Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; (1997) 145 ALR 408; (1997) 71 ALJR 875 (24 July 1997)

MARIO POSTIGLIONE APPELLANT

AND

THE QUEEN RESPONDENT

1. Appeal allowed.

2. Remit the matter to the Court of Criminal Appeal of New South Wales for it to take such steps as it can to give effect to the decision of this Court.

24 July 1997

FC 97/022

S 49/96

On appeal from the Supreme Court of New South Wales

Representation

T A Game with S J Odgers for the appellant (instructed by Arden Associates)

P S Hastings QC with G J Tabuteau for the respondent (instructed by Director of Public Prosecutions (Commonwealth))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Mario Postiglione v The Queen

Criminal law - Sentence - Co-offenders - Disparity between effective sentences - Parity principle - Totality principle - Relationship between parity and totality principles.

Practice and Procedure - Court of Criminal Appeal - Jurisdiction to entertain second appeal - Procedure for determining applications for leave to appeal against sentence - Error in Notification of Court's Determination.

Crimes Act 1914 (Cth), ss 16B, 19AD and 21E

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Criminal Appeal Rules (NSW) rr 51 and 52.

DAWSON AND GAUDRON JJ. The appellant, Mario Postiglione, appeals from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales by which he was granted leave to appeal against sentence and his appeal dismissed. However, the Notification of Court's Determination[1], which apparently operates as the court's formal order, indicates that he was granted leave to appeal and that the unsuccessful appeal was against conviction rather than against sentence. It is not clear whether that order has been perfected[2]. And, as will later appear, there are other procedural uncertainties associated with this case.

The appellant pleaded guilty to two charges of conspiracy to import a prohibited substance - in one case, heroin and, in the other, cocaine. He was sentenced by Mathews J to 18 years imprisonment with a non-parole period of 13 years and 10 months, dating from 7 May 1993. It was revealed in the sentencing process that he had co-operated with police and prosecution authorities and had undertaken to give evidence against his co-conspirators, including George Savvas. In accordance with s 21E of the Crimes Act 1914 (Cth)[3], Mathews J indicated that, but for that, she would have imposed a sentence of 21 years with a non-parole period of 16 years and 10 months.

As usually happens when an accused person indicates his or her willingness to give evidence against a co-accused, Postiglione was sentenced before Savvas stood trial. An application to the Court of Criminal Appeal for leave to appeal against sentence on the ground of its severity was also heard and determined before Savvas was brought to trial. Leave to appeal was granted but the appeal dismissed (Abadee J, Finlay J and Loveday AJ agreeing). That is not the decision under appeal. It does, however, have some relevance to it.

On the hearing of the present appeal, we were informed by counsel in response to a question from the Court that no order was taken out giving effect to the decision of the Court of Criminal Appeal constituted by Finlay and Abadee JJ and Loveday AJ. However, enquiries by the Deputy Registrar indicate that a Notification of Court's Determination was issued in accordance with r 51 of the Criminal Appeal Rules. As with the decision and order from which the present appeal is brought, it is not clear whether the order was perfected.

A short time after Postiglione's appeal was dismissed, Savvas was brought to trial. He was convicted and sentenced for his part in the offences to which Postiglione had earlier pleaded guilty. It will later be necessary to refer to the details of the sentence imposed on Savvas. For the moment, it is sufficient to note that, after Savvas was sentenced, Postiglione brought a second application for leave to appeal in which he complained of marked disparity between his sentence and that imposed on Savvas. That application came before a differently constituted court (McInerney, Badgery-Parker and Dowd JJ) and was treated as a separate proceeding, not merely as an application to reopen the earlier appeal. This appeal is brought from the decision granting leave on the second application and dismissing the ensuing appeal.

In his reasons for judgment on the second application, Badgery-Parker J (with whom McInerney and Dowd JJ agreed) expressed the view, by reference to Pantorno v The Queen[4], that the Court of Criminal Appeal had jurisdiction to entertain that application, notwithstanding the earlier application for leave to appeal. However, because the appeal was to be dismissed, it was said that it was unnecessary to decide whether that was so. If the only order to be made was an order dismissing the application for leave to appeal, that may have been correct. However, a decision to grant leave on the second application and to dismiss the appeal then brought involved the assertion of jurisdiction to entertain the second application and, on the assumption that an order giving effect to the decision on the first application was perfected, an assertion of jurisdiction to entertain a second appeal against sentence.

If a final order was made perfecting the decision of the Court of Criminal Appeal on Postiglione's first application, the assumption of jurisdiction to entertain his second application and the ensuing appeal was contrary to the decision of this Court in Grierson v The King[5]. It was held in that case that the Criminal Appeal Act 1912 (NSW) does not confer jurisdiction to re-open an appeal which has been heard on the merits and finally determined. A fortiori, in a case where what is involved is the hearing of a second appeal[6]. Pantorno does not suggest otherwise. The view was expressed in Pantorno that an intermediate court of appeal can entertain an application to remedy a denial of procedural fairness whether or not its order has been perfected[7]. Nothing was said as to the jurisdiction of an appellate court to entertain a second appeal when the first has been heard and determined on the merits and an order perfected.

As already indicated, the order which is the subject of this appeal does not properly record the decision of the Court of Criminal Appeal. If perfected, it must be set aside. Moreover, it will later appear that the only order which should have been made on Postiglione's first application was an order refusing leave to appeal, not an order dismissing his appeal. In these circumstances, it is convenient to deal with the issue which attracted the grant of special leave, leaving it to the parties to take such steps, if any, as are necessary and available to give effect to the resulting decision.

The question which attracted the grant of special leave is whether the Court of Criminal Appeal misapplied the parity principle and, also, the totality principle in confirming the sentence which Mathews J imposed on Postiglione. The answer depends on a comparison of that sentence with the sentence imposed on Savvas. As already indicated, Postiglione was sentenced to 18 years with a non-parole period of 13 years and 10 months, dating from 7 May 1993. Savvas was sentenced to 25 years with a non-parole period of 18 years to date from 17 June 1994.

In sentencing Savvas, Grove J found that "Savvas and Postiglione were both principals with different but generally equivalent culpability in respect of both matters." However, his Honour indicated that he suspected that Savvas was the principal conspirator, with Postiglione subordinate to him. That suspicion was in line with the finding by Mathews J when sentencing Postiglione that Savvas was the principal organiser of both conspiracies. The latter finding was accepted by the Court of Criminal Appeal and it is that finding upon which this Court must act.

Postiglione and Savvas each entered into the conspiracies involved in this case while they were serving sentences for prior drug offences. When Postiglione was sentenced on 7 May 1993, he was serving a sentence of 12 years with a non-parole period of 9 years. He would have been eligible for parole on 8 March 1996. Savvas, on the other hand, was serving a sentence of 25 years, his 18 year non-parole period expiring on 23 August 2006.

The effect of the sentence imposed on Postiglione is to extend his sentence by 12 years and 2 months and his non-parole period by 11 years, making him ineligible for release until 6 March 2007. When released, he will almost certainly be returned to Italy to serve the balance of a sentence imposed for drug offences committed in that country in 1979 and 1980. If so, he will be in custody at least until July 2012. In contrast, the sentence imposed upon Savvas has the effect of extending his sentence and non-parole period by only 5 years and 10 months, making him ineligible for release until June 2012. And if regard is had to the period which Postiglione is likely to serve in prison in Italy, Savvas will be eligible for parole one month before the earliest date on which Postiglione is likely to be finally released from custody.

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[8]. 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[9]. 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[10], 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"[11]. 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 - 25 years in the case of Savvas, 18 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.

One component of each of the sentences involved in this case and one which is susceptible of easy comparison is the non-parole period. For Savvas, a non-parole period was fixed at slightly less than three-quarters of his head sentence. For Postiglione, however, it is slightly more than three-quarters. There is nothing to suggest that, so far as concerns eligibility for parole, Savvas should be treated more favourably than Postiglione. And were parity to be maintained in that respect, the non-parole period for Postiglione would be of the order of 12 years and 11 months, rather than 13 years 10 months. However, in the overall circumstances of this case, that discrepancy, standing alone, would not, in our view, give rise of a marked disparity.

The kernel of Postiglione's complaint is not with his non-parole period, but with the fact that the sentence imposed on Savvas has the effect of extending his period of imprisonment by 5 years and 10 months, whilst his is extended by 12 years and 2 months, or 11 years if regard is had solely to the non-parole period. The Court of Criminal Appeal declined to take that difference into account, treating the "unusual outcome" as the result of "the [different] custodial situation of each prisoner at the time of sentence, and the need for a sentencing judge to have regard to the principle of totality to ensure that the ultimate sentence actually imposed was not excessive having regard to the total criminality involved in all of the criminal activities to which it attached."

So far as concerns the totality principle, the Court of Criminal Appeal proceeded on the basis that "Grove J was necessarily obliged to give effect to that principle in sentencing Savvas." Without mentioning any need to have regard to the principle in its application to Postiglione, it was then said that "when the sentences ... are viewed in the light of the well understood legal principle of totality, any sense of grievance which results is seen to be without justification."

The approach adopted by the Court of Criminal Appeal in this case treats or has the effect of treating the total period to be served in custody and, more particularly, the actual period to be served in consequence of the offences committed as irrelevant to the proportion which the sentences imposed on Postiglione and Savvas should bear to each other. In the circumstances of this case, the real punishment for both Savvas and Postiglione is the extra period which they must spend in prison. Due proportion cannot be determined without taking it into account. However, that is not to say that it is the only matter to be taken into account.

Before turning to consider what ought to have been taken into account in this case, it is convenient to observe, once again, that, as between co-offenders, different criminal histories and custodial patterns may be such as to justify a real difference in the time each will serve in prison. And, of course, it is necessary when applying the parity principle that like be compared with like. There may be some aspect of one offender's criminal history or custodial situation which has no counterpart in the case of his or her co-accused. If so, it may justify the imposition of a different sentence[12] or the structuring of the sentence in such a way that it results in some difference in the period actually spent in custody. And so it is in this case. Postiglione's convictions for offences under Italian law are matters peculiar to him, and they properly justify a difference in sentencing outcomes. That being so, the fact that Postiglione is likely to be returned to Italy to serve the balance of a sentence imposed on him in that country is not a matter which in any way renders his sentence disproportionate to that imposed on Savvas.

The sentences imposed on Savvas and Postiglione were set having regard to the prior sentences which each was serving. In both cases, the sentences operated, for all practical purposes, to bring the earlier sentences to an end. And putting aside Postiglione's offences against the laws of Italy, his criminal history and his criminality in respect of the conspiracies for which he received the sentence in issue in this appeal may properly be compared with the same matters as they pertain to Savvas. In these circumstances, the proper course, in our view, is to have regard to the total effect of the sentences imposed on them, not merely the period by which their prior sentences were increased.

The aggregate of the sentences imposed on Savvas is 50 years. Putting aside the question of parole, his sentence for the conspiracies to which he and Postiglione were parties operates so that he will spend a total of 30 years and 10 months in prison. Or to put the matter another way, the total time he will spend in prison amounts to a little more than three-fifths of the aggregate of his sentences. Postiglione, on the other hand, was serving a sentence of 12 years and received a further sentence of 18 years. Again leaving aside the possibility of parole, the consequence is that he will spend 24 years and 2 months in prison, or just over four-fifths of the aggregate of his sentences.

So far as the totality principle serves to ensure that an offender is not subjected to "'a crushing sentence' not in keeping with his record and prospects"[13], it may be that, when sentenced by Grove J, Savvas was entitled, in that respect, to somewhat more favourable treatment than Postiglione. Even so, the difference between the effective total sentences - 30 years 10 months in the case of Savvas, 24 years 2 months for Postiglione - and the different proportions that they bear to the aggregate sentences - three-fifths and four-fifths respectively - are, in our view, such as to give rise to a "justifiable sense of grievance". In particular, those differences do not appear to give proper recognition to the much longer period to which Savvas was originally sentenced, his greater criminality in relation to the offences for which he and Postiglione were convicted, the fact that Postiglione pleaded guilty to those offences and, later, provided important assistance to police and prosecuting authorities.

The disparity between Postiglione's sentence and that imposed on Savvas is best illustrated by an indication of what, in our view, is the proper proportion which the actual time which Postiglione is liable to spend in prison in this country should bear to the time which Savvas is liable to serve in accordance with his sentence. Even allowing a greater benefit to Savvas in application of the totality principle, the various factors which favour Postiglione require that his total effective sentence, ie, the actual period which he is liable to spend in prison in respect of the offences for which he was sentenced in this country, should be of the order of two-thirds of the total period which Savvas is liable to serve in consequence of his sentences.

