AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 5 August 2015

Nguyen, Kathy v R

[2015] NSWCCA 209

DrugsFirearms & weapons
CRIMINAL LAW PRINCIPLE OF PARITY OFFENDER OFFENDER FIRST GROUND DISMISSED SECOND GROUND OF APPEAL ALLOWED

Citation: Nguyen, Kathy v R [2015] NSWCCA 209
Court: Court of Criminal Appeal, New South Wales
Date: 5 August 2015
Judge(s): Hoeben CJ at CL, Hall J, McCallum J

Background

The applicant pleaded guilty in the District Court to three drug supply offences under the Drugs Misuse and Trafficking Act 1985, involving the commercial supply of methylamphetamine on two occasions and the supply of pseudoephedrine. The offending centred on agreements she reached with a co-offender to supply large quantities of drugs for transport from Sydney to Perth. On 6 September 2013, the District Court imposed an aggregate sentence of 11 years and 4 months imprisonment with a non-parole period of 8 years.

The applicant's co-offender had been sentenced separately, several months earlier, by the same judge. That co-offender had pleaded guilty to related drug supply offences and additional firearm possession charges, and had provided significant assistance to authorities.

The applicant sought leave to appeal against her sentence on two grounds, both framed around the parity principle. That principle holds that co-offenders should not receive sentences so different as to give rise to a justifiable sense of grievance, absent good reason for the disparity.

  • Whether the starting point used for the applicant's sentence was too high relative to her co-offender's sentence, given the co-offender faced additional serious charges including firearm offences and Form 1 drug matters.
  • Whether the applicant's guilty plea discount of 12.5% gave rise to a justifiable sense of grievance when compared with the co-offender's discount of 17.5%, particularly where the sentencing judge offered no explanation for the difference.

Decision

On the first ground, the Court rejected the argument that the starting points were improperly calibrated. The co-offender faced different charges, including firearm possession offences and additional drug supply matters dealt with on a Form 1. Because the offences sentenced were not identical, direct comparison of starting points was difficult, and the Court found no error in the sentencing judge's determination of those starting points.

On the second ground, the Court upheld the appeal. The co-offender had received a 17.5% utilitarian discount for his guilty plea, while the applicant received only 12.5%. The sentencing judge provided no reasons for this difference, and no evident justification appeared from the material. The Court held that, in the absence of any explanation, the disparity in discounts gave rise to a justifiable sense of grievance engaging the parity principle.

The Court noted that a range of discounts for the utilitarian value of a guilty plea does not create an entitlement to any particular discount. However, where two co-offenders receive materially different discounts without explanation, the parity principle can still operate. Applying a 17.5% discount to the sentencing judge's starting point of 13 years produced a sentence of 10 years and 9 months.

Orders Made

  • Leave to appeal granted.
  • The aggregate sentence imposed by the Sydney District Court on 6 September 2013 was set aside.
  • The applicant was resentenced to an aggregate term of 10 years and 9 months imprisonment, comprising a non-parole period of 7 years and 7 months (commencing 19 April 2012, expiring 18 November 2019) and a parole period of 3 years and 2 months (commencing 19 November 2019, expiring 18 January 2023).
  • The earliest date of parole eligibility was set at 19 November 2019.

Key Takeaways

  • The parity principle applies not only to the overall sentences imposed on co-offenders, but also to the components of those sentences, including guilty plea discounts, where the disparity is unexplained and unjustified.
  • A sentencing judge's failure to provide any reasons for giving a co-offender a materially higher guilty plea discount can itself found a successful parity appeal.
  • No error was established in the sentencing judge's comparison of starting points, because the co-offender faced substantively different charges, including firearms offences and Form 1 matters, making direct comparison of starting points inappropriate.
  • Under the principle affirmed in R v Thomson; R v Houlton, the range of discounts for guilty pleas creates no presumption or entitlement to a particular figure, but this does not insulate against a parity challenge where an unexplained and unjustifiable difference exists between co-offenders.
  • In resentencing, the Court of Criminal Appeal applied the corrected discount to the original starting point identified by the sentencing judge, rounding the resulting figure to ensure the discount did not exceed 17.5%.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 53A (aggregate sentences)
- Drugs Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25(2)

Cases
- R v Thomson; R v Houlton [2000] NSWCCA 309, 49 NSWLR 383
- Lowe v R (1984) 154 CLR 606
- Green v The Queen [2011] 244 CLR 462
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Tuvunivono v R [2013] NSWCCA 176
- Hallak v R [2014] NSWCCA 48
- R v Araya [2005] NSWCCA 283
- R v Newman [2004] NSWCCA 113
- R v Scott [2003] NSWCCA 286