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Court of Criminal Appeal 2 December 2016

Prelipceanu v R

[2016] NSWCCA 280

Drugs
CRIMINAL LAW SENTENCE APPEAL SERIOUS DRUG OFFENCES OFFENDER

Citation: Prelipceanu v R [2016] NSWCCA 280
Court: Court of Criminal Appeal, New South Wales
Date: 2 December 2016
Judge(s): Hoeben CJ at CL, Campbell J, Button J

Background

The appellant was sentenced in the District Court in September 2013 after pleading guilty to two serious drug offences: knowingly taking part in the supply of a commercial quantity of heroin (336.4 grams, count 1) and knowingly taking part in the supply of a large commercial quantity of heroin (1049.8 grams, count 2). Two additional supply offences were taken into account on a Form 1. The sentencing judge found the appellant played a somewhat subordinate role to his co-offender but was nevertheless operating at a wholesale level, fulfilling a vital function in the drug supply chain.

The appellant received an aggregate head sentence of 9 years and 6 months imprisonment with a non-parole period of 6 years and 6 months. His co-offender was sentenced separately by a different District Court judge in September 2015, two years later, and also received an aggregate sentence encompassing two additional serious drug offences not faced by the appellant.

The appellant sought leave to appeal out of time on a single ground: that the indicative sentences applied to the co-offender gave rise to a justifiable sense of grievance on his part, the classic test for a parity ground of appeal.

  • Whether the indicative starting points used in sentencing the co-offender, when compared with those used for the appellant, produced an unjustifiable disparity amounting to a justifiable sense of grievance.
  • Whether differences in the two judges' assessments of the relative culpability of the appellant and the co-offender affected the parity analysis.

Decision

Button J (with whom Hoeben CJ at CL and Campbell J agreed) undertook a detailed comparative analysis of the indicative sentences imposed on both offenders. For count 1 (commercial quantity), the appellant's sentencing judge adopted a starting point of 8 years, reduced to 6 years after a 25% plea discount. For count 2 (large commercial quantity), the starting point was 10 years, reduced to 7 years and 6 months.

The court acknowledged that the co-offender received lower starting points for the overlapping offences. However, Button J identified several factors that undermined the parity argument. The co-offender's indicative sentences operated with a degree of implicit concurrency and accumulation across a larger group of offences, and the aggregate sentence ultimately imposed on him incorporated two additional serious drug charges not applicable to the appellant.

A further complication arose from the different approaches taken by the two sentencing judges to relative culpability. Judge Huggett, sentencing the appellant, found his criminality was less than that of the co-offender. Judge Townsden, sentencing the co-offender two years later, treated their objective criminality as equal. Judge Townsden did not therefore treat the co-offender's role as worse than the appellant's, which would have been necessary to reinforce the appellant's parity claim. The court also noted that parity analysis must accommodate differences in evaluative judgment between different sentencing judges, and permit a degree of flexibility in outcomes.

The court concluded that the divergence in starting points did not give rise to a justifiable sense of grievance when the aggregate sentences actually imposed on both offenders were considered in full context. The ground was not made out and no interference with the aggregate sentence was warranted.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A parity argument grounded in differences in indicative starting points must ultimately be assessed against the aggregate sentences actually imposed, not the component starting points in isolation.
  • Where two different sentencing judges assess the relative culpability of co-offenders differently, that divergence itself complicates any parity analysis, particularly where the later judge does not adopt the earlier judge's finding that one offender was more culpable than the other.
  • Parity analysis, as confirmed by the Court of Criminal Appeal, must accommodate a degree of flexibility and variation in evaluative judgment between sentencing judges.
  • Form 1 offences of substantial weight, such as possession of 118.6 grams of heroin for supply, are treated as genuine contributors to overall criminality and factor into parity comparisons.
  • In dismissing the appeal, the court applied the established principle from Green v The Queen (2011) 244 CLR 462 that a justifiable sense of grievance is the threshold for parity claims, and found that threshold was not met on the facts.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33(2), 33(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 54

Cases:
- Baias v R [2016] NSWCCA 269
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49