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12
Court of Criminal Appeal 14 September 2011

Rae v R

[2011] NSWCCA 211

Drugs
CRIMINAL LAW SENTENCE PARITY PRINCIPLE NO ERROR ESTABLISHED APPEAL DISMISSED

Citation: Rae v R [2011] NSWCCA 211
Court: NSW Court of Criminal Appeal
Date: 14 September 2011
Judges: McClellan CJ at CL, Hidden J, Johnson J

Background

The appellant pleaded guilty in the District Court to knowingly taking part in the supply of 1,000 ecstasy tablets, a commercial quantity offence under the Drug Misuse and Trafficking Act 1985 carrying a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years. The offence arose from a police undercover operation in September 2009 in which the appellant arranged to sell the tablets to an undercover officer, with a co-offender named Adel Abhari acting as an intermediary in the supply chain.

Garling DCJ sentenced the appellant to a non-parole period of three years and six months, with a balance of term of two years. A later hearing before a different District Court judge resulted in a substantially more lenient sentence for Abhari. The appellant sought leave to appeal, arguing that the disparity between the two sentences was unjust.

  • Whether the more lenient sentence imposed on co-offender Abhari gave rise to a justifiable (objective legitimate) sense of grievance on the appellant's part, engaging the parity principle
  • Whether the sentencing judge erred in assessing the objective seriousness of the appellant's offence

Decision

On the parity ground, the Court found no objective legitimate sense of grievance had been established. The two offenders were sentenced at separate hearings before different judges, on materially different evidentiary bases. Critically, the appellant had not given evidence at her sentencing hearing, whereas Abhari did give evidence at his. This produced significantly different factual findings by each judge.

Johnson J, with whom McClellan CJ at CL and Hidden J agreed, noted that the sentencing judge in Abhari's case had expressly explained why he was reaching different conclusions from those of Garling DCJ, having regard to the different evidence before him. The Court observed that considerable obstacles face an applicant invoking the parity principle where the sentencing judge was fully aware of the co-offender's sentence and gave reasons for departing from it. A reasonable and impartial observer, informed of what occurred at each hearing, would not perceive an unjust disparity.

On the objective seriousness ground, the Court found no error in the sentencing judge's assessment. The appellant's role included initiating contact with the undercover officer, negotiating the price and volume of supply, and coordinating the physical handover. No error of principle or fact was identified in the primary judge's evaluation of that conduct.

The Court further observed that even if some error had been demonstrated, it would not have been persuaded that a lesser sentence was warranted so as to justify substitution under s 6(3) of the Criminal Appeal Act 1912.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence dismissed

Key Takeaways

  • The parity principle requires an applicant to demonstrate an objective legitimate sense of grievance, not merely a numerical disparity between sentences imposed on co-offenders.
  • Where co-offenders are sentenced at separate hearings on substantially different evidence, the resulting differences in factual findings can legitimately explain a substantial gap in sentencing outcomes.
  • A sentencing court faces significant scrutiny when invoking parity where the later sentencing judge was aware of the earlier sentence and gave reasons for departing from it; this makes a successful parity challenge considerably more difficult.
  • In dismissing the appeal, the Court noted that Abhari may well have been the beneficiary of a lenient outcome, attributable to the different course his sentencing hearing took, rather than any error in the appellant's sentence.
  • No error in the assessment of objective seriousness was established where the sentencing judge's findings were grounded in agreed facts and consistent with the appellant's active role in the supply transaction.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- Dwayhi v R; Bechara v R [2011] NSWCCA 67
- Gurney v R; Willetts v R [2011] NSWCCA 48
- Gill v R [2010] NSWCCA 236
- England v R; Phanith v R [2009] NSWCCA 274
- McBeth v R [2009] NSWCCA 235
- Vu v R [2006] NSWCCA 188
- Mulato v R [2006] NSWCCA 282
- R v Swan [2006] NSWCCA 47
- Lewins v R [2007] NSWCCA 189
- R v Li [2005] NSWCCA 154
- R v Wei Pan [2005] NSWCCA 114
- R v Mercieca [2004] VSCA 170
- R v Rodden [2005] VSCA 24