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Court of Criminal Appeal 29 May 2015

Whitby v R

[2015] NSWCCA 124

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER MANIFESTLY EXCESSIVE PARITY DISCRETIONARY NATURE OF SENTENCING APPEAL DISMISSED

Citation: Whitby v R [2015] NSWCCA 124
Court: NSW Court of Criminal Appeal
Date: 29 May 2015
Judge(s): Macfarlan JA, Johnson J, RS Hulme AJ (RS Hulme AJ delivered the leading judgment; the others agreed)

Background

The applicant was sentenced in the District Court in August 2013 for three drug supply offences committed in 2011 and 2012. The offences involved supplying a large commercial quantity of ecstasy (over 1.18 kg), a commercial quantity of methylamphetamine (approximately 808 g), and an indictable quantity of methorphan (72.1 g). The applicant operated as a middleman, obtaining drugs from upstream suppliers and passing them on, including to an undercover police operative involved in a controlled operation.

At sentence, the District Court accepted the applicant had very strong subjective features: he was young (born 1991), had no prior criminal record, pleaded guilty at the earliest opportunity (attracting a 25% discount), was genuinely remorseful, and had the strong support of his family. His offending was linked to substance addictions and an immature, hedonistic lifestyle. The sentencing judge found that the undercover officer was a driving force in inducing the larger supply quantities, but that the applicant was nonetheless a willing participant acting in his own financial interest.

The effective sentence imposed was eight years' imprisonment, with a non-parole period of four years and nine months. The applicant sought leave to appeal, arguing the sentence was manifestly excessive and gave rise to a legitimate sense of grievance when compared with sentences imposed on his co-offenders and upstream suppliers.

  • Whether the effective sentence of eight years (non-parole period of four years and nine months) was manifestly excessive having regard to comparable decisions
  • Whether the sentences imposed created an unjustified or "marked" disparity when compared with sentences received by the applicant's co-offenders and upstream suppliers, giving rise to a legitimate sense of grievance

Decision

Ground 1: Manifest excess

The applicant relied primarily on two earlier decisions as comparators. The Court of Criminal Appeal examined those cases carefully but found they did not establish that the sentence here was manifestly excessive. The sentencing judge had himself considered those cases and noted that the objective seriousness in one of them was significantly higher than in the present matter. RS Hulme AJ concluded that, taking into account the total quantity of drugs involved across all three offences, the applicant's role, and all relevant subjective factors, the sentence was within the proper range. The first ground was dismissed.

Ground 2: Parity

The applicant argued his sentence was disproportionately harsh compared with sentences imposed on two co-offenders: an upstream supplier (Dodd) and another co-offender (Colakoglu). RS Hulme AJ analysed the respective roles, quantities, and subjective circumstances of each offender. He noted that the applicant's first offence involved a quantity approximately 25% greater than Dodd's most serious offence, and that the total quantity across the applicant's charges (approximately 1,990 g across multiple drugs) exceeded Dodd's total (approximately 1,288 g). These factors supported a higher sentence for the applicant rather than a lower one.

The Court reiterated that sentencing is a discretionary exercise and that appellate intervention on parity grounds requires a "marked" or "clearly unjustifiable" disparity, not merely a difference that other minds might have weighed differently. The sentencing judge had been conscious of the co-offenders' roles and similarities when imposing sentence. No such marked disparity was established, and the second ground also failed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Parity challenges require more than a demonstrated difference in sentences between co-offenders; the disparity must be "marked" or "clearly unjustifiable" before an appellate court will intervene.
  • In dismissing both grounds, the Court of Criminal Appeal reinforced that sentencing is a discretionary exercise in which different minds may weigh factors differently, and perfect consistency between co-offenders is not the standard.
  • Where an applicant's total drug quantities exceed those of a co-offender relied upon for parity purposes, that disparity may itself justify the higher sentence rather than support a reduction.
  • Strong subjective features, including youth, absence of prior criminal history, early guilty plea, genuine remorse, and family support, did not render a substantial sentence manifestly excessive given the large commercial quantities of drugs involved.
  • Controlled operations and police inducement may reduce an offender's moral culpability to some degree, but a sentencing court may still find the offender a willing participant acting in their own financial interest, limiting the weight given to that factor.

Legislation and Cases Referenced

Cases cited:
- Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274
- Green and Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Parris v R [2013] NSWCCA 5
- R v Ehrlich [2012] NSWCCA 38; 219 A Crim R 415
- R v Lipton [2012] NSWDC 201
- R v Mahmud [2010] NSWCCA 219
- R v Sciberas [2006] NSWCCA 268; 165 A Crim R 532
- Rees v R [2012] NSWCCA 47

Legislation: No specific legislation was identified in the provided text, though the offences and standard non-parole periods referred to are consistent with provisions under the Drug Misuse and Trafficking Act 1985 (NSW).