R v OS[2016] QCA 278

SUPREME COURT OF QUEENSLAND

1. MORRISON JA:  I have read the reasons of Atkinson J and agree with those reasons and the orders her Honour proposes.
2. PHILIP McMURDO JA:  I agree with Atkinson J.
3. ATKINSON J:  The applicant in this case was convicted on his own plea of guilty of one count of trafficking in dangerous drugs and a breach of suspended sentence was proved.  On the count of trafficking in dangerous drugs, the applicant was ordered to be imprisoned for a period of 10 years with the time spent in pre-sentence custody declared as imprisonment already served under the sentence pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) (the ‘PSA’).  A serious drug offence certificate was issued with regard to that conviction and the conviction was automatically declared to be a conviction for a serious violent offence.  With regard to the breach of suspended sentence, a conviction was recorded and he was ordered to serve the balance of the term of suspended imprisonment concurrently with the sentence imposed on the count of trafficking.
4. The applicant applied for leave to appeal his sentence on the ground that the sentence imposed was manifestly excessive in all of the circumstances.
5. In his written outline of submissions this ground of appeal was fleshed out by two related submissions: firstly, that the applicant has a justifiable sense of grievance with the sentence imposed upon him when compared to the sentence imposed upon an offender convicted of related offences (the ‘related offender’) and, secondly, that the learned sentencing judge failed to give adequate weight to the applicant’s undertaking to provide further co-operation in the administration of justice.

Facts on which the applicant was sentenced

6. The applicant was sentenced upon an agreed statement of facts.  Those facts were derived from a police investigation targeting the activities of an organised crime network which was concerned with the supply of the dangerous drug heroin.  The operation used lawfully intercepted information from six persons, including the applicant and the related offender.  During the investigation it was identified that the related offender and two others (‘A’ and ‘B’) sourced commercial quantities of pure heroin on a regular basis and then mixed, cut and pressed the heroin into individual ounces and half ounces.  They approached the applicant to work the streets and operate their drug phone which contained contact details of customers.  The applicant was supplied up to four ounces of heroin each day.  He supplied drugs between 60 and 100 times per day and at the end of each day provided the proceeds of the sales to the related offender.

The sale of heroin

7. Initially, the applicant was approached by B and offered a job selling heroin for him and A.  The applicant was paid $500 by the related offender to drive around with other street dealers in order to become familiar with the location of the sales and the faces of the customers.  Soon after, the applicant worked weekends with another man and soon he had complete control of A and B’s drug phone seven days a week.  The related offender imposed rules concerning what time of day their phone could be used, whom the applicant could deal with, where he was to meet people, how many people he was to meet in each place, the quantity of drugs which could be sold and to whom he could give credit.
8. The related offender provided the applicant with anywhere from two to four ounces of pre-packaged heroin per day.  It was packaged into various sizes which sold from $500 down to $100 for a quarter of a gram.  If the applicant was busy and thought he was going to run out of heroin he called the related offender and arranged to meet him to obtain more.  The applicant used the phone between 9.00 am and 5.00 pm and supplied dangerous drugs up to 100 times each day during this period.  At the end of each day, he was required to provide the related offender with $17,500 to $21,000 from the sales.  A couple of hours later the related offender sent the applicant a text message setting out the total amount of money received from the applicant and whether or not he was short.  At that time the applicant was making between $1,000 and $1,500 a day.
9. A few months later, the related offender, A and B ceased supplying the applicant with heroin for a period of time.  The applicant was, however, allowed to continue to control the drug phone.  The applicant purchased ounces of heroin and methylamphetamine at a time on a small number of occasions from a different source, however he received a number of complaints regarding the quality of the drugs and then began sourcing drugs from a person I will refer to as ‘C’, who became his regular source.  C supplied the applicant between three and four ounces of heroin per day.  The related offender, A and B were informed of this and the applicant agreed that when they wanted to commence sourcing drugs to him again, then he was to engage them as his source.
10. The drugs provided to the applicant by C were not pre-packaged.  To increase his profits, the applicant cut the heroin with a mechanical press, placed it in a blender and mixed it with small amounts of cutting agents.  He contacted C by sending him a text message and C directed the applicant where to collect the heroin.
11. A month later, the related offender contacted the applicant and advised him that he and A and B were coming back into the business and that they needed to share the supply of heroin to the applicant with C until C sold out of his supply.  The applicant then sourced heroin in alternate weeks from C and the related offender.
12. The related offender introduced the applicant to a man I will call ‘D’ who was said to be part of the group which included the related offender.  From that point on, D supplied heroin to the applicant and the applicant provided him, as opposed to the related offender, with the proceeds each night.
13. The applicant also sourced methylamphetamine from the related offender and six other people.
14. The related offender, A, B and others were arrested a few months later.  After their arrest, C once again became the applicant’s sole source of heroin.

