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Court of Criminal Appeal 8 November 2017

Wan v R

[2017] NSWCCA 261

Drugs
SENTENCING PARITY APPLICANT AND CO NO JUSTIFIABLE SENSE OF GRIEVANCE APPEAL DISMISSED

Citation: Wan v R [2017] NSWCCA 261
Court: Court of Criminal Appeal, New South Wales
Date: 8 November 2017
Judge(s): Payne JA; Beech-Jones J (with reasons); Fagan J

Background

The applicant pleaded guilty to two serious drug offences under the Drug Misuse and Trafficking Act 1985 (NSW): knowingly taking part in the manufacture of a large commercial quantity of methylamphetamine, and supplying a prohibited drug in a large commercial quantity. His role centred on operating a clandestine drug laboratory in Beverly Hills, where methylamphetamine was extracted from wax blocks that had been imported into Australia.

A co-offender, Choy, was sentenced by the same judge for a Commonwealth offence of importing a commercial quantity of a border controlled drug, with a further offence of aiding and abetting manufacture taken into account under s 16BA of the Crimes Act 1914 (Cth). Both the applicant and Choy ultimately received total sentences of 21 years' imprisonment with a non-parole period of 15 years. A third co-offender, Kwok, who shared the applicant's State charges, received a heavier sentence of 25 years with a 17-year non-parole period.

The applicant sought leave to appeal on the ground that, despite receiving formally identical sentences to Choy, the two were sufficiently different in their circumstances that parity required him to receive a lesser sentence. A second ground of manifest excess was not ultimately pressed at the hearing.

  • Whether the parity principle applied across an offender sentenced for State offences and a co-offender sentenced for Commonwealth offences arising from the same criminal enterprise.
  • Whether the applicant's earlier guilty plea, compared with Choy's later plea, created a justifiable sense of grievance given that both received the same total sentence.
  • Whether differences in the roles each offender played in the drug operation warranted a meaningful difference in the sentences imposed.

Decision

Beech-Jones J (with Payne JA and Fagan J agreeing) accepted that the parity principle could, in an appropriate case, operate across offenders charged under different legislative regimes. The court did not treat the State/Commonwealth divide as a barrier to comparing sentences, provided the comparison accounted for the structural differences between the two sentencing frameworks, including the absence of standard non-parole periods for Commonwealth drug offences and the operation of s 15AB of the Crimes Act 1914 (Cth), which affects the length of non-parole periods for Commonwealth offenders.

The court examined the roles of each offender with care. The applicant was centrally involved in the manufacture and extraction process at the Beverly Hills laboratory, and his possession of nearly 13 kilograms of methylamphetamine at the point of arrest formed the basis for the separate supply offence. Choy's role was more logistical, assisting with receiving the imported consignment and transporting items, and receiving instructions from a superior. The sentencing judge had partially accumulated the supply sentence on the manufacture sentence to reflect the additional criminality of the applicant's conduct, conduct that had no equivalent in Choy's case.

Beech-Jones J performed a rough numerical comparison. When the applicant's guilty plea discount for the manufacture offence was notionally reversed, and when an equivalent discount was applied to Choy's sentence, the pre-discount figures were broadly comparable. The court found that the partial accumulation reflecting the supply offence, combined with the different sentencing regimes and the different roles, meant there was no marked or glaring disparity between the two sentences.

The court concluded that any sense of grievance the applicant might derive from comparing his sentence with Choy's was not justifiable. Accordingly, the appeal on the parity ground failed.

Orders Made

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

Key Takeaways

  • The Court of Criminal Appeal confirmed that the parity principle can operate between co-offenders sentenced under different legislative regimes (State and Commonwealth), but that any comparison must carefully account for structural differences in those regimes, including different provisions governing non-parole periods.
  • A formally identical total sentence does not automatically give rise to a justifiable sense of grievance; the court must examine whether differences in roles, additional offences, and applicable sentencing legislation explain the equivalence.
  • Where a sentencing judge partially accumulates sentences to reflect criminality in one offender that has no equivalent in a co-offender's conduct, that structural adjustment may be sufficient to answer a parity complaint even where the ultimate sentences appear the same.
  • The absence of standard non-parole periods for Commonwealth drug offences (by contrast with the 15-year standard non-parole period applicable under the Crimes (Sentencing Procedure) Act 1999 for large commercial quantity offences) is a material consideration when comparing sentences across the two regimes.
  • No error was established in the sentencing judge's approach to balancing the applicant's earlier guilty plea against the additional criminality reflected in the supply charge, leaving the overall sentence undisturbed on appeal.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2), 33(3)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A
- Criminal Code Act 1995 (Cth) (Schedule), ss 305.3(1), 307.1, 11.2(1)
- Crimes Act 1914 (Cth), ss 15AB, 16BA

Cases
- Lowe v The Queen (1984) 154 CLR 606 (HCA) (the foundational parity principle)
- Green v The Queen (2011) 244 CLR 462 (HCA)
- Wong v The Queen (2001) 207 CLR 584 (HCA)
- Muldrock v The Queen (2011) 244 CLR 120 (HCA)
- DS v R [2014] NSWCCA 267
- R v Saleh [2015] NSWCCA 299