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Court of Criminal Appeal 21 December 2017

Daw v R

[2017] NSWCCA 327

Drugs
CRIMINAL LAW SENTENCE NO ERROR ESTABLISHED

Citation: Daw v R [2017] NSWCCA 327
Court: Court of Criminal Appeal, New South Wales
Date: 21 December 2017
Judges: Basten JA at [1]; Bellew J at [25]; Hamill J at [61]

Background

The applicant was convicted of three offences, including being knowingly concerned in the supply of 6 kilograms of methylamphetamine, a large commercial quantity under the Drug Misuse and Trafficking Act 1985 (NSW). Her co-offender, Kowalin, pleaded guilty to the principal supply offence involving the same quantity of the drug. Both were sentenced by the same judge in the District Court at Parramatta in February 2016.

The sentencing judge imposed an aggregate sentence on the applicant. When the indicative sentence for the applicant's supply-related offence was compared with the sentence Kowalin received, it was approximately 6 months longer. The applicant sought leave to appeal, arguing that this difference amounted to an unjustified disparity and that the judge had wrongly assessed Kowalin's criminality as lower than her own.

The application for leave to appeal was filed in October 2017, some 20 months after the sentence was imposed.

  • Whether the sentencing judge erred in finding that Kowalin's criminality was less than the applicant's, on the basis that his offending was an isolated aberration and the drugs were not stored or processed at his premises.
  • Whether the difference between the sentences imposed on the applicant and Kowalin amounted to an unjustified disparity warranting appellate intervention.
  • What legal test governs claims of unjustified disparity on a sentence appeal, and in particular whether the disparity must be characterised as "marked", "gross", or "glaring" before relief is available.

Decision

The Court unanimously refused leave to appeal. On the first ground, Basten JA found that each factor cited by the sentencing judge, namely the isolated nature of Kowalin's offending and the absence of drugs at his premises, was a legitimate and material consideration when comparing the relative criminality of the two offenders. No arguable error was identified.

On the second ground, Basten JA noted structural difficulties in the comparison being drawn, including that it was unclear how the indicative sentence for one offence fed into the applicant's aggregate sentence. More fundamentally, the sentencing judge had expressly addressed the parity principle across a 64-page judgment covering all three co-offenders, and had given careful, detailed reasoning about the factors distinguishing their respective culpability and subjective circumstances. No error of the kind described in House v The King (1936) 55 CLR 499 was established.

The Court also took the opportunity to address the correct legal test for unjustified disparity claims. Basten JA confirmed that the test is not whether the disparity is "marked", "gross", or "glaring", but rather the standard applicable to all discretionary sentencing errors: whether, on the facts, the outcome is unreasonable or plainly unjust. All three judges expressed the view that the use of those qualifying adjectives is not grounded in High Court authority, may heighten the threshold beyond what the law requires, and risks distracting from the underlying equal justice principle.

Hamill J, consistent with his earlier observations in Cameron v R and Miles v R, reiterated that the three epithets bear different meanings and their combined use is apt to obscure rather than clarify the test. The appropriate inquiry remains one of equal justice, assessed by the standard in House v The King, regardless of whether the alleged error is disparity or some other sentencing error.

Orders Made

• Leave to appeal is granted.
• The appeal is dismissed.

Key Takeaways

  • No error was established in the sentencing judge's comparative assessment of the applicant and her co-offender, where the differences in sentence were explicable by reference to differing levels of criminality and differing subjective circumstances.
  • The parity principle requires equal justice under the law, but does not demand identical sentences where offenders differ meaningfully in their roles, offending history, or personal circumstances.
  • A claim of unjustified disparity is governed by the same appellate test as any other sentencing error: whether the outcome is unreasonable or plainly unjust, in accordance with House v The King. No separate or elevated threshold applies.
  • The Court of Criminal Appeal confirmed that epithets such as "marked", "gross", or "glaring" do not form part of any recognised legal test for unjustified disparity, are not derived from High Court authority, and may improperly raise the bar for appellate intervention.
  • Where a sentencing judge has expressly addressed the parity principle and provided comprehensive reasons comparing co-offenders, an appellate court will be slow to interfere with the evaluative conclusions reached.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Act 1912 (NSW), ss 5, 6

Cases
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Ramos v R [2015] NSWCCA 313
- Afu v R [2017] NSWCCA 246
- Cameron v R [2017] NSWCCA 229
- Miles v R [2017] NSWCCA 266
- Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
- Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30