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Court of Criminal Appeal 30 March 2011

Kwon, Joseph v R

[2011] NSWCCA 58

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE GROUNDS FOR INTERFERENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE PARITY BETWEEN CO OFFENDERS

Citation: Kwon, Joseph v R [2011] NSWCCA 58
Court: NSW Court of Criminal Appeal
Date: 30 March 2011
Judges: Whealy JA, Hulme J, Harrison J

Background

The applicant, a young man born in Australia to Korean parents, pleaded guilty in the District Court at Sydney to two counts of supplying a large commercial quantity of MDMA, an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985. Each offence carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The offences occurred over a period of weeks in November 2008 and involved the supply of significant quantities of ecstasy tablets, including a transaction involving 30,000 tablets negotiated with an undercover police officer.

Williams DCJ sentenced the applicant on each count to 12 years' imprisonment with a non-parole period of 8 years, with a one-year accumulation between the two sentences. This produced an aggregate term of 13 years, with an aggregate non-parole period of 9 years and a balance of term of 4 years. A co-offender, Mr Choi, had been separately sentenced by the Court of Criminal Appeal to 4 years with a non-parole period of 2 years in respect of the second count, reflecting a 50 per cent discount.

The applicant sought leave to appeal against sentence on four grounds, including errors in assessing objective seriousness, a failure to give effect to a finding of special circumstances, the overall excessiveness of the head sentence, and a disparity with the sentence imposed on Mr Choi.

  • Whether the sentencing judge erred in characterising the objective seriousness of the offences as falling "just below the mid range"
  • Whether the sentencing judge failed to give proper effect to his finding of special circumstances when fixing the balance of term
  • Whether the aggregate sentence of 13 years with a non-parole period of 9 years was manifestly excessive
  • Whether the disparity between the applicant's sentence and Mr Choi's lesser sentence was so significant as to give rise to a justifiable sense of grievance, engaging parity principles

Decision

Harrison J (with whom Whealy JA agreed) rejected all four grounds of appeal. On objective seriousness, Harrison J found no error in the sentencing judge's characterisation. On special circumstances, the sentencing judge had made the requisite finding and the balance of term of 4 years reflected that finding appropriately. The overall head sentences were not found to be manifestly excessive given the gravity of the offending.

On the parity ground, Harrison J identified meaningful differences between the applicant's conduct and that of Mr Choi in relation to the second count. The applicant had taken the leading role: he dealt directly with the undercover officer, solicited Mr Choi's involvement, negotiated the price, arranged the logistics, and separately supplied tablets to fund a deposit. Harrison J held these differences justified the disparity and did not give rise to a justifiable sense of grievance under the principles in Postiglione v The Queen.

Hulme J agreed with Harrison J on all grounds except the parity question relating to the second count. Hulme J considered the sentence differential, once discounts were added back for proper comparison, was too great to be explained by the differences in the offenders' roles. Before discounts, the applicant's sentence on count 2 was approximately double that of Mr Choi's equivalent sentence, a disparity Hulme J found unjustified. Hulme J would have reduced the sentence on count 2 and adjusted the accumulation period accordingly.

Despite Hulme J's partial dissent on parity, the majority comprising Whealy JA and Harrison J dismissed the appeal. The orders made were those of the majority.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the majority of the Court of Criminal Appeal confirmed that significant differences in a co-offender's role and culpability can justify substantial differences in sentence, even where both offenders are convicted in connection with the same transaction.
  • A finding of special circumstances does not require a mechanical or formulaic adjustment to the balance of term; it requires the sentencing judge to give the finding proper effect in the overall structure of the sentence.
  • Parity principles, as articulated in Postiglione v The Queen, are engaged only where like offending is treated differently. Where the roles and charges genuinely differ, a marked sentencing disparity may be appropriate.
  • Where a co-offender's sentence was imposed by the Court of Criminal Appeal on resentencing, the principle in R v Kairouz (which concerns parity with sentences imposed by different judges at first instance) does not apply.
  • The partial dissent of Hulme J illustrates that parity analysis requires an "apples to apples" comparison: discounts must be notionally added back before sentences are compared, so that the underlying culpability assessment can be fairly evaluated.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33(1)(a), 33(3)(a)
- Criminal Appeal Act 1912 (NSW), ss 6(3), 7

Cases:
- Postiglione v The Queen [1997] HCA 26; (1997) 198 CLR 295
- R v Choi [2010] NSWCCA 318
- R v Kairouz [2005] NSWCCA 247
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
- Jimmy v R [2010] NSWCCA 60; (2010) 269 ALR 115
- GAC v R [2007] NSWCCA 287; (2007) 178 A Crim R 1
- R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
- Diesing v R [2007] NSWCCA 326
- Fina'i v R [2006] NSWCCA 134
- Cicekdag v R [2007] NSWCCA 218
- Graham v R [2008] NSWCCA 174
- Heron v R [2006] NSWCCA 215
- Melikian v R [2008] NSWCCA 156
- Phipps v R [2008] NSWCCA 178
- R v Attard [2004] NSWCCA 376
- R v Chan [1999] NSWCCA 103
- R v Dang [2005] NSWCCA 430
- R v Gao [2007] NSWCCA 343
- R v Green and Quinn [2010] NSWCCA 313