Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cameron v R [2017] NSWCCA 229 Hearing dates: 14 August 2017 Decision date: 27 September 2017 Before: Basten JA at [1]; Button J at [16]; Hamill J at [35] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – sentencing – murder – cultivation of large commercial quantity of cannabis – where murder planned premeditated and motivated to avoid detection of drug offence – assistance to authorities – disclosure of location of victim's corpse – whether discount for assistance inadequate – parity of sentencing – concept of material difference – whether differences in cases justified differences in sentences imposed – co-offender young with no prior offences and medical condition – applicant middle aged man with substantial history of drug cultivation – where sentencing judge partially accumulated sentences in applicant's case – where sentence at top of range but not manifestly excessive – whether combination of justifiable differences might give rise to total sentence offending parity principle – life expectancy tables – whether relevant to sentencing – whether sentence manifestly excessive – appeal dismissed by majority Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 23, 44, 61 International Covenant on Civil and Political Rights, Article 26 Cases Cited: Barton v R [2009] NSWCCA 164 Des Rosiers v R [2006] NSWCCA 16; (2006) 159 A Crim R 549 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 England v R; Phanith v R [2009] NSWCCA 274 Goebel-McGregor v R [2006] NSWCCA 390 Green & Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hili [2010] HCA 45; (2010) 242 CLR 520 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lowe v R (1984) 154 CLR 606; [1984] HCA 46 PG v R [2017] NSWCCA 179 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Cameron, Forward and Wilkinson [2016] NSWSC 1342 R v BWT (2002) 54 NSWLR 241; [2002] NSWCCA 60 R v Qaumi, Qaumi and Qaumi (Sentence) [2017] NSWSC 774 Street v Queensland Bar Association (1989) 168 CLR 461; [1989] HCA 53 Ta'ala v R [2008] NSWCCA 132 Tan v R [2014] NSWCCA 96 Tuivaga v R [2015] NSWCCA 145 Wong v R (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Donald John Cameron (Applicant) Regina (Respondent Crown) Representation: Counsel: Mr J Stratton SC with Ms M Curry (Applicant) Ms M Cinque SC (Respondent Crown) Solicitors: Proctor and Associates (Applicant) Solicitor for Public Prosecutions (Respondent Crown) File Number(s): 2014/00220843; 2015/00075641 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Criminal Date of Decision: 22 September 2016 Before: Fagan J File Number(s): 2014/00220843; 2015/00075641 Judgment 1. BASTEN JA: In this application for leave to appeal against two sentences, I agree with Hamill J, for the reasons he gives, that grounds 1 (failure to give sufficient weight to the assistance to authorities) and 3 (manifestly excessive sentence) should be rejected. In my view, ground 2 (disparity) should also be rejected. Accordingly, I would grant leave to appeal against both sentences, but dismiss the appeal. 2. There is no need to restate the circumstances of the offending, or of the sentencing, which are clearly and completely explained by Hamill J. It is sufficient to explain why, in those circumstances, the principle of parity has been adhered to by the primary judge, who had the advantage of sentencing three co-offenders at the one time. Parity principle 1. The parity principle is but an example of the requirement for equal treatment under the law, which is reflected in the non-discrimination principle of international law, [1] and in principles of anti-discrimination law generally, as explained by Gaudron J in Street v Queensland Bar Association. [2] Gaudron J set out the principles by reference to two authorities dealing with the concept of material difference: "The importance of a relevant difference was noted by Judge Tanaka in the South West Africa Cases (Second Phase), [3] in these terms: '… the principle of equality before the law … means … relative equality, namely the principle to treat equally what are equal and unequally what are unequal. … To treat unequal matters differently according to their inequality is not only permitted but required. The issue is whether the difference exists.' Similarly, the European Court of Justice said in Re Electric Refrigerators: [4] 'Material discrimination would consist in treating either similar situations differently or different situations identically.'" 1. The principle applicable in sentencing law has been stated by the High Court (and this Court) on many occasions. It is sufficient to note the observations of Gibbs CJ in Lowe v The Queen: [5] "It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account." [6] 1. It follows that, where two co-offenders have received different sentences for reasons which are justifiable and explained by the sentencing judge, it is not appropriate for this Court to intervene. As explained in PG v R, in comparing sentences, it is appropriate to have regard to the starting points adopted by the sentencing judge before the application of discounts which may justifiably give rise to differing outcomes. [7] The alternative course is to recognise the differential discounts and take them into account in explaining the disparity. The end result will be the same. 2. The sentencing judge, Fagan J, stated that, with respect to the murder, he would have imposed on Stanley Forward, prior to discounts, a sentence of 30 years. With respect to the applicant, he identified a starting of 40 years, or one-third more than the sentence imposed on Forward. Both were heavy sentences, but the brutal manner of premeditated execution of the victim warranted those sentences. As explained by Hamill J, the disparity was capable of explanation. Although he was responsible for a brutal stabbing, Mr Forward was a young man, with no prior record of violence, with a serious health problem and playing a subservient role to that of the applicant. The lesser disparity in the actual sentences imposed reflected the greater discount obtained by the applicant for assistance to the authorities. 3. While it may be said that the starting point for the applicant was at the top of the properly available range, I agree with Hamill J that it was not manifestly excessive in the circumstances. The disparity was justified by the different subjective circumstances of the co-offenders and the significantly different roles played by each in committing the offence. 4. A second element of disparity resulted from the different sentences imposed for the cultivation offences. With respect to Mr Forward, the sentencing judge imposed a non-parole period of 2 years 3 months (and a full term of 3 years); with respect to the applicant, he imposed a non-parole period of 7 years 6 months (with a full term of 10 years). It could not properly be said that, given their respective roles in the large scale cultivation, there was any appellable error in imposing a 3 year sentence on Mr Forward and a 10 year sentence on the applicant. The latter sentence was not manifestly excessive. 5. Thirdly, in considering the accumulation of sentences, it is only the non-parole periods with respect to the cultivation offences which are relevant. With respect to Mr Forward, the sentences were made entirely concurrent; with respect to the applicant, the sentence for murder was accumulated by 4 years on the cultivation sentence. That may be seen as an element of disparate treatment. However, the disparity is not necessarily unfavourable to the applicant. The accumulation of 4 years on the cultivation sentence meant that 3 years 6 months of the non-parole period was entirely concurrent with his sentence for murder. By contrast, although Mr Forward's sentences were wholly concurrent, his non-parole period was 2 years 3 months. Accordingly, in arithmetical terms, a longer period was served concurrently by the applicant, than by Mr Forward. In circumstances were there was no justification for not accumulating the applicant's sentences to an extent, it cannot be said that the extent of the actual accumulation was unjustified. 6. It may therefore be seen that the disparity between the sentences imposed on the applicant and Mr Forward involved three elements. However, because each element was justifiable in comparative terms, the sentencing judge did not contravene the parity principle. In those circumstances, this Court cannot properly intervene. Accordingly the appeal should be dismissed. Life expectancy tables 1. If it is not necessary to resentence the offender, there is no need to consider the life expectancy tables tendered on the appeal. However, as I am not persuaded that life expectancy tables are relevant or admissible on a sentencing appeal, it is appropriate to state why that is so. 2. The purpose of the tender was to demonstrate that the offender was likely to die in gaol before the expiry of his non-parole period. Thus, despite his plea and his assistance to authorities, it was said he would obtain no practical benefit from the appropriate discounts. Further, although the sentencing judge had not deemed it appropriate to impose a life sentence, the determinate sentence imposed would likely amount to a life sentence. 3. Any prisoner faces a risk of dying in gaol; that risk will increase with the age of the offender when sentenced and the length of the sentence. Old age, illness and decrepitude may provide factors relevant to the exercise of the executive power of early release based on mercy. Even if predictable, such factors will generally have little (if any) relevance to sentencing. Indeed, youth, immaturity and inexperience may be a basis for leniency, but age, maturity and experience are usually not. 4. Nor is it correct to classify the sentence by reference to its possible consequences for the offender. A court will not impose a life sentence because a proportionate determinate sentence may lead to the offender's death in gaol. Nor can an offender resist a proportionate determinate sentence as equivalent to a de facto life sentence, because of its possible outcome. 5. Nor is it true to say the applicant got no practical benefit from the discounts. The starting point of 40 years for the murder would have carried a very high likelihood, indeed an expectation, that the offender would die in gaol. That likelihood is reduced as a result of the discounts. There was no error in the sentencing judge disregarding these considerations, nor would they be relevant on resentencing. 6. BUTTON J: I have had the considerable benefit of reading in draft the judgments of Basten JA and Hamill J, including the comprehensive conspectus of all relevant aspects of the matter in the latter. 