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Court of Criminal Appeal 16 December 2005

LIU v R

[2005] NSWCCA 450

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE PARITY

Citation: LIU v R [2005] NSWCCA 450
Court: NSW Court of Criminal Appeal
Date: 16 December 2005
Judge(s): McClellan CJ at CL, Studdert J, James J

Background

The appellant pleaded guilty in the District Court to knowingly taking part in the supply of a large commercial quantity of heroin, contrary to the Drug Misuse and Trafficking Act 1985. His role was to transport the drugs from a meeting point and hold them on behalf of a co-offender who was the principal organiser. He acted under instruction and became involved to repay a drug debt.

The sentencing judge imposed a total term of eight years imprisonment with a non-parole period of five years. The same judge later sentenced the co-offender, Chan, who had played a more significant role in the transaction, and imposed the identical sentence despite earlier remarks indicating that Chan warranted a substantially longer term.

The appellant sought leave to appeal, arguing that receiving the same sentence as a co-offender who played a greater role gave rise to a justifiable sense of grievance under the parity principle.

  • Whether the sentencing judge erred by imposing the same sentence on the appellant as on the co-offender Chan, despite finding that Chan had played a more significant role.
  • Whether the resulting disparity gave rise to a justifiable sense of grievance requiring appellate intervention.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. McClellan CJ at CL accepted that the sentencing judge's remarks when sentencing Chan suggested a more severe sentence had been contemplated for Chan, and that imposing equal sentences may have been an error. However, the critical question was not whether Chan's sentence was too lenient, but whether the appellant's own sentence was excessive.

The Chief Judge reviewed the appellant's objective and subjective circumstances in detail: a large commercial quantity of heroin was involved, the offence was planned and organised, the appellant had a relevant criminal record including prior drug supply offences, his rehabilitation prospects were poor, and he participated with full knowledge of the serious criminal enterprise. These factors, taken together, were found to more than justify the sentence imposed.

The Court drew on the parity principle as explained in R v Lowe and Postiglione v The Queen. That principle does not require intervention simply because a co-offender has received a lesser sentence than may have been warranted. Where the error lies in the under-sentencing of a co-offender rather than the over-sentencing of the appellant, the appellant has no justifiable grievance entitling the Court to intervene.

McClellan CJ at CL concluded that if any sentencing error had occurred, it was in the sentence imposed on Chan, not in the sentence imposed on the appellant. Studdert J and James J agreed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle, as confirmed by the Court of Criminal Appeal, requires that co-offenders not receive markedly disparate sentences where that disparity gives rise to a justifiable sense of grievance, but it does not automatically entitle an offender to relief simply because a co-offender was sentenced more leniently.
  • Where the source of any sentencing inconsistency is the under-sentencing of a co-offender rather than the excessive sentencing of the appellant, appellate intervention in the appellant's sentence is not warranted.
  • An appellant's sentence will be assessed on its own merits, including the objective gravity of the offence and all relevant subjective factors, independent of what occurred when a co-offender was sentenced.
  • In dismissing the appeal, the Court affirmed that participation in large-scale, planned drug supply with a relevant prior record and poor rehabilitation prospects can justify a substantial custodial term even where the offender played an ancillary, rather than organising, role.
  • Equal sentences imposed on co-offenders do not of themselves establish a justifiable grievance: the question is whether the sentence under appeal is appropriate given the offender's own circumstances and degree of criminality.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases
- R v Lowe (1984) 154 CLR 606
- Postiglione v The Queen (1996-1997) 189 CLR 295
- R v Doggett (unreported, NSWCCA, 24 March 1997)