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14
Court of Criminal Appeal 24 February 2016

Huckstadt v R

[2016] NSWCCA 22

DrugsFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE DRUG OFFENCES POSSESSION OF PROHIBITED WEAPONS OFFENDERS PRINCIPLE OF PARITY

Citation: Huckstadt v R [2016] NSWCCA 22
Court: Court of Criminal Appeal, New South Wales
Date: 24 February 2016
Judges: Johnson J, Button J, Fagan J

Background

The applicant and his cousin (the co-offender) were sentenced together in the District Court at Bathurst in March 2014 after each pleaded guilty to three offences: supplying a prohibited drug on an ongoing basis, supplying a prohibited drug (amphetamine), and possessing a prohibited weapon (a taser). Additional charges were taken into account for each man by way of a Form 1.

The two cousins had operated a drug supply network in the Lithgow and Bathurst areas in late 2012 and early 2013. Police detected their activities using telephone intercepts and an undercover operative. Over several months, each man took turns acting as the principal supplier and as a driver for the other. When the co-offender effectively handed the business to the applicant in late November 2012, the applicant then conducted further drug transactions independently. Both men were arrested on 24 January 2013, and police found tasers, cannabis, and other prohibited items at each of their homes.

The sentencing judge found the objective criminality of each man to be approximately equivalent. The applicant received a higher aggregate sentence than the co-offender, and he sought leave to appeal on the sole ground that the disparity between the two sentences was erroneous.

  • Whether the difference in aggregate sentences imposed on the applicant and the co-offender constituted erroneous disparity under the parity principle
  • Whether the subjective circumstances of each offender provided sufficient justification for the sentencing judge to distinguish between them

Decision

Button J (with whom Johnson J and Fagan J agreed) granted leave to appeal but dismissed the appeal. The Court found that the sentencing judge was entitled to draw a distinction between the applicant and the co-offender, and that the resulting difference in sentences did not constitute erroneous disparity.

The Court identified two separate bases on which differentiation was available to the sentencing judge. The co-offender had more extensive prior criminal history, but also had significantly more favourable subjective circumstances, including strong evidence of rehabilitation. Conversely, the applicant's subjective circumstances were considerably less compelling, and those differences were sufficient to justify a higher sentence for him despite the equivalence in objective criminality.

The Court also addressed the method of comparing the two sentences. It cautioned against treating the exercise as one of minute dissection, particularly where sentencing judges use aggregate sentences or where totality principles affect the final figures in ways that are difficult to disentangle. The proper question was whether the ultimate distinction actually drawn in the sentences imposed was so sharp as to fall outside the sentencing judge's discretion. The Court found it was not, and concluded the applicant had no justifiable sense of grievance when objectively comparing the two outcomes.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle does not require identical sentences for co-offenders with equivalent objective criminality. Differences in subjective circumstances, such as rehabilitation prospects and personal history, can justify a higher sentence for one co-offender over another.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the correct question is whether the distinction between two sentences was so sharp as to fall outside the sentencing judge's legitimate discretion, not whether every component of each sentence can be reconciled arithmetically.
  • Comparing aggregate sentences requires caution. Attempting to "disentangle" indicative sentences and the operation of totality principles to produce a line-by-line comparison was described as an "arcane and inapposite" exercise.
  • Under the test in Lowe v R, a co-offender can only succeed on a parity ground by demonstrating a justifiable sense of grievance when objectively comparing the two sentences. Mere difference is insufficient.
  • Where a sentencing judge applies a utilitarian discount to aggregate head sentences rather than to indicative sentences, this may constitute a technical error, but the Court treated such an error as inconsequential where the overall sentencing outcome remained within the available discretion.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)
- Criminal Procedure Act 1986 (NSW), s 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Lowe v R [1984] HCA 46; (1984) 154 CLR 606