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6
Court of Criminal Appeal 20 February 2014

Morton v R

[2014] NSWCCA 8

Drugs
CRIMINAL LAW SENTENCE APPEAL PARITY DIFFERENCE IN ROLES OF OFFENDERS WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: Morton v R [2014] NSWCCA 8
Court: NSW Court of Criminal Appeal
Date: 20 February 2014
Judge(s): Hoeben CJ at CL (with Schmidt J and Barr AJ agreeing)

Background

The applicant was convicted on his own plea of guilty to one count of knowingly taking part in the supply of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The offending occurred between 20 and 26 June 2010 and involved the applicant facilitating the transport of 222.5 grams of cocaine (8 ounces, with purity between 51.5% and 56.5%) from Sydney to Queensland. A related offence involving a separate 140-gram supply was taken into account on a Form 1.

The applicant's role extended beyond simple courier work. Intercepted telephone calls showed he identified purchasers in Brisbane, negotiated prices, travelled to Queensland to collect payment, and used a mobile phone registered with false details. He received $2,000 for his involvement. His co-accused Mrowiec acted as the courier, while Bursach was the principal organiser.

In December 2012, the District Court sentenced the applicant to a total term of 4 years imprisonment, comprising a non-parole period of 2 years commencing 6 December 2012. The applicant sought leave to appeal that sentence on three grounds.

  • Whether the sentencing judge erred in assessing the discount for the guilty plea, specifically in finding that the utilitarian value of the plea was reduced because it was entered in the District Court after the matter had been listed for trial
  • Whether the sentencing judge erred by binding the applicant to concessions made by his counsel during the sentencing proceedings
  • Whether the sentencing judge misapplied parity principles, given the lower sentences imposed on co-offenders
  • Whether the sentence was manifestly excessive

Decision

Guilty plea discount: The sentencing judge applied a 15% discount, reduced from the standard range on the basis that the plea was entered in the District Court after the matter had been listed for trial, rather than at the earliest opportunity in the Local Court. The Court of Criminal Appeal examined the principles governing the assessment of utilitarian value. The relevant portion of the decision (drawn from the full judgment) considered whether protracted plea negotiations and the timing and circumstances of the plea were properly weighed. The Court found no appellable error in the sentencing judge's approach to the discount.

Concessions by counsel: The applicant argued he should not be bound by concessions made on his behalf at the sentencing hearing. The Court addressed the established principle that a party is ordinarily bound by the conduct of their case by counsel, subject to limited exceptions. The Court found no basis to depart from that principle on the facts.

Parity: The applicant pointed to the more lenient sentences imposed on his co-offenders and argued he had a justifiable sense of grievance. The Court rejected this submission. The sentencing judge had correctly identified that the applicant's role was materially greater than that of Mrowiec, who was a mere courier, and that the difference in sentences was justified by the difference in roles. No parity error was established.

Manifest excess: The Court held that to succeed on this ground, the applicant needed to establish the sentence was "unreasonable or plainly unjust" (citing Markarian v The Queen). The Court found that the sentencing judge correctly assessed the objective seriousness of the offending, having regard to the significant quantity of cocaine, its comparatively high purity, and the applicant's important facilitative role. Sentencing statistics were available but provided limited assistance, consistent with the High Court's observations in Wong v R and Hili v The Queen. The sentence was well within the available range, and no error in the exercise of discretion was identified.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A guilty plea entered in the District Court after the matter had been listed for trial may properly attract a reduced utilitarian discount compared with a plea entered at the earliest opportunity in the Local Court.
  • An applicant is ordinarily bound by concessions made by counsel during sentencing proceedings; the Court of Criminal Appeal confirmed no special circumstances arose here to displace that principle.
  • Parity between co-offenders does not arise where the offenders played materially different roles. A "justifiable sense of grievance" requires more than a bare difference in sentence outcomes.
  • In dismissing the manifest excess ground, the Court reaffirmed that sentencing statistics are a blunt indicator of sentencing trends and are of limited utility unless accompanied by analysis of the principles underlying those sentences.
  • The threshold for establishing manifest excess remains high: the sentence must be shown to be "unreasonable or plainly unjust", not merely at the higher end of an available range.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Loader v R; Dunn v R [2013] NSWCCA 215
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v AB [2011] NSWCCA 229
- R v Cardoso [2003] NSWCCA 15
- R v Robert Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Stambolis [2006] NSWCCA 56
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Tatana v R [2006] NSWCCA 398
- Wong v R [2001] HCA 64; 207 CLR 584
- Zreika v R [2012] NSWCCA 44