Use of the drug phone

15. The applicant had a total customer base of 150.  He supplied drugs up to 100 times per day.  The applicant communicated with customers by use of the drug phone.  That phone was also used by him to contact his sources and workers as well to organise other aspects of the trafficking business such as transport and accommodation.  On occasion, he permitted his workers to use the phone to assist him in the carrying on of his business.  The applicant frequently changed the number of the drug phone during the trafficking period.  In total, he used five mobile numbers.  The phone was used by him as a point of contact for customers who wished to purchase dangerous drugs.  Many thousands of communications to and from these phones were intercepted by police over the charged trafficking period.

Further details of the applicant’s offending

16. Police investigations also revealed that the applicant was involved in the production of methylamphetamine, including by using a category C illicit drug laboratory.
17. The police were able to identify that the applicant had approximately 14 people assisting him with various aspects of the trafficking business such as supplying dangerous drugs on his behalf, organising the supply of dangerous drugs, sourcing dangerous drugs, collecting drug debts, driving him to the location of the sales and organising transport and accommodation.
18. During the trafficking period the applicant changed the accommodation he was living in several times in order to avoid police detection and reduce the risk of his being robbed.  He also engaged in other measures designed to conceal his identity.
19. For the charged period, the total turnover from the trafficking business was between millions of dollars.  The total profit made by the applicant was between $200,000 and $300,000.

The applicant’s arrest

20. The applicant was arrested for unrelated matters and sentenced to six months’ imprisonment for several offences, to be served concurrently.  He also received lesser sentences for other offences.

Information given to police by the applicant

21. Following the expiration of his sentence for the unrelated offences, the applicant was interviewed by Queensland police.  Pursuant to s 13A of the PSA, the statement drawn up by police, as a result of the information given by him in the interview and signed by the applicant, the applicant’s undertaking to give evidence against 13 named persons and written submissions by the prosecution and defence were tendered in closed court and sealed.  Oral submissions were also heard in closed court.
22. The applicant made detailed admissions as to his involvement in the trafficking business and provided information about how the trafficking was conducted, including the amounts, value, and regularity of supply; the way in which supplies were ordered and delivered; and the measures undertaken in an attempt to avoid police detection.
23. The applicant gave the police some information about a number of his suppliers, the people who assisted him and some of his customers.

The prosecution’s submissions on sentence

24. The prosecution submitted that the applicant was to be sentenced on the basis that he was a principal offender during the entire seven month trafficking period.  Although at the outset he was engaged to assist the related offender, A and B with their business, he was entrusted with complete control of their drug phones and supplied dangerous drugs on a daily basis.  His involvement in their business was significant and his criminality should be viewed as no less than theirs.  For the period when the related offender, A and B decided to take a break from the business, the applicant carried on his own trafficking business.  He retained the drug phone and had a number of people assisting him with the running of the business.
25. The prosecution submitted to the learned sentencing judge that the applicant’s statement to police lacked detail and did not tell the police anything they did not already know from evidence they had already gathered and from other information given to them.
26. On the hearing of the appeal, it was confirmed that the other information that the police already had had come from a statement given to them by the related offender.

