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Court of Criminal Appeal 13 April 2006

BREE v R

[2006] NSWCCA 124

Drugs
CRIMINAL LAW SENTENCE PARITY OF SENTENCE DRUG SYNDICATE LEVELS OF CRIMINALITY DISPARITY WITH ONE OF NINE CO

Citation: BREE v R [2006] NSWCCA 124
Court: NSW Court of Criminal Appeal
Date: 13 April 2006
Judge(s): McClellan CJ at CL; Rothman J; Smart AJ

Background

The appellant was a member of a drug trafficking syndicate and pleaded guilty to multiple counts of supplying prohibited drugs, including ecstasy, methylamphetamine, and cannabis. He operated as the syndicate's distribution manager in Gunnedah, selecting customers, receiving large drug consignments, and remitting substantial sums to the syndicate's head. The sentencing judge described his criminality as "extensive."

The District Court sentenced the appellant to an aggregate term of four years and eight months, with a non-parole period of three years and six months. He sought leave to appeal on the ground that his sentence was disproportionately severe compared with sentences imposed on nine co-offenders, most notably a co-accused named De Marco and another named Gosling.

The central complaint was that the appellant's significantly higher sentence, relative to others in the same syndicate, created an unjustifiable disparity warranting appellate intervention.

  • Whether the disparity between the appellant's sentence and those of his co-offenders gave rise to a "justifiable sense of grievance" sufficient to warrant appellate intervention.
  • Whether the sentence imposed on co-offender De Marco was an appropriate benchmark for the parity comparison.
  • Whether the sentencing court had adequately accounted for the differing levels of criminality among the co-accused when imposing the appellant's sentence.

Decision

The Court of Criminal Appeal granted leave to appeal but unanimously dismissed the appeal. The court applied the established principle from Lowe v The Queen that appellate intervention on parity grounds is only warranted where a co-offender's sentence engenders a "justifiable sense of grievance," assessed from the perspective of an objective bystander.

On the De Marco comparison, the court found that De Marco's sentence was, if anything, lenient. Because the benchmark sentence was itself inadequate, the appellant's parity complaint had little substance. To reduce the appellant's sentence in response to an erroneously low sentence imposed on a co-offender would compound, not correct, the error.

The comparison with Gosling also failed. Gosling's role was considerably less serious, his criminal history was minimal, and his subjective circumstances were significantly more favourable. The disparity in sentences was explained by those differences, not by any error in sentencing the appellant.

Considered more broadly against all nine co-offenders, the court found that relevant differences in role and subjective circumstances accounted for the variation in sentences. The appellant was, in effect, the syndicate's regional manager, and the sentencing judge's assessment that significant imprisonment was the only appropriate outcome was upheld.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A justifiable sense of grievance requires more than a numerical disparity between co-offenders' sentences; the sentence used as the comparator must itself be appropriate before it can ground a parity complaint.
  • Where a co-offender's sentence is manifestly inadequate, reducing the appellant's sentence to achieve parity would compound the original error rather than remedy it.
  • The Court of Criminal Appeal confirmed that differences in role, criminal history, and subjective circumstances among co-offenders will ordinarily explain, and justify, differences in sentence outcomes.
  • In dismissing the appeal, the court reinforced that an appellate court's power to intervene on parity grounds remains limited to cases where an appearance of injustice is apparent to an objective bystander, not merely where sentences differ across a group of co-accused.
  • Sufficient criminality in a syndicate context, such as managing regional distribution over an extended period, will support a significantly higher sentence compared with lower-level participants even when those participants are technically charged with the same offence category.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Crimes Act 1900 (NSW), s 527C

Cases:
- Lowe v The Queen (1994) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- Jones v The Queen (1993) 67 ALJR 376
- Liu v Regina [2005] NSWCCA 450
- Livas v R [2006] NSWCCA 54
- R v Kelly (2005) 155 A Crim R 499
- R v Maherr (2005) 154 A Crim R 457
- R v Wilkie (2003) 140 A Crim R 78
- R v Chen (2003) 138 A Crim R 433
- R v Harmouche [2005] NSWCCA 398
- R v Boney [2001] NSWCCA 432
- Various other co-offender parity decisions cited in the judgment