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Court of Criminal Appeal 6 March 2017

Le v R

[2017] NSWCCA 26

Drugs
CRIMINAL LAW SENTENCE APPEAL INFELICITOUS LANGUAGE BUT NO ERROR WHETHER PARITY PRINCIPLE OBSERVED NO ERROR APPEAL DISMISSED.

Citation: Le v R [2017] NSWCCA 26
Court: Court of Criminal Appeal of New South Wales
Date: 6 March 2017
Judge(s): Hoeben CJ at CL; Walton J; Latham J

Background

The appellant was a Sydney-based intermediary operating within an international drug syndicate that moved controlled drugs between Sydney and Melbourne, with connections to a Hong Kong supplier. On two separate occasions in July 2012, he collected quantities of PMMA (paramethoxymethamphetamine, a controlled drug analogue) from a safe house and physically delivered them to Melbourne-based associates of the syndicate's organiser.

In the District Court, the appellant pleaded guilty to one count of trafficking a commercial quantity of a controlled drug under the Commonwealth Criminal Code. The sentencing judge also took into account, under a statutory schedule procedure, a further offence of trafficking a marketable quantity of the same drug. The appellant received a total sentence of 10 years and 6 months imprisonment, with a non-parole period of 6 years and 9 months.

A co-accused, who was the Melbourne intermediary involved in the primary offence and who was convicted after trial, received a sentence of 7 years and 9 months with a non-parole period of 5 years. The appellant sought leave to appeal his sentence on two grounds: that the sentencing judge mishandled the schedule offence, and that the disparity between his sentence and the co-accused's was unjust.

  • Whether the sentencing judge erred in the manner in which the schedule offence (under s 16BA of the Crimes Act 1914 (Cth)) was taken into account when sentencing for the primary offence.
  • Whether the parity principle was breached, given the difference between the appellant's sentence and that imposed on his co-accused.

Decision

Ground 1: The schedule offence

The Court acknowledged that the sentencing judge used "infelicitous language" when dealing with the schedule offence, but found no legal error in the approach taken. The judge correctly treated the schedule offence as a distinct criminal act committed on a separate occasion, involving a different Melbourne intermediary as recipient. The Court rejected the appellant's submission that the primary offence was sufficiently serious to absorb or comprehend most of the criminality involved in the schedule offence, emphasising that an admitted schedule offence is not simply to be noted in passing. Citing R v Lulham [2016] NSWCCA 287, the Court confirmed that there is no principle limiting the additional penalty flowing from a schedule offence to a small increment.

Ground 2: Parity

The Court examined the parity principle, which provides that co-offenders should not receive sentences so different as to give rise to a justifiable sense of grievance. It found that the comparison between the two sentences was not straightforward. The appellant and the co-accused were sentenced for different offences under different legislative regimes. The co-accused faced a state offence under the Drugs Misuse and Trafficking Act 1985 (NSW), while the appellant faced a Commonwealth offence with a maximum of life imprisonment. Their roles also differed in meaningful ways.

The Court found the sentencing judge had carefully compared the objective seriousness of each offender's conduct. The appellant's additional sentence was attributable not only to the schedule offence but also to his greater role and the aggravating feature of repeated offending. No error in applying the parity principle was established.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established in the sentencing judge's treatment of the schedule offence, despite language that the Court of Criminal Appeal described as infelicitous. The substance of the approach was correct.
  • Under the s 16BA schedule procedure, a schedule offence is not to be treated as a minor add-on. R v Lulham confirms that no principle confines the resulting increase in sentence to a small amount.
  • The parity principle does not operate mechanically where co-offenders are sentenced for offences under different legislative regimes with materially different maximum penalties.
  • Differences in objective seriousness between co-offenders, including distinct roles within a drug syndicate and the aggravating effect of repeated offending, can justify a substantial difference in sentence without giving rise to a justifiable sense of grievance.
  • In dismissing the appeal, the Court confirmed that the sentencing judge was entitled to place greater weight on deterrence and retribution because the appellant repeated his trafficking conduct across two separate transactions.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 16BA
- Criminal Code (Cth), ss 302.2(1), 302.3(1), 314.1(2), (4), (5)
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Hoskins v R [2015] NSWCCA 245
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v Lamella [2014] NSWCCA 122
- R v Lulham [2016] NSWCCA 287