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10
Court of Criminal Appeal 9 June 2005

Regina v Do

[2005] NSWCCA 209

Drugs
CRIMINAL LAW SENTENCING ISSUE OF PARITY BETWEEN CO OFFENDER.

Citation: Regina v Do [2005] NSWCCA 209
Court: New South Wales Court of Criminal Appeal
Date: 9 June 2005
Judge(s): Studdert J, Howie J, Latham J

Background

The applicant was convicted after trial of two counts of supplying a prohibited drug in a large commercial quantity, one count relating to heroin and the other to cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offences arose from a drug supply syndicate operating out of Fairfield between November 2001 and February 2002, which the Crown alleged involved buying pure heroin and cocaine, adulterating and repackaging it, and selling it through runners. The syndicate was estimated to have dealt with six kilograms of heroin and 1.5 kilograms of cocaine over the relevant period.

The applicant was one of three brothers involved in the syndicate. The sentencing judge found that the applicant was "actively involved in the business" and was "a significant person in the venture," including managing the operation for two weeks while his brothers were overseas. His brother Danny Do, who was convicted after trial on the same charges, was found to have played a "passive" role.

The District Court sentenced the applicant to a total of 12 years imprisonment with a non-parole period of nine years. Danny Do received a total sentence of eight years with a non-parole period of four years, with the sentencing judge finding special circumstances in Danny's case to justify a reduced non-parole period ratio. The applicant sought leave to appeal, arguing the gap between his sentence and Danny's was disproportionate, and that the sentencing judge should also have found special circumstances in his case.

  • Whether the four-year difference in total sentences between the applicant and his co-offender Danny Do gave rise to an unjustifiable sentencing disparity, given their different levels of involvement.
  • Whether the sentencing judge erred by failing to find special circumstances in the applicant's case, particularly when special circumstances had been found for Danny Do, whose sentence attracted a shorter non-parole period ratio.

Decision

On the disparity ground, the Court of Criminal Appeal accepted that the applicant and Danny Do were found to have played meaningfully different roles. The sentencing judge was best placed to assess those differences and to translate them into terms of imprisonment. The Court found no error in the judge's approach and concluded that the four-year gap in total sentences was justified by the different levels of criminality attributed to each brother.

The Court acknowledged that a disparity in sentences can arise even where co-offenders have different roles, if the quantification of that difference is disproportionate. However, on the facts here, the Court was not persuaded that the difference was excessive. The applicant's counsel had properly conceded that different sentences were open; the question was only whether the quantum of the difference was appropriate, and the Court found it was.

On the special circumstances ground, the Court held that the sentencing judge made no error. Howie J reasoned that the relevance of a special circumstances finding changes as the head sentence increases: a longer head sentence under the statutory ratio produces a longer parole period, making a further reduction less necessary and less appropriate. A 12-year head sentence already produced a three-year parole period, which the Court considered ample for the applicant's rehabilitation needs. The fact that special circumstances were found for Danny Do, who received an eight-year head sentence, did not require the same finding for the applicant.

The Court also observed that the more serious the criminality, the less appropriate it is to reduce the non-parole period, since doing so may fail to reflect the gravity of the offending or provide adequate denunciation.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A disparity argument between co-offenders can still be raised where different roles have been found, but the question becomes whether the sentencing judge has quantified the difference in a way that is disproportionate to the actual difference in criminality.
  • Where co-offenders have demonstrably different levels of involvement in a joint criminal enterprise, a sentencing court is entitled to impose meaningfully different total sentences without that gap constituting an unjustifiable disparity.
  • A finding of special circumstances for one co-offender does not automatically entitle another co-offender to the same finding, particularly where the two offenders received different head sentences.
  • As a head sentence increases, the statutory non-parole period ratio tends to produce a parole period of sufficient length for supervision and rehabilitation, making a special circumstances reduction progressively less warranted.
  • Greater seriousness of offending weighs against reducing a non-parole period, since a shortened non-parole period may not adequately reflect the gravity of the conduct or serve the sentencing purpose of denunciation.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33(3)

Cases
- R v Hauser (NSWCCA, unreported, 11 December 1997)
- Markarian v The Queen [2005] HCA 25
- R v Bell [1999] NSWCCA 423
- R v Wahabzadah [2001] NSWCCA 253
- R v Muavae [2000] NSWCCA 88