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15
Court of Criminal Appeal 8 June 2012

Lee v R

[2012] NSWCCA 123

Drugs
CRIMINAL LAW SENTENCE APPEAL APPLICATION OF PARITY PRINCIPLE

Citation: Lee v R [2012] NSWCCA 123
Court: NSW Court of Criminal Appeal
Date: 8 June 2012
Judges: Hoeben JA, Hidden J, Beech-Jones J

Background

The applicant was a Melbourne-based member of a Sydney drug syndicate, the "Ken Syndicate," which operated between November 2005 and July 2006. The syndicate imported heroin from Vietnam, sourced methamphetamine domestically, and trafficked drugs to buyers in Melbourne. The applicant, the uncle of one of the principal syndicate members, assisted with receiving drug deliveries and handling proceeds of drug sales in Melbourne.

The applicant was tried in the Supreme Court before Latham J on three charges: conspiracy to deal with money exceeding $1 million intending it to become an instrument of crime, conspiracy to import not less than a trafficable quantity of heroin, and conspiracy to traffic in a marketable quantity of heroin and methamphetamine. On the eleventh day of trial, he changed his pleas to guilty on all three counts.

Latham J sentenced the applicant to an aggregate term of 12 years' imprisonment with a non-parole period of 8 years. The applicant sought leave to appeal on 13 grounds, contending that his sentences were manifestly excessive on several bases.

  • Whether the sentencing judge gave adequate weight to the applicant's lesser role in the conspiracy when imposing sentence on each count
  • Whether the parity principle required a lesser sentence, given the sentences imposed on co-offenders
  • Whether the sentencing judge erroneously treated the applicant's good character as an aggravating factor
  • Whether the sentencing judge was required to identify, and failed to identify, the specific discount applied for the guilty plea
  • Whether the sentencing judge adequately addressed the applicant's prospects for rehabilitation as required by s 16A(2)(n) of the Commonwealth Crimes Act 1914

Decision

On the question of the applicant's role, the Court accepted that Latham J had expressly found the applicant played a lesser role than the principal syndicate members, and her Honour's sentencing remarks reflected that finding. No error was established in the treatment of role.

On the parity principle, the Court found no legitimate grievance arose from the comparison with co-offenders' sentences. The co-offenders occupied different positions within the syndicate and had different subjective circumstances, including cooperation with authorities, which explained any sentencing disparity.

On good character, the Court rejected the contention that Latham J used good character as an aggravating factor. The sentencing remarks indicated her Honour acknowledged the applicant's good character, but applied limited weight to it given the nature and seriousness of the offending. The Court of Criminal Appeal confirmed that limited weight, rather than significant mitigation, was a proper approach on the facts.

On the plea discount and rehabilitation, the Court acknowledged that Latham J did not expressly state a percentage discount for the guilty plea, and did not make a specific finding on rehabilitation prospects as required by the Commonwealth legislation. However, the Court held that neither omission amounted to error warranting intervention. As to rehabilitation, the Court observed that, had Latham J addressed the question, the applicant's reluctance to accept full responsibility and the absence of genuine remorse would likely have produced a finding unfavourable to him. The appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge who expressly acknowledges a lesser role but still imposes a substantial sentence does not necessarily err, provided the overall sentence reflects the objective gravity of the offending.
  • Under the parity principle, a sentencing disparity between co-offenders does not establish a legitimate grievance unless the disparity is unexplained by differences in role, subjective circumstances, or cooperation with authorities.
  • Affording limited weight to good character is not the same as treating it as an aggravating factor. Where offending is serious and sustained, a sentencing court may legitimately reduce the mitigatory value of good character without erring in principle.
  • A failure to specify a precise percentage discount for a guilty plea does not automatically constitute appealable error if the sentencing remarks otherwise reflect that the plea was taken into account.
  • A sentencing court's failure to make an express finding on rehabilitation prospects under s 16A(2)(n) of the Commonwealth Crimes Act 1914 will not warrant intervention on appeal where the available evidence would not clearly have supported a favourable finding.

Legislation and Cases Referenced

Legislation
- Commonwealth Crimes Act 1914 (Cth), s 16A
- Customs Act 1901 (Cth), s 233B
- Criminal Code 1995 (Cth), ss 11.5(1), 302.3(1), 403(1)
- Evidence Act 1995

Cases
- Cameron v R [2002] HCA 6; 209 CLR 339
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 86 ALJR 36
- Lowe v R [1984] HCA 46; 154 CLR 606
- Okafor v R [2007] NSWCCA 147
- Onuorah v R [2009] NSWCCA 238; 76 NSWLR 1
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451
- R v Hammoud [2002] NSWCCA 254; 118 A Crim R 66
- R v Thomson; R v Houlton (2000) NSWCCA 309; 49 NSWLR
- Rees v R [2012] NSWCCA 47
- Regina v Barrientos [1999] NSWCCA 1