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Court of Criminal Appeal 14 June 2019

Lee v R

[2019] NSWCCA 106

Drugs
CRIMINAL LAW OBJECTIVE SERIOUSNESS APPEALS PARITY PRINCIPLE EQUALITY BEFORE THE LAW SUBSTANCE RATHER THAN FORM

Citation: Lee v R [2019] NSWCCA 106
Court: NSW Court of Criminal Appeal
Date: 14 June 2019
Judges: Hoeben CJ at CL; Johnson J; Campbell J

Background

The applicant pleaded guilty in the Local Court to supplying a large commercial quantity of cocaine (one kilogram) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). He was sentenced in the District Court in August 2017, with three further matters taken into account on a Form 1: dealing with the proceeds of crime ($23,370), participating in a criminal group, and knowingly allowing his premises to be used as drug premises.

The applicant's role within the syndicate was that of a warehouse operator. Drivers employed by the operation attended his home unit to replenish their stocks of pre-packaged cocaine, but only upon the express authority of a co-offender named Hadi. The applicant supplied drivers strictly in accordance with Hadi's instructions, and there was no agreed fact establishing that the applicant was himself a source of the drugs.

The District Court imposed a sentence of 7 years and 6 months, with a non-parole period of 5 years, after applying a 25 percent discount for an early guilty plea. The applicant sought leave to appeal, arguing that the primary judge wrongly assessed his role and objective seriousness, and that unjustified sentencing disparity existed between his sentence and those imposed on co-offenders.

  • Whether the primary judge erred by characterising the applicant's role in the drug supply enterprise as more serious than the evidence supported, thereby misassessing the objective seriousness of the offending.
  • Whether the ratio of the non-parole period to the additional term in the applicant's sentence, compared with that of co-offenders, gave rise to a justifiable sense of grievance under the parity principle.
  • Whether the overall disparity between the applicant's sentence and those of co-offenders Hadi and Greentree gave rise to a justifiable sense of grievance, independently of the first ground.

Decision

The Court of Criminal Appeal held that the primary judge had erred in assessing the applicant's role. The primary judge had proceeded on a characterisation of the applicant's involvement that went further than the evidence warranted, treating his role as more significant than was established by the agreed facts and the telephone intercept evidence. Because that error infected the assessment of objective seriousness, the evaluation could not stand.

On the parity principle, the Court accepted that a comparison of the applicant's sentence with those imposed on co-offenders gave rise to a justifiable sense of grievance. The parity principle requires courts to look at substance rather than form and to assess whether an unjustifiable disparity exists having regard to the objective and subjective circumstances of each offender. The disparity in this case met that threshold.

Having found error on both the role assessment and parity grounds, the Court proceeded to resentence the applicant. The Court took into account the statutory guidepost of the standard non-parole period of 15 years and the maximum penalty of life imprisonment. It also had regard to favourable affidavit evidence of the applicant's impressive rehabilitation progress, including vocational training, art studies, responsible employment within the corrections system, and strong family support. Special circumstances were found, with the ratio rounded down to 66 percent.

The resentenced term was reduced to 6 years imprisonment with a non-parole period of 4 years, commencing from the date of the original sentence, 2 September 2015.

Orders Made

  • Leave to appeal granted and the appeal allowed.
  • The sentence passed in the District Court on 11 August 2017 quashed.
  • The applicant resentenced to 6 years imprisonment, with a non-parole period of 4 years commencing 2 September 2015 and expiring 1 September 2019, and an additional term of 2 years commencing 2 September 2019 and expiring 1 September 2021.
  • The applicant was first eligible for release on parole on 1 September 2019.

Key Takeaways

  • Where a sentencing judge characterises an offender's role in a drug supply enterprise more seriously than the evidence supports, that error will also corrupt the assessment of objective seriousness, providing a ground of appeal.
  • The parity principle operates on substance rather than form: courts must look beyond the labels attached to roles and examine whether an unjustifiable disparity in outcomes exists when comparing the objective and subjective circumstances of co-offenders.
  • A justifiable sense of grievance under the parity principle was established here by the disparity between the applicant's sentence and those of co-offenders, even where the co-offenders occupied nominally more senior roles in the syndicate.
  • In resentencing, the Court of Criminal Appeal treated affidavit evidence of significant post-sentencing rehabilitation, including vocational achievement and responsible employment in custody, as a relevant mitigating factor.
  • Under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), supplying a large commercial quantity of cocaine carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years, both of which function as statutory guideposts in the sentencing exercise.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases
- AB v R [2014] NSWCCA 339
- Aoun v R [2011] NSWCCA 284
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Ho v R [2013] NSWCCA 174
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Koh v R [2013] NSWCCA 287
- Mulato v R [2006] NSWCCA 282
- R v O'Donoghue (1988) 34 A Crim R 397
- R v Storey [1998] 1 VR 359
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64