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Court of Criminal Appeal 31 July 2000

Regina v Stanton

[2000] NSWCCA 417

Drugs

Citation: Regina v Stanton [2000] NSWCCA 417
Court: NSW Court of Criminal Appeal
Date: 31 July 2000
Judge(s): Newman J, Sperling J

Background

The applicant and a co-offender named Vagg were convicted at trial of cultivating not less than the trafficable quantity of cannabis, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 15 years' imprisonment. Both were sentenced by Garling DCJ in the District Court on 24 August 1999.

The sentencing judge found the objective criminality of both offenders to be equal and imposed the same head sentence of three years on each. However, he identified special circumstances in the applicant's case and fixed a minimum (non-parole) term of 18 months for the applicant, compared to two years for Vagg. The applicant sought leave to appeal against the sentence.

  • Whether the applicant had a justifiable sense of grievance, within the principles established in Regina v Lowe and Regina v Postiglioni, arising from the sentencing judge imposing the same head sentence on both co-offenders despite recognising materially more favourable subjective circumstances in the applicant's case.
  • Whether the sentencing judge erred in failing to reduce the applicant's head sentence to reflect those subjective differences.

Decision

Newman J accepted that the head sentence of three years could not, standing alone, be criticised as manifestly excessive in the applicant's own case, given the commercial cultivation of cannabis and the objective criminality involved. The court also noted that no submission challenging the sentence as manifestly excessive was advanced, nor could one have been.

The central question was whether the applicant had a justifiable sense of grievance by comparison with his co-offender. Newman J held that a proper comparison requires consideration of all components of the sentence, not the head sentence in isolation. When the actual time to be served in custody was compared, the applicant would be released after 18 months, which was 25 per cent less than Vagg's minimum term of two years. Despite any imprecision in the sentencing judge's reasoning about the head sentence, the practical outcome favoured the applicant.

Sperling J agreed and added that appeals based on parity or insufficient disparity do not necessarily engage any error on the part of the sentencing judge, particularly where the sentence imposed is not manifestly excessive. His Honour reasoned that if there was error in imposing the same head sentence, logic could not determine whether the correction should have been to raise Vagg's sentence or lower the applicant's. Any such grievance is properly assessed by looking at the totality of the sentencing outcome, and viewed in that way, the applicant would serve considerably less time in custody than his co-offender.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A parity argument requires consideration of all components of the sentences imposed on co-offenders, not simply a comparison of head sentences in isolation.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where the actual custodial time to be served by the applicant is already 25 per cent less than that of the co-offender, a justifiable sense of grievance is unlikely to be established.
  • Under the principles in Lowe and Postiglioni, a failure to differentiate head sentences between co-offenders does not constitute reversible error where the sentence on the applicant is not itself manifestly excessive.
  • Appeals based on parity or insufficient disparity represent, in Sperling J's analysis, a species of miscarriage of justice arising from the outcome of co-offenders' sentencing hearings, rather than an orthodox error of law or principle by the sentencing judge.
  • Custodial sentences remain appropriate for those convicted of cultivating cannabis for commercial purposes, consistent with the Court of Criminal Appeal's established approach.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)

Cases
- Regina v Lowe (1984) 154 CLR 606 (High Court of Australia)
- Regina v Postiglioni (1996) 189 CLR 295 (High Court of Australia)