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Court of Criminal Appeal 2 August 2006

Shaun Joseph Vlismas v Regina

[2006] NSWCCA 270

Drugs
SENTENCING APPEAL AGAINST SENTENCES WHETHER MANIFESTLY EXCESSIVE OFFENDER SENTENCING PARITY

Citation: Shaun Joseph Vlismas v Regina [2006] NSWCCA 270
Court: New South Wales Court of Criminal Appeal
Date: 2 August 2006
Judge(s): Beazley JA, Hulme J, Hislop J

Background

The appellant was convicted of four drug offences arising from a joint criminal enterprise involving two co-offenders, Langdon and Walsh. The offences included cultivating prohibited plants at commercial quantities at two separate premises (Blacktown and Chipping Norton), as well as deemed supply of cannabis leaf at each of those premises. The appellant owned the Blacktown property and had leased the Chipping Norton premises, apparently for the purpose of the criminal enterprise.

Langdon faced the same four charges as the appellant, plus a fifth separate charge of cultivating prohibited plants at his own residence in Carlingford. Walsh was found to be a lesser participant and was charged with two offences only. The sentencing judge in the District Court imposed the same effective sentence on both the appellant and Langdon: eight years imprisonment with a four-year non-parole period.

The appellant sought leave to appeal, arguing his sentences were manifestly excessive and that the sentencing judge had erred in her parity analysis by treating his role as equivalent to Langdon's despite their differing positions within the enterprise.

  • Whether the sentencing judge erred by finding the roles of the appellant and Langdon were "on par" when Langdon had committed an additional separate offence
  • Whether the effective sentences imposed on the appellant were manifestly excessive, including by reference to comparable cases
  • Whether the sentencing judge gave adequate separate weight to Langdon's Carlingford offence in structuring his sentence

Decision

Beazley JA, with Hulme J and Hislop J agreeing, found that the sentencing judge did err in her parity analysis. The judge should have first compared the roles of the appellant and Langdon in relation to the four joint enterprise offences, and then dealt separately with Langdon's Carlingford offence. By treating the roles as "on par" without making this distinction, the judge conflated two analytically separate steps.

On the correct analysis, the appellant's role in the four joint offences was in fact more serious than Langdon's. The appellant owned or leased both premises apparently for criminal purposes, which warranted a higher assessment of his objective criminality relative to Langdon in respect of those shared charges. However, the Court found that despite this error in reasoning, it did not result in any inflation of the appellant's sentences in practice.

The Court also rejected the manifest excessiveness ground. The offences were serious and formed part of an ongoing operation. The Blacktown premises alone involved 1,008 cannabis plants, slightly above the commercial quantity threshold. The Court cautioned against relying on comparisons with individual cases without accounting for factors such as guilty plea discounts, noting that one cited case (R v Mangano) involved a 50 per cent discount for a plea and assistance, making it an unreliable comparator.

In the result, while the Court identified error in the sentencing judge's approach to parity, it concluded that the error had no practical impact on the sentences imposed and that those sentences were appropriate given the seriousness of the conduct. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court dealing with co-offenders who share some but not all charges must assess their roles separately in relation to the common offences before then accounting for any additional offending by one of them. Conflating these two steps constitutes error.
  • Identifying a legal error in the sentencing process does not automatically lead to intervention on appeal. Where the error caused no practical distortion in the sentences imposed, the Court of Criminal Appeal will decline to interfere.
  • In dismissing the manifest excessiveness ground, the Court of Criminal Appeal confirmed that comparisons with sentences in individual cases carry inherent risks, particularly where those cases involved significant discounts for guilty pleas or assistance not present in the case under review.
  • An offender's ownership or lease of premises used for a joint criminal enterprise is a factor that can elevate their objective criminality relative to co-participants who lacked that degree of control or investment in the operation.
  • Parity in sentencing requires a nuanced comparison of co-offenders' respective roles and overall criminality. Arriving at the same effective sentence for two offenders is not necessarily an error, but the reasoning process that produces that outcome must be analytically sound.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1)(a), 23(2)(a), 25(1), 29

Cases:
- R v Mangano [2006] NSWCCA 35