If, as we think should be the case, Postiglione were to be sentenced so that the actual time he is liable to spend in prison in Australia is of the order of two-thirds of the total period which Savvas is liable to serve, it would result in a total period of the order of 20 years rather than 24 years, or a head sentence of not more than 14 years dating from May 1993. That is a significant difference and one which requires the conclusion that the Court of Criminal Appeal erred in not holding that Postiglione's sentence involves a marked disparity giving rise to a justifiable sense of grievance.

Some of the procedural difficulties involved in this case are referable to the fact that Postiglione was sentenced and his application for leave to appeal determined before his co-offender, Savvas, was brought to trial. That is the course usually taken in cases where an accused has agreed to give evidence against a fellow criminal. And there are good reasons why that course should be followed. However, it involves the difficulty, if leave to appeal against sentence is granted and the subsequent appeal dismissed, that a person in Postiglione's position is denied an opportunity to complain of sentence disparity.

Ordinarily, it is of no consequence whether an order is made dismissing an application for leave to appeal or whether leave is granted and the appeal dismissed[14]. However, putting aside applications which are frivolous or vexatious, there is no reason in principle to prevent a person bringing a second application for leave to appeal if an earlier application has been dismissed[15]. An application based on matters agitated on a previous application is properly to be regarded as frivolous or vexatious. But that is not the case where an application is based on a sentencing disparity which has subsequently emerged. That is always a possibility in a case of this kind. That being so, 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.

The appeal should be allowed and, if perfected, the order of the Court of Criminal Appeal granting leave and dismissing the appeal against conviction should be set aside. The matter should be remitted to the Court of Criminal Appeal for it to take such steps as it can to give effect to this decision. In the event that orders have been perfected which make that course impossible, it is for the appellant to take such further steps as he may be advised.

McHUGH J. Mario Postiglione ("the appellant") appeals against an order of the Court of Criminal Appeal of New South Wales ("the Court of Criminal Appeal") which dismissed his appeal against sentences imposed for convictions of conspiring to import cocaine and heroin. He contends that the Court of Criminal Appeal erred in dismissing his appeal because, having regard to the sentences imposed on a co-conspirator, he has a "justifiable sense of grievance" and "justice has not been done"[16]. The principal question in the appeal is whether the parity principle of sentencing has any, and if so what, application in a case where the totality principle of sentencing necessarily requires that co-offenders be treated differently. In my opinion, where the totality principle is relevant in the sentencing process and the application of that principle requires different sentences for each offender, no breach of the parity principle occurs. Because that is the position in this case, I would dismiss the appeal on its merits. However, procedural difficulties associated with the appeal necessitate allowing the appeal and remitting the matter to the Court of Criminal Appeal.

The factual and procedural background

The appellant was born in Italy in 1942 and emigrated to Australia in 1961. Having voluntarily re-acquired his Italian citizenship in 1978, the appellant returned to Italy. In 1980, he was convicted of two offences in Italy. They were described as "conspiracy to traffic in drugs" and "trafficking in drugs, particularly heroin". The Rome Tribunal sentenced him to a term of 12 years imprisonment, which was reduced by two years as a result of a Presidential decree made in December 1981. An appeal to the Court of Appeal of Rome was dismissed in 1983. Because the appellant's further appeal to the Supreme Court in Rome had not been disposed of within the time required under Italian law, he had to be provisionally released from custody in September 1984. The appellant then obtained an Australian passport. Although a court order prohibited him from leaving Italy, he returned to Australia in December 1984. In October 1986, the Supreme Court in Rome dismissed his appeal and ordered that he serve the remaining 5 years, 4 months and 2 days of his sentence. A warrant for the appellant's arrest was issued in Rome in December 1986.

The appellant's criminality continued on his return to Australia. In March 1987, he was knowingly concerned in the importation into Australia of a commercial quantity of heroin. In June 1988 Roden J, sitting in the Supreme Court of New South Wales, sentenced him to life imprisonment. However, in November 1991, the Court of Criminal Appeal granted the appellant's application for leave to appeal against his sentence and upheld his appeal. A sentence of 12 years with a non-parole period of 9 years was substituted for the life term[17].

Not even gaol could stop the criminal activity of the appellant. While serving his sentence at the Long Bay Correctional Centre, the appellant and other persons including George Savvas, a fellow prisoner, twice conspired to import narcotic goods into Australia contrary to s 233B of the Customs Act 1901 (Cth). One conspiracy involved a commercial quantity of cocaine; the other involved a commercial quantity of heroin. The appellant pleaded guilty to both conspiracies. On 7 May 1993, Mathews J, sitting in the Supreme Court of New South Wales, sentenced him to 18 years imprisonment with a non-parole period of 13 years and 10 months for his role in the cocaine conspiracy and to 10 years to be served concurrently for his role in the heroin conspiracy. Both sentences were imposed in accordance with the provisions of Pt 1B of the Crimes Act 1914 (Cth) ("the Act"). Her Honour ordered the sentences to commence from the date of sentence. At the time of sentencing, the appellant had 2 years and 10 months of his existing non-parole period to serve. The new sentences therefore increased his non parole period by 11 years.

The appellant then applied to the Court of Criminal Appeal for leave to appeal against his sentence. Although leave was granted, the Court (Finlay, Abadee JJ and Loveday AJ) dismissed the appeal on 13 December 1993[18].

On 17 June 1994, Grove J, sitting in the Supreme Court of New South Wales, sentenced the appellant's co-offender, Savvas, to a term of 25 years imprisonment with a non-parole period of 18 years for each conspiracy. Each sentence was to commence from the date of sentencing. Like the appellant, at the time of sentencing, Savvas was serving a sentence for a prior offence. He had previously been sentenced to 25 years imprisonment with a non-parole period of 18 years for an offence unrelated to any criminal activity with the appellant. However, in contrast to the appellant, who had been approaching the end of his previous non-parole period at the time of sentencing, Savvas had 12 years and 2 months of his non-parole period to serve. As a result, Savvas's non-parole period was extended by 5 years and 10 months while that of the appellant was extended by 11 years.

Alleging gross disparity between his sentence and that imposed on Savvas, the appellant again sought the leave of the Court of Criminal Appeal to appeal against his sentence[19]. On 23 February 1995, the Court (McInerney, Badgery-Parker and Dowd JJ) again granted leave but dismissed the appeal[20]. It is this decision which forms the basis of the appeal to this Court.

The totality and parity principles of sentencing

The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved[21]. In Kelly v The Queen[22] O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi[23]:

"There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect."

The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged[24]. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences[25].

Recent decisions in the Court of Criminal Appeal[26] have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.

The most recent statement to this effect was made by Hunt CJ at CL in Gordon[27]:

"When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable".

This line of authority is consistent with the recognition of the totality principle found in s 16B of the Act which provides as follows:

"In sentencing a person convicted of a federal offence, a court must have regard to:

(a) any sentence already imposed on the person by the court or another court for any other federal offence or for any State or Territory offence, being a sentence that the person has not served; and

(b) any sentence that the person is liable to serve because of the revocation of a parole order made, or licence granted, under this Part or under a law of a State or Territory."

The totality principle is also reflected in s 19AD of the Act which deals with non-parole periods and sets out considerations to be taken into account and orders to be made where the offender is subject to an existing non-parole period in respect of a federal sentence.

The principle of parity of sentencing between co-offenders is not in terms recognised in the Act but it is a well established principle. In R v Tiddy[28], the Court of Criminal Appeal of South Australia defined the principle as follows:

"Where other things are equal persons concerned in the same crime should receive the same punishment; and where other things are not equal a due discrimination should be made."

A sentencing judge must give effect to the parity principle in cases to which the Act applies[29].

If a judge wrongly fails to give effect to the parity principle, an appellate court will intervene to correct what is an error in sentencing principle. In Lowe v The Queen[30], Gibbs CJ, with whom Wilson J agreed[31], said[32] that an appellate court should intervene where "the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done". Mason J stated[33] that an appellate court is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance. Dawson J[34], with whom Wilson J also agreed[35], was of the view that "[t]he difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice".

The contentions of the parties to the appeal

The appellant claims that, having regard to the sentence imposed on Savvas, the Court of Criminal Appeal erred in finding that the appellant's sentence did not breach the requirement of parity of sentencing between co-offenders. He contends that the Court of Criminal Appeal erred in holding that:

"when the sentences now under discussion are viewed in the light of the well understood legal principle of totality, any sense of grievance which results is seen to be without justification."

The appellant claims that, because things were not equal as between himself and Savvas, a "due discrimination" in his favour should have been made. He contends that there has been a failure to give effect to the parity principle. This failure is said to be evident from a comparison of the effective increases in his non-parole period and that of Savvas. As I have already pointed out, although the nominal sentences imposed were 25 years with a non-parole period of 18 years for Savvas, and 18 years with a non-parole period of 13 years and 10 months for the appellant, the effective increases in their non-parole periods were 5 years and 10 months for Savvas and 11 years for the appellant. Thus, although Mathews J held that the appellant should receive a more lenient sentence than that which should be imposed on Savvas, because of the different custodial positions of the appellant and Savvas as at the dates of sentencing, the appellant's effective sentence is almost twice as long as that of Savvas.

The Crown supports the appellant's allegation of disparity. It concedes that the circumstances "produced such disparity as might engender a legitimate and justifiable sense of grievance on the part of the [appellant]". The Crown also expresses concern that, if this Court does not intervene to redress the allegedly insufficient weight which had been given to the appellant's co-operation with the authorities prior and subsequent to sentencing, others contemplating the provision of similar assistance might be discouraged from doing so.

Regardless of whether the Crown's concession was properly made[36], it is not entitled to automatic recognition or consequence. Courts must impose criminal sentences in accordance with their perception of what the public interest requires. The constitutional arrangements of this country or England do not accord the Crown any monopoly on knowing what the public interest requires. Moreover, as Gleeson CJ pointed out in R v Gallagher[37], special care needs to be taken to avoid the giving of uncritical assent to arguments for leniency which are urged by both the Crown and the accused. The interest of the Crown in obtaining or using information from a prisoner in return for a promise to support a claim for leniency is not necessarily identical with the public interest in ensuring that those who breach the criminal law are given condign punishment.

The sentencing approach of Mathews J

In sentencing the appellant, Mathews J first determined an objective sentence which she then adjusted downwards by reference to subjective factors relating to the appellant and by applying further specific sentencing principles, statutory and otherwise.

In reaching the initial sentencing figure, her Honour expressed grave concern for the appellant's "complete contempt ... for the laws relating to narcotic drugs and the philosophy behind them", his status as an international fugitive and the aggravating feature of the offences being committed while the appellant was in gaol serving a sentence for a similar offence. Mathews J provisionally concluded that the appellant should receive a life sentence.

However, in compliance with s 16A(2) of the Act, her Honour went on to identify a number of subjective ameliorating factors. She referred to the appellant's age, his guilty plea, his prospective deportation to Italy to serve the remainder of his Italian sentence upon his release from custody, and to two other factors to which she gave considerable attention.

The first was that her Honour accepted that the appellant had not been the "prime mover" in the conspiracies. She concluded that it was Savvas who had been "calling the shots" in relation to both conspiracies although she acknowledged that the role of the appellant was "a pivotal one".

The second factor was that Mathews J stressed the assistance that the appellant had rendered to the authorities in relation to these and other offences. She regarded this assistance as the appellant's "primary mitigating feature". Her Honour accepted that, by providing information to the authorities, the appellant had jeopardised his personal safety and would have to serve his sentence in protective custody.

On the basis of these subjective factors, Mathews J held that the appropriate sentence for the appellant was "something less than the equivalent of a life sentence for a person of [the appellant's] age". Her Honour said that the best approach in these circumstances was the imposition of a sentence in relation to the cocaine conspiracy which took into account the total criminality involved in both offences and the imposition of a lesser convenient concurrent sentence in relation to the heroin conspiracy. The learned judge then made a one third deduction from the sentence pursuant to s 16G of the Act in recognition of the fact that the appellant would serve his sentence in a State in which remissions were not applicable. This gave a head sentence of 21 years and, in accordance with s 19AD of the Act, a new non-parole period of 16 years and 10 months was specified. Her Honour then reduced that sentence pursuant to s 21E of the Act because of the appellant's undertaking to provide future assistance to the authorities, including the provision of evidence at the trial of his co-conspirators. Mathews J made a 3 year reduction from both the head sentence and the non-parole period, resulting in a final sentence of 18 years with a non-parole period of 13 years and 10 months. The sentence was imposed from the date of sentencing so as to maintain an appropriate proportion between the head sentence and the new non-parole period.

