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Court of Criminal Appeal 8 March 2002

Regina v Canino

[2002] NSWCCA 76

Drugs
CRIMINAL LAW SENTENCING CROWN APPEAL CANNABIS SENTENCE MANIFESTLY INADEQUATE PARITY

Citation: Regina v Canino [2002] NSWCCA 76
Court: New South Wales Court of Criminal Appeal
Date: 8 March 2002
Judge(s): O'Keefe J (reasons); Stein JA and Buddin J (agreeing)

Background

The respondent pleaded guilty in the District Court to knowingly taking part in the supply of cannabis. The quantity involved was 17.3 kilograms, with a street value of approximately $200,000, which had been accumulated in South Australia and transported to New South Wales for distribution. The respondent played a central coordinating role: sourcing and inspecting the cannabis from multiple suppliers, organising its shipment, travelling to Sydney, and overseeing the physical transfer of the drugs at a location in Casula.

The District Court sentenced the respondent to two years imprisonment but suspended that sentence, placing him on a good behaviour bond. The Crown appealed on the ground that the sentence was manifestly inadequate.

A co-participant, Spagnol, had earlier received a similarly suspended two-year sentence after being characterised by his sentencing judge as a mere courier. The respondent's counsel had argued at sentencing that parity with Spagnol's outcome required an equivalent non-custodial result.

  • Whether the District Court's suspended sentence was manifestly inadequate for an offence of this objective seriousness.
  • Whether the respondent's role was sufficiently comparable to Spagnol's to justify parity in sentencing outcome.
  • Whether a fully custodial sentence was required in the circumstances.
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999, s 44(2).

Decision

The Court of Criminal Appeal found that the sentencing judge had erred in accepting the parity argument. The evidence before the judge at the respondent's sentencing hearing went beyond what had been placed before the judge who sentenced Spagnol. On that fuller evidence, the respondent's involvement was materially greater: he had sourced, inspected, stored, organised the transport of, and personally overseen the handover of the drugs. He was, as the Court put it, no mere courier, and his role was clearly deeper and more fundamental than Spagnol's even on the most generous characterisation of Spagnol's conduct.

The Court held that the starting point for a parity analysis is a comparison of the objective involvement of each offender in the criminal enterprise. It is only after establishing that comparable objective roles exist that a court proceeds to weigh differing subjective circumstances. Here, the respondent's objective involvement was significantly greater, and the parity argument therefore could not get off the ground.

The Court found the suspended sentence to be manifestly inadequate for an enterprise of this scale, conducted as a business, involving interstate importation of a commercial quantity of cannabis. A custodial sentence was required to reflect the community's disapprobation and to deter comparable conduct.

However, the Court accepted that special circumstances existed to justify varying the statutory ratio of non-parole period to total sentence length. Relevant factors included the double jeopardy inherent in a Crown appeal, the period the respondent had spent complying with bond conditions between the District Court sentence and the appeal hearing, and the additional hardship of serving a New South Wales prison term while ordinarily residing in South Australia with his family.

Orders Made

  • Crown appeal allowed.
  • Existing sentence quashed.
  • Respondent sentenced to imprisonment for two years, commencing 6 March 2002 and expiring 5 March 2004.
  • Respondent eligible for parole from 6 December 2002.

Key Takeaways

  • A parity argument in sentencing requires a genuine comparison of each offender's objective role in the criminal enterprise before subjective circumstances are weighed. Where one offender's objective involvement is substantially greater, parity with a more leniently sentenced co-participant cannot be maintained.
  • The District Court erred by treating the respondent's role as comparable to that of a courier, when evidence before it revealed a coordinating, supervisory, and quality-control function throughout the operation.
  • Suspended sentences for large-scale, commercially organised drug importation are liable to be regarded as manifestly inadequate. The Court of Criminal Appeal confirmed that a clear custodial message is warranted for interstate drug supply operations of this kind.
  • Special circumstances justifying a reduced non-parole period can arise from a combination of factors, including the double jeopardy of a Crown appeal, compliance with bond conditions during the appellate period, and the additional burden of imprisonment away from a family based in another state.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, courts retain discretion to depart from the standard non-parole ratio where special circumstances are established on the particular facts.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (standard non-parole period ratio) and s 12 (suspended sentences)
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeals against sentence)

Cases:
- Lowe v The Queen (1984) 154 CLR 606 (parity in sentencing)