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Court of Criminal Appeal 9 November 2016

Dunshea v R

[2016] NSWCCA 244

DrugsFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL MATTERS ON FORM 1 SENTENCES SUBSEQUENTLY PASSED ON CO OFFENDERS PARITY

Citation: Dunshea v R [2016] NSWCCA 244
Court: Court of Criminal Appeal, NSW
Date: 9 November 2016
Judge(s): Beazley P, Garling J, Hidden AJ

Background

The applicant pleaded guilty in the District Court to two charges of knowingly taking part in the supply of a large commercial quantity of prohibited drugs: "nexus" and ecstasy (MDA). Both offences under s 25(2) of the Drug Misuse and Trafficking Act 1985 carry a maximum of life imprisonment and a standard non-parole period of 15 years. The sentencing judge also took into account, on a Form 1, offences of deemed supply of methylamphetamine and possession of an unlicensed pistol.

The applicant was not a principal in the operation. He acted as a warehouseman and debt collector for the principal, David Boulghourjian, and stored drugs (and a firearm) at his home. Police located over 800 grams of nexus and over 2,500 grams of ecstasy during a search warrant executed in May 2012.

The District Court imposed an aggregate sentence of 12 years imprisonment with a non-parole period of 8 years. The applicant subsequently sought leave to appeal, pointing to two errors: the sentencing judge's failure to address his remorse, and unjustified disparity with sentences later imposed on two co-offenders by a different District Court judge.

  • Whether the sentencing judge erred by failing to consider or take into account the applicant's remorse, as required by s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999
  • Whether sentences subsequently imposed on two co-offenders gave rise to a justifiable sense of grievance on the applicant's part, establishing an impermissible parity disparity

Decision

On remorse: The sentencing judge allowed a 25% discount for the applicant's guilty pleas but made no reference to remorse in his remarks on sentence, despite substantial evidence of it. That evidence included a personal letter from the applicant, a psychological report, and multiple character references attesting to genuine contrition. Hidden AJ held that this evidence clearly entitled the applicant to have his remorse taken into account under s 21A(3)(i). Garling J, however, was not persuaded that the sentencing judge had actually failed to have regard to the remorse evidence and would not have upheld this ground alone.

On parity: The co-offenders, Boulghourjian (the admitted principal) and Ghasemi (a downstream supplier), were sentenced by a different judge after the applicant. Boulghourjian received an aggregate of 10 years and Ghasemi received 8 years, both on an undiscounted basis. The applicant's discounted aggregate of 12 years was 2 years longer than Boulghourjian's undiscounted sentence and 4 years longer than Ghasemi's. Hidden AJ found this disparity striking, particularly given that the applicant had pleaded guilty, expressed genuine remorse, and played a lesser role than the principal. All three judges agreed the parity ground was made out.

On resentencing: Hidden AJ accepted that the applicant's role, while more active than Ghasemi's, was still clearly subordinate to Boulghourjian's. Taking into account the additional drug quantities and Form 1 matters, but also the applicant's lesser role, early pleas, remorse, and rehabilitation prospects, the Court reduced the aggregate sentence substantially.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence passed in the District Court quashed
  • Applicant resentenced to an aggregate of 9 years imprisonment, comprising a non-parole period of 6 years and a balance of term of 3 years, commencing 5 July 2012
  • Indicative sentence for the nexus offence (including Form 1 matters): 8 years with a non-parole period of 5 years
  • Indicative sentence for the ecstasy offence: 6 years with a non-parole period of 4 years

Key Takeaways

  • The Court of Criminal Appeal confirmed that clear and substantial remorse evidence, supported by a personal letter, psychological report, and multiple character references, must be addressed under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999; silence in a judge's remarks does not necessarily establish error, but the omission was a significant factor here.
  • Parity operates even where co-offenders are sentenced by different judges at different times: the comparison is between the sentences as structured, and a discounted sentence for the applicant that exceeds the undiscounted sentences of co-offenders warrants close scrutiny.
  • Where a principal in a drug supply enterprise receives a lower sentence than a subordinate participant, the disparity calls for explanation; absent a compelling justification, it produces a justifiable sense of grievance in the subordinate.
  • A lesser role in a drug distribution hierarchy, combined with early pleas of guilty, genuine remorse, and good rehabilitation prospects, can significantly reduce an aggregate sentence even where large commercial quantities of multiple drugs are involved.
  • Sufficient evidence of an unjustified sentencing disparity will lead an appellate court to quash and re-exercise the sentencing discretion entirely, rather than make minor adjustments to the original structure.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i)

Cases:
- Church v R [2012] NSWCCA 149
- Rees v R [2012] NSWCCA 47
- Stojanovski v R [2013] NSWCCA 334