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Court of Criminal Appeal 4 August 2017

Shi v R

[2017] NSWCCA 183

Drugs
CRIMINAL LAW APPEAL SENTENCE PARITY WHERE CO OFFENDERS PARTICIPATED IN DRUG SUPPLY

Citation: Shi v R [2017] NSWCCA 183
Court: Court of Criminal Appeal, New South Wales
Date: 4 August 2017
Judge(s): Hoeben CJ at CL, Adamson J, Bellew J (unanimous)

Background

The applicant pleaded guilty in the District Court to knowingly taking part in the supply of 2.545 kilograms of methylamphetamine, a large commercial quantity under the Drug Misuse and Trafficking Act 1985 (NSW). The offending involved five separate supply transactions between February and April 2014, escalating from just under 28 grams to a final transaction of approximately two kilograms. He also asked the court to take into account a charge of participating in a criminal group under the Crimes Act 1900 (NSW).

Acting Judge Hosking SC sentenced the applicant to a non-parole period of seven years with an additional term of three years. The applicant sought leave to appeal on the sole ground that his sentence was disproportionately harsh compared with the sentences received by two co-offenders, Mohammad and So.

The co-offenders each played distinct roles in the supply enterprise. Mohammad acted as a courier, physically delivering drugs to undercover operatives. So drove the applicant to the final transaction and handed over the drugs directly. The applicant occupied a middle position in the supply chain, sourcing methylamphetamine from an upstream supplier named Chan and coordinating deliveries through the others.

  • Whether the sentences imposed on the co-offenders gave rise to a justifiable sense of grievance in the applicant, warranting intervention on parity grounds.
  • Whether differences in non-parole periods as between the applicant and co-offenders were explained by legitimate distinctions in role, culpability, and subjective circumstances.
  • Whether the sentencing judge's treatment of the applicant's criminal history, compared with those of his co-offenders, was disproportionate.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal. Bellew J, with whom Hoeben CJ at CL and Adamson J agreed, found that the applicant's role was materially more significant than that of either co-offender. He actively sourced drugs from an upstream supplier, coordinated deliveries, negotiated prices with undercover operatives, received large sums of money, and was trusted with responsibility across multiple escalating transactions. The sentencing judge had correctly characterised him as a middleman who was neither at the top nor the bottom of the supply chain, but whose involvement was considerably more active and extensive than that of Mohammad or So.

The differences in the structure of the respective sentences were also explained by legitimate distinctions in subjective circumstances. Both Mohammad and So had findings of special circumstances made in their favour, resulting in proportionally longer parole periods. No such finding was available for the applicant, given the sentencing judge's expressed uncertainty about his rehabilitation prospects and risk of re-offending. These differences in the ratio between non-parole period and head sentence were therefore principled, not arbitrary.

On criminal history, the Court accepted that the applicant's record, which included prior convictions for commercial drug supply, malicious wounding in company, and kidnapping, was significantly worse than Mohammad's. Although So's record was also serious and included prior commercial drug supply offences, his offending in the present matter was far more limited and was carried out at a substantially lower level of the enterprise than the applicant's. The more serious criminal history of So could not overcome the difference in objective seriousness of offending between the two.

No justifiable sense of grievance was established. The disparity in sentences was explained by genuine and material differences between the co-offenders.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A parity challenge to a sentence requires the applicant to demonstrate a justifiable sense of grievance arising from a comparison with co-offenders. Differences in role, culpability, and subjective circumstances are each capable of explaining apparent disparities.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a co-offender who coordinates supply, sources product from an upstream supplier, and oversees multiple transactions occupies a higher role than a courier or driver, even within the same criminal enterprise.
  • Special circumstances findings, which adjust the ratio of non-parole period to head sentence, are made on an individual basis. Differences in those findings between co-offenders do not, of themselves, generate a viable parity ground.
  • A significantly worse criminal record is a relevant sentencing consideration, but it does not automatically elevate a co-offender's sentence beyond that of an applicant whose objective offending was substantially more serious.
  • Where co-offenders participate in the same offence at different levels of a supply chain, the sentencing court is entitled to impose materially different sentences reflecting those differences without creating an unjustifiable disparity.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 93T(1A)

Cases:
- Why v R [2017] NSWCCA 101