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Supreme Court 8 March 2002

Regina v Canino

[2002] NSWSC 161

Drugs
CRIMINAL LAW SENTENCING CROWN APPEAL CANNABIS SENTENCE MANIFESTLY INADEQUATE PARITY

Citation: Regina v Canino [2002] NSWSC 161
Court: NSW Court of Criminal Appeal (Supreme Court)
Date: 8 March 2002
Judge(s): O'Keefe J (with reasons); Stein JA and Buddin J agreeing

Background

The respondent pleaded guilty in the District Court to knowingly taking part in the supply of 17.3 kg of cannabis, with a street value of approximately $200,000. The cannabis had been accumulated in South Australia by the respondent, who sourced it from multiple suppliers, inspected its quality, coordinated its storage, and oversaw its transport to New South Wales for distribution. The maximum penalty for the offence was ten years imprisonment.

District Court Judge Coorey sentenced the respondent to two years imprisonment but suspended the sentence, allowing him to serve the time on a good behaviour bond. The Crown appealed to the Court of Criminal Appeal on the ground that the sentence was manifestly inadequate.

A co-participant, Spagnol, had previously received a similarly suspended two-year sentence after being sentenced as a mere courier. The respondent's counsel had argued at the original sentencing that parity required an equivalent sentence, but the evidence before the District Court at the respondent's hearing painted a more substantial picture of Spagnol's involvement than the court that sentenced Spagnol had received.

  • Whether the suspended sentence imposed on the respondent was manifestly inadequate for a person playing an organising and supervisory role in a large cannabis supply operation.
  • Whether the parity principle required the respondent's sentence to mirror that of Spagnol, given Spagnol had also received a suspended sentence.
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the total sentence under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

Decision

O'Keefe J, with whom Stein JA and Buddin J agreed, allowed the Crown appeal. The court found that the respondent's role was far more significant than that of a courier. Intercepted telephone conversations showed the respondent actively sourcing the cannabis, inspecting it for quality, directing others in handling it, coordinating logistics with co-participants, and personally travelling to Sydney to oversee the transfer of drugs. This was the conduct of an organiser and supervisor, not a peripheral participant.

On parity, the court rejected the argument that the respondent's sentence should match Spagnol's. The parity principle, drawn from Lowe v The Queen (1984) 154 CLR 606, requires comparison of both the objective involvement and the subjective circumstances of co-offenders. The respondent's objective role was plainly deeper and more fundamental than Spagnol's, and the subjective factors applicable to the respondent did not justify the same outcome. Accordingly, parity did not support a suspended sentence.

The court held that a full custodial sentence was required to reflect the community's condemnation of drug importation for distribution. The least sentence that should have been imposed at first instance, taking into account double jeopardy, the passage of time, the respondent's compliance with the bond, and relevant subjective factors, was two years imprisonment to be served in full.

Special circumstances were found to exist, justifying a departure from the standard non-parole ratio under s 44(2). Relevant factors included the double jeopardy the respondent faced on appeal, his compliance with bond conditions in the intervening period, and the additional hardship of being imprisoned in New South Wales while his family resided in South Australia.

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

  • The parity principle does not operate mechanically to equalise sentences between co-offenders. A sentencing court must compare both the objective roles of the offenders within the criminal enterprise and their respective subjective circumstances before drawing any meaningful comparison.

  • Where the evidence before a later sentencing court reveals a co-offender's role to have been more significant than found at an earlier sentence, that earlier outcome does not set a ceiling for the later sentence.

  • A suspended sentence was held inappropriate for an offender who played an organising, supervisory, and coordinating role in a large commercial cannabis supply operation, even where a co-participant received equivalent formal treatment at first instance.

  • Special circumstances justifying a reduction in the non-parole period can include the double jeopardy inherent in a Crown appeal, an offender's post-sentence compliance with bond conditions, and the additional burden of being imprisoned away from family.

  • In Crown appeals, the Court of Criminal Appeal confirmed its task is to impose the least sentence that the District Court should have imposed, adjusted for double jeopardy and the time elapsed since the original sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2) (statutory non-parole ratio)
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeal against sentence)

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