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Court of Criminal Appeal 10 October 2008

Gao v R

[2008] NSWCCA 234

Drugs
SENTENCING OFFENDER PARITY WHETHER APPLICANT AND CO OFFENDER TRULY COMPARABLE NO DISPARITY DEMONSTRATED

Citation: Gao v R [2008] NSWCCA 234
Court: NSW Court of Criminal Appeal
Date: 10 October 2008
Judge(s): McClellan CJ at CL, Hoeben J, Harrison J (Harrison J delivered the principal judgment; the others agreed)

Background

The applicant pleaded guilty in the District Court to two counts of supplying commercial quantities of MDMA (ecstasy) to an undercover police officer at Darling Harbour in December 2005 and January 2006. The first supply involved 1,000 tablets (a commercial quantity); the second, approximately two weeks later, involved 2,000 tablets (a large commercial quantity). Both transactions arose from separate negotiations with the same officer, within the same drug organisation.

At sentence in December 2006, Berman DCJ imposed a total term of 12 years with a non-parole period of 8 years, incorporating one year of accumulation across the two sentences. A co-participant, Lim, was sentenced separately in March 2007 and ultimately received a total term of 9 years and 10 months after a successful Crown appeal.

The applicant sought leave to appeal against the severity of his sentence on two grounds: first, that his sentence was disproportionate to Lim's (the parity ground); and second, that the sentencing judge erred by partially accumulating rather than ordering wholly concurrent sentences. The application was filed approximately 10 months out of time.

  • Whether leave to appeal out of time should be granted, given the delay and its surrounding circumstances.
  • Whether the applicant's sentence was disproportionate to that of co-offender Lim, giving rise to a justifiable sense of grievance on the parity principle.
  • Whether the applicant and Lim were truly comparable for parity purposes.
  • Whether the sentencing judge erred in partially accumulating the two sentences by one year rather than ordering that they be served concurrently.

Decision

Leave to appeal out of time: The Court granted leave despite the 10-month delay. The applicant had changed solicitors following the Crown's unsuccessful appeal in December 2007, and the new solicitors had been awaiting court files from both the Court of Criminal Appeal and the District Court. The Court accepted this explanation as sufficient to warrant the extension.

Parity: The Court rejected the parity argument. Although the applicant and Lim were involved in the same drug organisation and dealt with the same police officer, their circumstances differed in important respects. Lim was sentenced for agreeing to supply (with the actual supply appearing on a Form 1), while the applicant was sentenced for actual supplies of two distinct quantities. Lim had also been on bail at the time of his offence. Critically, the Court of Criminal Appeal had already found, in the Crown appeal against Lim's sentence, that the applicant occupied a lesser position in the supply hierarchy yet had received a heavier sentence. That outcome reflected the differences between the two offenders, not an unjustifiable disparity. No reasonable sense of grievance was established.

Accumulation: The Court dismissed the second ground. The two offences, while sharing common features (same officer, same organisation, same substance), were separate in time and arose from independent negotiations. Each involved a distinct quantity and a distinct transaction. Harrison J noted it would have been "wholly inappropriate" not to accumulate the sentences at all. The Court acknowledged that minds might differ on the precise period of accumulation chosen, but found no identifiable error in the one-year figure selected by the sentencing judge.

Orders Made

  • Leave to appeal out of time granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle does not automatically apply simply because two offenders were involved in the same drug organisation: the Court assessed whether the applicant and co-offender Lim were truly comparable, and found material distinctions in the nature of their offences, their roles, and their personal circumstances.
  • A co-offender receiving a lighter sentence does not, of itself, establish unjustifiable disparity. Where that lighter sentence resulted from a Crown appeal correcting an earlier error, the comparison must account for the corrected outcome and its reasoning.
  • Where two drug supply offences are separate in time and arise from independent negotiations, even within a common course of conduct, partial accumulation of sentences is capable of being appropriate. The sentencing court is not required to impose wholly concurrent sentences.
  • No error was demonstrated in the one-year accumulation, even though the Court acknowledged that different judges might have chosen a different figure. The absence of identifiable error was sufficient to dismiss the ground.
  • In dismissing the appeal, the Court confirmed that an out-of-time application may be granted where delay is adequately explained by changes in legal representation and reasonable steps taken to obtain court files.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- R v Peng Gao; R v Benjamin Lim; Benjamin Lim v R [2007] NSWCCA 343
- Lewins v R [2007] NSWCCA 189
- R v Boney [2001] NSWCCA 432
- R v GWM [2005] NSWCCA 101; 152 A Crim R 482
- R (Cth) v Kai Kong Li [2005] NSWCCA 154
- R v Makisi [2004] NSWCCA 333; (2004) 151 A Crim R 245
- R v Najem [2008] NSWCCA 32
- R v Pan [2005] NSWCCA 114
- R v Reid [2000] NSWCCA 166
- Tatana v R [2006] NSWCCA 398