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Court of Criminal Appeal 10 September 2009

Xue v Regina

[2009] NSWCCA 227

Drugs
CRIMINAL LAW SENTENCE APPEAL OFFENDER NOT INVOLVED WHETHER PARITY PRINCIPLE APPLIED TO CO OFFENDER.

Citation: Xue v Regina [2009] NSWCCA 227
Court: NSW Court of Criminal Appeal
Date: 10 September 2009
Judge(s): Tobias JA, Hoeben J, McCallum J

Background

The appellant pleaded guilty on the first day of his trial to supplying a large commercial quantity of MDMA (852.9 grams in total, exceeding the large commercial threshold of 500 grams) over two separate transactions in December 2005 and January 2006. He had supplied the drug to a co-offender, Gao, who then on-sold it to an undercover police operative. The appellant occupied a more senior position in the drug supply hierarchy than Gao.

The District Court sentenced the appellant to 13 years and 6 months imprisonment with a non-parole period of 10 years, commencing 26 July 2007. The appellant sought leave to appeal that sentence on several grounds, principally that it was disproportionate when compared to the sentences imposed on Gao and a third participant, Lim.

  • Whether parity is a relevant consideration when assessing the objective seriousness of an offence at the sentencing stage
  • Whether the sentencing judge's refusal to find special circumstances constituted an error
  • Whether the parity principle applied to Lim, who was not involved in the same offence as the appellant
  • Whether the sentence imposed on Gao gave the appellant a justifiable sense of grievance for parity purposes

Decision

The Court disposed of each ground of appeal against the appellant. On the question of whether parity considerations were relevant to assessing objective seriousness, the Court rejected the argument. Parity is a distinct sentencing principle and does not form part of the analysis of an offence's objective gravity.

The Court also rejected the challenge to the refusal to find special circumstances. No error was identified in the sentencing judge's exercise of that discretion.

On the parity argument concerning Lim, the Court held that the principle could not apply. Lim was involved in a later, entirely separate transaction and was not a co-offender in the offence for which the appellant was being sentenced. His sentence was therefore irrelevant to any parity comparison.

Turning to Gao, the Court was not persuaded that any meaningful sentencing disparity existed. Although the appellant held a more senior role in the supply hierarchy, Gao's overall criminality was more extensive, as reflected by the additional matters taken into account via a Form 1. The starting point for Gao's head sentence (16 years) compared to the appellant's (15 years) adequately reflected both the appellant's seniority and Gao's greater breadth of offending. The difference in non-parole periods was explained by the refusal of special circumstances in the appellant's case and significant differences in subjective circumstances. No justifiable sense of grievance arose.

Orders Made

  • Leave to appeal granted
  • The appeal is dismissed

Key Takeaways

  • Parity between co-offenders is a distinct sentencing principle and is not a factor in assessing the objective seriousness of an individual offence.
  • The parity principle requires that a co-offender be involved in the same offence; a participant in a separate, later transaction does not attract the principle even if they were part of a broader drug supply network.
  • Where a co-offender's lesser non-parole period is explained by a finding of special circumstances (which was not made for the appellant) and material differences in subjective circumstances, no justifiable sense of grievance is established.
  • In dismissing the appeal, the Court confirmed that Form 1 matters are a legitimate basis for distinguishing between co-offenders' sentences, since they increase the weight given to personal deterrence and retributive considerations for the offender who carries them.
  • No error in refusing to find special circumstances was identified where the sentencing judge's reasoning disclosed no departure from principle.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Meager v Regina [2009] NSWCCA 215
- Mulato v Regina [2006] NSWCCA 282
- Regina v Araya [2005] NSWCCA 283
- Regina v Gao; Regina v Lim [2007] NSWCCA 343
- Tatana v Regina [2006] NSWCCA 398