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14
Court of Criminal Appeal 23 June 2017

Taysavang v R; Lee v R

[2017] NSWCCA 146

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE OFFENCE COMMITTED BY TWO CO OFFENDERS PARITY PRINCIPLE WHERE ONE CO

Citation: Taysavang v R; Lee v R [2017] NSWCCA 146
Court: NSW Court of Criminal Appeal
Date: 23 June 2017
Judges: Simpson JA, McCallum J, Fagan J

Background

Two co-offenders, referred to here as Taysavang and Lee, each pleaded guilty to supplying 82.5 grams of methylamphetamine (an indictable quantity under the Drug Misuse and Trafficking Act 1985 (NSW)) following a controlled operation involving a police undercover operative. A third man, Khieopan, was also involved and sentenced jointly. The transaction occurred on 20 November 2014 in the Sydney CBD, where both applicants personally delivered drugs to the undercover operative in exchange for $19,500 in pre-recorded buy money.

At first instance, District Court Judge Traill sentenced Taysavang to 4 years and 6 months with a non-parole period of 3 years and 4 months, and Lee to 4 years and 6 months with a non-parole period of 2 years and 6 months. Both men sought leave to appeal against their sentences. Taysavang raised multiple grounds, while Lee's sole ground was that he had a justifiable sense of grievance arising from the sentence imposed on Taysavang.

The two applicants had meaningfully different subjective backgrounds. Taysavang had an extensive criminal history, a difficult childhood involving separation, war, and poverty in Laos, and a long struggle with drug addiction. Lee had a shorter and less serious record, and a documented history of depression and anxiety.

  • Whether the sentencing judge failed to determine, or give adequate reasons for, the quantity of drug attributed to Taysavang for sentencing purposes.
  • Whether Taysavang's moral culpability was low, given his role in the offence.
  • Whether the injury caused by the offence was "not substantial" under s 21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), because the drugs were intercepted upon arrest and never dispersed into the community.
  • Whether the principle from Bugmy v The Queen (2013) 249 CLR 571 applied to reduce Taysavang's moral culpability, given his deprived background.
  • Whether Taysavang's sentence was manifestly excessive.
  • Whether each applicant had a justifiable sense of grievance under the parity principle, in light of the other's sentence.

Decision

The Court of Criminal Appeal granted leave to appeal to both applicants and resentenced each of them.

On the question of whether the drugs' interception meant injury was "not substantial," the Court rejected that argument. The mitigating circumstance under s 21A(3)(a) was not established simply because police seized the drugs before they could be dispersed into the community. The offence of supply was complete upon the transaction, and the sentencing judge was not required to reduce the sentence on that basis.

Regarding the Bugmy principle, the Court accepted that Taysavang's background, including childhood separation, exposure to the violence of war, and years of deprivation, was a relevant mitigating factor. However, the Court distinguished the application of Bugmy to impulsive offending from its application to a planned, commercial drug transaction. The background remained relevant to assessing moral culpability, but its weight was reduced where the offending was calculated rather than spontaneous.

The Court found that Taysavang's original sentence was manifestly excessive. On resentencing, his overall sentence was reduced. Having found that Taysavang's sentence warranted reduction, the Court then considered parity afresh. Because Lee was entitled to a lesser sentence than Taysavang given their differing subjective circumstances, and because the appropriate starting point for Taysavang had itself been revised downward, the Court also reduced Lee's sentence. The Court noted that the District Court had improperly channelled the entire differentiation between the two offenders into the non-parole period ratio under s 44, rather than reflecting it in part through the length of the overall terms.

Orders Made

Taysavang:
- Leave to appeal granted.
- Original sentence set aside.
- Resentenced to a non-parole period of 2 years and 7 months (commencing 19 September 2015, expiring 18 April 2018) and a balance of term of 11 months (expiring 18 March 2019).
- Eligible for release on parole from 18 April 2018.

Lee:
- Leave to appeal granted.
- Original sentence set aside.
- Resentenced to a non-parole period of 2 years (commencing 19 March 2015, expiring 18 March 2017) and a balance of term of 12 months (expiring 18 March 2018).
- Directed to be released on parole forthwith pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Key Takeaways

  • The parity principle operates by reference to the sentence ultimately imposed on appeal, not by reference to the sentence originally imposed at first instance. Where a co-offender's sentence is set aside and reduced, the comparison for parity purposes must be made against the new, resentenced figure.

  • Under s 21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the fact that police intercepted drugs before they reached the community does not automatically establish that the harm caused by a supply offence was "not substantial." The offence is complete at the point of supply.

  • The Bugmy principle, recognising that a deprived background can reduce moral culpability, carries diminished weight where the offending is planned and commercial rather than impulsive. The principle still applies, but courts assess its weight in light of the nature of the conduct.

  • Differentiating between co-offenders' subjective circumstances should be reflected in part through the length of their respective overall sentences, not exclusively through adjustments to the non-parole period ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • An extensive prior criminal record of the kind established in Taysavang's case can substantially diminish the weight given to an offender's subjective circumstances, even where those circumstances include genuine hardship and disadvantage.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(a), 44, 50(1)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- AB v R [2013] NSWCCA 273
- R v Achurch [2011] NSWCCA 186
- Cam Huynh Giang v R [2017] NSWCCA 25
- Hristovski v R [2010] NSWCCA 129
- Ingrey v R [2016] NSWCCA 31
- Ly v R [2008] NSWCCA 262
- R v Chan [1999] NSWCCA 103
- R v DW [2012] NSWCCA 66
- R v Gao & Lim [2007] NSWCCA 343
- Truong v R [2006] NSWCCA 318