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Court of Criminal Appeal 17 October 2014

Baquiran v R

[2014] NSWCCA 221

Drugs
CRIMINAL LAW SENTENCE PARITY OFFENDERS OFFENDERS

Citation: Baquiran v R [2014] NSWCCA 221
Court: Court of Criminal Appeal, New South Wales
Date: 17 October 2014
Judges: Macfarlan JA at [1]; Adamson J at [66]; Bellew J at [67]

Background

The applicant was a member of a methylamphetamine supply syndicate that operated out of a business premises he owned and ran. The syndicate sourced drugs from an associated manufacturing operation. Several other individuals participated in the syndicate, including a business manager, a negotiator, the applicant's girlfriend, and others involved in the manufacturing side.

In April 2013, the applicant was sentenced in the District Court to a total of 12 years imprisonment with an 8-year non-parole period, after pleading guilty to one count of supplying a large commercial quantity and one count of supplying a commercial quantity of methylamphetamine. The sentencing judge found that the applicant was the principal of the drug supply syndicate.

The applicant sought leave to appeal on four grounds. The central ground was parity: he argued that his sentence was disproportionately heavy compared to sentences received by co-offenders, some sentenced by the same judge and others by different judges.

  • Whether the applicant had a justifiable sense of grievance when his sentence was compared to those of his co-offenders, including co-offender De Vera, who received a shorter sentence.
  • Whether the sentencing judge was bound by factual findings made in the sentencing remarks for co-offenders.
  • Whether the sentencing judge erred in finding that the applicant was the principal of the drug supply syndicate.
  • Whether special circumstances were properly established to justify a longer parole period than the statutory ratio.

Decision

Parity and the principal finding. The Court accepted that the sentencing judge was entitled to reach his own factual conclusions about relative roles, and was not bound by findings made in sentencing remarks for co-offenders. However, the Court found that the sentencing judge did err in finding that the applicant was the principal of the entire syndicate. The evidence did not support treating the applicant as the organiser of both the supply and manufacturing arms of the operation. The manufacturing side was operated by others, including Lim and Huynh, who were not subordinate to the applicant. This error materially affected the applicant's sentence.

Comparison with De Vera. The co-offender De Vera had been found by his sentencing judge to be the "spokesman" for the group and was involved in directly negotiating drug sales with undercover police. De Vera received an effective sentence of 7 years with a 3 year 6 month non-parole period. The Court found that a significant differential between De Vera's sentence and the applicant's, without adequate justification, gave rise to a justified sense of grievance on the applicant's part.

Special circumstances. The Court examined the sentencing judge's finding of special circumstances, which had extended the parole period beyond the standard one-third ratio. The Court expressed serious reservations about that finding. Factors cited by the sentencing judge, including the absence of prior criminal history and being a first-time prisoner, provided little support. Other factors, including the lack of family support and the absence of any indication the applicant would sever ties with criminal associates, weighed against the finding. However, because the Crown had not challenged the special circumstances finding before either the sentencing judge or the Court of Criminal Appeal, the Court declined to disturb it on the applicant's own appeal, as doing so would operate unfairly to him.

Re-sentencing. The Court allowed the appeal, quashed the original sentences, and re-sentenced the applicant to a total of 10 years imprisonment with a non-parole period of 6 years and 8 months. This reduction reflected the error in characterising the applicant as the principal of the entire operation.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentences imposed by the District Court on 5 April 2013 quashed.
  • Count 1: 10 years imprisonment, with a non-parole period of 6 years and 8 months commencing 28 January 2010 and expiring 27 September 2016, and an additional term of 3 years and 4 months expiring 27 January 2020 (Form 1 matters taken into account).
  • Count 2: 5 years and 6 months imprisonment, with a non-parole period of 3 years and 8 months commencing 28 January 2013 and expiring 27 September 2016, and an additional term of 1 year and 10 months expiring 27 July 2018.
  • Total effective sentence: 10 years, non-parole period of 6 years and 8 months, commencing 28 January 2010.
  • Applicant eligible for release on parole on 28 September 2016.

Key Takeaways

  • A sentencing judge is not bound by factual findings made by a different judge when sentencing a co-offender, but those findings may still be relevant context when assessing relative culpability for parity purposes.
  • Where a sentencing judge characterises an offender's role more broadly than the evidence supports, that error can constitute a material sentencing error warranting appellate intervention.
  • The parity principle applies not only to co-offenders sentenced by the same judge but also to those sentenced by different judges, provided a significant and unexplained disparity gives rise to a justifiable sense of grievance.
  • Under the established test for special circumstances, there must be significant positive indicators that a longer parole period will make rehabilitation likely, not merely possible. Factors such as absence of prior convictions or being a first-time prisoner carry limited weight on their own.
  • The Court of Criminal Appeal reiterated that findings of special circumstances should not be made as a matter of general leniency, and that circumstances not genuinely qualifying as "special" should not be elevated into that category.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 93T(1)

Cases
- Collier v R [2012] NSWCCA 213
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Green v The Queen [2011] HCA 49; 244 CLR 462
- Ith v R [2013] NSWCCA 280
- Langbein v R [2008] NSWCCA 38; 181 A Crim R 378
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Chandler [2012] NSWCCA 135
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Tisalandis [1982] 2 NSWLR 430
- R v Tuuta [2014] NSWCCA 40