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Court of Criminal Appeal 29 April 2009

LOZANOVSKI v R

[2009] NSWCCA 123

Drugs
SENTENCE APPEAL PARITY

Citation: LOZANOVSKI v R [2009] NSWCCA 123
Court: NSW Court of Criminal Appeal
Date: 29 April 2009
Judge(s): McClellan CJ at CL, James J, Adams J

Background

The applicant and his co-offender were sentenced in the District Court following their respective roles in the supply of methylamphetamine in the Hunter region in mid-2007. The applicant was convicted of supplying drugs on three or more separate occasions within a 30-day period, an offence carrying a maximum of 20 years' imprisonment. His co-offender faced a different but related charge of supplying a commercial quantity of methylamphetamine, also carrying a maximum of 20 years.

The applicant acted as a middle figure in three controlled drug transactions, sourcing tablets from the co-offender and on-supplying them to an undercover police officer. The co-offender sat higher in the supply chain: he sourced drugs from a Sydney contact, supplied the applicant across all three transactions, and also admitted to at least eleven further supply transactions on his own account over the same period.

At first instance, Coolahan DCJ sentenced the applicant to three years and nine months with a non-parole period of two years and three months. The co-offender received three years and six months with a non-parole period of only one year and six months. The applicant sought leave to appeal on the ground that the disparity between the two sentences was unjustifiable and produced a legitimate sense of grievance.

  • Whether the sentencing judge erred by treating the objective criminality of the two offenders as substantially equivalent, when their respective roles and the scale of their offending differed materially.
  • Whether the co-offender's exceptional health circumstances adequately explained the disparity in sentences, or whether the resulting difference was so great as to require the applicant's sentence to be reduced on parity grounds.

Decision

Adams J (with whom McClellan CJ at CL and James J agreed) found that the sentencing judge had erred by concluding that the only meaningful differentiating factor between the offenders was the co-offender's serious health conditions. The objective criminality of the two men was, while perhaps not "vast" in degree, at least substantial and significant. The co-offender sat higher in the supply chain, dealt in larger quantities, and his charge was framed as representative of a wider pattern of dealing spanning roughly one month and encompassing at least fourteen transactions.

Adams J also rejected the proposition that identical maximum penalties for two offences necessarily means the criminality involved in any particular commission of those offences is equivalent. The sentencing judge had treated that equivalence of maximum penalties as supporting a conclusion of similar culpability, which Adams J considered a legal error.

However, the court acknowledged that the co-offender's long-standing, serious and at times life-threatening ill health was genuinely exceptional. That factor, together with the inference that co-morbid depression may have impaired his judgment in undertaking drug dealing, provided some justification for the leniency he received. Even so, the sentence imposed on the co-offender was described as "exceedingly lenient" and, when measured against the applicant's sentence, created a disparity that gave rise to a justifiable sense of grievance.

The court reduced the applicant's head sentence to three years' imprisonment with a non-parole period of one year and nine months. Adams J was explicit that this sentence was more lenient than the applicant's conduct warranted and would not have been imposed but for the sentence imposed on the co-offender. The parity principle was therefore applied not to reward the applicant, but to maintain coherence in sentencing outcomes.

Orders Made

  • Leave to appeal granted.
  • Head sentence reduced to three years' imprisonment.
  • Non-parole period of one year and nine months imposed, commencing 29 August 2007 and expiring 28 May 2009.

Key Takeaways

  • The parity principle in sentencing requires that unjustifiable disparity between co-offenders be corrected, even where this produces an outcome more lenient than the offender's own conduct strictly warrants.
  • Identical maximum penalties for two offences do not, of themselves, justify treating the objective criminality involved in particular instances of those offences as equal or similar.
  • Exceptional personal circumstances, including serious and long-standing health conditions, can legitimately justify a markedly reduced sentence for one co-offender, but only up to a point: the resulting disparity must not be so great as to generate a justifiable sense of grievance in the other.
  • Where one offender's charge is representative of a broader pattern of dealing, and that offender occupied a higher position in the supply chain, the sentencing court is required to reflect those differences in the comparative sentences imposed.
  • In allowing the appeal, the Court of Criminal Appeal was careful to note that the reduced sentence did not reflect the applicant's true culpability, preserving the integrity of the parity analysis rather than treating the co-offender's lenient sentence as the correct benchmark.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1997 (NSW), s 44
- Drug Misuse and Trafficking Act 1985 (NSW), s 25 and s 25A(1)

Cases cited: No specific cases were identified in the text provided.