Citation: PETTERSON, Benjamin v R [2013] NSWCCA 133
Court: NSW Court of Criminal Appeal
Date: 7 June 2013
Judge(s): Hoeben CJ at CL, Hall J, Davies J
Background
The applicant was sentenced in the District Court in August 2009 across four offences arising from his involvement in a methylamphetamine manufacturing operation at Ariah Park in July 2008. Those offences included escape from lawful custody, break enter and steal, knowingly taking part in the manufacture of a prohibited drug, and attempting to possess a precursor for use in drug manufacture. At the time of the offences, the applicant was on parole for armed robbery and, after escaping police custody, was also an escapee at the time of his second offence.
Two co-offenders, Garcia and Matthews, were separately prosecuted by the Commonwealth Director of Public Prosecutions on charges of importing a commercial quantity of pseudoephedrine (a precursor used to manufacture methylamphetamine). Matthews was identified as the organiser and principal of the importation scheme and was sentenced in January 2012 to seven years and six months imprisonment. Garcia pleaded guilty to aiding and abetting the importation and to a state manufacturing offence, and was sentenced in February 2011 to a total of four years imprisonment.
The applicant lodged his application for leave to appeal in December 2012, more than three years after sentencing. The Crown did not oppose an extension of time, and the court granted one. The applicant's sole ground of appeal was that he had a justifiable sense of grievance arising from the disparity between his sentence and those of his two co-offenders.
Legal Issues
- Whether the applicant had a justifiable sense of grievance based on the parity principle, given the differences between his sentence and those imposed on co-offenders Garcia and Matthews.
- Whether a marked disparity existed between the sentences that could not be explained by the different circumstances of each offender.
- Whether the differences in charges, roles, and subjective circumstances adequately justified any apparent difference in sentencing outcomes.
Decision
Hall J (with whom Hoeben CJ at CL and Davies J agreed) dismissed the appeal. The court found that no marked disparity had been established, and that there was no basis for a justifiable sense of grievance.
A central consideration was that the co-offenders did not face the same charges as the applicant. Matthews was sentenced solely on the importation offence, which carried a maximum penalty of 25 years and reflected his role as the organiser and principal of the enterprise. Garcia faced the importation offence as an aider and abetter, as well as the state manufacturing charge, and his sentence reflected both a lesser role and the benefit of guilty pleas. The applicant, by contrast, faced two drug offences directly related to the manufacturing process, plus the escape and break enter and steal charges.
The court also emphasised the applicant's highly unfavourable subjective circumstances. He was on parole at the time of the manufacturing offence and was an escapee at the time of the precursor offence. The sentencing judge had described him as an "important player" in what was characterised as "organised criminal activity." These factors significantly distinguished the applicant's position from that of his co-offenders when comparing sentences.
Hall J accepted that the applicant's role in the overall enterprise was less than Garcia's. However, the difference in total terms and non-parole periods did not, in the court's assessment, amount to a marked disparity. The applicant's involvement in both the manufacturing process and the attempted receipt of the imported pseudoephedrine represented significant criminality, and the starting point of his sentence remained below that imposed on Matthews.
Orders Made
- Extension of time for filing the application for leave to appeal granted.
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- The parity principle does not operate mechanically where co-offenders are charged with different offences arising from the same criminal enterprise. Differences in charges, roles, and the statutory framework applicable to each offender can justify apparent disparities in sentencing outcomes.
- A justifiable sense of grievance requires the establishment of a marked disparity in sentences. Differences that are explicable by reference to each offender's objective circumstances, subjective circumstances, and the specific offences charged will not satisfy that threshold.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that being on conditional liberty (such as parole) at the time of an offence, and further being an escapee at the time of a subsequent offence, are serious aggravating factors that can substantially differentiate an offender's position from that of co-offenders.
- Sentences imposed on co-offenders in separate proceedings, by different courts, under different legislative frameworks (Commonwealth versus state) are not straightforwardly comparable for parity purposes.
- No marked disparity was established even where the applicant's role in the enterprise was found to be less than that of one co-offender, because the applicant's unfavourable subjective circumstances and the nature of his specific charges counterbalanced any surface-level difference in outcome.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112(1) (break enter and steal)
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(1) (manufacture of prohibited drug) and s 24A(1) (attempt to possess precursor)
- Criminal Code (Cth), s 307.11(1) (importing commercial quantity of border controlled precursor)
Cases
- Green v The Queen; Quinn v The Queen [2011] HCA 59
- Jimmy v R (2010) 77 NSWLR 540
- Lowe v The Queen (1984) 154 CLR 606