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Court of Criminal Appeal 30 November 2017

Wright (a pseudonym) v R

[2017] NSWCCA 289

Drugs
SENTENCING APPEAL AGAINST SENTENCE OFFENDERS WHERE CO OFFENDERS RECEIVE IDENTICAL SENTENCES WHERE CO

Citation: Wright (a pseudonym) v R [2017] NSWCCA 289
Court: NSW Court of Criminal Appeal
Date: 30 November 2017
Judges: Simpson JA; Rothman J; Hamill J

Background

The applicant pleaded guilty in the District Court to conspiring with a co-offender to import a commercial quantity of pseudoephedrine into Australia, intending it to be used to manufacture methamphetamine. His involvement occurred primarily from Iran, where he sourced and paid for the pseudoephedrine and arranged its exportation across six postal consignments to his co-offender in Sydney. The co-offender received the consignments, managed customs arrangements, and liaised with a third party for extraction of the substance.

The sentencing judge imposed identical sentences on both the applicant and his co-offender: six years and six months imprisonment with a non-parole period of four years. The applicant sought leave to appeal on the basis that this parity in sentencing was unjust, arguing that his role was lesser than his co-offender's and that he should have been sentenced more leniently.

The parity argument required the Court to compare the two offenders' roles carefully. The applicant was involved in approximately 6.2 kilograms of pseudoephedrine across the six postal consignments. The co-offender, by contrast, had also arranged an earlier air cargo shipment containing approximately 17.76 kilograms, giving him a total involvement of around 23.96 kilograms. That difference in quantity sat alongside the applicant's arguably superior organisational role in the enterprise.

  • Whether the applicant had a justifiable sense of grievance arising from receiving the same sentence as his co-offender, given differences in their respective roles and levels of involvement
  • Whether the sentencing judge adequately and correctly balanced the applicant's superior organisational role against the co-offender's involvement in a significantly larger quantity of the prohibited substance
  • Whether findings made in a separate appeal by the co-offender (MI v R [2017] NSWCCA 225) were relevant to the applicant's parity argument

Decision

Simpson JA, with whom Rothman J and Hamill J agreed, dismissed the appeal. The Court accepted that the applicant occupied a superior position in the enterprise: he sourced and funded the pseudoephedrine, directed operations from Iran, and travelled to Sydney to assist with extraction. Ordinarily, that superior role might have warranted a heavier sentence relative to his co-offender.

However, the co-offender's involvement in the air cargo shipment of approximately 17.76 kilograms of pure pseudoephedrine fundamentally altered the comparison. The applicant had no part in that importation. The sentencing judge found that the applicant's superior organisational role and the co-offender's involvement in the much larger quantity effectively balanced one another, justifying the imposition of identical sentences.

The Court was satisfied that the sentencing judge's reasoning process was correct and that no basis existed for concluding the applicant should have been sentenced more leniently than his co-offender. The Court also found that the applicant's failure to make frank admissions on arrest, contrasted with his co-offender's immediate cooperation, was a further relevant consideration.

On the separate question of the co-offender's earlier appeal, the Court firmly rejected the Crown's submission that findings in MI v R [2017] NSWCCA 225 should carry weight in the present proceedings. Hamill J specifically endorsed this rejection, noting that different submissions and considerations applied in each case, that the applicant was unrepresented in the co-offender's hearing, and that there was no logical reason why rejection of a parity argument by one co-offender precluded acceptance of a parity argument by another.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the parity challenge, the Court of Criminal Appeal confirmed that a sentencing court is entitled to balance a co-offender's superior organisational role against that co-offender's involvement in a smaller total quantity of a prohibited substance when assessing whether identical sentences are appropriate.
  • A justifiable sense of grievance on parity grounds does not automatically arise from identical sentences imposed on co-offenders whose roles differ; the overall circumstances of each offender's involvement must be weighed against one another.
  • Findings made in a co-offender's separate appeal, including rejection of a parity argument raised by that co-offender, are not evidence in a subsequent appeal brought by the other co-offender and carry no logical weight in that later proceeding.
  • Where a co-offender made full and frank admissions on arrest while the applicant offered false explanations and denied involvement, that disparity in post-offence conduct remained a relevant sentencing consideration.
  • Under ss 11.5 and 307.11 of the Criminal Code (Cth), conspiracy to import a commercial quantity of a border controlled substance carries a maximum custodial penalty of 25 years imprisonment; a commercial quantity of pseudoephedrine is defined as 1.2 kilograms.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 11.5 and 307.11
- Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015 (Cth)

Cases:
- Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6
- MI v R [2017] NSWCCA 225