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Court of Criminal Appeal 2 October 2009

Smith v Regina

[2009] NSWCCA 253

Drugs
CRIMINAL LAW PARITY OF SENTENCE OFFENDER

Citation: Smith v Regina [2009] NSWCCA 253
Court: NSW Court of Criminal Appeal
Date: 2 October 2009
Judge(s): Macfarlan JA, Howie J, Hislop J

Background

The applicant pleaded guilty in the District Court to two charges under the Drug Misuse and Trafficking Act 1985: supplying heroin on 5 December 2007, and supplying heroin on three or more occasions within a 30-day period between 24 and 29 February 2008. The first supply occurred at premises she shared with her co-offender and resulted in the death of one of the recipients from a heroin overdose. The subsequent supplies were made to undercover police operatives as part of a police operation.

The applicant was sentenced by Garling DCJ to a total effective term of 3 years, with a non-parole period of 1 year and 9 months. Her co-offender, charged with identical offences on identical facts, received a total effective term of 4 years with a non-parole period of 2 years and 3 months.

The sentencing judge took into account several subjective factors favouring the applicant, most notably that she had been under the influence of her co-offender since she was 15 years old, that she was 24 at the time of sentencing (compared to his 48), and that she had a significantly lesser criminal history.

  • Whether the disparity between the applicant's sentence and her co-offender's sentence was such as to give rise to a justifiable sense of grievance, warranting appellate intervention on parity grounds.
  • What weight a sentencing judge should give to differences in the subjective circumstances of an applicant and a co-offender when assessing proportionality between their respective sentences.

Decision

Hislop J (with whom Macfarlan JA and Howie J agreed) dismissed the appeal, finding that the sentencing judge had carefully and expressly addressed the parity question. His Honour at first instance identified the three principal differences between the applicant and her co-offender: the co-offender's sustained influence over her, her younger age, and her substantially lesser criminal record. Those factors justified a lower sentence for the applicant.

The Court of Criminal Appeal confirmed that the parity principle does not require identical sentences where the circumstances of co-offenders differ. The relevant question, drawing on Lowe v R (1984) 154 CLR 606 and Postiglione v R (1997) 189 CLR 295, is whether the difference between the sentences is manifestly excessive and such as to engender, in the mind of an objective observer, a justifiable sense of grievance that justice has not been done.

The Court found the one-year reduction in the head sentence and six-month reduction in the non-parole period, applied in the applicant's favour, fell within the proper exercise of the sentencing discretion. No error was established in the way the sentencing judge weighed the relevant subjective factors. The Court accordingly granted leave to appeal but dismissed the appeal.

Orders Made

  • Extension of time in which to seek leave to appeal against sentence granted.
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle requires that co-offenders receive the same sentence only where other things are equal; differences in age, criminal history, background, and relative culpability can all justify differential sentences.
  • A conviction under the parity principle requires more than showing a difference in sentences; the difference must be manifestly excessive and such as to give an objective observer the impression that justice has not been done.
  • Where a sentencing judge expressly considers and reasons through the parity question, the Court of Criminal Appeal will give significant weight to that exercise of discretion.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that determining the weight to be given to differences in subjective circumstances between co-offenders lies within the sentencing court's discretion.
  • The parity principle can, in principle, be engaged even where the applicant received the lesser sentence, but no such grievance was established on the facts here.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A

Cases:
- Lowe v R (1984) 154 CLR 606
- Postiglione v R (1997) 189 CLR 295
- R v Bridges (unreported, NSWCCA, 15 December 1995)
- R v Steel (unreported, NSWCCA, 17 April 1997)