At the hearing of the appellant's first appeal in the Court of Criminal Appeal, the learned judges who constituted that Court held that Mathews J had erred in thinking that s 21E entitled her to reduce the appellant's sentence because of his undertaking of future co-operation[38]. The learned judges were of the opinion that her Honour had erroneously interpreted s 21E. They thought that the matter was more properly dealt with as a "relevant" matter under s 16A(2)[39]. However, their Honours did not regard the error as vitiating the sentence imposed by her Honour[40].

The sentencing approach of Grove J

In sentencing Savvas, Grove J did not accept the view of Mathews J as to the dominant role of Savvas in the conspiracies. His Honour found on the evidence before him that there was "general parity of criminality" between the appellant and Savvas. Grove J said that:

"[O]n application of the necessary standard of proof I find that Savvas and [the appellant] were both principals with different but generally equivalent culpability in respect of both matters."

Grove J acknowledged that the proposed extension to Savvas's non-parole period was less than that imposed on the appellant by Mathews J. However, his Honour said:

"Nevertheless I do not think I should impose a disproportionately high sentence on you to assuage any grievance which may - I repeat, may - be engendered in [the appellant]. I express no opinion on whether, if he does come to harbour such a grievance, it would be justifiable."

The application of the totality and parity principles to this case

In my opinion, the disparity between the sentences imposed on the appellant and Savvas is justifiable because of the different custodial situations of the appellant and Savvas as at the dates of sentencing and because of the application of the totality principle.

The appellant and Savvas came before their respective sentencing judges with different custodial positions. Only the second or "due discrimination" limb of the parity principle could apply to them. Different histories make it impossible for co-offenders to receive equal sentences, as Doyle CJ recently pointed out in the Court of Criminal Appeal of South Australia[41]:

"I do not understand the principles stated by the High Court in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 to require a reduction in a sentence when the disparity between it and a sentence imposed upon a co-offender is justified by significant differences in their antecedents. As I understand the principle it applies when, although the higher sentence cannot on its face be said to be erroneous or excessive, there is no identifiable factor in the sentencing process which objectively assessed supports the different approach. If there are factors which support different treatment then, to use expressions in the authorities, there can be no justifiable sense of grievance on the part of the offender who receives the heavier sentence, no appearance of unfairness to the community."

The application of the totality principle to Savvas also meant that his non-parole period would differ significantly from that of the appellant. Where the totality principle has application to persons with different histories or culpability, due discrimination may require a large nominal disparity in their respective sentences or non-parole periods. That is the case here. If, for example, the sentence imposed on Savvas had not commenced until 23 August 2006 when his then current non-parole period expired, there would have been no disparity between the sentences of the two men. But if Savvas's current and new sentences had been structured in that way, their total effect would have imposed a crushing burden on Savvas which Grove J thought could not be justified having regard to Savvas's total criminality.

The difference in the effective increases in the non-parole periods was therefore directly attributable to the correct application of the totality principle to two quite different sets of circumstances. Each sentence, viewed in isolation from the other, was an appropriate sentence. Each sentence had the objective of imposing an aggregate period of imprisonment that would properly reflect the totality of the criminal conduct of the offender after taking into account not only the criminal record of the offender but also his current sentence. It is true that Savvas effectively received a lighter sentence for the conspiracies than the appellant. But given the period of his current sentence that he still had to serve, his aggregate sentence simply reflected the just and appropriate measure of his total criminality. Similarly, given the period of the appellant's current sentence that he still had to serve, his aggregate sentence reflected the just and appropriate measure of his total criminality[42]. Each prisoner therefore received parity of treatment although their different histories produced significantly different results.

To some extent the difference in the effective increases in the two non-parole periods is also the product of each judge taking a different view on the evidence before them as to the extent of Savvas's role in the conspiracies. If Grove J had accepted that Savvas was the chief conspirator, he would almost certainly have given Savvas a higher sentence and longer non-parole period and thereby reduced the disparity in the non-parole periods of the two men. On the material before this Court, it is impossible to say whether Grove J or Mathews J reached the correct conclusion concerning Savvas's guilt.

Thus, the difference in the sentences between the appellant and Savvas is explicable by reference to identifiable factors in the sentencing process which objectively support the different approaches in the two cases. That being so, no error necessarily occurred because the appellant's non-parole period was longer than that of Savvas.

Parity between sentences imposed on co-offenders is an important sentencing goal. But a disparity between sentences will not give rise to a "justifiable sense of grievance"[43] where the disparity can be explained on the basis of different antecedents and/or an application of the totality principle. It follows that the Court of Criminal Appeal was correct in holding that there had been no breach of the parity principle.

Discount for co-operation with the authorities

I agree with the conclusion of Gummow J that the discount given for the appellant's co-operation with the authorities does not constitute such a gross violation of sentencing principles as to warrant the intervention of this Court.

Procedural difficulties associated with the appeal

In their judgment, Dawson and Gaudron JJ refer to two procedural difficulties which arise in the appeal. First, there is an inconsistency between the orders proposed in the reasons of Badgery-Parker J in the Court of Criminal Appeal and the formal record of those orders. Although Badgery-Parker J purported to grant leave to appeal and to dismiss an appeal against sentence, the formal order indicates a grant of leave to appeal and the dismissal of an appeal against conviction. Second, the competency of the Court of Criminal Appeal to hear the second appeal is called into question by uncertainty as to whether the first order of the Court of Criminal Appeal was perfected. If the first order was perfected, the appeal against sentence had already been conclusively determined on its merits by the first appeal. In that event, the Criminal Appeal Act 1912 (NSW) does not permit the Court of Criminal Appeal to conduct a further appeal[44].

As I have reached the same conclusion on the merits of the appeal as Gummow J, I propose to adopt his approach to the resolution of these procedural uncertainties. Although I am of the view that the appeal should be dismissed on its merits, the procedural difficulties require that the appeal should be allowed and the matter remitted to the Court of Criminal Appeal so that that Court can take such steps as are available to it to give effect to these reasons for judgment.

GUMMOW J. The appellant appeals by special leave against the rejection by the New South Wales Court of Criminal Appeal of his appeal against sentence. He seeks an order that he be re-sentenced.

On 12 March 1993, the appellant, Mario Postiglione, pleaded guilty before a magistrate to two counts of conspiring, between 1 January and 11 September 1991 and 1 January and 3 May 1991 respectively, to import narcotic goods into Australia contrary to s 233B of the Customs Act 1901 (Cth). In each of the two conspiracies, the appellant's co-conspirators included George Savvas. The magistrate committed the appellant to the Supreme Court of New South Wales to be dealt with pursuant to s 51A of the Justices Act 1902 (NSW).

The appellant was sentenced by Mathews J on 7 May 1993 in the Supreme Court at Wollongong. As both of the offences with which he had been charged were federal offences, the appellant was sentenced in accordance with the provisions of Pt 1B (ss 16-22A) of the Crimes Act 1914 (Cth) ("the Crimes Act").

At the time of sentencing, the appellant had undertaken to co-operate with the authorities by giving evidence against his co-conspirators. The appellant complied with that undertaking and eventually gave evidence at the trial of his co-offenders, including Savvas. In accordance with s 21E of the Crimes Act, Mathews J specified that on account of the appellant's co-operation with law enforcement agencies it was appropriate to reduce both the head sentence and the non-parole period by 3 years[45]. On the first count, Mathews J imposed a sentence of 18 years with a non-parole period of 13 years, 10 months from 7 May 1993, the date on which the appellant was sentenced. The sentence in relation to the second count was imprisonment for 10 years, to be served entirely concurrently with the other sentence.

Mathews J took into account the appellant's custodial history in determining the appropriate sentence. The appellant was born in Rome in 1942, came to Australia in 1961, and returned to Italy in 1979 after re-acquiring Italian citizenship. In December 1980, the appellant was sentenced in Italy to 12 years imprisonment for drug trafficking and conspiracy to traffic in drugs. After an appeal had been dismissed on 5 March 1983, the appellant lodged a further appeal. Because the matter was not disposed of within a certain period, as required by Italian law, the appellant was provisionally released on 29 September 1984. In breach of a requirement that he remain in Italy, the appellant obtained an Australian passport on 19 November 1984 and arrived in Australia on 15 December 1984. On 23 October 1986, the Italian court in Rome rejected his appeal[46]. The appellant is now required to serve a further 5 years, 4 months, 2 days in Italy and is the subject of a warrant for arrest issued on 12 December 1986 by the General Public Prosecutor's Office of Rome. Mathews J proceeded on the assumption that, when released on parole, the appellant would be liable to be deported to Italy to serve the balance of his Italian sentence.

At the time he was sentenced by Mathews J, the appellant was already serving a term of imprisonment in New South Wales. This was consequent upon his conviction in 1988[47] on a single count in an indictment charging him with being knowingly concerned in the importation into Australia of a commercial quantity of heroin. The appellant pleaded guilty and was sentenced by Roden J. Savvas was not implicated in those events. Roden J sentenced the appellant to life imprisonment. On 25 November 1991, the New South Wales Court of Criminal Appeal (Handley JA, Grove and Newman JJ) allowed an appeal[48] and reduced the life sentence to one of 12 years with a non-parole period of 9 years. The appellant was due for release on parole on 8 March 1996 in respect of that sentence. Therefore, at the time of his sentencing by Mathews J on 7 May 1993, the appellant had 2 years, 10 months to serve in respect of the non-parole period fixed for the earlier sentence. The result of the sentence imposed by Mathews J was to add 11 years to the appellant's non-parole period and 12 years, 2 months to the head sentence.

On 17 June 1994, Savvas was sentenced in the Supreme Court of New South Wales (Grove J) in respect of the conspiracies to which the appellant had been a party. At the time of sentence, Savvas was serving an earlier sentence of 25 years imposed by the Supreme Court (Hunt J), with a non-parole period of 18 years. The convictions were for conspiracy to import heroin and conspiracy to supply heroin, the first being a federal and the second a State offence[49]. The appellant was not involved in either of these offences. Savvas still had 12 years, 2 months of that sentence to serve before he would be eligible to be released on parole. Grove J imposed a new sentence of 25 years in respect of each count, with a non-parole period of 18 years to commence on the date of sentence. Savvas' sentences and non-parole periods were to be served concurrently. The effect of that sentence was to extend by 5 years, 10 months the term which Savvas would serve in prison before being eligible for release on parole. As I have outlined above, this compares with an effective increase in the non-parole period of 11 years for the appellant.

It is the apparent disparity between the effective increase in the non-parole periods in the sentences of the appellant and Savvas imposed by Mathews J and Grove J respectively that gives rise to the present appeal. The appellant complains that he has a "legitimate sense of grievance" as a result of the sentence imposed on his co-offender, Savvas. He submits that, even if it is not appropriate to compare the differences in the amounts by which their respective non-parole periods were increased, "the totality of criminality of the co-offender Savvas (looking at the two offences in combination) is manifestly much greater than that of the appellant and yet their respective total Australian sentences are" non-parole periods of 23 years, 10 months for Savvas and 20 years for the appellant. It is therefore said that the Court of Criminal Appeal erred in its application of the principles of totality and parity.

The Crown adheres in this Court to a concession made in the Court of Criminal Appeal that there is a disparity between the sentences of Savvas and the appellant sufficient to give rise to a "legitimate and justifiable sense of grievance" on the appellant's part. The Crown also reiterated its concern that the discount allowed by Mathews J for the appellant's co-operation with the authorities was inadequate in the circumstances. The Crown "concedes" that it is open to the Court "to intervene in the interests of the administration of justice generally and in this particular case". However, particular caution is required of a court in such a situation[50].

In considering the question of disparity between the sentences of the appellant and Savvas, it is appropriate to consider the findings of the sentencing judges as to the relative culpability of the two offenders. Mathews J considered the respective roles of the appellant and Savvas in the conspiracies when determining the appropriate sentence to impose on the appellant. Her Honour stated that:

"[The appellant], although deeply involved in each of these conspiracies, was not the prime mover. It is clearly Savvas who was calling the shots in relation to both of them. Savvas also had the Customs contacts which were essential for the successful implementation of the schemes. A diagrammatic chart depicting this conspiracy in pyramid form would clearly show Savvas at its pinnacle.

The [appellant], however, would be not far below. His role was a pivotal one."

