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Court of Criminal Appeal 23 April 2009

Chippindall v R

[2009] NSWCCA 127

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE LOW PLACE IN DRUG HIERARCHY YOUNG OFFENDER ADMISSION OF OFFENDING ON ARREST EARLY PLEA OF GUILTY

Citation: Chippindall v R [2009] NSWCCA 127
Court: NSW Court of Criminal Appeal
Date: 23 April 2009
Judge(s): Grove J, Howie J, RA Hulme J

Background

The appellant was a young man aged eighteen at the time of the offences, who had been operating as a low-level organiser of ecstasy supplies at venues in the Castle Hill and Mt Druitt areas of Sydney. Between September 2006 and February 2007, he arranged a series of drug transactions between undercover police officers and various co-offenders, earning approximately $200 per transaction by taking a margin from both buyer and supplier.

Upon arrest in February 2007, the appellant made full admissions to police and subsequently entered early guilty pleas to two counts of supplying a prohibited drug and one count of ongoing supply of a prohibited drug. A further supply charge was taken into account on a Form 1. He also provided valuable assistance to authorities, including an undertaking to give evidence against co-offenders if required.

The sentencing judge at Parramatta District Court characterised the appellant as a "user/dealer at the lower end of the drug hierarchy." Despite applying a discount of around 40 percent for the early guilty plea and cooperation, the sentence imposed carried an effective minimum custody period of two years and six months, implying a notional starting point of seven years and six months. The appellant sought leave to appeal against the severity of that sentence on two grounds: unjustifiable disparity with co-offenders and manifest excess.

  • Whether the appellant had a justifiable sense of grievance arising from the disparity between his sentence and the sentences imposed on co-offenders
  • Whether the sentence was manifestly excessive having regard to the appellant's objective criminality, subjective circumstances, and the broader sentencing pattern for ongoing supply offences

Decision

The Court of Criminal Appeal rejected the parity ground. The co-offenders had each played materially different and more limited roles in the drug transactions, and several had been dealt with in different courts for different charges. The differences in outcome were explicable on legitimate grounds, and the appellant had not demonstrated he was treated more harshly than others whose culpability was comparable to his own.

The Court upheld the manifest excess ground. A survey of 59 sentencing decisions for ongoing supply of prohibited drugs between 2001 and 2007 showed that only three offenders had received a greater imposition than the appellant, and only one had received the same. The Court found it inconceivable that an offender of this profile, operating at the lowest level of the drug hierarchy, just beyond juvenile age, remorseful, of prior good character, and having provided valuable assistance, could properly attract a starting point of seven and a half years. The cumulation of favourable subjective factors had not been sufficiently reflected in the sentence.

On resentencing, the Court adopted the original sentencing judge's favourable subjective findings and took into account the practical circumstances, including that the sentences on the first two counts had already been served and the appellant was approaching his parole eligibility date. The Court restructured the sentence on count 3 to reduce both the non-parole period and balance term.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed in part
  • Sentence on count 3 quashed
  • Appellant resentenced on count 3 to imprisonment comprising a non-parole period of 1 year and 9 months commencing 15 August 2007 and expiring 14 May 2009, with a balance term of 1 year and 3 months
  • Appellant ordered to be released to parole on 14 May 2009

Key Takeaways

  • A notional starting point of seven and a half years for ongoing supply of ecstasy was found to be manifestly excessive where the offender was a low-level user-dealer operating at the bottom of the drug hierarchy, aged eighteen, of prior good character, remorseful, and had provided valuable assistance to authorities.
  • Sentencing statistics, while acknowledged as a blunt tool, provided useful context: the starting point implied by the original sentence placed the appellant in the top handful of outcomes recorded over a six-year period, a result the Court found difficult to reconcile with the appellant's profile.
  • The parity principle does not automatically operate in an appellant's favour where co-offenders received lesser sentences for materially different and more limited conduct, even if those co-offenders participated in the same broader criminal enterprise.
  • Where multiple favourable subjective factors accumulate, including youth, early admissions, early guilty plea, prior good character, genuine remorse, strong rehabilitation prospects, and valuable cooperation, a sentencing court must ensure those factors are substantively reflected in the outcome, not merely acknowledged.
  • In dismissing the parity ground while allowing the manifest excess ground, the Court of Criminal Appeal demonstrated that the two grounds operate independently and that one may succeed even where the other fails.

Legislation and Cases Referenced

No specific legislation or cases were cited in the judgment text. The offences involved prohibitions on drug supply under New South Wales criminal law, and the maximum penalty for ongoing supply referenced in the judgment is 20 years imprisonment. The Form 1 procedure referenced relates to the practice of taking further offences into account on a schedule at sentencing.