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Court of Criminal Appeal 4 March 2010

Fitzsimon v R

[2010] NSWCCA 25

Drugs
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE 2 OFFENDERS PARITY PRINCIPLE WHETHER ERROR SHOWN.

Citation: Fitzsimon v R [2010] NSWCCA 25
Court: New South Wales Court of Criminal Appeal
Date: 4 March 2010
Judge(s): McClellan CJ at CL, James J, Davies J

Background

The appellant pleaded guilty in the District Court to two offences: supplying not less than a large commercial quantity of ecstasy (1.7 kilograms) and supplying methylamphetamine (54.84 grams), both contrary to the Drug Misuse and Trafficking Act 1985. His role in the drug supply organisation was to obtain the drugs and pass them to a co-offender, who acted as a courier delivering them to a principal distributor on the NSW North Coast.

Judge Tupman of the District Court sentenced the appellant to a non-parole period of six years (with a balance of term of three years and four months) on the principal count, and a concurrent fixed term of two years on the second count. The sentences took into account two further methylamphetamine supply charges on a Form 1 (a procedure by which additional charges are acknowledged at sentencing and taken into account without separate conviction).

The co-offender received a non-parole period of five years on the equivalent count. The appellant sought leave to appeal, arguing that the sentencing judge had given insufficient weight to his mental health issues, wrongly applied the parity principle, and imposed a manifestly excessive sentence.

  • Whether the sentencing judge gave insufficient weight to the appellant's mental health issues when applying principles of general deterrence
  • Whether the one-year disparity in non-parole periods between the appellant and his co-offender was justified, or whether the parity principle required greater consistency
  • Whether the sentence was manifestly excessive

Decision

On the mental health ground, the Court found no error. The sentencing judge had explicitly acknowledged the appellant's mental health condition and applied the principle that, where mental illness diminishes the relevance of general deterrence, it should be given less weight. The Court confirmed that the degree of weight to be given to any sentencing factor is a matter of discretion for the sentencing judge, and a mere difference of opinion about that weight does not establish appealable error.

On parity, the Court found that the one-year difference in non-parole periods was partly explained by the different discount each offender received for the timing of their guilty pleas. The appellant's plea was entered later than the co-offender's, producing a smaller discount. Beyond that, the sentencing judge also weighed several other legitimate distinctions: the appellant had a worse criminal history, had recruited the co-offender into the enterprise, and had less impressive rehabilitation prospects. The Court accepted that these factors, taken together, provided adequate justification for the disparity.

The co-offender faced two additional Form 1 charges (deemed supply of 104.1 grams of methylamphetamine and dealing with proceeds of crime), but the Court noted these arose from the same criminal enterprise and were partly a product of circumstance, specifically that police found drugs at the co-offender's premises the day after his arrest. These additional charges did not, in the Court's view, require a greater balancing of the sentences in the appellant's favour.

On manifest excess, the appellant made no independent submissions on this ground, linking it entirely to the other two grounds. The Court found that, considered on its own terms and against the maximum penalty of life imprisonment and a standard non-parole period of 15 years, the sentence disclosed no error.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's decision about the weight to be given to mental health in moderating general deterrence is a matter of discretion; an appellate court will not interfere merely because a different weighting might have been open, consistent with the principles in House v The King.
  • The parity principle does not require identical sentences where co-offenders are relevantly different. Differences in plea timing, criminal history, rehabilitation prospects, and the degree of culpability can all justify a sentencing disparity.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a ground of manifest excess unsupported by independent argument will not succeed where the sentence, viewed against the maximum penalty and standard non-parole period, discloses no obvious error.
  • Additional Form 1 charges do not automatically require a heavier sentence for the co-offender bearing them; the sentencing court may assess the overall criminality and context of those charges and give them limited additional weight.
  • No error was established across any of the three grounds, demonstrating the high threshold an appellant must meet to disturb a sentence imposed within the range of a sentencing judge's legitimate discretion.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes Act 1900 (NSW), s 193C(1)

Cases:
- House v The King (1936) 55 CLR 499
- Lowe v R (1984) 154 CLR 606
- R v Engert (1995) 85 A Crim R 67
- R v Hemsley [2004] NSWCCA 228
- R v Wright (1997) 93 A Crim R 48
- Stephens v R [2009] NSWCCA 240