7. I agree with each of their Honours with regard to grounds one and three, and have nothing to add. 8. With regard to ground two, I would grant leave to appeal but dismiss the appeal. In that regard, I agree with Basten JA. Because my view is dispositive, I consider that I should state my reasons for doing so, albeit briefly. They are as follows. 9. First, the starting point of the head sentence for the cultivation offence of the applicant Mr Cameron was imprisonment for 10 years. The starting point of the head sentence for the cultivation offence of the co-offender Mr Forward was imprisonment for four years. 10. Each of those starting points was discounted by 25% for the utilitarian value of the plea of guilty to the cultivation offence of the applicant and of the co-offender. Neither starting point was discounted for any assistance given by the applicant or the co-offender with regard to the cultivation offence. 11. In my opinion, that difference in starting points is justified by the difference in the roles of the applicant and the co-offender in the cultivation, combined with the "incorrigible" record of offending of an identical nature by the applicant in the past. 12. Secondly, the starting point of the head sentence of the applicant for the murder was imprisonment for 40 years. The starting point of the head sentence of the co-offender for the murder was imprisonment for 30 years. 13. The starting point of the applicant for murder was discounted by 40% (comprising a discount of 25% for the utilitarian value of the plea of guilty, and a discount of 15% for assistance with regard to the murder only). 14. The starting point of the co-offender for murder was discounted by 30% (comprising a discount of 25% for the utilitarian value of the plea of guilty, and a discount of 5% for assistance with regard to the murder only). 15. The difference in the starting point for the murder between the two offenders is, in my opinion, justified by the significant difference in their ages; their criminal records; their physical health; their role within the criminal enterprise that was being protected by the execution; and the nature of their relationship (the applicant was undoubtedly in a position of authority over the co-offender). 16. Furthermore, whilst it is true that the co-offender was the principal in the first degree who repeatedly stabbed the deceased to death, this is one of those cases in which the applicant, who may broadly be described as the principal in the second degree, was as morally culpable as the principal. 17. Thirdly, the sentence of the applicant for the murder commences four years after his sentence for the cultivation offence commences, and is therefore partly cumulative upon it. 18. In contrast, the sentence of the co-offender for the murder commences on the same day as his sentence for the cultivation offence, and is therefore wholly concurrent with it. 19. But, in light of the record of previous offending of the applicant with regard to cultivation of cannabis, and his role as principal within this latest enterprise, it was open to his Honour to structure the sentences of the applicant in that way; indeed, a degree of cumulation was inevitable. 20. In contrast, the co-offender was a young man with no criminal record who was dependent upon cannabis and who had been a menial worker at the cultivation site. 21. In those circumstances, I consider that it was open to impose fully concurrent sentences upon the co-offender, whilst imposing a degree of cumulation upon the applicant. 22. Fourthly and finally, and without seeking to be definitive, I am prepared to accept that it is possible to posit a situation in which, although each discrete step undertaken by a sentencing judge in drawing distinctions between two offenders cannot be impeached, nevertheless in the final result one offender is entitled to experience a justifiable sense of grievance when comparing his or her ultimately imposed sentence to that of the co-offender. 23. But that is not the case here: bearing in mind all of the objective and subjective factors as found by the sentencing judge, and summarised by Hamill J, to my mind Mr Cameron is not in a position to experience a justifiable sense of grievance about a total head sentence that is seven years longer than that imposed on Mr Forward, nor about a total non-parole period that is a little over six and a half years longer than that imposed on his co-offender. 24. In short, in my opinion neither any of the steps leading to the ultimate sentences, nor the ultimate sentences themselves, call for intervention by this Court on the ground of erroneous disparity. 25. HAMILL J: Donald John Cameron seeks leave to appeal against the sentence imposed by Fagan J on 22 September 2016. The applicant was sentenced on his pleas of guilty to two offences. In respect of an offence of being knowingly concerned in the cultivation of a large commercial quantity of cannabis the applicant was sentenced to 10 years imprisonment with a non-parole period of 7 years and 6 months. For the murder of Jacob Munro he was sentenced to 24 years imprisonment with a non-parole period of 18 years. The sentence for murder was made partially cumulative on the sentence for cultivation. The extent of accumulation was a period of four years and, as a result, the total effective sentence was 28 years with a non-parole period of 22 years. 26. The applicant pleaded guilty to both offences in the Local Court and adhered to those pleas in the Supreme Court. Fagan J indicated that he would reduce each sentence by 25% for the pleas of guilty. Further, the applicant assisted police and the sentencing judge indicated that he was entitled to a further reduction of 15% with respect to the sentence for murder. In the result, the total combined discount for the plea of guilty and assistance to authorities was 40% in relation to the murder offence. This means that the starting point (before discount) for the murder sentence was 40 years. The starting point for the cultivation offence was 13 years and four months. 27. Two other offenders were dealt with in the same sentencing proceedings. The judgment (or remarks) on sentence is known as R v Cameron, Forward and Wilkinson [2016] NSWSC 1342. The sentence imposed on Mr Forward is relevant to the present appeal. His Honour sentenced Mr Forward to imprisonment for 3 years with a non-parole period of 2 years and 3 months for being knowingly concerned in the cultivation of the large commercial quantity of cannabis and, for the murder, to 21 years with a non-parole period of 15 years and 5 months. Mr Forward's sentences were made wholly concurrent. Mr Forward received a total combined discount of 30% in relation to the murder charge (25% for the plea and 5% for his modest assistance to authorities). The starting point (before discount) was 30 years in respect of the murder charge. 28. The applicant relies on 3 grounds of appeal: 1. The learned sentencing judge did not give sufficient weight to the assistance the applicant gave to the authorities in relation to the murder count. 2. There is a disparity between the sentence imposed upon the applicant and the sentences imposed upon his co-offender Forward, such as to leave the applicant with a legitimate sense of grievance. 3. The sentence imposed on the applicant was manifestly excessive. Facts of the offences 1. On one level, the facts of the offences are relatively simple, if chilling, to recount. However, as between the two offenders, there was some complexity as a result of a factual dispute between them as to the precise role each played in the murder. That complexity was heightened by the fact that different evidence was admissible against each of them, and different statements of facts were tendered in their respective cases. While large parts of the agreed facts were identical, there were some significant differences. Both offenders relied on the contents of interviews they made with investigating police. This Court was told that it was accepted in the sentencing hearing that those interviews were only admissible in the case of the particular offender who made the interview. However, that was not entirely clear, at least on a reading of the transcript. 2. Part of the confusion arises from the fact that all of the material was tendered as one exhibit. It may have been preferable had the material admissible against the applicant been admitted as one exhibit and the material admissible against Mr Forward admitted as a separate exhibit. In any event, at the hearing of the appeal, Senior Counsel for the respondent said that all parties at the sentencing proceedings proceeded on the assumption that the evidence of what one offender said to police was not admissible as against the others. [8] 3. The murder of Mr Munro arose out of tensions between a group of men who were engaged in the cultivation of a large commercial quantity of cannabis on a semi-rural property at Schofields in western Sydney. The applicant was the "managing partner" of the property. Stanley Forward, Jake Munro, Shaun (Shorty) Zanker and David Ian Wilkinson were engaged in various subordinate roles in the cultivation. Another man, Philip Holder, was also involved at a management level but his precise role was not clear on the agreed facts tendered on sentence. The applicant told police that Mr Holder was the financier and, ultimately, in charge of the cultivation. 4. On 27 July 2014, following surveillance of the property and participants, police executed a search warrant on the property. They located a sophisticated cultivation within a large, multileveled shed. On 28 July 2014 a crime scene warrant was executed and police seized 664 cannabis plants of various sizes with an estimated maximum street value of $2.99 million. The applicant, Mr Holder, and Mr Wilkinson were arrested that day. Mr Forward was arrested on 27 February 2015. 5. Meanwhile, on 27 July 2014, Rebecca Holden notified police that Mr Munro was missing. She told police she had not seen him since 21 July 2014. The investigation that followed established that the last call received on one of Mr Munro's mobile telephones was from the applicant at 7:43am on 22 July 2014. It also emerged that Mr Munro was working at the cultivation site in the time leading up to his disappearance. Analysis of the telephones, call charge and cell tower records established certain relevant patterns of movement. For example, telephones associated with the applicant and Mr Zanker were moving in a northerly direction towards Bulahdelah on the afternoon of 22 July 2014. The police also found text messages in which Mr Zanker advised the applicant at about 7:00pm on that date that he was at a hospital, that a nurse was "looking at it" and "he" was taking photographs. At 8:20pm Mr Zanker told Mr Wilkinson (by text message) that "he's just finished getting his thumb taped up". Enquiries with Wyong Hospital showed that Mr Forward was admitted with hand injuries that afternoon and told staff that he had injured his hand trying to kill a pig. Further telephone analysis established a connection between the applicant and Mr Forward at relevant times. 