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6
Court of Criminal Appeal 29 July 2013

Ho v R

[2013] NSWCCA 174

Drugs
CRIMINAL LAW WHETHER ERROR IN DETERMINING NON SPECIAL CIRCUMSTANCES LEAVE TO APPEAL OUT OF TIME GRANTED LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: Ho v R [2013] NSWCCA 174
Court: Court of Criminal Appeal, New South Wales
Date: 29 July 2013
Judge(s): Emmett JA, Fullerton J, Schmidt J

Background

The appellant pleaded guilty in the Local Court to supplying a commercial quantity of heroin (352.2 grams) and to knowingly allowing premises to be used as drug premises while exposing a child to prohibited drugs. She was sentenced in the District Court on 27 July 2012 to a total term of nine years, comprising a six-year non-parole period and a three-year balance of term. Four additional charges were taken into account on a Form 1.

On the same day, a co-offender who had acted as a drug courier was sentenced for five separate supply offences involving smaller quantities of heroin. He received a total term of six years, with a non-parole period of three years and a balance of term of three years. Both offenders received a 25% discount for early guilty pleas, and both had special circumstances found in their favour warranting a reduction in the non-parole period below the statutory default of three-quarters of the total term.

The key disparity was in the ratio of non-parole period to total sentence. The appellant's ratio was 67%, while the co-offender's ratio was 50%. The appellant filed an application for leave to appeal out of time, arguing this difference gave rise to a justifiable sense of grievance under the parity principle.

  • Whether leave to appeal out of time should be granted, given the six-month delay in filing with no affidavit explaining it
  • Whether the sentencing judge erred by arriving at different non-parole period ratios for the appellant and the co-offender in circumstances where special circumstances were found for both
  • Whether the difference in ratios produced an unjustifiable disparity that offended the parity principle

Decision

The Court granted leave to appeal out of time and leave to appeal, but unanimously dismissed the appeal. Schmidt J (with whom Emmett JA and Fullerton J agreed) reasoned that the different ratios were a product of the different objective seriousness of the two offenders' conduct, not any error in the sentencing exercise.

The Court affirmed the established principle, drawn from cases including R v Wahabzadah, that the parity principle is not breached simply because co-offenders receive different non-parole period ratios. Disparity only becomes problematic where the difference cannot be explained by differences in culpability or personal circumstances. Different findings on special circumstances are themselves a legitimate source of differing ratios.

Schmidt J reasoned that if the same 50% ratio applied to the co-offender had been applied to the appellant, her non-parole period would have been approximately four years and seven months. That result would have been plainly inadequate given the seriousness of her offending as a broker, and it would itself have provided grounds for the co-offender to complain of disparity. The sentencing judge's approach of fixing a three-year balance of term for each offender, reflecting their similarly found personal circumstances, was correct.

The Court was satisfied that the personal circumstances warranting a special circumstances finding were relevantly indistinguishable between the two offenders, and that a three-year period on parole was appropriate for both. The difference in the ratios was explained entirely by the different lengths of sentence that the respective offending warranted, not by any inconsistency in the treatment of their circumstances.

Orders Made

  • Leave to appeal out of time granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A breach of the parity principle is not established merely because co-offenders receive different ratios of non-parole period to total sentence following different findings on special circumstances.
  • Under the parity principle as applied in this decision, unjustifiable disparity arises only where the difference in sentences cannot be explained by differences in culpability or personal circumstances between co-offenders.
  • Where an offender's greater culpability produces a longer total sentence, applying the same non-parole period ratio as a less culpable co-offender may produce a result that is substantively inadequate and itself creates fresh disparity.
  • In dismissing the appeal, the Court confirmed that fixing the same balance of term (in this case three years) for co-offenders with relevantly indistinguishable personal circumstances is a sound and principled approach, even if the resulting ratios differ.
  • No error was established on the part of the sentencing judge, whose conclusions about the appropriate non-parole periods properly reflected the different degrees of criminality and the principle of totality.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 36Y(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 44
- Crimes Act 1900 (NSW), ss 193B(1)(b), 193C(1)
- Crimes (Administration of Sentences) Regulation 2008 (NSW)

Cases
- Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
- R v Wahabzadah [2001] NSWCCA 253
- R v Do [2005] NSWCCA 209
- Tatana v R [2006] NSWCCA 398
- Lau v R [2010] NSWCCA 43
- Sevastopoulos v R [2011] NSWCCA 201
- Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
- Baghdadi v R [2012] NSWCCA 212
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146