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Court of Criminal Appeal 12 October 2001

R v Singh

[2001] NSWCCA 424

Drugs
PARITY NO PARITY WITH NON OFFENDERS

Citation: R v Singh [2001] NSWCCA 424
Court: New South Wales Court of Criminal Appeal
Date: 12 October 2001
Judges: Grove J, Howie J

Background

The applicant pleaded guilty before a magistrate to four counts of supplying a prohibited drug and was committed to the District Court for sentence. The charges arose from a police investigation into drug supply through a Kings Cross café between November 1999 and January 2000. The applicant's offending included supplying not less than a commercial quantity of methylamphetamine to an undercover police operative (415 grams across two deliveries, for which he received $30,000), as well as three further supply charges based on drugs found at his home upon arrest, including high-purity heroin, cocaine, and additional methylamphetamine.

Judge Woods sentenced the applicant to a head sentence of five years imprisonment with an effective non-parole period of three and a half years. The applicant sought leave to appeal, arguing that his sentence was unjustifiably disparate compared to sentences imposed on other individuals connected to the same café, and that the sentencing judge had failed to adequately reduce the non-parole period after finding special circumstances.

  • Whether the sentences imposed on other persons connected to the Underground Café operation gave rise to a justifiable sense of grievance warranting parity, such that appellate intervention was warranted.
  • Whether, having found special circumstances, the sentencing judge gave sufficient effect to that finding by reducing the non-parole period.

Decision

The Court of Criminal Appeal dismissed the parity argument entirely, describing it as "totally misconceived." The other individuals whose sentences were relied upon by the applicant were not co-offenders in any meaningful legal sense. They had been sentenced for separate offences by different judges, on different facts, with no relevant overlap with the charges for which the applicant was sentenced. The applicant had not been charged with any offence relating to his admitted supply of drugs to the café, and it would have been an error under the principle in The Queen v De Simoni for the sentencing judge to have treated those admissions as aggravating matters.

Howie J also noted that one of the other individuals had received a sentencing discount for providing assistance to police, a circumstance with no bearing on the applicant's position. Another judge had apparently been misled into believing that sentences imposed on the applicant were relevant to his own sentencing task, which the Court characterised as an unfortunate error. In those circumstances, the applicant had no proper basis to rely on what were effectively unrelated sentences.

On the question of special circumstances and the non-parole period, the Court found that a non-parole period of three and a half years was, if anything, lenient given the seriousness of the offending. The applicant's subjective circumstances, including his drug addiction and rehabilitation efforts while on remand, were not sufficiently remarkable to justify any further reduction. The second ground of appeal was not pressed orally and was not accepted.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle applies between co-offenders sentenced for connected offences; it does not extend to other persons who were separately charged and sentenced for separate offences arising from the same broad investigation.
  • Where a sentencing judge correctly declines to take into account uncharged conduct, the applicant cannot later rely on sentences imposed on others who were charged with offences arising from that same uncharged conduct.
  • Under the principle in The Queen v De Simoni, a sentencing court must not punish an offender for conduct that constitutes an uncharged offence, even where that conduct has been admitted.
  • In dismissing the special circumstances ground, the Court of Criminal Appeal confirmed that modest or unremarkable subjective considerations cannot, of themselves, compel a reduction in an already lenient non-parole period.
  • The Court observed that the overall sentence of five years was at the lowest end of what could be justified, given the volume and purity of the drugs involved and the commercial nature of the enterprise.

Legislation and Cases Referenced

Legislation:
- Justices Act 1902 (NSW), s 51A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 29

Cases:
- The Queen v De Simoni (1981) 147 CLR 383