Citation: Miletic v R [2008] NSWCCA 74
Court: New South Wales Court of Criminal Appeal
Date: 10 April 2008
Judge(s): Mason P, James J, Hoeben J (Hoeben J delivered the principal judgment; Mason P and James J agreed)
Background
The appellant was a self-employed roof tiler who, together with his de facto partner (the co-offender), ran a small drug supply operation from their rented home in Raby, NSW. Police conducted electronic surveillance of the premises over several weeks in May 2006, recording transactions, conversations, and the weighing and packaging of drugs. On arrest, police located methylamphetamine totalling 23.77 grams, cannabis totalling 68.5 grams, anabolic steroids, and drug supply paraphernalia.
The appellant pleaded guilty in the District Court to ten offences, including one charge of ongoing supply of methylamphetamine and LSD (seven supplies in total), seven charges of supplying cannabis, one charge of knowingly taking part in supplying cannabis, and one charge of deemed supply of methylamphetamine. Eight further offences were taken into account on a Form 1 schedule. Judge Sides QC sentenced the appellant to a total non-parole period of three years' full-time imprisonment commencing 31 May 2006, with a balance of term of eighteen months.
The appellant sought leave to appeal against sentence on two grounds: first, that the sentencing judge erred in applying the principles of cumulation and totality; and second, that the disparity between his sentence and that imposed on his co-offender gave rise to a justifiable sense of grievance.
Legal Issues
- Whether the sentencing judge erred in applying the principles of cumulation and totality when constructing the overall sentence across multiple drug supply offences
- Whether the substantial disparity between the appellant's sentence (three years' full-time imprisonment) and the co-offender's sentence (ten months' periodic detention) gave rise to a justifiable sense of grievance warranting appellate intervention
Decision
On the cumulation and totality ground, the Court of Criminal Appeal found no error in the judge's approach. The sentencing judge had properly identified the most serious offence (ongoing supply of methylamphetamine), imposed an appropriate sentence for it, and then structured the remaining sentences to reflect the additional criminality without producing a total that was disproportionate. The Court was satisfied that the overall sentence adequately reflected both the individual offences and the totality of the appellant's criminal conduct.
On the parity ground, the Court acknowledged that the co-offender received a significantly more lenient outcome, serving her sentence by way of periodic detention. However, the Court found the disparity was fully explained by legitimate differences between the two offenders. The co-offender had more compelling subjective features, played a lesser role (fetching and packaging rather than negotiating sales and directing the enterprise), and the sentencing judge had found that the trafficking would have continued even without her involvement.
The Court applied the two-step sentencing framework, confirmed in earlier Court of Criminal Appeal authority, under which a court first determines the appropriate term of imprisonment and then separately considers whether any alternative to full-time custody is available and appropriate. The objective seriousness of the appellant's offending, combined with the absence of mitigating subjective factors available to the co-offender, meant no such alternative was open to him. No error was established in the judge's reasoning on either ground.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A significant sentencing disparity between co-offenders does not automatically give rise to a justifiable sense of grievance; the disparity must be unexplained by legitimate differences in culpability, role, and subjective circumstances.
- The Court of Criminal Appeal confirmed the two-step approach to sentencing: the sentencing court first determines the appropriate term of imprisonment, then separately considers whether an alternative to full-time custody (such as periodic detention) is available and suitable given the objective seriousness of the offending.
- Where one co-offender plays a directing role in a drug supply enterprise (negotiating prices, controlling the operation) and the other plays a more subordinate role, courts are entitled to treat their respective culpability as materially different for sentencing purposes.
- In dismissing the appeal, the Court confirmed that the principles of cumulation and totality require the sentencing court to ensure the total effective sentence is not disproportionate to the overall criminality, while still reflecting the gravity of each individual offence.
- No error was established in the lower court's application of cumulation principles across ten guilty pleas arising from a course of ongoing drug supply conduct spanning approximately three weeks.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)
- Crime (Sentencing Procedure) Act 1999 (NSW), s 10A, s 77
Cases:
- Dinsdale v The Queen (2000) 202 CLR 321
- Johnson v R (2004) 78 ALJR 616
- Mill v R (1988) 166 CLR 59
- Pearce v R (1998) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR 295
- R v Blackman and Walters [2001] NSWCCA 121
- R v Brown [1999] NSWCCA 323
- R v Foster [2001] NSWCCA 215
- R v Gorman (2002) 137 A Crim R 326
- R v Hammoud (2002) 118 A Crim R 66
- R v Holder (1983) 3 NSWLR 245
- R v Janceski (No 2) [2005] NSWCCA 288
- R v Jurisic (1998) 45 NSWLR 209
- R v MMK [2006] NSWCCA 272
- R v Myers [2002] NSWCCA 162
- R v Percy [1975] Tas SR 62
- R v T (NSWCCA, 19 June 1995)
- R v Wegener [1999] NSWCCA 405
- R v Wheeler [2000] NSWCCA 34
- R v Zamagias [2002] NSWCCA 17