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Court of Criminal Appeal 28 November 2013

Alpha v R

[2013] NSWCCA 292

DrugsFirearms & weapons
CRIMINAL LAW APPEAL PRACTICE AND PROCEDURE WHERE EXTENSION OF TIME REQUIRED WHERE DELAY NOT ADEQUATELY EXPLAINED APPEAL

Citation: Alpha v R [2013] NSWCCA 292
Court: NSW Court of Criminal Appeal
Date: 28 November 2013
Judge(s): Leeming JA, Bellew J, RS Hulme AJ

Background

The applicant, whose identity is protected by a suppression order and who is referred to throughout the proceedings as "Alpha," was convicted after a lengthy District Court trial of conspiring to import a commercial quantity of MDMA (ecstasy) into Australia, contrary to the Criminal Code 1995 (Cth). The quantity of pure MDMA involved was 30.82 kilograms, well above the commercial quantity threshold of 500 grams. The maximum penalty for the offence is life imprisonment.

The sentencing judge imposed a total term of 15 years and 6 months imprisonment (after a 40 percent discount for assistance to authorities), with a non-parole period of 10 years and 4 months. The applicant had been tried alongside several co-conspirators, who received materially lower sentences. A search of the applicant's residential premises at the time of arrest also produced additional charges relating to an unlicensed pistol, ammunition, unsafe storage of firearms, and possession of a ballistic vest.

The applicant sought to appeal the sentence on the basis of parity (that is, a claimed unjustified disparity between his sentence and those of co-offenders), but required a substantial extension of time to do so. He had been sentenced in April 2010, and his application was not filed until mid-2013.

  • Whether the applicant should be granted an extension of time in which to seek leave to appeal against his sentence, given the more than three-year delay and the adequacy of the explanation offered for it.
  • What principles govern an application for an extension of time to appeal in criminal proceedings.
  • Whether the sentencing judge erred by imposing a sentence on the applicant that was disproportionately higher than those imposed on co-conspirators, giving rise to a justified sense of grievance under the parity principle.
  • Whether the sentencing judge correctly assessed the applicant's role within the conspiracy relative to his co-offenders.

Decision

Extension of time. The Court confirmed that all relevant factors must be considered when determining an extension of time application: the length of and explanation for the delay, the interests of the community and the victim, and whether substantial injustice would result from a refusal. The delay here was significant and, in large measure, unsatisfactorily explained. Counsel had been briefed in July 2010 but did not provide a merit advice until approximately three years later, and no adequate explanation was given for that gap. Even so, Bellew J (with whom Leeming JA and RS Hulme AJ agreed) proceeded to examine the merits in a more summary fashion, consistent with the approach endorsed in Abdul v R [2013] NSWCCA 247.

Parity and the applicant's role. The sentencing judge had adopted a starting point for the applicant's sentence that was nine years higher than the starting point used for the co-offenders. The applicant argued this disparity was unjustified. The Court rejected that argument. The sentencing judge had found, on the evidence, that the applicant occupied a higher position in the hierarchy of the conspirators who went to trial. Crucially, that finding was not challenged in the appeal. The Court emphasised that assessing a conspirator's role requires going beyond isolated overt acts and considering the person's overall involvement and position within the conspiracy.

The parity principle applied. The Court observed that considerable obstacles face an applicant who seeks to invoke the parity principle where the sentencing judge was aware of co-offenders' sentences and expressly explained the departure from them. Here, the sentencing judge had done exactly that. The difference in starting points reflected the difference in roles, and the Court found no justifiable sense of grievance and no substantial injustice arising from the sentence imposed. The applicant's reliance on the sentencing judge's description of a non-trial co-conspirator (Picardi) as the "mastermind" was also rejected: that reference was a passing observation made in a different context, and the judge had found the applicant to be at the top of the hierarchy among those who were actually parties to the trial.

RS Hulme AJ's additional observation. RS Hulme AJ agreed with the orders and reasons, but added that Bellew J had been, in his view, far too generous to the applicant in the depth of consideration given to the merits. That degree of scrutiny effectively gave the applicant the full benefit of an appeal despite the absence of any reasonable basis for granting the extension.

Orders Made

  • The application for an extension of time in which to seek leave to appeal was dismissed.

Key Takeaways

  • In dismissing the application, the Court of Criminal Appeal confirmed that the framework set out in Abdul v R applies to all extension of time applications in criminal proceedings, requiring consideration of all relevant factors rather than treating finality as a determinative principle applied in isolation.
  • Where a significant and inadequately explained delay exists, the merits of a proposed appeal may still be examined, but in a more summary fashion than would apply to a full appeal hearing.
  • Assessing a conspirator's role for sentencing purposes requires a holistic view of that person's involvement in the conspiracy, not merely a focus on discrete overt acts in which the conspirator participated.
  • Invoking the parity principle is particularly difficult where the sentencing judge was fully aware of co-offenders' sentences and gave explicit reasons for the departure from them.
  • No justifiable sense of grievance arose where the difference in sentencing outcomes reflected a finding, unchallenged on appeal, that the applicant held a more senior role in the conspiracy than the co-offenders with whom he sought comparison.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 11.5(1), 307.1, 314.1
- Firearms Act 1996 (NSW), ss 7(1), 39, 65
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- Abdul v R [2013] NSWCCA 247
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Sinkovich v Attorney General of New South Wales [2013] NSWCA 383
- Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
- Lowe v R (1984) 154 CLR 606
- McCraw v R [2011] NSWCCA 162
- Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 27
- Gill v R [2010] NSWCCA 236
- Pavicevic v R [2010] ACTCA 25
- Tatana v R [2006] NSWCCA 398
- R v Spizzerri [2001] VSCA 49
- R v Swan [2006] NSWCCA 47
- Tyler v R; R v Chalmers [2007] NSWCCA 247
- Winter v R [2013] NSWCCA 231