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Court of Criminal Appeal 27 August 2012

King v R

[2012] NSWCCA 185

Drugs
CRIMINAL LAW APPEAL SENTENCE DISPARITY IN NON PAROLE PERIOD BETWEEN CO OFFENDERS

Citation: King v R [2012] NSWCCA 185
Court: NSW Court of Criminal Appeal
Date: 27 August 2012
Judge(s): McClellan CJ at CL, Hall J, R A Hulme J

Background

The applicant was sentenced in the District Court in August 2011 for conspiring to import a commercial quantity of ecstasy into Australia. The conspiracy involved a drug trafficking syndicate operating between the United Kingdom and Australia, which imported approximately 165,000 ecstasy tablets in December 2003. The applicant was found to be a key organiser, responsible for overseeing the importation's structure, arranging earlier "dummy run" shipments, and maintaining close control over Sydney-based co-offenders.

The applicant had been arrested in the United Kingdom in December 2003 but contested extradition until February 2010, when he was returned to Australia. He pleaded guilty in October 2010 and was sentenced to 16 years imprisonment with a non-parole period of 10 years. Two co-offenders received sentences of 12 years (non-parole period 7 years 3 months) and 11 years (non-parole period 7 years) respectively.

The applicant sought leave to appeal, arguing that the disparity between his non-parole period and those of the two co-offenders was impermissibly large, given the sentencing judge's findings about their relative roles.

  • Whether the non-parole period of 10 years was disproportionately high compared to the non-parole periods imposed on the two co-offenders, such as to constitute an unacceptable disparity under the parity principle
  • Whether the sentencing judge had adopted a mechanistic or formulaic approach in setting the non-parole period, particularly by treating 60 to 66 per cent of the total term as a binding norm for Commonwealth offences
  • Whether the non-parole period was manifestly excessive having regard to the sentencing judge's findings and the sentences imposed on co-offenders

Decision

The Court of Criminal Appeal refused leave to appeal, with R A Hulme J delivering the principal reasons (with which McClellan CJ at CL and Hall J agreed). The court found no error in the sentencing judge's exercise of discretion, confirming that all relevant matters had been taken into account.

On the parity issue, the court accepted that the applicant's role was significantly greater than that of either co-offender. The sentencing judge had found him to be either the syndicate's principal or, at minimum, a very senior member, with the co-offenders operating in subordinate roles. The difference in non-parole periods reflected that difference in culpability, and the court concluded the disparity was objectively justifiable.

The applicant also contended that the sentencing judge had assumed a 25 per cent discount applied to one co-offender's sentence for a plea of guilty, and that applying a consistent ratio should have produced a lower non-parole period for the applicant. The court rejected this reasoning as premised on an unjustified assumption about the size of the co-offender's discount, and as failing to account for the meaningful differences in their roles.

The court also rejected the argument that the sentencing judge had treated the 60 to 66 per cent range as a mandatory norm for fixing non-parole periods in Commonwealth matters. Her Honour had expressly applied the principle from Power v The Queen that the non-parole period must reflect the minimum period justice requires, consistent with High Court authority, and showed no sign of adopting a formulaic approach.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • The parity principle does not require identical or proportionally equivalent non-parole periods between co-offenders where their roles and levels of culpability differ materially. An unacceptable disparity is one lacking objective justification, not merely a large numerical difference.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's assessment of a co-offender's role and culpability is central to any parity analysis, and that findings placing the applicant as a principal or very senior organiser adequately explained the disparity.
  • No error is established merely because a non-parole period, when expressed as a proportion of the total term, differs between co-offenders. The applicable principle for Commonwealth offences, as affirmed in Hili v The Queen; Jones v The Queen, is that the non-parole period must reflect the minimum period justice requires.
  • A challenge to the non-parole period based on the parity principle cannot succeed simply by pointing to the arithmetic relationship between a co-offender's sentence and non-parole period, without establishing a reliable premise about the size of any discount applied to that co-offender's sentence.
  • Sufficient evidence existed on the sentencing record to conclude that the judge was conscious of the need to set appropriate terms relative to co-offenders, and the court found no basis to interfere with the exercise of sentencing discretion.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), s 11.5(1)
- Customs Act 1901 (Cth), s 233B(1)(b)

Cases
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
- Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357
- Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
- Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367