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Court of Criminal Appeal 9 June 2000

Regina v Saavedra

[2000] NSWCCA 234

Drugs
CRIMINAL LAW DRUG OFFENCES PARITY OF SENTENCE JUSTIFIABLE SENSE OF GRIEVANCE

Citation: Regina v Saavedra [2000] NSWCCA 234
Court: NSW Court of Criminal Appeal
Date: 9 June 2000
Judge(s): Spigelman CJ, Newman J, Adams J

Background

The applicant pleaded guilty in the District Court to conspiracy to import not less than 50 kilograms of cocaine into Australia, an offence carrying a maximum penalty of life imprisonment under the Customs Act 1901 (Cth). Her role in the conspiracy was significant: she connected the other conspirators with South American drug suppliers at a time when the scheme had stalled for lack of a source. Although her later participation was less wholehearted due to threatening pressure from co-conspirators, her initial involvement was described as entirely willing.

Judge Graham in the District Court sentenced the applicant to seven years imprisonment with a non-parole period of four years and six months. That sentence incorporated substantial discounts for both past and future assistance provided to authorities after her arrest at Sydney Airport in November 1998, having returned from South America in the knowledge she would likely be apprehended.

The applicant sought leave to appeal out of time, arguing that the sentence was disproportionately harsh when compared with the sentence received by a co-conspirator, Douglas Crombie.

  • Whether the disparity between the applicant's sentence and that of co-conspirator Douglas Crombie gave rise to a justifiable sense of grievance, warranting appellate intervention on parity grounds.
  • Whether the sentencing judge properly accounted for the relevant differences and similarities between the applicant's circumstances and those of her co-offenders.

Decision

The Court of Criminal Appeal dismissed the appeal, finding no identifiable error in the sentencing judge's approach. Newman J, with whom Spigelman CJ and Adams J agreed, examined the sentence in detail and concluded that the applicant could not be said to have a justifiable sense of grievance when the relevant circumstances were viewed objectively.

The court accepted that the applicant raised four points of difference between her circumstances and those of Douglas Crombie: Crombie had a significantly worse criminal record; he was involved in the conspiracy for a longer period; he stood to receive five kilograms of cocaine as payment; and the applicant had voluntarily returned to Australia knowing arrest was likely, unlike Crombie. However, Judge Graham had considered all four factors in his sentencing remarks, and the Court of Criminal Appeal found no basis to conclude he had erred in that exercise.

The decisive factor explaining the sentence gap worked against the applicant rather than in her favour. Crombie's assistance to authorities had been assessed as higher in quality than the applicant's. That distinction, reflected in the respective discounts applied to each offender's notional head sentence, accounted for the relatively small difference in their ultimate sentences. The applicant's notional head sentence before any discount was twelve years, reduced to seven years after assistance discounts, while Crombie's notional head sentence of fifteen years was reduced to eight years after equivalent discounts.

The Court of Criminal Appeal determined that when the full picture was assessed, the parity argument could not succeed. The sentences were not unjustifiably disparate given the differences in role, criminal history, and the quality of assistance provided.

Orders Made

  • Leave to appeal out of time granted.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle requires a court to be satisfied that a co-offender has a justifiable sense of grievance, not merely that a disparity exists between sentences. A difference in outcome alone is insufficient to warrant intervention.
  • In assessing parity, sentencing courts must account for all relevant differences between co-offenders, including criminal history, role in the offence, personal benefit derived, and the quality of assistance provided to authorities.
  • A higher quality of cooperation with law enforcement by one co-offender can legitimately explain a lower sentence for that co-offender, even where the other offender's overall criminality appears less serious in some respects.
  • Voluntary return to Australia in the knowledge that arrest was imminent was treated as a mitigating factor, but it did not override the significance of the comparative assessment of assistance to authorities.
  • The Court of Criminal Appeal confirmed that a failed conspiracy attracts the same sentencing principles as a completed offence; the fact that no drugs were ultimately imported did not reduce the seriousness of the conduct.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), ss 233B(1)(cb), 235(1)(c)(i), 21E

Cases:
- Regina v Lowe (1984) 154 CLR 686
- Regina v Postiglione (1997) 189 CLR 295
- Regina v Doggett, unreported, CCA, 24 March 1997