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Court of Criminal Appeal 15 April 2011

Sinkovich v Regina

[2011] NSWCCA 90

Drugs
CRIMINAL LAW SENTENCE APPEAL APPLICANT CONVICTED AFTER TRIAL LIMITED EFFECT OF SENTENCING STATISTICS PARITY PRINCIPLE OBJECTIVE TEST OF LEGITIMATE GRIEVANCE

Citation: Sinkovich v Regina [2011] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 15 April 2011
Judges: Macfarlan JA, Hoeben J, Garling J

Background

The appellant was convicted after a 15-day jury trial of two counts of drug supply under the Drug Misuse and Trafficking Act 1985: knowingly taking part in the supply of methylamphetamine, and supplying not less than a commercial quantity of methylamphetamine. The charges arose from a police undercover operation in the Minto and Claymore areas in mid-2008, during which the appellant organised the collection and on-supply of methylamphetamine to a co-offender, Lowe, who then sold it to an undercover police operative.

The sentencing judge found that the appellant occupied a slightly higher position than Lowe in the drug supply hierarchy. He was described as the "go to man" for sourcing the commercial quantity. The total effective sentence imposed was 10 years' imprisonment with a non-parole period of 10 years (achieved through accumulation of the two counts).

Lowe, the co-offender, pleaded guilty to a significantly larger number of charges, including offences relating to firearms, cannabis, and additional drug supplies found at premises where both men were connected. Lowe received a 25 percent discount on all sentences for his guilty pleas and was sentenced to the same overall non-parole period as the appellant.

  • Whether the sentences imposed were excessive and offended the principles of totality and proportionality.
  • Whether the sentencing judge erred in assessing the objective seriousness of the commercial drug supply offence.
  • Whether the disparity between the appellant's sentence and Lowe's sentence gave rise to a justified sense of grievance under the parity principle.

Decision

Objective seriousness and sentence assessment: The Court found no error in the sentencing judge's assessment that the commercial supply offence fell slightly above the mid-range of objective seriousness. The appellant had organised the procurement and delivery of 443.8 grams of methylamphetamine (nearly twice the prescribed commercial quantity of 250 grams), arranged transport, and directed the operation while Lowe conducted the transaction. Those facts supported the finding of above-mid-range seriousness, and the resulting sentence was not found to be excessive.

Totality and proportionality: The Court rejected the submission that the sentences offended totality or proportionality principles. The sentence structure, achieved through accumulation and partial concurrency between the two counts, appropriately reflected the overall criminality involved.

Parity principle: The parity ground was the most closely examined. The test is objective: not whether the appellant feels aggrieved, but whether a reasonable person looking at the overall circumstances of both sentences would regard the grievance as justified. The Court held that a reasonable person would not. Lowe faced a substantially larger array of offences, which required the sentencing judge to make significant adjustments for totality and proportionality. Lowe also received a 25 percent discount across all offences for his guilty pleas, a benefit the appellant could not claim having contested the charges at trial. The Court held that the appellant was, in effect, seeking a benefit derived from a co-offender's guilty pleas to which he had no entitlement.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle applies an objective test: a court must assess whether a reasonable person would regard the appellant's sense of grievance as justified, not merely whether the appellant subjectively feels aggrieved.
  • Where two co-offenders have only one offence in common, and the co-offender with the same overall sentence was convicted of significantly more offences and received a guilty plea discount, the parity principle does not readily apply.
  • An appellant who contested charges at trial cannot rely on a co-offender's guilty plea discount to argue sentencing disparity; that discount reflects a benefit properly afforded to the co-offender, not an unjustifiable advantage.
  • In commercial drug supply cases with a standard non-parole period, sentencing courts are required to assess whether the objective seriousness of the specific offence falls above, at, or below the mid-range, and must articulate reasons for any departure from the standard non-parole period.
  • Sentencing statistics carry limited weight; the Court confirmed that individual sentencing outcomes must reflect the particular facts and circumstances of each case rather than statistical averages.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(3), 54B
- Firearms Act 1996 (NSW)
- Weapons Prohibition Act 1998 (NSW)

Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- R v Bloomfield (1998) 101 A Crim R 404
- R v Edwards (1996) 60 A Crim R 510
- Lewins v R [2007] NSWCCA 189
- Nguyen v R [2008] NSWCCA 308
- Gurney v R; Willetts v R [2011] NSWCCA 48
- Ali v R [2010] NSWCCA 35
- Fogg v R [2011] NSWCCA 1
- Holloway v R [2011] NSWCCA 23
- Various other CCA decisions as cited in the judgment