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7
Court of Criminal Appeal 29 June 2018

Dayment v R

[2018] NSWCCA 132

Drugs
CRIME APPEAL AGAINST SENTENCE OBJECTIVE SERIOUSNESS GROUND REJECTED. CRIME APPEAL AGAINST SENTENCE OFFENDERS

Citation: Dayment v R [2018] NSWCCA 132
Court: NSW Court of Criminal Appeal
Date: 29 June 2018
Judges: Payne JA; R A Hulme J; Fagan J

Background

The applicant was sentenced in the District Court following guilty pleas to two drug offences arising from events on 31 July 2015. The first offence was supplying 85.26 grams of cocaine. The second, and more serious, offence was knowingly taking part in the supply of a large commercial quantity of MDMA (1,366 grams), an offence carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

The applicant had been in a relationship with her co-offender, Nicholas Riganias, whose unit she frequented. Her fingerprints and DNA were found on packaging containing the MDMA. The Crown accepted that her role was limited and at the direction of Riganias, rather than part of her own enterprise. Text messages and a drug ledger found on her phone indicated her involvement in drug supply activity extended beyond the specific offences charged.

The aggregate sentence imposed was 5 years 6 months imprisonment with a non-parole period of 3 years 3 months. The applicant sought leave to appeal on two grounds: that the sentencing judge misjudged the objective seriousness of the MDMA offence, and that the sentence was unjustifiably disparate from that imposed on her co-offender Riganias, who received an aggregate sentence of 8 years.

  • Whether the sentencing judge erred in her assessment of the objective seriousness of the MDMA offence, specifically in how she weighed the absence of financial gain and the degree of premeditation and planning.
  • Whether the disparity between the applicant's sentence and the co-offender's sentence was such as to give the applicant a justifiable sense of grievance.

Decision

Ground 1: Objective seriousness

R A Hulme J (with whom Payne JA and Fagan J agreed) rejected the first ground. The sentencing judge had placed the MDMA offence below the mid-range of seriousness but not at the lower end, and the Court of Criminal Appeal found no error in that assessment. The applicant argued that the absence of direct financial gain and a lack of full premeditation warranted a lower placement, but the Court found these factors did not compel a departure from the judge's characterisation. The applicant's handling of the drug packaging and her role in facilitating supply, even as an assistant rather than an organiser, supported the judge's finding.

Ground 2: Sentence disparity

The Court also rejected the second ground. Riganias received an aggregate sentence of 8 years, compared to the applicant's 5 years 6 months. Both sentences required the offender to serve just under 60 per cent of the total term before becoming eligible for parole. The Court acknowledged that the co-offender's subjective circumstances were more favourable (including evidence of rehabilitation and other personal factors), while the applicant's objective circumstances were more favourable given her lesser role. Taking a broad view of the comparison, the Court found the difference in sentences was fair, reasonable and sensible, and no objective basis existed for the applicant to hold a legitimate sense of grievance.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • In dismissing both grounds, the Court of Criminal Appeal confirmed that a sentencing judge's assessment of objective seriousness will not be disturbed on appeal merely because the applicant identifies individual mitigating factors that might, in isolation, suggest a lower placement on the scale of seriousness.
  • A justifiable sense of grievance arising from co-offender sentencing disparity requires more than a raw comparison of sentence lengths. The Court must examine differences in culpability, the nature of the charges faced, and the subjective circumstances of each offender before concluding that any disparity is unfair.
  • Where one co-offender faces more serious charges and a greater number of offences but also has more favourable subjective circumstances, and the other has a lesser objective role but less compelling personal mitigation, a sentencing outcome reflecting those competing considerations will generally withstand appellate scrutiny.
  • The standard applicable to co-offender disparity draws on Lowe v The Queen (1984) and Postiglione v The Queen (1997): disparity must be such as to give rise to a justifiable sense of grievance, assessed objectively rather than by the applicant's own perception.
  • Fingerprint and DNA evidence linking an offender to drug packaging, combined with text messages and a drug ledger, can support a finding of meaningful participation in supply even where the Crown accepts the offender's role was limited and directed by another.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2B)

Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Dunn v R [2018] NSWCCA 108
- Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77
- Mulato v R [2006] NSWCCA 282
- R v Deng (1996) 91 A Crim R 80