6. Mr Wilkinson and Mr Zanker made statements to the police on 3 September 2014. Each man provided information about who was working at the crop site. Wilkinson told police about an incident in which Mr Munro assaulted Mr Zanker by grabbing him around the throat and that the applicant intervened. He denied knowing anything about Mr Munro's disappearance. Mr Zanker told police that he had some conflict with Mr Munro but failed to mention the earlier assault or being grabbed around the throat by Mr Munro. He said that he had no information about Mr Munro's disappearance. 7. Mr Wilkinson was interviewed again on 28 October and 19 November 2014 and maintained his account that he had no knowledge of Mr Munro's disappearance. On 3 and 6 November 2014 the applicant was spoken to by police and declined to provide information. 8. On 18 November 2014, Mr Forward was arrested on an unrelated matter. This led investigators to analyse his mobile telephone. The analysis established contact between Mr Forward and Mr Zanker in August 2014 and messages that were capable of arousing suspicion that the two men were involved in, or had knowledge of, the disappearance of Mr Munro. 9. A significant breakthrough in the investigation came on 16 December 2014 when the applicant's lawyers contacted police with the applicant's offer to assist. The next day a lengthy interview was conducted in which the applicant gave police a version of the killing and burial of Mr Munro. This version was largely true although it contained some significant omissions and falsehoods. In short, the applicant told investigators that Mr Forward killed Mr Munro with a knife and that the group (Wilkinson, Forward, Zanker and the applicant) cleaned up afterwards and then buried the body at Bulahdelah. He admitted using a Taser on Mr Munro in the course of the struggle but claimed falsely that Mr Munro had the knife. He also asserted falsely that the plan to bury the body at Bulahdelah was hatched immediately after the murder. 10. On 19 December 2014, the applicant showed police the burial site. In the course of that "walk through" it emerged that the grave was dug some time earlier. The applicant also told police that quick lime was placed above and below the body. 11. A post mortem examination established that Mr Munro was stabbed 15 times to the face, neck, back and chest. One of these wounds penetrated his heart and this was the cause of his death. 12. The applicant's admissions and information allowed police to start to construct a forensic case. For example, blood that matched Mr Munro's DNA profile was found in the boot of the applicant's car and motorway toll records showed the movements of the cars of both the applicant and Mr Forward at relevant places and times. 13. On 16 February 2015 the applicant made a statement in which he adopted his earlier interview. He made a number of significant corrections and provided more information about the background to the killing. The applicant said that there were a number of difficulties with Mr Munro, in terms of his work and interaction with the other participants in the cultivation. The applicant and the others wanted Mr Holder to pay Mr Munro not to work and to keep quiet about the plantation. When Mr Holder decided to give Mr Munro another chance, the others (the applicant, Mr Zanker, Mr Wilkinson and Mr Forward) began "bitching about Jake" and, over time, this "bitching" transformed into a plan to kill him. The applicant admitted he said things like "I want to bloody kill the bastard" but maintained that this was said in anger and was not literally true. He said he was worried about Mr Munro informing police about the cultivation site. He was concerned because of his own record, which included a number of earlier offences of cultivation, and the likelihood that he would receive a substantial gaol sentence if he were arrested again for similar offending. The applicant told police that, at some stage, Mr Zanker said that he and Mr Forward would kill Mr Munro. There were two similar conversations although the applicant claimed that he did not take them seriously. In the second conversation, Mr Forward asked, "Do you mind if it's messy?" and the applicant said he did not mind. Again, the applicant claimed he did not take this seriously and thought it was "a game". However, contrary to that assertion, "two Saturdays before" the murder and "on the spur of the moment" he interrogated Google maps and chose a possible site to bury a body. The next morning he arranged for Mr Zanker and Mr Forward to join him on a journey to remote bushland near Bulahdelah where the three men dug a grave. Telephone call charge records, and text messages between the men, established that this occurred on Sunday 13 July 2014. 14. The applicant acknowledged that his earlier account, that he believed that Mr Munro had the knife during the fatal incident, was false. He admitted that he lied about this to justify his use of the Taser in the course of the attack. In truth, he used the Taser "to make sure that Jake did not take down Stanley" and "so Jake would not attack Shorty". 15. As Fagan J noted, the applicant's version of events "conveys the impression that Zanker and Forward were the initiators of what became a concrete plan". This was in contrast with what Mr Forward told the police in an interview on 7 February 2015. Mr Forward claimed that the applicant "decided in early July 2014 that Munro had to be killed and, in effect, directed Forward that he should be the one to do it". [9] 16. In terms of this significant conflict between the two offenders his Honour, unsurprisingly, came to the following conclusion: [10] "Neither Cameron nor Forward gave evidence in the sentence proceedings. Without hearing each of them tested under cross-examination I cannot resolve their conflicting accounts of who initiated the plan to kill and whether Forward was enthusiastic or reluctant. However these differences are not critical to evaluating the culpability of Cameron and Forward, respectively." 1. The statement of facts tendered in Mr Forward's case made reference to a summary of some of the things he told police in his February interview. This summary was not included in the agreed facts tendered in the applicant's case. The agreed facts were otherwise substantially in the same terms although one paragraph in Mr Forward's agreed facts, in which he acknowledged owning the murder weapon, was not reproduced in the document tendered in the applicant's case. There were also some minor handwritten amendments to the applicant's agreed facts that did not appear in the corresponding document in Mr Forward's case. 2. The trial judge made the following (unchallenged) finding as to the incident that caused Mr Munro's death: [11] "22 I accept Wilkinson's account of the attack upon Munro which then took place, given in his record of interview and during a walk-through of the shed with homicide detectives. Wilkinson had not been expecting the attack. Forward ran back in to the trimming room, straight up to Munro and delivered a punching or thrusting knife blow to his neck. Forward then ran out of the room into the adjoining part of the shed. Munro, although he must have been severely wounded, got up from his chair and ran out of the trimming room after Forward. I infer that he was trying to escape from the shed. Forward seized him by his clothes and delivered more knife blows. They went to the floor, wrestling, with Munro trying to gain control of the knife. Cameron was present in this part of the shed whilst the struggle was going on. 23 Munro then collapsed onto a lounge chair which was located in the area where the attack by Forward upon Munro was continuing. Cameron applied a Taser to his head and delivered a burst of electric current. Forward grasped the handle of the knife in both hands and plunged it into Jacob Munro's upper body with great force as Munro was slumped on the couch. Munro did not move again. Forward's account of the attack in his record of interview is substantially to the same effect as that which I have summarised thus far from Wilkinson's description. I find beyond reasonable doubt that the parts played by Forward and Cameron were as related in this and the preceding paragraph." Ground One: The learned sentencing judge did not give sufficient weight to the assistance the applicant gave to the authorities in relation to the murder count. 1. It is unnecessary and possibly inappropriate to go into great detail of the applicant's assistance to police. Some of the relevant material was contained in a document that was not made public. However, the applicant was the first of those involved to provide police with an account of events implicating himself and the others in the disappearance and murder of Mr Munro. Of particular significance was the fact that the applicant assisted the police in locating the burial site and recovering the body of Mr Munro. This was important as a matter of evidence and, perhaps more importantly, in allowing the bereaved loved ones of Mr Munro to obtain whatever "closure" may be possible in circumstances such as these. In evidence at the sentencing hearing, the police officer with carriage of the investigation agreed with the proposition that the assistance was "of the highest order". [12] 2. On appeal, a submission was made that "there is no guarantee that the murder would have been uncovered without the applicant's assistance". [13] In oral submissions it was put: "it was what the applicant told the police that really solved the crime". [14] This issue was canvassed in the sentencing hearing and the following exchange between the sentencing judge and Senior Counsel is of some significance: [15] "HIS HONOUR: That, on my reading of it, was directed to the proposition that the body would not have been found without his assistance. TERRACINI: That's right. HIS HONOUR: But, on the other side, when an accused person in this situation, will never admit and give up the whereabouts of the body, that is very serious as to his on-going attitude. But it is not said that the murder would not have been solved. TERRACINI: We don't put it as high as suggesting that the crime itself would not have been solved, but some very important pieces of material information were provided. He was the first to co-operate, or provide the material." 