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Court of Criminal Appeal 8 October 2010

JMS v R

[2010] NSWCCA 229

Drugs
CRIMINAL LAW PARITY ASSISTANCE TO AUTHORITIES

Citation: JMS v R [2010] NSWCCA 229
Court: NSW Court of Criminal Appeal
Date: 8 October 2010
Judge(s): Hodgson JA, Price J, Fullerton J

Background

The applicant and her co-accused pleaded guilty in the District Court at Lismore to two counts each of supplying a prohibited drug (heroin and methylamphetamine) in excess of the commercial quantity of 250 grams. The offences arose from a joint enterprise in which the pair acted as street-level suppliers in the Lismore and Ballina area over a period of several months. The agreed facts did not suggest that either offender played a greater role than the other in the enterprise.

Following her co-accused's arrest in March 2008, the applicant voluntarily attended Lismore police station and disclosed her activities to police. She then assisted authorities over approximately five months, making around 70 contacts with police and providing an induced statement containing evidence against other persons involved in the drug supply network.

The sentencing judge imposed identical sentences on both the applicant and her co-accused. The applicant sought leave to appeal on the grounds that the sentencing judge had failed to give appropriate recognition to the substantially greater assistance she had provided to police, and that parity principles required her sentence to be lower than that of her co-accused.

  • Whether the sentencing judge gave adequate weight to the applicant's significantly greater assistance to authorities compared to her co-accused.
  • Whether the parity principle required the applicant's sentence to be lower than the identical sentence imposed on her co-accused.
  • Whether, taken together, the identical sentences gave the applicant a justifiable sense of grievance.

Decision

Hodgson JA (with Price J and Fullerton J agreeing) found that the sentencing judge had not given sufficient recognition to the applicant's assistance. The applicant had provided far more extensive cooperation than her co-accused, including approximately 70 contacts with police and an induced statement. Critically, that induced statement had come into the hands of persons against whom she was prepared to give evidence, placing the applicant and her family in ongoing danger.

The sentencing judge had also treated the applicant's motivation for offending (financial gain, as distinct from the co-accused's drug dependency) as a factor that elevated her relative culpability. The Court of Criminal Appeal found this did not justify a starting point materially higher for the applicant, particularly given that the agreed facts disclosed no greater role for either offender.

The Court held that the applicant had a justifiable sense of grievance. Her much greater assistance to authorities, combined with the serious jeopardy in which she and her family had been placed, warranted a sentence meaningfully lower than that of her co-accused. Because the Crown had not appealed the co-accused's sentence, parity considerations operated to reduce the applicant's sentence rather than increase his.

On re-sentencing, the Court also took into account affidavit evidence concerning the applicant's health and conditions of imprisonment, and affirmed the sentencing judge's finding of special circumstances. The Court embedded a discount for future assistance equivalent to one year off the total head sentence and six months off the total non-parole period, consistent with the approach taken below.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences below quashed and replaced with:
  • Count 1: imprisonment for 3 years and 6 months commencing 14 October 2009, expiring 13 April 2013, with a non-parole period of 18 months commencing 14 October 2009 and expiring 13 April 2011.
  • Count 2: imprisonment for 3 years and 6 months commencing 14 April 2010, expiring 13 October 2013, with a non-parole period of 18 months commencing 14 April 2010 and expiring 13 October 2011.
  • Earliest parole eligibility date: 14 October 2011.

Key Takeaways

  • The parity principle requires that co-offenders who are similarly culpable receive sentences that do not differ to a degree that gives one of them a justifiable sense of grievance. Where significant differences exist (such as substantially greater assistance to authorities), those differences must be meaningfully reflected in the sentencing outcome.
  • A sentencing court's characterisation of an offender's motivation (for example, financial gain rather than drug dependency) may increase relative culpability only to a proportionate degree. On the facts here, that distinction did not justify a substantially higher starting point for the applicant.
  • The Court of Criminal Appeal confirmed that where an induced statement is provided to police and then comes into the possession of persons against whom the offender is prepared to testify, the resulting danger to the offender and their family is a significant mitigating consideration at sentencing.
  • Discounts for future assistance should be quantified expressly by the sentencing judge so that any subsequent appellate court can identify and apply them consistently on re-sentencing.
  • In dismissing any suggestion that the adjusted sentence was unduly lenient, the Court noted that the Crown had not challenged the co-accused's sentence, and parity considerations therefore operated solely in the applicant's favour.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5DA, 6(3)

Cases:
- R v Clarke (CCA, unreported, 15 March 1990)
- R v Bourchas [2002] NSWCCA 373; (2002) 133 A Crim R 413
- R v Fernando (1992) 76 A Crim R 58
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Tulloh (CCA, unreported, 16 September 1993)
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610