In sentencing Savvas, Grove J dealt with that issue as follows:

"I have already mentioned the Crown assertion of Savvas' principal role. It is to be compared or contrasted with that of [the appellant] ... I have considerable suspicion which I believe to be well founded that the Crown contention is correct, however on application of the necessary standard of proof I find that Savvas and [the appellant] were both principals with different but generally equivalent culpability in respect of both matters."

Later in his judgment, Grove J said:

"I do not overlook that the extension of non parole period amounts to about six years, whereas [the appellant] - whose merit on balance I consider exceeds yours - was extended by eleven years. Nevertheless I do not think I should impose a disproportionately high sentence on you to assuage any grievance which may - I repeat, may - be engendered in [the appellant]. I express no opinion on whether, if he does come to harbour such a grievance, it would be justifiable."

Following his sentencing on 7 May 1993, the appellant appealed to the Court of Criminal Appeal (Finlay and Abadee JJ, Loveday AJ) against sentences imposed by Mathews J. Judgment was delivered on 13 December 1993. As the appeal was against sentence, leave was required by s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). Leave to appeal was granted but the appeal was dismissed. However, as Dawson and Gaudron JJ explain in their reasons for judgment, it is not clear whether the order granting leave but dismissing the appeal was perfected. Abadee J, with whom Finlay J and Loveday AJ agreed, concluded that the sentence imposed was appropriate in the circumstances. This decision was given before Savvas had been sentenced by Grove J. The situation which has given rise to the appellant's complaint of disparity may have been avoided, or the cause of complaint diminished, if the Court of Criminal Appeal had not proceeded to dispose entirely of the matter forthwith and instead had stood over, as part heard, the application for leave to appeal against sentence until Savvas had been sentenced and any application by Savvas for leave to appeal in respect of that sentence also was before the Court.

In the event, after Savvas had been sentenced by Grove J, the appellant again sought leave to appeal to the Court of Criminal Appeal (McInerney, Badgery-Parker and Dowd JJ) against the sentence imposed by Mathews J. Judgment was delivered on 23 February 1995. The orders proposed by Badgery-Parker J, with the concurrence of McInerney J and Dowd J, were that leave to appeal against sentence should be granted but that the appeal be dismissed. Special leave was granted to appeal to this Court against "the whole of the judgment and order of the Court of Criminal Appeal New South Wales given and made on the 23rd day February, 1995". However, the Notification of Court's Determination of Application ("the Notice"), which, as Dawson and Gaudron JJ explain, apparently served as the formal order of the Court of Criminal Appeal, indicates that leave to appeal was granted and the appeal against conviction, rather than sentence, was dismissed.

Two difficulties arise. As I noted earlier, it is unclear whether the order in the first appeal, dated 13 December 1993, was perfected. Further, the Notice in respect of the second proceeding does not implement the decision of the Court given on 23 February 1995. If the Notice did serve to perfect the order proposed on 23 February 1995, it may be amenable to correction under the slip rule[51]. But the materials before this Court do not suggest that any such step had been taken. The matter now being before this Court, the better course will be to allow the appeal, and to remit the matter to the Court of Criminal Appeal for further consideration and for determination in accordance with the decision of this Court.

I turn to consider the substantive merits. I do so on the footing that it is the first appellate consideration of the application to the appellant of parity principles. Mathews J compared the roles of the appellant and Savvas in the conspiracies but could not have considered Savvas' sentence, nor could the Court of Criminal Appeal on the first appeal.

Brennan J pointed out in Lowe v The Queen[52] that to facilitate the comparison of conduct and antecedents of two co-offenders it is desirable that, where practicable, co-offenders be sentenced by the same judge at the same time. However, it is important for this appeal to emphasise that, whilst Mathews J and Grove J sentenced the appellant and Savvas respectively upon conviction for conspiracies to which both were parties, each of them at the time of conviction was serving in New South Wales a sentence (imposed by Hunt J upon Savvas and by Roden J upon the appellant and reduced on appeal) for offences with which the other had no connection. Further, at the time Mathews J sentenced the appellant, there were still on foot appellate processes in respect of the sentence imposed upon Savvas by Hunt J. Those processes were not finally resolved until Savvas' appeal to this Court failed on 1 June 1995[53]. Accordingly, this appeal does more than illustrate the problem that can arise in applying the parity principle to co-offenders when they are sentenced by different judges taking different views as to the relevant culpability of the two offenders in respect of those offences.

In imposing a sentence on the appellant, Mathews J took into account the relative roles of the two offenders in the conspiracy and concluded that Savvas was "calling the shots". By contrast, in sentencing Savvas, Grove J considered that, in relation to their respective roles in the conspiracies, Savvas and the appellant "were both principals with different but generally equivalent culpability". The appellant accepted that this finding was more favourable to Savvas than that made by Mathews J. As Grove J pointed out, that result may have related to the standard of proof operating in each case. It was only in relation to their overall merits on sentence that Grove J considered the appellant's merit to exceed that of Savvas.

It follows that, if the decision of Grove J had been less favourable to Savvas in relation to his role in the conspiracy, then, in considering his total criminality, a higher penalty may have been appropriate. Seen in that way it is apparent that any sense of grievance on the part of the appellant stems from the fact that his co-offender received a lesser sentence than he otherwise might have if the view of their relative culpability had been that adopted by the appellant's own sentencing judge.

The question for this Court is whether there was any error made by the Court of Criminal Appeal in its consideration of the parity principle as applied to the sentences of the appellant and Savvas on the basis of the findings made by Mathews J as to, among other things, their respective degrees of criminality.

In this Court, the appellant made submissions as to the relationship between the principles of totality of sentence and parity of sentence. The appellant suggested that the principle of parity should be applied before totality. The Crown initially suggested that totality should be addressed before parity but eventually conceded that a rigid formulation was undesirable. That concession was rightly made. If the parity principle is applied last as a strict rule, the result could be a sentence in excess of what is justified taking into account the totality of the accused's criminality. Thus Grove J correctly declined to impose a higher sentence than he would otherwise have imposed on Savvas if his Honour had been seeking to achieve a proper measure of discrimination between the sentences of Savvas and the appellant.

The totality principle receives recognition in the Crimes Act in relation to the passing of sentence generally (s 16B) and the fixing of non-parole periods (s 19AD). Section 16B provides:

"In sentencing a person convicted of a federal offence, a court must have regard to:

(a) any sentence already imposed on the person by the court or another court for any other federal offence or for any State or Territory offence, being a sentence that the person has not served; and

(b) any sentence that the person is liable to serve because of the revocation of a parole order made, or licence granted, under this Part or under a law of a State or Territory."

Section 19AD applies where a non-parole period has been fixed in respect of a federal sentence and while the offender is serving the existing non-parole period a court imposes a further federal sentence on the person (sub-s (1)). Where the section applies, the court must, in fixing a non-parole period, consider the existing non-parole period, the nature and circumstances of the offence concerned and the antecedents of the person (sub-s (2)).

There is no reflection of the parity principle in the Crimes Act. Both the appellant and the Crown submitted that the applicable principles in relation to disparity of sentence are as set out in Lowe v The Queen[54]. In that case both Lowe and Smith were charged with robbery while armed with an offensive weapon. Smith had kept watch while Lowe carried out the robbery. At the time of the offence neither of the men had a criminal record. Both offenders pleaded guilty. Although Lowe and Smith were jointly indicted, they were sentenced separately. Lowe was sentenced to imprisonment for 6 years with a non-parole period of 2 years. Subsequently, Smith was sentenced by a different judge who ordered that he be admitted to probation for 3 years and that he perform 200 hours community service. Lowe appealed to the Queensland Court of Criminal Appeal. The Court varied the order by recommending that Lowe be released on parole after 1 year. Lowe then applied for special leave to appeal to the High Court. By majority, the application for special leave to appeal was refused[55].

Lowe determined that disparity in sentencing of co-offenders may call for intervention by a Court of Criminal Appeal and that the court may intervene even in cases where the challenged sentence, standing alone, would be regarded as appropriate. Different views were expressed by members of this Court as to the rationale for intervention by Courts of Criminal Appeal in these cases. Gibbs CJ expressed his views as follows[56]:

"It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done."

Mason J stated the rationale in similar terms[57]:

"The authorities do not speak with one voice on the question whether marked disparity in sentences imposed on co-offenders whose circumstances are comparable is itself a ground for reducing the more severe sentence or whether such marked disparity is merely indicative of the presence of an undisclosed error in the process of sentencing. As a matter of general principle it is important that this Court should declare unequivocally that marked disparity is itself the ground."

Mason J also stated that because it is preferable to err on the side of leniency, it is permissible in a case of disparity to reduce the more severe penalty, even where that sentence is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate[58].

Brennan J[59] repeated what he had said in Lovelock v The Queen[60]:

"Where offenders whose circumstances are comparable receive disparate sentences, or where offenders whose circumstances are disparate receive comparable sentences, that circumstance is not sufficient by itself to warrant interference by an appellate court with the sentence imposed on any of the offenders. The court does not interfere with a sentence imposed on one offender merely because 'a disparity has been created by another sentence which was far too lenient, and even though, as a consequence, the appellant may be left with a sense of injustice or grievance' (per Walters J in O'Malley v French[61]; and see R v Steinberg[62]). But if there be differentiating circumstances which favour the case of an appellant from the case of another offender who received a comparable sentence in respect of the same offence, the lack of disparity between the sentences bespeaks an error of some kind."

The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done.

In R v Taudevin[63], Callaway JA said, in a passage with which I agree:

"The important words are 'manifestly', 'justifiable' and 'objective'. There is much to be said for the view that all three requirements are variations on the same theme, ie that only a manifest discrepancy in the sense of a difference that is clearly excessive will satisfy the other two requirements. However that may be, it is certainly true that a sense of grievance is not justifiable unless it would be shared by an objective observer.

That proposition may be found in Lowe's case in the judgment of Gibbs CJ ...[64], where his Honour said that the disparity must be 'such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done' ... Mason J[65] spoke of the disparity as engendering a justifiable sense of grievance 'and' an appearance of injustice to the objective bystander. It is not to be thought that Dawson J intended a different test by using the word 'or' ... [H]is Honour[66] was using it, as I have done, in its epexegetical, not its disjunctive, sense. Wilson J agreed with both the other members of the majority."

Regardless of the precise formulation of the principle for which Lowe is authority and the rationale for that principle, Lowe does not support the appellant in the way contended. The appellant bases his case for disparity on a comparison between the amounts by which the respective non-parole periods of Savvas and the appellant were increased following sentence on the federal charges of conspiracy. Those non-parole periods depended respectively on the non-parole periods that each offender was already serving for previous offences with which the other offender was not involved. In other words, the appellant submits that the court should apply the parity principle to the total custodial sentence of the two offenders. That total custodial sentence is the product not only of convictions upon conspiracy counts, applying to both offenders, but also convictions of each for prior offences in which the other was not involved. Like is not being compared with like.

The application of Lowe in a situation where co-offenders with significant criminal histories committed an offence while serving time in custody was considered by the South Australian Court of Criminal Appeal in R v Cox[67]. The appellant and another prisoner who were handcuffed together were charged with escaping from custody. The appellant pleaded guilty and was sentenced to 21/2 years imprisonment cumulative on the sentence he was serving which was 5 years, 22 days with a non-parole period of 3 years, 21 days. The non-parole period was extended by 2 years. His co-offender was sentenced by a different judge to 2 years imprisonment for the escape and to 3 months imprisonment for assault with intent to rob. A non-parole period of 16 months was fixed. This sentence attracted remissions. The appellant complained of the disparity between his sentence and that imposed upon his co-offender. In giving the judgment of the South Australian Court of Criminal Appeal, Doyle CJ said[68]:

"In my opinion no criticism can be made of the sentence imposed upon [the appellant's co-offender]. There is a marked disparity between that sentence and the sentence imposed upon the appellant, but if that disparity is justified by the appellant's record, it must be permitted to stand. Otherwise, a hardened offender sentenced with a new offender would not receive an appropriate sentence. I do not understand the principles stated by the High Court in Lowe ... to require a reduction in a sentence when the disparity between it and a sentence imposed upon a co-offender is justified by significant differences in their antecedents. As I understand the principle it applies when, although the higher sentence cannot on its face be said to be erroneous or excessive, there is no identifiable factor in the sentencing process which objectively assessed supports the different approach. If there are factors which support different treatment then, to use expressions in the authorities, there can be no justifiable sense of grievance on the part of the offender who receives the heavier sentence, no appearance of unfairness to the community."