1. The respondent relied on that concession as part of its answer to ground 1. In any event, and in those circumstances, it is difficult to criticise the finding of Fagan J: [16] "I accept that without that assistance police would probably not have located the deceased's body. It is not said, by police or by Cameron, that the murder would not have been uncovered and solved without his help. Nevertheless I accept that the information he supplied greatly expedited the investigation. Relatively speaking, the provision of the information was timely. It enabled all co-offenders to be apprehended and charged." 1. While it could not be concluded that the crime would have remained unsolved if it were not for the applicant's disclosure, his assistance represented a major breakthrough in the investigation. 2. There was a discussion at the sentencing hearing as to the appropriate total discount. The Crown submitted the combined discount should be in the order of 40%. In his submissions in reply, Mr Terracini SC made the following submission: "We don't agree it is as low as 40%, but near enough, between 40 and 50. It is the highest level of assistance". [17] 1. It may have been open to the sentencing judge to provide the applicant with a more substantial discount than 40%. An exhibit sealed in the usual way set out the nature and extent of the assistance provided to police and it was, as submitted by Senior Counsel at first instance and on appeal, of real significance. Investigating police stated that the information and evidence provided in relation to the murder was "supported by call charge records, telephone intercept material, listening device material, ANPR [automatic number plate recognition], other witness statements, forensic results and telephone handset examinations". In view of the starting point settled upon by Fagan J, it would have been open to provide a discount of around 45% to 50% without creating a situation where the resultant sentence was "unreasonably disproportionate" to the criminality. [18] 2. However, the fact that it would have been open to provide a higher discount for assistance does not mean that the discount of 40% is demonstrative of error. Senior Counsel for the applicant conceded correctly and properly that it was a discretionary matter for the sentencing judge. Still, the submission was made that the discount was inadequate in all of the circumstances of the case. 3. While the assistance was of a high order in respect of the investigation of this crime and led to another seizure of weapons and drugs, there are many examples of assistance of a far higher order where discounts of no greater than 50% have been provided. For example, this was not a case where an offender participated in the investigation by wearing a listening device and procured admissions from co-offenders in such a way as to place himself in physical danger (although his wife assisted police in extracting recorded admissions from Mr Wilkinson). Also, while the sentencing judge said the assistance was "relatively speaking … timely", that finding was a generous one in the light of the following chronology: 22 July 2014 – Mr Munro was murdered. 27 July 2014 – Mr Munro was reported missing, the cannabis crop was searched and the applicant and three others were arrested. 3 September 2014 – the applicant was spoken to by police and denied involvement. 6 November 2014 – the applicant was spoken to by police and provided a similar account. 17 December 2014 – the applicant provided the account that led to the breakthrough in the investigation. This account involved significant untruths. 19-20 December 2014 – the applicant took the police on a walk-through of the state forest and Mr Munro's body was exhumed. Some of the falsehoods provided on 17 December 2014 were maintained. 16 February 2015 – the applicant signed a statement adopting his December interviews. The statement set out a number of areas in which the earlier interviews were incorrect or deliberately false. 1. The versions of events provided on 17 and 19 December 2014 were not, on any view, a full and frank account of the events that led to the murder. In particular, the initial version of events did not include the important detail that the murder was premeditated and that the burial site was chosen, and the grave prepared, nine days prior to the murder. This information was only provided on 16 February 2015 at which time the applicant admitted telling a number of lies in the 17 December interview. A review of that interview suggests that the applicant was minimising his own role by suggesting that a fight broke out between Mr Forward and Mr Munro and that the applicant intervened (by deploying the Taser) because he thought Mr Munro had the knife and was known to be violent. This is at odds with the reality of the situation, namely that Mr Forward, the applicant (and others including Mr Zanker) decided to kill Mr Munro more than a week earlier, and that Mr Forward had the knife and used it in accordance with their agreement. 2. Again, when the applicant showed the police the burial site on 19 December 2014, he initially said that the group was heading towards Port Macquarie with Mr Munro's corpse when "someone said … Bulahdelah might be better". Later that day he appeared to slip up when he said that there was already a hole in the ground when they arrived. Interrogated as to this, the applicant said that he was told later on that "they" had dug the hole "a couple of weeks" earlier. This was untrue: the applicant located and chose the burial site and arranged for the other offenders to assist him to dig the grave. 3. In the circumstances, and in view of the concessions made by Senior Counsel at the sentencing proceedings, the submission now made under ground 1 cannot be sustained. The level of the discount to be afforded for an offender's assistance to authorities is an evaluative judgement in relation to which a sentencing judge is provided with a broad discretion. There is nothing in the record of proceedings to persuade me that the sentencing judge erred in his exercise of that discretion. In view of the quality of the assistance disclosed in the confidential exhibit, the discount provided was towards the bottom of the range that one might have expected. However, it was not manifestly unjust or unreasonable. 4. Accordingly ground one must fail. Ground two: There is a disparity between the sentence imposed upon the applicant and the sentences imposed upon his co-offender Forward, such as to leave the applicant with a legitimate sense of grievance. 1. The applicant acknowledged the manifest differences between the cases of the applicant and that of Mr Forward. There were a number of matters of a subjective nature making it inevitable that Mr Forward would receive a less severe penalty both in terms of the individual sentences and in their total cumulative impact. 2. Mr Forward was 20 years old at the time of the offences and had no prior offences on his criminal record. The applicant was a middle-aged man with an extensive record for cultivation of prohibited drugs. His record included: 1996 – cultivating a prohibited drug – sentenced to 9 months imprisonment to be served by periodic detention. 2002 – supply and cultivating prohibited drugs – sentenced to 3 years imprisonment with a non-parole period of 2 years. 2003 – cultivation of cannabis – sentenced to 4 years imprisonment with a non-parole period of 2 years. 2009 – cultivation of a prohibited plant – sentenced to imprisonment for 5 years and 3 months with a non-parole period of 3 years and 6 months. 1. While the applicant was correct in submitting that he had no previous record for violence, the murder of Mr Munro was motivated by his desire to protect his business of cultivating a large commercial quantity of cannabis. The facts of the murder cannot be detached from his involvement in the criminal enterprise of cultivation and an understanding that, over a period of around twenty years, the applicant was involved, at least from time to time, in the illegal business of cultivating large quantities of illegal drugs. 2. Mr Forward was a subordinate of the applicant in the cannabis cultivation. While the two offenders had a shared motive in avoiding detection of their involvement in the drug cultivation, the applicant was also motivated by a selfish desire to protect his financial interest in the cultivation business. 3. Mr Forward also presented a strong personal case, including evidence that he suffered from "longstanding severe Crohn's disease". There were medical records and his mother gave evidence of the impact of the disease upon Mr Forward. A forensic psychiatrist, Dr Ellis, provided a report which diagnosed Mr Forward with a depressive illness and stated the opinion that his time in custody would be more onerous as a result of his medical and mental conditions. 4. The applicant submitted that, even allowing for the significant differences between the offenders and their role in the two offences, the total effective sentences involve such disparity as to engender in him a justifiable sense of grievance. 5. I accept the applicant's submission that it is relevant to consider the starting points in the two sentences even though (as acknowledged by Senior Counsel), the ultimate comparison for the purpose of determining this ground are the final sentences, including the period that each is required to serve in custody. [19] The difference in starting points for the murder sentences (that is, before the discounts were applied) – 40 years and 30 years – is substantial. When one factors in the accumulation in the applicant's case and the concurrency in Mr Forward's case, the differences in the sentences becomes more stark. It is not possible to make a true comparison between the notional starting points for the total sentences because (i) different discounts were applied to the sentences for the murder and the cultivation, (ii) the sentencing Judge (correctly) did not apply a discount to the total sentence but, rather, applied the discounts to the individual sentences and then made orders as to accumulation and concurrency. However, notionally, the starting point for the total sentence imposed on the applicant was a little more than 45 years while the starting point for the total sentence imposed on Mr Forward remains at 30 years. Again, I accept that these are truly notional figures but they are relevant and highlight the applicant's complaint. 