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Court of Criminal Appeal 19 June 2007

Jaskierski v Regina

[2007] NSWCCA 168

Drugs
CRIMINAL LAW SENTENCING SUPPLY HEROIN PLEA OF GUILTY PARITY JOINT PARTICIPATION IN ENTERPRISE

Citation: Jaskierski v Regina [2007] NSWCCA 168
Court: NSW Court of Criminal Appeal
Date: 19 June 2007
Judge(s): Hodgson JA, Grove J, Simpson J

Background

The applicant was convicted after trial in the District Court of supplying heroin, as part of a three-person enterprise operating across south-eastern Sydney between March and May 2004. The enterprise involved the applicant and a co-offender, Falemaka, supplying heroin to a third participant, Langbien, who sold it to consumers from her home and accounted to the two men for the proceeds.

Ainslie-Wallace DCJ sentenced the applicant to 5 years and 6 months' imprisonment, with a non-parole period of 3 years and 6 months. On the same day, her Honour sentenced Falemaka to a total of 4 years and 5 months, with a non-parole period of 3 years. The difference between the two sentences was attributable to Falemaka's plea of guilty, for which he received a 20 percent discount.

The applicant sought leave to appeal against sentence only, arguing that the sentences were not properly calibrated to reflect differences in the roles and culpability of the two co-offenders.

  • Whether the sentencing judge erred in treating the applicant's criminality as roughly on a par with that of Falemaka, given the disparity in the quantities of heroin each was proven to have physically supplied.
  • Whether the sentencing judge failed to apply parity principles by not adequately accounting for differences in the two offenders' roles within the enterprise.

Decision

The Court of Criminal Appeal found no error in the sentencing judge's approach. Simpson J, with whom Hodgson JA and Grove J agreed, reasoned that the two offenders had been treated comparably before applying an appropriate discount for Falemaka's guilty plea, and that the resulting sentence was consistent with parity principles.

On the question of roles, the Court accepted that Falemaka's telephone intercepts were more extensive and that the Crown had conceded he occupied a slightly higher position in the hierarchy. However, Simpson J found these differences insufficient to establish that the applicant played a meaningfully lesser role in the overall enterprise. The finding that Falemaka acted in a "managerial" capacity did not compel a conclusion that the applicant's culpability was materially lower.

On the question of quantity, the Court held that the disparity between the amounts physically supplied by each offender (96 grams for Falemaka compared with 25.6 grams for the applicant) was of no consequence in this context. Because the two were partners in a joint enterprise, each bore responsibility for the total quantity supplied. The physical act of supply being greater in one case than the other was irrelevant to their comparative criminal responsibility.

The Court concluded that the sentences, when properly analysed, demonstrated that the sentencing judge intended to treat the two offenders equally before recognising Falemaka's guilty plea. No error was established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In a joint criminal enterprise, all participants may be held equally responsible for the total quantity of a prohibited drug supplied, regardless of the quantity each individual physically handled.
  • Differences in the volume of telephone intercept evidence involving co-offenders do not, of themselves, establish that one offender was more criminally culpable than the other.
  • Where co-offenders are sentenced on the same day by the same judge, their respective remarks on sentence may be read together to assess whether parity principles were properly applied.
  • The Court of Criminal Appeal confirmed that a 20 percent sentencing discount for a guilty plea, consistent with the principles in R v Thomson; R v Houlton, is an appropriate basis for distinguishing otherwise comparable sentences between co-offenders.
  • No error was established in the sentencing judge's decision to treat two co-offenders as having roughly equivalent criminality where the evidence of a meaningfully different role for one of them was equivocal.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 (principles governing the quantification of guilty plea discounts)