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Court of Criminal Appeal 12 July 2019

Piao v R

[2019] NSWCCA 154

Drugs
OFFENDERS — DISPARITY BETWEEN SENTENCES CONSIDERATION OF BASIS UPON WHICH CO OFFENDERS SENTENCED OFFENDERS LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: Piao v R [2019] NSWCCA 154
Court: NSW Court of Criminal Appeal
Date: 12 July 2019
Judges: Basten JA; R A Hulme J; Fagan J

Background

The applicant pleaded guilty to supplying not less than the large commercial quantity of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years. Together with two co-offenders, the applicant participated in a plan to supply one kilogram of methylamphetamine to an undercover police officer. His role included counting $110,000 in cash and physically retrieving the drugs from his nearby apartment before delivering them.

The applicant was sentenced in August 2017 to nine years imprisonment with a non-parole period of six years, backdated to his arrest in April 2016. The sentencing judge calculated a head sentence of 12 years and applied a 25 per cent discount for the early guilty plea. The two co-offenders were sentenced several months later by the same judge to only three years imprisonment with a non-parole period of two years each. Following a successful Crown appeal, the Court of Criminal Appeal resentenced each co-offender to six years imprisonment with a non-parole period of four years.

Shortly after that resentencing, the applicant sought leave to appeal his own sentence on two grounds: first, that the co-offenders' sentences gave rise to a justifiable sense of grievance under the parity principle; and second, that the sentencing judge failed to take his remorse into account.

  • Whether the sentences imposed on the co-offenders (following the Crown appeal) created a justifiable sense of grievance for the applicant under the parity principle.
  • Whether the sentencing judge erred by failing to take the applicant's remorse into account as a mitigating factor.

Decision

Parity ground: The Court granted leave to appeal but dismissed the appeal. All three judges found that no justifiable sense of grievance arose from the disparity. The parity principle requires an appellate court to assess disparity by reference to objective criteria, including differences in the facts, evidence, and submissions before the sentencing court in each separate proceeding. There is no single, fixed factual matrix applicable to all co-offenders.

Fagan J, with whom the others agreed on this issue, found that the applicant's offending was objectively more serious than that of his co-offenders on the facts presented in his sentencing proceedings. The applicant physically retrieved the drugs, assumed greater risk, and occupied a position of greater responsibility and trust within the transaction. His subjective case was also less compelling than those of his co-offenders.

The Court also addressed a broader principle: each offender is sentenced once on the facts as found in their own proceedings. Where a separate sentencing hearing for co-offenders produces different factual findings that justify a lower sentence, the original offender cannot use that outcome to claim a downward adjustment of their own sentence. Basten JA described this as prohibiting a "game of downward leap-frog."

Remorse ground: The Court found no merit in this ground. The evidence relied on by the applicant was insufficient to support a finding of genuine remorse, and no error was established in the sentencing judge's approach.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The parity principle does not operate by reference to a single objective factual matrix shared across all co-offenders. Disparity in sentences is assessed against the findings of fact made, evidence adduced, and submissions put in each offender's separate sentencing proceedings.
  • Where co-offenders are sentenced at different times and on different facts, a higher sentence for one offender will not be disturbed on parity grounds merely because a later court imposed a lower sentence on the others, provided the differences in facts and subjective circumstances justify the outcome.
  • The Court of Criminal Appeal confirmed that each offender is sentenced once on facts as found in their own proceedings. A co-offender's subsequently reduced sentence does not entitle a separately sentenced offender to seek a downward revision of their own sentence on parity grounds.
  • Differences in an offender's physical role, assumption of risk, position of trust, and subjective circumstances are all relevant objective criteria when assessing whether a disparity in sentences is justified.
  • A remorse ground cannot succeed where the evidence before the sentencing court was insufficient to establish genuine remorse as a mitigating factor.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93T
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- PG v R [2017] NSWCCA 179
- R v Yiu; R v Yau [2018] NSWCCA 155
- Fenech v R [2018] NSWCCA 160
- Baquiran v R [2014] NSWCCA 221
- Nasiri v R [2019] NSWCCA 16
- Wright (a pseudonym) v R [2017] NSWCCA 289