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Court of Criminal Appeal 8 December 2000

R v MacGregor

[2000] NSWCCA 552

Also reported as 120 A Crim R 24
Drugs
CRIMINAL LAW SENTENCE SUPPLY ECSTASY PARITY WITH CO OFFENDER SENTENCE EXCESSIVE IN ANY EVENT

Citation: R v MacGregor [2000] NSWCCA 552
Court: NSW Court of Criminal Appeal
Date: 8 December 2000
Judge(s): Mason P, Hidden J, Carruthers AJ

Background

The applicant was a 23-year-old man with no prior convictions who collected a bag containing approximately 8,000 ecstasy tablets (equating to 657.3 grams of pure drug, above the commercial quantity of 500 grams) from a hotel room as part of a controlled delivery operation run by the Australian Federal Police. He was arrested shortly after leaving the hotel. A further small quantity of ecstasy and a sum of $67,750 in cash were found in his vehicle and at his flat.

The applicant pleaded guilty at the earliest opportunity to four charges in the District Court, including the principal charge of attempting to possess a prohibited import. The sentencing judge characterised his role as that of a drug courier, motivated by financial gain, and imposed nine years imprisonment with a six-year non-parole period on that principal charge.

The applicant sought leave to appeal that sentence on two grounds: that it was manifestly excessive, and that it produced an unjustified disparity when compared with the sentence received by the co-offender, Mr Veith, the German national who had carried the drugs into Australia.

  • Whether the nine-year sentence on the principal charge was manifestly excessive having regard to comparable cases and the nature of ecstasy as a "middle range" drug
  • Whether the sentence created an unjustifiable sense of grievance in the applicant by reason of unwarranted disparity with the sentence imposed on the co-offender

Decision

The Court of Criminal Appeal accepted both grounds of appeal. Reviewing comparable decisions involving ecstasy importation, Hidden J noted that cases where similar or greater sentences had been imposed generally involved offenders with higher levels of criminality than the applicant, who was treated as a courier. Courts in this jurisdiction had consistently classified ecstasy as a middle-range drug, below heroin and cocaine in seriousness, and that classification informed the assessment of appropriate sentencing ranges.

On the parity issue, the co-offender Veith had faced sentence for the same principal charge, plus an additional importation charge of comparable seriousness. His sentencing judge had assessed concurrent sentences of eight years with a non-parole period of four years and ten months as the starting point, then reduced that by 50 percent to reflect Veith's significant assistance to authorities. That reduction brought Veith's effective sentence well below the nine years imposed on the applicant.

The Court acknowledged some differences between the two men: the applicant faced four charges while Veith faced two. However, Hidden J found that the relative seriousness of the additional charges did not justify the disparity. Their subjective circumstances were broadly similar. The Court concluded that the applicant would reasonably harbour a justifiable sense of grievance, given that his sentence exceeded the starting-point figure that the other sentencing judge had identified as appropriate for Veith before any discount for assistance.

For both reasons, the Court found it appropriate to intervene and re-sentence the applicant on the principal charge.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Applicant re-sentenced on the principal charge to imprisonment for eight years, dating from 21 October 1999, with a non-parole period of five years

Key Takeaways

  • The Court of Criminal Appeal confirmed that ecstasy occupies a middle range among prohibited drugs, below heroin and cocaine, and that this classification bears directly on the assessment of appropriate sentences for ecstasy importation offences.
  • A sentence may be reduced on parity grounds where a co-offender in materially similar circumstances received a lower sentence, even if different judges presided and the lower sentence was partly attributable to a discount for assistance to authorities.
  • Where the sentencing court was not informed of a co-offender's sentence before imposing its own, the appellate court may remedy the resulting disparity on appeal.
  • Relevant mitigating factors in this case included an early guilty plea, youth, no prior convictions, strong character references, and good prospects of rehabilitation, all of which supported a sentence below those imposed in cases involving greater culpability.
  • In assessing parity, courts look to whether the applicant would experience a justifiable sense of grievance, not merely whether numerical differences exist between sentences.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW)
- Proceeds of Crime Act 1987 (Cth)

Cases:
- R v Bigic [2000] NSWCCA 9
- R v Camus [1999] NSWCCA 425
- R v Bowers (1997) 97 A Crim R 461
- R v Budiman (1998) 102 A Crim R 411
- R v Wong and Nguyen (1999) 108 A Crim R 531