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Court of Criminal Appeal 30 April 2003

R v NTSELE

[2003] NSWCCA 111

Also reported as 141 A Crim R 33
Drugs
CROWN APPEAL TWO OFFENDERS SAME CHARGES NO QUESTION OF PARITY DELAY OF CROWN IN FILING APPEAL DISCRETIONARY CONSIDERATIONS

Citation: R v Ntsele [2003] NSWCCA 111
Court: NSW Court of Criminal Appeal
Date: 30 April 2003
Judge(s): Sully J, Levine J, Buddin J (Levine J delivering the principal judgment)

Background

The respondent was sentenced in the District Court on 5 September 2002 following convictions under s 233B(1)(c) of the Customs Act 1901 for two offences: attempting to possess a prohibited import (311.9 grams pure heroin) and possessing a prohibited import (1,307.7 grams pure cocaine). Shillington DCJ imposed concurrent sentences of 6 years with a non-parole period of 3 years and 2 months for each offence, dating from 28 March 2001.

The Commonwealth Director of Public Prosecutions appealed on the ground that the sentences were manifestly inadequate. The notice of appeal was not filed until 5 December 2002, some three months after the Director wrote to the respondent's solicitors on 6 September 2002 advising that an appeal was under consideration. No explanation for that delay was provided to the Court.

A co-accused, Emmanuel Onyeka, had been sentenced separately before Solomon DCJ to an identical 6-year term with the same non-parole period in respect of his role in the same heroin transaction, and a separate cocaine charge involving a much smaller quantity (85.4 grams pure). The Director argued that the sentences for the respondent could not be treated as governed by parity considerations, given the materially different facts applicable to each offender.

  • Whether the principle of parity applied between the respondent and co-offender Onyeka, given that each faced different facts and different charges.
  • Whether the sentence on the cocaine charge was manifestly inadequate, having regard to the quantity of cocaine, the respondent's apparent role, and the sentencing approach taken by Shillington DCJ.
  • Whether the three-month delay in filing the Crown appeal should lead the Court to decline to exercise its discretion to intervene.
  • What weight should be given to the double jeopardy principle (which recognises the extra burden on an offender in being sentenced twice for the same matter) when setting a substituted sentence.

Decision

The Court found that parity was not a live issue. Although both offenders were charged in relation to the same heroin transaction, the objective circumstances differed significantly between them. The respondent was described in the fact materials as a principal of a drug syndicate who had also come to Australia on another person's passport, whereas Onyeka was regarded as a lower-level participant who received a 25 per cent discount for substantial assistance to police. Those differences meant the sentences could not be compared as if the offenders were in the same position.

On manifest inadequacy, the Court found that Shillington DCJ had erred in treating the cocaine offence as warranting the same sentence as the heroin offence. The cocaine charge involved a substantially larger quantity of a serious drug, and the evidence supported a finding that the respondent occupied a higher role in the relevant drug hierarchy. A head sentence of 8 years was appropriate before allowing any discounts, and a 20 per cent reduction for assistance and other mitigating factors was applied.

On the question of delay, the Court acknowledged that the three-month gap between the Director's letter and the filing of the notice of appeal was legitimately open to criticism. The absence of any explanation was noted. However, the Court declined to refuse intervention on discretionary grounds, concluding that the gravity of the offences and the significance of the sentencing errors outweighed the prejudice arising from the delay.

The double jeopardy principle was applied by reducing the non-parole period below what the standard 60 per cent calculation would otherwise produce. The Court set a non-parole period of 4 years across both sentences, representing an increase of 10 months in actual custody over what the original sentence required.

Orders Made

  • The Commonwealth Director's appeal was allowed.
  • The non-parole period on the heroin charge was set aside; the head sentence of 6 years was confirmed, dating from 28 March 2001.
  • The sentence on the cocaine charge was quashed and replaced with a term of 8 years imprisonment, also dating from 28 March 2001.
  • A non-parole period of 4 years was fixed in respect of both sentences, entitling the respondent to release to parole on 27 March 2005.

Key Takeaways

  • Parity between co-offenders does not arise where each offender faces materially different objective facts, even if the charges arise from the same underlying transaction.
  • A Crown appeal based on manifest inadequacy may succeed where the sentencing judge failed to distinguish meaningfully between offences of substantially different gravity, such as charges involving very different drug quantities and different levels of offender involvement.
  • Unexplained delay in filing a Crown sentence appeal is a factor that counts against intervention, but it does not automatically defeat the appeal where the sentencing errors are significant and the offences are grave.
  • The double jeopardy principle operates to moderate an increased sentence imposed on Crown appeal, reflecting the additional burden on an offender who faces re-sentencing after having already served part of a lesser term.
  • In applying totality (the requirement that the overall sentencing outcome not be disproportionate to the total criminality), the Court found that concurrent head sentences of 6 and 8 years were sufficient without any partial or full cumulation.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233B(1)(c)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584
- R v Olbrich (1999) 199 CLR 270
- R v Holder & Johnston (1983) 3 NSWLR 245
- R v Pham & Ly (1991) 55 A Crim R 128
- R v Bernier (1998) 102 A Crim R 44
- The Queen v Karacic (2001) 121 A Crim R 7
- R v Barrientos [1999] NSWCCA 1
- R v Galati [2002] NSWCCA 36
- R v Y [2002] NSWCCA 191
- R v Bardo (NSW CCA, unreported, 14 July 1992)