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Court of Criminal Appeal 21 September 2007

Hamieh v R

[2007] NSWCCA 277

Drugs
CRIMINAL LAW APPEAL SENTENCING UNJUSTIFIABLE DISCREPANCY BETWEEN CO OFFENDERS CATEGORISATION OF ROLE IN DRUG SUPPLY

Citation: Hamieh v R [2007] NSWCCA 277
Court: New South Wales Court of Criminal Appeal
Date: 21 September 2007
Judges: James J, Rothman J, Harrison J

Background

The appellant was convicted, on a plea of guilty, of supplying just over two kilograms of methylamphetamine to a co-offender who had travelled from South Australia to Sydney to complete the transaction. Police had intercepted a series of telephone conversations between the two men discussing the purchase, pricing, and logistics of the drug supply, and arrested both men shortly after the exchange took place.

At first instance in the District Court, the appellant was sentenced to a non-parole period of seven years with a balance of term of four years. His co-offender, sentenced by a different judge, received a non-parole period of five years with a balance of term of two years and nine months.

The appellant sought leave to appeal, arguing that the disparity between his sentence and that of his co-offender was unjustifiable, and that the sentencing judge had also made errors in categorising his role in the offence and in giving insufficient weight to his subjective circumstances, including a dissociative state.

  • Whether the difference in sentences between the appellant and his co-offender amounted to an unjustifiable disparity warranting appellate intervention under the parity principle.
  • Whether the sentencing judge had incorrectly categorised the appellant's role in the drug supply.
  • Whether the sentencing judge had given insufficient consideration to the appellant's subjective circumstances, including a dissociative state.

Decision

The Court confirmed the well-established parity principle: equal justice requires that like offenders be treated alike, and where relevant differences exist between co-offenders, those differences must be properly reflected in sentencing. Mere discrepancy is not enough to attract appellate intervention. The discrepancy must be objectively unjustifiable, and even then a court will not intervene if doing so would produce a sentence inappropriate to the offence.

Rothman J examined the relative culpability of the appellant and his co-offender. The appellant was the supplier of the drugs and stood to profit from the transaction, while his co-offender was the purchaser. However, the Court found that the differing subjective circumstances of each offender appeared to weigh roughly evenly in the balance. Taking all factors together, the Court concluded that the disparity between the sentences was unjustifiable and that the appellant held an objectively ascertainable sense of grievance.

The Court also found that the sentencing judge had not adequately considered the appellant's subjective circumstances, including the dissociative state. These circumstances also supported a finding of special circumstances justifying a longer balance of term relative to the non-parole period.

The Court held that, while a sentence lower than that imposed on the co-offender would be inappropriate, a sentence only slightly above it was warranted. The original sentence was quashed and replaced accordingly.

Orders Made

  • Leave to appeal granted.
  • The sentence imposed on 10 June 2005 quashed.
  • In lieu of the original sentence, the appellant was sentenced (taking into account the Form 1 offence) to a non-parole period of five years and two months commencing 21 January 2005 and expiring 20 March 2010, with a balance of term of two years and nine months expiring 20 December 2012.

(Note: A subsequent addendum corrected a clerical error in the order, substituting "two years and nine months" for the incorrectly recorded "two years and seven months".)

Key Takeaways

  • The parity principle, as confirmed by the Court of Criminal Appeal, requires sentencing courts to account for both similarities and relevant differences between co-offenders. An unjustifiable discrepancy may give a co-offender a legitimate grievance warranting appellate intervention.
  • Appellate intervention on parity grounds will not result in a sentence that falls below a level appropriate for the offence itself, even where disparity is established.
  • Insufficient consideration of a defendant's subjective circumstances, including a dissociative state, constitutes a sentencing error capable of vitiating the original sentence.
  • Where subjective factors support a conclusion that rehabilitation or other relevant considerations require more time on parole supervision, a finding of special circumstances can justify a longer balance of term relative to the non-parole period.
  • Clerical errors in sentencing orders may be corrected by the Court after judgment, provided doing so gives effect to the court's original and clearly expressed sentencing intention.

Legislation and Cases Referenced

Cases:
- Postiglione v The Queen (1997) 189 CLR 295
- R v Tiddy [1969] SASR 575
- McKenna v Regina [2007] NSWCCA 113
- Jones v The Queen (1993) 67 ALJR 376
- Lozanovski v R [2006] NSWCCA 143
- R v Liang, unreported, NSWCCA, 2 June 1995
- Ryan v The Queen (2001) 206 CLR 267