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Court of Criminal Appeal 10 March 2011

Youkhana, Jerome v R

[2011] NSWCCA 37

Drugs
CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE GROUNDS FOR INTERFERENCE PARITY BETWEEN CO OFFENDERS

Citation: Youkhana, Jerome v R [2011] NSWCCA 37
Court: NSW Court of Criminal Appeal
Date: 10 March 2011
Judges: Beazley JA, Hidden J, R A Hulme J (judgment delivered by R A Hulme J)

Background

The appellant pleaded guilty in the District Court to three drug supply offences involving MDMA (ecstasy): ongoing supply, supply of an indictable quantity, and supply of a commercial quantity, all under the Drug Misuse and Trafficking Act 1985. The offences arose from a series of transactions in 2008 in which the appellant sold ecstasy to an undercover police officer, ultimately supplying 1,200 tablets across multiple occasions before being arrested with a further 1,000 tablets in a carpark at North Bondi.

The appellant was 19 at the time of the offences, had no prior criminal history, and carried diagnoses of ADHD and cocaine addiction. The sentencing judge in the District Court took these factors into account, along with genuine remorse and early guilty pleas, imposing an aggregate sentence of 8 years imprisonment with a non-parole period of 4 years.

A related offender, Hai Hong Ta, who had been the appellant's drug supplier and was charged over his role in one of the same transactions, was sentenced separately by a different judge to an aggregate of 2 years and 3 months imprisonment with a non-parole period of 18 months. The appellant sought leave to appeal on the sole ground that this disparity was unacceptable.

  • Whether the disparity between the appellant's sentence and that of his co-offender, Ta, was so marked as to justify appellate intervention on parity grounds.
  • Whether the inadequacy of Ta's sentence, rather than any error in the appellant's sentencing, should limit or extinguish the entitlement to relief.
  • What reduction, if any, was warranted given that any grievance was tempered by the undue leniency shown to Ta.

Decision

The Court confirmed the general parity principle: where a co-offender receives a significantly lighter sentence, the resulting sense of grievance can itself constitute a sentencing error, even if the sentence under appeal was not otherwise shown to be excessive. The governing authorities, including Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295, establish that unjustifiable disparity between co-offenders is a recognised ground of appeal.

However, the Court also accepted the qualification established in cases such as R v Kairouz [2005] NSWCCA 247: where the disparity flows from an unduly lenient sentence given to the co-offender, intervention is warranted but should be limited. In such circumstances, the court reduces the sentence only to the bottom of the range that properly reflects the objective and subjective criminality of the applicant, rather than matching the co-offender's manifestly inadequate sentence.

Applying that principle, the Court found that the 7-year sentence on the commercial supply charge was too far removed from Ta's 2 years and 3 months to be disregarded, even acknowledging the significant differences in their respective roles and culpability. Sentencing statistics showed that Ta's sentence fell in the bottom 8 per cent of sentences for commercial supply offences, lending support to the conclusion that it was unduly lenient. The appellant's legitimate grievance was real, but objectively tempered by that inadequacy.

The Court reduced the sentence for the commercial supply offence by 18 months, bringing it to a total term of 5 years and 6 months with a non-parole period of 2 years and 6 months. The aggregate sentence across all three charges thereby became 6 years and 6 months with an effective non-parole period of 3 years and 6 months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences for supplying an indictable quantity and supplying a prohibited drug on an ongoing basis confirmed.
  • Sentence for supplying a commercial quantity of a prohibited drug quashed and replaced with imprisonment comprising a non-parole period of 2 years 6 months and a balance of term of 3 years, dating from 2 October 2009, with eligibility for parole on 1 April 2012 and total expiry on 1 April 2015.

Key Takeaways

  • Unjustifiable disparity between the sentences of co-offenders can ground a successful parity appeal, even where no other error is identified in the sentence under review.
  • Where the disparity results from an unduly lenient sentence imposed on the co-offender, intervention is warranted only to reduce the applicant's sentence to the bottom of the appropriate range, not to align it with the inadequate sentence.
  • A co-offender's sentence falling in the bottom 8 per cent of the statistical range for that offence category was treated as evidence of undue leniency, which in turn limited the degree of relief available to the appellant.
  • Significant differences in objective criminality between co-offenders (here, the appellant sold 1,200 tablets across four transactions while Ta was charged over involvement in only one) were relevant to assessing the legitimacy and weight of the parity claim.
  • The Court of Criminal Appeal confirmed that an appellant's sense of grievance, assessed objectively, is diminished where the co-offender's lighter sentence reflects inadequacy rather than any recognised sentencing advantage.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25A(1)

Cases:
- Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- Wong v The Queen; Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584
- R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Bloomfield (1998) 44 NSWLR 734
- R v Kairouz [2005] NSWCCA 247
- R v Kollas & Mitchell [2002] NSWCCA 491
- Regina v Pan [2005] NSWCCA 114
- Lewins v R [2007] NSWCCA 189
- McKibben v R [2007] NSWCCA 89
- Vu v R [2006] NSWCCA 188
- Wilson v R [2008] NSWCCA 245
- Truong v R [2009] NSWCCA 122; (2009) 195 A Crim R 192
- Gill v R [2010] NSWCCA 236