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Court of Criminal Appeal 31 March 2009

Takiari v R

[2009] NSWCCA 84

DrugsTheft & property
CRIMINAL LAW SENTENCE THEFT OF PROPERTY AS A CLERK PARITY TOTALITY

Citation: Takiari v R [2009] NSWCCA 84
Court: NSW Court of Criminal Appeal
Date: 31 March 2009
Judge(s): McClellan CJ at CL, Buddin J, Rothman J

Background

Two brothers, referred to here as NAT and DTT, pleaded guilty to a series of offences arising from a police controlled operation in September 2006. DTT had stolen large quantities of pseudoephedrine-based cold and flu tablets and cosmetic products from his employer, a logistics and warehousing company, where he held a trusted position. NAT then arranged the sale of those tablets to undercover police operatives, and both brothers were arrested at the point of transaction.

The offending involved over 106,000 pseudoephedrine tablets intended for use in manufacturing methylamphetamine. NAT dealt directly with the undercover officers, negotiated the price, and demonstrated knowledge of how pseudoephedrine is extracted and used to produce amphetamines. Both men made full admissions to police.

The brothers were sentenced in the District Court. NAT received a total effective sentence of five years imprisonment with a three-year non-parole period. DTT, who faced four counts compared to NAT's two, received a total effective sentence of six years with a four-year non-parole period. Both sought leave to appeal to the Court of Criminal Appeal.

  • Whether the sentencing judge impermissibly used features of the offending as aggravating factors that were already inherent in the offences themselves
  • Whether the sentences imposed on each applicant fell outside the proper exercise of sentencing discretion
  • Whether DTT had a justifiable sense of grievance in relation to parity with NAT's sentence (the parity principle)
  • Whether the totality principle was correctly applied to DTT's accumulation of sentences

Decision

Aggravating factors. The Court examined whether the sentencing judge had double-counted characteristics of the offending by treating them as statutory aggravating factors when those characteristics were already reflected in the nature of the charges. The Court found no such error. The features relied upon by the sentencing judge were properly considered in assessing the objective seriousness of the conduct and did not constitute impermissible double-counting.

Adequacy of mitigation and overall sentence range. Buddin J acknowledged that both applicants had a number of genuine mitigating factors available to them, including their guilty pleas and personal circumstances. However, the Court concluded that the individual sentences and overall effective sentences for each applicant fell within the range of a proper exercise of sentencing discretion, and no appealable error was demonstrated.

Parity (DTT's appeal). DTT argued that the accumulation of his sentence for count 3 upon his sentence for count 2 neutralised the six-month reduction he received compared to NAT's sentence for the same count, producing an unjust disparity. The Court accepted that this outcome was somewhat anomalous, but held that the correct question under the parity principle is whether the overall effective sentence gives rise to a justifiable sense of grievance. Because DTT stood for sentence on four counts rather than NAT's two, and the sentencing judge was required to apply totality principles across those additional matters, the Court was not persuaded that requiring DTT to serve 12 months more than NAT disclosed any justified grievance.

Totality. The Court found that the sentencing judge had applied totality principles appropriately in structuring DTT's sentences and was satisfied that the overall sentencing result was not excessive.

Orders Made

  • Leave to appeal granted in each case
  • Appeals dismissed

Key Takeaways

  • The parity principle requires a court to assess whether the overall effective sentence, viewed as a whole, produces a justifiable sense of grievance when compared to a co-offender's sentence, not whether individual components appear anomalous in isolation.
  • Where two co-offenders face different numbers of counts, differences in the structure and length of their total effective sentences may be explicable by the application of totality principles rather than any disparity in the treatment of comparable conduct.
  • No error arises from a sentencing judge treating features of offending as relevant to objective seriousness, provided those features are not simultaneously counted as separate statutory aggravating factors in a way that amounts to double-counting.
  • In dismissing both appeals, the Court confirmed that the sentencing range for possession of pseudoephedrine intended for manufacture of methylamphetamine involves significant terms of imprisonment, particularly where the offender has direct knowledge of the drug's intended use.
  • A trusted employment position that facilitated theft of pharmaceutical stock, and a demonstrated understanding of how precursor chemicals are converted into illicit drugs, are properly weighed as aspects of objective seriousness at sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases:
- Bowden v R [2009] NSWCCA 45
- Elyard v R [2006] NSWCCA 43
- Hewitt v R (2007) 180 A Crim R 306
- Natoli v R [2009] NSWCCA 36
- Reaburn v R (2007) 169 A Crim R 337
- R v Cousins (2002) 132 A Crim R 444
- R v Yildiz (2006) 160 A Crim R 218