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2
Court of Criminal Appeal 10 June 2004

REGINA v SJD

[2004] NSWCCA 182

Drugs
SENTENCING PARITY SPECIAL CIRCUMSTANCES

Citation: REGINA v SJD [2004] NSWCCA 182
Court: New South Wales Court of Criminal Appeal
Date: 10 June 2004
Judges: Mason P, Levine J, Kirby J

Background

The appellant was a 22-year-old man with no prior convictions who pleaded guilty in the Local Court to two drug offences under the Drug Misuse and Trafficking Act 1985. The first count involved ongoing supply of MDMA (ecstasy) to an undercover operative over three occasions in June 2002. The second count involved supplying a commercial quantity of MDMA on 6 July 2002, when the appellant and two co-offenders attended a pre-arranged deal and handed over 597 tablets.

In sentencing, the District Court found that the commercial quantity threshold had technically been met by combining the weights of tablets that did and did not contain a prohibited drug. In reality, the tablets that tested positive contained only methylamphetamine at 1% purity, and the actual quantity of prohibited drug supplied fell below the commercial quantity threshold. The appellant argued the charge carried an element of artificiality.

The District Court sentenced the appellant to a fixed term of 1 year on count 1, followed by a cumulative term of 2 years and 6 months on count 2, with a non-parole period of 1 year and 6 months on that second count. The sentencing judge expressly found special circumstances warranting a departure from the standard non-parole ratio but, despite that finding, reduced the aggregate non-parole period by only six weeks. The appellant sought leave to appeal against that outcome.

  • Whether the sentencing judge erred in applying the principle of parity when comparing the appellant's sentence with that of co-offender Mahoney, who received a lesser non-parole period despite more serious overall offending.
  • Whether the sentencing judge's finding of special circumstances was given adequate effect in fixing the non-parole period, given the reduction of only six weeks in the aggregate non-parole period.
  • Whether the Court of Criminal Appeal should intervene and reduce the non-parole period on count 2.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal. Levine J, with whom Mason P and Kirby J agreed, found that the sentencing judge's treatment of special circumstances was erroneous in outcome. Despite detailed attention to the appellant's subjective circumstances, including a psychiatric report, a positive pre-sentence report, constructive use of time in custody, no prior convictions, and fully cumulative sentences, the non-parole period was reduced by only six weeks. That result was inconsistent with the findings his Honour had actually made.

On the parity point, the Court examined the sentence of co-offender Mahoney, who was sentenced by the same judge on the same day. Mahoney received a head sentence of 3 years and 6 months for combined firearms and drug offences, with a non-parole period of 2 years and 3 months, but the head sentences were otherwise comparable in aggregate to those imposed on the appellant. The parity principle (derived from Lowe v The Queen) requires that co-offenders not receive sentences so different as to be unjust, unless the differences are explicable by relevant distinctions. The Court found that the disparity was capable of explanation by objective differences in the offending, but that the treatment of special circumstances independently warranted intervention.

Levine J concluded that the sentencing judge's express finding that the appellant required ongoing community-based rehabilitation, combined with all relevant subjective factors, made it clear the outcome did not reflect the judge's own reasoning. The Court substituted a non-parole period of 1 year on count 2, replacing the original 1 year and 6 months. The head sentence on that count remained unchanged. The Court also took into account fresh evidence on appeal concerning the appellant's continued rehabilitation in custody and the availability of family support and employment on release.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • The non-parole period for count 2 was set aside and replaced with a non-parole period of 1 year, commencing 5 July 2003 and expiring 4 July 2004 (the head sentence of 2 years and 6 months, running from 5 July 2003 to 4 January 2006, was not disturbed).

Key Takeaways

  • A sentencing judge's express finding of special circumstances must be given genuine effect in the calculation of the non-parole period. A reduction of only six weeks in the aggregate non-parole period, despite detailed findings supporting a substantial departure from the standard ratio, was held to be an error warranting appellate intervention.
  • The Court of Criminal Appeal confirmed that the parity principle requires sentences for co-offenders to be explicably consistent, but noted that objective differences in the nature and extent of each offender's criminality can justify sentencing disparity.
  • Where a sentencing judge makes findings about an offender's need for community-based supervision and rehabilitation, those findings carry direct implications for the structure of the sentence, particularly the balance between the non-parole period and the balance of the term.
  • Fresh evidence of rehabilitation and available support on release, placed before the Court of Criminal Appeal by affidavit, was admitted and taken into account in substituting the corrected non-parole period.
  • Fully cumulative sentences, combined with an absence of prior convictions and significant mitigating subjective factors, were identified as reinforcing the need for a meaningful parole period in this case.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25A(1), 25(2), 33(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3
- Firearms Act 1996 (NSW), ss 62(1)(b), 7(1), 36(1)

Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR 295
- Regina v Chen, Siregar, Ismunandar & Lau (2002) 130 A Crim R 300
- Regina v Diamond (unreported, NSWCCA, 18 February 1993)
- Regina v Howard (1992) 29 NSWLR 242
- Regina v Watson (unreported, NSWCCA, 25 February 1982)