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Court of Criminal Appeal 25 September 2014

Allen v R

[2014] NSWCCA 193

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE FOCUS SHOULD BE ON ACTUAL ACTIVITY

Citation: Allen v R [2014] NSWCCA 193
Court: Court of Criminal Appeal, NSW
Date: 25 September 2014
Judge(s): Beazley P; R A Hulme J; Garling J

Background

The appellant was sentenced in the District Court for knowingly taking part in the supply of a commercial quantity of MDMA (ecstasy). His involvement was to drive his brother-in-law from Ulladulla to Sydney to collect approximately 1,000 ecstasy tablets purchased for $10,000. At the pick-up point, the appellant was present during the transaction and the drugs were concealed in the air filter of his car. He was to receive $500 for his role.

At sentence, Judge Frearson SC imposed 2 years 9 months with a non-parole period of 1 year 8 months, backdated to arrest. The sentence already reflected a 25 per cent reduction for an early guilty plea. A co-offender, who had arranged the purchase and was involved in a broader drug distribution network, received a longer sentence of 4 years 5 months with a non-parole period of 2 years 8 months.

The appellant sought leave to appeal on three grounds: that the sentencing judge wrongly characterised him as above a "mere courier," that the sentence was manifestly excessive, and that the disparity between his sentence and the co-offender's non-parole period offended the parity principle.

  • Whether the sentencing judge erred by characterising the appellant's role as above that of a "mere courier"
  • Whether the resulting sentence was manifestly excessive given the appellant's limited role in the offence
  • Whether the sentence offended the parity principle when compared with the sentence imposed on the co-offender

Decision

On the first ground, the Court found no error in the sentencing judge's approach. Although the judge used the language of "courier" and "mere courier," he immediately moved on to examine what the appellant actually did, including driving to Sydney, attending the transaction, and being present when the drugs were concealed in his vehicle. The Court confirmed, citing Paxton v R and The Queen v Olbrich, that the correct approach is to focus on an offender's actual conduct rather than assigning a label such as "courier" or "principal."

On manifest excess, the Court was not persuaded the sentence fell outside an acceptable range. The appellant had deliberately provided material assistance to acquire a substantial commercial quantity of a prohibited drug, knowing the purpose was on-supply, and did so for financial gain. The Court acknowledged some imprecision in the judge's expression of objective seriousness but did not find that imprecision constituted reviewable error.

On parity, the Court rejected the complaint that the gap between the two non-parole periods was too small. The co-offender's offence was at a significantly higher level of objective seriousness. Importantly, a finding of special circumstances was made for both offenders, and in each case the non-parole period was set at 60 per cent of the head sentence. The Court inferred this was a deliberate and consistent approach by the sentencing judge, and found no legitimate basis for the appellant to feel aggrieved.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Labelling an offender's role as "courier" or "mere courier" in drug supply cases risks obscuring the proper sentencing analysis. The Court of Criminal Appeal confirmed that the focus must remain on the offender's actual conduct.
  • In dismissing the first ground, the Court found that a judge who uses such labels but then correctly examines the offender's physical acts commits no error in approach.
  • Under the parity principle, a difference in non-parole periods will not necessarily give rise to a successful appeal where the disparity reflects meaningful differences in the objective seriousness of each offender's role.
  • Where special circumstances are found for co-offenders resulting in the same proportional relationship between head sentence and non-parole period, that consistency can answer a parity complaint about the size of the gap between non-parole periods.
  • A modest payment to a driver who knowingly assists in the acquisition of a commercial quantity of a prohibited drug for on-supply does not necessarily place the offence at the very bottom of the sentencing range.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A

Cases:
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Makarian v The Queen [2005] HCA 25; 228 CLR 357
- Paxton v R [2011] NSWCCA 242; 219 A Crim R 104
- The Queen v Olbrich [1999] HCA 54; 199 CLR 270