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Court of Criminal Appeal 7 December 2007

Seng v Regina

[2007] NSWCCA 335

Drugs
SENTENCING PARITY OFFENDERS IN DRUG IMPORTING NO POINT OF PRINCIPLE.

Citation: Seng v Regina [2007] NSWCCA 335
Court: New South Wales Court of Criminal Appeal
Date: 7 December 2007
Judge(s): Giles JA; Grove J; Harrison J

Background

The appellant and a co-offender both pleaded guilty in the District Court to importing a marketable quantity of heroin into Australia. They arrived together on a flight from Cambodia on 2 September 2006, each having internally concealed pellets of heroin. The appellant carried 71 pellets containing approximately 63 grams of pure heroin, while the co-offender carried 159 pellets containing approximately 152 grams of pure heroin.

At sentencing, the District Court heard that both men had been recruited by a third party known as Sothia. The appellant acted out of a sense of obligation arising from hospitality Sothia had extended to him in Cambodia, and received no cash payment. The co-offender had been promised between $30,000 and $35,000 for the importation and had also played a more active role in facilitating the appellant's involvement, including providing money for the appellant's airline ticket.

The District Court sentenced both men to different head sentences: the appellant received 5 years 6 months and the co-offender received 6 years. However, both received identical non-parole periods of 3 years. The appellant sought leave to appeal on the sole ground that the identical non-parole periods gave him a justifiable sense of grievance, given the differences in their respective roles and rewards.

  • Whether the sentencing judge's imposition of identical non-parole periods for both co-offenders offended the parity principle in sentencing.
  • Whether the differences in the parts played by the appellant and his co-offender, and the disparity in their financial rewards, were sufficient to warrant materially different sentences.

Decision

The Court of Criminal Appeal found that the parts played by the appellant and his co-offender were materially different in ways that should have been reflected in their non-parole periods. The co-offender participated for significant promised financial reward and had actively assisted in recruiting the appellant, including instructing him on how to swallow the pellets and funding his travel. By contrast, the appellant acted solely from a sense of personal obligation, without any cash payment.

Giles JA (with whom Grove J and Harrison J agreed) held that the sentencing discretion miscarried by leaving both offenders with the same non-parole period. The promised substantial cash reward to the co-offender indicated a meaningfully different order of participation compared to the appellant's position, where Sothia had prevailed on a personal sense of obligation. The Crown's submission that the financial disparity was not sufficiently established was rejected.

On resentencing, the Court reduced the appellant's non-parole period from 3 years to 2 years 6 months, while reducing the overall head sentence from 5 years 6 months to 5 years. The Court also noted, in passing, evidence that the appellant was a model prisoner and repentant, though the judge below had already found both men to be genuinely contrite.

Orders Made

  • The original sentence was quashed.
  • In substitution, the appellant was sentenced to imprisonment for 5 years commencing 2 September 2006, with a non-parole period of 2 years 6 months.
  • The appellant was to be eligible for release on parole on 1 March 2009.
  • The appellant's legal representatives were directed to explain to him the purpose and consequences of the non-parole period as specified in section 16F of the Crimes Act 1914 (Cth).

Key Takeaways

  • The parity principle in sentencing requires that co-offenders not be left with unjustifiably similar sentences where their roles, motivations, and rewards are materially different.
  • A significant difference in financial reward, combined with a more active organisational role, can constitute a sufficiently material distinction to warrant different non-parole periods, even where co-offenders are charged with the same offence.
  • Under the principle confirmed in The Queen v Olbrich (1999) 199 CLR 270, the burden of establishing that one co-offender's role was greater than another's rests on the offender, not the prosecution.
  • The quantity of heroin imported was relevant but not the only sentencing consideration: the nature of the inducement, the degree of participation, and the financial reward each warranted separate consideration.
  • In dismissing the parity argument at first instance, the District Court failed to give sufficient weight to the distinction between an offender motivated by personal obligation and one motivated by substantial promised payment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 16F

Cases:
- The Queen v Olbrich (1999) 199 CLR 270