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Court of Criminal Appeal 2 April 2007

McKibben v R

[2007] NSWCCA 89

Drugs
CRIMINAL LAW SENTENCING DRUG OFFENCES PARITY WITH CO OFFENDER TOTALITY

Citation: McKibben v R [2007] NSWCCA 89
Court: New South Wales Court of Criminal Appeal
Date: 2 April 2007
Judge(s): Simpson J, Howie J, Hislop J

Background

The appellant was a woman aged 58 at the time of sentencing who had pleaded guilty in the Local Court to multiple drug offences under the Drug Misuse and Trafficking Act 1985. The offences spanned two separate periods of criminal activity: participation in the manufacture of methylamphetamine in late 2003, and ongoing supply of methylamphetamine (and related supply offences) in 2005. She was committed to the District Court for sentencing.

Finnane DCJ sentenced her to a total term of 10 years with a non-parole period of 7 years and 6 months, commencing 10 June 2005. The appellant sought leave to appeal those sentences to the Court of Criminal Appeal.

The appellant's co-offender from the 2003 manufacture offence, Ken Levy, had received a more lenient sentence, which formed the basis of one of the appeal grounds.

  • Whether the sentencing judge failed to properly apply the parity principle when comparing the appellant's sentence for the 2003 manufacture offence with that of her co-offender
  • Whether the sentencing judge failed to properly apply the totality principle across the multiple sentences
  • Whether the sentencing judge overestimated the objective gravity of the offences
  • Whether the sentencing judge gave insufficient credit for the early guilty pleas entered in the Local Court

Decision

Objective gravity: The Court rejected the submission that the sentencing judge had overestimated the gravity of the offences. The intercepted telephone conversations clearly established the appellant's active involvement in the 2003 manufacture offence, including discussions about precursor chemicals, obtaining assistance to accelerate production, and receiving instructions on processing the drug. Because the appellant gave no evidence and declined to be interviewed by police, she bore the onus of displacing that inference under the principle in R v Olbrich (1999) 199 CLR 270, and she had not done so.

Early guilty plea discount: The Court found that the sentencing judge had not accorded sufficient discount for the early guilty pleas, which were entered in the Local Court. Under the principles in R v Thomson and Houlten [2000] 49 NSWLR 383, a 25 per cent discount was warranted for the utilitarian value of the early pleas. The judge had applied only a 15 per cent discount. This error warranted intervention, and the sentences were reduced by 10 per cent accordingly.

Totality: The Court found that, when the sentences were adjusted to reflect the correct plea discount, a further reduction was warranted to ensure the aggregate sentences properly reflected totality. The adjusted overall term became 9 years with an overall non-parole period of 6 years and 9 months from 10 June 2005.

Parity: The Court addressed the parity ground last, noting that a parity argument assumes the sentence is otherwise correct. Although Levy had received a less severe sentence, the sentencing judge had expressly found the appellant was an active and significant participant in the manufacture, whereas Levy had been extended a degree of leniency not available to the appellant on the facts. After accounting for the reduction flowing from the plea discount ground, the remaining difference in non-parole periods between the appellant and her co-offender was not sufficient to give rise to a justifiable sense of grievance. The parity ground was rejected.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed by Finnane DCJ quashed
  • Appellant re-sentenced as follows:
  • Manufacture offence (with Form 1): non-parole period of 2 years 3 months from 10 June 2005, expiring 9 September 2007; balance of term of 2 years 3 months from 10 September 2007
  • Count 1, ongoing supply under s 25A (with Form 1): non-parole period of 2 years 9 months from 10 March 2007, expiring 10 December 2009; balance of 1 year 9 months from 9 December 2009
  • Count 2, supply: non-parole period of 1 year 9 months from 10 December 2009, expiring 9 September 2011; balance of 1 year 9 months from 10 September 2011
  • Count 3, supply: non-parole period of 2 years 3 months from 10 December 2009, expiring 9 March 2012; balance of 2 years 3 months from 10 March 2012, expiring 9 June 2014

Key Takeaways

  • Where a defendant gives no evidence and declines to be interviewed, the sentencing court is entitled to proceed on the basis of facts that appear most adverse to the offender, consistent with R v Olbrich. The onus of displacing that inference rests with the defendant.
  • A 25 per cent discount for the utilitarian value of a guilty plea entered at the earliest available opportunity in the Local Court was confirmed as appropriate, consistent with the principles in R v Thomson and Houlten. A departure from that standard without sufficient justification constitutes an error warranting appellate intervention.
  • The parity principle does not operate in isolation: it assumes the challenged sentence is otherwise correct. Where other grounds of appeal succeed and sentences are reduced, the parity analysis must be revisited in light of the adjusted sentences.
  • In dismissing the totality and objective gravity grounds while allowing the plea discount ground, the Court of Criminal Appeal reduced the aggregate non-parole period by 9 months, from 7 years 6 months to 6 years 9 months.
  • Sentencing for multiple offences across different episodes of criminality requires careful attention to both the totality principle and the concurrence of sentences, particularly where the aggregate term might otherwise exceed what is proportionate to the overall offending.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), including s 24(1), s 25(1), and s 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- R v Olbrich (1999) 199 CLR 270
- R v Thomson and Houlten (2000) 49 NSWLR 383
- R v Hoon [2000] NSWCCA 137
- Vu v R [2006] NSWCCA 188
- Pearce v The Queen (1998) 194 CLR 610