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Court of Criminal Appeal 1 April 2003

R v Panagakos

[2003] NSWCCA 81

Also reported as 138 A Crim R 538
Drugs
CRIMINAL LAW FORM 1 OFFENCE ANOTHER OFFENDER EARLIER SENTENCED PARITY WHETHER SENTENCE EXCESSIVE.

Citation: Panagakos v R [2003] NSWCCA 81
Court: NSW Court of Criminal Appeal
Date: 1 April 2003
Judge(s): Studdert J; Smart AJ

Background

The applicant was one of four people involved in a drug supply network operating out of a hotel in Kings Cross. He worked twelve-hour shifts selling heroin and cocaine in small balloon-wrapped capsules from a room on the third floor. He was arrested in August 2000 after police surveillance and telephone monitoring, having been involved in the operation from April of that year.

The applicant pleaded guilty to supplying a large commercial quantity of heroin, an offence carrying a maximum penalty of life imprisonment under the Drug Misuse and Trafficking Act. A further offence of supplying a commercial quantity of cocaine was taken into account on a Form 1 (a procedure allowing a court to take additional offences into account when sentencing, without recording a separate conviction). The District Court sentenced him to ten years imprisonment with a non-parole period of seven years and six months.

The applicant sought leave to appeal against that sentence, arguing the sentencing judge had made errors in applying the parity principle and in assessing the discount for his guilty plea. The parity argument centred on the sentence received by a co-offender, Tony Ganem, who had been sentenced earlier by a different judge.

  • Whether the sentencing judge correctly applied the parity principle when comparing the applicant's sentence to that of co-offender Ganem
  • Whether the discount allowed for the applicant's guilty plea was adequate
  • Whether the non-parole period of seven years and six months was excessive in light of the comparable sentence imposed on Ganem

Decision

Ganem had been sentenced by Judge Armitage, who determined that but for Ganem's assistance to authorities, he would have imposed a head sentence of ten years with a non-parole period of six years. Because of that assistance, Ganem's actual sentence was reduced by fifty percent. The Court of Criminal Appeal considered those pre-discount figures as the appropriate reference point for the parity comparison.

Studdert J found that the ten-year head sentence imposed on the applicant was consistent with the parity principle and did not require adjustment. The meaningful error lay in the non-parole period. A non-parole period of seven years and six months for the applicant, compared to the six-year non-parole period Judge Armitage had identified as appropriate for Ganem (before discounting for assistance), gave rise to a justifiable sense of grievance.

The Court acknowledged some points of distinction between the two offenders: the applicant was approximately ten years older than Ganem and would not need to assume a new identity upon release, both of which were factors favouring a slightly higher non-parole period for the applicant. However, the applicant shared other mitigating features with Ganem, including prior good character, no prior imprisonment, and reasonable rehabilitation prospects. Balancing those factors, the Court set the non-parole period at six years and six months.

The Court did not provide detailed reasons on the guilty plea discount ground, as the parity error was sufficient to warrant resentencing.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence quashed
  • In substitution: imprisonment for ten years, commencing 3 August 2000 and expiring 2 August 2010, with a non-parole period of six years and six months commencing 3 August 2000 and expiring 2 February 2007

Key Takeaways

  • The parity principle requires a court to compare a co-offender's sentence, including any notional pre-discount figures identified in that earlier sentencing, not merely the final discounted term actually imposed.
  • Where a co-offender received a sentencing discount for assistance to authorities, the sentencing court should look to the pre-discount benchmark when assessing parity for an offender who gave no such assistance.
  • A non-parole period that is materially higher than the comparable figure applied to a co-offender, without adequate justification in the differences between the two offenders, may give rise to a justifiable sense of grievance sufficient to constitute error.
  • Distinctions between co-offenders, such as age and the need to assume a new identity upon release, can warrant some adjustment in the non-parole period even where the head sentence remains aligned.
  • In dismissing any need to alter the ten-year head sentence, the Court of Criminal Appeal confirmed that parity analysis can result in correction of the non-parole period alone, leaving the overall head sentence undisturbed.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act, s 33(3)
- Crimes (Sentencing Procedure) Act 1999, s 32

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 [2002] NSWCCA 518
- R v Thompson (2000) 49 NSWLR 383