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Court of Criminal Appeal 28 March 2012

Reardon v R

[2012] NSWCCA 46

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE PARITY WITH CO OFFENDERS NO MARKED DISPARITY BETWEEN CO OFFENDERS

Citation: Reardon v R [2012] NSWCCA 46
Court: Court of Criminal Appeal, New South Wales
Date: 28 March 2012
Judge(s): Beazley JA, Harrison J, McCallum J

Background

The applicant pleaded guilty in the Local Court to four offences, the most serious being knowingly taking part in the manufacture of 5.877 kilograms of methylamphetamine, a quantity at or above the large commercial threshold under s 24(2) of the Drug Misuse and Trafficking Act 1985. That offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

Toner DCJ sentenced the applicant in the District Court to an effective total sentence of 15 years for the principal offence, rising to 16 years with an effective non-parole period of 11 years when the other counts were taken into account. A 25 percent discount for an early guilty plea was applied, implying a starting point of 20 years.

The applicant sought leave to appeal on the single ground that the sentences imposed on three co-offenders, Greenaway, McGreevey, and Callagher, were so different from his own as to produce a justifiable sense of grievance.

  • Whether the disparity between the applicant's sentence and those of his co-offenders gave rise to a justifiable sense of grievance, warranting appellate intervention on parity grounds.
  • Whether an apparent arithmetic discrepancy in the starting point applied to co-offender Greenaway's sentence amounted to an error warranting correction in the applicant's favour.
  • Whether the lesser sentences given to co-offenders McGreevey and Callagher, who received 50 percent discounts for pleas and assistance, reflected unjustified disparity with the applicant's sentence.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal unanimously.

Parity with Greenaway: The sentencing judge had expressly considered parity when sentencing both the applicant and Greenaway, treating their roles as equivalent and applying a similar starting point of 20 years. The slight difference in effective total sentences was traceable to a calculation irregularity in Greenaway's sentence rather than to any error in the applicant's. Harrison J observed that if anything, a Crown appeal against Greenaway's sentence was theoretically the more logical response to that irregularity. Importantly, there were also genuine distinguishing factors between the two men: the applicant had a significantly more extensive criminal history, and while the sentencing judge found both men remorseful, he expressed greater confidence in Greenaway's rehabilitation.

Parity with McGreevey and Callagher: The Court found that McGreevey and Callagher played materially lesser roles in the offending. Greenaway had described them as relatively minor participants when sentencing McGreevey and Callagher. The financial arrangements underscored this: the applicant stood to receive a share of proceeds potentially worth hundreds of thousands to millions of dollars, while McGreevey was to receive a flat $5,000 and Callagher no monetary payment at all. The 50 percent discounts applied to McGreevey and Callagher also reflected their assistance to authorities, a factor that did not apply to the applicant. When those discounts were stripped out, the implied starting points diverged, but the Court found that divergence was justified by the differences in role, culpability, and criminal history.

Overall conclusion: Harrison J concluded that no marked disparity existed that would give a reasonable person cause to regard the applicant's grievance as justified. The differences in sentences were explicable by reference to legitimate individual sentencing factors.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the parity principle requires a finding of "marked disparity" before appellate intervention is warranted; mere differences in sentence length are insufficient.
  • A sentencing judge who expressly considers parity and applies the same starting point will not be found to have erred simply because the arithmetic outcome for two co-offenders diverges slightly.
  • Where an apparent arithmetic discrepancy exists in a co-offender's sentence, that irregularity does not automatically entitle another offender to a reduced sentence; the error may lie in the co-offender's calculation rather than in the applicant's.
  • Significant differences in financial benefit derived from an offence can legitimately support meaningful differences in objective culpability between co-offenders nominally engaged in the same enterprise.
  • Under Markarian v The Queen (2005) 228 CLR 357, there is no single correct sentence, and appellate courts applying the parity principle must evaluate whether a reasonable person would regard the disparity as unjustified rather than simply whether a numerical difference exists.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)

Cases
- Lovoni v R [2011] NSWCCA 289
- Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357