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Court of Criminal Appeal 16 April 2015

Saraya v Regina

[2015] NSWCCA 63

Drugs
CRIMINAL LAW SENTENCE PARITY PRINCIPLE

Citation: Saraya v Regina [2015] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 16 April 2015
Judges: Meagher JA; Fullerton J; Schmidt J

Background

The appellant had been convicted of six counts of supplying indictable quantities of cocaine, totalling 308 grams, between February and June 2011. He was on parole at the time and had his parole revoked on arrest. The sentencing judge imposed an aggregate sentence of 5 years and 3 months imprisonment with a non-parole period of 3 years and 6 months.

The appellant's three co-offenders, sentenced after him by a different judge, received sentences that the appellant argued were markedly lower despite involving more serious offending. The co-offenders had pleaded guilty to offences involving commercial and large commercial quantities of cocaine, with the most serious charges attracting maximum penalties of life imprisonment. Their sentences ranged from 4 years and 6 months to 7 years, 2 months and 12 days.

The appellant sought leave to appeal on the sole ground that the disparity between his sentence and those of his co-offenders gave rise to a justifiable sense of grievance and created the appearance that justice had not been done.

  • Whether the sentences imposed on the co-offenders, which involved objectively more serious offending, gave rise to unjustifiable disparity sufficient to enliven appellate discretion under the parity principle.
  • Whether, if unjustifiable disparity existed, the Court was obliged to exercise its discretion to reduce the appellant's sentence.
  • Whether the Court should reduce an otherwise adequate sentence to one that would be disproportionate to the criminality involved, or an affront to the proper administration of justice, in order to remedy disparity caused by manifestly inadequate co-offender sentences.

Decision

The Court accepted that the sentences imposed on the co-offenders were, in each case, manifestly inadequate given the gravity of their offending. Jamel had pleaded guilty to a commercial quantity offence involving over 12 supply occasions with a maximum penalty of 20 years and a standard non-parole period of 10 years, yet received 4 years and 6 months. Gehad and Toufic had each pleaded guilty to supplying a large commercial quantity of nearly 6 kilograms, carrying a maximum of life imprisonment and a standard non-parole period of 15 years, yet received sentences of 6 and 7 years respectively.

The Court confirmed that where a co-offender's sentence is manifestly inadequate, any sense of grievance experienced by the more severely sentenced offender cannot be regarded as legitimate or justifiable. In such circumstances, unjustifiable disparity does not arise in a way that should enliven the appellate discretion to intervene. The principle underlying parity is the avoidance of inconsistency that undermines public confidence in the administration of justice, and that principle cuts both ways.

Even if the disparity were taken to be unjustifiable, the Court held that the discretion to mitigate disparity would not be exercised here. Reducing the appellant's sentence to a level approaching those of the co-offenders would produce a sentence grossly disproportionate to the criminality involved and would itself constitute an affront to the proper administration of justice. The Court emphasised that the existence of an appellate discretion to reduce an otherwise adequate sentence does not create an obligation to do so.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A sense of grievance arising from disparity between an appellant's sentence and co-offenders' sentences is not justifiable where those co-offenders' sentences are themselves manifestly inadequate.
  • The parity principle is grounded in equal justice: it does not require reducing an appropriate sentence simply because co-offenders received sentences that were erroneously lenient.
  • Where co-offender sentences are manifestly inadequate, the appellate discretion to reduce a sentence for parity purposes will generally not be exercised if doing so would produce a sentence disproportionate to the objective and subjective criminality involved.
  • In dismissing the appeal, the Court of Criminal Appeal affirmed that upholding public confidence in the administration of justice may require refusing to apply the parity principle where its application would itself undermine that confidence.
  • A heavier sentence imposed on an offender who was sentenced first does not automatically generate an appealable disparity when subsequently sentenced co-offenders, despite more serious charges, receive lighter sentences from a different judge.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 33

Cases:
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- Jones v The Queen (1993) 67 ALJR 376
- R v Diamond (Court of Criminal Appeal (NSW), 18 February 1993, unrep)
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- Josefski v R [2010] NSWCCA 41; 217 A Crim R 183
- Youkhana v R [2011] NSWCCA 37
- R v Doan [2000] NSWCCA 317; 50 NSWLR 115
- R v Ismunandar and Siregar [2002] NSWCCA 477; 136 A Crim R 206
- R v Chen & Others [2002] NSWCCA 174; 130 A Crim R 300
- R v Bellorini and R v Ruiz [2000] NSWCCA 50
- Jimmy v The Queen [2010] NSWCCA 60; 77 NSWLR 540
- Nguyen v R [2007] NSWCCA 15
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Rexhaj (Court of Criminal Appeal (NSW), 29 February 1996, unrep)