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Court of Criminal Appeal 19 December 2014

Grover v R; Grover v R

[2014] NSWCCA 315

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCES PARITY PRINCIPLES OF TOTALITY

Citation: Grover v R; Grover v R [2014] NSWCCA 315
Court: NSW Court of Criminal Appeal
Date: 19 December 2014
Judges: Hoeben CJ at CL, Fullerton J (principal judgment), R A Hulme J

Background

Two co-offenders, brothers, pleaded guilty in the District Court to multiple drug offences under the Drug Misuse and Trafficking Act 1985 (NSW). The first offence, charged on each indictment, involved possession of pseudoephedrine in the form of cold and flu tablets purchased from pharmacies, with the intention that the active ingredient be extracted by another person for use in manufacturing methylamphetamine. On some occasions the tablets were purchased using false New South Wales driver's licences bearing the applicants' photographs under false names.

Whilst both men were on bail for the possession offences, police obtained a telephone intercept warrant and monitored their communications. This surveillance revealed their involvement in three separate supplies of approximately 24 kilograms each of pseudoephedrine, in the form of cold and flu tablets stolen from a pharmaceutical manufacturer, transported from Sydney to Brisbane to a cousin. Each consignment was sold for $100,000. The three supply offences were committed between May and August 2011.

At sentencing, the District Court imposed total effective sentences of 17 years (non-parole period of 11 years) for one applicant and 16 years and 6 months (non-parole period of 10 years and 6 months) for the other. Both applicants sought leave to appeal against the sentences imposed on the three supply counts.

  • Whether the sentencing judge erred in assessing the objective seriousness of the supply offences as "high" and above the mid-range
  • Whether the sentences on the supply counts were individually and in aggregate manifestly excessive
  • Whether one applicant had a justifiable sense of grievance arising from the disparity between his sentence and that of his co-offender (the parity ground)
  • Whether the sentencing judge failed to apply the totality principle when structuring the cumulative sentences

Decision

The Court of Criminal Appeal granted leave to appeal and allowed both appeals. Fullerton J (with Hoeben CJ at CL and R A Hulme J agreeing) found that the sentencing judge had erred in placing the supply offences above the mid-range of objective seriousness. While the offending was serious, the Court considered that the offences should have been assessed as falling within the mid-range, having regard to the nature of the applicants' roles and other relevant circumstances.

The Court found that the original sentences on the supply counts were manifestly excessive, applying the well-established principle from House v The King (1936) that appellate courts will intervene where a sentencing error is demonstrated, whether by specific error or by a sentence so disproportionate as to imply error. The sentences of 14 years and 13 years and 6 months respectively on each supply count were replaced with sentences of 9 years and 6 months and 9 years respectively.

On the parity ground raised by one applicant, the Court's resentencing of both applicants rendered the issue largely moot, as the revised sentences maintained an appropriate differential reflecting their different circumstances and culpability.

The Court also considered the totality principle, which requires that the aggregate of accumulated sentences not be crushing or disproportionate to the overall criminality. The restructured sentences addressed this concern, producing more proportionate total effective terms.

Orders Made

Daniel Grover:
- Leave to appeal granted; appeal allowed
- Sentence on the possession count confirmed
- Sentences on each of the three supply counts quashed and replaced with 9 years and 6 months imprisonment with a non-parole period of 5 years on each count, with non-parole periods commencing on 3 August 2012, 3 August 2013 and 3 August 2014 respectively
- Eligible for release to supervised parole on 2 August 2019

Brian Grover:
- Leave to appeal granted; appeal allowed
- Sentence on the possession count confirmed
- Sentences on each of the three supply counts quashed and replaced with 9 years imprisonment with a non-parole period of 4 years and 6 months on each count, with non-parole periods commencing on 3 August 2012, 3 August 2013 and 3 August 2014 respectively
- Eligible for release to supervised parole on 2 February 2019

Key Takeaways

  • Placing supply offences above the mid-range of objective seriousness requires careful justification; the Court of Criminal Appeal found the original assessment in this case was not supported by the facts as properly characterised.
  • Manifest excess in sentence can be established either by identifying a specific error in the sentencing exercise or by demonstrating that the sentence is so disproportionate to the gravity of the offending as to imply error, consistent with House v The King.
  • The totality principle requires that accumulated sentences, taken together, not be crushing or disproportionate to the offender's overall criminality; the original aggregate terms were found not to satisfy this requirement.
  • A justifiable sense of grievance on parity grounds may be overtaken where the court resentences both co-offenders and addresses the differential directly through revised individual sentences.
  • Committing serious drug supply offences while on bail for related offending remains a significant aggravating feature, reflected in the resentenced terms even after the appeal succeeded.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24A(1)(a), 24A(3), 25(2)

Cases:
- Barbaro v R; Zirilli v R [2014] HCA 2; 305 ALR 323
- DS v R [2014] NSWCCA 267
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- House v The King [1936] HCA 40; 55 CLR 499
- Ibrahim Jidah v R [2014] NSWCCA 269
- Kaminic v R [2014] NSWCCA 116
- Pham v R [2010] NSWCCA 208
- R v Cousins [2002] NSWCCA 340; 132 A Crim R 444
- R v El Helou [2010] NSWCCA 111
- R v Jalalaty [2010] NSWSC 1561
- R v Nguyen [2006] NSWCCA 369; 166 A Crim R 124
- R v Phan & Ors [2009] NSWDC 181
- R v Standen [2011] NSWSC 1422
- Tran [2014] NSWCCA 32
- Wilson v R [2014] NSWCCA 266
- Yousef Jidah [2014] NSWCCA 270