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Court of Criminal Appeal 19 February 2008

SCICLUNA v R

[2008] NSWCCA 24

Also reported as (2008) 181 A Crim R 133
DrugsPublic order & justice offences
SENTENCE APPEAL PARITY WHETHER RELEVANT COMPARISON.

Citation: SCICLUNA v R [2008] NSWCCA 24
Court: NSW Court of Criminal Appeal
Date: 19 February 2008
Judge(s): Basten JA; Barr J; Adams J

Background

The appellant was sentenced in the District Court for an offence committed on 17 January 2003. Judge Morgan imposed a four-year term of imprisonment with a two-year non-parole period. The sentence was structured to commence in April 2008, accumulating upon other sentences the appellant was already serving.

The appellant's co-offender had been dealt with by the Drug Court some three years earlier, in June 2003. That court imposed fixed-term sentences and then suspended their execution so the co-offender could participate in a Drug Court program. After completing the program (without graduating, due to continued drug use), the co-offender received a 12-month good behaviour bond as his final sentence.

The appellant sought leave to appeal, arguing that the significant difference between his sentence and the co-offender's final outcome gave rise to a justifiable sense of grievance, engaging the parity principle in sentencing.

  • Whether a sentence suspended to enable participation in a Drug Court program, followed by a final good behaviour bond, constitutes a valid comparator for the purposes of the parity principle in sentencing.
  • Whether the Drug Court had correctly applied the sentencing requirements of the Crimes (Sentencing Procedure) Act 1999 when sentencing the co-offender in 2003.
  • Whether any resulting disparity between the appellant's sentence and the co-offender's sentence was so marked as to give rise to a justifiable sense of grievance.
  • Whether, if error was established, reducing the appellant's sentence would produce a term disproportionate to his objective and subjective criminality.

Decision

The Court divided on the outcome. The majority (Basten JA and Barr J) refused leave to appeal. Basten JA found it difficult to construct a satisfactory comparison between the two sentences because the co-offender's sentencing had not complied with the statutory scheme, as later clarified in R v Rice (2004). The Drug Court had not fixed a non-parole period or adequately addressed the requirements of s 44 of the Crimes (Sentencing Procedure) Act, meaning any comparison involved significant speculation about what a compliant sentence would have looked like.

Basten JA also noted that meaningful differences existed between the two offenders' circumstances, and that even on the most favourable reading of the co-offender's position, those differences would have prevented parity from requiring precise equality. The majority was not persuaded that the sentencing judge had fallen into error.

Adams J dissented. His Honour concluded that the parity principle was engaged because one sentence had been suspended by court order and ultimately resolved in a good behaviour bond, while the appellant received a substantial term of imprisonment. In Adams J's view, the disparity was so marked that it could not be fully explained by the differences between the offenders, and the sentencing judge erred in not recognising a justifiable sense of grievance. Adams J would have granted leave, reduced the head sentence from four years to three years, and maintained the two-year non-parole period, which he considered sat at the bottom of the permissible range.

The result, by majority, was that leave to appeal against sentence was refused.

Orders Made

  • Leave to appeal against sentence refused (by majority).

Adams J (dissenting) proposed the following orders, which did not prevail:
- Leave to appeal granted.
- The four-year sentence for charge (i) quashed and replaced with three years' imprisonment commencing 26 April 2008 and expiring 25 April 2011.
- Appeal otherwise dismissed.

Key Takeaways

  • A co-offender's sentence that was imposed in a manner non-compliant with the statutory sentencing scheme presents significant difficulties as a parity comparator, because meaningful comparison requires speculation about what a compliant sentence would have been.
  • The parity principle, as confirmed by reference to Lowe v The Queen (1984) 154 CLR 606, requires more than a bare numerical difference in outcomes; differences in the offenders' circumstances can justify sentencing disparity without producing a justifiable sense of grievance.
  • Prior to R v Rice [2004] NSWCCA 384, Drug Courts commonly suspended sentences and deferred full consideration of mitigating factors to the "final sentence" stage, a practice that did not conform to the Drug Court Act 1998 and the Crimes (Sentencing Procedure) Act 1999 as those statutes were interpreted in Rice.
  • Under s 12 of the Drug Court Act 1998, a final sentence imposed upon program termination cannot exceed the initial sentence, and subsequent legislative amendments gave retrospective support to the Drug Court's earlier suspension practice.
  • Even where disparity is established, a court will not reduce a sentence if the result would be disproportionate to the objective and subjective criminality involved, consistent with R v Boney [2001] NSWCCA 432.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 45(2)
- Drug Court Act 1998 (NSW), ss 7(3), 12
- Crimes and Courts Legislation Amendment Act 2006

Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 29
- R v Rice [2004] NSWCCA 384; (2004) 150 A Crim R 37
- R v Boney [2001] NSWCCA 432
- Ersman (2007) 171 A Crim R 560
- R v Steel (NSW CCA, 17 April 1997)