6. In terms of the final outcome, the applicant received a sentence of 28 years with a non-parole period of 22 years while Mr Forward was sentenced to 21 years with a non-parole period of 15 years and 5 months. That comparison is misleading unless one factors in the quality of the applicant's assistance and the fact that he received a 40% discount in relation to the murder while Mr Forward received only a 30% discount for that crime. 7. One of the reasons for the marked disparity between the total sentences and total non-parole periods is that there was a four year accumulation of the two sentences imposed on the applicant while Mr Forward's sentences were ordered to be served wholly concurrently. Presumably as a result of the applicant's criminal history for cultivation offences, and Mr Forward's subordinate role in relation to the cultivation, there was no submission that the approach to accumulation and concurrency was itself erroneous. Nevertheless, it was contended that in combination with all other factors the resultant total sentences displayed the kind of marked disparity that left the applicant wearing "the badge of unfairness" and that he has a "justifiable sense of grievance". [20] 8. In the course of the argument before this Court, the following exchange occurred: BUTTON J: With parity, Mr Stratton seems to be saying, or perhaps one way of understanding what he's saying is well, each little step can be justified as it were, but still and all when one looks at the ultimate results, they're just too differing. What's your submission about that? CINQUE: They're not, with respect. As I said in the written submissions, counsel for the applicant conceded that there would have to be some accumulation of the murder sentence on the sentence for the cannabis cultivation, and senior counsel for Mr Forward submitted that there shouldn't be any accumulation, and no issue was taken with that by any of the other parties. So in terms of the ultimate sentence imposed, that's a clear distinction. And if one disregards that additional factor, the difference is 24 years' imprisonment with 18 years' non-parole period for the applicant, and 21 years' imprisonment with a non-parole period of 15 years and five months." [21] 1. The High Court has emphasised that the issue of parity is an application of the fundamental principle of equal justice. In his frequently cited dissenting judgment in Lowe v The Queen, Mason J said at 610-611: "Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community." 1. Gibbs CJ said at 609: "It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account." 1. In Postiglione v The Queen, the High Court considered a case where "other things were not equal", but the judgments established that the principle requires that there be a "due proportion" between sentences in such cases. Dawson and Gaudron JJ said at 301-302: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. The different circumstances involved in this case, namely, the fact that Savvas was the principal organiser in both conspiracies and that Postiglione rendered significant assistance to police and prosecuting authorities, clearly require that Postiglione receive a markedly lesser sentence than that imposed on Savvas. If regard is had solely to the head sentences – twenty-five years in the case of Savvas, eighteen years in Postiglione's case – the difference may fairly be regarded as reflecting their different roles in the conspiracies in respect of which they were convicted and Postiglione's subsequent co-operation with police and prosecuting authorities. However, the head sentence is but one component of the sentences. A proper comparison involves a consideration of all components." [Footnotes omitted.] 1. This passage shows that the parity principle is not to be applied in an unduly technical way and that an appeal court must consider the practical impact of the sentences imposed on two offenders in determining whether the disparity between the sentences is justified. Similar sentiments emerge from the High Court's decision and judgments in Green & Quinn v The Queen. [22] 2. It has been held that, in considering a case where the same sentencing judge imposed sentence on the two offenders, the Court should be "cautious and not overly willing to intervene". [23] Accepting that this reflects the usual deference that an intermediate appellate court must pay to the position of the sentencing judge, it does not relieve the Court from the responsibility of analysing the differences between the cases of the two offenders and determining whether the proportion between the sentences leaves the appellant with a justifiable sense of grievance. 3. In written submissions, the respondent relied on the observations of Hoeben CJ at CL (R A Hulme and Wilson JJ agreeing) in Tuivaga v R: "55 It is of significance that the same judge sentenced both the applicant and Barnes. He was fully cognisant of their moral culpability and of their subjective cases. Specifically, his Honour was fully aware of the difference in their subjective cases and he reflected that difference by a reduction of 6 months in the non-parole period of imprisonment to be served by the applicant. 56 In such circumstances, where the primary judge has recognised the importance of the parity principle and has given effect to it, this Court has said that it will be cautious and not overly willing to intervene. Disparity which leads to appellate intervention must be 'gross, marked or glaring' (Tan v R [2014] NSWCCA 96 at [39])." 1. In Tuivaga, Hoeben CJ at CL went on to cite with approval the following passage from the judgment of Latham J (Button J and Grove AJ agreeing) in Mammone v R: [24] "45 … The imposition of different sentences does not, without more, raise 'equal justice' considerations. Moreover, a sense of grievance is only 'justifiable' or legitimate if the application of objective criteria compels the court to that conclusion. The age, background, criminal history and role in the offence of various offenders may justify some disparity: Green v The Queen ; Quinn v The Queen [2011] HCA 49 at [31]. 46 In particular, as the majority in Green & Quinn make clear, 'A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders.'" 1. The passage from Mammone v R is unremarkable – the question is whether any disparity or disproportion between the sentences is such as to engender a justifiable sense of grievance in the appellant or, put another way, whether the disparity offends principles of equal justice. However, I am not convinced that the application of epithets such as "gross" or "glaring" to the asserted disparity is a necessary part of the process of reasoning when an intermediate appellant court is called upon to determine a ground of appeal where disparity (or, more usually, a lack of due proportion between sentences imposed on associated offenders) is asserted. In Tan v The Queen, R A Hulme J (Leeming JA and Fullerton J agreeing) said: "It is also pertinent to note that for there to be a justifiable sense of grievance the disparity must be 'gross', 'marked' or 'glaring'." 1. R A Hulme J referred to the discussion by Howie J in England v R; Phanith v R [2009] NSWCCA 274. This is the case from which a line of authority requiring an applicant to establish "glaring" or "gross" or "marked" disparity appears to derive. In England & Phanith, Howie J at [62] referred (generally) to the fact that these terms "are used throughout the judgments in Lowe v The Queen". It is true that these adjectives were used liberally in those judgments. [25] However, none of the judgments in Lowe v The Queen suggested that there was a legal test, or forensic obstacle, by which an appellant was required to establish "gross" or "glaring" disparity. The only member of the majority who addressed the issue was Dawson J who appeared to reject the suggestion. His Honour said (omitting footnotes and citations) at 623 – 624: "The view has been expressed in England that a court should not interfere unless the disparity is gross or glaring and the circumstances are 'most exceptional': see Stroud; Potter. The decisions in this country do not appear to be quite as restrictive as this but on any view the interference of a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice: see Pecora; Tisalandis." 1. In England & Phanith, Howie J went on to say that the "no different approach was taken in Postiglione v The Queen". [26] However, the word "glaring" appears nowhere in the judgments in Postiglione v The Queen. The word "gross" appears three times; once by reference to the appellant's submission, [27] and twice in reference to whether the discount provided to the appellant represented a "gross violation of sentencing principles". [28] 2. In the more recent case of Green & Quinn v The Queen, the word "glaring" does not appear in the judgment. Bell J employed the word "gross" on two occasions in her Honour's dissenting judgment. [29] The majority judgment (French CJ, Crennan and Kiefel JJ) referred to the question of whether the inadequacy of the sentence under comparison was "gross" or "an affront to the administration of justice". [30] In that somewhat different context, their Honours said: "While such epithets have a visceral character which limits their utility, they are indicative of a qualitative judgment that the inadequacy of the sentences imposed is so marked that the need for its correction to maintain public confidence in the criminal justice system outweighs other considerations, including any resulting disparity with unchallenged sentences against a co-offender." 1. In the present case the disparity between the sentences imposed on the murder charge was unquestionably "marked" and the disproportion between the notional starting points can properly be categorized as "glaring" or "gross". But that is not the question. The question is whether such a lack of proportion, or such marked disparity, is justified by the differences between the cases. 2. Senior Counsel for the applicant acknowledged that the criminal history of the applicant, the other differences in the respective personal cases, the finding of special circumstances in Mr Forward's case and the subordinate role of Mr Forward in the cultivation offence justified a substantial difference in the sentences imposed on the two men. However, he maintained that the differences in their culpability for the murder did not justify the extent of the disparity and, when the four year accumulation in the applicant's case is taken into account, the result is that the applicant's sense of grievance is justified and the principle of equal justice is offended. Having considered all relevant differences between the cases, I accept this submission. 