San Gabriel v The Queen [2002] FCAFC 169 (5 June 2002)

Last Updated: 11 July 2002

FEDERAL COURT OF AUSTRALIA

San Gabriel v The Queen [2002] FCAFC 169

SENTENCING - disparity - whether sense of grievance on part of appellant objectively justifiable - co-offender with longer record committed offence and further offence whilst on parole - whether failure to allow for longer record, further offence and remaining portion of previous sentence when sentencing co-offender justified appellant's sense of grievance.

Firearms Act 1996 (ACT), s 16(1)

Parole Act 1976 (ACT), s 22

Rehabilitation of Offenders (Interim) Act 2001 (ACT), s 31(2), s 32, s 61

Crimes Act 1900 (ACT), s 342

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, referred

Steer v The Queen [2000] FCA 462; (2000) 171 ALR 463, cited

Omar v The Queen [1991] FCA 421; (1991) 55 A Crim R 373, cited

R v Tait (1979) 46 FLR 386, referred

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, referred

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, referred

CHRISTIAN SAN GABRIEL v THE QUEEN

A41 OF 2001

MILES, RYAN and HIGGINS JJ

CANBERRA

5 JUNE 2002

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A41 OF 2001

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	CHRISTIAN SAN GABRIEL APPELLANT
AND:	THE QUEEN RESPONDENT
JUDGES:	MILES, RYAN and HIGGINS JJ
DATE OF ORDER: DATE OF JUDGMENT:	22 FEBRUARY 2002 5 JUNE 2002
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The sentence and orders of the Supreme Court be confirmed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A41 OF 2001

BETWEEN:	CHRISTIAN SAN GABRIEL APPELLANT
AND:	THE QUEEN RESPONDENT

JUDGES:	MILES, RYAN and HIGGINS JJ
DATE OF ORDER: DATE OF JUDGMENT:	22 FEBRUARY 2002 5 JUNE 2002
PLACE:	CANBERRA

REASONS FOR JUDGMENT

MILES J :

1 This appeal was dismissed on 22 February 2002 with reasons to be given later. I am not of the view that it should have been dismissed. These are my reasons.

2 On 27 February 2001 Christian San Gabriel pleaded guilty in the ACT Magistrates Court to a charge of aggravated burglary. He was committed to the Supreme Court of the Australian Capital Territory for sentence and continued his plea of guilty in that Court. On 8 June 2001 he was sentenced to eight years imprisonment, with a non-parole period of four and a half years, to date from 18 January 2001. He appealed against the severity of the sentence on the single ground of disparity with the sentence imposed on a co-offender.

3 The offence took place on 16 January 2001 at a house at Palmerston. The appellant and the co-offender, Van Long Pham, had previously been to Sydney where a gun had been obtained. On the day of the offence they purchased novelty masks, a knife and some rope from a store at Belconnen. They caught a taxi to the house and gained entry by slashing a fly screen. They entered wearing the masks, disturbing a child in the room. The child ran and alerted others in the house. The mother, who was already carrying a baby, picked up the child and ran to the front door. She looked back and saw a man with a gun. She screamed. The two offenders ran from the house. One of them threatened a neighbour who sought to intercede.

4 The offenders threw away various items as they fled, including the loaded magazine from the gun. They caught a taxi to the appellant's home nearby. Later the co-offender noticed that the magazine was missing and contacted the taxi company who contacted the police who arrested Pham. Pham made admissions implicating the appellant. The appellant was arrested. He initially denied any knowledge. But on 20 February 2001 he admitted taking part in the burglary. The appellant claimed to the police that the original idea came from Pham who had knowledge of the house and its contents as well as of the movements of its occupants. Pham also had possession of the gun at relevant times.

5 Pham pleaded guilty in the Supreme Court on the same day as the appellant to the same charge of aggravated burglary and to a further charge of possession of a firearm without a permit. He was sentenced on the former to imprisonment for ten years. He was sentenced on the latter to one year imprisonment to be served concurrently. His Honour determined that a non-parole period in respect of all sentences, including previous sentences, should expire on 18 January 2007.

