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Court of Criminal Appeal 9 June 2005

R v Barkho

[2005] NSWCCA 211

Drugs

Citation: R v Barkho [2005] NSWCCA 211
Court: NSW Court of Criminal Appeal
Date: 9 June 2005
Judges: Studdert J, Howie J, Latham J

Background

The appellant pleaded guilty in the District Court to supplying methylamphetamine in a quantity not less than the commercial quantity, an offence carrying a maximum penalty of 20 years imprisonment under the Drug Misuse and Trafficking Act. He was sentenced by Delaney DCJ to six years imprisonment with a non-parole period of four years, with the sentence backdated to reflect 198 days already served in custody.

The offence involved the appellant coordinating the delivery of approximately 1,900 methylamphetamine tablets to an undercover police operative through a co-offender, Odisho. Police intercepted phone calls, conducted surveillance, and arrested both men at the scene. The appellant had one prior conviction from 1997 for possessing a prohibited drug, for which he had been fined only.

The appellant sought leave to appeal his sentence, arguing that the sentencing judge had failed to properly account for the relative differences in criminal history between himself and the co-offender, and had not given sufficient weight to other subjective factors.

  • Whether the sentencing judge erred in failing to adequately distinguish the appellant's lesser criminal history from that of the co-offender, Odisho
  • Whether any error in the sentencing remarks about the appellant's prior convictions affected the sentence actually imposed
  • Whether the sentence imposed was manifestly excessive in all the circumstances

Decision

The Court granted leave to appeal and allowed the appeal, finding that the sentencing judge had not adequately accounted for the difference in criminal histories between the appellant and Odisho. Odisho had a more significant criminal background, and this distinction warranted a more lenient outcome for the appellant than the sentence he actually received.

The Court addressed a concern that the sentencing remarks contained an apparent reference to "previous convictions" in the plural. The Court noted the judge had correctly recorded the single 1997 conviction on two earlier occasions in the same remarks, and was not persuaded the judge had actually proceeded on a mistaken factual basis about the appellant's history.

On parity, the Court accepted that, absent the greater discount Odisho received for the earlier timing of his guilty plea, the appellant ought to have received a less severe sentence than his co-offender. The fifteen percent discount the sentencing judge had allowed for the appellant's guilty plea was not disturbed. Taking all relevant matters into account, the Court resentenced the appellant to five years and three months imprisonment. The finding of special circumstances, which justified a shorter non-parole period relative to the total term, was also allowed to stand.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence quashed
  • Appellant resentenced to five years three months imprisonment commencing 17 November 2003 and expiring 16 February 2009, with a non-parole period of three years six months commencing 17 November 2003 and expiring 16 May 2007, bringing into account the Form 1 offence of cannabis possession

Key Takeaways

  • A meaningful difference in criminal history between co-offenders can justify a sentencing disparity, and failure to give that difference adequate weight may constitute a sentencing error warranting appellate intervention.
  • Where a sentencing judge's remarks contain an apparent inconsistency about a defendant's prior convictions, the Court will examine the remarks as a whole before concluding that the judge proceeded on a wrong factual basis.
  • Parity in sentencing between co-offenders is not applied mechanically: a co-offender who entered a guilty plea at an earlier stage may legitimately receive a greater discount, meaning an ostensibly similar head sentence does not necessarily reflect equal treatment.
  • Under the Crimes (Sentencing Procedure) Act, a finding of special circumstances can justify a non-parole period that represents a proportionally smaller fraction of the total term, and such a finding may survive an appeal even where the head sentence is reduced.
  • Commercial quantity drug supply offences attract a maximum of 20 years imprisonment under s 33(2) of the Drug Misuse and Trafficking Act, and the sentencing court must carefully calibrate the sentence against the full range of objective and subjective considerations, including comparisons with co-offenders.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act, ss 21A, 44
- Drug Misuse and Trafficking Act, s 33

Cases:
- R v Hauser (unreported, NSWCCA, 11 December 1997)
- R v Lowe (1982-83) 154 CLR 606