AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
10
Court of Criminal Appeal 19 May 2017

Why v R

[2017] NSWCCA 101

Drugs
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE DRUG RELATED OFFENCES MANIFESTLY EXCESSIVE GROUND PRINCIPLE OF PARITY

Citation: Why v R [2017] NSWCCA 101
Court: Court of Criminal Appeal, NSW
Date: 19 May 2017
Judge(s): Hoeben CJ at CL, Walton J, R A Hulme J

Background

The appellant was a full member of an outlaw motorcycle gang based near Coffs Harbour. A police investigation using telephone intercepts, listening devices, and undercover operatives led to charges against eleven individuals, including the appellant. He pleaded guilty to two counts: supplying cocaine (Count 1) and supplying not less than a commercial quantity of methylamphetamine (Count 2). A further offence of recruiting his adult son to assist in drug supply was taken into account on a Form 1.

In October 2015, the District Court imposed an aggregate sentence of 8 years and 9 months imprisonment with a non-parole period of 5 years and 6 months. The sentencing judge noted that if separate sentences had been imposed, Count 1 would have attracted 3 years and Count 2 would have attracted 8 years with a non-parole period of 5 years and 6 months. A 10 per cent discount was applied for the utilitarian value of the guilty plea.

The appellant applied for leave to appeal against sentence, with the extension of time not opposed by the Crown. He raised two grounds: that his sentence left him with a justifiable sense of grievance compared to a co-offender, and that the sentence was manifestly excessive.

  • Whether the appellant was left with a justifiable sense of grievance (the parity principle) by reference to the sentence imposed on a co-offender, Mr Shipman
  • Whether the aggregate sentence of 8 years and 9 months was manifestly excessive in all the circumstances

Decision

On the parity ground, the Court found that the parity principle was not engaged in a way that supported the appeal. Although the appellant received a longer sentence than Mr Shipman, the Court identified material differences between the two offenders. The appellant occupied a higher position in the drug supply network and had supplied methylamphetamine to Mr Shipman himself. The Court found that any difference in sentence was explicable by those differences in criminality and subjective circumstances, and that no justifiable sense of grievance arose.

On the manifest excess ground, the Court granted leave to appeal but dismissed the appeal. The Court found the aggregate sentence was not unreasonable or plainly unjust. The applicant's offending involved supplying drugs commercially above the threshold quantity to multiple individuals, recruiting his son into criminal activity, and operating as a senior figure within an organised criminal network. These factors supported the sentence imposed.

The Court also addressed the appellant's reliance on sentencing statistics from the Judicial Commission of New South Wales. Hulme J added a separate note emphasising the limitations of those statistics, particularly when applied to aggregate sentences. His Honour observed that enhancements have been made to the statistics database in recent years, including provision of aggregate and effective sentence data and hyperlinks to individual published judgments, but that counsel rarely appear to use these tools fully before relying on statistics in submissions.

Orders Made

  • The application for an extension of time made on 16 November 2016 is granted.
  • Leave to appeal on ground one is refused.
  • Leave to appeal on ground two is granted and the appeal is dismissed.

Key Takeaways

  • The parity principle does not automatically entitle a co-offender to a lesser sentence where material differences exist in the offenders' roles, criminal histories, and the nature of their offending conduct.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that an aggregate sentence reflecting multiple serious drug supply offences, committed by a senior participant in an organised network, was within the proper exercise of the sentencing discretion.
  • Sentencing statistics provided by the Judicial Commission have known limitations, particularly when applied to aggregate sentences, and those limitations affect the weight courts will place on statistical comparisons.
  • Hulme J reiterated that the Judicial Commission's "Explaining the Statistics" document is a necessary starting point for anyone relying on those statistics before any court, and that enhanced features of the database, including hyperlinks to individual judgments, are underutilised.
  • Recruiting a family member into criminal activity was treated as an aggravating feature taken into account via the Form 1 admitted offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 351A(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A(1), 10A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 32(1), 33(2)(a)
- Firearms Act 1996 (NSW), s 36(1)

Key Cases:
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
- Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
- Elias v R; Issa v R (2013) 248 CLR 483; [2013] HCA 31
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Knight v R [2015] NSWCCA 222
- Tweedie v R [2015] NSWCCA 71
- Thangavelautham v R [2016] NSWCCA 141
- Erazo v R [2016] NSWCCA 139