6 The parity principle, so called, recognises that between co-offenders there should not be any marked disparity of sentence which gives rise to a "justifiable sense of grievance" and that, if there is such disparity, the sentence in issue should be reduced notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. A sense of grievance is justifiable if an ordinary reasonable member of the community would consider that the difference in the sentences results in an injustice: Steer v The Queen [2000] FCA 462; (2000) 171 ALR 463. The circumstances when examined may reveal differing levels of culpability among co-offenders, which may explain apparent disparity and rob any sense of grievance on the part of a co-offender of objective justifiability.

7 The appellant's case was put with commendable succinctness by Mr Subharwal of counsel who submitted that the difference between the severity of sentence imposed on his client and that imposed on Pham gave rise to a sense of grievance that was justifiable having regard first, to the following circumstances:

* The appellant was aged 23 years and 9 months at the time of the offence and is some nine months older than the co-offender.

* The appellant was prepared to give evidence against the co-offender.

* Although both men were drug dependent, the appellant had significant prospects of rehabilitation, and more so than the co-offender.

8 Further, Mr Subharwal relied on the substantial difference in the prior criminal history of each offender. The first matter recorded against the appellant did not result in a conviction. The second, an offence of possessing a prohibited substance, namely heroin, was the subject of a deferral of sentence by the ACT Magistrates Court in August 2000 when the appellant entered into a recognizance to be of good behaviour for a period of two years. The present offence constitutes a breach of that recognizance. There was nothing before the sentencing judge or this Court to indicate what action, if any, has been taken or is intended to be taken in respect of the breach.

9 In contrast however, the co-offender had an extensive history. In particular, on 12 September 1997, following pleas of guilty to 25 offences including aggravated burglary, he was sentenced to six years imprisonment with a non-parole period of three years. It appears that he was released on parole on or about 26 March 2000 and was therefore still under sentence of imprisonment at the time of the aggravated burglary on 16 January 2001.

10 Previous criminal history is a matter that goes to the seriousness of the offence under consideration and not only to the leniency which might be extended to a person without significant criminal history (Omar v The Queen [1991] FCA 421; (1991) 55 A Crim R 373). In that regard the difference in the prior histories of the two offenders was expressly recognised by his Honour when sentencing the appellant and was reflected in the longer head sentence and non-parole period imposed upon Pham. On the face of it, the difference as between the two offenders of two years in the head sentence and one and a half years in the non-parole period would appear to be sufficient to generate a justifiable sense of grievance on the part of the appellant.

11 However, the situation is not as simple as it may seem on its face. Pham was convicted not only of the offence of aggravated burglary but, as already mentioned, for an offence of being in possession of an unlicensed firearm, an offence which under s 16(1) of the Firearms Act 1996 (ACT) carries a maximum penalty of 12 months imprisonment. Clearly, his Honour was of the view that the latter offence was serious, since he imposed that maximum sentence. It did not relate to the firearm used in the aggravated burglary. However, the further sentence was ordered to be served concurrently. No reason was given to explain the order for a concurrent sentence. It is difficult to see how the firearm offence may have been regarded as part of the same criminal conduct as the aggravated burglary for the purpose of attracting a concurrent sentence. The fact that the sentences for the two separate offences were not cumulative, either wholly or in part, is a factor that goes to suggest that his Honour may have overlooked a matter relevant to the relative culpability of the two offenders who were before him for sentence and which if not overlooked would have resulted in a heavier overall sentence to be served by Pham.

