AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 26 March 2015

Chehab v R

[2015] NSWCCA 44

DrugsTheft & property
APPEAL SENTENCING PARITY APPLICANT’S ROLE IN OFFENCE NO ERROR FOUND APPEAL DISMISSED APPEAL

Citation: Chehab v R [2015] NSWCCA 44
Court: NSW Court of Criminal Appeal
Date: 26 March 2015
Judges: Macfarlan JA, Simpson J, Schmidt J

Background

The applicant was sentenced in the District Court in November 2013 for two offences committed in May 2012. The first was supply of a prohibited drug (MDMA), for which the sentencing judge also took into account two further drug possession offences via a Form 1. The second was aggravated break and enter with intent to commit larceny, to which the applicant had pleaded guilty. Both offences were committed while the applicant was on conditional bail for unrelated matters.

For the drug offence, the sentencing judge imposed 3 years and 6 months imprisonment with a non-parole period of 2 years and 8 months. For the break and enter offence, a further 4-year term (non-parole period of 2 years) was imposed to commence two years into the drug sentence, producing partial accumulation. Two co-offenders had previously been sentenced by a different judge in the District Court, and the facts placed before each judge differed materially.

The applicant sought leave to appeal on two grounds: first, that the sentencing judge failed to properly apply parity principles when comparing his sentence to those of his co-offenders; and second, that the drug sentence was manifestly excessive, in part because he had argued that a portion of the MDMA was for personal use rather than supply.

  • Whether the sentencing judge erred in applying the parity principle when sentencing the applicant compared to his two co-offenders, who had been sentenced by a different judge on different agreed facts
  • Whether the drug sentence was manifestly excessive, including whether the sentencing judge should have distinguished between the quantity of MDMA held for supply and any portion held for personal use
  • Whether, given the applicant's status as a "user/supplier," the full 5.2 grams of MDMA was properly treated as subject to the deemed supply provisions under the Drug Misuse and Trafficking Act 1985 (NSW)

Decision

On the parity ground, the Court noted that the agreed facts presented to the two judges differed markedly. The facts before the co-offenders' sentencing judge described actual violence during the break and enter, while the facts before the applicant's sentencing judge did not. Simpson J found that the sentencing judge had given careful consideration to the parity question and had identified those differences. Given those divergent factual bases, no error in the parity assessment was established.

The Court also noted the additional mitigating features available to the co-offenders that were not available to the applicant. One co-offender received a 50 per cent sentence reduction for both his guilty plea and his cooperation with authorities under s 23 of the Crimes (Sentencing Procedure) Act. The other received a 25 per cent reduction for his guilty plea. The applicant, having been convicted after trial and having provided no assistance to authorities, was not entitled to either reduction. The differences in outcome were explicable on proper sentencing grounds.

On the deemed supply and manifest excess grounds, the Court rejected the submission that the applicant should have been sentenced only on the basis that 3 grams of the MDMA was intended for supply. The evidence, including electronic scales, resealable bags, aluminium foil, multiple mobile phones, and a significant sum of cash, supported the sentencing judge's finding that the applicant was a dealer "to a significant extent." The Court applied the principle from R v Pilley that where a drug is found in a quantity above the deemed supply threshold, the burden falls on the accused to establish on the balance of probabilities that some portion was not for supply. No evidence differentiated any part of the MDMA as intended solely for personal use.

The Court also dismissed the manifest excess argument, noting that drug quantity is one of many relevant sentencing considerations, consistent with the High Court's reasoning in Wong v The Queen. All relevant matters had been appropriately weighed by the sentencing judge, and the sentence did not reveal an error of the kind described in House v The King.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Where co-offenders are sentenced by different judges on materially different agreed facts, a sentencing court's departure from strict parity may be justified, and will not constitute error merely because outcomes differ.
  • Under s 29 of the Drug Misuse and Trafficking Act 1985 (NSW), where a quantity of drug exceeds the deemed supply threshold, the onus rests on the accused to prove on the balance of probabilities that any portion was intended for personal use rather than supply; evidence of general drug use is insufficient without more.
  • In dismissing the appeal on manifest excess, the Court of Criminal Appeal confirmed that drug quantity is a relevant but not determinative factor in sentencing, consistent with the High Court's guidance in Wong v The Queen.
  • Guilty pleas and cooperation with authorities under s 23 of the Crimes (Sentencing Procedure) Act can substantially reduce sentences, and courts are entitled to take the absence of those factors into account when assessing apparent disparities between co-offenders.
  • Offending committed while on conditional bail remains a statutory aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act, and its presence in the applicant's circumstances was properly treated as a consideration against him.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, s 21A(2)(j), s 23, s 44(2)
- Crimes Act 1900 (NSW), s 113(2)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1), s 29

Cases:
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Hillier v DPP (NSW) [2009] NSWCCA 312; 198 A Crim R 565
- House v The King [1936] HCA 40; 55 CLR 499
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Pilley (1991) 56 A Crim R 202
- R v Van Rysewyk [2008] NSWCCA 130
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Smith v R [2011] NSWCCA 163
- Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584