The applicant’s history and personal circumstances

27. The applicant was a mature man at the time of the commission of the offence of trafficking.  He had a solid work history.
28. The applicant’s criminal history in Queensland commenced about 20 years prior to his conviction for the current offending.  That history commences with convictions for summary offences for which convictions were not recorded.  In ensuing years, the applicant’s offending increased in severity and frequency.  Most of the offences that appear in the applicant’s criminal history are drug-related or involve theft or damage to property.  The most serious sentences that appear in the criminal history include a sentence of close to two years’ imprisonment with an immediate parole release date for production of a dangerous drug in excess of 500 grams and, most recently, a sentence of three and a half years’ imprisonment, suspended after the number of days of the applicant’s pre-sentence custody, for breaking and entering premises and stealing.  The offence of trafficking in a dangerous drug, the sentence for which is the subject of this appeal, was committed while he was subject to that suspended sentence.
29. A court report which was tendered during his sentencing hearing revealed that he had responded positively to community supervision, reporting regularly, abstaining from drug use, maintaining fulltime employment and accommodation and maintaining a positive relationship with his partner and their children.

The applicant’s submissions on sentence

30. Relevant to the sentence imposed was that the applicant made admissions to the police about his own offending.  He pleaded guilty and had been addicted to methylamphetamine for many years.  More important was that he undertook to co-operate with State law enforcement agencies in giving evidence, in accordance with a statement he made to police, in the prosecution of 13 named individuals.
31. The applicant’s counsel argued on the sentencing hearing that he had fully co-operated in all questions asked of him by police, named 22 people involved, gave details of the cash turnover and of the codes used by the parties.  At the time he gave the information, he was unaware that the police had already obtained information from another source.  He had already received threats in prison and was held in protective custody.
32. At the sentencing hearing, the defence submitted that the following comparable cases suggested that the appropriate sentence without the s 13A consideration, was nine to 10 years’ imprisonment: R v Burrows^[1] and R v Kashton.^[2]  It was further submitted that both the head sentence and the recommendation in relation to it should be reduced to take account of s 13A considerations and, given the level of co-operation, by around 30 to 40 per cent.  R v Harbas^[3] was relied upon to support this submission.

The sentence imposed

33. All of the matters referred to in submissions were taken into account by the learned sentencing judge.  During additional sentencing remarks in closed court made pursuant to s 13A(7) of the PSA, the judge said that if there had not been s 13A co-operation the sentence imposed would have been 12 years’ imprisonment.

