AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 22 November 2000

R v Diep

[2000] NSWCCA 472

Drugs
CRIMINAL LAW SENTENCE SUPPLYING HEROIN PARITY OF SENTENCE

Citation: R v Diep [2000] NSWCCA 472
Court: NSW Court of Criminal Appeal
Date: 22 November 2000
Judges: Simpson J, Hidden J

Background

The appellant pleaded guilty in the District Court to two charges of supplying heroin under the Drug Misuse and Trafficking Act 1985, both involving amounts above the indictable quantity and each carrying a maximum of fifteen years imprisonment. A co-offender, who had physically produced the heroin during both transactions, was involved in the same offences. The appellant arranged contact with an undercover police officer and coordinated the transactions, while the co-offender supplied the heroin at the appellant's direction.

Judge Viney sentenced the appellant to an effective full-time custodial sentence: a fixed term of two and a half years on the first charge and a minimum term of three years (with a two-year additional term) on the second charge, with both running concurrently from 27 May 1999. The sentence also took into account possession of a prohibited weapon and ammunition on a Form 1.

After the appeal was filed on grounds of manifest excess, counsel for the appellant disclosed that the co-offender had since been sentenced by a different District Court judge to two and a half years periodic detention with a non-parole period of eighteen months. That development shifted the central issue to one of parity.

  • Whether the disparity between the appellant's sentence and the co-offender's later, substantially lighter sentence gave rise to a justifiable sense of grievance warranting a reduction.
  • Whether, in any event, the original sentences were manifestly excessive (this ground became unnecessary to determine once parity was resolved).

Decision

The Court of Criminal Appeal found that the sentencing disparity was excessive and could not be adequately explained by the differences in the two offenders' circumstances. The co-offender's sentencing judge had proceeded on the basis that the appellant was "much more heavily involved," but that assessment was made on limited material. Before the Court of Criminal Appeal, the original argument that the appellant played a greater role than the co-offender was abandoned: both were accepted as equally culpable.

The Court noted that the co-offender may have received more favourable treatment than was warranted, and that the Crown, while submitting the co-offender's sentence was manifestly inadequate, had not appealed against it. Even so, applying the parity principles from Lowe v The Queen and Postiglione v The Queen, the disparity was sufficient to generate a justifiable sense of grievance in the appellant, requiring a reduction.

The Court acknowledged that certain features distinguished the appellant's position from the co-offender's, including the fact that the drug offences were committed while on bail, and that additional offences were taken into account on a Form 1. Those matters meant a full-time custodial sentence remained appropriate for the appellant, but the length required reduction. The Court also found special circumstances under the Crimes (Sentencing Procedure) Act 1999 that justified a non-parole period less than three-quarters of the total term.

The Court also observed, as a broader point, that the case illustrated the desirability of co-offenders being sentenced by the same judge wherever possible.

Orders Made

  • Appeal allowed.
  • Sentences imposed in the District Court were quashed.
  • On the second charge (taking into account Form 1 matters): imprisonment for three years from 27 May 1999, with a non-parole period of eighteen months.
  • On the first charge: imprisonment for eighteen months from 27 May 1999, concurrent with the sentence on the second charge; no separate non-parole period set.
  • Direction that the appellant be released on parole at the end of the non-parole period, subject to supervision, with release on parole taking effect 27 November 2000.

Key Takeaways

  • A marked disparity between sentences imposed on co-offenders can constitute a justifiable sense of grievance warranting appellate intervention, even where the lighter sentence was imposed later by a different judge on limited material.
  • Under the parity principles affirmed in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295, the test is whether the disparity is such that a reasonable person in the appellant's position would feel aggrieved, not merely whether the co-offender's sentence was too light.
  • Where a co-offender may have received an unduly lenient sentence, and the Crown has not appealed against it, that leniency may nonetheless influence the sentence properly imposed on the other offender.
  • Committing further offences while on bail, and having additional matters taken into account on a Form 1, can distinguish one co-offender's sentencing position from another's, even where their culpability for the principal offences is equal.
  • The Court of Criminal Appeal observed that co-offenders should be sentenced by the same judge wherever practicable, to avoid the kind of disparity that arose in this case.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 45(1)(b), 50(1), 51(1A)

Cases
- Lowe v The Queen (1984) 154 CLR 606 (High Court)
- Postiglione v The Queen (1996-7) 189 CLR 295 (High Court)
- Reg v Hodges (NSW Court of Criminal Appeal, unreported, 20 August 1997)