12 More important perhaps is the structure of the sentence as it impacted upon the unexpired sentence of six years dating from 27 March 1997 that had been imposed upon Pham on 12 September 1997. Pham was released on parole on 26 March 2000. He was still under sentence and on parole due to expire on 26 March 2003 at the time of the offence less than nine months later. Parole appears not to have been revoked until his conviction on 8 June 2001 and the operation thereby of s 22 of the Parole Act 1976 (ACT) then in force. As time previously spent on parole did not count for the purpose of the expiration of the sentence of six years, there was an unexpired portion of three years in respect of which Pham remained under sentence and which was still to be served at the date of his conviction for the aggravated burglary.

13 It is not clear whether the learned sentencing judge took this unexpired portion of the previous sentence into account when sentencing Pham for the aggravated burglary. His Honour did not specify that the ten years was to commence from any particular date. Prima facie it must be taken to run from the day it was imposed. That meant that the first three years of the new sentence ran concurrently with the unexpired three years remaining of the previous sentence. The totality principle required the sentencing judge to consider whether adding the ten years to the unexpired three years may have had a crushing effect on a young offender. It is likely that if the principle were applied, some, but possibly not as much as three years, of the ten years would have been ordered to be served concurrently. In fact, the result appears to be that Pham received a sentence somewhat shorter than that intended, or appropriate.

14 If all these matters, including the fact that the further sentence for possessing an unlicensed firearm was concurrent, came to the notice of the objective reasonable member of the community, that member would be likely to consider that the appellant was entitled to a justifiable sense of grievance at the severity of the sentence imposed upon him when compared to that imposed upon the co-offender Pham.

15 Although normally a court of criminal appeal does not interfere with sentences by making minor adjustments, the avoidance of disparity may justify, if not compel, that course in appropriate circumstances. If a sense of grievance at the disparity is justifiable, the amount of the adjustment necessary to remove the justification should not matter. In my view, the appeal should have been allowed, the head sentence reduced to seven years imprisonment to commence on 18 January 2001 and an effective non-parole period of four years fixed. In accordance with s 31(2) of the Rehabilitation of Offenders (Interim) Act 2001(ACT) (which commenced on 10 September 2001 and replaced the repealed Parole Act 1977), it should be specified that the non-parole period commence on 18 January 2001 and expire on 17 January 2005.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Miles.

Associate:

Dated: 5 June 2002

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A41 OF 2001

ON APPEAL FROM THE SUPREME COURT OF THE

AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	CHRISTIAN SAN GABRIEL APPELLANT
AND:	THE QUEEN RESPONDENT

JUDGES:	MILES, RYAN and HIGGINS JJ
DATE:	5 JUNE 2002
PLACE:	CANBERRA

REASONS FOR JUDGMENT

RYAN and HIGGINS JJ:

16 This was an appeal against the severity of a sentence imposed upon the appellant on 8 June 2001.

17 The facts of the matter are detailed in the reasons for judgment of Miles J which we have had the advantage of reading in draft.

18 It suffices to say that the appellant pleaded guilty to a very serious charge of aggravated burglary.

19 The sole ground relied upon by the appellant to support his contention that the sentence was excessive was that Crispin J, the sentencing judge:

"... drew insufficient distinction between the co-offender, Van Long Pham and the appellant. The disparity in the sentences imposed upon the co-offender, and the appellant give [scil - gives] rise to a legitimate sense of grievance."

20 That is a re-statement of the "parity" principle as set out in s 342 Crimes Act 1900 (ACT) Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 and Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.

21 That principle does not require that each co-offender should receive the same sentence but rather that any distinction drawn between them be based on differences which are rationally justifiable.

22 Thus it would not offend the parity principle if an offender whose role in the offence was less, was given, on that account, a shorter sentence to an extent which is able to be seen as proportionate.

23 Similarly, differences in subjective factors relevant to a "just and appropriate sentence" (see s 342 Crimes Act 1900 (ACT)) may also justify disparity.

Role of each offender in the offence

24 The appellant and his co-offender together planned to rob the home of the victims of their offence.

25 They acquired a firearm, a knife and some rope. They purchased novelty masks to disguise themselves.

26 In his interview with police on 18 January 2001, the appellant claimed to have been unaware that his co-offender had obtained possession of a firearm, even though he had accompanied him to Sydney where the firearm was obtained. He conceded later that he had been aware of the firearm before they actually committed the offence.