Applicant’s submissions

34. On appeal, the applicant submitted that he has a justifiable sense of grievance given the sentence imposed on the related offender, which was an effective sentence of nine years with parole eligibility after five years.  The circumstances which gave rise to the justifiable sense of grievance were said to be the following.  The related offender and others had recruited the applicant.  The related offender had a more significant criminal history than the applicant and committed the offending in breach of a suspended sentence and probation and also had a previous sentence of 10 years’ imprisonment imposed for a robbery offence.  The related offender was at first subject to the provisions of the Vicious Lawless Association Disestablishment Act 2013 (Qld) before s 13A considerations were taken into account.  The related offender had a total trafficking period of about 18 months whereas the applicant’s trafficking period was seven months.  While the applicant continued the business during a period when the related offender was not operating, the related offender returned to supplying the applicant a short time thereafter.  As was referred to by the learned sentencing judge, the related offender was in effect the applicant’s “boss”.  It was conceded by the Crown during submissions for the sentence for the related offender that the applicant was much lower in the enterprise than the related offender.  The applicant was acting on instructions from the related offender and the related offender was a principal in obtaining large quantities of high purity heroin for on-sale.
35. It was submitted that whilst it was accepted that others might have given specific information about the offending, that could be the result of their greater responsibility within the group or their place in the trafficking hierarchy.  At the time of participating in the interview, which formed the basis of the s 13A statement, the applicant was not aware of the full extent of the information police had already obtained.  The applicant provided details which would corroborate and form a buttress for that information and he provided an undertaking to give evidence against 13 others.  If the co-operation provided by the applicant had the effect of inducing pleas of guilty that would be considered as being of significant value.  In addition he had already been subject to a threat.
36. It was submitted that considering the early plea of guilty, the minor AB v The Queen co-operation and the comparable sentences, the starting point before s 13A considerations was a head sentence between 10 and 12 years.
37. So far as the difference in co-operation under s 13A is concerned, the applicant submitted that while the statement provided by the related offender is longer than that provided by the applicant, that is 24 pages as opposed to 16 pages, the related offender’s involvement in the trafficking operation began about one year prior to the applicant’s involvement.  The first 13 pages of the related offender’s statement relate to the period in which the applicant was not involved in the operation.  In those circumstances, little or no weight should be given to the difference in length of each statement.
38. The applicant submitted that both he and the related offender provided a good level of detail in their statements.  Given the varying roles they played in the drug operation, each statement provided details of different aspects of the business.  The related offender spoke of his involvement in the sourcing of the drugs from the syndicate’s suppliers and managing the conduct of the sale of the drugs to the users by his street-level dealers, including the applicant, whereas the applicant spoke of his involvement in the sale of the drugs on a street-level basis and the management of persons he relied upon.
39. Both the applicant and the related offender referred to the quantities of drugs sold, the prices paid and the specific code words used in the drug trafficking operation.  They both referred to the hours that the business was to operate, the restrictions imposed upon the sale of large quantities of drugs and the employment or dismissal of either persons involved in the street-level sales.  The applicant submitted that the evidence contained in each statement complimented the other and provided a more holistic picture of the drug operation.  It was therefore submitted that at any trial relying on both the applicant and the related offender’s evidence to provide the entire picture of the drug trafficking operation would enhance the Crown’s case.  In addition, importantly, their statements corroborated each other and therefore strengthened the Crown case by providing a defence to any suggestion at a future trial of a co-offender that such evidence had been fabricated to secure a reduced sentence.
40. Further, the provision of both of these statements to co-offenders referred to by each of them would have resulted, and would continue to result, in co-offenders pleading guilty rather than proceeding to trial.  Both the applicant and the related offender referred to a similar number of other persons involved in trafficking and offered to give evidence at any future trials.  The applicant referred to 22 other persons in his statements and whilst he initially signed 22 undertakings to give evidence, only 13 were ultimately required by the Crown at sentence.  The related offender entered into an undertaking to give evidence against all of the people referred to in his statement dated 4 February 2014.  In total, 21 persons were referred to in his statement including those that were mentioned by first or surnames only.
41. In summary, the applicant submitted that there was a level of parity between the co-operation that the applicant and the related offender provided.  Their evidence was complimentary and provided a more complete picture of the drug trafficking operation than if either of them stood alone.  In those circumstances, it was submitted, the applicant has a justifiable sense of grievance given the significant disparity between his sentence and that imposed on the related offender.  It was therefore submitted that a discount similar to that given to the related offender should be given to the applicant.
42. In considering the principle of parity and s 13A co-operation, it was submitted that the appropriate sentence in all the circumstances was a sentence that was certainly no more than that of the related offender.  By reference to the sentence imposed on the related offender it was submitted that an appropriate sentence would be an effective head sentence of eight to nine years’ imprisonment without a declaration that it was a serious violent offence and with parole eligibility set at no more than four to four and a half years.
43. It may readily be accepted, given the applicant’s submissions on appeal, that the notional sentence of 12 years’ imprisonment was appropriate and need not be further considered.  In those circumstances I turn to consider the respondent’s submissions as to parity and s 13A considerations.

The respondent’s submissions

44. The respondent submitted that whilst it was conceded that there exist significant features worthy of mitigation in the applicant’s case, they must be tempered by the paramount need to deter the large-scale commercial drug trafficking demonstrated here.  The risk must not justify the reward.  It was submitted that, while the applicant’s offer to give evidence was of value, that future co-operation only contributed a further body of corroborative evidence.  Importantly, it was not integral to the successful prosecution of further matters with the Crown case resting upon various independent and uncontroversial bodies of evidence in addition to other informants.  It was therefore supplementary or confirmatory.
45. With regard to the issue of parity, the Crown conceded that prima facie there was an appearance of disparity in that the applicant, with s 13A considerations, had received a sentence of 10 years with the automatic declaration of its being a serious violent offence.  Whereas the related offender, also after s 13A considerations, received a term of imprisonment of nine years (for trafficking) with 12 months cumulative for the circumstance of aggravation under the Vicious Lawless Association Disestablishment Act, with an effective parole eligibility date as at five years.  Even adopting the applicant’s submission of different culpability and circumstances, there was an appearance of disparity.  It was submitted that the crucial distinction lay in the “base sentence” and the weight accorded to the respective s 13A considerations.  Without those considerations, the applicant would have received a term of imprisonment of 12 years with the automatic declaration of a serious violent offence.  The related offender would have received a sentence of 16 years for the trafficking with the automatic declaration of a serious violent offence and a cumulative term of 25 years for the circumstance of aggravation that could not be mitigated or reduced.
46. The respondent submitted that based upon that, the disparity was illusory and only arose due to the legislative procedure and the lack of transparency of the s 13A considerations.  The justification for the disparate sentences only arose from an assessment of the nature and degree of future co-operation and that was quite different in each case.  It was submitted that parity had to be considered before the benefit given to the co-offender under s 13A was taken into account: see R v Hanvey.^[4]  However, it was subsequently conceded that the parity principle may apply where both offenders have given s 13A co-operation.

