Extend time for filing of Notice of Application for leave to appeal to 11 July 2012. (2)Grant leave to appeal. (3)Dismiss the appeal. Application for leave to appeal by Mr Dunn (4)Grant leave to appeal. (5)Dismiss the appeal. ********** 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: 19 September 2013