Doyle CJ did not make those comments in answer to a submission that the appropriate comparison for the purposes of the parity principle is between the effective increase in the custodial sentences of the two offenders. However, his Honour's comments demonstrate why significant differences in the antecedents of co-offenders result in the failure of such a submission.

The disparity principle in Lowe only applies to co-offenders[69]. In its submissions the Crown placed reliance on the following passage in R v Tiddy[70]:

"Where other things are equal persons concerned in the same crime should receive the same punishment; and where other things are not equal a due discrimination should be made."

In particular, the Crown emphasised the reference in this passage to "punishment" and the fact that in the present case the extra period of imprisonment imposed on the appellant exceeded that of Savvas and thus resulted in greater punishment. This, however, ignores the consideration that part of the punishment giving rise to the appellant's extra period of imprisonment was for an offence in which Savvas was not concerned, namely the conviction upon which he was sentenced by Roden J.

It is also clear that the principle only applies where a genuine comparison can be made between the two sentences. In making that point Gibbs CJ stated[71]:

"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."

In this case, if the comparison is between the increase in the non-parole periods of the two offenders then that will, at least in part, involve comparison between sentences in which Savvas and the appellant were not co-offenders. That is clear from the following comments of Mathews J when imposing on the appellant the sentence of 18 years with a non-parole period of 13 years, 10 months:

"I must stress however that the first two years and ten months of that sentence is attributable entirely to the sentence presently being served by the [appellant]. I have also taken into account the fact that there is a further sentence in Italy of over five years which the [appellant] will probably have to serve upon his release from prison in Australia."

In the Court of Criminal Appeal, McInerney J and Dowd J agreed with the judgment of Badgery-Parker J. His Honour stated that the foundation of the parity principle is "the existence of disparity when other things are equal, or, where other things are not equal, a relativity between sentences which does not properly reflect the extent of the inequality". He concluded:

"[W]hen the sentences now under discussion are viewed in the light of the well understood legal principle of totality, any sense of grievance which results is seen to be without justification. The outcome does not result from any lack of even handedness in the sentencing for the instant case, but only from the prior custodial situation of each man respectively. The asserted disparity is apparent but does not exist in fact".

A disparity was bound to appear in some measure of the severity of the particular sentences because of the different custodial histories of the appellant and Savvas. However, the difference between the sentences of the appellant and Savvas did not require the intervention of the Court of Criminal Appeal on the basis of the principle outlined in Lowe.

There remains one further issue. It has been considered three times, once by Mathews J and twice by the Court of Criminal Appeal. Both the appellant and the Crown submitted that the discount of 3 years allowed by the sentencing judge for the appellant's co-operation with the authorities was unduly modest and that the consequence might be to discourage other offenders from adopting a similar course. In various decisions, this Court has emphasised both the discretionary nature of sentencing and its refusal to interfere with the decision of a Court of Criminal Appeal unless there be disclosed an error of principle affecting the sentence or unless it was manifestly excessive[72]. While the discount may not have been generous to the appellant, it cannot be said that the sentence imposed on the appellant represents such a gross violation of sentencing principles as to warrant the intervention of this Court.

It follows that, if the proceeding in the Court of Criminal Appeal before McInerney, Badgery-Parker and Dowd JJ was competent, the appeal against sentence was correctly dismissed. However, what appears to have been the perfected order reflects, on its face, an error in reducing to formality the orders proposed by Badgery-Parker J. Further, it may be that the status of the first appeal was such as to render the later proceeding incompetent[73].

What then is to be the outcome in this Court? I agree with Dawson and Gaudron JJ that the appeal should be allowed and the matter remitted to the Court of Criminal Appeal for it to take such steps as are open to it to give effect to the decision of this Court. However, as I differ from the majority with respect to the substantive merits, different consequences would follow on that remitter to the Court of Criminal Appeal.

The result on that remitter, consistently with my conclusions, would be as follows. If it transpired that the orders on the first appeal to the Court of Criminal Appeal were perfected so that the second proceeding was incompetent, the result first reached there would stand. Nevertheless, that outcome would accord with that which would be reached on the merits. If the orders on the first appeal were not perfected, the Court of Criminal Appeal should proceed to achieve the effective dismissal of the appeal to that Court against sentence.

I add my agreement to what is said by Dawson and Gaudron JJ with respect to the reliance upon Pantorno v The Queen[74].

KIRBY J. This appeal from the Court of Criminal Appeal of New South Wales concerns the sentence imposed on a person convicted of a succession of federal offences within the meaning of the Crimes Act 1914 (Cth) ("the Act")[75].

The appellant says that the disparity between the way in which he and a co-offender were sentenced is such as to give rise to "a justifiable sense of grievance" on his part and "the appearance that justice has not been done"[76]. His complaint was dismissed by the Court of Criminal Appeal, in the second of two applications to that Court in which the sentence imposed by Mathews J, the sentencing judge, was confirmed[77]. By special leave, an appeal has now come to this Court.

Successive convictions and sentences of the appellant

It may be accepted that Mr Mario Postiglione (the appellant) feels a grievance about the way in which he has been punished following conviction of his latest offences when compared to the punishment imposed on a co-offender, Mr George Savvas[78]. However, appellate intervention upon the ground of unjust disparity in sentences, is reserved to cases where the grievance is "justifiable"[79]. In order to decide whether this is so, it is necessary to start with an understanding of the offences for which the complaining prisoner, and the suggested comparable prisoner, were sentenced and then to have regard to their respective criminality and to their respective criminal records, all such considerations being relevant to the exercise of the sentencing discretion.

The appellant was sentenced by Mathews J in the Supreme Court of New South Wales on 7 May 1993 following his conviction of two offences of conspiring to import narcotic goods into Australia contrary to s 233B of the Customs Act 1901 (Cth). Mr Savvas was alleged to be a co-conspirator, involved in each offence. At the time of the offences, both the appellant and Mr Savvas were in custody in the Long Bay Prison in Sydney serving extended sentences of imprisonment for previous serious drug offences to which it will be necessary to refer. The conspiracies were alleged to have taken place in prison.

The first count of the indictment charging the appellant related to an alleged conspiracy to import a commercial quantity of cocaine from countries in South America. The second count related to an alleged conspiracy to import a commercial quantity of heroin from Thailand. Friends and associates of both the appellant and Mr Savvas were introduced to the conspiracies. The success of the plans depended upon contacts which Mr Savvas claimed he had within the Customs Service at Sydney International Airport. What neither the appellant nor Mr Savvas knew was that another prisoner, who was allegedly brought into the heroin conspiracy, reported it to the authorities. This resulted in the Federal Police commencing surveillance of the conspirators, including the appellant and Mr Savvas, in prison.

For various reasons, those conspirators who were not in custody became suspicious. Following the standing down of certain customs officers, the suspicions of Mr Savvas were also aroused. In the end, the conspiracies did not result in the importation of any cocaine or heroin into Australia. But this was largely the result of the penetration by the authorities of what otherwise would have been well planned, detailed and significant arrangements for the importation into Australia of large quantities of prohibited imports.

The maximum penalty for the offences of which the appellant and, eventually, Mr Savvas were convicted was life imprisonment[80]. Mr Savvas (and certain others of the conspirators) pleaded not guilty, stood their trial and were convicted by a jury and sentenced by Grove J in the Supreme Court of New South Wales. However, the appellant took the opportunity of an earlier appearance before the magistrate conducting the committal proceedings to plead guilty. He adhered to that plea when he came for sentence before Mathews J.

Because the appellant had been convicted of federal offences, his case had to be determined in accordance with Part 1B of the Act which governs "Sentencing, Imprisonment and Release of Federal Offenders". Mathews J outlined carefully and accurately the facts relevant to the two offences to which the appellant had pleaded. Correctly, her Honour noted their objective seriousness, aggravated by the fact that the conspiracies were formulated whilst the appellant was already serving sentences of imprisonment, also for serious federal offences, likewise involving the planned importation into Australia of prohibited drugs. Because Mr Savvas had pleaded not guilty and was awaiting trial, Mathews J did not have the responsibility of sentencing the co-offenders together. Nor did she have, as a consideration relevant to the sentence to be imposed on the appellant, knowledge of the sentence which would later be imposed on Mr Savvas. She therefore proceeded, in the orthodox way, to sentence the appellant taking into account the facts relevant to the offences to which he had pleaded guilty and the facts relevant to his past record and life.

The appellant was born in Italy in 1942. He was thus 51 years of age when sentenced by Mathews J. He suffered various deprivations in post-War Italy but came to Australia in 1961 and married here. In 1978 he voluntarily re-acquired his Italian citizenship and returned to Italy with his wife. However, within a year he was charged with offences described as "conspiracy to traffic in drugs" and "trafficking in drugs, particularly heroin". He was convicted of these offences in the Rome Tribunal in December 1981[81]. The detail of what then happened is conveniently recorded in a report of earlier proceedings in the Court of Criminal Appeal of New South Wales concerning the appellant[82]. The appellant was sentenced to 12 years imprisonment, a fine and other civil burdens backdated to his entry into custody. He appealed to the Court of Appeal in Rome. In March 1983, that Court confirmed the initial sentence and prohibited the appellant from travelling abroad. Meanwhile, apparently under a Presidential decree (presumably in the nature of a remission) the appellant's prison sentence was reduced by two years. The appellant lodged a further appeal to the equivalent of the Italian Supreme Court. Because that appeal was not disposed of in accordance with a time requirement provided by Italian law, the appellant was granted provisional release from prison in September 1984. Such release was pending the completion of the Supreme Court hearing. His Italian passport was confiscated. However, contrary to the orders of the Italian court, he acquired an Australian passport and returned to this country in December 1984. In October 1986, the Italian Supreme Court rejected the appellant's appeal. He was therefore required by Italian law to serve the remainder of his Italian sentence, viz five years four months and two days. But by then he was in Australia.

It did not take long before the appellant offended again. In March 1987 he was charged on a single count of being knowingly concerned in the importation of a commercial quantity of heroin (5.56 kilograms). Police intercepted the drugs before they were distributed in Australia. Roden J accepted the appellant's plea of guilty. He was convicted and sentenced to life imprisonment. Roden J imposed this sentence on the footing that the crime was serious and that the appellant was continuing a significant involvement in attempted drug trafficking and was, at the time of the offence, an international fugitive. The Court of Criminal Appeal reduced this sentence[83]. A consideration relevant to its decision was the conclusion that, as against a co-offender, the appellant would have a "justifiable sense of grievance"[84] arising out of the disparity between the sentences. The appellant thus secured for the first time the benefit of the application of Lowe which he now seeks to invoke once again.

It was whilst the appellant was serving the sentence imposed by the Court of Criminal Appeal in the foregoing proceedings that the conspiracies took place which brought him before Mathews J. For the life imprisonment previously ordered, the Court of Criminal Appeal had substituted a sentence of imprisonment for 12 years, with a non-parole period of nine years. The latter was to expire on 8 March 1996. Therefore, at the time the appellant appeared for sentence before Mathews J, he had two years and 10 months imprisonment of that sentence still to serve.

Mathews J considered a number of factors relevant to the appellant personally. Some of them told against him, including:

(a) That the offences had taken place when he was serving a sentence of imprisonment for a serious offence of a similar character.

(b) That he was a fugitive from justice in Italy and was likely to be deported there at the conclusion of his custody in Australia, to serve the balance of the sentence still outstanding in that country.

(c) That the offence to which he had pleaded was objectively serious, involving, in particular, a very large quantity of cocaine with a large street value.

However, as against these considerations, her Honour took into account, as s 16A(2) of the Act and general sentencing principles required[85], a number of matters ameliorating the appellant's case. These included:

(a) The appellant's age and plea of guilty.

(b) His promise of assistance to the authorities.

(c) His consequential transfer to the "special purposes" facility for protected prisoners which would deny him many privileges otherwise enjoyed by prisoners.

(d) His signed undertaking to give evidence against the co-offenders and police reports of his genuine cooperation with them.

(e) A conclusion that he was not the prime mover in the conspiracy. The prime mover was considered to be Mr Savvas, although the rank of the appellant was found to be not far below Mr Savvas in the organisation chart of the conspirators.

