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Court of Criminal Appeal 7 February 2012

Jaime Felipe PAREDES v R

[2012] NSWCCA 4

Drugs
APPEAL CRIMINAL LAW ALLEGED DISPARITY BETWEEN CO OFFENDERS PRINCIPLES DISCUSSED APPEAL DISMISSED.

Citation: Paredes v R [2012] NSWCCA 4
Court: NSW Court of Criminal Appeal
Date: 7 February 2012
Judges: Meagher JA, Hoeben J, Rothman J

Background

The appellant pleaded guilty on the first day of trial to knowingly taking part in the supply of methylamphetamine in a quantity that was less than one kilogram but not less than a commercial quantity. The offending occurred between February and March 2008 and involved a network of co-offenders in an operation to supply approximately one kilogram of methylamphetamine to an undercover police officer for $280,000.

The sentencing judge, Freeman DCJ, found after a contested sentencing hearing that the appellant was "intimately involved" in the supply from a time before the delivery of a half-ounce sample on 12 March 2008. The sentencing judge rejected the appellant's evidence that his involvement began only the day before the planned kilogram delivery, finding him to be an unreliable witness. The appellant was sentenced to a non-parole period of four years and six months, with a balance of term of three years.

The appellant sought leave to appeal on the sole ground that his sentence was disproportionate compared to those imposed on his co-offenders, creating an unjustifiable sense of grievance.

  • Whether the sentences imposed on the appellant's co-offenders gave rise to a lack of parity requiring appellate intervention.
  • Whether the sentencing judge adequately accounted for the differences in culpability and personal circumstances between the co-offenders.

Decision

Rothman J (with whom Meagher JA and Hoeben J agreed) dismissed the appeal, finding no justifiable sense of grievance when the co-offenders' sentences were assessed objectively and in light of their respective circumstances.

The Court noted that the sentences imposed on the appellant and his co-offenders, once adjusted for individual factors, were not significantly different. Mr Barillaro's sentence was adjusted to account for seven months of pre-sentence custody and lengthy restrictive bail conditions, producing a difference of roughly six months compared to the appellant. Mr Donevski received a six-month shorter non-parole period to reflect his mental illness, which had been found to reduce the weight given to general deterrence in his case.

The Court observed that the appellant actually completed his sentence earlier than each of his co-offenders. The sentencing judge had engaged carefully with the differences between the offenders and adjusted each sentence accordingly. Rothman J concluded that no error of the kind identified in House v R was demonstrated, and that a different judge imposing a different sentence at first instance would not, of itself, justify interference on appeal.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle requires that like offenders be treated alike, but it equally permits different sentences where co-offenders differ in culpability or personal circumstances.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the test is whether a justifiable sense of grievance exists when assessed objectively, not from the appellant's subjective perspective.
  • A shorter non-parole period for a co-offender can be justified by mental illness that reduces the weight given to general deterrence, without creating a parity problem for others sentenced in the same proceeding.
  • Appellate interference with sentence is only available on the well-established grounds from House v R; the mere fact that an appellate judge might have sentenced differently at first instance does not suffice.
  • Where a sentencing judge conducts a careful, individualised analysis of each co-offender's circumstances and adjusts sentences accordingly, that process is unlikely to give rise to a successful parity ground on appeal.

Legislation and Cases Referenced

Cases:
- Green v The Queen; Quinn v The Queen [2011] HCA 49
- Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
- House v R [1936] HCA 40; (1936) 55 CLR 499
- Dwayhi v R; Bechara v R (2011) 205 A Crim R 274
- Gurney v R; Willetts v R [2011] NSWCCA 48
- Ng v R [2011] NSWCCA 227
- Rae v R [2011] NSWCCA 211
- R v Nguyen; R v Pham (2010) 205 A Crim R 106