Citation: [2017] NSWSC 423
Court: Supreme Court of New South Wales
Date: 19 April 2017
Judge: Davies J
Background
The applicant pleaded guilty in the District Court to two offences of knowingly taking part in the supply of pseudoephedrine (a precursor drug) in not less than the large commercial quantity. The offences occurred in May and June 2011. The applicant acted as a courier or "runner" operating under the direction of two brothers who sat higher in the supply chain. He was a first-time offender aged 33 at the time of sentencing.
The two brothers were charged with three supply offences, including the same two transactions involving the applicant, plus a further supply they arranged after the applicant's arrest. Both had prior criminal records and had committed the present offences while on bail for earlier charges involving the purchase of precursor substances.
The applicant was sentenced first, in March 2013, receiving an effective sentence of ten years with a six-year non-parole period. The brothers were sentenced two months later. Separate appeals followed, but neither appeal addressed the parity between the applicant's sentence and the sentences ultimately imposed on the brothers after their successful appeal reduced those sentences. The applicant then sought a referral to the Court of Criminal Appeal under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), arguing his sentence was disproportionate in light of the reduced sentences the brothers ultimately received.
Legal Issues
- Whether a doubt or question existed as to the sentences imposed on the applicant, specifically regarding disparity between his sentence and those of the two co-offenders following the co-offenders' successful appeal
- Whether the disparity question had already been adequately dealt with in the earlier appellate proceedings, such that referral would be inappropriate under s 79(3) of the Crimes (Appeal and Review) Act 2001
- Whether the applicant's position in the offending hierarchy, combined with his lack of prior convictions and the errors identified in the co-offenders' sentencing appeal, gave rise to a justifiable sense of grievance
Decision
Davies J found that there was a doubt or question as to the sentences imposed on the applicant, sufficient to warrant referral to the Court of Criminal Appeal. The court identified three significant differences between the applicant and the brothers: the applicant was a first-time offender; the brothers had prior criminal records; and the brothers committed the offences while on bail for similar conduct. These factors would ordinarily have supported a more lenient sentence for the applicant relative to the brothers.
The court noted that the brothers' appeal had succeeded on the basis that the sentencing judge had made errors in assessing the objective seriousness of their offences, including by treating the harm as equivalent to that caused by a large commercial quantity of methylamphetamine and adopting an uncritical approach to quantification of harm. The re-sentencing exercise following that appeal did not take the applicant's sentence into account when addressing parity.
The sequencing of events was critical. The applicant's appeal was heard and determined before the brothers' appeal was decided, and each appeal addressed parity only between the immediate parties involved. The applicant's appeal considered only comparisons with his father and another co-offender; the brothers' appeal compared only the brothers with each other. The question of parity as between the applicant and the brothers had therefore never been squarely examined by the Court of Criminal Appeal.
On the s 79(3) question, Davies J was satisfied that the disparity issue had not been "previously dealt with" in a way that would warrant refusing referral. The Court of Criminal Appeal had not had the opportunity to consider parity as between the applicant and the brothers, and it would be open to that court to find that the applicant had a justifiable sense of grievance about his sentence in the circumstances.
Orders Made
- Pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), the whole case is referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912 (NSW).
Key Takeaways
- A referral under s 78 of the Crimes (Appeal and Review) Act 2001 does not require certainty of error; it requires only that a doubt or question exists as to the sentence, including as to its proportionality relative to co-offenders.
- Where co-offenders are sentenced separately and their appeals are heard at different times, a parity question may fall through the gaps of successive appellate proceedings without ever being directly addressed, potentially satisfying the "not previously dealt with" threshold for referral.
- The parity principle operates by reference to relative culpability: a co-offender who sat lower in the hierarchy, had no prior record, and was not on bail at the time of offending occupies a materially different position from one who organised the scheme, had prior convictions, and was subject to conditional liberty.
- Errors in a co-offender's sentencing appeal, such as miscalculating the objective seriousness of the offending, can have downstream consequences for a differently placed co-offender whose sentence remains unreduced.
- Under s 79(3), a prior appeal does not foreclose a s 78 application if that appeal did not address the specific ground now raised; the court looks at whether the particular issue has been substantively considered, not merely whether there has been prior appellate activity.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Criminal Appeal Act 1912 (NSW)
Cases:
- Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Buttrose v Attorney General of New South Wales [2015] NSWCA 221
- Grover v R; Grover v R [2014] NSWCCA 315
- Lowe v R [2015] NSWCCA 46
- Matthew Soames v Regina [2014] NSWCCA 158
- Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383
- Varley v Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30