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Court of Criminal Appeal 19 September 2013

Loader v R; Dunn v R

[2013] NSWCCA 215

Drugs
CRIMINAL LAW SENTENCE DRUG SUPPLY OFFENDERS PARITY ALL OFFENDERS SENTENCED BY SAME JUDGE

Citation: Loader v R; Dunn v R [2013] NSWCCA 215
Court: Court of Criminal Appeal, NSW
Date: 19 September 2013
Judges: Latham J, Rothman J, Davies J (Davies J delivering the principal judgment, with Latham and Rothman JJ agreeing)

Background

Four co-offenders were investigated under a police covert operation targeting the distribution of methylamphetamine and MDMA on the NSW Central Coast. Two of them, the appellant drug distributor and the appellant mid-level supplier, pleaded guilty to a range of supply offences under the Drug Misuse and Trafficking Act 1985 and were sentenced in the District Court by the same judge, as were their two co-offenders.

The distributor (Loader) was sentenced to an overall non-parole period of eight years, later corrected to seven years following an arithmetic error in the original sentencing remarks. The supplier (Dunn) received an overall non-parole period of five years and six months. Both received a 25% discount for early guilty pleas.

Each sought leave to appeal on the grounds that the sentencing judge misstated the maximum penalty for certain offences, that the standard non-parole period had been misapplied, and that their sentences were disproportionate compared to those of their co-offenders.

  • Whether the sentencing judge's misstatement of the maximum penalty for certain counts (citing 25 years instead of the correct 20 years) infected the sentences with appealable error
  • Whether the sentencing judge's treatment of the standard non-parole period was erroneous following Muldrock v The Queen
  • Whether disparity between the appellants' sentences and those of their co-offenders gave rise to a justifiable sense of grievance, warranting appellate intervention on parity grounds
  • Whether Dunn's sentences were manifestly excessive

Decision

Maximum penalty error: The sentencing judge had incorrectly stated a maximum penalty of 25 years for some counts when the correct maximum was 20 years. The Court found, however, that this misstatement did not infect the actual sentences imposed. The sentences remained well within the correct maximum, and the Court was satisfied the error had no practical effect on the outcome.

Standard non-parole period: Both appellants argued the judge had misapplied the standard non-parole period following the High Court's decision in Muldrock, which clarified that standard non-parole periods are a guidepost rather than a mandatory starting point. The Court accepted that the sentencing remarks reflected an approach that would not now be taken, but concluded the sentences themselves were not shown to be unreasonable or plainly unjust. No different sentence was warranted.

Parity: The Court examined the sentences imposed on all four co-offenders and found no "gross", "glaring", "marked" or "manifest" disparity. The sentencing judge had been aware of all co-offenders' sentences and had expressly explained the basis for any differences. Where a sentencing judge is fully aware of co-offenders' sentences and addresses the reasons for departure, the parity principle provides limited scope for appellate intervention. Minor differences in sentence were consistent with minor differences in objective criminality and subjective circumstances.

Manifest excess (Dunn): The Court found no basis for concluding that Dunn's overall sentence was manifestly excessive, having regard to his role as a mid-level supplier responsible for cutting and distributing commercial quantities of methylamphetamine to street-level distributors.

Orders Made

  • Time for filing Loader's notice of application for leave to appeal extended to 11 July 2012
  • Leave to appeal granted to both appellants
  • Both appeals dismissed

Key Takeaways

  • A sentencing judge's misstatement of the applicable maximum penalty does not automatically vitiate a sentence; the Court of Criminal Appeal will examine whether the error materially affected the sentence actually imposed.
  • Following Muldrock, sentencing remarks that treat a standard non-parole period as a fixed starting point may reflect an incorrect approach, but that alone does not require resentencing if the resulting sentence is not unreasonable or plainly unjust.
  • Where a single judge sentences multiple co-offenders and expressly addresses the basis for differences in outcome, the threshold for appellate intervention on parity grounds is high. The disparity must be "gross", "glaring", "marked" or "manifest" to warrant resentencing.
  • In dismissing both appeals, the Court confirmed that minor sentencing differences between co-offenders with similar objective criminality and subjective circumstances are consistent with, rather than a departure from, the parity principle.
  • An arithmetic error in sentencing remarks that inflates a non-parole period can be corrected by further remarks on sentence; the availability of that correction was relevant to the abandonment of certain grounds on appeal.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases:
- Muldrock v The Queen [2011] HCA 39; (2012) 244 CLR 120
- Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 274
- England v R; Phanith v R [2009] NSWCCA 274
- Gill v R [2010] NSWCCA 236
- Butler v R [2012] NSWCCA 23
- Dusan Pavicevic v R [2010] ACTCA 25
- EJDG v R [2012] NSWCCA 251
- R v Spizzerri [2001] VSCA 49
- R v Swan [2006] NSWCCA 47
- Shortland v R [2013] NSWCCA 4
- Trevor Essex v R [2013] NSWCCA 11