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Court of Criminal Appeal 15 April 2004

R v Frazer

[2004] NSWCCA 111

Drugs
APPEAL AGAINST SENTENCE SUPPLY PROHIBITED DRUG OFFENDER PARITY PRINCIPLE

Citation: Frazer v R [2004] NSWCCA 111
Court: NSW Court of Criminal Appeal
Date: 15 April 2004
Judge(s): Sully J, Dowd J, Smart AJ

Background

The appellant was convicted by a jury in the District Court of supplying amphetamine on an ongoing basis over approximately one month in late 1999, an offence carrying a maximum penalty of 20 years' imprisonment. He and a co-offender, Walmsley, had operated a joint drug supply enterprise in the Maitland and Singleton regions. Both sentencing judges found that the appellant was the dominant party in the enterprise, with Walmsley playing a subordinate role and acting on the appellant's directions.

Walmsley had been sentenced separately in 2001, receiving a head sentence of two and a half years with a 15-month non-parole period, after pleading guilty and receiving a 20 per cent discount. He had no other matters taken into account and no prior criminal record. The appellant, by contrast, faced six additional charges taken into account on a Form 1 (a procedural mechanism by which a court sentences an offender for other outstanding offences at the same time), including a supply of one kilogram of pseudoephedrine and an assault causing lacerations with a baseball bat.

Nicholson DCJ sentenced the appellant to five years' imprisonment with a three-year non-parole period. The appellant sought leave to appeal out of time, arguing that the disparity between his sentence and Walmsley's gave rise to a justifiable sense of grievance.

  • Whether the disparity between the appellant's sentence and the sentence imposed on his co-offender Walmsley breached the parity principle in sentencing.
  • Whether Nicholson DCJ erred in failing to give adequate weight to the parity principle when sentencing the appellant.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Dowd J, with whom Sully J and Smart AJ agreed, found that the sentencing judge had carefully considered the co-offender's sentence and the relevant differences between the two offenders.

The court applied the parity principle as stated in Lowe v R (1984) 154 CLR 606: co-offenders should receive equal sentences where other things are equal, but differences in role, background, criminal history, and character are all legitimately relevant. Here, the differences were substantial. The appellant was the more significant operator, had multiple serious matters taken into account on the Form 1 (including the kilogram pseudoephedrine charge), did not plead guilty, and had stronger objective criminality overall. Walmsley, by contrast, had pleaded guilty at an early stage, had no prior record, and had stronger subjective matters in his favour.

The court held that these differences fully explained the sentencing disparity and that the appellant had no basis for a justifiable sense of grievance. No error in the application of the parity principle was established.

Orders Made

  • Extension of time to bring the application for leave to appeal granted.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle requires equal sentences for co-offenders only where other things are equal; where they are not, sentencing courts are entitled to differentiate.
  • A justifiable sense of grievance, the threshold for appellate intervention on parity grounds, was not established where differences in role, plea, criminal history, and objective criminality accounted for the sentencing gap.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that both the sentencing judge and the judge who sentenced the co-offender had consistently found the appellant to be the dominant party, lending weight to the disparity in outcomes.
  • Additional offences taken into account on a Form 1, including a supply of a large quantity of a drug precursor, are a legitimate basis for differentiating a sentence from that of a co-offender who faced no such matters.
  • Under Postiglione v R and Lowe v R, an appellate court will intervene where a sentencing judge wrongly fails to apply the parity principle, but no such failure was found on the facts here.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A

Cases:
- Lowe v R (1984) 154 CLR 606
- Postiglione v R (1997) 189 CLR 295
- R v Tiddy (1969) SASR 575