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Court of Criminal Appeal 20 December 2013

Dang v R & Matthews v R

[2013] NSWCCA 326

DrugsFirearms & weapons
CRIMINAL LAW FORM 1 MATTERS REQUIREMENT TO SET NON PAROLE PERIOD PARITY WHETHER SENTENCES MANIFESTLY EXCESSIVE

Citation: Dang v R & Matthews v R [2013] NSWCCA 326
Court: NSW Court of Criminal Appeal
Date: 20 December 2013
Judges: Macfarlan JA, Hidden J, Davies J

Background

Two co-accused, referred to here as the first applicant and the second applicant, pleaded guilty in the District Court to jointly supplying a large commercial quantity of ecstasy (732.4 grams across two transactions) to undercover police officers. The first applicant arranged the supply through a drug source, while the second applicant physically handed over the drugs and received payment on each occasion. Both received a 10% discount on sentence for late pleas of guilty.

The second applicant faced additional charges: selling firearms on an ongoing basis, covering four separate sales of pistols and rifles to an undercover officer under s 51B(1) of the Firearms Act 1996. A number of further offences relating to ammunition and firearm parts were taken into account on a Form 1 in connection with both the drug and firearms charges. (A Form 1 is a procedural mechanism that allows offences other than the one being sentenced to be taken into account, without separate punishment, so they are reflected in the overall sentence.)

The first applicant was sentenced to 12.5 years with a non-parole period of 8 years and 8 months for the drug offence. The second applicant received a fixed term of 7 years and 3 months for the firearms offence, accumulated by 3 years and 3 months with a sentence of 12 years and 9 months (non-parole period of 7 years and 9 months) for the drug offence, producing an aggregate of 16 years with an effective non-parole period of 11 years. Both men sought leave to appeal against their sentences.

  • Whether the first applicant's sentence was manifestly excessive, having regard to parity with sentences received by the second applicant and the drug source who had separately pleaded guilty
  • Whether the sentencing judge erred in failing to set a non-parole period for the second applicant's firearms sentence, given that offence carries a standard non-parole period
  • Whether the second applicant's individual sentences, and his aggregate sentence, were manifestly excessive
  • Whether the extent of accumulation of the drug sentence upon the firearms sentence was appropriate

Decision

Parity (first applicant). The Court rejected the parity argument. Although the drug source received a higher sentence for the same drug offence, that was because his role was more serious: he was the supplier of the drugs and bore greater culpability. As between the two co-accused, the second applicant's greater involvement, including physically handing over the drugs and having many more Form 1 matters, justified his receiving a longer sentence than the first applicant. No justifiable sense of grievance arose from the disparity.

Failure to set a non-parole period for the firearms sentence. The Court found that the sentencing judge had erred by imposing a fixed term for the firearms offence rather than setting a non-parole period and a balance of term. Under the Crimes (Sentencing Procedure) Act 1999, where an offence carries a standard non-parole period, the court is required to set a non-parole period when imposing a term of more than six months. A fixed term is only available where the court finds special circumstances under the relevant statutory provision. The judge made no such finding in relation to the firearms sentence, making the fixed term an error of law.

Manifest excess. The Court was not persuaded that either the individual sentences or the aggregate sentence were manifestly excessive. The sentencing judge had properly weighed the objective seriousness of the offending and all favourable subjective factors, including the second applicant's age (64), his serious medical conditions, and a psychologist's diagnosis of chronic post-traumatic stress disorder. The Court acknowledged that the aggregate sentence carried a risk the second applicant might spend the remainder of his life in custody, but confirmed that an appropriate sentence may lawfully carry that risk.

Accumulation. The Court saw no error in the extent to which the drug sentence was accumulated upon the firearms sentence. The two offences represented distinct episodes of criminality.

Orders Made

  • Leave to appeal granted to the first applicant; appeal dismissed.
  • Leave to appeal granted to the second applicant; appeal allowed in part.
  • The sentence on the firearms offence was quashed and replaced with a non-parole period of 5 years (23 April 2008 to 22 April 2013) and a balance of term of 2 years and 3 months (23 April 2013 to 22 July 2015).
  • The sentence for the drug offence and its commencement date were confirmed.
  • The aggregate sentence of 16 years with an effective non-parole period of 11 years, dating from 23 April 2008, was left to stand, with the second applicant eligible for parole on 22 April 2019.

Key Takeaways

  • Under the Crimes (Sentencing Procedure) Act 1999, where an offence carries a standard non-parole period, a sentencing court must set a non-parole period rather than impose a fixed term, unless it makes a specific finding of special circumstances justifying a fixed term. Failing to do so constitutes an error of law.
  • A parity argument does not succeed simply because a co-accused received a lighter sentence. The Court of Criminal Appeal confirmed that differences in culpability, including the degree of physical involvement in the offending and the number of Form 1 matters, justify differences in outcome between co-offenders.
  • In dismissing most of the second applicant's appeal, the Court affirmed that an aggregate sentence is not manifestly excessive merely because it may result in an elderly or seriously ill offender spending the rest of his life in prison, provided the sentence reflects the totality of the criminality involved.
  • Where two distinct episodes of criminal conduct are charged separately, accumulation of sentences is not inherently erroneous. The Court found that the drug and firearms offending were separate enough to warrant a degree of accumulation.
  • Sentencing statistics carry inherent limitations and represent only one reference point. The Court noted that the firearms sentence fell within the range disclosed by available statistics, reinforcing that statistics assist rather than determine the sentencing exercise.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), s 51B(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Hsu v R [2012] NSWCCA 248
- Gurney and Willetts v Regina [2011] NSWCCA 48
- Lipchin v R [2013] NSWCCA 77
- Mansour v R [2011] NSWCCA 28, 209 A Crim R 275
- R v Smith (1987) 44 SASR 587
- R v L (CCA unreported, 17 June 1996)
- R v McNaughton [2006] NSWCCA 242, 66 NSWLR 566
- R v Holyoak [1995] 82 A Crim R 502