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Court of Criminal Appeal 25 February 2009

Wayne William Reid v R

[2009] NSWCCA 37

Drugs
CRIMINAL LAW SENTENCING OFFENCES OF SUPPLYING DRUGS DISCOUNT FOR ASSISTANCE SPECIAL CIRCUMSTANCES TOTALITY

Citation: Wayne William Reid v R [2009] NSWCCA 37
Court: NSW Court of Criminal Appeal
Date: 25 February 2009
Judge(s): McClellan CJ at CL, James J, Buddin J

Background

The applicant, a 36-year-old man, pleaded guilty in the Local Court to four charges of supplying prohibited drugs, including MDMA (ecstasy) and various forms of methylamphetamine. He was sentenced in the District Court by Marien DCJ, who also took into account five additional offences on a Form 1 (a procedural document listing related offences considered at sentencing without separate conviction).

The applicant was found by police sitting in a parked car with two co-offenders, one of whom held scales and another who had handed him a cigarette packet containing drugs. He voluntarily disclosed further drugs to police during the encounter and made admissions in a subsequent interview. The sentencing judge accepted that the applicant was addicted to "ice" at the time and was supplying drugs primarily to fund his own habit.

The total effective sentence imposed was 25 months, with a non-parole period of 16 months. The applicant sought leave to appeal, arguing the sentencing judge erred in calculating his discount for assistance, in applying special circumstances, and in the overall result. He also raised a parity argument by reference to the lighter sentences received by his co-offenders.

  • Whether the sentencing judge erred in calculating the discount applied for the applicant's assistance to authorities
  • Whether the judge erred in determining special circumstances (which allows adjustment of the ratio between the non-parole period and the total sentence)
  • Whether the totality principle was correctly applied across the series of consecutive fixed-term sentences
  • Whether the sentences were disproportionate compared to those imposed on the co-offenders, engaging parity principles

Decision

On the question of the discount for assistance, the Court found no error in the sentencing judge's approach. The judge had properly identified and applied a discount for the applicant's cooperation with police, and the result was not shown to be inadequate or miscalculated.

On special circumstances, the Court was satisfied the sentencing judge had appropriately considered whether the standard non-parole ratio warranted adjustment. No error was identified in either the reasoning or the result reached.

The totality argument also failed. The Court found the overall sentence, when viewed as a whole, was not excessive given the nature and number of the offences. The applicant's role as a user-dealer, his guilty pleas, his favourable antecedents, and his assistance to authorities had all been taken into account, but did not render the sentences manifestly excessive individually or in their combined effect.

On parity, the Court accepted the sentencing judge's conclusion that the applicant's criminality was "far greater" than that of the co-offenders. The applicant was the only one dealt with in the District Court, which exposed him to significantly higher available penalties, and the number and relative seriousness of his offences clearly distinguished his position from those of the others. The parity complaint was rejected.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Parity principles do not require comparable sentences where the nature and extent of an offender's criminality is materially different from that of co-offenders. The Court confirmed that the applicant's greater and more central role in the drug supply enterprise, combined with the higher number and seriousness of charges, justified the sentencing disparity.
  • A discount for assistance to authorities must be identifiable in the sentencing judge's reasoning, but appellate intervention requires a demonstrated error in that reasoning, not merely a different view of the appropriate discount.
  • Special circumstances findings involve the exercise of sentencing discretion; the Court of Criminal Appeal will not interfere unless error in principle or manifest unreasonableness is established.
  • In dismissing the totality argument, the Court applied the principle that consecutive fixed-term sentences must be assessed in their overall effect, but confirmed no error arose on the facts here given the multiple distinct offences involved.
  • Where an offender is dealt with in a higher court than co-offenders, the difference in available penalties is a relevant factor explaining any sentencing disparity and does not of itself establish a parity grievance.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Elmir v R [2009] NSWCCA 22
- Pearce v The Queen (1998) 194 CLR 610
- R v El-Arja [2009] NSWCCA 8
- R v Gallagher (1991) 23 NSWLR 220
- R v Gu [2006] NSWCCA 104
- R v Hammoud (2000) 118 A Crim R 66
- R v Zamagias [2002] NSWCCA 17