Citation: Kentwell v Regina [2007] NSWCCA 93
Court: NSW Court of Criminal Appeal
Date: 12 April 2007
Judge(s): Simpson J, Howie J, Hislop J (Hislop J delivering the principal judgment)
Background
The applicant pleaded guilty to a charge of supplying heroin contrary to the Drug Misuse and Trafficking Act 1985 s 25(1), arising from his role as a street-level distributor within an organised heroin network operating in the Kings Cross area during September 2003. He was one of three street distributors identified by police, the others being his de facto partner and a man named Tufa. All three pleaded guilty and were sentenced together by Marien DCJ in the District Court on 11 September 2006.
The applicant received a non-parole period of 16 months and a total sentence of 2 years and 6 months imprisonment. His co-offender Tufa received a non-parole period of 19 months and a total sentence of 2 years and 9 months. The third co-offender, who was found to be the most active participant, received a non-parole period of 20 months and a total sentence of 3 years.
The applicant sought leave to appeal his sentence on the basis that the relatively small difference between his sentence and Tufa's gave rise to a justifiable sense of grievance, arguing that his more favourable subjective circumstances warranted a greater sentencing differential.
Legal Issues
- Whether the 3-month differential between the applicant's sentence and that of his co-offender Tufa gave rise to a justifiable sense of grievance sufficient to warrant appellate intervention on parity grounds.
- Whether the sentencing judge gave adequate weight to the differences in subjective circumstances between the applicant and Tufa, including rehabilitation, criminal history, and quantity of drugs supplied.
Decision
The Court applied the parity principles from Lowe v R and Postiglione v R, which require courts to compare the conduct and personal circumstances of co-offenders and to intervene where a disparity in sentencing is manifestly excessive and produces a justifiable sense of grievance in the mind of an objective observer. The Court noted that the sentencing judge had considered all relevant factors for each offender at the one time, which called for caution before concluding that a justifiable grievance arose from different sentencing outcomes.
The Court acknowledged that the comparison of subjective circumstances was, in several respects, favourable to the applicant. He had made meaningful progress toward rehabilitation, had a minor criminal record, and had not previously served time in custody. Tufa, by contrast, had supplied roughly double the quantity of heroin, had a lengthier criminal record including prior periods in custody, and had a larceny offence taken into account on a Form 1.
However, the Court found that the applicant's age and longer history of heroin addiction, together with the greater emphasis that sentencing for serious drug supply offences places on objective criminality and general deterrence, meant these subjective differences did not require a larger differential. In the Court's view, the 3-month difference adequately reflected the relevant distinctions between the two offenders, and no marked discrepancy existed that would justify intervention.
The appeal was accordingly dismissed.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that appellate intervention on parity grounds requires more than a modest disparity in sentence; the difference must be manifestly excessive and produce a justifiable sense of grievance in the mind of an objective observer.
- Where a sentencing judge sentences multiple co-offenders at the same time and gives detailed consideration to each, appellate courts will approach parity challenges with particular caution.
- A co-offender's more favourable subjective circumstances, including rehabilitation and a lesser criminal record, do not automatically require a substantially different sentence where objective criminality and general deterrence carry significant weight, as they do in serious drug supply matters.
- The quantity of drugs supplied is only one factor in the parity analysis; the overall objective criminality and the full range of subjective features for each offender must be weighed together.
- Sufficient differences between co-offenders can justify a relatively small sentencing differential where those differences, taken as a whole, are adequately reflected in the outcome.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW) s 25(1)
Cases
- Lowe v R (1984) 154 CLR 606
- Postiglione v R (1997) 189 CLR 295
- Regina v Swan [2006] NSWCCA 47