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Court of Criminal Appeal 28 February 2008

DO, Van Nghiem v R

[2008] NSWCCA 34

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE PLEA OF NOT GUILTY PARITY PRINCIPLE ADDITIONAL OFFENCES OF CO OFFENDER

Citation: DO, Van Nghiem v R [2008] NSWCCA 34
Court: NSW Court of Criminal Appeal
Date: 28 February 2008
Judge(s): McClellan CJ at CL, Grove J, Simpson J

Background

The applicant pleaded guilty in the District Court at Parramatta to knowingly taking part in the supply of not less than the commercial quantity of methylamphetamine. The offence occurred on 5 October 2005, when the applicant handed nearly 500 grams of crystal methylamphetamine (74% pure, with an estimated street value of $250,000) to a co-offender, who in turn supplied it to an undercover police officer posing as a buyer.

The applicant and his co-offender, Tran, were assessed by the sentencing judge as having approximately equal roles in the transaction: more than mere couriers, but below those sourcing the drug. Ellis DCJ sentenced the applicant to 7 years imprisonment with a 4-year non-parole period. Four months earlier, Ellis DCJ had sentenced Tran to a lesser effective sentence, despite Tran having been convicted of three separate offences including two distinct supply charges and a further offence on a Form 1.

The applicant sought leave to appeal, arguing the disparity between his sentence and Tran's was unjustified given the similarities in their roles and subjective circumstances.

  • Whether the parity principle required the Court of Criminal Appeal to intervene where a co-offender with more charges received a lesser sentence.
  • Whether the additional offences faced by Tran (including a prior, unrelated supply charge) sufficiently explained the sentencing disparity so as to justify a longer sentence for the applicant.
  • Whether the discount applied for the applicant's late guilty plea was appropriate in the circumstances.

Decision

Simpson J (with whom McClellan CJ at CL and Grove J agreed) held that the parity argument succeeded. The court accepted that both offenders had essentially identical subjective circumstances and equal culpability in the joint offence. The fact that the applicant had one minor prior conviction was correctly disregarded by the sentencing judge as irrelevant.

The court examined whether Tran's additional charges justified his receiving the lighter sentence. The Form 1 offence (the supply of a drug sample on the same day) was acknowledged as integrally connected to the principal supply offence. However, Tran also faced a wholly separate supply charge from two to three weeks earlier, an offence with which the applicant had no connection whatsoever.

Simpson J reasoned that where a sentencing court extends a significant degree of leniency to one offender, a co-offender is entitled to expect an equal measure of that leniency. The incontrovertible difference was that the applicant was sentenced for one offence against Tran's two or three. That difference warranted some disparity in sentence, but not the extent actually imposed. McClellan CJ at CL added that both sentences were lenient relative to the standard non-parole period of 10 years prescribed by Parliament, making the disparity more pronounced.

The Court reduced the applicant's non-parole period by six months and also reduced the total term, bringing the sentence into appropriate parity with Tran's.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 17 August 2006 quashed.
  • In lieu, the applicant sentenced to imprisonment for 6 years and 6 months, comprising a non-parole period of 3 years and 6 months commencing 5 October 2005 and expiring 4 April 2009, followed by an additional term of 3 years expiring 4 April 2012.

Key Takeaways

  • The parity principle requires that where a sentencing court extends a significant degree of leniency to one offender, a co-offender with comparable culpability and subjective circumstances is entitled to expect an equivalent level of leniency.
  • A co-offender's additional and unrelated charges can justify some disparity in sentence, but the degree of disparity must reflect the actual difference in criminality being sentenced, not simply the existence of more charges.
  • Where the Crown has not appealed a lenient sentence imposed on one co-offender, that leniency becomes the baseline against which a co-offender's sentence is assessed for parity purposes.
  • Under the standard non-parole period regime, the 10-year standard non-parole period for commercial drug supply operates as a guidepost only where the offender has pleaded guilty, not as a mandatory minimum: the court applied R v Way on this point.
  • Both the District Court sentences in this matter were noted by McClellan CJ at CL to sit well below the legislative standard, underscoring that parity can operate to replicate lenient outcomes as well as appropriate ones.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A (standard non-parole periods); Pt 3 Div 3 (Form 1 offences)

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 (guilty plea discounts)
- R v Way [2004] NSWCCA 131; 60 NSWLR 168 (standard non-parole periods as guideposts)
- The Queen v Postiglione (1997) 189 CLR 295 (parity principle)
- The Queen v Lowe (1984) 154 CLR 606
- R v De Simoni (1981) 147 CLR 383