AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
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: Court of Criminal Appeal
Date: 12 July 2019
Judges: Basten JA at [1]; R A Hulme J at [12]; Fagan J at [48]

Background

The applicant was sentenced in the District Court to 9 years imprisonment with a non-parole period of 6 years for supplying not less than the large commercial quantity of methylamphetamine. The sentencing judge assessed an appropriate head sentence of 12 years, reduced by 25 per cent for an early guilty plea. The offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

The applicant's role in the transaction included counting $110,000 in cash intended for the purchase of one kilogram of methylamphetamine, retrieving the drug from a nearby safe house under his control, and delivering it to an undercover police operative. Two co-offenders, who coordinated and brokered the transaction, were initially sentenced by the same judge to only 3 years imprisonment with a non-parole period of 2 years. On the Crown's appeal for inadequacy, the Court of Criminal Appeal resentenced those co-offenders to 6 years imprisonment with a non-parole period of 4 years.

Prompted by the resulting gap between his sentence and those of his co-offenders, the applicant sought leave to appeal, arguing he had a justifiable sense of grievance arising from the disparity.

Legal Issues

  • Whether the applicant had a justifiable sense of grievance arising from the disparity between his sentence of 9 years and the co-offenders' resentenced terms of 6 years.
  • Whether the parity principle requires a court of criminal appeal to reduce a sentence where co-offenders were sentenced on different agreed facts and subjective material.
  • Whether the sentencing judge erred by failing to take the applicant's remorse into account.

Decision

Ground 1: Unjustified Disparity with Co-offenders

The Court rejected the disparity ground. The parity principle requires that any sense of grievance be assessed by objective criteria, not by the feelings of the person complaining of disparity (at [46]). Here, the applicant and his co-offenders were sentenced on materially different agreed facts. The co-offenders' agreed facts did not include the proposition that the applicant was acting under the instructions of one of them, and the co-offenders' subjective cases were more favourable than the applicant's (at [37]).

The Court affirmed the approach in PG v R: there is no single objective factual matrix shared across separate sentencing proceedings for co-offenders. Different courts may legitimately reach different conclusions about relative culpability where the evidence and submissions before each court differ (at [45]-[46]). The fact that this produces surface-level inconsistency is an unavoidable consequence of separate proceedings; it does not, of itself, generate a justifiable grievance.

Fagan J, analysing the roles in detail, concluded that the applicant's physical conduct was more objectively serious than that of the co-offenders. The applicant stored the drug in premises under his control, physically transported it to the exchange point, and received the cash (at [54]-[55]). Having also held a less compelling subjective case, the applicant had no legitimate basis for grievance about the higher sentence he received (at [56], [59]).

The Court also noted that when resentencing the co-offenders, the Court of Criminal Appeal had before it a finding that the applicant was "higher up the chain", explicitly acknowledging the disparity and treating it as justified (at [10]). That finding was unchallenged in the present proceedings (at [10]).

Ground 2: Remorse

This ground was rejected without difficulty. The only evidence of remorse was a single answer given by the applicant during oral evidence at the sentence hearing. No submission was made to the sentencing judge that a finding of genuine remorse should be made. The evidence was not a sufficient basis for such a finding (at [26]).

Orders Made

  • Extension of time to file Notice of Application for Leave to Appeal to 19 December 2018 granted.
  • Leave to appeal granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • The parity principle does not operate as a simple arithmetic comparison of sentences imposed on co-offenders. A sense of grievance sufficient to attract appellate intervention must be assessed by objective criteria, including the different facts, evidence, and submissions before each sentencing court (at [46]).

  • Where co-offenders are sentenced in separate proceedings on different agreed facts and subjective material, courts may legitimately reach divergent conclusions about relative culpability. This outcome, while sometimes producing surface inconsistency, does not automatically give rise to a justifiable grievance (at [45]-[46]).

  • No downward "leap-frog" of sentences is available where a co-offender later receives a lower sentence based on different materials. Each offender is to be sentenced once, on the facts as found in their own proceedings (at [6]).

  • Fagan J's analysis confirms that a coordinator or orchestrating role does not necessarily reflect greater objective culpability than a role involving physical custody of the drug, personal delivery of it to the point of exchange, and receipt of the purchase money, particularly where there is no evidence that the coordinating co-offenders were the principals in the transaction (at [54]-[56]).

  • A bare assertion of remorse through a single answer in oral evidence, unsupported by any submission to the sentencing judge that a finding of genuine remorse should be made, is insufficient to establish that ground on appeal (at [26]).

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
- Baquiran v R [2014] NSWCCA 221
- Fenech v R [2018] NSWCCA 160
- 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
- Nasiri v R [2019] NSWCCA 16
- PG v R [2017] NSWCCA 179
- R v Yiu; R v Yau [2018] NSWCCA 155
- Wright (a pseudonym) v R [2017] NSWCCA 289