Citation: Lopatinsky v Regina [2017] NSWCCA 227
Court: Court of Criminal Appeal
Date: 20 September 2017
Judge(s): Simpson JA; McCallum J; Fagan J
Background
The applicant pleaded guilty in the District Court to supplying not less than the large commercial quantity of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence arose from the interception of an imported consignment concealed inside a large metal log-splitting device. The consignment contained approximately 10 kilograms of cocaine at close to 75% purity. Law enforcement replaced the cocaine with an inert substance, installed listening devices, and delivered the package to its consignment address, where both the applicant and his co-offender were later arrested.
The same District Court judge sentenced both men, but at different times. The applicant was sentenced first and received 9 years imprisonment with a non-parole period of 6 years and 6 months. The co-offender was sentenced several months later and received 4 and a half years imprisonment with a non-parole period of 3 years.
The applicant sought leave to appeal, arguing primarily that the sentence imposed on him was disproportionately greater than that imposed on his co-offender, whose role was not materially different from his own.
Legal Issues
- Whether the disparity between the applicant's sentence and the co-offender's sentence gave the applicant a justifiable sense of grievance, warranting appellate intervention on parity grounds.
- Whether the sentencing judge erred in failing to give full effect to the finding of special circumstances when structuring the non-parole period.
Decision
Ground 1: Disparity
The Court found the disparity ground plainly made out (at [15], [25]). The sentencing judge had accepted, without clear articulation of reasons, that the co-offender was "marginally" less involved than the applicant. McCallum J found little basis to distinguish the two roles: the co-offender had arranged the delivery address and collected the package, and both men participated equally in unpacking the consignment and discussing the expected profit (at [18]-[20]). The listening device material revealed nothing to indicate that the applicant held a greater role; the two men discussed making equal profit and jointly composed the text message at issue (at [19]).
The starting points of 12 years for the applicant and 9 years for the co-offender produced a marked difference in effective sentences. Even accounting for the greater discount available to the co-offender (50% for plea and assistance, compared with the applicant's 25% for plea alone), the Court found the disparity was not explained by any material difference in objective or subjective circumstances (at [17]-[25]). Fagan J agreed, finding that the age difference between the applicant (52 years) and the co-offender (23 years) did not constitute a compelling distinction sufficient to justify the gap in starting point sentences, particularly given that the co-offender's offending was not attributable to youth or immaturity (at [35]-[37]).
Ground 2: Special Circumstances
Having upheld Ground 1, the Court found it unnecessary to separately determine Ground 2. Re-sentencing was required in any event, and the question of special circumstances would be addressed as part of that exercise (at [26]). In re-sentencing, McCallum J observed that the applicant's family circumstances, including his parents' poor health and the impact of his incarceration on his two sons, warranted a departure from the standard non-parole ratio broadly equivalent to the adjustment allowed to the co-offender (at [28]-[29]).
Orders Made
- Leave to appeal granted.
- The sentence imposed in the District Court was set aside.
- In substitution, the applicant was sentenced to a term of imprisonment with a non-parole period of 4 years and 6 months commencing 6 March 2015 and expiring 5 September 2019, and a balance of term of 2 years and 3 months expiring 5 December 2021.
- The first date on which the applicant is eligible for release to parole is 5 September 2019.
Key Takeaways
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A marginal finding that a co-offender was less involved than an applicant cannot, without articulated reasoning, justify a significant disparity in starting point sentences, particularly where the objective evidence does not support any material distinction in roles (at [18]-[20], [31]-[32]).
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Where co-offenders were sentenced at different times by the same judge, the parity principle still applies. The fact that sentencing occurred on separate occasions does not insulate the comparison from appellate scrutiny (at [9], [25]).
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The Court of Criminal Appeal confirmed that a difference in age between co-offenders is a relevant but not automatically compelling sentencing distinction. Where the younger offender's conduct was not attributable to immaturity or impulsivity, age alone will not justify substantial disparity in starting points (at [35]-[37]).
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Listening device evidence that records co-offenders discussing equal profit and jointly composing communications will not, without more, establish a material difference in their respective levels of involvement (at [19], [32]).
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In re-sentencing for parity, the court must apply each offender's respective discount to a substantially equivalent starting point and non-parole ratio, rather than simply adjusting the final figure (at [27]-[28], [38]).
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2), sch 1
Cases
- Kemp v R [2012] NSWCCA 281