3. The first thing to consider is the different factual bases upon which the two offenders were sentenced. Each sought to blame the other for being the instigator of the murder. Understandably, in view of the different evidence tendered in each case and the absence of sworn evidence from either offender, Fagan J was unable to resolve the dispute. In the course of his comprehensive and (with respect) highly cogent remarks on sentence his Honour set out six circumstances which increased the objective gravity of the murder offence and meant that it must attract "a relatively high sentence for each of Cameron and Forward": "Objective seriousness of the murder 36 Murder is in every instance a most serious crime. The maximum penalty of life imprisonment and the long sentences which are commonly imposed reflect the high value which the law places upon human life. Several features of the killing of Jacob Munro increase its gravity and attract a relatively high sentence for each of Cameron and Forward. First, it was thoroughly premeditated, with a bush grave being dug over a week in advance of the killing. This was not a spontaneous, passionate or angry reaction to any situation. It was a coldly planned elimination. I find beyond reasonable doubt that the grave was not merely dug in order to be available for a possible contingency, which might never arise. Cameron and Forward were resolved upon Jacob Munro's death from the Sunday when they went to such considerable trouble to prepare the way for it. 37 Through his record of interview and by way of the history he recounted to his psychologist, Forward has asserted that he adhered to the plan with reluctance and out of apprehension for Cameron's reaction if he should withdraw. I cannot find on the balance of probabilities that his reservations were significant given that he had a full eight days after the grave was dug within which to reconsider before the knife attack was made. His conduct at the time speaks more forcefully than his words after the event. That a person of his age and background should be willing to be part of such a plan is surprising but on the evidence I cannot be satisfied that he was not willing. 38 Secondly, the purpose of the murder was to silence a potentially loose talking participant in the criminal cultivation activity. An abrasive, volatile and at times violent employee could, in the setting of a legitimate business, be worked around in any of a number of ways. His co-workers could continue to urge the principal who had hired him (Holder) to dismiss him. Alternatively they could make life so unpleasant for Munro as to drive him to resignation. They could leave the employment themselves. None of these solutions would work for the offenders because any of the alternatives would likely result in word getting out through Munro about the hydroponic cannabis operation. Jacob Munro was killed to enable the offenders to avoid detection of their illegal activity to date and, at least in Cameron's case, to enable continuation of the large-scale commercial production of the prohibited drug. 39 Thirdly, this may properly be regarded as a murder for financial gain from Cameron's point of view. Although he did not seek to take money or property directly from the victim, his purpose involved the continuance of the hydroponic cultivation enterprise and the derivation of unlawful profits from it. For the purpose of comparing the facts of this case with those upon which other murderers have been sentenced, this homicide was in principle similar to cases where a witness to an offence such as robbery has been murdered to help the murderer retain the proceeds of the original crime and avoid being brought to justice for it. 40 Fourthly, the murder was extremely brutal in the manner in which was carried out. A stabbing death such as this one is a savage, painful drawn out affair. It was particularly so because multiple blows were necessary to kill the victim. Jacob Munro died struggling for his life so far as he could whilst rendered largely helpless by the Taser shock administered by Cameron. With respect to Forward, I accept that the brutality and prolongation of the attack, involving 15 separate wounds, was not the product of innate savagery on his part but of his inexperience in violent struggles and his own fear and desperation once he had commenced. 41 Fifthly, the offenders acted callously towards relatives and friends of the deceased. His elimination left them to wonder whether or not he had died and if so for what reason and in what circumstances. They were left with no last remains to grieve over, to inter or to cremate. 42 Sixthly, the murder was committed in company. By s 21A(2)(e) of the Crimes (Sentencing Procedure) Act this is an aggravating feature which I must take into account. Other statutory aggravating features listed in s 21A(2) have already been considered in these remarks or are inapplicable. Some of the statutory factors are inherent in the crime of murder and cannot be separately considered without double counting, for example par (b) of s 21A(2)." 1. With the exception of the third and fifth of those matters, each of those (aggravating) features applied equally to the applicant and to Mr Forward. As to the fifth matter, it was the applicant who was the first to admit that Mr Munro was dead, and it was the applicant who took the police to the body. In relation to the third matter – that the offence "may properly be regarded as a murder for financial gain from Cameron's point of view" – his Honour had already found beyond reasonable doubt that "Cameron's motive for his participation in the killing of Jacob Munro was primarily to avoid detection of the cannabis growing enterprise" and that "Forward had the same motive as Cameron". [31] 2. Fagan J accepted on balance that Mr Forward "had some apprehension that once he had discussed with Cameron the plan to kill Munro he felt some pressure to go through with it lest he be perceived as a risk to Cameron" and that Mr Cameron may be capable of violence towards him. This was an important factor but there was no suggestion, or finding, that Mr Forward was acting under duress from Mr Cameron. Moreover, on the agreed position on appeal as to the state of the evidence tendered in the sentencing hearing, there was nothing in the evidence admitted in Mr Cameron's case that led to such a finding against him. In the course of the evidence given by Mr Forward's mother, there was a suggestion (following a question by the sentencing Judge) that he was threatened (although it was not clear by whom). [32] Immediately thereafter, the police officer in charge was recalled and confirmed that Mr Forward had not "at any time" suggested that he was "forced to take part in the murder". [33] Senior Counsel for Mr Forward specifically eschewed any reliance on duress but submitted his client may have "subjectively" felt fear. [34] 3. The sentencing judge found at [44] that the plan to murder Mr Munro "would not have proceeded to implementation without [the applicant's] assent, leadership and direction." But equally his Honour found that Forward's involvement was critical: "[45] For his part, Forward gave his assent to the plan and participated with his full share of the physical work. He helped dig the grave, he stabbed the victim and he took part in transporting the body by driving ahead to screen Cameron's car from police attention. So far as the evidence shows, [Forward] was the only one of the 3 who was prepared to carry out the final attack so that his involvement also was indispensable to the commission of the murder." 1. His Honour found special circumstances in Mr Forward's case even though the two sentences were ordered to be served concurrently and the "statutory ratio" of 75% would have yielded a balance of term and possible parole period of 5 years and 3 months. His Honour expressed concern that the sentence not be a crushing one. His Honour did not express such a concern in the applicant's case, no doubt because of his superior role and criminal history. Nevertheless, the non-parole period imposed means that the applicant will not be eligible for release until he is in his mid-80s. Some might see that as a "crushing" outcome and the applicant relied (without objection from the respondent) on life expectancy statistics to submit (under ground 3): [35] "There is almost exactly a fifty-fifty chance that the sentence imposed by his Honour will in fact effectively be a life sentence; that is the applicant will die in gaol." 1. I will deal with this submission under ground 3 (manifest excess). However, I raise it in the context of the parity ground because it highlights what I consider to be a marked disparity between the sentences, and the approach taken by the sentencing judge. Allowing for the substantial differences between the circumstances of each offender and their different roles in the two offences, there is a lack of "due proportion" between the sentences and the applicant is entitled to feel, and is justifiably, aggrieved. [36] It may be that the applicant's case, as articulated by Button J in the passage of the transcript extracted above, [37] is that the steps that Fagan J took to distinguish between the cases were unimpeachable in themselves but that the final outcome is such that the sentence imposed "cannot be allowed to stand without it appearing that justice has not been done." [38] 2. It may have been open to make Mr Forward's sentences wholly concurrent while ordering substantial accumulation in relation to precisely the same offences in the applicant's case. However, that is a significant difference in approach and has a substantial impact on the final sentencing outcome. It may also have been open to provide the applicant with a 40% discount for his plea and substantial assistance while reducing Mr Forward's sentence by 30% for his plea and relatively modest assistance. However, the 40% discount provided to the applicant was very much towards the bottom of the range given the extent and quality of the assistance. Finally, it may have been open to settle upon starting points for the murder of 30 and 40 years respectively in view of the differences between the cases. Again, as will be discussed under Ground 3, the 40 year starting point for the applicant is at the very top of the range. When effect is given to all of those matters in combination, the resultant sentences imposed on the two offenders lack a just and due proportion to one another. 