Citation: Lopatinsky v Regina [2017] NSWCCA 227
Court: Court of Criminal Appeal, NSW
Date: 20 September 2017
Judges: 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, an offence under the Drug Misuse and Trafficking Act 1985 (NSW) carrying a maximum of life imprisonment and a standard non-parole period of 15 years. The drugs, approximately 10 kilograms of cocaine with nearly 75% purity, were imported from the United States concealed inside a large metal log-splitting device. Australian Federal Police intercepted the consignment, substituted an inert substance, and installed surveillance devices before delivering it to an auto business in Croydon.
The applicant and his co-offender collected and opened the package together. Recorded conversations captured the two men discussing the price they could achieve for the cocaine. Both were arrested shortly afterwards. The sentencing judge described the applicant as operating at the "lower management level" of the drug enterprise, as the conduit through whom the cocaine would have passed into a broader distribution network.
Both men were sentenced by the same District Court judge, but on different dates because the co-offender's matter was not ready to proceed when the applicant was sentenced. The applicant was sentenced first and received a 25% discount for his early plea. The co-offender, sentenced a few months later, received a combined 50% discount, reflecting both an early plea and assistance to police.
Legal Issues
- Whether an unjustifiable sentencing disparity existed between the applicant and his co-offender, giving rise to a justifiable sense of grievance (the parity principle).
- Whether the sentencing judge gave full effect to the finding of special circumstances when structuring the applicant's non-parole period.
Decision
The Court of Criminal Appeal found that ground 1, the disparity ground, was made out. The judge had sentenced the applicant to a starting point of 12 years' imprisonment, reduced to 9 years after the 25% plea discount, with a non-parole period of 6 years and 6 months. The co-offender received a starting point of 9 years, reduced to 4 years and 6 months after the combined 50% discount, with a non-parole period of 3 years.
The critical finding was that the sentencing judge had accepted, without giving express reasons, that the co-offender was only "marginally" less involved than the applicant in the offence. On the judge's own characterisation, the difference in objective involvement between the two men was minimal. The Court found that this marginal distinction could not justify a starting point sentence that was 3 years higher for the applicant than for the co-offender.
The Court also examined whether the difference in their ages, with the applicant aged 52 and the co-offender aged 23 at sentencing, provided a compelling subjective distinction. Fagan J, who provided the most detailed reasoning on this point, concluded that it did not. The co-offender's relative youth did not reduce his moral culpability for an offence that was neither impulsive nor attributable to immaturity. Nor was there a marked difference between the two men in their prospects for rehabilitation, given that the applicant also had good character apart from drug misuse.
The Court held that the starting point sentence and the non-parole period ratio should have been substantially the same for both offenders, with the different discounts then applied. On the approach proposed by McCallum J, the orders made would bring the applicant's sentence into conformity with parity principles.
Orders Made
No orders were made in this decision.
Key Takeaways
- The parity principle requires that co-offenders whose objective and subjective circumstances are substantially similar receive starting point sentences that are substantially equivalent, even where they ultimately receive different total sentences because of differing available discounts.
- Where a sentencing judge finds that one co-offender was only "marginally" less involved than another, that finding cannot support a starting point sentence that differs by 3 years between the two offenders.
- A difference in age between co-offenders does not automatically constitute a compelling distinction for parity purposes. The Court of Criminal Appeal held that a 23-year-old co-offender's relative youth did not reduce his moral culpability where the offending was deliberate, sustained, and not attributable to immaturity or impulsiveness.
- Sentencing two co-offenders on separate occasions does not alter the obligation to achieve parity. The Court confirmed the parity principle applies even where the same judge sentences co-offenders at different times.
- Under the parity principle, an appellate court may intervene where disparity is such as to give rise to a justifiable sense of grievance, giving the appearance that justice has not been done, following the well-established formulation from Lowe v The Queen (1984) 154 CLR 606.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2), sch 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases:
- Kemp v R [2012] NSWCCA 281
- Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
- Wong v R [2001] HCA 64; (2001) 207 CLR 584
- Green v R; Quinn v R (2011) HCA 49; (2011) 244 CLR 462
- Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
- Lowe v The Queen [1984] HCA 46; 154 CLR 606