AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 30 August 2013

Wienand v R

[2013] NSWCCA 202

Drugs
CRIMINAL LAW SENTENCE APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE PARITY SENTENCE OF CO

Citation: Wienand v R [2013] NSWCCA 202
Court: NSW Court of Criminal Appeal
Date: 30 August 2013
Judges: Hoeben CJ at CL; McCallum J; Schmidt J

Background

The applicant pleaded guilty to supplying a large commercial quantity of methylamphetamine (1,848.6 grams) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985, an offence carrying a maximum of life imprisonment and a standard non-parole period of 15 years. He occupied a middle position in a drug supply chain, receiving drugs from a supplier known as "AM" and delivering them to a co-offender, Hill, who in turn facilitated on-supply to an undercover police officer. Four separate supply transactions occurred between November and December 2010, when the applicant was arrested.

At sentencing in the District Court, the applicant received a non-parole period of 5 years and 6 months, with a balance of term of 2 years and 6 months, reflecting a 25% discount for his early guilty plea. His co-offender Hill had been sentenced by the same judge to a more lenient term, and that sentence was subsequently further reduced on a separate appeal to the Court of Criminal Appeal.

The applicant sought leave to appeal on three grounds: manifest excess, an erroneously high starting point, and parity with Hill's reduced sentence.

  • Whether the sentence imposed on the applicant was manifestly excessive.
  • Whether the sentencing judge's notional starting point was too high.
  • Whether the subsequent reduction of Hill's sentence by the Court of Criminal Appeal gave the applicant a justifiable sense of grievance entitling him to a reduction in his own sentence.

Decision

Manifest excess and starting point: The majority (Hoeben CJ at CL and Schmidt J) rejected both of these grounds. The starting point and the resulting sentence were found to be within an appropriate range, having regard to the objective seriousness of the offending, the applicant's higher position in the drug supply hierarchy compared with Hill, and the financial benefit he derived. Leave to appeal on those grounds was refused.

Parity: The parity argument was the most contested issue. After the applicant was sentenced, the Court of Criminal Appeal separately reduced Hill's sentence, producing a significant disparity: the applicant's non-parole period of 5 years and 6 months compared with Hill's 2 years. The majority held that this disparity did not give rise to a justifiable sense of grievance. The applicant held a higher position in the supply chain, stood to earn more, had a worse drug history, and had a less favourable subjective case than Hill. Those differences, in the majority's view, justified the difference in sentences.

The majority also noted that Hill had received a combined 50% discount (for both an early plea and assistance to authorities), a benefit not available to the applicant. The applicant's circumstances were therefore sufficiently different to explain the sentencing gap without producing injustice.

McCallum J dissented on the parity ground. Her Honour accepted that the applicant's sentence was individually appropriate but concluded the disparity was nevertheless marked and unjustified, particularly given that the same judge had set Hill's starting point higher despite finding that the applicant occupied a more senior role in the hierarchy. Because the reduced sentence for Hill was passed by this Court, it could not be treated as erroneous, and her Honour would have exercised the discretion to reduce the applicant's sentence to a level that, while lenient, remained within the appropriate range. She declined to specify the lesser sentence, given that hers was a dissenting view.

Orders Made

  • Leave to appeal refused on grounds (a) (manifest excess) and (b) (starting point too high).
  • Leave to appeal granted on ground (c) (parity), but the appeal dismissed.

Key Takeaways

  • A reduction in a co-offender's sentence by an appellate court does not automatically entitle another offender to a corresponding reduction; the court examines whether the differences in circumstances justify the sentencing disparity.
  • Where a co-offender occupied a lower position in the drug supply hierarchy, received a greater discount (including for assistance to authorities), and had a more favourable subjective case, those factors can collectively explain a substantial difference in non-parole periods without generating a justifiable sense of grievance.
  • The Court of Criminal Appeal confirmed that a sentence passed by this Court cannot be treated as erroneously lenient when considering a parity claim, even if individual judges regard it as such.
  • McCallum J's dissent illustrates that the parity principle may still operate to reduce an otherwise appropriate sentence, provided the resulting sentence remains within the acceptable range, when disparity is found to be marked and unjustified.
  • Under the parity principle as discussed in Green v The Queen; Quinn v The Queen [2011] HCA 49, marked and unjustified disparity may be mitigated by reducing the sentence under appeal to a level that, although lower, is still within the range of appropriate sentences.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- Butler v R [2012] NSWCCA 23
- Dinsdale v R [2008] HCA 54; 202 CLR 321
- DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Hill v R [2012] NSWCCA 265
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Olbrich [1999] HCA 54; 199 CLR 270
- Regina v Wei Pan [2005] NSWCCA 114