3. For those reasons, ground 2 should be upheld. 4. Since preparing the draft of this judgment, I have read the judgments of Basten JA and Button J. Their Honours take very slightly different approaches to reach the same conclusion. I have considered the orders proposed by the majority and their Honours' reasons for reaching a different conclusion (to mine) as to this ground. With obvious respect, I disagree with their Honour's conclusions and the reasons for those conclusions. Having reconsidered the issue in light of the opinions of the majority, I remain of the view that the disproportion or disparity between the total effective sentences imposed on the applicant and Mr Forward, and the impact of those sentences upon each of those men, offend principles of equal justice even taking into account the "concept of material difference" referred to by Basten JA at [3]. Further, and without wishing to overstep the role reserved for the "judicial dissenter" referred to by Sully J in R v BWT [39] , the orders proposed by the majority do not appear to take account of the fact that a further co-offender (Mr Zanker) remains to be sentenced and the observations of Dawson and Gaudron JJ in Postiglione v The Queen: [40] "… the interests of justice require that, if an application for leave against sentence is to be heard and determined against an applicant before a co-accused is brought to trial, leave be refused, rather than that the appeal be dismissed." Ground 3: The sentence imposed on the applicant was manifestly excessive. 1. Because I would uphold ground 2 and exercise the sentencing discretion afresh, [41] it may not strictly be necessary to resolve the issue that arises under ground 3, namely whether the sentence imposed was manifestly excessive in the sense that it was plainly unjust or outside of the wide range of sentences available in the exercise of the sentencing discretion. 2. Counsel for both sides took the Court to a number of cases said to be comparable. [42] The comparable cases involving well planned and executed, cold-blooded killings for profit or to cover up criminal activity. Some involved contract killings. None of the cases was on all fours with the present case but the selection provided by counsel for each side was helpful. Reference was also made to the statistics maintained by the NSW Judicial Commission. The way in which such comparable cases and statistics may properly be considered, and the limitations inherent in such comparisons, is well established. [43] Allowing for those limitations, the cases and the statistics referred to suggest that the sentence imposed on the applicant was (at least) towards the very top of the range of sentences available in all of the circumstances, particularly taking into account the 40% discount for the plea of guilty and assistance, and the applicant's age at the time he may become eligible for release on parole. 3. However, neither the individual sentences nor the total effective sentence after accumulation fell outside of the discretionary range legitimately available to the primary judge. The sentence, standing alone, was not "plainly unjust" or "manifestly wrong". [44] 4. The applicant relied on statistics as to life expectancy in the Australian male population. There was no such material before the sentencing judge. However, no objection was taken to reliance on the material on appeal and the point made by reference to those statistics is a matter in relation to which the Court could probably take judicial notice. The point is that the non-parole period imposed on the applicant means that he will not be eligible for release until he is 84 years of age and this means that the sentence may well become an effective life sentence in circumstances where the sentencing judge found that a life sentence was not appropriate or warranted in all of the circumstances of the applicant's case. A similar argument was made and rejected in Barton v R [2009] NSWCCA 164. Giles JA referred to some earlier cases where similar arguments were made, in some cases successfully: "16 The applicant accepted that a sentence 'has "life sentence" consequences' in the case of an offender of advanced age when sentenced. He submitted, however, that he was not such an offender, being in his late 40s. He submitted that the sentencing judge fell into error because, despite observing that the prospect of the applicant's eventual release into the community still remained, there was a life sentence 'in disguise' notwithstanding that the sentencing judge had declined to impose a life sentence pursuant to s 61(1) of the Act. 17 The submission is contrary to principle, and involves flawed reasoning. If a life sentence is imposed, there is imprisonment for however long the period may be until the offender's death: as the judge observed, the imposition of a life sentence upon an offender 'means that he or she has no prospect of release, save for the prerogative of mercy'. There is a fundamental difference between a determinate sentence expiring when the offender is of advanced age and a sentence enduring until the offender dies, since the offender may live well beyond the expiry of the determinate sentence. It is not correct to regard the former sentence as a surrogate for the latter, or to reason that declining to impose a life sentence pursuant to s 61(1) means that a term of imprisonment expiring in old age cannot or should not be imposed. Declining to impose a life sentence means that the qualified obligation in s 61(1) does not apply. It leaves all other sentencing considerations to be applied. 18 The applicant relied on R v Chen [2003] NSWCCA 327; (2003) 138 A Crim R 433 and R v Folbigg [2005] NSWCCA 23; (2005) 152 A Crim R 35. 19 In R v Chen the offence attracted a maximum penalty of life imprisonment. The offender was sentenced to imprisonment for 40 years with a non-parole period of 26 years. Sully J, with whom Meagher JA and Kirby J agreed, held that there had been sentencing error, and asked whether some other and more lenient sentence was warranted in law. Part of the answer, leading to re-sentencing to imprisonment for 31 years with a non-parole period of 23 years, was – '67 The applicant is now aged 44-1/2 years. A decision, albeit one reached upon an erroneous basis, not to pass a "life means life" sentence, cannot properly be disturbed on the present application and in the absence of a Crown appeal. That being so, it would not be proper, in my opinion, to uphold a head sentence having the effect of achieving a de facto life sentence. If a life sentence is to be imposed at all, it should be imposed frankly and directly. A head sentence of 45 years, after proper discounting, passed upon a man aged 43 years when sentenced is, in terms of practical future probabilities, a de facto life sentence." 20 In R v Folbigg the offender was convicted for manslaughter, for maliciously inflicting grievous bodily harm, and on three counts of murder. She was sentenced to partly accumulated terms of imprisonment for an overall non-parole period of 30 years and an overall total term of 40 years. It was held by Sully J, with whom Dunford and Hidden JJ agreed, that there was particular error in the sentencing judge's method of cumulation and (at [187]) 'that the overall results of a head sentence of 40 years and a non-parole period of 30 years are so crushing as to manifest covert error.' His Honour said – '189 As matters stand, the appellant cannot be paroled until she is aged 66 or thereabouts. She might well not be paroled until she is even older; and if political reaction to media pressure and to meretricious polling operates at that future time as it tends to operate now, she might well not be released until she is aged 76 or thereabouts. That is, it seems to me, a life sentence by a different name. 190 Barr J stopped short of passing a life-means-life sentence, and that for reasons with which I respectfully agree. An end sentencing result which does not have the same pedantic theoretical operation, but which is likely to have the same practical effect, is in my respectful opinion such as to warrant the section 6(3) intervention of this Court. In my opinion, justice would be done by an overall result entailing a head sentence of 30 years and a non-parole period of 25 years.' 21 It may be noted that in the present case, if a de facto life sentence or a life sentence by a different name is precluded because the judge declined to impose a life sentence pursuant to s 61(1), only the consequences of the sentence for the murder of N should be considered. The ages of 82 years and 89 years mentioned above include the 5 years for the manslaughter of M and 3 years and 6 months of the 13 years for the attempted murder of J, and no complaint is or could be made of those sentences or the accumulation. R v Chen involved one offence, but an equivalent point may not have been appreciated in R v Folbigg. (The supposition in that case that life is at an end after age 66 also does not strike a chord.) 22 So far as these cases were decided on that basis that a 'de facto life sentence' or a 'life sentence by a different name' is excluded in the event that the sentencing judge declines to sentence the offender to imprisonment for life pursuant to s 61(1) of the Act, I respectfully disagree. First, as I have explained, that involves illegitimate reasoning. Secondly, a fundamental sentencing principle is that a sentence must reflect the objective seriousness of the offence. Adherence to that principle may in the case of an offender of middle to advanced years have the practical effect of a life sentence. It may not, if the offender achieves longevity, hence the illegitimacy in the reasoning. But error in sentencing cannot be found simply by describing the possible effect of the sentence as a de facto life sentence or a life sentence by a different name. The applicant recognised this in his acceptance that in some cases a sentence "has 'life sentence' consequences". 23 Cases after R v Chen and R v Folbigg do not support the applicant's reliance on those cases." 1. Giles JA went on to refer to Goebel-McGregor v R [2006] NSWCCA 390; Des Rosiers v R [2006] NSWCCA 16; (2006) 159 A Crim R 549 and Ta'ala v R [2008] NSWCCA 132. 