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Court of Criminal Appeal 23 November 2012

Jayde FARRELL v R

[2012] NSWCCA 245

Drugs
CRIMINAL LAW APPLICANT AND CO CHARGED WITH DIFFERENT OFFENCES OFFENDER SENTENCED BY DIFFERENT JUDGE ISSUE OF PARITY.

Citation: Farrell v R [2012] NSWCCA 245
Court: NSW Court of Criminal Appeal
Date: 23 November 2012
Judges: Hoeben JA, Hidden J, Beech-Jones J

Background

The applicant was convicted after trial in the District Court of supplying a commercial quantity of ecstasy, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. He was sentenced to 9 years imprisonment with a non-parole period of 6 years and 9 months. The trial judge found that the applicant had been the source of drugs supplied by his co-offender to an undercover police operative on four occasions in early 2007, involving a total of 229.44 grams of ecstasy (the commercial quantity threshold being 125 grams).

The co-offender, a man who had served in the same army unit as the applicant, pleaded guilty to the separate offence of ongoing supply of ecstasy under s 25A(1) of the same Act. He was sentenced by a different District Court judge to 4 years imprisonment with a non-parole period of 2 years. The co-offender's significantly lower sentence prompted the applicant to seek leave to appeal on the ground of unjustified sentencing disparity.

Both offences carried a maximum penalty of 20 years imprisonment. The applicant's offence carried a standard non-parole period of 10 years; the co-offender's offence did not.

  • Whether an unjustified disparity existed between the sentence imposed on the applicant and the substantially lighter sentence imposed on the co-offender for his role in the same criminal enterprise.
  • Whether the sentencing judge should have found special circumstances warranting a departure from the standard statutory proportion between the head sentence and the non-parole period.
  • Whether the parity principle applies where co-participants in the same enterprise are charged with different offences and sentenced by different judges.

Decision

Hidden J (with whom Hoeben JA and Beech-Jones J agreed) held that the ground of unjustified disparity was made out. The sentencing judge had found the applicant to be on an equal or near-equal footing with the co-offender in the enterprise, albeit with access to additional drug sources. Both had been found to have participated for profit. Yet the applicant received a sentence more than double that of his co-offender.

The Court acknowledged the significance of the differences between the two cases: the co-offender had pleaded guilty at the first opportunity, demonstrated genuine remorse, and was assessed as unlikely to re-offend, while the applicant maintained his innocence and the sentencing judge doubted his capacity for genuine introspection. The Court also recognised that the applicant's offence, carrying a standard non-parole period, reflected a legislative judgment that it was more serious than the co-offender's charge. However, those differences did not justify a sentence of nearly 2.5 times the length of the co-offender's.

The Court confirmed that the parity principle applies even where co-participants are charged with different offences and sentenced by different judges, provided the offences arise from the same criminal activity and carry the same maximum penalty. No practical difficulty prevented its application here.

Having found disparity established, the Court did not need to determine the special circumstances ground on the sentence as originally imposed. On re-sentence, however, the Court did find special circumstances, based on the applicant's personal circumstances and the rehabilitative benefit of an extended parole period, rather than on any finding made in the co-offender's case.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence of the District Court quashed.
  • Applicant re-sentenced to imprisonment for 6 years and 6 months, comprising:
  • Non-parole period of 4 years, commencing 1 May 2010 and expiring 30 April 2014.
  • Balance of term of 2 years and 6 months, commencing 1 May 2014 and expiring 31 October 2016.

Key Takeaways

  • The parity principle in sentencing applies where co-participants in the same criminal enterprise are charged with different offences and sentenced by different judges, provided those offences carry the same maximum penalty and arise from the same criminal conduct.
  • A significant discount for a co-offender's guilty plea, remorse, and favourable rehabilitation prospects can legitimately reduce that co-offender's sentence, but does not automatically justify a disparity of the magnitude present here.
  • Where one offence carries a standard non-parole period and a comparable offence does not, that legislative distinction is a relevant factor in assessing parity, but does not by itself resolve the comparison.
  • A finding of special circumstances on re-sentence need not mirror any such finding made in the co-offender's case; the Court of Criminal Appeal assessed the applicant's own subjective circumstances independently.
  • In dismissing the relevance of the Muldrock complications to the overall result, the Court focused the parity analysis on the relationship between the two sentences rather than on the mechanical operation of the standard non-parole period.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 25A(1)

Cases
- Jimmy v R [2010] NSWCCA 60, 77 NSWLR 540
- Green v The Queen [2011] HCA 49, 244 CLR 462
- Muldrock v The Queen [2011] HCA 39, 244 CLR 120