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Court of Criminal Appeal 14 March 2003

REGINA v VASQUEZ

[2003] NSWCCA 94

Drugs
PARITY IN SENTENCING OFFENDERS OF THE SAME OFFENCE DIFFERING DEGREES OF SERIOUSNESS.

Citation: Regina v Vasquez [2003] NSWCCA 94
Court: NSW Court of Criminal Appeal
Date: 14 March 2003
Judges: Meagher JA, Dowd J, Barr J

Background

The applicant pleaded guilty in the District Court to being knowingly concerned in the importation of 649.5 grams of cocaine (pure weight), an offence under the Customs Act 1901 (Cth). He was sentenced in January 2000 to nine years imprisonment with a non-parole period of six years, backdated to January 1999. The sentencing judge found that the applicant had played a very significant role in organising and collecting the prohibited import and was directly involved in its unpacking.

The applicant's co-offender, who had been present in the vehicle when the package was collected, was originally charged with the same offence but ultimately pleaded guilty to the lesser charge of attempting to possess a prohibited import. That plea was accepted on the basis that the co-offender lacked knowledge of the importation. He was sentenced in July 2002 to a head sentence of four years and four months with a non-parole period of two years and four months, and was released to parole on the day of sentencing.

The applicant sought an extension of time to appeal his sentence, arguing that the disparity between his sentence and the co-offender's later, substantially shorter sentence gave rise to a justifiable sense of grievance warranting a reduction.

  • Whether the applicant was entitled to an extension of time to seek leave to appeal on the ground of sentencing disparity
  • Whether the parity principle required the applicant's sentence to be reduced in light of the co-offender's significantly lower sentence
  • Whether the parity principle, developed for co-offenders convicted of the same offence, applied where the two offenders had ultimately been sentenced for different offences of differing seriousness

Decision

The Court of Criminal Appeal granted the extension of time and leave to appeal, but dismissed the appeal. Dowd J (with whom Meagher JA and Barr J agreed) reasoned that the two men had, by the time of the co-offender's sentencing, been dealt with for materially different offences reflecting materially different degrees of culpability.

The co-offender was sentenced on the explicit basis that he had no knowledge of the importation itself. By contrast, the applicant had organised the importation, arranged collection using a false business name linked to his phone number, attended customs on multiple occasions, and signed for the package in his own name. The sentencing judge had found the applicant's role to be very significant.

The parity principles from Lowe v The Queen (1984) 154 CLR 606 and R v Hauser concern co-offenders convicted of the same offence. Dowd J held those principles do not apply with the same force where offenders have been convicted of different offences carrying different degrees of seriousness. Given the substantial difference in the nature and gravity of the two offences, the applicant could not sustain a justifiable sense of grievance from the comparison.

The Court also noted that the judge who sentenced the co-offender had calculated that a slightly longer sentence (by five to nine months) would otherwise have been appropriate, but declined to impose it because the co-offender had already been released and was progressing through rehabilitation. Dowd J regarded that reasoning as proper and not a basis for grievance on the applicant's part.

Orders Made

  • Time for bringing the appeal extended
  • Leave granted to bring the appeal
  • Appeal dismissed

Key Takeaways

  • The parity principle, which guards against unjustifiable disparity between sentences imposed on co-offenders, applies most directly where those co-offenders have been convicted of the same offence. The Court of Criminal Appeal confirmed it does not apply with the same precision where offenders have ultimately been sentenced for different offences of differing seriousness.
  • A substantial difference in the underlying facts, particularly the presence or absence of knowledge of importation, can justify a substantial difference in sentence even where two people were arrested together in the same incident.
  • In dismissing the appeal, the Court found no justifiable sense of grievance where the applicant's role was significantly more culpable than the co-offender's and the offences for which they were ultimately sentenced were legally and factually distinct.
  • A sentencing court's decision not to impose a marginally longer sentence on a co-offender who has already been released and is rehabilitating was treated as a proper exercise of discretion, rather than a sentencing error that could reflect back on the original sentence.
  • Where a co-offender's later sentencing judgment makes no reference to an earlier sentence, that omission does not itself prevent the earlier-sentenced offender from raising parity on appeal, but the Court will assess the substance of any alleged disparity on its merits.

Legislation and Cases Referenced

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

Cases:
- Lowe v The Queen (1984) 154 CLR 606
- R v Krausman (unreported, NSWCCA, 10 October 1991)
- R v Hauser (unreported, NSWCCA, 11 December 1977)
- R v Young [1999] NSWCCA 275