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Court of Criminal Appeal 7 October 2014

El-Helou v R

[2014] NSWCCA 209

Drugs
CRIMINAL LAW SENTENCE PARITY RELEVANCE OF CONCURRENCE OF CO APPEAL ALLOWED

Citation: El-Helou v R [2014] NSWCCA 209
Court: Court of Criminal Appeal of NSW
Date: 7 October 2014
Judge(s): Macfarlan JA (principal judgment); Hidden J and Adams J (agreeing)

Background

The appellant pleaded guilty to knowingly taking part in the supply of pseudoephedrine in an amount not less than the large commercial quantity under the Drug Misuse and Trafficking Act 1985 (NSW). The offence arose from events on 11 July 2008, when the appellant and a co-offender unloaded crates of tablets at a garage at the appellant's residence. The drugs had been imported from Thailand across two shipping containers, with a combined gross weight exceeding 800 kilograms.

The appellant was originally sentenced to 10 years and 6 months imprisonment. Following a successful Crown appeal in May 2010, the Court of Criminal Appeal increased that sentence to 12 years with a non-parole period of 8 years.

The matter returned to the Court of Criminal Appeal after a Supreme Court judge, Button J, referred the whole case under the Crimes (Appeal and Review) Act 2001 (NSW), having formed a doubt about whether the sentence remained appropriate in light of the sentence later imposed on the co-offender. The co-offender was sentenced in June 2012 for a supply offence covering two distinct acts of supply (one of which was the same act underlying the appellant's offence), as well as separate offences of drug importation and dealing with proceeds of crime.

  • Whether the appellant had a justifiable sense of grievance under the parity principle, given the sentence later imposed on the co-offender in respect of the common supply offence.
  • Whether the co-offender's sentence being wholly concurrent with a more serious importation sentence diminished or eliminated any genuine disparity for parity purposes.
  • Whether the appellant's intercepted telephone conversation supported a lower assessment of his criminality than the original sentencing judge found.
  • Whether the 2010 re-sentencing miscarried because the Court had applied R v Way, a decision subsequently overruled by the High Court in Muldrock v The Queen.

Decision

On the parity ground, the Court found that the appellant did have a justifiable sense of grievance. The co-offender received a non-parole period of 8 years and 6 months for an offence covering two acts of supply plus related importation conduct, yet the appellant's non-parole period of 8 years was only marginally shorter. The Court concluded that the sentences did not adequately reflect the marked differences between the two offenders' respective offences and circumstances, including the fact that the co-offender was the organiser of the importation and had far greater involvement.

The Court rejected the Crown's submission that the concurrence of the co-offender's sentence with his importation sentence rendered the comparison meaningless. While the Court acknowledged the complexity introduced by that concurrency, it concluded that the effective outcome still failed to produce a sentence for the appellant properly calibrated to the differences in their culpability.

On the intercepted telephone conversation, the Court accepted that additional evidence supported a somewhat less serious assessment of the appellant's role than the original sentencing judge had drawn. The Court noted the appellant appeared to be surprised by what had occurred with the drugs, which was consistent with a more limited and reactive role.

The Court declined to examine whether the 2010 re-sentencing had miscarried due to the application of R v Way. Macfarlan JA observed that re-sentencing was already warranted on the parity ground, making it unnecessary to scrutinise the earlier judgment's use of the standard non-parole period. The appellant's head sentence was reduced by two years to 10 years imprisonment, with a non-parole period of 6 years and 8 months.

Orders Made

  • The appeal against sentence was allowed.
  • The order made by the Court of Criminal Appeal on 21 May 2010 was set aside.
  • The District Court orders of 10 July 2009 were also set aside.
  • The appellant was re-sentenced to a term of 10 years imprisonment comprising:
  • A non-parole period of 6 years and 8 months commencing 11 July 2008 and expiring 10 March 2015.
  • A balance of term of 3 years and 4 months commencing on expiry of the non-parole period and expiring 10 July 2018.
  • The appellant became eligible for release on parole on 11 March 2015.

Key Takeaways

  • The parity principle requires that sentences for co-offenders reflect real and meaningful differences in their respective culpability. Where they do not, a co-offender may establish a justifiable sense of grievance sufficient to warrant re-sentencing.
  • Concurrency of a co-offender's sentence with sentences for more serious offences does not automatically neutralise a parity argument. The Court of Criminal Appeal held that the effective outcomes must still be compared in light of the relative gravity of each offender's conduct.
  • A sentence imposed on a co-offender after the original sentence is a relevant consideration on re-sentencing, and later-acquired evidence bearing on the degree of the appellant's criminality may also be taken into account.
  • No error was established in relation to the Muldrock ground where the court was already re-sentencing on an independent ground. The Court declined to add to what it described as a multiplicity of decisions scrutinising earlier use of standard non-parole periods.
  • The standard non-parole period of 15 years for large commercial quantity supply of a prohibited drug remained a significant reference point, with the Court noting that no sentence lower than 10 years would adequately reflect the gravity of the appellant's offence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Appeal and Review) Act 2001 (NSW), s 79(1)(b)
- Criminal Appeal Act 1912 (NSW)
- Criminal Code (Cth), ss 307.11(1), 400.4(1)

Cases:
- R v El Helou [2010] NSWCCA 111
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- Green v The Queen [2011] HCA 49; 244 CLR 462
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- Jones v The Queen (1993) 67 ALJR 376
- Balloey v The Queen [2014] NSWCCA 165
- Ayik v R [2013] NSWCCA 119
- Ngati v R [2013] NSWCCA 203
- Tu v R [2011] NSWCCA 31; 205 A Crim R 566
- Rees v R [2012] NSWCCA 47
- Tran v The Queen [2006] NSWCCA 266
- R v Freeman [2005] NSWCCA 460