Consideration

47. The legislative regime which is relevant to the question of a discount given for co-operation of an offender who undertakes to give valuable information to law enforcement agencies about other offenders is found in s 13A of the PSA which relevantly provides:

“(1)This section applies for a sentence that is to be reduced by the sentencing court because the offender has undertaken to cooperate with law enforcement agencies in a proceeding about an offence, including a confiscation proceeding.

2. Before the sentencing proceeding starts, a party to the proceeding—

1. must advise the relevant officer—

1. that the offender has undertaken to cooperate with law enforcement agencies; and

2. that written or oral submissions or evidence will be made or brought before the court relevant on that account to the reduction of sentence; and

2. may give to the relevant officer copies of any proposed written submissions mentioned in paragraph (a)(ii).

3. After the offender is invited to address the court—

1. the offender’s written undertaking to cooperate with law enforcement agencies must be handed up to the court; and

2. any party may hand up to the court written submissions relevant to the reduction of sentence.

4. The undertaking must be in an unsealed envelope addressed to the sentencing judge or magistrate.

5. If oral submissions are to be made to, or evidence is to be brought before, the court relevant to the reduction of sentence, the court must be closed for that purpose.

6. The penalty imposed on the offender must be stated in open court.

7. After the imposition of the penalty, the sentencing judge or magistrate must—

1. close the court; and

2. state in closed court—

1. that the sentence is being reduced under this section; and

2. the sentence it would otherwise have imposed; and

3. cause the following to be sealed and placed on the court file with an order that it may be opened only by an order of the court, including on an application to reopen the sentencing proceedings under section 188(2)—

1. the written undertaking;

2. a record of evidence or submissions made relevant to the reduction of sentence and the sentencing remarks made under paragraph (b).”

48. Section 13A also applies in certain circumstances where an offender is charged under the Vicious Lawless Association Disestablishment Act.
49. Section 7 of the Vicious Lawless Association Disestablishment Act provides that a court sentencing a “vicious lawless associate”^[5] for a declared offence must impose, in addition to the ordinary sentence that would have been imposed in the absence of the Vicious Lawless Association Disestablishment Act (called the “base sentence”^[6]), a further sentence of 15 years’ imprisonment.^[7]  Moreover, if the “vicious lawless associate” was, at the time of the commission of the offence, or during the course of the commission of the offence, an office bearer of the relevant association, another further sentence of 10 years’ imprisonment must be imposed.^[8]  The further sentences must be ordered to be served cumulatively upon the base sentence and upon each other^[9] and they must be served wholly in a corrective services facility.^[10]  Importantly, the base sentence must be formulated “without regard to any further punishment that may or will be imposed under [the] Act”.^[11]  Moreover, s 7(2)(a) provides that neither type of “further sentence” imposed may be “mitigated or reduced under any other Act or law.”
50. Section 9 of the Vicious Lawless Association Disestablishment Act deals with cooperation with law enforcement authorities by the offender.  It provides that despite section 7(2) of the Act, s 13A of the PSA is applicable to offenders liable to be sentenced as “vicious lawless associates.”^[12]  However, in order for s 13A of the PSA to be applicable to “vicious lawless associates”, they must have offered in writing to cooperate with law enforcement agencies in a proceeding about a declared offence and their written offer must have been accepted in writing by the commissioner of the police service.^[13]

The parity principle

51. The leading High Court authority on the parity principle is Lowe v The Queen.^[14]  The basis for the principle is set out in the judgment of Mason J:^[15]

“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.”

