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Court of Criminal Appeal 28 May 2018

Grabovac v R

[2018] NSWCCA 100

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE DISPARITY BETWEEN SENTENCES OF CO OFFENDERS JUSTIFIABLE SENSE OF GRIEVANCE APPEAL ALLOWED

Citation: Grabovac v R [2018] NSWCCA 100
Court: NSW Court of Criminal Appeal
Date: 28 May 2018
Judges: Bathurst CJ, Schmidt J, Hamill J

Background

The appellant had pleaded guilty in August 2016 to supplying a large commercial quantity of ecstasy (816.47 grams) in Western Sydney between August and October 2014. His offending was uncovered through a police strike force investigation that also identified three co-offenders. One co-offender, Riad Elsaj, occupied a more senior position in the drug supply hierarchy and was additionally involved in cocaine supply; the other two, Blake Grant and Dusko Samardzija, were junior to the appellant.

In September 2016, the District Court sentenced the appellant to 12 years imprisonment with a non-parole period of 7 years and 6 months, after applying a 25% discount for his early guilty plea and making a finding of special circumstances. All co-offenders also received 25% discounts. The appellant did not challenge the intrinsic appropriateness of his sentence; his sole ground of appeal was parity.

The appellant argued that the sentences imposed on Elsaj and Grant, in particular for their comparable ecstasy offences, were sufficiently more lenient to leave him with a justifiable sense of grievance. Elsaj received an indicative sentence of 9 years and 9 months (non-parole period of 6 years and 6 months) for his ecstasy count, and Grant received 6 years and 9 months (non-parole period of 4 years) for supplying 547.47 grams of ecstasy, despite both supplying lesser quantities of the same drug.

  • Whether the sentencing of the co-offenders gave rise to an unjustifiable disparity that provided the appellant with a justifiable sense of grievance.
  • Whether the parity principle, as stated in Lowe v The Queen and confirmed in Green v The Queen; Quinn v The Queen, required the Court of Criminal Appeal to intervene and re-sentence the appellant.
  • Whether any reduction in the sentence resulting from the parity principle would constitute an affront to the proper administration of justice.

Decision

Schmidt J (with whom Bathurst CJ and Hamill J agreed) found that both leave to appeal should be granted and the appeal upheld. Although the original sentence was, in isolation, entirely appropriate for the appellant's serious offending, the parity principle nonetheless required intervention. The court's analysis focused on comparing the indicative and aggregate sentences across the co-offenders, particularly the non-parole periods.

Schmidt J found that the sentencing of Elsaj reflected a lenient application of the totality and parity principles. His aggregate non-parole period of 11 years and 6 months was only five years more than the non-parole period indicated for his ecstasy and cocaine offences individually, suggesting the sentencing judge had given him an unduly generous concession in combining his numerous serious offences. When the appellant's non-parole period of 7 years and 6 months for the ecstasy count alone was measured against that result, the unjustifiable discrepancy became clear.

The Court confirmed that unjustifiable disparity is an independent ground of appellable error, even where the sentence under appeal is not otherwise excessive. It is an infringement of the equal justice norm recognised in Lowe and Green. The court found the appellant had a justifiable sense of grievance and that an appearance of injustice had been created.

Bathurst CJ added that, absent the parity principle, the original head sentence and non-parole period would have been entirely appropriate. He also noted that any reduction beyond what Schmidt J proposed would constitute an affront to the proper administration of justice, setting a clear boundary on the extent to which parity considerations could operate.

Orders Made

  • Leave to appeal granted.
  • The appeal upheld.
  • The sentence imposed by Sides QC DCJ on 7 September 2016 set aside.
  • The appellant re-sentenced to a total term of imprisonment of 10 years and 6 months, commencing 21 June 2016, with a non-parole period of 6 years and 9 months, making him first eligible for parole on 20 March 2023.

Key Takeaways

  • Unjustifiable disparity between sentences imposed on co-offenders is a ground of appellable error in its own right: it does not require the sentence under appeal to be otherwise excessive.
  • A justifiable sense of grievance can arise even where the sentencing judge's treatment of the appellant was individually appropriate, if a co-offender received a disproportionately lighter sentence through an unduly lenient application of totality or parity principles.
  • The Court of Criminal Appeal confirmed it is not required to achieve identity of punishment when re-sentencing on a parity ground; rather, it must give appropriate weight to the co-offenders' sentences.
  • There is a limit to how far parity can reduce a sentence: the re-sentencing court must satisfy itself that the resulting sentence does not become an affront to the proper administration of justice, particularly where the original offending was undeniably serious.
  • Where multiple co-offenders are involved, comparisons must be drawn carefully: the court here treated Samardzija's sentence as irrelevant given the limited nature of his offending, focusing the analysis on the sentences of Elsaj and Grant as the meaningful comparators.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 463; [2011] HCA 49
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Power v The Queen (1974) 131 CLR 623
- Markarian v The Queen (2008) 228 CLR 357; [2008] HCA 45
- Alvares v R; Farache v R [2011] NSWCCA 33
- Butters v R [2010] NSWCCA 1
- Dimian v R [2016] NSWCCA 223
- R v Harrison [2001] NSWCCA 79
- R v Knight [2005] NSWCCA 253
- R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
- R v MJB [2014] NSWCCA 195
- R v Qutami [2001] NSWCCA 353
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146