Citation: Regina v Nastoski [2002] NSWCCA 528
Court: NSW Court of Criminal Appeal
Date: 20 December 2002
Judge(s): Adams J; Smart AJ
Background
The applicant pleaded guilty to one count of supplying methylamphetamine during a period in mid-1999. He had been one of the drug suppliers for a man named Droubi, providing 100 tablets and later taking back 37 due to their poor quality. The District Court sentenced him to 18 months imprisonment with a non-parole period of 10 months.
A co-offender, referred to as Dabaja, had also been sentenced in connection with Droubi's drug supply operation. Dabaja's role involved assisting Droubi more broadly, and he was sentenced for three offences rather than one. The applicant sought leave to appeal his sentence on the basis that a significant and unjustifiable disparity existed between his sentence and Dabaja's.
Legal Issues
- Whether the difference in sentences between the applicant and his co-offender Dabaja gave rise to a legitimate sense of grievance warranting appellate intervention, applying the principle in The Queen v Lowe (1984) 154 CLR 606.
- Whether confidential material tendered at Dabaja's sentencing, and considered under section 23 of the Crimes (Sentencing Procedure) Act 1999, sufficiently explained any apparent disparity so as to defeat the applicant's grievance argument.
Decision
The applicant acknowledged that his disparity argument could not succeed if Dabaja's sentence had been materially affected by confidential assistance-related material of the kind contemplated by section 23 of the Crimes (Sentencing Procedure) Act 1999. The sentencing judge who dealt with Dabaja had referred to that provision, signalling that such material had been taken into account.
To address the difficulty that neither the applicant nor the Crown knew the contents of the sealed envelopes, the applicant obtained an order for production of the confidential material. He then asked the Court of Criminal Appeal itself to examine it in order to assess its significance to the disparity question.
The Court reviewed the sealed material in private. Having done so, it was satisfied that, when that material was taken into account, no legitimate grievance arose. The sentences were appropriately calibrated relative to each other, and the appeal was dismissed unanimously.
Orders Made
- Appeal dismissed.
Key Takeaways
- A sentencing disparity argument under The Queen v Lowe will not succeed where the co-offender's sentence was materially influenced by confidential assistance material under section 23 of the Crimes (Sentencing Procedure) Act 1999.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that it can examine confidential sentencing material in sealed form for the limited purpose of resolving a disparity ground, even where neither party has access to that material.
- Factors such as the timing of a guilty plea, the degree of contrition, and prior drug-related convictions are relevant to comparing sentences between co-offenders, but those factors may be outweighed by undisclosed assistance considerations.
- The Court noted that the decision raised no question of general principle, meaning its significance is confined to its specific facts and the procedural mechanism employed.
- No error was established in the sentence imposed at first instance by Latham DCJ in the District Court.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 21A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
Cases:
- The Queen v Lowe (1984) 154 CLR 606 (High Court authority on sentencing disparity between co-offenders)