Mathews J then considered whether the maximum available sentence of life imprisonment was appropriate. She concluded that it was not. She proceeded to impose a sentence of 18 years imprisonment with a non-parole period of 13 years and 10 months in respect of the first count (the cocaine conspiracy). In respect of the second count (the heroin conspiracy) she imposed a sentence of 10 years imprisonment. The sentences were to be served concurrently with the same non-parole period. The sentences were to commence on the date on which they were pronounced, 7 May 1993. As stated the appellant then had two years and ten months remaining of his existing non-parole period. Thus the appellant, in effect, gained a benefit from the overlap of the new sentence and his existing sentence. In practical terms, the result of the sentence imposed by Mathews J was to add 11 years imprisonment to the applicant's aggregated non-parole periods. In accordance with the Act[86], Mathews J specified the extent of the reduction which she had made for the appellant's cooperation with authorities, and his promise to give evidence against the co-conspirators. She indicated that this was three years in respect both of the head sentence and of the non-parole period.

The appellant sought leave to appeal to the New South Wales Court of Criminal Appeal against the foregoing sentence. His application came before that Court in December 1993. At that time, the Court did not have knowledge of the sentence of Mr Savvas for he was not sentenced until June 1994. The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no error of principle in the approach which Mathews J had taken[87]. It was after 17 June 1994, when Mr Savvas was convicted and sentenced by Grove J, that the appellant made a further application for leave to appeal to the New South Wales Court of Criminal Appeal. It is the adverse disposal of that appeal which gives rise to the present proceedings.

Convictions and sentences of the co-offender

Mr Savvas, like the appellant, was no stranger to the Court of Criminal Appeal. The background to the sentence which he was serving at the time of the prison conspiracy may be found in the reports[88]. In the last of these decisions, this Court confirmed the orders of the New South Wales Court of Criminal Appeal. That Court had dismissed an appeal from a sentence imposed in the Supreme Court of New South Wales by Hunt J. By His Honour's orders, Mr Savvas was sentenced to 25 years imprisonment, with a minimum term of 18 years, following his conviction of conspiring with others to import a quantity of heroin not less than the commercial quantity contrary to the Customs Act 1901 (Cth)[89]. At the same time, Mr Savvas had been convicted of an offence of conspiring with others to supply heroin contrary to the Drug Misuse and Trafficking Act 1985 (NSW). Upon the latter State offence he was dealt with under the Sentencing Act 1989 (NSW) and sentenced to a minimum term of 18 years together with an additional term of six years imprisonment. However, the sentence for the federal offence being longer, it is the one which was immediately relevant to Mr Savvas's prospects of release until the supervening convictions of conspiracy occurred.

Following his first convictions, Mr Savvas went into custody on 24 August 1988. His non-parole period for the federal offence was expressed to expire on 23 August 2006. It was to be followed by seven years on parole. By the time Mr Savvas was sentenced by Grove J on 17 June 1994, he had served five years 10 months of the first sentence. He therefore had 12 years and two months of the non-parole period of that sentence still to serve. Grove J took into account the considerations listed in s 16A of the Act. He noted that the appellant had been sentenced by Mathews J and that under her sentence "eleven years were effectively added to the date relative to his existing sentence". He recorded his recognition of the need to observe a rule of parity which would take into account the "criminality between Savvas and Postiglione". However, he referred to "[P]ostiglione's more extensive prior record on the one hand and his pleas of guilty and cooperation with authority on the other".

Acknowledging Mr Savvas's existing sentences, Grove J sentenced him on both counts to be served concurrently. The sentence was for imprisonment for 25 years from that day with a new non-parole period of 18 years commencing immediately. This resulted in a new date of eligibility for parole of 16 June 2012. The result was an extension of the period of imprisonment before which Mr Savvas would be eligible for release on parole of five years and 10 months.

It is the contrast between the effective increase in the custodial punishment of the appellant and Mr Savvas which has given rise to the present controversy. The appellant suffered an effective increase in his custodial sentence, before he would be eligible to parole, of eleven years. By contrast, Mr Savvas had an increase of only five years and 10 months. When to this apparent disparity was added the consideration that the appellant, upon completing the non-parole period in Australia, would, or might, be deported to Italy to continue serving the residue of his Italian sentence of more than five years, the result was said to be plainly unjust. It involved a disparity which gave rise to a justifiable sense of grievance in the Lowe sense.

Grove J, at the time of sentencing Mr Savvas, anticipated the problem[90]:

"I do not overlook that the extension of non parole period (sic) amounts to about six years, whereas Postiglione - whose merit on balance I consider exceeds yours - was extended by eleven years. Nevertheless I do not think I should impose a disproportionately high sentence on you to assuage any grievance which may - I repeat, may - be engendered in Postiglione. I express no opinion on whether, if he does come to harbour such a grievance, it would be justifiable."

The appellant did indeed harbour that grievance. He returned to the Court of Criminal Appeal to give voice to it.

Decision of the Court of Criminal Appeal

A preliminary question arose in the Court of Criminal Appeal as to whether that Court had jurisdiction to hear a second application by the appellant for leave to appeal against his sentence following the order dismissing his first appeal. In the conclusion which it reached on the merits, the Court did not consider that it was necessary to determine that point. Nevertheless, Badgery-Parker J, who gave the reasons of the Court, expressed the opinion that the appellant was entitled to bring a second application for leave to appeal in the circumstances of the case.

This Court was informed that the orders of the Court of Criminal Appeal following the first appeal were not perfected. In the second application, that Court certainly purported to exercise and affirm its jurisdiction. Both parties before this Court supported that conclusion. In the nature of complaints of disparity in sentencing (and as the facts of this case demonstrate) it will quite often be the case that the disparity which is said to give rise to the justifiable sense of grievance is not finally known until a considerable time after the complaining prisoner was sentenced. Where the final sentencing of a co-offender, or of another relevant offender, remain outstanding it may well be sensible for a Court of Criminal Appeal to adopt the expedient proposed by Dawson and Gaudron JJ in their reasons. I shall assume that there was no jurisdictional barrier to the appellant's second application. I shall return to that question in determining the orders which should be made.

The Act provides a facility to the Director of Public Prosecutions, where a federal offender has been sentenced on the basis of undertakings to cooperate and fails to do so, to appeal against the inadequacy of the sentence or of the non-parole period[91]. The Director may appeal at any time whilst the offender is serving the sentence, imposed on an assumption of co-operation. It is as part of this legislative scheme that the sentencing judge is required, when reducing a sentence on the basis of a promised undertaking of cooperation, to specify that the sentence is being reduced for that purpose and to state the sentence the judge would have imposed but for that reduction[92]. This provides both a warning to a prisoner and guidance to a Court of Criminal Appeal should resentencing be required. No broader statutory facility of a later or second appeal is provided by the Act.

Mathews J appeared to consider that s 21E was the foundation for the reduction in the appellant's sentence for his cooperation with authorities and undertaking to give evidence if called upon to do so. As the Court of Criminal Appeal pointed out, this was incorrect. Section 21E concerns the consequences of non-cooperation where it has been promised. It does not deal with cooperation as a mitigating factor. Cooperation is specifically mentioned in s 16A(h) of the Act, although the paragraph is expressed in terms of cooperation which has already occurred rather than that which is promised. "The "checklist" in s 16A(2) has been construed as non-exclusive[93]. However, the foregoing mistake of Mathews J was unimportant because her Honour certainly gave credit to the appellant for past cooperation and the prospect that it would continue.

The Court of Criminal Appeal, in the second proceeding, noted the suggested disparity between the additional non-parole period to be served in the case of the appellant and that to be served in the case of Mr Savvas. It recorded the features in the evidence and the findings which, on the contrary, were said to support a more lenient punishment for the appellant than for Mr Savvas, namely:

1. That he had pleaded guilty and adhered to that plea.

2. That he had been found by Mathews J to be a less significant actor in the conspiracies.

3. That prior to the committal he had commenced his cooperation with police and provided material which was helpful.

4. That this had led to his isolation in prison which was likely to continue.

5. That he had undertaken to give evidence at the trial of his co-offenders and had done so.

The Court also recorded the concession made for the Crown that the circumstances had "produced such disparity as might engender a legitimate and justifiable sense of grievance on the part of the [appellant]". This concession was maintained before this Court as was the expression of the Crown's concern that, if the disparity were not rectified, it might discourage other persons in a like situation from pleading guilty and giving assistance to the authorities as Mr Postiglione had done. In cases of this kind, the importance of such cooperation is plain enough.

However, the Court of Criminal Appeal concluded that the concession was not correctly made by the Crown[94]:

"The concession ignores the foundation of ... principle, namely, the existence of disparity when other things are equal, or, where other things are not equal, a relativity between sentences which does not properly reflect the extent of the inequality.

The unusual outcome in this case has to be understood in the light of the custodial situation of each prisoner at the time of sentence, and the need for a sentencing judge to have regard to the principle of totality to ensure that the ultimate sentence actually imposed was not excessive having regard to the total criminality involved in all of the criminal activities to which it attached ... [W]hen the sentences now under discussion are viewed in the light of the well understood legal principle of totality, any sense of grievance which results is seen to be without justification. The outcome does not result from any lack of evenhandedness in the sentencing for the instant case, but only from the prior custodial situation of each man respectively. The asserted disparity is apparent but does not exist in fact; and any sense of grievance founded upon it is not justifiable."

As to the Crown's concern about the consequences for cooperation of other offenders, that Court held that that did not warrant a departure from established principle regulating its intervention in cases of alleged disparity in sentencing. Leave to appeal was granted but the second appeal was also dismissed.

Applicable sentencing principles

The following principles, derived from the authorities, may be stated as relevant to the consideration of the appellant's complaint of unjust disparity:

1. Consistency in punishment is "a reflection of the notion of equal justice". It is an attribute of "any rational and fair system of criminal justice". On the other side of the coin, inconsistency in punishment is regarded as "a badge of unfairness" which erodes public confidence in the integrity of the administration of justice[95]. The removal of serious and unjustifiable disparities in the treatment of like cases is a legitimate goal of the administration of criminal justice. There are various ways to promote this objective. However, so long as sentencing remains a judicial task (as distinct from a function of a sentencing commission or like body) consistency may be promoted by the provision of appellate decisions on points of principle, by the supply to sentencing judges of data on sentencing practice, by statutory guidelines of the kind attempted in Part 1B of the Act and by general appellate supervision.

2. The quest for perfect consistency involves a search for the unattainable. The facts of no two crimes, nor the criminality of any two individual offenders involved in a single crime, will be exactly the same. No two offenders will have precisely the same antecedents and experience of life when they appear for sentence. Inevitably, different judicial officers will respond differently to particular features of the evidence relevant to the offence or the offenders. The independence and individual responsibility of each sentencing judge require that, subject to appellate supervision, his or her sentence will ordinarily be respected. The powers of, and practices within, appellate courts exercising jurisdiction in criminal appeals will differ. In the case of federal offences, there is the added complication that federal prisoners are held in State prisons, often alongside State prisoners sentenced under State sentencing laws with different potential to occasion disparity in the treatment of apparently like offences and like offenders[96]. Part IB of the Act contains provisions designed to address at least some of the disparities which may exist between the treatment of federal offenders in different Australian jurisdictions, in particular in those in which remissions have been abolished. In Leeth v The Commonwealth,⁹⁷ a question arose as to whether the provisions of the federal legislation then applicable, which allegedly discriminated between people in different parts of the Commonwealth who came before the courts, were constitutionally invalid[98]. The Court held that they were valid. However, three Justices[99] found that the differentiation required by the Act was incompatible with the Constitution. After that decision, Part 1B was inserted into the Act. No constitutional point was raised in this appeal. Nor is this a case where the added complication arises of comparing federal and State sentences. Nevertheless, the difficulties of securing perfect equality of treatment in the punishment of convicted offenders is increased in a federal polity. And it is inherent in the process of judicial sentencing.

3. Out of recognition of the discretionary character of the sentencing function, and the unavoidable scope for disparity where that function is performed by different judicial officers, it is well established that when performing their function sentencing judges must be accorded a wide measure of latitude which will be respected by appellate courts. So long as the sentencing judge has taken into account the relevant considerations of law and fact, the appellate court will not ordinarily intervene merely because some arguable discrepancy appears between the sentencing of otherwise apparently connected or like offenders[100]. Similarly, this Court will respect the discretion which the law reserves to courts of criminal appeal and their equivalents, acting under their respective statutes, in disposing of sentencing appeals and applications for leave to appeal against sentences, including on the ground of suggested disparity[101]. The proper approach is one of vigilance within a context of appellate restraint. It was recently expressed by Lamer CJC for the Supreme Court of Canada in R v M (CA) in words which are applicable here[102]:

"Appellate courts, of course, serve an important function in reviewing and minimizing the disparity of sentences imposed by sentencing judges for similar offenders and similar offences committed throughout Canada ... But in exercising this role, courts of appeal must still exercise a margin of deference before interfering in the specialized discretion that Parliament has explicitly vested in sentencing judges. It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime ... Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the 'just and appropriate' mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred."