27 So armed and disguised, with the rope intended to bind the occupants, they entered the subject dwelling at Palmerston in the Australian Capital Territory.

28 They entered through a bedroom window causing a 12 year old boy to flee from the room. He alerted his mother who gathered up her ten month old baby. They fled from the house. One of the offenders pointed the firearm at her as she did so.

29 A neighbour, alerted by the woman's screams of terror, confronted one of the offenders who threatened him with the firearm and then fled. The finding of a fully loaded pistol magazine in the vicinity clearly indicated that the firearm had been loaded.

30 From Pham's attendance to collect the magazine having persuaded himself he had lost it in the getaway taxi, it could be inferred that the gun was his. That does not imply, however, that the appellant's role in the crime was any less than Pham's.

31 Neither offender physically injured any of the victims. The victims, including the male neighbour were, however, terrorised by the offenders.

32 In his initial interview, the offender stated that he had not participated in the burglary though he knew of it. He agreed he knew Pham (by the name of "Chook").

33 He was confronted, during the interview, with suggestions that Pham had confessed to the offence and implicated him. He maintained his denial. He claimed two other persons had offered, on that day, to sell him and Pham a gun.

34 Subsequently, on 20 February 2001, the appellant was re-interviewed and stated that:

* It was Pham's idea to commit the offence.

* The victims were targeted as they were known by Pham to have cash on the premises.

* He had participated in the purchase of the knife, rope and masks.

* They knew the father of the family would be absent at work at the time of the offence.

* He had not purchased the gun nor known it had been purchased though he conceded that he had seen it before the burglary and had known it would be used in the offence.

* They expected to intimidate the mother into handing over money by threatening to kill one of the children.

* He was prepared to give evidence against Pham.

35 The co-offender, Pham, pleaded guilty on 4 April 2001 to aggravated burglary and possession of a firearm (unlicensed). He had confessed to participation in the crime when first interviewed on 18 January 2001, though he alleged that the offence had been the appellant's idea. He claimed that the appellant had held the gun and had been the person who had entered the dwelling and threatened the victims (including the neighbour) with that gun. While claiming that the gun was unloaded, he agreed he had obtained it from Sydney, though "for Christian", not himself.

36 Pham was sentenced, on 8 June 2001, as was the appellant.

37 So far as the circumstances of the offence were concerned, Crispin J could not, and did not, determine which of them had instigated the burglary. Nor was he able to determine which of them had held the gun in the course of the offence.

38 It followed that his Honour could not treat them otherwise than equally in respect of their participation in an extremely serious offence. Each had to be regarded as taking the marginally less culpable role played by the offender who had not possessed or used the gun.

The subjective factors

39 Crispin J set out the subjective factors concerning the appellant as follows:

"It is, however, necessary that I consider the subjective circumstances of each offender. Mr San Gabriel is now 24 years of age, having been born on 19 April 1977. He was born in Manila in the Philippines and has a brother and two sisters. He described his childhood as good, with parents who provided a caring, supportive family, and many friends. His father tragically died when Mr San Gabriel was only 11 years of age. And the father (sic) moved to Australia following his mother's re-marriage in 1990, and he gets on well apparently with his step-mother.

It appears that he spent some time living in Brisbane with his mother, but he returned to Canberra in March 2000, and which he shared with some drug users. He began using heroin by smoking it when he was 18, although he used it on only a couple of occasions. On returning to Canberra in March 2000 he used it again, and became dependent upon it. Despite some dispute as to the extent of his usage, I accept that he has some measure of heroin dependency.

He has apparently, during the course of his time in the Belconnen Remand Centre, where he has been located since his arrest in January of this year, managed to withdraw from the use of heroin, and has apparently made some enquiries about drug rehabilitation.

