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17
Court of Criminal Appeal 16 November 2017

Miles v R

[2017] NSWCCA 266

Drugs
CRIMINAL LAW APPEAL PRINCIPLES OF PARITY DISCUSSED IN RE SENTENCING APPEAL ALLOWED SENTENCE REDUCED.

Citation: Miles v R [2017] NSWCCA 266
Court: Court of Criminal Appeal
Date: 16 November 2017
Judges: Leeming JA at [1]; Rothman J at [11]; Hamill J at [67]

Background

The appellant pleaded guilty to five drug supply offences in the District Court, including ongoing supply, supply of large commercial quantities of MDMA, and supply of cocaine and methylamphetamine. Following a 25% discount for early plea and a finding of special circumstances, the sentencing judge imposed an aggregate sentence of eight years imprisonment with a non-parole period of four years and six months.

At sentencing, a Form 1 (a document listing additional offences to be taken into account when imposing a sentence) was lodged that listed all five charges to which the appellant had pleaded guilty, rather than specifying a single "principal offence" to which the Form 1 offences would attach. The error was not caught by counsel on either side, and the sentencing judge was not alerted to the problem.

The Crown conceded on appeal that the Form 1 as filed constituted an error of law, since the legislation requires a Form 1 to relate to one offence only. The Court of Criminal Appeal accordingly proceeded to resentence the appellant, and also considered whether a disparity between the appellant's sentence and that of his co-offender warranted further reduction.

  • Whether the Form 1, which listed all five charges rather than specifying a single principal offence, constituted a material error of law requiring resentencing
  • Whether the sentencing judge further erred in treating the Form 1 offences as requiring some accumulation of sentences
  • Whether the disparity between the appellant's sentence and his co-offender's sentence gave rise to appealable error on parity grounds
  • Whether the test for disparity sufficient to constitute appealable error requires it to be "gross, marked or glaring"

Decision

The Crown conceded, and the Court accepted, that the Form 1 was defective. Under the Crimes (Sentencing Procedure) Act 1999 (NSW), a Form 1 must identify a single principal offence in respect of which additional matters are taken into account. Because all five indicative sentences were infected by the error, the Court was required to resentence the appellant entirely.

The Court also found that the sentencing judge erred in stating that the Form 1 offences were required to produce some accumulation within the aggregate sentence. Drawing on Sparos v R (2013), the majority of the Court in that earlier decision had held that Form 1 offences do not compel accumulation, though the Court here declined to express a firm view on the related question of whether accumulation is merely permissible in such circumstances, given error was already conceded.

On the parity ground, Leeming JA observed that the appellant's co-offender had received an aggregate of 4.5 years with a non-parole period of 2.5 years. Although the co-offender's sentence was regarded as sitting at the very bottom of the available range, it was not said to be manifestly inadequate, and the appellant was entitled to have parity principles applied in his favour. The result was a sentence lower than the Court would otherwise have imposed.

Leeming JA also revisited and departed from his own prior view in Tan v R (2014) that disparity must be "gross, marked or glaring" to establish appealable error. Agreeing with Hamill J's analysis in Cameron v R (2017), his Honour concluded that this formulation is not required, is not reflected in other Australian jurisdictions, and may improperly elevate the threshold for establishing error. The underlying question is whether the difference in sentence between co-offenders is reasonably justified in light of the objective and subjective differences between them.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence imposed by the District Court on 10 June 2016 quashed
  • In lieu thereof, an aggregate sentence imposed comprising a non-parole period of three years and nine months commencing 27 August 2015 and expiring 26 May 2019, and a balance of term of three years and three months concluding 26 August 2022
  • The appellant first eligible for parole on 26 May 2019

Key Takeaways

  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), a Form 1 must specify a single principal offence. A Form 1 that lists every offence for which the offender is being sentenced is defective, and sentencing on that basis constitutes an error of law requiring resentencing.
  • A sentencing court cannot treat Form 1 offences as requiring accumulation within an aggregate sentence. The Court confirmed the position in Sparos v R that accumulation is not compelled by the existence of Form 1 matters.
  • Leeming JA expressly departed from his earlier position in Tan v R that sentencing disparity must be "gross, marked or glaring" to constitute appealable error, aligning with the view expressed by Hamill J in Cameron v R that the three epithets carry different meanings and together risk improperly heightening the threshold.
  • The correct parity inquiry is whether the difference in sentences between co-offenders is reasonably justified by the objective and subjective differences in their cases, not whether the disparity meets some heightened adjectival test.
  • Where a co-offender's sentence is at the very bottom of the range but not challenged as manifestly inadequate, the parity principle still operates so that an appellant can benefit from it, even if the resulting sentence is lower than the Court would independently have imposed.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32(5), 53A, 53A(2)(b)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25A(1)

Cases
- Barnden v State of Western Australia [2014] WASCA 161
- Cameron v R [2017] NSWCCA 229
- Doumit v R [2011] NSWCCA 134
- DS v R [2014] NSWCCA 267
- England v R; Phanith v R [2009] NSWCCA 274
- Green v R; Quinn v R (2011) 244 CLR 463
- Hi v The Queen [2017] VSCA 315
- Hilli v The Queen; Jones v The Queen (2010) 242 CLR 520
- House v The King (1936) 55 CLR 499
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- R v McGuire [2017] QCA 250
- R v Phuong; R v Lewan [2015] SASCFC 70
- Sparos v R (2013) 235 A Crim R 462
- Street v Queensland Bar Association (1989) 168 CLR 461
- Tan v R [2014] NSWCCA 96
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Wan v R [2017] NSWCCA 261
- Woodward v R [2017] NSWCCA 44