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Court of Criminal Appeal 10 November 2005

Regina v Martin

[2005] NSWCCA 381

Drugs
SENTENCING DIFFERENT SENTENCES FOR CO OFFENDERS SPECIAL CIRCUMSTANCES NO ERROR SENTENCE NOT MANIFESTLY EXCESSIVE

Citation: Regina v Martin [2005] NSWCCA 381
Court: New South Wales Court of Criminal Appeal
Date: 10 November 2005
Judge(s): McClellan CJ at CL, Hislop J, Rothman J

Background

The applicant pleaded guilty in the District Court to supplying a commercial quantity of heroin contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offending involved a joint enterprise with her sister to purchase and on-sell approximately one kilogram of heroin between May and July 2002, operating through networks on the NSW north coast and in Sydney.

The District Court sentenced the applicant to eight years' imprisonment with a non-parole period of six years, commencing December 2003. Three co-offenders, including the applicant's sister, a heroin supplier, and the person who ran the Sydney network, received shorter sentences ranging from approximately five and a half to just over seven years.

The applicant sought leave to appeal on the grounds that the sentence was manifestly excessive, that it was disproportionate to the sentences her co-offenders received, and that the sentencing judge erred in declining to find special circumstances (which, if found, would have altered the statutory ratio between the head sentence and the non-parole period).

  • Whether the sentence of eight years with a six-year non-parole period was manifestly excessive in all the circumstances.
  • Whether the disparity between the applicant's sentence and those of her co-offenders gave rise to a justified sense of grievance warranting appellate intervention under the parity principle.
  • Whether the sentencing judge erred in declining to make a finding of special circumstances despite the applicant's diagnosis of Attention Deficit Hyperactivity Disorder (ADHD).

Decision

Manifest excess: The Court of Criminal Appeal was not persuaded that the sentence was manifestly excessive. The sentencing judge had regard to the commercial scale of the enterprise, the applicant's extensive and serious criminal history dating back to 1970, and the need for general deterrence. A full-term sentence of at least ten years was considered warranted before a 20 percent discount for the early guilty plea was applied. The Court of Criminal Appeal found no basis to conclude that a lesser sentence was warranted in law.

Parity: The Court confirmed that the parity principle applies only where all relevant factors as between co-offenders are equal. Here, the differences between the applicant and each co-offender were substantial. The applicant's sister, though involved in a similar enterprise, had a less serious criminal history. The supplier, Mr Honeyset, played a different role described as analogous to a high-level courier, was older, had longer periods free of conviction, and had a better rehabilitation prognosis. The Court found no error in the sentencing judge's approach to these distinctions.

Special circumstances: The Court noted that the sentencing judge had in fact taken the ADHD diagnosis into account when determining the head sentence, reducing the weight given to specific deterrence. Hislop J confirmed, citing R v Fidow [2004] NSWCCA 172, that the mere presence of a factor capable of constituting special circumstances does not compel a judge to vary the statutory non-parole period proportion. The sentencing judge was entitled to conclude that the standard parole period was adequate for rehabilitation and supervision purposes.

Overall: The Court of Criminal Appeal found no identifiable error in the sentencing judge's reasoning and was not satisfied that a less severe sentence was warranted in law. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle does not require equal sentences for co-offenders where genuine differences in role, criminal history, or rehabilitation prospects exist between them.
  • Under the approach confirmed in R v Fidow, identifying a factor capable of constituting special circumstances does not automatically obligate a sentencing court to depart from the statutory non-parole period ratio.
  • A sentencing factor (such as an ADHD diagnosis) may properly be taken into account in fixing the head sentence rather than in adjusting the non-parole period, without error arising.
  • Appellate courts will interfere with a sentence only where error is demonstrated and the court forms a positive opinion that a different sentence is warranted in law, not merely because the appellate court might have sentenced differently.
  • In dismissing the appeal, the Court of Criminal Appeal reinforced that commercial-scale heroin supply operations, particularly those involving organised networks and repeat offenders, attract substantial sentences reflecting the demands of general deterrence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 25A

Cases:
- R v Doan NSWCCA, 27 September 1996 (unreported)
- R v Fidow [2004] NSWCCA 172
- R v Holder (1983) 3 NSWLR 245
- R v MD [2005] NSWCCA 342
- R v Nguyen [2002] NSWCCA 183
- R v Reid [2000] NSWCCA 166
- R v Simpson (2001) 53 NSWLR 704
- R v Steele NSWCCA, 17 April 1997 (unreported)
- R v Tait (1979) 46 FLR 386
- R v X [2004] NSWCCA 93
- Whittaker v The King (1928) 41 CLR 230