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Court of Criminal Appeal 17 December 2008

Stanton v Regina

[2008] NSWCCA 326

Drugs
CRIMINAL LAW SENTENCING OFFENDERS PARITY DISPARITY BETWEEN SENTENCES JUSTIFIABLE SENSE OF GRIEVANCE

Citation: Stanton v Regina [2008] NSWCCA 326
Court: NSW Court of Criminal Appeal
Date: 17 December 2008
Judge(s): Beazley JA, Kirby J, Hall J

Background

The appellant was convicted of one count of supplying a prohibited drug and three counts of knowingly taking part in the supply of a prohibited drug, all contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. Three further supply offences were included on a Form 1. The offending arose from a police-controlled operation targeting a motorcycle gang, over a roughly six-week period during which the appellant facilitated drug sales to undercover officers.

The appellant had pleaded guilty in the Local Court approximately six weeks before his formal conviction in the District Court. The sentencing judge, Payne DCJ, found that he had played a facilitating role rather than a leading one, that he was a drug addict who had been recruited (or at least made himself available) partly because of his addiction, and that his financial gain was minimal. She imposed a total effective sentence of 3 years and 9 months with a non-parole period of 2 years and 3 months.

A co-offender, David Keen, had been sentenced separately and received a materially lower sentence. The appellant argued that the disparity between the two sentences gave rise to a justifiable sense of grievance, and sought leave to appeal on that basis.

  • Whether the disparity between the appellant's sentence and his co-offender's sentence was sufficient to give the appellant a justifiable sense of grievance, warranting appellate intervention on parity grounds.
  • Whether the sentencing judge had made specific errors in the comparison she drew between the two offenders, including an erroneous comparison of the number of offences and an erroneous consideration of charges faced by the appellant rather than the co-offender.
  • Whether, if error was established, the Court of Criminal Appeal should re-sentence the appellant.

Decision

The Court of Criminal Appeal found that the sentencing judge had fallen into error in two distinct respects when comparing the appellant's situation to that of the co-offender. First, her Honour had made an erroneous comparison of the number of offences for which each person was sentenced. Second, she had regard to the offences with which the appellant was charged, rather than correctly focusing on those with which the co-offender was charged, when conducting the parity analysis. These errors infected the sentencing exercise.

The Court confirmed the established principle, drawn from cases such as Lowe v R and Postiglione v R, that a significant and unjustified disparity between sentences imposed on co-offenders can produce a justifiable sense of grievance in the more heavily sentenced offender, which may warrant appellate intervention. The Court was satisfied that, having regard to the errors identified, the disparity here was not justifiable.

The Court proceeded to re-sentence the appellant. In doing so, it maintained the 25 per cent discount for the utilitarian value of the plea of guilty that Payne DCJ had applied, and replicated her Honour's finding of special circumstances in structuring the parole period for count 1. The Form 1 matters continued to be taken into account on that count.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed by Payne DCJ quashed and the following new sentences imposed:
  • Count 2 (supply, 3 April 2007): fixed term of 12 months commencing 14 June 2007, expiring 13 June 2008.
  • Count 3 (supply, 4 April 2007): fixed term of 9 months commencing 14 June 2007, expiring 13 March 2008.
  • Count 4 (supply, 24 April 2007): fixed term of 13 months commencing 14 September 2007, expiring 13 October 2008.
  • Count 1 (supply, with Form 1 matters taken into account): non-parole period of 16 months commencing 14 December 2007, expiring 13 April 2009, with a balance of term of 11 months expiring 13 March 2010.
  • Total effective sentence: 2 years and 9 months imprisonment, with a minimum period in custody of 1 year and 10 months. Earliest eligible parole date: 13 April 2009.

Key Takeaways

  • A justifiable sense of grievance arises where a co-offender receives a materially lower sentence without adequate justification, and this may ground appellate intervention even where the sentence under appeal is not, in isolation, manifestly excessive.
  • Specific, identifiable errors by a sentencing judge in conducting a parity analysis, such as miscounting the number of offences or conflating the charges against two different offenders, will enliven the Court of Criminal Appeal's jurisdiction to intervene and re-sentence.
  • The Court of Criminal Appeal confirmed that, on re-sentencing, elements of the original sentence that were correctly applied (including the utilitarian plea discount and a finding of special circumstances) should generally be preserved where appropriate.
  • Sentences imposed on co-offenders are not required to be identical, but any disparity must be explicable by reference to legitimate differences in their respective culpability, roles, and personal circumstances.
  • Under the parity principle, the comparison must be conducted accurately: a judge who mischaracterises either offender's position, whether by misstating offence numbers or conflating distinct charges, risks vitiating the entire sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Appeal Act 1912 (NSW), s 5
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A

Cases
- Lowe v R [1984] HCA 46; (1984) 154 CLR 606
- Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
- Mirza v R [2007] NSWCCA 248
- Qing An v R [2007] NSWCCA 53
- R v Bavadra (2000) 115 A Crim R 152; [2000] NSWCCA 292
- R v Diamond (NSWCCA, 18 February 1993, unreported)
- R v Doggett (NSWCCA, 24 March 1997, unreported)
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Wong v R [2001] HCA 64; 207 CLR 584