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Court of Criminal Appeal 10 September 2010

Nastoski v R

[2010] NSWCCA 187

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE RELATIVE ROLES OF CO CONSPIRATORS PARITY OF SENTENCING CONSPIRATORS WERE ADEQUATE

Citation: Nastoski v R [2010] NSWCCA 187
Court: NSW Court of Criminal Appeal
Date: 10 September 2010
Judge(s): McClellan CJ at CL, Hulme J, Davies J

Background

The appellant pleaded guilty in February 2008 to conspiracy to manufacture a commercial quantity of amphetamine, a federal offence carrying a maximum penalty of life imprisonment. The conspiracy centred on a clandestine drug laboratory discovered by Australian Federal Police at a remote rural property in northern NSW in April 2006. Police found the laboratory operational, with over 1.4 kilograms of pure amphetamine already produced and substantial quantities of precursor chemicals on site.

The appellant was one of four co-conspirators sentenced for their roles. Two others, Holland and Wuyts, were sentenced by the same judge (Zahra DCJ); a fourth, Alve, was sentenced by a different judge. The appellant received 11 years and 6 months imprisonment with a non-parole period of 7 years and 8 months. Holland, sentenced on the same day, received 10 years and 6 months with a non-parole period of 7 years.

The appellant challenged his sentence in the Court of Criminal Appeal, arguing primarily that his sentence was disproportionate to Holland's given their respective roles in the conspiracy.

  • Whether the sentencing judge correctly characterised the appellant's role relative to his co-conspirators, particularly Holland
  • Whether the sentencing judge properly applied the parity principle when imposing a higher sentence on the appellant than on Holland
  • Whether the difference in sentences gave rise to a justifiable sense of grievance on the appellant's part

Decision

The Court dismissed the appeal, finding no error in the sentencing judge's characterisation of the respective roles or in the sentence imposed. Davies J (with whom McClellan CJ at CL and Hulme J agreed) identified four factors that adequately distinguished the appellant from Holland and supported the one-year difference in head sentence.

First, the appellant had significantly more telephone contact with the conspiracy than Holland did, and the content of those calls indicated a high level of involvement, including contributing knowledge about the production process. A specific conversation about a rotary evaporator was taken as evidence of the appellant's position in the hierarchy during the production phase. Second, the appellant's ability to source chemicals was described as an essential and critical component of the enterprise's success. The Court rejected the appellant's argument that sourcing legally obtained chemicals made him more replaceable and therefore less culpable.

Third, Holland's lengthy cannabis abuse likely impaired his judgment, providing some explanation for his participation, whereas no such impairment applied to the appellant. Holland also gave evidence at sentencing, which allowed greater weight to be given to his rehabilitative prospects. The appellant did not take the witness box, which reduced the weight the sentencing judge could afford his psychologist's report. Fourth, Holland had no prior drug convictions, while the appellant had drug convictions dating to 1992, and the sentencing judge assessed Holland as further along the path to rehabilitation.

Taking those differences together, and noting that the sentence gap between the two men was relatively small, the Court found no basis for a justifiable sense of grievance on the appellant's part. The parity principle had been properly engaged and applied.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The parity principle in sentencing requires that co-offenders in the same criminal enterprise do not receive unjustifiably disparate sentences, but differences in role, criminal history, rehabilitation prospects, and cooperation with the sentencing process can all legitimately support a higher sentence for one participant over another.
  • No error was established in the sentencing judge's reasoning simply because one co-conspirator received a marginally longer sentence than another sentenced on the same day.
  • A relatively small difference in sentence between co-conspirators is less likely to give rise to a justifiable sense of grievance than a large disparity would be.
  • The Court of Criminal Appeal confirmed that an offender's failure to give evidence at sentencing can reduce the weight available to a sentencing judge when assessing favourable reports, such as a psychologist's assessment of rehabilitation prospects.
  • Where a co-conspirator's criminal involvement is explained partly by substance abuse impairing judgment, that factor may legitimately distinguish their moral culpability from that of a co-conspirator for whom no such impairment is established.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 305.3(1), 11.5(1), 306(2)
- Crimes Act 1914 (Cth)

Cases:
- Pettitt v Dunkley [1971] 1 NSWLR 376
- R v Cook (unreported, Court of Criminal Appeal, 12 December 1991)
- R v Julie Anne Duffy [1999] NSWCCA 321
- R v Olbrich (1999) 199 CLR 270
- Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247