His criminal record is limited to two offences. The first conviction was recorded in the District Court in Queanbeyan in December 1997 when there was a finding of the commission of an offence of being armed with intent, but without proceeding to a conviction. He was apparently released on condition

that he enter into recognizance to be of good behaviour for a period of 12 months.

More recently, in August of 2000, he was sentenced by the Chief Magistrate for an offence of possessing a prohibited substance which he said in his evidence, and I accept, was heroin. He was on that occasion convicted but released upon a recognizance to be of good behaviour for a period of 2 years. The present offence constitutes a breach of that recognizance.

Mr San Gabriel gave evidence before me. I must confess that having seen and heard his evidence, I have some doubts as to the extent for which I can rely upon the truth of his assertions. Nonetheless, I accept that he has some measure of genuine remorse for what he has done.

It is also appropriate that I take into account in his favour the fact that he has made an early plea of guilty. That is also true in Mr Pham's case. It is of some significance, not only because it provides perhaps some further evidence of remorse, but also because it spares the community the time and expense of a trial. And most importantly, it spares the victims the ordeal of having to come into court and re-live in the witness box the trauma that they have already suffered as a result of the offender's behaviour. He has also indicated a willingness to assist the authorities and it is appropriate that that be taken into account in his favour."

40 Mr Pham's circumstances were described as follows:

Mr Pham is now 23 years of age, having been born on 24 January 1978. He is plainly a drug-dependent young man. It has been put on his behalf, and I accept, that he has had for some time little, if any, family support. On the other hand, it has to be said that his criminal record is much worse than that of Mr San Gabriel.

Mr Pham is of Laotian origin. He has two sisters, and the family apparently migrated to Australia prior to his first birthday, settling initially in Liverpool before relocating to Campbelltown. They moved to Canberra when he was 12 years of age. The offender described his childhood as unrewarding, and said that he was unable to recall few good memories. He was of the opinion that he lacked opportunities for development and received little support from his father, whom he felt expected too much of him. He left home at 13 and moved to Sydney, initially committing petty offences to survive, but later graduating to sell heroin in order to support himself.

He had initially undertaken some education, not only at primary school, but at Ambarvale High School, but following the family's move to Canberra he enrolled at two high schools consecutively, but did not attend either. He effectively dropped out of the education system when he was 12 years of age. Because, he said, although he enjoyed being educated, he didn't like the hours ... he was required to attend. He indicates that he was expelled from those schools he attended because of poor attendance records and violence towards other pupils.

His criminal history includes numerous offences of dishonesty, and also offences of violence, and one offence of kidnapping whilst he was still a juvenile. In September 1997 he pleaded guilty to 25 indictable offences, which consisted mainly of charges of burglary, though there was also one charge of assault, two of intentionally damaging a vehicle, and one of stealing.

The burglary charges have been committed over some period of time in 1996 and early 1997, and the technique used was to use keys stolen from a locksmith to gain entry to shops, mainly in the Belconnen and Tuggeranong shopping malls from which he could steal money and various items. The burglaries came to an end when he and a co-offender were observed by a security guard, a scuffle ensued during which Mr Pham struck at the guard with a metal bar and threatened him with a knife. After that fingerprints were used to identify and trace him.

In relation to those offences, the Chief Justice imposed sentences involving a total of 6 years' imprisonment, and fixed a non-parole period of 3 years, both to date from 27 March 1997. It is significant that he was prepared to use violence on that occasion, and on that occasion he was also armed with a weapon.

During his period of imprisonment the offender said that he completed his Year 10 certificate and courses in music, occupational health and safety, industrial relations, tourism and hospitality. In May of 2000 he claims to have enrolled in a business course in Canberra and to have attended that course until August, when the money ran out and his father indicated that he was no longer prepared to pay an amount said to have been $1,500 per month for the course.

