Citation: Dao v R [2011] NSWCCA 183
Court: NSW Court of Criminal Appeal
Date: 17 August 2011
Judge(s): McClellan CJ at CL, Simpson J, Fullerton J (joint decision by Fullerton J, with the other members agreeing)
Background
The appellant had pleaded guilty in the District Court to attempting to possess a commercial quantity of an unlawfully imported border controlled drug, specifically 22.3 kilograms of pure methamphetamine. The commercial threshold for the drug under federal law is 750 grams. The consignment had a wholesale value of between $4 million and $5 million and a street value estimated between $10 million and $22 million.
The sentencing judge found the appellant was a low-level participant whose involvement lasted only a matter of hours. His role was limited to driving a co-offender to a rendezvous where the drugs were to be collected, and then assisting with unpacking the cartons at premises intended as the first point of distribution. He was sentenced to 10 years imprisonment with a non-parole period of 6 years, commencing from his arrest in December 2007.
Two co-offenders were subsequently tried and sentenced by a different District Court judge. One received 12 years and 6 months imprisonment, and the other received 12 years imprisonment. The appellant sought leave to appeal on the sole ground that his sentence was disproportionately high compared with those of his co-offenders, creating a justifiable sense of grievance.
Legal Issues
- Whether the disparity between the appellant's sentence and those of his co-offenders was sufficiently marked to constitute an error warranting appellate intervention under the parity principle.
- Whether the different sentencing circumstances, including criminal records, pleas of guilty versus conviction after trial, and the individual roles of each offender, adequately explained the differences in the sentences imposed.
Decision
Fullerton J (with McClellan CJ at CL and Simpson J agreeing) dismissed the appeal. The Court accepted that the two co-offenders played greater roles in the criminal enterprise. One co-offender was found to have been a pivotal figure who negotiated collection of the consignment over several days under a false name; the other was the trusted custodian of the drugs, using his own vehicle and premises in the unpacking phase. By contrast, the appellant's involvement was ancillary and brief.
A critical distinction, however, lay in criminal history. The appellant carried a significantly more serious record than his co-offenders, including two prior drug supply offences serious enough to attract full-time imprisonment. That history effectively offset the discount the appellant received for his guilty plea, producing an undiscounted head sentence of 13 years and 4 months, which the Court found was explicable when set against the sentences imposed on the co-offenders.
The Court applied the principles governing appellate intervention in parity cases, as reviewed in England v R; Phanith v R [2009] NSWCCA 274. It emphasised that mere disparity is not enough to justify intervention. The disparity must be "marked," "glaring," or "serious," and must give rise to a justifiable sense of grievance or an appearance that justice has not been done. The Court was not persuaded that threshold was reached here.
The Court also noted that both sentencing judges exercised their discretions carefully, and that some degree of disparity between co-offenders sentenced in separate proceedings is inevitable and must be tolerated. The differences in the sentences were explained by the differing criminal histories, the different procedural postures (plea versus trial), and the roles each offender played.
Orders Made
- Leave to appeal was granted.
- The appeal was dismissed.
Key Takeaways
- The parity principle requires more than a mere numerical difference between co-offenders' sentences. An applicant must demonstrate a disparity that is marked, glaring, or serious enough to generate a justifiable sense of grievance or give the appearance that justice has not been done.
- A prior criminal record can offset the sentencing discount available for a plea of guilty, and this interaction can legitimately produce a higher sentence for an offender whose role was less significant than that of a co-offender with a lesser record.
- Different sentencing judges exercising their discretions independently, particularly where one sentences after a plea and another after a trial, will inevitably produce some variation. The Court of Criminal Appeal confirmed that such variation does not of itself constitute appealable error.
- In dismissing the appeal, the Court reaffirmed that appellate courts must afford due weight to the discretion of the individual sentencing judge and should not intervene simply because a different outcome might have been reached.
- Under s 16A of the Crimes Act 1914 (Cth), positioning an offender relative to a notional mid-range of offending is not a necessary step when imposing sentence for a Commonwealth offence, though the Court declined to find that adopting such an approach infected the sentences in this case.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), s 16A
- Criminal Code Act 1995 (Cth)
Cases:
- England v R; Phanith v R [2009] NSWCCA 274
- Postiglione v R [1997] HCA 26; 189 CLR 295
- R v Olbrich [1999] HCA 54; 199 CLR 270
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465