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Court of Criminal Appeal 19 December 2014

Lay v R

[2014] NSWCCA 310

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE GUILTY PLEA PARITY

Citation: Lay v R [2014] NSWCCA 310
Court: NSW Court of Criminal Appeal
Date: 19 December 2014
Judge(s): Hoeben CJ at CL, Fullerton J (principal judgment), Hamill J

Background

The appellant pleaded guilty in the District Court to attempting to possess a commercial quantity of heroin (4.8 kilograms) as a border controlled drug that had been unlawfully imported, contrary to ss 11.1 and 307.5(1) of the Criminal Code (Cth). The offence carries a maximum penalty of life imprisonment. After a 25 per cent guilty plea discount, the appellant was sentenced to 13 years imprisonment with a non-parole period of 8 years and 6 months.

The offence arose from a sophisticated drug importation scheme using a front business ("Best at Home") to import multiple shipping containers from Bangkok, with the significant consignment concealed inside homewares. Two co-offenders, the appellant's cousin Helio Lay and an associate named Lam, were separately sentenced for their roles in the broader enterprise, which involved far larger quantities of both heroin and methamphetamine.

The appellant sought leave to appeal against his sentence on two grounds: first, that the sentencing judge erred in finding his involvement commenced from at least 24 July 2012; and second, that he had a justifiable sense of grievance arising from the sentences imposed on his two co-offenders.

  • Whether the sentencing judge erred in fixing the commencement of the appellant's criminal involvement at 24 July 2012, given the telephone records and agreed facts.
  • Whether the sentences imposed on the co-offenders gave rise to a justifiable sense of grievance under the parity principle, entitling the appellant to a reduction in his sentence.

Decision

Ground 1: Commencement of Involvement

The Court of Criminal Appeal rejected the first ground. The sentencing judge's finding that the appellant's involvement commenced by 24 July 2012 was supported by call charge records showing telephone contact between the appellant and Helio Lay on both 21 July and 24 July 2012. The Court found no error in the sentencing judge's factual conclusions drawn from that evidence.

Ground 2: Parity

The Court also rejected the parity ground. The parity principle requires that co-offenders be sentenced consistently unless there are relevant differences justifying a disparity. Here, the Court identified a range of significant distinguishing factors between the appellant and his co-offenders.

Helio Lay and Lam were each sentenced for involvement in a much larger drug enterprise, encompassing vastly greater quantities of both heroin and methamphetamine. Helio Lay faced an additional trafficking charge and received a partially accumulated sentence; Lam's charges involved quantities of heroin and methamphetamine approximately 35 to 45 times greater by weight than those attributed to the appellant. Both co-offenders also had prior good character with no criminal history, a factor which favourably distinguished their subjective circumstances from the appellant's.

The Court held that these differences in the scale of the offending, the roles occupied within the drug hierarchy, and the subjective circumstances of each offender provided more than sufficient explanation for the sentencing outcomes. The application of the totality principle to the accumulated sentences of the co-offenders did not alter that conclusion.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the parity principle does not operate in isolation from the overall circumstances of each co-offender: meaningful differences in the scale of offending, role within a criminal enterprise, and subjective characteristics can fully justify disparate sentences even where co-offenders are charged under the same statutory provisions.
  • A sentencing judge is entitled to draw factual inferences about the commencement of a defendant's criminal involvement from telephone call charge records, provided that inference is reasonably open on the agreed facts.
  • Where co-offenders face multiple charges involving significantly larger drug quantities, the operation of the totality principle in structuring their sentences does not create a basis for a parity grievance by a co-offender sentenced on a lesser charge.
  • The parity principle is concerned with equal justice, but equal justice requires attention to what is relevantly similar and relevantly different between offenders, not a mechanical comparison of head sentences.
  • Attempting to possess a commercial quantity of a border controlled drug under ss 11.1 and 307.5(1) of the Criminal Code (Cth) carries a maximum penalty of life imprisonment, with the commercial quantity threshold for heroin set at 1.5 kilograms.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 11.1, 307.5(1)
- Customs Act 1901 (Cth), s 233B

Cases
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (parity principle)
- House v The King [1936] HCA 40; 55 CLR 499 (appellate review of sentence)
- R v De Simoni [1981] HCA 31; 147 CLR 383
- Kentwell v R [2014] HCA 37; 313 ALR 451
- Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
- Aoun v R [2011] NSWCCA 284
- Gill v R [2010] NSWCCA 236