He began consuming alcohol at 13, and was introduced to cannabis at 14. Within another 12 months he had also used amphetamines, LSD, Benzodiazepines and heroin. By 15 he says that he was addicted to heroin, and following his release from custody in 1995, after serving a sentence for another offence, he returned to Canberra and he again began using heroin. He says that at that time his addiction became unmanageable and he was requiring $2-4,000 per week to support it. He said that at the time of these offences his drug addiction was out of control.

The author of the pre-sentence report expressed the view that although he did display some remorse for the victim and her children, he did not comprehend the seriousness of his actions. She said that his offending behaviour was closely linked to his addiction and that was reflected in his criminal history. If he is ultimately to live successfully within the community without committing further offences, it will be necessary for him to successfully address his drug usage. And he has indicated a willingness to participate in a long-term residential rehabilitation program, though the author of the report expressed some concern regarding his commitment to complete such a program. She expressed the view that he has been assessed as a high-risk offender."

41 As to both of them, his Honour added:

"I take into account the fact that they have pleaded guilty. I take into account, as I have mentioned, the offer to willingly assist the authorities made by Mr San Gabriel. I take into account the fact that these are still young men who are drug dependent. And who, especially in the case of Mr San Gabriel, have I think some significant prospects of ultimately achieving rehabilitation.

I do not discount the possibility that Mr Pham may also achieve rehabilitation, although at the moment it seems he may be less motivated. I also take into account the fact that in Mr Pham's case there is evidence of some remorse, although there is some scepticism as to whether he fully understands the gravity of what he has done. I do accept that Mr San Gabriel was genuine in the remorse that he expressed in the witness box."

42 There was no challenge to his Honour's conclusion that the gravity of the offences committed by the offenders required substantial sentences of imprisonment.

43 The appellant was sentenced to eight years imprisonment with a non-parole period of four and a half years.

44 Pham was sentenced to ten years imprisonment with a non-parole period of six years.

45 Each of the offenders was relatively young (24 and 23 respectively). Each had fallen into drug use which might explain their involvement in the offence.

46 Each of them had expressed remorse and a desire to be rehabilitated.

47 The distinction between them was that Mr Pham had confessed at the first opportunity. The appellant had not. However, once the appellant decided to confess he did enter a guilty plea at the first opportunity thereafter. From that time each co-operated with police although, given their admissions, there was no need for either to give evidence against the other.

48 There were two further differences found by Crispin J. First, and most significantly, Pham's record was more extensive. Indeed, he was on parole for a not dissimilar offence when he committed the current offence.

49 The appellant had only two prior convictions. Neither involved violence. However, he was subject to a recognizance to be of good behaviour at the time of this offence.

50 Second, Crispin J considered that the appellant had better prospects for rehabilitation than Pham.

51 That was a conclusion clearly open to his Honour.

52 Crispin J recognised that the two factors referred to, particularly the first, required a degree of disparity in favour of the appellant.

The Contentions on Appeal

53 The appellant contended that Crispin J had failed to allow sufficiently for the disparity between the circumstances of the two offenders.

54 In particular, it was contended that no adjustment was made unfavourably to Pham for the fact that he faced, when sentenced, an unexpired term of a previous sentence. That sentence would expire on 26 March 2003.

55 The respondent acknowledged that the appellant had to be treated less severely than Pham but contended that to have treated the appellant any more leniently than his Honour had done would have risked inadequacy.

56 Miles J, in his draft reasons has concluded that Pham, by reason of the unexpired prison sentence he was liable to complete, had received a lighter sentence than was warranted for two reasons.

57 First, the unlicensed firearm charge against Pham was not related to the burglary and should have resulted in a sentence cumulative (at least in part) upon the ten years for the aggravated burglary.

58 Second, the unexpired sentence should have been recognised by adding to the time to be served before parole again came to be considered.

59 These considerations revealed an error and warranted, in his Honour's view, a reduction of the total head sentence imposed on the appellant of one year and of the non-parole period of six months.

Conclusions

60 Regrettably, we do not agree that the sentence imposed by the learned sentencing judge should be interfered with even if, as Miles J concludes, Pham had been treated relatively more leniently than might have been justified.

