Citation: AYIK v Regina [2013] NSWCCA 119
Court: NSW Court of Criminal Appeal
Date: 22 May 2013
Judge(s): Hoeben CJ at CL; Hall J; Davies J
Background
The appellant pleaded guilty to knowingly taking part in the supply of 28.75 kilograms of heroin on 31 July 2010, an amount described in the Agreed Facts as one of the highest, if not the highest, non-border heroin seizures ever recorded in New South Wales. His role was to warehouse the heroin at his premises for three days and then assist in loading it into a co-offender's vehicle. A separate goods-in-custody offence involving confidential police intelligence documents was taken into account on a Form 1.
The co-offender (referred to throughout as "C") faced the same principal charge arising from the same consignment of heroin, plus an additional charge of supplying a large commercial quantity of heroin (2.8 kg) the previous day. The sentencing judge found that C had acted under duress on both occasions, provided assistance to authorities described as "truly exceptional," and received a combined discount of 50 percent for that assistance and his guilty plea. C was 23 years old at the time, had no criminal record, and his custody conditions were found to be more onerous than usual due to his protected status.
The appellant was sentenced to nine years' imprisonment with a non-parole period of five and a half years. C received an effective total sentence of six and a half years with a non-parole period of four years. The appellant sought leave to appeal on the sole ground that the sentencing judge erred in applying the parity principle, arguing that the structure of C's sentences gave rise to a justifiable sense of grievance.
Legal Issues
- Whether the structure of the sentences imposed on the co-offender C, when compared with those imposed on the appellant, breached the parity principle.
- Whether the manner in which the sentencing judge constructed C's partially accumulated sentences gave rise to a justifiable sense of grievance on the part of the appellant.
- Whether, properly analysed, the disparity between the sentences was "marked and unjustified" in the relevant legal sense.
Decision
Hoeben CJ at CL, with whom Hall J and Davies J agreed, dismissed the appeal. The court granted leave to appeal but found no error in the sentencing judge's application of the parity principle.
The court identified substantial differences between the appellant and C that fully explained the sentencing disparity. C faced an additional charge for a separate offence not shared by the appellant, had been found to have acted under duress on both occasions, was significantly younger (23 years old compared with the appellant's 34), had no criminal record, and had provided assistance to authorities at a level characterised as "truly exceptional," warranting a 50 percent combined discount. The court noted that the sentencing judge's starting point for C on the charge the two offenders shared in common was 12 years, before any discount, which was not markedly lower than the starting point for the appellant.
The appellant's principal submission was framed as one of "proportionality": he argued that, because the sentence for the lesser of C's two charges was largely subsumed by the more serious sentence through partial accumulation, C was effectively not being punished for the conduct he shared with the appellant. The court rejected this characterisation. It held that the partial accumulation of only six months reflected the sentencing judge's proper application of the totality principle, whereby the less serious offence was substantially subsumed by the more serious one. The court also noted that a further two-year parole period remained attributable solely to the charge common to both offenders, citing the principle from prior authority that a period of parole is itself a sentence.
The court was not persuaded that any marked and unjustified disparity existed. The differences in the sentences were explained by the significant differences in the circumstances of the two offenders, particularly C's duress finding, youth, and exceptional assistance to authorities.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- The parity principle does not require arithmetical equivalence between sentences imposed on co-offenders. A disparity is only problematic where it is "marked and unjustified," meaning it cannot be explained by genuine differences in the offenders' circumstances or culpability.
- Factors such as duress, youth, degree of assistance to authorities, and the extent of discounts flowing from that assistance can, in combination, justify substantial differences between sentences imposed on co-offenders for the same or similar conduct.
- Where a sentencing judge applies the totality principle to partially accumulate sentences for multiple offences, the resulting structure does not amount to a failure to punish the offender for each offence. The court rejected an approach that treated the subsumed portion of a sentence as effectively non-existent.
- A period of parole remains a component of the sentence for the purposes of parity analysis. The Court of Criminal Appeal confirmed, citing prior authority, that parole is itself a form of sentence and must be considered when comparing the overall sentencing outcomes for co-offenders.
- In dismissing the appeal, the court reinforced that the parity principle operates by reference to the overall sentencing outcome, not by isolating and comparing individual structural elements of sentences imposed on different offenders.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases
- Postiglione v R [1997] HCA 26; 189 CLR 295
- Lowe v R [1984] HCA 46; 154 CLR 606
- Pearce v R [1998] HCA 57; 194 CLR 610
- Bell v R [2008] NSWCCA 206
- Henderson v R [2012] NSWCCA 65
- Ng v R [2011] NSWCCA 227
- Papadopoulos v R, Topcu v R [2007] NSWCCA 274
- Williams v R [2013] NSWCCA 15
- R v MacDonnell [2002] 128 A Crim R 44