52. The effect of this principle on sentence appeals was set out by Mason J at 613-614:

“… a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate.”

53. The parity principle applies to both the first sentence imposed as well as to later sentences imposed upon a co-offender.  As Brennan J held in Jones v The Queen:^[16]

“It is erroneous to regard the principle of comparability of sentences laid down in Lowe as incapable of application in favour of the first of two or more co-offenders to be sentenced.”

54. The parity principle was further explained by the High Court in Postiglione v The Queen^[17] where Dawson and Gaudron JJ held:^[18]

“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 allowances 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 shall 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.” (citations omitted)^[19]

55. It follows, as this Court held in R v Floyd:^[20]

“[M]arked disparity in the sentences imposed upon an applicant for leave to appeal against sentence and his or her co-offenders is an appropriate ground of appeal where an applicant can demonstrate an objectively justifiable sense of grievance, whether the applicant was sentenced before or after his co-offenders.”

56. It is necessary, therefore, to consider in detail the sentence imposed upon one of the applicant’s co-offenders, the related offender, to determine whether there has been disparity in the sentences imposed and the reasons for any such disparity.

The related offender’s sentence

57. The related offender’s statement to the police was given about five months prior to the applicant being interviewed by police.  In it the related offender described how he was recruited by A to start working for A and B in their heroin trafficking business approximately a year before the applicant was similarly approached.  He gave details of where and how the heroin was sourced and transported to the trafficking location.  He then gave details of being recruited to sell three to four ounces of heroin a day for A and B.  He gave details of those he worked with, how much he sold and the entire modus operandi.  He described how he worked up to receiving 24 ounces of heroin every week from A and B.
58. Later he sourced even more pure heroin from another source.  He described how and where they undertook the transactions and how he produced the cut heroin.  He also gave details of the middlemen to whom he sold it.
59. The related offender then went back to sourcing his heroin from A and B.  He described the business in detail and his recruiting of street dealers.  He described how the applicant became involved in the trafficking business and that, at the time the applicant took over the street-level selling full time, the related offender described himself, A, B and D as the “office bearers”.
60. The related offender became concerned that he was being watched by the police.  He and A and B stopped supplying heroin and C started supplying the applicant and D.
61. Thereafter he described how he, A and B got back into the business, with whom they were dealing and their sales of “ice” in addition to their main business of selling heroin.
62. The related offender was sentenced by a different judge from the judge whom had sentenced the applicant.  The related offender pleaded guilty to a four count indictment.  Count 1 charged him with trafficking in the dangerous drug heroin over a 15 month period.  Count 2 was trafficking in dangerous drugs as a “vicious lawless associate” and as an officer bearer of that association over three months.  Count 3 was producing a dangerous drug in excess of 200 grams as a “vicious lawless associate” and as an officer bearer of that association and Count 4 charged him with possessing a dangerous drug in excess of 200 grams as a “vicious lawless associate” and as an officer bearer of an association.  The learned sentencing judge referred to the fact that the information in relation to count 1 was not based on information that was gathered as a result of the police investigation.  However significant evidence was gathered as a result of a police investigation which indicated the existence of two distinct but interdependent criminal syndicates, one of which involved the related offender, A, B and D.
63. The learned sentencing judge described the related offender as one of the leaders of the syndicate.  He had commenced working in the syndicate as a drug courier but worked his way up to become a street-level dealer and then a wholesale dealer until he was on an equal footing with both A and B.  During the trafficking period he recruited other people to work in the business and paid them for their services.  The evidence indicated that the total turnover from the trafficking business, in the period charged, was in excess of $4,000,000 and his unsourced income had been assessed at $468,362 during the trafficking period.
64. The trafficking came to an end when police officers executed a search warrant at the related offender’s residence.  They found the related offender, A and B in the kitchen area.  There were bags containing heroin on the bench and on electronic scales.  The offenders attempted to dispose of the heroin and to flee.  The related offender, A and B were in the process of cutting, mixing, binding, pressing and bagging commercial quantities of heroin when the search was executed.  Police located 1.15213 kilograms of substance with a pure content of heroin of 412.05 grams.  In addition they found nine mobile phones and almost $300,000 in cash, $250,000 of which was located in the backyard.
65. There was a persistent course of conduct over an 18-month period involving a Schedule 1 drug.  As a courier, the related offender transported significant quantities; as a high-end street dealer, he had 170 customers and was dealing in large amounts, graduating to dealing in 24 ounces every five or six days; and as a wholesaler, he used and supervised a street dealer.  In the running of the business, his conduct initially included the purchase of four to eight ounces of pure heroin every three to four days but it later included the manufacture of the product at consumable levels, the use of street dealers and sales of 12 to 15 ounces every five or six days.  All of this occurred while he was subject to suspended sentences for like criminal conduct.
66. The sentencing judge also accepted that it was of significance that it was an early plea of guilty, that he had provided a significant amount of information in relation to his own offending and that he had co-operated with authorities.  The entirety of the evidence against him for over a year of the trafficking period was based solely on his own admissions.  The learned sentencing judge also took note of his criminal history, including that he had been sentenced for a robbery to 10 years’ imprisonment with a parole recommendation after serving three years.  Her Honour also took account of his serious ill health.  He had co-operated in the administration of justice in a significant way, had cut his ties with former associates and had ceased consumption of the drug to which he was addicted.  He had obtained work and had not committed any further offending in the nearly two and a half years since he was arrested.
67. On count 1, the related offender was sentenced to nine years’ imprisonment; on count 2, a concurrent period of imprisonment for six years and an additional 12 months cumulative upon that sentence for the circumstance of aggravation; on counts 3 and 4, concurrent periods of imprisonment of two years.  His parole eligibility was to be after serving 80 per cent of the seven years imposed on count 2.
68. In closed court the learned sentencing judge said that, but for his co-operation pursuant to s 13A of the PSA, the sentence she would have given in relation to the trafficking was 16 years’ imprisonment.  She reached that calculation by giving him credit for his co-operation in speaking to the police about his own offending and all the other factors in mitigation.  On the basis of his future co-operation she reduced the sentence of 16 years on counts 1 and 2 down to the head sentence which she had imposed, warning him that if he did not co-operate in the future then the sentence which would be imposed would be 16 years imprisonment.  In addition, there would have been effectively another 25 years cumulative upon that sentence because of the provisions of the Vicious Lawless Association Disestablishment Act 2013, which had been reduced to one year.