61 In our view, the need to avoid a "crushing" sentence on Pham can be seen as supporting the level of punishment imposed upon him.

62 Thus we do not consider that Crispin J erred in not imposing a cumulative sentence in respect of the unlicensed pistol charge. It was a relatively peripheral matter indicating general criminality but not really adding to Pham's overall culpability.

63 Of more significance is that Pham was on parole when convicted. On conviction, Pham's parole was revoked - see s 61 of the Rehabilitation of Offenders (Interim) Act 2001 (ACT) (Rehabilitation of Offenders Act). Thus Pham commenced serving, when sentenced for the aggravated burglary, a term of imprisonment expiring (it is assumed) on 8 June 2004 (see s 32(2) Rehabilitation of Offenders Act)). Crispin J was obliged to assume that the offender was being sentenced to a total of 16 years imprisonment. Section 31 (ibid) required that "a non-parole period" be set. The only restriction on the length of that non-parole period is imposed by s 32(3) (ibid):

"The nonparole period set when the new sentence is imposed must not make the person eligible to be released on parole earlier than if the new sentence had not been imposed."

64 The new sentence imposed a non-parole period expiring on 18 January 2007. By contrast, the appellant's non-parole period set by Crispin J will expire on 18 July 2005.

65 It is not apparent to us that Crispin J failed to note and take account of the need to re-set the non-parole period fixed for Pham so that he gained a windfall benefit. Indeed his Honour said, in fixing Pham's sentence (AB 156):

"... having regard to the terms of the Parole Act [now Rehabilitation of Offenders Act], I am required to fix that [ie "a non-parole period"] ... Accordingly, I determine that your non-parole period in relation to all sentences will expire on 18 January 2007."

66 However, the true issue on this appeal is whether there was error in the fixing the appellant's sentence. There may be, for example, an error fixing a co-offender's sentence at too high a level so that parity principles identify a correlative error in another co-offender's sentence. It is more difficult, in our view, to justify interference where parity has been afforded but, despite the fact that the sentence of one co-offender is not apparently too great, it is asserted that the sentence of the more culpable or "less-excusable" offender is set too low. Particularly, when the failure to increase the more culpable offender's sentence can be seen to be based on a desire to avoid a "crushing" sentence on a young offender.

67 That is, in our view, the situation here.

68 There is, however, one further observation to be made. The fixing of the precise length of a sentence and non-parole period is quintessentially a discretionary exercise.

69 As Brennan, Deane and Gallop JJ said, in R v Tait (1979) 46 FLR 386 at 388:

"An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence."

70 That principle was re-affirmed, most eloquently, by Kirby J (Gummow and Gaudron JJ agreeing) in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 339-40 at [58]:

"The necessity to show error ... is fully accepted by courts deciding appeals against sentence .... Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it."

71 If, as Miles J suggests, the level of excessiveness of the sentence imposed on the appellant is to be measured by a reduction from eight years to seven (head sentence) and four and a half years to four (non-parole period) because of a "justifiable sense of grievance" resulting from the disparity between his sentence and the ten years (head sentence) and six years (non-parole period) imposed on Pham, would that small reduction in his sentence remove the appellant's complaint?

72 In our view, to achieve only such a small reduction would offend the principles referred to in both Tait and Dinsdale. It supports, in our respectful opinion, a conclusion that the disparity between the appellant's sentence and that of Pham was within the range of proper discretion.

73 For these reasons, we concurred in the decision pronounced on 22 February 2002, to dismiss this appeal.

I certify that paragraphs numbered 16 to 73 are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan and Higgins.

Associate:

Dated: 5 June 2002

Counsel for the Appellant: Mr J Sabharwal

Counsel for the Respondent: Mr R Refshauge SC

Solicitor for the Respondent: ACT Director of Public Prosecutions

Date of hearing: 22 February 2002

Date of Judgment: 5 June 2002