Citation: Vinh The Truong v R [2009] NSWCCA 122
Court: New South Wales Court of Criminal Appeal
Date: 29 April 2009
Judges: McClellan CJ at CL, James J, Adams J
Background
The appellant was sentenced in the District Court for the ongoing supply of prohibited drugs over a period of approximately one month in 2006, with two further drug supply offences taken into account. Sides DCJ applied a 15 percent discount for the appellant's guilty plea and imposed a total term of four years and three months, with a non-parole period of two years and six months. The appellant's co-offender, who was in a de facto relationship with him and who held a greater managerial role in their drug supply enterprise, was sentenced separately by a different judge.
The co-offender received concurrent terms of two years each for her offences, and those sentences were fully suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999. The sentencing judge in the co-offender's matter appeared to have constructed the sentence to allow for suspension, apparently motivated by concern for the welfare of a young child if both parents were incarcerated.
The appellant did not argue that his own sentence was excessive in isolation. Rather, he argued that the disparity between the two outcomes, particularly the shared starting point of five years before discounts, created a justifiable sense of grievance and an appearance of injustice.
Legal Issues
- Whether the disparity between the appellant's sentence and the co-offender's sentence gave rise to a justifiable sense of grievance sufficient to ground a parity appeal
- Whether the co-offender's sentence was so manifestly inadequate that it provided no proper basis for comparison, such that it should be entirely disregarded
- Whether a comparison of sentencing starting points (before individual discounts) was the correct analytical approach to parity
- Whether, even if the suspension of the co-offender's sentence were disregarded, the shared starting point of five years itself revealed an unjustified disparity given the co-offender's greater objective criminality
Decision
The Court of Criminal Appeal granted leave and allowed the appeal. All three judges agreed that using the same starting point of five years for both the appellant and the co-offender was erroneous. The co-offender had accepted a greater managerial role in the drug enterprise and therefore bore greater objective criminality. Applying an identical starting point before discounts failed to reflect that distinction.
Adams J, with whom the others agreed on the outcome, addressed the Crown's principal argument directly. The Crown contended that the co-offender's sentence was so manifestly inadequate that it should be entirely disregarded when assessing parity. Adams J rejected this as the complete answer. Even setting aside the suspension of the co-offender's sentences, the shared starting point of five years independently demonstrated a marked and unjustified disparity, because the co-offender's greater culpability warranted a higher, not equal, starting point.
Adams J also considered whether the co-offender's subjective circumstances (including the welfare of a young child) could explain the sentencing outcome. The Court found that, while such factors were relevant, they could not justify a suspended sentence in the circumstances. The disparity was not adequately explained by personal circumstances alone.
On resentencing, the Court reduced the appellant's starting point from five years to four years. After applying the 15 percent guilty plea discount and preserving the finding of special circumstances to extend the parole period (given the absence of prior custody and the prospects of rehabilitation), the Court imposed a total term of three years and four months with a non-parole period of two years.
Orders Made
- Leave to appeal granted
- Appeal upheld and original sentence quashed
- Substituted sentence: non-parole period of two years commencing 13 June 2007; total term of three years and four months commencing 13 June 2007 and ending 12 October 2010
- Appellant eligible for release on parole on 12 June 2009
Key Takeaways
- A parity challenge is not automatically defeated by showing that the comparator sentence was manifestly inadequate. Even where a co-offender's sentence is set aside as too lenient, a disparity in the underlying starting points can independently ground a legitimate grievance.
- The proper analytical framework for parity involves comparing sentencing starting points before individual discounts are applied, so that differences in guilty plea discounts or assistance reductions do not obscure a true disparity in culpability assessment.
- Where co-offenders bear different levels of objective criminality, sentencing judges must reflect that distinction in their starting points. Applying an identical starting point to offenders of meaningfully different culpability is itself an error.
- The Court of Criminal Appeal confirmed that an applicant's sentence need not be excessive in isolation for a parity appeal to succeed. The appearance of injustice to an objective bystander, and a justifiable sense of grievance in the appellant, can be sufficient.
- Subjective factors personal to a co-offender, such as the welfare of a dependent child, may be relevant to explain sentencing differences but cannot, without more, justify a wholly suspended sentence where the objective gravity of the offending is significant.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999, s 12 (suspended sentences)
- Drug Misuse and Trafficking Act 1985, s 25A (ongoing drug supply; maximum 20 years' imprisonment)
Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- R v McIvor [2002] NSWCCA 490
- R v Kollas and Mitchell [2002] NSWCCA 491
- R v Kairouz [2005] NSWCCA 247
- R v Pan [2005] NSWCCA 114
- Lewins v R [2007] NSWCCA 189
- Wilson v R [2008] NSWCCA 245
- R v Steele NSWCCA 60738 of 1995
- R v Tisalandis (1982) NSWLR 430