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Court of Criminal Appeal 14 April 1999

R v Morrigan

[1999] NSWCCA 85

Drugs
CRIMINAL LAW PRACTICE & PROCEDURE SENTENCE APPEAL

Citation: R v Morrigan [1999] NSWCCA 85
Court: NSW Court of Criminal Appeal
Date: 14 April 1999
Judge(s): Grove J, Kirby J

Background

The appellant was convicted in the Tamworth District Court of two counts of supplying heroin, contrary to the Drug Misuse and Trafficking Act 1985. She and her sister had engaged in a joint criminal enterprise involving the supply of heroin on a significant scale, with approximately $80,000 banked through the supplier's accounts. Both sisters were heroin-addicted themselves and participated primarily to secure their own supply rather than for profit.

Gibson DCJ sentenced the appellant in June 1998 to four years' imprisonment, with a minimum term of two years and six months. Her sister received five years and six months. Both sentences reflected a one-third discount for substantial assistance provided to police, which had placed each sister at personal risk and required them to serve their sentences in segregation.

The sister's appeal was heard by the Court of Criminal Appeal in December 1998 and was allowed, with her sentence reduced to three years and four months (after the assistance discount). The appellant had sought an adjournment at that hearing and her own appeal was listed separately, raising fresh questions of both excess and parity.

  • Whether the sentence imposed on the appellant by the District Court was excessive in all the circumstances.
  • Whether, following the successful appeal by her sister, the disparity between the two sentences gave rise to a justifiable sense of grievance warranting appellate intervention.

Decision

The Court granted leave to appeal and allowed the appeal on both grounds. Kirby J, who had also sat on the sister's appeal, held that the sentencing judge's starting point had been too high, consistent with the view he had formed in the earlier matter. The parity argument also carried obvious force given the arithmetic difference between the sentences the two sisters were now serving, despite the appellant's marginally lesser role and clean criminal record.

On resentencing, the Court identified several mitigating features. The appellant had no prior convictions, held nursing qualifications, and had received numerous testimonials to her character. She had suffered childhood sexual abuse, had addressed her heroin addiction through methadone treatment and was drug-free by the time of appeal, and had honoured her undertaking to provide police assistance, as confirmed by the Crown.

Kirby J fixed a pre-discount sentence of four years, reflecting the seriousness of the offence and the difference in culpability between the appellant and her sister (who received five years before discount). Applying the one-third discount for assistance produced a sentence of two years and eight months. Special circumstances were found to exist, given the need to support the appellant's ongoing rehabilitation and drug-free status, justifying a departure from the standard ratio between minimum and additional terms.

Grove J agreed, but noted that the counts in the original indictment had been reversed in Kirby J's proposed orders. The final orders were adjusted accordingly.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • District Court sentences quashed.
  • On the second count: imprisonment comprising a minimum term of 1 year and 6 months commencing 16 June 1998 and expiring 15 December 1999, with an additional term of 1 year and 2 months commencing 16 December 1999.
  • On the first count: fixed term of 12 months commencing 16 June 1998 and expiring 15 June 1999 (concurrent).
  • The appellant to be released to parole on 15 December 1999 under the supervision of the Probation and Parole Service.

Key Takeaways

  • Where a co-offender's sentence is reduced on appeal, a remaining appellant may have a viable parity argument if the resulting disparity produces a justifiable sense of grievance, particularly where the remaining appellant's personal circumstances and role are no more serious.
  • A finding of special circumstances, permitting a longer-than-standard additional term, can be supported by the need to supervise and consolidate an offender's rehabilitation from drug addiction following release.
  • Substantial assistance to police, confirmed as honoured by the Crown, attracted a one-third discount from the head sentence in this case, a significant reduction that required careful arithmetic in the final sentencing exercise.
  • Differences in criminal history between co-offenders are treated as a meaningful sentencing distinction, even where other similarities, such as the nature of the offence, the degree of cooperation, and the plea, are otherwise closely matched.
  • In allowing the appeal, the Court of Criminal Appeal took the sister's already-reduced sentence as a reference point and calibrated the appellant's sentence to reflect her marginally lesser role and absence of any prior convictions.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases:
- R v Matti Morrigan (Court of Criminal Appeal, 4 December 1998, unreported) (referenced in the judgment but no formal citation given)