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Court of Criminal Appeal 3 September 2004

R v Mucenski

[2004] NSWCCA 299

Drugs
DISPARITY FROM SENTENCE OF CO OFFENDER

Citation: R v Mucenski [2004] NSWCCA 299
Court: New South Wales Court of Criminal Appeal
Date: 3 September 2004
Judge(s): Wood CJ at CL, Hidden J, Smart AJ

Background

The applicant pleaded guilty in the District Court to ongoing supply of cocaine under s 25A of the Drug Misuse and Trafficking Act 1985, carrying a maximum of 20 years imprisonment, and to unauthorised possession of a replica pistol. Additional charges of cannabis possession and possession of drug-use equipment were dealt with on a Form 1 (a procedural mechanism allowing related charges to be taken into account at sentencing without separate conviction).

The applicant and his then de-facto partner had jointly supplied cocaine to an undercover police officer on four occasions in December 2002 in south-western Sydney. Each transaction involved small quantities purchased for $100. Both were nineteen years old at the time and both pleaded guilty at the earliest opportunity. The partner received a sentence of three years with a non-parole period of two years and three months, to be served by way of periodic detention. A Crown appeal against her sentence was dismissed.

The District Court sentenced the applicant to six years imprisonment with a non-parole period of four and a half years on the supply charge. He sought leave to appeal, arguing primarily that the gap between his sentence and his co-offender's was unjustifiably large.

  • Whether the sentencing judge erred by imposing a sentence that was unjustifiably disparate from the sentence received by the co-offender
  • Whether the respective roles and moral culpability of the applicant and his co-offender were properly assessed
  • Whether the applicant's subjective circumstances, including youth, difficult upbringing, rehabilitation prospects, and early guilty plea, were adequately reflected in the sentence

Decision

The Court of Criminal Appeal found that the disparity between the applicant's sentence and his co-offender's was not sufficiently explained by differences in their circumstances. While the applicant bore greater responsibility as the instigator and principal in the drug dealing, and had a prior criminal record (including being on a bond at the time of the offences), the co-offender herself was not a passive bystander. She answered calls about drug deals, concealed drugs on her person at his direction, and derived financial benefit from the arrangement. The Crown had submitted at first instance that the two were equally involved.

Hidden J acknowledged that the applicant's criminality was more serious in certain respects, particularly because he was subject to conditional liberty at the time. However, the Court found the six-year term was manifestly excessive when measured against the co-offender's sentence, even accounting for the legitimate differences between them.

In re-sentencing, Hidden J took the relevant aggravating and mitigating factors into account under the Crimes (Sentencing Procedure) Act 1999. Starting from a notional term of five and a half years, the Court applied a 20 percent reduction for the guilty plea and remorse, arriving at four years and four months. Special circumstances were found to exist, warranting a shorter than usual non-parole period, based on the applicant's youth, his prospects of rehabilitation, and the fact that this was his first custodial sentence. A non-parole period of two and a half years was fixed.

Orders Made

  • Leave to appeal granted and appeal allowed
  • Sentence on the ongoing supply charge quashed; in lieu, the applicant sentenced to 4 years and 4 months imprisonment from 28 February 2003, with a non-parole period of 2 years and 6 months
  • Sentence on the firearm possession charge confirmed, remaining wholly concurrent
  • Applicant eligible for release on parole on 28 August 2005

Key Takeaways

  • Sentencing disparity between co-offenders can constitute a valid ground of appeal, particularly where the difference in sentences is not adequately explained by differences in culpability or subjective circumstances.
  • A co-offender's apparently lesser role does not automatically justify a significantly lighter sentence if the evidence shows meaningful participation in the criminal enterprise.
  • Under the Crimes (Sentencing Procedure) Act 1999, being subject to conditional liberty at the time of an offence is an aggravating factor, and the Court treated this as an important consideration in re-sentencing.
  • A 20 percent reduction from the notional sentence was applied to reflect the early guilty plea and remorse, though the Court noted that the strength of the Crown case tempered the weight given to remorse.
  • Youth, rehabilitation prospects, and a first custodial sentence can each support a finding of special circumstances, permitting a departure from the standard ratio between head sentence and non-parole period.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A
- Firearms Act 1996 (NSW), s 7
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- R v Collins [2004] NSWCCA 30
- R v Hallocoglu (1992) 29 NSWLR 67