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Court of Criminal Appeal 3 February 2006

Barta v Regina

[2006] NSWCCA 6

Drugs
CRIMINAL LAW SENTENCE TAKING MATTERS INTO ACCOUNT NON PARITY.

Citation: Barta v Regina [2006] NSWCCA 6
Court: NSW Court of Criminal Appeal
Date: 3 February 2006
Judge(s): McClellan CJ at CL; Howie J; Latham J

Background

The applicant pleaded guilty in the District Court to two serious drug supply offences under the Drug Misuse and Trafficking Act 1985: supplying not less than a commercial quantity of heroin (394 grams), and supplying heroin on an ongoing basis over a period in late September and early October 2001. Additional matters were placed on a Form 1 to be taken into account at sentencing (a procedural mechanism by which minor related offences are acknowledged without separate conviction).

Judge Hosking SC sentenced the applicant to an overall term of eight years and five months, with an overall non-parole period of six years and nine months, meaning the applicant would need to serve approximately 80 percent of the total sentence before becoming eligible for parole. The applicant had a prior drug-related conviction and was identified as operating at a wholesale level in a drug supply hierarchy that included co-offenders Vincent Caccamo and Anthony Markarian.

The applicant sought an extension of time to appeal his sentence, relying on three grounds: that the sentencing judge erred in quantifying the Form 1 uplift, that the structure of the sentence breached the general principle that non-parole periods should not exceed 75 percent of the head sentence, and that his sentence was excessive when compared with those of his co-offenders.

  • Whether the sentencing judge erred by adding a discrete, quantified period of 18 months to the sentence to account for the Form 1 matters, rather than taking a more global sentencing approach.
  • Whether the overall sentence structure, which required the applicant to serve more than 80 percent of his total term before parole eligibility, was contrary to the standard three-to-one ratio under the Crimes (Sentencing Procedure) Act 1999.
  • Whether the sentences imposed on co-offenders Markarian and Caccamo gave rise to a parity argument requiring the Court to reduce the applicant's sentence.

Decision

Ground 1: Quantifying the Form 1 uplift

The Court accepted that explicitly identifying and quantifying the additional period attributable to Form 1 matters, rather than arriving at a single sentencing figure, was technically an error of approach. However, Howie J found the error caused no practical injustice. The resulting sentence for the principal offence was not unreasonable, and the Form 1 matters were of some significance, involving a further supply of heroin and several property offences. The ground was dismissed.

Ground 2: Non-parole period exceeding 75 percent of the head sentence

The Court acknowledged that the overall non-parole period exceeded the standard ratio contemplated by s 44 of the Crimes (Sentencing Procedure) Act 1999, which sets a general benchmark of three-quarters. Howie J found, however, that the particular structure of the two cumulative sentences, each individually compliant, produced an aggregate that exceeded the benchmark. The Court treated this as a technical anomaly rather than a meaningful sentencing error, given that the total sentence and non-parole period were each otherwise appropriate. This ground also failed.

Ground 3: Parity with co-offenders

The Court firmly rejected the parity argument in respect of both Markarian and Caccamo. The Court of Criminal Appeal had previously found Markarian's sentence to be manifestly inadequate on two occasions. Howie J confirmed that a court will not reduce an otherwise appropriate sentence merely because a co-offender received an inadequate one. As for Caccamo, the evidence established that the applicant occupied a higher position in the drug supply hierarchy as a wholesaler, whereas Caccamo was a retailer. Caccamo also provided greater assistance to authorities, justifying a larger sentencing discount. No justifiable grievance arose from the comparison.

Orders Made

  • Extension of time to seek leave to appeal granted.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A court hearing a parity challenge will not reduce an otherwise appropriate sentence simply because a co-offender received an inadequate sentence; the relevant question is whether the applicant can demonstrate a justifiable sense of grievance, and that threshold is not met where the co-offender's sentence was itself erroneous.
  • Where a sentencing judge separately identifies and quantifies the increase attributable to Form 1 matters rather than taking a global approach, that may constitute a technical error, but it will not warrant appellate intervention unless the resulting sentence is itself unreasonable.
  • An aggregate non-parole period that exceeds 75 percent of the total head sentence is not automatically a sentencing error when it arises from the combination of two individually structured sentences, each internally compliant with the standard ratio.
  • Relative position in a drug supply hierarchy remains a significant factor in parity assessments: the Court of Criminal Appeal found the applicant's role as a wholesaler placed his criminality above that of his retail-level co-offender, notwithstanding that the co-offender supplied a greater volume overall.
  • Refusing to follow any suggestion to the contrary in R v Hodges, Howie J reaffirmed the principle established in R v Diamond and R v LLM that an inadequate sentence imposed on a co-offender does not, of itself, generate a grievance that appellate courts are required to remedy.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2), s 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23(3), 44

Cases
- Liu v R [2005] NSWCCA 450
- Attorney General's Application (No. 1 of 2002) (2002) 56 NSWLR 146
- R v GDR (1994) 35 NSWLR 376
- Markarian v The Queen (2005) 79 ALJR 1048
- R v Markarian [2005] NSWCCA 264
- R v Caccamo [2005] NSWCCA 257
- R v Araya [2005] NSWCCA 28
- R v Singh [2001] NSWCCA 424
- R v Diamond (NSWCCA, unreported, 19 February 1993)
- R v LLM [2005] NSWCCA 302
- R v Hodges (1997) 95 A Crim R 85