2. It is unnecessary in the present case to come to any concluded view as to the possible conflicts in the approaches taken in these various cases. In many respects the cases turn on their individual facts. A sentencing judge who decides that a life sentence is not mandated by s 61 of the Crimes (Sentencing Procedure) Act will no doubt consider the age of the offender at the time of the expiration of the non-parole period. That may lead to a finding of special circumstances and require some adjustment to the length of the non-parole period. [45] However, the final sentence and non-parole period must not be reduced to a point where they are disproportionate to the gravity of the offence and must reflect the purposes of sentencing referred to in s 3A Crimes (Sentencing Procedure) Act including paragraphs (a) adequate punishment, (b) deterrence, (e) making the offender accountable, (f) denunciation and (g) recognising the harm done to the victim and the community. 3. Even considering the applicant's age and the possibility that he may die before the non-parole period settled upon by the sentencing judge comes to an end, I am unable to conclude that ground 3 should be upheld. The criminality involved in the murder was of such seriousness that the sentence cannot be categorised as unreasonable, plainly wrong or manifestly unjust. Victim's Impact Statement 1. Before turning to the question of re-sentence, it is appropriate to recall the impact of the offence on the loved ones of Jacob Munro. At the sentencing hearing, the Crown Prosecutor read a victim's impact statement prepared by Mr Munro's mother Deborah Hall. The Crown submitted in writing that "the court will give it such weight as the legislature allows." [46] His Honour had regard to that statement. 2. Ms Hall explained the devastation that the murder of her son has wrought upon her and on her other children. She described thoughts of self-harm and an inability to comfort her surviving children. She said that the family moved houses because "it had become a place of sadness" for the whole family. Ms Hall has not become "a slave to hate, unforgiveness and bitterness" and she expressed remarkable empathy for the families of the perpetrators of the murder of her son. However, her statement is eloquent testimony to the fact that her grief permeates her life. It concludes: "I don't just grieve for my son, I grieve for the part of me that has died with him." 1. In considering the question of re-sentencing, it is important to keep in mind the impact of this crime on the family of Mr Munro and the harm done to the community when human life is treated with the indifference and callousness demonstrated by the applicant and his co-offenders. Re-sentencing 1. In re-sentencing, the most significant feature is the seriousness of the murder offence. It was a premeditated and planned killing undertaken for the most selfish motives. The applicant's objective was to remove any risk that the large scale cultivation of cannabis would be disclosed by Mr Munro to police. Mr Forward shared that motive. The murder was part of an organised criminal enterprise and, as Fagan J found, the killing was carried out for financial gain. It was committed in company and involved the use of at least two weapons. It can be seen that there were a number of aggravating features pursuant to s 21A(2) Crimes (Sentencing Procedure) Act. 2. The applicant had no prior record for violence but his record for cultivation offences and the context in which the murder occurred means that his record disentitled him to very much leniency. However, his action in leading the police to the burial site demonstrated remorse and allows for a finding that he has good prospects of rehabilitation. This, along with his advanced age at the time of his possible release, satisfies me that he is unlikely to offend again. 3. Because the re-sentencing arises in the context of a finding that the parity ground is upheld, it is important to compare the applicant's case with that of Mr Forward. Mr Forward was very young and had no criminal history. He suffered from a severe medical condition. Mr Forward was a subordinate in the cultivation offence and, on the sentencing judge's findings, the applicant was in a position to call off the murder plot at any time. However, Mr Forward "was the only one of the three who was prepared to carry out the final attack" and it was he who carried out the killing in a most brutal and calculated way. The applicant was present and rendered assistance by using the Taser to incapacitate the victim. As the primary judge found, Mr Forward was also motivated to protect himself and the cultivation from detection, although he did not have the same financial motive as the applicant. 4. I would impose the same sentence as Fagan J in relation to the cultivation offence (10 years). However, in view of the compIete concurrency in Mr Forward's case, and applying the principle of totality in circumstances where the murder offence is dramatically more serious than the cultivation offence, and arose out of that offence, I would reduce the degree of accumulation in the applicant's case to a period of 2 years and 3 months. Like Fagan J, I would allow a 40% discount for the plea of guilty and assistance to authorities. 5. For the murder, I would commence with a total sentence of 38 years. After application of the 40% discount, and some slight rounding, there would be (for the murder) a sentence of 22 years and 9 months with a non-parole period of 17 years. 6. The total effective sentence would be 25 years with a total effective non-parole period of 19 years. I have rounded the non-parole period down by a period of three months. The result is that the proportion of the non-parole period to the head sentence is 76%. I am conscious of the fact that this is slightly more than the "statutory ratio" (75%) provided for by s 44 of the Crimes (Sentencing Procedure) Act. Any further reduction in the non-parole period would result in a sentence that fails to reflect the objective gravity of the applicant's offending. 7. I am also conscious of the fact that the applicant will not be eligible for release on parole until he is 81 years of age. Again, in spite of the risk that the applicant may not live this long, the objective criminality is so grave that I am unable to justify any further reduction in the sentence on this account. 8. I am satisfied that the resultant total effective sentence (25 years with a non-parole period of 19 years) is in proper and due proportion with the total effective sentence imposed on Mr Forward (21 years with a non-parole period of 15 years). The differences in both components of the sentence adequately reflect the differences in their criminality, criminal records and personal cases. That comparison takes into account the more valuable assistance provided by the applicant and the more substantial discount he received as a result. 9. For those reasons, I would make the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. Confirm the sentence imposed by Fagan J in respect of the cultivation offence, namely a non-parole period of 7 years 6 months to commence on 27 July 2014 and expire on 26 January 2022 with a balance of term of 2 years and 6 months to commence 27 January 2022 and expire on 26 July 2024. 4. Quash the sentence imposed by Fagan J for the murder offence and in lieu thereof, the applicant is sentenced to a non-parole period of 17 years commencing 27 October 2016 and expiring 26 October 2033. There will be a balance of term of six years commencing 27 October 2033 and expiring 26 October 2039. 5. The applicant will be eligible for release to parole at the conclusion of the non-parole imposed in relation to the murder offence. ********** Endnotes 1. International Covenant on Civil and Political Rights, Article 26. 2. (1989) 168 CLR 461 at 571; [1989] HCA 53. 3. [1966] ICJR 6 at 305-306. 4. (1963) 2 CMLR 289 at 312. 5. (1984) 154 CLR 606 at 609; [1984] HCA 46. 6. See further PG v R [2017] NSWCCA 179 at [10]-[22]. 7. PG at [7]. 8. Transcript of appeal hearing (TA), 27. 9. Judgment (remarks) on sentence (J), [14]. 10. J [15]. 11. I have noted that this finding was unchallenged because it is an account contained in an interview of a co-offender. On the agreed position of the parties in this Court, the parties at the sentencing hearing proceeded on the basis that such evidence was only tendered in the case of the particular offender who made the interview. This is an example of the confusion to which I referred at [39]-[40]. 12. Transcript of sentencing hearing (T) 29. 13. Applicant's written submissions (AWS) [48]. 14. TA 1. 15. T 45-46. 16. J [71]. 17. T 97. 18. Crimes (Sentencing Procedure) Act 1999, s 23. 19. See, for example, Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 302 (Dawson and Gaudron JJ). 20. Lowe v R (1984) 154 CLR 606; [1984] HCA 46. 21. TA, 19-20. 22. (2011) 244 CLR 462; [2011] HCA 49, for example at [32]. 23. Tuivaga v R [2015] NSWCCA 145 at [55]-[56] (Hoeben CJ at CL, RA Hulme and Wilson JJ agreeing). 24. [2013] NSWCCA 95 at [45]-[46]. 25. For "gross", see the headnote at 606-607, Gibbs CJ at 608-609, Mason J at 611, 615 and Dawson J at 621, 623, 625. For "marked", see Gibbs CJ at 609-610, Mason J at 611, 614 and Brennan J at 617, 618 and 620. For "glaring", see Mason J at 611, 612-613, 614 and Dawson J at 623. 26. At [63]. 27. McHugh J at 307. 28. McHugh J at 307, Gummow J at 326. 29. At [120]-[121]. 30. At [69]. 31. J [30]-[31]. 32. T 58. 33. T 60. 34. T 65. 35. AWS, [66]. 36. Cf Postiglione v The Queen. 37. At [78]. 38. Lowe v The Queen at 623-624 (Dawson J). 39. (2002) 54 NSWLR 241; [2002] NSWCCA 60 at [107]-[108] citing CSR Limited & Anor v Bouwhuis (unreported; Court of Appeal; 23 August 1991). The role does "not involve denigrating the current script or booing the players". 40. (1997) 189 CLR 295 at [305]. 41. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]-[43]. 42. R v Suteski (2002) 56 NSWLR 182; R v Norman & Olivieri [2007] NSWSC 142; R v Burnes [2007] NSWSC 298; May v R [2012] NSWCCA 250; R v Brooks [2012] NSWSC 505; R v Ryan & Coulter [2011] NSWSC 1249; R v Evans, Rawlinson & Proud [2014] NSWSC 979. 43. See, for example, Wong v R (2001) 207 CLR 584; [2001] HCA 64; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at 71 [304] (Simpson J) quoted with approval in Hili [2010] HCA 45; (2010) 242 CLR 520 at 537 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 44. See, for example, Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22] (Gaudron and Gummow JJ). 45. R v Qaumi, Qaumi and Qaumi (Sentence) [2017] NSWSC 774 at [216]. 46. Crown submissions on sentence [11]. Whether this was a formal application under s 28(4) of the Crimes (Sentencing Procedure) Act is not completely clear and Fagan J did not address this question, or whether the impact on Mr Munro's family was "an aspect of harm done to the community". 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: 27 September 2017