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Court of Criminal Appeal 2 October 2009

Laalaa v R

[2009] NSWCCA 250

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE ASSESSMENT OF OBJECTIVE SERIOUSNESS PARITY BETWEEN CO OFFENDERS WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Laalaa v R [2009] NSWCCA 250
Court: NSW Court of Criminal Appeal
Date: 2 October 2009
Judges: Tobias JA, Hoeben J, RA Hulme J

Background

The applicant was sentenced in the District Court in October 2003 for supplying not less than the large commercial quantity of heroin. Acting Judge Stewart QC imposed a sentence of 20 years' imprisonment with a non-parole period of 15 years, commencing in August 2000. A further offence of supplying not less than the commercial quantity of cocaine was taken into account on a Form 1 (a procedural mechanism allowing related charges to be acknowledged at sentencing without separate conviction).

The applicant was the principal of a drug distribution network operating out of a hotel room in Kings Cross over roughly four months in 2000. Two employees worked alternating shifts selling heroin and cocaine in capsules, supervised by a manager who reported directly to the applicant. The applicant oversaw bulk acquisition of the drugs, managed the proceeds of sales, and directed the overall operation. Police found over $2.1 million in cash at his home when he was arrested.

Nearly six years after sentencing, the applicant sought an extension of time to apply for leave to appeal. Four grounds of appeal were advanced, all challenging the length of the sentence.

  • Whether the sentencing judge correctly assessed the objective seriousness of the principal offence
  • Whether the judge erred in the manner he dealt with the cocaine offence on the Form 1
  • Whether there was an unjustifiable disparity between the applicant's sentence and those of his co-offenders
  • Whether the overall sentence was manifestly excessive

Decision

Objective seriousness and the Form 1: The Court found no error in the sentencing judge's assessment of objective seriousness. The applicant was identified as the directing mind of a sophisticated, well-resourced distribution network that operated continuously for approximately four months and involved substantial quantities of heroin. The judge's treatment of the cocaine offence on the Form 1 was also upheld; no appellable error was identified in that aspect of the sentencing process.

Parity with co-offenders: The applicant argued his sentence was disproportionate compared to those imposed on co-offenders including EG, Tony Ganem, and Bill Panagakos. The Court rejected this ground. The applicant occupied a qualitatively different role as the organisation's principal, with significantly greater responsibility and benefit. The co-offenders held subordinate positions, which rationally explained the disparity in outcomes.

Manifest excess: To establish that a sentence is manifestly excessive, an applicant must demonstrate that it was "unreasonable or plainly unjust." The Court noted that comparison with sentences in other unrelated cases is neither helpful nor supported by authority. Having regard to the maximum penalty of life imprisonment, the objective seriousness of the offence, and the Form 1 cocaine matter, the Court concluded the sentence was severe but not manifestly excessive.

Procedural outcome: Applicant's counsel conceded that if no ground of appeal had merit, the extension of time should be refused. The Court agreed, and the application was dismissed.

Orders Made

  • Extension of time to apply for leave to appeal is refused.

Key Takeaways

  • A co-offender's lower sentence does not automatically create an unjustifiable disparity where the roles and degrees of culpability within the criminal enterprise are materially different.
  • The test for manifest excess requires the sentence to be "unreasonable or plainly unjust," not merely one that another judge might have assessed differently; the Court of Criminal Appeal cannot substitute its own preference for a lawfully exercised sentencing discretion.
  • Comparing sentences across unrelated cases is an unreliable method of establishing manifest excess; the Court of Criminal Appeal has consistently cautioned against treating such comparisons as establishing a relevant sentencing "range."
  • In dismissing the appeal, the Court affirmed that an offender who stands as the principal and directing mind of a large-scale drug distribution network will bear substantially greater culpability than subordinate participants, justifying significant sentence differentiation.
  • Where an applicant delays over five years in seeking leave to appeal, and no merit is demonstrated in the proposed grounds, the Court will decline to grant the extension of time.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)
- Drugs Misuse and Trafficking Act 1985 (NSW), s 33(3)(a)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- EG v Regina [2003] NSWCCA 246
- JOD v R [2009] NSWCCA 205
- R v AEM Snr, KEM and MM [2002] NSWCCA 58
- R v Amurao [2005] NSWCCA 32
- R v Attallah [2005] NSWCCA 277
- R v Barton [2001] NSWCCA 63
- R v Bavadra [2002] NSWCCA 292
- R v Bayeh [2000] NSWCCA 473
- R v Chung [2001] NSWCCA 484
- R v George (2004) NSWCCA 247
- R v Knight; R v Biuvanua [2007] NSWCCA 283
- R v MacDonnell [2002] NSWCCA 34
- R v MAK; MSK [2006] NSWCCA 381
- R v Morgan (1993) 70 A Crim R 368
- R v Panagakos [2003] NSWCCA 81
- Vuni v R [2006] NSWCCA 171