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Court of Criminal Appeal 21 May 2010

Zhang v R

[2010] NSWCCA 105

Drugs

Citation: Zhang v R [2010] NSWCCA 105
Court: NSW Court of Criminal Appeal
Date: 21 May 2010
Judge(s): Allsop P, Grove J, Hislop J

Background

The appellant pleaded guilty in the District Court to attempting to possess a commercial quantity of methamphetamine (15.9 kilograms, with an average purity of 66.2 per cent) contrary to the Criminal Code Act 1995 (Cth). He was sentenced by Berman DCJ to a non-parole period of seven years with a head sentence of 11 years, commencing September 2007.

His co-offender, who had received the drug shipment in Sydney and physically transferred the boxes to the appellant, was convicted after a jury trial and sentenced by a different District Court judge to a non-parole period of 8.5 years with a head sentence of 14 years.

The appellant sought leave to appeal on the sole ground that the differential between the two sentences was too narrow and did not adequately reflect his early guilty plea and the co-offender's more significant role in the enterprise.

  • Whether the disparity between the appellant's sentence and the co-offender's sentence gave rise to a justifiable sense of grievance sufficient to warrant appellate intervention under the parity principle.
  • Whether the sentencing judge's findings about each offender's role and objective criminality supported the differential actually imposed.

Decision

Hislop J (with whom Allsop P and Grove J agreed) set out the governing parity principles, drawing on the High Court decisions in Lowe v R and Postiglione v R. The parity principle requires that co-offenders should not suffer a marked disparity in sentence where other things are equal, but courts must account for differences in role, culpability, and subjective circumstances. The test is objective: a reasonable person must regard the sense of grievance as justified.

The Court accepted the respondent's submission that the two offenders' objective criminality was, in fact, quite similar. Both operated above the level of a mere courier, both knew they were handling a substantial quantity of an illegal drug destined for further distribution, and both were found to have demonstrated a high degree of moral culpability. The sentencing judge for the co-offender expressly acknowledged the appellant's earlier sentence and the need to maintain parity.

The difference between the two sentences was explicable primarily by the appellant's early guilty plea, which entitled him to a discount for his willingness to assist the course of justice. The Court found no marked disparity giving rise to a justifiable grievance, and accordingly dismissed the appeal, while granting leave to appeal.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the parity principle does not require identical sentences for co-offenders; it requires that any disparity be explicable by legitimate differences in role, culpability, or subjective circumstances.
  • An early guilty plea constitutes a valid and sufficient basis for a more favourable sentence compared with a co-offender convicted after a jury trial, even where both offenders' objective criminality is assessed as broadly similar.
  • The applicable test for disparity is objective: the grievance must be one that a reasonable person, informed of all the circumstances, would regard as justified.
  • No error was established merely because the appellant argued the differential inadequately reflected the co-offender's greater involvement in the importation phase; the Court found both offenders occupied a broadly comparable level of culpability within the enterprise.
  • Granting leave to appeal while dismissing the appeal on the merits reflects the Court's willingness to scrutinise parity arguments, while maintaining that intervention is not warranted unless the disparity is genuinely marked.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 307.5(1)

Cases
- Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
- Lowe v R [1984] HCA 46; (1984) 154 CLR 606
- JOD v R [2009] NSWCCA 205
- R v Boney [2001] NSWCCA 432