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Court of Criminal Appeal 4 June 2018

Dunn v R

[2018] NSWCCA 108

Drugs
CRIME APPEAL SENTENCE OFFENDERS PARITY PRINCIPLES INAPPLICABLE NO JUSTIFIABLE SENSE OF GRIEVANCE

Citation: Dunn v R [2018] NSWCCA 108
Court: NSW Court of Criminal Appeal
Date: 4 June 2018
Judge(s): Macfarlan JA, Johnson J, Adamson J (all agreeing)

Background

The appellant pleaded guilty in the District Court at Dubbo to seven drug supply offences under the Drug Misuse and Trafficking Act 1985 (NSW), including six counts of ongoing supply and one count of supplying 42.4 grams of methylamphetamine. He was sentenced to a total term of six years' imprisonment with a non-parole period of three years and six months.

Two co-offenders were also charged with the same supply offence (the 42.4 gram count). However, the prosecution did not include that charge on their respective indictments. Instead, it was placed on a Form 1 for each co-offender, to be taken into account when they were sentenced for a separate principal offence. The co-offenders received significantly lighter outcomes: one received a two-year good behaviour bond, and the other received a fixed term of 36 months with a 20-month non-parole period.

The appellant sought leave to appeal on the single ground that the parity principle entitled him to a reduced sentence because his co-offenders received substantially lesser consequences for the same offending. The parity principle holds that, broadly speaking, co-offenders who are equally culpable should not receive sentences so different as to give rise to a justified sense of grievance.

  • Whether the parity principle applies when one offender is sentenced for an offence on indictment while co-offenders had the same offence included only on a Form 1 (to be taken into account in sentencing for a different principal offence).
  • Whether the appellant had a justifiable sense of grievance, assessed by objective criteria, that could ground appellate intervention.
  • Whether the prosecutor's decision to place the charge on a Form 1 rather than on indictment was reviewable by the Court.

Decision

Adamson J, with whom Macfarlan JA and Johnson J agreed, refused leave to appeal. The central reason was that the parity principle simply does not operate in circumstances like these, because there is no meaningful comparison between a sentence imposed for an offence and an unspecified uplift to a sentence for a different offence by reason of a Form 1.

When a charge appears on a Form 1, the sentencing court does not impose any penalty for that charge. It sentences only for the principal offence and increases that sentence to some degree by taking the Form 1 offence into account. The amount of that increase is never separately quantified. As the Court reaffirmed from the 2002 Guideline Judgment, the sentencing court's task is not to determine an appropriate sentence for the Form 1 offence itself. This structural difference means a direct parity comparison with the appellant's sentenced offence is not possible.

Adamson J rejected the argument that an earlier decision, Nguyen, Kathy v R [2015] NSWCCA 209, had endorsed the application of parity principles in these circumstances. While that case did not expressly rule them inapplicable, the Court read it as implicitly confirming that straightforward parity comparisons cannot be made where Form 1 procedures are involved.

The Court also addressed the prosecution's charging discretion directly. It was entirely the prosecutor's decision whether to include the charge on a Form 1 or on the co-offenders' indictments. Once the co-offenders' pleas had been entered, that decision was not reviewable. Accordingly, it was not open to the sentencing judge, and is not open to the Court of Criminal Appeal, to sentence or re-sentence by reference to what the prosecution might have charged but did not.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • The parity principle does not apply where one offender is sentenced for an offence on indictment and co-offenders had the identical charge dealt with only via a Form 1 under s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentencing exercises are structurally incomparable.

  • Under the Form 1 procedure, no penalty is imposed for the additional charge itself. The sentencing court increases the sentence for the principal offence by some unspecified amount, meaning any resulting disparity cannot be measured or addressed through parity principles.

  • A prosecutor's decision to place a charge on a Form 1 rather than on an indictment is an exercise of prosecutorial discretion. Once a plea has been entered, that decision is not reviewable by the sentencing court or on appeal under a parity argument.

  • Appellate intervention on parity grounds is confined to cases where the grievance is justified by objective criteria. A subjective sense of unfairness, even an understandable one, does not suffice.

  • The Court of Criminal Appeal confirmed that it cannot conduct, under the parity rubric, what would effectively be a review of a prosecutorial charging decision, consistent with the High Court's reasoning in Green v The Queen (2011) 244 CLR 462 and Elias v The Queen (2013) 248 CLR 483.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 32, 33
- Crimes (Sentencing Procedure) Regulation 2010 (NSW) cl 4(1)
- Criminal Appeal Act 1912 (NSW) s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1), 25A(1)

Cases
- Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 (the Guideline Judgment)
- Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31
- Gaggioli v R [2014] NSWCCA 246
- Gordon v R [2018] NSWCCA 54
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Nguyen, Kathy v R [2015] NSWCCA 209