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Court of Criminal Appeal 16 September 2009

Tapai v Regina

[2009] NSWCCA 246

Drugs
CRIMINAL LAW SENTENCE RELEVANT FACTORS PARITY BETWEEN CO OFFENDERS MAY CONSIDER SENTENCING REASONS FOR CO

Citation: Tapai v Regina [2009] NSWCCA 246
Court: New South Wales Court of Criminal Appeal
Date: 16 September 2009
Judge(s): Spigelman CJ; McClellan CJ at CL; Grove J

Background

The appellant pleaded guilty on the first day of trial to supplying a commercial quantity of cocaine (657.3 grams net, at 60.5 percent purity) contrary to the Drug Misuse and Trafficking Act 1985. The offending involved surveillance, intercepted phone calls, and coordinated negotiations to on-supply approximately 24 ounces of cocaine. The appellant was arrested in a vehicle alongside her partner, the co-offender Vasich (also known as Smith).

The appellant was sentenced in the District Court by Toner DCJ on 4 July 2008. His Honour found the offence sat in the middle of the range for offences of its character, applying the standard non-parole period framework. He imposed a non-parole period of five years and six months, having identified several mitigating factors including the appellant's age (56), poor health, limited criminal history, and remorse.

The appellant sought leave to appeal out of time, arguing errors in the sentencing judge's approach to parity, to the treatment of remorse and contrition, and to the weight given to aggravating factors. She also contended the sentence was manifestly excessive.

  • Whether the sentencing judge erred in his approach to parity between the appellant and her co-offender Vasich, including whether the judge could look behind Vasich's sentence to assess whether it was itself excessive
  • Whether the judge double-counted the absence of certain aggravating factors as a mitigating consideration, or misapplied the aggravating factors actually present
  • Whether remorse and contrition were properly accounted for, given the judge had already allowed a discount for the utilitarian value of the guilty plea
  • Whether the sentence was manifestly excessive, with reference to sentencing statistics and the appellant's subjective circumstances

Decision

On the parity ground, Spigelman CJ confirmed that a sentencing judge may have regard to the reasons given when sentencing a co-offender, but must not embark on an inquiry into whether that co-offender's sentence was itself manifestly excessive or inadequate. Toner DCJ's approach was appropriate: he used Vasich's sentence as context but made his own independent findings about the appellant's culpability, concluding the two were essentially equal participants, rather than adopting the factual findings made by Sweeney DCJ.

On aggravating factors, the Court rejected the submission that the absence of certain aggravating features (which might be present in other drug supply cases) operated as a mitigating consideration. The absence of aggravating factors that do not exist in a given case does not diminish the significance of those that do. The degree of planning identified by the sentencing judge was a legitimate aggravating feature.

On remorse and contrition, the Court found no error. While the discount for the guilty plea's utilitarian value is a distinct consideration, a sentencing judge is not precluded from also giving weight to genuine remorse expressed outside the plea itself. The judge's remarks made clear he incorporated both elements into his calculation of the non-parole period.

On manifest excess, the Court dismissed the submission. The sentencing statistics relied upon by the appellant were based on only four to eight cases and were of very limited assistance. The non-parole period of five years and six months was almost half the period that a mid-range assessment of the offence would otherwise have suggested, and the Court held the sentence fell within the permissible range of the sentencing discretion.

Orders Made

  • Time for filing the notice of application for leave to appeal extended to 28 May 2009
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge may consider the reasons for a co-offender's sentence to inform a parity analysis, but must not assess whether that sentence was itself manifestly excessive or inadequate. The judge must make independent findings about relative culpability.
  • Under the parity principle, factual findings made when sentencing a co-offender do not bind a subsequent sentencing judge. Those findings are relevant only as context for understanding the sentence actually imposed.
  • The absence of aggravating factors that happen to appear in other cases of the same type does not, of itself, operate as a mitigating circumstance for the offender before the court.
  • Remorse and contrition can legitimately be considered alongside the utilitarian discount for a guilty plea. The two are not mutually exclusive, provided the sentencing judge does not give separate, additional weight to remorse that is nothing more than an inference from the plea itself.
  • Sentencing statistics drawn from a very small number of cases carry limited weight. The Court of Criminal Appeal confirmed that statistics based on limited data provide little useful guidance in individual sentencing exercises.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A; s 54B and Table Item 18

Cases:
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Hutton v The Queen [2008] NSWCCA 99
- Kite v R [2009] NSWCCA 12
- R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218