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Court of Criminal Appeal 7 December 2004

Regina v PHA

[2004] NSWCCA 445

Drugs
CRIMINAL LAW SENTENCING APPEAL AGAINST SEVERITY OF SENTENCE OPERATION OF PARITY PRINCIPLE SENTENCE OF CO

Citation: Regina v PHA [2004] NSWCCA 445
Court: NSW Court of Criminal Appeal
Date: 7 December 2004
Judge(s): McColl JA; Levine J; Hidden J

Background

The applicant and a co-offender (Salcedo) were apprehended at Sydney Airport on 21 September 2002 after returning from an overseas trip. Customs officers found both men had packages of ecstasy tablets strapped to their bodies. The combined gross weight of the drugs was 684.2 grams, with the pure MDMA found on the applicant weighing 169.8 grams, estimated to be worth around $150,000 at street prices.

The sentencing judge in the District Court found that both men were principals rather than mere couriers. Although the importation was primarily for personal use, the judge accepted an inescapable inference that some tablets would have been sold to recoup costs. The applicant pleaded guilty to importing a trafficable quantity of MDMA and to importing anabolic steroids without approval.

The applicant received a sentence of five years and three months imprisonment with a non-parole period of three years and six months. He appealed on the ground that his sentence was manifestly excessive, relying substantially on the parity principle by reference to the sentence imposed on his co-offender Salcedo, whose sentencing history was itself complicated.

  • Whether the applicant's sentence was manifestly excessive when compared with the sentence imposed on his co-offender Salcedo (the parity principle)
  • Whether the sentencing judge erred in the discount afforded to the applicant for his assistance to authorities
  • Whether the sentencing judge adequately explained the basis for extending leniency and properly addressed the requirement that the sentence reflect the gravity of the offence

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the substantive appeal. McColl JA (with whom Levine J and Hidden J agreed) analysed the somewhat unusual procedural history of the co-offender's sentencing, in which Salcedo had first been sentenced on 1 April 2003 and then resentenced on 31 July 2003, the same day the applicant was sentenced.

On the parity argument, the Court found that the sentencing judge had fallen into error when originally sentencing Salcedo by extending leniency that was not adequately explained or justified. The judge himself acknowledged this error when resentencing Salcedo. The parity principle does not require a co-offender to benefit from a sentence that was itself the product of error, and the applicant could not use Salcedo's flawed original sentence as a baseline for his own.

McColl JA also observed that neither the applicant nor Salcedo was entitled to leniency beyond their pleas of guilty and, in the applicant's case, his assistance to authorities. The sentencing judge had never adequately explained any additional basis for leniency, and the Court noted that the nature of the offences actually warranted stern punishment. However, the discount afforded for the assistance to authorities, though minimal, was within the sentencing judge's discretion given his assessment of the assistance provided and the need to ensure the sentence remained appropriately severe overall.

The Court found no error warranting intervention in the sentence as imposed, and the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Substantive appeal dismissed

Key Takeaways

  • The parity principle does not entitle a co-offender to match a sentence that was itself the product of sentencing error; the principle operates by reference to a proper sentence, not an erroneous one.
  • Where a sentencing judge extends leniency to an offender, the basis for that leniency must be explained and grounded in an accepted principle of criminal law; unexplained leniency will not withstand appellate scrutiny.
  • A minimal discount for assistance to authorities may nonetheless fall within the sentencing judge's discretion, particularly where the court must also ensure the sentence reflects the gravity of the offence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that importing ecstasy as a principal with a partly commercial element warrants stern punishment, even where personal use was the primary purpose.
  • Under the relevant provisions of the Customs Act 1901 (Cth), the maximum penalty for importing not less than a trafficable quantity of ecstasy where resale is inferred is a fine of up to 5,000 penalty units or 25 years imprisonment, or both.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A, 16A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Criminal Code Act 1995 (Cth)
- Customs Act 1901 (Cth), ss 233B, 233BAA(4), 235
- Passports Act 1938 (Cth), s 9A

Cases:
- AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
- R v Barrientos [1999] NSWCCA 1
- R v Bourchas [2002] NSWCCA 373; (2002) 133 A Crim R 413
- R v Cartwright (1989) 17 NSWLR 243
- R v Chu (NSWCCA, unreported, 16 October 1998)
- R v El Hani [2004] NSWCCA 162
- R v Gallagher (1991) 23 NSWLR 220
- R v Salcedo [2004] NSWCCA 430
- R v Schofield [2003] NSWCCA 3; (2003) 138 A Crim R 19
- R v Shepherd [2003] NSWCCA 287; (2003) 142 A Crim R 101
- Wong v R [2001] HCA 64; (2001) 207 CLR 584