Citation: HL v Director of Public Prosecutions (Cth) [2017] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 11 April 2017
Judges: Basten JA, Hoeben CJ at CL, Walton J
Background
The applicant (identified by the pseudonym HL) pleaded guilty in February 2012 to two serious drug offences: conspiring to traffic a large commercial quantity of methylamphetamine under federal law, and taking part in the supply of a large commercial quantity of methylamphetamine under NSW law. Both offences carry a maximum penalty of life imprisonment. The quantities involved were substantial, with the conspiracy count involving over 37 kg of pure methylamphetamine with an estimated street value of up to $27.5 million.
The applicant was sentenced by Norrish QC DCJ in the District Court on 26 April 2013. He received a total effective sentence of 12 years on Count 1 (the conspiracy), partially accumulated on a concurrent sentence for Count 2, with discounts applied for an early guilty plea and cooperation with authorities. The sentencing judge set the starting points at 10 years for Count 2 and 20 years for Count 1, then applied a 40% reduction.
The applicant's co-offender, Man Kong Ho, occupied a more senior role in the same drug enterprise and was sentenced separately by Tupman DCJ on 20 November 2015. That later sentence prompted the applicant to seek leave to appeal his own sentence out of time, arguing that the disparity between the two sentences gave rise to a justifiable sense of grievance.
Legal Issues
- Whether the Court of Criminal Appeal should grant an extension of time to appeal, given the applicant only became aware of the co-offender's sentence well after his own sentencing
- Whether the disparity between the applicant's sentence and that of his more senior co-offender, Ho, was sufficient to engage the parity principle
- Whether, if the parity principle applied, the Court was required to intervene, and what the limits of that intervention were
Decision
The Court granted the extension of time. The delay was satisfactorily explained by the significant difficulty the applicant's solicitor experienced in obtaining the sentencing judgment for Ho and the relevant transcripts. The Crown did not oppose the extension, leaving the question to abide the outcome of the substantive appeal.
On the parity principle, the Court accepted that the applicant had a justifiable sense of grievance. Ho occupied a more senior role in the drug supply enterprise than the applicant, directing operations from Hong Kong, yet received a sentence that created an unjustifiable disparity compared with the applicant's. An error in the sentencing of Ho had gone uncorrected, and the applicant's otherwise appropriate sentence now stood in stark contrast to a lighter sentence imposed on his superior in the hierarchy.
The Court was, however, careful to apply the qualification articulated in Green v The Queen; Quinn v The Queen: intervention to address parity cannot result in the imposition of a sentence that is itself erroneously lenient. The original sentence imposed by Norrish QC DCJ was found to be appropriate when first imposed. The Court also gave some weight to the harsher conditions Ho experienced during almost four years of imprisonment in Hong Kong, treating this as a partial justification for the difference but not a complete answer.
The Court's solution was to reduce the accumulation of the two sentences from three years to two years, achieved by commencing the sentence for Count 1 one year earlier. This adjustment acknowledged the parity principle while keeping the resulting sentence within the range of appropriate sentences and avoiding any outcome that was improperly lenient.
Orders Made
- Extension of time to file the application for leave to appeal against sentence granted
- Leave to appeal against sentence granted
- Appeal allowed in part
- Sentence on Count 1 imposed by Norrish QC DCJ on 26 April 2013 quashed
- Sentence on Count 2 confirmed as originally imposed
- Applicant resentenced on Count 1 to a total term of 12 years' imprisonment commencing 12 October 2012 and expiring 11 October 2024, with a non-parole period of 6 years commencing 12 October 2012 and expiring 11 October 2018 (reducing the accumulation from 3 years to 2 years)
Key Takeaways
- The parity principle requires a court to intervene where a co-offender who played a more senior role in the same criminal enterprise receives a lighter sentence, creating a disparity that would produce a justifiable sense of grievance in the person who received the heavier sentence.
- A sentence that was entirely appropriate when first imposed may nonetheless require adjustment on appeal if a later co-offender sentence, affected by uncorrected error, creates an unjustifiable disparity.
- Under the qualification confirmed in Green v The Queen; Quinn v The Queen, any downward adjustment in response to a parity argument cannot result in a sentence that is itself erroneously lenient. The appellate court must ensure the reduced sentence remains within the range of appropriate sentences.
- Harsher custodial conditions experienced by a co-offender (here, almost four years in a Hong Kong prison before extradition) are a relevant consideration that may partially explain, but will not necessarily justify, a sentencing disparity.
- An extension of time to bring a sentence appeal will be favourably considered where the delay is attributable to the practical difficulty of obtaining the sentencing materials for a co-offender sentenced years after the applicant.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), s 19AL
- Criminal Code 1995 (Cth), ss 11.5(1) and 302.2(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Cases
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57