Conclusion

69. When more than one co-offender has given s 13A co-operation it is necessary to consider the extent and relative value of that co-operation.  As McMurdo P held of co-offenders of whom each had given s 13A co-operation in R v NQ:^[21]

“There were important distinctions to be made between the present applicant and the female co-offender.  He carried out an extended violent attack upon the deceased with a baseball bat.  Of even more significance, the female co-offender’s cooperation with the authorities was much earlier, much more extensive and much more productive than his.  These considerations provided very sound reasons for sentencing the female co-offender to a noticeably lesser sentence.”

70. The related offender participated in an interview with police and gave extensive and very detailed information about the operation of the drug trafficking business in which he and others were involved well before any information given to police by the applicant.
71. The applicant’s information was useful in that it complemented the information given by the related offender but it was not the primary source of that information.
72. The related offender’s offending occurred over a longer period but, when the related offender ceased trafficking in drugs for a period, the applicant continued with his business, changing suppliers.  The related offender was, however, superior in the hierarchy of the business to the applicant.
73. In all of the circumstances it could not be considered that the applicant’s co-operation was of nearly the same value as the related offender’s or merited nearly the same discount on sentence.
74. However, the extremely marked disparity in discount for co-operation given to the applicant and the related offender is sufficient to give rise to an objectively justifiable sense of grievance.  It would appear that the discount given to the applicant for his co-operation was insufficient when it is compared to the discount given to the related offender for his co-operation.  The sentence which should have been imposed on the applicant should be reduced both to achieve parity with the sentence imposed upon the related offender and to give adequate weight to the applicant’s undertaking to provide further co-operation in the administration of justice.
75. I would therefore grant the application for leave to appeal and allow the appeal only to the extent of replacing the sentence of ten years’ imprisonment with a sentence of nine years’ imprisonment, without a declaration that the applicant has been convicted of a serious violent offence.