4. The restraints which authority and legal principle impose upon courts of criminal appeal and their equivalents are even more severe when it comes to this Court. It will not grant special leave to appeal against a sentence, still less allow an appeal, merely because the sentence appears to be excessive, including on the ground of disparity, when considered with a sentence which is arguably comparable. As the Judiciary Act 1903 (Cth)[103] indicates, the authority and practice of the Court[104] and the necessities imposed by its workload and composition require, it cannot, and should not, fulfil a general function of re-scrutinising sentencing decisions of appellate courts. Special leave was granted in this case only because it was suggested that the circumstances raised the general question of the relationship between the principles of totality of sentence and parity of sentencing of like offenders and because a serious injustice was said to have occurred which, in effect, the Crown conceded.

5. The problem of disparity will ordinarily arise not so much out of a suggested departure from the requirement to punish equally like offenders convicted of like offences,[105] as out of the disparate punishment of co-offenders or offenders in a situation demanding comparison and contrast[106]. It is in these cases, where discrimination has occurred in the sentences imposed on two or more offenders said not to be justified by the facts either of the offence or of the circumstances of the offender, that the problem of alleged disparity in sentencing presents itself in sharp focus[107]. It is then that the appellate court must apply the tests which have been propounded and decide whether it should intervene.

6. Those tests express the criteria for intervention in language which is necessarily very broad. Mere disparity is not enough. What is needed is that the disparity engenders a "justifiable sense of grievance" on the part of the prisoner or "give the appearance that justice has not been done"[108]. It has been stated many times that the fact that the prisoner feels a sense of grievance is not determinative. Say what they may, appellate courts cannot "prevent an unjustified sense of grievance from arising in the minds of sentenced persons"[109]. But the object of the language chosen is to make it plain that some disparities, being inevitable, must be tolerated out of respect for the discretion of sentencing judges and a modest appreciation of the capacity of appellate courts to rectify discrepancies without causing new or different problems. The focus of the attention of an appellate court is not upon the nominal sentence but upon the actual punishment which it appears likely the prisoners in suggested comparison will undergo[110]. Due allowance will be made for their respective criminality. Due allowance will also be made for their differing antecedents, personal circumstances and mitigating factors. But if, having made these allowances, the resulting disparity is clearly unjustifiable, the appellate court must intervene for otherwise it will condone the "badge of unfairness"[111].

7. The risks of disparity in the sentencing of co-offenders may be reduced by the adoption, wherever possible, of arrangements within a court which ensure that co-offenders, or those with relevant connecting factors, appear for sentence before the same judicial officer. But as this case illustrates, that course will not always be possible or appropriate. Even where a second sentencing judge (such as Grove J) comes to the task with full knowledge of what the first sentencing judge (in this case Mathews J) has done, his or her duty will remain that of imposing the sentence which is appropriate and just to the offence found and the offender before the court. In the case of federal offences, the duty of the sentencing judge is, first and foremost, to conform to the law within the maximum punishment for the offence of which the offender is convicted and to conform also with the provisions in Part 1B of the Act governing the sentencing of federal offenders. Some of the latter provisions appear to repeat established sentencing principles.

Thus, in s 16B, the Act contains a statutory formula which reflects, in part, the totality principle:

"In sentencing a person convicted of a federal offence, a court must have regard to:

(a) any sentence already imposed on the person by the court or another court for any other federal offence or for any State or Territory offence, being a sentence that the person has not served; and

(b) any sentence that the person is liable to serve because of the revocation of a parole order made, or licence granted, under this Part or under a law of a State or Territory."

No general principles, whether of parity, totality or otherwise, can override the duties imposed by the Act[112]. In the nature of things, where a co-offender has pleaded not guilty and the trial, and thus the conviction and the sentence, of the co-offender have not occurred the sentencing judge cannot perform any function of comparison to avoid discrepancies. That must be left to an appellate court. If its jurisdiction is invoked, that court must, as best it can, retrospectively apply to the sentences imposed the foregoing principles.

8. It is a mistake to endeavour to reduce judicial sentencing to mathematical accuracy or analytical certainty[113]. The provision of statutory guidelines and the principles expressed by appellate courts may be useful to reduce the causes of disparity. Little more can be done than to ensure that the correct considerations are taken into account and that irrelevant considerations do not intrude. In the present case, there were two general principles of sentencing, not excluded by the Act, which it was the duty of each of the sentencing judges, Mathews J and Grove J, to take into account in the respective tasks before them. These were to apply, so far as they could, the principles of "parity" and "totality". In the event that they failed to do so, or imposed a sentence which suggested that their endeavour to do so had miscarried, it was the duty of the Court of Criminal Appeal to intervene if the result was so apparently wrong as to occasion a justifiable sense of grievance or the conclusion that an injustice had occurred.

The parity principle, properly applied, will help to avoid the kinds of disparities which occasion the conclusions spoken of in Lowe. But the parity principle itself must operate upon sentencing facts which will inevitably provide grounds for discrimination on the basis of the offender's involvement in the offence and relevant circumstances personal to the offender.

The totality principle has a dual aspect as explained recently in the Supreme Court of Canada[114]. First, in the words of D A Thomas, Principles of Sentencing[115]:

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is 'just and appropriate'".

Lamer CJC in R v M (CA)[116] expressed approval of this passage and gave his own explanation:

"The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender."

However, there is a second task for the totality principle to perform. This is that stated by Clayton Ruby in his Treatise on Sentencing, also cited with approval by Lamer CJC[117]:

"The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate 'just and appropriate'. A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender 'a crushing sentence' not in keeping with his record and prospects."

9. The "parity" and "totality" principles are in the nature of checks required of sentencing judges out of recognition that the task of sentencing is not a mechanical due. The task could hardly be so given the many, sometimes conflicting, goals of sentencing which are "broad and varied"[118]. The sentencing judge must first reach a conclusion as to what seems to be the appropriate sentence having regard to the maximum fixed by Parliament for the worst case and the norm that is appropriate to the objective criminality of the case. The judge must then adjust that sentence, where appropriate, for the factors personal or special to the offender, discounted by any relevant considerations (for example cooperation with authorities or absence of remissions). But it still remains for the judge to look back at the product of these calculations and discounts. It is then that the sentencing judge must consider whether the resulting sentence needs further adjustment. It may do so because it is out of step with the parity principle requiring that normally like cases should be treated alike. Or it may offend the totality principle because, looking at the prisoner's criminality as a whole, the outcome is, in its totality, not "just and appropriate". The last-mentioned conclusion will the more readily be reached where the judge comes to the conclusion that the outcome would be "crushing" and, as such, would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform. Obviously, the adjustments for the parity and totality principles, whether performed by a sentencing judge or an appellate court, involve subtle considerations which defy precision either of description or implementation. It has been recognised by this Court[119] that the adjustments for totality will sometimes result in a lower sentence which might even fail to reflect adequately the seriousness of the crime in respect of which it is imposed. Whilst this is unfortunate, it is to be preferred to imposing a sentence which is excessive in its totality or unfair when tested by parity in the punishment of comparable offenders. The risks of unacceptable disparity will be lessened if it is remembered that the touchstone adopted by the law is the avoidance of a justifiable sense that an injustice has occurred.

10. It is comparatively unusual for the Crown to concede that a justifiable sense of grievance is established by successive sentences. It is even more unusual for the Crown to persist in that concession where it has been held not to be warranted. The fact that the Crown supports the grievance voiced by the prisoner is not, of course, conclusive of the issue in the appeal, which must be judged by the Court, not the parties. The Crown's concern, fairly obviously, is that where appropriate, grievances on the part of prisoners who cooperate with authorities and give evidence for the Crown should be avoided. Doubtless such grievances have a tendency to become known in the circles from which such cooperation must be procured. The fact that the Crown has persisted with its support of the appellant's case, although not determinative, cannot be put entirely out of account. Justified or not, it would have a tendency to reinforce the appellant's own conclusion that an injustice has been done to him.

Conclusion: a justifiable sense of grievance is demonstrated

It is difficult to say in this case that a new principle has been invoked because, essentially, the parity principle remains that stated by this Court in Lowe. The totality principle remains that stated by the Court in Mill[120]. The real issue in this appeal is the interaction between the principles. One explanation of the source of the suggested disparity in the punishment of the appellant and Mr Savvas was said to be that Grove J imposed on Mr Savvas a lighter sentence than he might have done. Yet the sentence which Grove J imposed on Mr Savvas may have been no more than the application in that case of the aspect of the "totality principle" which is designed to avoid the imposition of "crushing" sentences.

The other explanation for the disparity between the "real time" added to the sentence of the appellant and that added to the sentence of Mr Savvas is the explanation offered by the Court of Criminal Appeal itself. The prisoners came to sentencing with differing criminal histories and, most importantly, with a different "prior custodial situation". The appellant had only two years and 10 months of non-parole sentence left on his then current Australian sentence to absorb, and overlap with, a portion of the new sentence to be imposed for his part in the conspiracy. Mr Savvas, on the other hand, had 12 years and two months of unserved non-parole imprisonment available for that purpose.

In Lowe, this Court made it plain that the proper approach of the appellate court is an objective one. Mason J described it thus[121]:

"The undisclosed error ... may have occurred in the sentencing process as it affected the co-offender. The sentence under appeal may be free from error except in so far as discrepancy itself constitutes or causes error. And the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander."

When pronounced, the sentence imposed by Mathews J may, objectively, have been unimpeachable, just as the first decision of the Court of Criminal Appeal found. But once it fell to be considered in the light of the sentence imposed by Grove J on Mr Savvas, a new objective situation was presented. It is perfectly possible to construct explanations of how the disparity between Mr Savvas and Mr Postiglione came about. However, differing antecedents do not render a consideration of the comparative criminality of the co-offenders irrelevant when an appellate court assesses the effective increase in their respective custodial sentences. The parity principle between co-offenders continues to operate as a consideration in sentencing notwithstanding the application of the totality principle to one offender.

The parity principle could hardly have a better illustration than the present case. Mr Savvas, who had been at the "head of the pyramid" in the prison conspiracies, had pleaded not guilty, had given no cooperation and was not in protective custody, suffered an increase of his non-parole custodial sentence by five years four months. The appellant, who had cooperated fully, discharged his promise of giving evidence at the trial of the co-conspirators and is to be held for the rest of his sentence under the strictures of protective custody, had his non-parole custodial sentence extended by twice that length. And it would have been even three years longer had the appellant not cooperated with the authorities.

The outcome is clearly offensive to the sense of justice, as the appellant says, and the Crown agrees. It is even more so when the appellant's age is considered with the extended period he has served in custody, the need to avoid the extinguishment of hope altogether and, especially, the fact that on the expiry of his Australian sentence, he will probably be deported to Italy to continue more than five years of the unexpired period of his Italian sentence. It is plain that an error has occurred. By failing to correct that error, the Court of Criminal Appeal in the second hearing left unrepaired the appearance of an injustice and the appellant's justifiable sense of grievance about it. This constitutes a significant error in the application of the parity principle.

Orders

Although this Court has the power to resentence the appellant[122], it is inappropriate for it to do so in this case. Under the Act, explanations have to be given to a federal offender when resentenced[123]. In the ordinary case it will be more appropriate that resentencing be performed by the Court of Criminal Appeal.

There is a further reason in this case for adopting that course. Dawson and Gaudron JJ have explained the procedural errors which may have occurred in the Court of Criminal Appeal. This Court has not received submissions or formal evidence about these possible errors. I am far from convinced that the Court of Criminal Appeal lacked jurisdiction to hear and determine the second application. However, in the circumstances, the desirable course is the one which their Honours propose. I therefore agree in the orders which they favour.

[1] See rr 51 and 52 Criminal Appeal Rules (NSW) which relevantly require "a notice ... of the determination of [an] appeal" and notification of "any orders or directions made or given" to be sent to "the proper officer of the Court of Trial". In accordance with r 53, as it stood when the order was made, the proper officer was thereupon required to "enter the particulars of such notification on the records of the Court of Trial."

[2] As to perfection of an order of the Court of Criminal Appeal, see Stephens (1990) 48 A Crim R 323 at 326-327 per Allen J (with whom Campbell J and Lusher AJ agreed); Lapa (No 2) (1995) 80 A Crim R 398 at 402 per Clarke JA. See with respect to r 35(b) of the Criminal Appeal Rules (Vic), a rule similar in substance to r 53 of the Criminal Appeal Rules (NSW), R v Billington [1980] VicRp 58; [1980] VR 625.

