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Court of Criminal Appeal 28 October 2010

Pan v R

[2010] NSWCCA 243

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE OFFENDER

Citation: Pan v R [2010] NSWCCA 243
Court: NSW Court of Criminal Appeal
Date: 28 October 2010
Judge(s): McClellan CJ at CL; Hall J; Barr AJ

Background

The appellant pleaded guilty in 2008 to one count of supplying cocaine in a large commercial quantity (6.011 kilograms) contrary to the Drug Misuse and Trafficking Act 1985. The offence had been committed in 2001, but the appellant fled to Canada shortly afterward and was only extradited in 2008. The sentencing judge described him as a mid-level, trusted member of an international drug syndicate who had come to Sydney at the direction of the operation's controller.

A co-offender, who had been found in a car with the appellant at the time of arrest, pleaded guilty to a related charge and received a sentence of 6 years imprisonment with a non-parole period of 4 years. The appellant was sentenced to 10 and a half years with a non-parole period of 6 years and 9 months, after the sentencing judge applied a 25% discount for his plea of guilty, cooperation, and contrition from a starting point of 14 years.

The appellant represented himself on appeal. His sole ground was that, when compared with the co-offender's sentence, his own was unjust, and that he was entitled to a discount greater than 25%.

  • Whether the appellant had a justifiable sense of grievance about the disparity between his sentence and that imposed on the co-offender.
  • Whether the 25% discount applied by the sentencing judge for guilty plea, cooperation, and contrition was insufficient, particularly given that the co-offender had contested the matter at committal.

Decision

The Court of Criminal Appeal was unpersuaded that the sentence was excessive. Given the quantity of drugs involved and the appellant's significant organisational role, the Court found the sentence appropriate. The sentencing judge had already accounted for the appellant's lack of reoffending and prospects of rehabilitation by adjusting the ratio between the non-parole period and the total term, rather than by increasing the discount.

On the question of the plea discount, the Court held that 25% represented the maximum appropriate discount in the appellant's circumstances. While the appellant's cooperation was acknowledged, it did not rise to a level warranting a discount beyond 25%.

The Court also considered the co-offender's sentence directly. It noted that the co-offender's 25% discount may in fact have been excessive, given that he had contested the committal proceedings, which might ordinarily have warranted a smaller discount. Critically, the Court held that any such generosity toward the co-offender did not entitle the appellant to a greater discount than his own circumstances justified.

On the parity argument more broadly, the Court reaffirmed that appellate intervention on grounds of sentence disparity is confined to cases of "gross", "marked", "glaring" or "manifest" disparity, following the High Court's approach in Lowe v The Queen and Postiglione v The Queen. No such disparity was established here.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Parity in sentencing does not entitle a co-offender to benefit from what may have been an unduly generous discount given to another; each sentence must be assessed on its own facts.
  • The Court of Criminal Appeal confirmed that appellate intervention on disparity grounds requires a "gross", "marked", "glaring" or "manifest" disparity, not merely a difference in outcome between co-offenders.
  • A co-offender who contests committal proceedings may be entitled to a lesser guilty plea discount than one who pleads at an early stage, but any generosity shown to the former does not flow automatically to the latter.
  • Where a sentencing judge accounts for mitigating factors such as rehabilitation prospects and family isolation by adjusting the non-parole period ratio, that approach may satisfy the requirement to reflect those matters even without increasing a plea discount.
  • In dismissing the appeal, the Court held that 25% represented the ceiling of an appropriate discount in circumstances where cooperation, while present, was not of a kind that justified exceeding that threshold.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Postiglione v The Queen (1997) HCA 26; 189 CLR 295
- England v R, Phanith v R [2009] NSWCCA 274