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Court of Criminal Appeal 8 August 2008

Shane Bradley Mitchell v R

[2008] NSWCCA 192

Drugs
APPEAL AGAINST SEVERITY OF SENTENCE SUPPLY PROHIBITED DRUG

Citation: Shane Bradley Mitchell v R [2008] NSWCCA 192
Court: NSW Court of Criminal Appeal
Date: 8 August 2008
Judge(s): McClellan CJ at CL, Grove J, Blanch AJ

Background

The applicant pleaded guilty to two charges of supplying a prohibited drug under s 25 of the Drug Misuse and Trafficking Act 1985, following a police search of a Newcastle premises on 11 October 2006. Officers found 14.36 grams of cocaine and 26.9 grams of methylamphetamine, along with a substantial amount of cash. The sentencing judge accepted the applicant's account that the drugs were purchased collectively with friends for personal consumption during a bucks weekend in Queensland, and that the cash represented legitimate business income.

At sentence in the East Maitland District Court on 2 August 2007, the applicant received a head sentence of three years and four months with a non-parole period of two years and six months, to be served as full-time custody. A housemate who had been present at the same premises on the same occasion, and who possessed a greater quantity of drugs, was sentenced the following day by the same judge to periodic detention with a non-parole period of 12 months.

The applicant sought leave to appeal, arguing that the sentence was manifestly excessive and that the stark disparity with his housemate's sentence gave rise to a justifiable sense of grievance.

  • Whether the disparity between the applicant's sentence and that imposed on his housemate the following day gave rise to a justifiable sense of grievance warranting appellate intervention.
  • Whether the principle of consistent sentencing, as distinct from parity between co-offenders, applied in circumstances where the two men were not formally co-offenders but were engaged in the same activity for the same purpose on the same day.
  • Whether the sentence imposed by the District Court was manifestly excessive when assessed against relevant sentencing statistics and the range of sentences for comparable offences.

Decision

The Court granted leave to appeal and allowed the appeal, quashing the District Court sentence. Blanch AJ, with whom McClellan CJ at CL and Grove J agreed, conducted a comparative analysis of the two sentences. While acknowledging that the applicant and his housemate were not technically co-offenders, their Honour found the circumstances sufficiently analogous to engage the principle of consistent sentencing drawn from Lowe v The Queen (1984) 154 CLR 606.

Blanch AJ distinguished between the parity principle (which applies strictly to co-offenders) and the broader principle of consistent sentencing. The Court reasoned that markedly different sentences imposed by the same judge on two men living in the same house, involved in the same activity, for the same purpose, on the same day, raised a legitimate consistency concern.

McClellan CJ at CL agreed that intervention was warranted, though his Honour placed greater emphasis on the applicant's sentence being excessive when assessed against the range of sentences for comparable offending, rather than on the comparison with the housemate's sentence alone. His Honour noted the applicant's prior drug supply conviction and prior imprisonment as relevant factors justifying a more severe response than his housemate received, but found the original sentence excessive beyond what those factors could justify.

The Court also noted that the sentencing judge had appropriately characterised the supply as a one-off transaction without commercial features, and that a period of full-time custody remained appropriate given the applicant's prior drug supply offending, which had concluded only six months before the current offences.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court quashed.
  • On each offence, the applicant sentenced to a non-parole period of 18 months and a balance of term of six months, to be served concurrently.
  • Head sentence and non-parole periods to commence on 3 July 2008.
  • Applicant to be released to parole on 2 January 2009 under the terms of supervision specified in the Schedule to the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • The parity principle established in Lowe v The Queen applies strictly to co-offenders, but the Court of Criminal Appeal confirmed that the broader principle of consistent sentencing can apply where two people are sentenced separately for the same activity, on the same day, in substantially similar circumstances.
  • A justifiable sense of grievance arising from sentencing disparity may ground appellate intervention, but it does not operate independently of the requirement that the sentence itself be assessed as excessive against the broader range of comparable sentences.
  • McClellan CJ at CL emphasised that the appropriateness of a sentence is primarily assessed by reference to the range of sentences for comparable offences, not simply by comparison to a single co-located offender's sentence.
  • Relevant differences between offenders, such as prior criminal history and previous terms of imprisonment, can justify divergent sentences even where the underlying offending is closely comparable.
  • Characterising drug supply as a one-off, non-commercial purchase for group consumption remained a mitigating factor, but did not displace the need for full-time custody where the offender had a prior conviction for the same type of offence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 and Schedule

Cases
- Lowe v The Queen (1984) 154 CLR 606
- R v Clark (unreported, NSWCCA, 15 March 1990)
- R v Emery (unreported, NSWCCA, 7 November 1997)