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12
Court of Criminal Appeal 1 February 2013

Parris v R

[2013] NSWCCA 5

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE PARITY PRINCIPLE

Citation: Parris v R [2013] NSWCCA 5
Court: NSW Court of Criminal Appeal
Date: 1 February 2013
Judges: McClellan CJ at CL; Latham J; Adamson J

Background

The appellant pleaded guilty to supplying a commercial quantity of cocaine (707.2 grams at 78.5% purity) contrary to s 25(2) of the Drugs Misuse and Trafficking Act 1985. He was sentenced to a total term of just over six years, with a non-parole period of two years and six months. At the time of the appeal, he had already been released on parole.

The appellant's case was that he had been storing the cocaine for a co-offender, Richard Lipton, who ran a drug supply network in Sydney's Eastern Suburbs. The appellant received cocaine for personal use as his only remuneration and claimed no involvement in the actual distribution.

The central issue on appeal was whether the appellant's sentence was unjustifiably disparate from the sentence later imposed on Lipton, the organiser of the network, who was sentenced for supplying a large commercial quantity of cocaine (1.905 kg) and a large commercial quantity of MDMA (586.9 g).

  • Whether the sentencing judge gave undue weight to the quantity of drugs involved
  • Whether the sentence of just over six years was manifestly excessive
  • Whether the appellant had a justified sense of grievance under the parity principle, given the sentence imposed on Lipton

Decision

First ground (weight given to drug quantity): Adamson J found no indication in the record that the sentencing judge gave undue weight to the quantity and purity of cocaine. Indeed, the appellant's own counsel at the sentence hearing had properly conceded that characterising the offence as low in seriousness was foreclosed by the quantity, purity, and corresponding street value of the drug. The first ground effectively merged into the second.

Second and third grounds (manifest excess and parity): The court addressed these together, because the manifest excess argument was not pursued independently and instead rested entirely on the parity comparison with Lipton. Lipton received an overall term of eight years with a non-parole period of four and a half years, after a 25% plea discount, for offences involving significantly larger quantities of both cocaine and MDMA. His undiscounted sentence for the cocaine supply alone was ten years; the appellant's undiscounted sentence was seven years.

The Court of Criminal Appeal examined the differences between the two offenders. Lipton was the organiser, was not an addict, and supplied drugs for profit. The sentencing judge treated Lipton's role as serious but tempered that assessment partly because of the circumstances in which the large commercial supply was solicited by an undercover police officer. The appellant, by contrast, was a warehouseman rather than an organiser, but that distinction was already reflected in the difference between the sentences.

Adamson J concluded that the disparity between the two sentences was substantial, both in total term and non-parole period, and that it adequately reflected the difference in their roles and moral culpability. Any sense of grievance the appellant harboured was not justified by objective criteria. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Drug quantity is a "very material consideration" in assessing objective seriousness under the Drugs Misuse and Trafficking Act 1985, but it is not the sole or chief factor; its weight depends on the circumstances of each case, consistent with the High Court's approach in Wong v The Queen.
  • A justified sense of grievance under the parity principle requires more than a bare assertion of disparity; the appellant must identify objective criteria demonstrating that the difference in sentences is not adequately explained by differences in offending conduct and moral culpability.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that general deterrence and punishment carry significant weight in commercial drug supply sentencing and will generally outweigh subjective circumstances, particularly when fixing the total term.
  • The role of a "warehouseman" in a drug supply network does not attract light treatment; courts have consistently recognised that the participation of couriers, storers, and similar intermediaries is essential to the operation of those networks, which justifies deterrent sentences at all levels of involvement.
  • Where an organiser's sentence is already substantially higher than a subordinate's, the mere fact that the organiser could arguably have received an even heavier sentence does not, of itself, render the subordinate's sentence manifestly excessive.

Legislation and Cases Referenced

Legislation
- Drugs Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33(2), Schedule 1
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)
- Crimes Act 1900 (NSW), s 527C(1)(c)

Cases
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Paxton v R [2011] NSWCCA 242
- R v Lipton [2012] NSWDC 201
- R v Shi [2004] NSWCCA 135
- R v Taouk (1993) 65 A Crim R 387
- Wong v The Queen [2001] HCA 64; 207 CLR 584