[3] Section 21E(1) relevantly provides that where the sentencing court reduces the offender's sentence or non-parole period because the offender has undertaken to co-operate with the authorities, the court must specify what the sentence or non-parole period would have been but for the reduction, and specify that the reduction is the result of the offender's co-operation.

[4] [1989] HCA 18; (1989) 166 CLR 466.

[5] [1938] HCA 45; (1938) 60 CLR 431.

[6] See, in this regard, R v Shannon (1982) 32 SASR 5; cf Caruso (1988) 37 A Crim R 1 where an application for leave to appeal against conviction was entertained notwithstanding the earlier disposition of an appeal against sentence on the footing that the Criminal Law Consolidation Act 1935 (SA) allows for separate appeals against conviction and sentence.

[7] Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466 at 474 per Mason CJ and Brennan J, 484 per Deane, Toohey and Gaudron JJ.

[8] See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610-611 per Mason J.

[9] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 617-618 per Brennan J.

[10] [1984] HCA 46; (1984) 154 CLR 606.

[11] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 especially at 610 per Gibbs CJ, 613 per Mason J and 623 per Dawson J.

[12] See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 609 per Gibbs CJ.

[13] Thomas, Principles of Sentencing, 2nd ed (1979) at 57-58.

[14] See Bailey v DPP [1988] HCA 19; (1988) 62 ALJR 319 at 319-320 per Mason CJ, Brennan, Dawson and Toohey JJ; [1988] HCA 19; 78 ALR 116 at 117.

[15] As to the special features which distinguish an application for leave or special leave to appeal from other legal proceedings, see Coulter v The Queen (1988) 164 CLR 350. See also Collins v The Queen [1975] HCA 60; (1975) 133 CLR 120 at 122 per Barwick CJ, Stephen, Mason and Jacobs JJ; Attorney-General (Cth) v Finch [No 1] [1984] HCA 1; (1984) 155 CLR 102 at 105; Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth [1991] HCA 43; (1991) 173 CLR 194 and Carson v John Fairfax & Sons Ltd [1991] HCA 43; (1991) 173 CLR 194. See also R v Gibbings [1936] SASR 204 where an application for leave to appeal against conviction was entertained notwithstanding that an earlier application for leave to appeal against sentence had been dismissed, it being held that there may be separate appeals against sentence and conviction.

[16] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610; see also 613.

[17] R v Postiglione (1991) 24 NSWLR 584 at 595.

[18] R v Postiglione, unreported, Court of Criminal Appeal of New South Wales, 13 December 1993.

[19] Although a question arises as to the competency of the Court of Criminal Appeal to hear a second appeal, I will proceed to deal with the substantive merits of the appeal and return to this point later.

[20] R v Postiglione, unreported, Court of Criminal Appeal of New South Wales, 23 February 1995.

[21] See Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63.

[22] [1992] FCA 7; (1992) 33 FCR 536 at 541.

[23] Unreported, Court of Criminal Appeal of South Australia, 20 April 1988.

[24] R v Holder [1983] 3 NSWLR 245 at 260.

[25] Holder [1983] 3 NSWLR 245 at 260.

[26] Bakhos (1989) 39 A Crim R 174; Harrison (1990) 48 A Crim R 197; Gordon (1994) 71 A Crim R 459.

[27] (1994) 71 A Crim R 459 at 466.

[28] [1969] SASR 575 at 577.

[29] cf DPP (Cth) v Said Khodor el Karhani (1990) 21 NSWLR 370 at 375-378.

[30] [1984] HCA 46; (1984) 154 CLR 606.

[31] Lowe [1984] HCA 46; (1984) 154 CLR 606 at 616.

[32] Lowe [1984] HCA 46; (1984) 154 CLR 606 at 610.

[33] Lowe [1984] HCA 46; (1984) 154 CLR 606 at 613.

[34] Lowe [1984] HCA 46; (1984) 154 CLR 606 at 624.

[35] Lowe [1984] HCA 46; (1984) 154 CLR 606 at 616.

[36] In the Court of Criminal Appeal, Badgery-Parker J, (with whom McInerney and Dowd JJ concurred) was of the view that the concession was not correctly made, as it ignored the foundation of the parity principle.

[37] (1991) 23 NSWLR 220 at 232.

[38] R v Postiglione, unreported, Court of Criminal Appeal of New South Wales, 13 December 1993 at 11-12.

[39] See R v Oastler, unreported, Court of Criminal Appeal of New South Wales, 7 October 1991.

[40] R v Postiglione, unreported, Court of Criminal Appeal of New South Wales, 13 December 1993 at 12.

[41] R v Cox (1996) 66 SASR 152 at 159.

[42] Indeed, there is something to be said for the conclusion that the appellant received a lighter sentence than he should have because of an overly favourable application of the totality principle by Mathews J. In applying that principle, her Honour appears to have given consideration not only to the present offences and the offence for which the appellant was sentenced in March 1987, but also to the Italian offence for which the appellant was still liable to serve the unexpired portion of his sentence. It is not clear from the judgment of Mathews J whether her Honour regarded the Italian sentence as merely a factor contributing to a reduction in the sentences before the totality principle came into play, or whether she regarded it as conduct to which that principle applied.

Although her Honour was entitled to take the Italian sentence into account as a mitigating factor, whether under s 16A(2) of the Act or otherwise, she was not entitled to take it into account under the totality principle recognised by s 16B of the Act. The totality principle to which s 16B refers is confined to sentences imposed for federal, State or Territory offences. Nor was her Honour entitled to take the Italian sentence into account under the totality principle as formulated by this Court in Mill [1988] HCA 70; (1988) 166 CLR 59 or the recent extension of that principle evident from the decisions of the Court of Criminal Appeal.

[43] Lowe [1984] HCA 46; (1984) 154 CLR 606 at 610, 613.

[44] Grierson v The King [1938] HCA 45; (1938) 60 CLR 431.

[45] Section 16A(2) lists a number of factors which, if relevant, a court must take into account in determining the sentence to be passed. One such factor is "the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences" (par (h)).

[46] R v Postiglione (1991) 24 NSWLR 584 at 589.

[47] R v Postiglione (1991) 24 NSWLR 584 at 587.

[48] R v Postiglione (1991) 24 NSWLR 584.

[49] An appeal against conviction was dismissed by the Court of Criminal Appeal on 25 June 1991 (Savvas (1991) 55 A Crim R 241). An appeal against sentence was dismissed on 16 December 1991 (Savvas (No 2) (1991) 58 A Crim R 174) and this Court dismissed an appeal on 1 June 1995 (Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1).

[50] See R v Gallagher (1991) 23 NSWLR 220 at 232-233.

[51] L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] [1982] HCA 59; (1982) 151 CLR 590 at 594-595.

[52] [1984] HCA 46; (1984) 154 CLR 606 at 617; see also at 622 per Dawson J.

[53] Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1.

[54] [1984] HCA 46; (1984) 154 CLR 606.

[55] Gibbs CJ, Wilson and Dawson JJ; Mason and Brennan JJ dissenting.

[56] [1984] HCA 46; (1984) 154 CLR 606 at 610.

[57] [1984] HCA 46; (1984) 154 CLR 606 at 611.

[58] [1984] HCA 46; (1984) 154 CLR 606 at 612-614.

[59] [1984] HCA 46; (1984) 154 CLR 606 at 618.

[60] [1978] FCA 8; (1978) 19 ALR 327 at 331.

[61] [1971] 2 SASR 110 at 114.

[62] [1947] QWN 27.

[63] [1996] 2 VR 402 at 404.

[64] [1984] HCA 46; (1984) 154 CLR 606 at 610.

[65] [1984] HCA 46; (1984) 154 CLR 606 at 613.

[66] [1984] HCA 46; (1984) 154 CLR 606 at 623.

[67] (1996) 66 SASR 152.

[68] (1996) 66 SASR 152 at 159.

[69] [1984] HCA 46; (1984) 154 CLR 606 at 609 per Gibbs CJ, 611 per Mason J, 617-618 per Brennan J.

[70] [1969] SASR 575 at 577.

[71] [1984] HCA 46; (1984) 154 CLR 606 at 609.

[72] Lowe [1984] HCA 46; (1984) 154 CLR 606 at 608-609, 621-622; Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 478.

[73] Grierson v The King [1938] HCA 45; (1938) 60 CLR 431.

[74] [1989] HCA 18; (1989) 166 CLR 466.

[75] s 16(1).

[76] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 609-610, 613.

[77] R v Postiglione unreported, Court of Criminal Appeal of NSW, 23 February 1995 per Badgery-Parker J; McInerney and Dowd JJ concurring.

[78] After the matter stood for judgment Mr Savvas died in prison. However, his death does not affect the matters discussed in these reasons.

[79] Lowe v The Queen [1984] HCA 46; (1994) 154 CLR 606.

[80] The Custom Act 1901 (Cth), s 233B and s 235.

[81] In her reasons, Mathews J states that this occurred in December 1980. This may be a mistake but, if so, it is one without significance. See R v Postiglione (1991) 24 NSWLR 584 at 588.

[82] R v Postiglione (1991) 24 NSWLR 584 at 588-589.

[83] R v Postiglione (1991) 24 NSWLR 584 at 595.

[84] R v Postiglione (1991) 24 NSWLR 584 at 594.

[85] DPP (Cth) v Said Khodor el Karhani (1990) 21 NSWLR 370.

[86] s 21E.

[87] R v Postiglione unreported, Court of Criminal Appeal of NSW, 13 December 1993.

[88] R v Savvas (1991) 55 A Crim R 241; R v Savvas (No 2) (1991) 58 A Crim R 174; Savvas v R [1995] HCA 29; (1995) 183 CLR 1.

[89] On the second count, he was also convicted and sentenced to a minimum term of 18 years imprisonment.

[90] R v Savvas and Ors unreported, Supreme Court of NSW, 17 June 1994 at 14.

[91] s 21E.

[92] s 21E(1)(a) and (b).

[93] DPP (Cth) v Said Khodor el Karhani (1990) 21 NSWLR 370 at 375-378.

[94] R v Postiglione unreported, Court of Criminal Appeal of NSW, 23 February 1995 at 12-13.

[95] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610-611.

[96] DPP (Cth) v Said Khodor el Karhani (1990) 21 NSWLR 370 at 374-375.

97 [1992] HCA 29; (1992) 174 CLR 455.

[98] Commonwealth Prisoners Act 1967 (Cth), s 4(1).

[99] Deane, Toohey and Gaudron JJ.

[100] R v Tiddy [1969] SASR 575 at 579.

[101] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 610. See also Dickson J in R v Gardiner [1982] 2 SCR 368 at 404-405; applied in R v M (CA) (1996) 105 CCC (3d) 327 at 346.

[102] (1990) 105 CCC (3d) 327 at 375.

[103] s 35A.

[104] Lowe v R [1984] HCA 46; (1984) 154 CLR 606.

[105] R v Goldberg [1959] VicRp 52; [1959] VR 311.

[106] R v Beaumont [1955] SASR 110; R v Ball (1951) 35 Cr App R 164.

[107] R v Tiddy [1969] SASR 575 at 577.

[108] Lowe v R [1984] HCA 46; (1984) 154 CLR 606 at 610.

[109] R v Tiddy [1969] SASR 575 at 579.

[110] R v Tiddy [1969] SASR 575 at 577.

[111] Lowe v The Queen [1984] HCA 46; (1994) 154 CLR 606 at 611.

[112] DPP (Cth) v Said Khodor el Karhani (1990) 21 NSWLR 370 at 383-385.

[113] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63; R v Yun Choi Ng unreported, Court of Criminal Appeal of NSW, 25 July 1991.

[114] R v M (CA) (1996) 105 CCC (3d) 327 at 349.

[115] 2nd ed (1979) at 56 also cited with approval in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63.

[116] (1996) 105 CCC (3d) 327 at 349.

[117] Ruby, Sentencing, 4th ed (1994) at 44-45, cited in R v M (CA) (1996) 105 CCC (3d) 327 at 349-350.

[118] R v M (CA) (1996) 105 CCC (3d) 327 at 369 quoting R v Goltz (1991) 67 CCC (3d) 481 at 495.

[119] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 67.

[120] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63.

[121] [1984] HCA 46; (1984) 154 CLR 606 at 613.

[122] cf s 16(1) where "federal court" means "the High Court or a court created by the Parliament, other than a court of a Territory".

[123] s 16F.