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Court of Criminal Appeal 4 March 2011

Peachey v R

[2011] NSWCCA 30

Drugs
SENTENCE APPEAL OFFENDER THE APEX OF ORGANISATION SIMILAR PRIOR CONVICTIONS SOPHISTICATED DRUG SUPPLY NETWORK 14 MONTHS INVOLVEMENT ACCUSED

Citation: Peachey v R [2011] NSWCCA 30
Court: NSW Court of Criminal Appeal
Date: 4 March 2011
Judge(s): Hodgson JA, Adams J, Hall J (Hall J delivering the principal judgment)

Background

The appellant pleaded guilty in the District Court to knowingly taking part in the supply of cannabis leaf in an indictable quantity, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The offending involved her operation of a sophisticated, hierarchical cannabis distribution network in and around Dubbo over approximately 14 months between September 2007 and December 2008. By agreed estimate, approximately 15 to 18 kilograms of cannabis leaf was supplied through the network during that period.

The appellant was identified as the organising and controlling mind at the apex of the distribution hierarchy. She admitted that greed, rather than personal drug use, motivated her involvement. Seven co-offenders occupied positions lower within the same hierarchy and had each been sentenced separately.

The District Court imposed a total sentence of 5 years and 3 months imprisonment, with a non-parole period of 3 years, 11 months and 7 days commencing 11 October 2009. The appellant sought leave to appeal that sentence on four grounds.

  • Whether the sentencing judge failed to apply the parity principle when sentencing the appellant alongside her co-offenders in the same criminal enterprise
  • Whether the sentencing judge erred in finding that the appellant had not demonstrated remorse and had no prospects of rehabilitation
  • Whether the sentencing judge erred in declining to find special circumstances justifying a variation to the standard non-parole period ratio
  • Whether the non-parole period was manifestly excessive having regard to all the circumstances

Decision

Parity: The Court of Criminal Appeal rejected the parity ground. The appellant had specifically acknowledged in agreed facts that she was the head of the criminal enterprise. The Court accepted that her level of criminality was markedly and significantly higher than that of each co-offender, all of whom occupied lower positions in the hierarchy. Applying Lowe v The Queen (1984) 154 CLR 606, the Court confirmed that a principal offender in an organised drug hierarchy will inevitably attract a greater sentence than subordinates, and no justifiable sense of grievance arose from the disparity here.

Remorse and rehabilitation: The sentencing judge had found the appellant to be a dishonest witness who had deliberately lied on oath. Hall J held it was plainly open to the sentencing judge to restrict favourable findings about subjective circumstances, including remorse and rehabilitation prospects, to matters supported by independent and credible evidence. No error was established in those findings.

Special circumstances: The Court found the sentencing judge's refusal to find special circumstances was likewise open on the facts. The findings were consistent with the appellant's credibility difficulties and the overall assessment of her subjective case.

Manifest excess: The Court accepted the sentencing was at the high end, but found this was justified. The criminality was undoubtedly serious, reflecting a sustained period of offending, a controlling organisational role, significant financial gain, and a greed-driven motivation. Comparable cases referred to by the appellant were distinguished on their facts. The non-parole period was not manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The parity principle does not require equivalent sentences for co-offenders where there is a marked difference in criminality. An offender at the apex of a hierarchical drug supply network will ordinarily receive a substantially higher sentence than subordinate participants.
  • Adverse credibility findings made during sentence proceedings can legitimately constrain the favourable subjective findings available to a sentencing court, including findings as to remorse and rehabilitation.
  • Where a sentencing judge expressly acknowledges that a sentence is at the high end and explains why that level of severity is warranted, the Court of Criminal Appeal is unlikely to find manifest excess absent demonstrable error.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a 14-month involvement in a sophisticated, profit-driven distribution network, with direct control over multiple subordinates, places an offence firmly at the serious end of the s 25(1) spectrum under the Drug Misuse and Trafficking Act 1985.
  • Prior comparable decisions on cannabis supply, including Regina v Girard [2004] NSWCCA 170, were distinguished where the quantities involved were significantly lower and the enterprise lacked a formal hierarchical structure.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)

Cases:
- Jimmy v Regina [2010] NSWCCA 60
- Lowe v The Queen (1984) 154 CLR 606
- Regina v Clarke [2009] NSWCCA 49
- Regina v Cramp [2004] NSWCCA 264
- Regina v Girard [2004] NSWCCA 170