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Court of Criminal Appeal 20 September 2012

R v Wicks

[2012] NSWCCA 208

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

Citation: Wicks v R [2012] NSWCCA 208
Court: Court of Criminal Appeal, NSW
Date: 20 September 2012
Judges: McClellan CJ at CL, R A Hulme J, Schmidt J

Background

The appellant was sentenced in the District Court for two offences of supplying methylamphetamine, with four further supply offences taken into account on a Form 1. The offending occurred over several months in 2009 in the Grafton and Charlestown areas. The appellant and his brother were both involved in the same supply network, acting as intermediaries between an upstream supplier and a downstream buyer.

The appellant received a total sentence of three years and three months imprisonment, with a non-parole period of one year and nine months. His brother, sentenced separately by a different District Court judge approximately five months later, received a total sentence of three years. The brother's sentence was reached after the sentencing judge made some factual errors about the appellant's sentence, believing the appellant had received only three years.

The appellant argued before the Court of Criminal Appeal that the three-month difference constituted an erroneous and unjustified disparity, and that his sentence should be reduced to match his brother's.

  • Whether the difference between the appellant's sentence and his brother's sentence constituted a disparity sufficient to warrant appellate intervention on parity grounds.
  • Whether errors made by the sentencing judge who sentenced the brother infected the appellant's sentence or required correction of it.

Decision

R A Hulme J (with whom McClellan CJ at CL and Schmidt J agreed) accepted that the sentencing judge who sentenced the brother had made factual errors, including a mistaken belief that the appellant had received a total of three years rather than three years and three months. However, Hulme J concluded that even if the brother's sentencing judge had correctly understood the appellant's sentence, she would still have imposed three years on the brother.

The court identified several factors that distinguished the two brothers' circumstances and legitimately accounted for the sentencing difference. The brother had better rehabilitation prospects, benefited from delay, and could point to "extra-curial punishment" (consequences suffered outside the formal justice system) as mitigating factors. Against those advantages, his criminality was objectively greater: he faced three substantive supply charges compared to the appellant's two, and his Form 1 offences included a supply described as similarly serious to the pleaded charges.

The court also addressed the appellant's argument that a finding that the brother was a "middle level cog" in the drug supply hierarchy implied the appellant was at a lower level. Hulme J rejected this, finding that on the available facts the roles of the two brothers were "incapable of much distinction at all."

Ultimately, the court held that a three-month difference in total sentence, having regard to all objective and subjective circumstances, was not a significant disparity. It did not reach the threshold that would justify appellate intervention.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A numerical difference in sentences between co-offenders does not automatically establish a parity ground for appeal. The Court of Criminal Appeal confirmed that the difference must be significant enough to warrant intervention, and three months was not sufficient in this case.
  • Where a sentencing judge operates under a factual misunderstanding about a co-offender's sentence, that error does not automatically lead to appellate correction of the earlier sentence if the outcome would have been the same regardless.
  • Differences in subjective circumstances between co-offenders, including rehabilitation prospects, delay, and extra-curial punishment, can legitimately explain sentencing variations even where the objective criminality is broadly similar.
  • A finding made in one sentencing proceeding that a co-offender occupied a particular role in a criminal hierarchy does not, without more, establish that another offender in a separate proceeding was at a lesser level.
  • In dismissing the appeal, the court confirmed that the parity principle requires courts to avoid unjustified disparity, but does not demand mathematical equivalence between co-offenders whose overall circumstances differ.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1): supply of a prohibited drug, maximum penalty 15 years imprisonment and/or 2,000 penalty units.

Cases:
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462: High Court authority on the parity principle in sentencing.