Citation: Reardon v R [2012] NSWCCA 46
Court: Court of Criminal Appeal
Date: 28 March 2012
Judge(s): Beazley JA, Harrison J, McCallum J
Background
The applicant pleaded guilty in the Local Court to four offences, including the primary offence of knowingly taking part in the manufacture of 5.877 kilograms of methylamphetamine, a large commercial quantity, contrary to section 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.
The sentencing judge in the District Court imposed a total effective sentence of 15 years for the manufacturing offence (non-parole period of 10 years and 9 months), representing a starting point of approximately 20 years after a 25 percent discount for an early guilty plea. Three co-offenders, Greenaway, McGreevy, and Callagher, received sentences that, when adjusted for individual discounts, corresponded to lower starting points.
The applicant sought leave to appeal on the sole ground that the sentences imposed on those three co-offenders gave rise to a justifiable sense of grievance on his part.
Legal Issues
- Whether the difference between the applicant's sentence and that of co-offender Greenaway constituted a marked disparity sufficient to engage the parity principle and justify appellate intervention.
- Whether the differences between the applicant's sentence and those of co-offenders McGreevy and Callagher gave rise to a justifiable sense of grievance, given those offenders received substantially lower starting points.
Decision
Issue 1: Parity with Greenaway
The sentencing judge had expressly considered parity when sentencing both the applicant and Greenaway, found their roles to be equivalent, and directed his remarks accordingly. Harrison J identified that any apparent arithmetic discrepancy in the starting points arose from a calculation issue in Greenaway's sentence, not from any misapplication of parity principles by the sentencing judge. If anything, that error may have benefited Greenaway, and it could theoretically have prompted a Crown appeal against Greenaway's sentence rather than supporting the applicant's case.
Harrison J also noted that the sentencing judge was sentencing the applicant for four offences while Greenaway was sentenced for only two. Applying principles of totality, accumulation, and concurrence, some variation in the instinctive synthesis was to be expected. The Court confirmed that there is no single correct sentence and that mere disparity of a small or insignificant degree does not attract the parity principle. The difference here was not sufficient to constitute the kind of manifest discrepancy required for intervention.
Issue 2: Parity with McGreevy and Callagher
The Court found that McGreevy and Callagher played materially less significant roles in the offending than the applicant. Callagher was described by the sentencing judge who dealt with him as essentially a "gofer or labourer" who received no financial gain beyond some drugs. McGreevy was paid $5,000 and his objective seriousness was found to fall below the mid-range. By contrast, the applicant's role was described as central, with potential financial gain in the hundreds of thousands to millions of dollars. Both McGreevy and Callagher also received discounts of 50 percent, reflecting guilty pleas and assistance to authorities, factors absent in the applicant's case.
Harrison J rejected the submission that a six-year difference in starting points was unjustified. The differences in role, financial interest, criminal history, and the discount for assistance together explained the disparity. No justifiable sense of grievance arose.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- A mere difference between co-offenders' sentences is insufficient to attract appellate intervention under the parity principle; the disparity must amount to a manifest discrepancy that would give rise to a justifiable sense of grievance in a reasonable person.
- Where a calculation error appears in a co-offender's sentence rather than in the applicant's, it does not provide a basis for reducing the applicant's sentence under the parity principle.
- Differences in role, financial benefit, criminal history, and the nature and extent of any discount for guilty pleas or assistance to authorities can legitimately explain substantial differences in sentencing starting points between co-offenders.
- The Court of Criminal Appeal confirmed that sentencing judges are required to consider principles of totality, accumulation, and concurrence when sentencing an offender for multiple counts, and that these considerations will naturally affect the outcome of an instinctive synthesis even where co-offenders are otherwise similarly placed.
- Under the principle established in Markarian v The Queen, there is no single correct sentence; small variations between co-offender sentences are an inherent feature of the sentencing process and do not of themselves warrant appellate correction.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985
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