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14
Court of Criminal Appeal 8 November 2019

Bell v R

[2019] NSWCCA 271

Drugs
OFFENDERS — WHERE OTHER CO OFFENDERS RECEIVED SHORTER NON

Citation: Bell v R [2019] NSWCCA 271
Court: NSW Court of Criminal Appeal
Date: 8 November 2019
Judge(s): Hoeben CJ at CL, Brereton JA, Cavanagh J

Background

The applicant pleaded guilty to manufacturing a large commercial quantity of methamphetamine, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence took place at a rural property he had leased at Maroota, where a large clandestine drug laboratory was discovered by police in January 2015. Three co-offenders, who operated the laboratory with him, were charged with the same offence and also pleaded guilty.

All four offenders were sentenced to a total term of 13 years and 4 months. The three co-offenders each received a non-parole period of 9 years with a balance of term of 4 years and 4 months. The applicant, however, received a non-parole period of 10 years with a balance of term of only 3 years and 4 months, because the sentencing judge did not find that special circumstances existed to justify departing from the statutory non-parole period ratio in his favour.

The applicant sought leave to appeal, arguing primarily that the longer non-parole period gave rise to a justifiable sense of grievance when compared with his co-offenders, and that the sentencing judge had erred in failing to find special circumstances.

  • Whether the sentencing judge erred in declining to find "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Ground 1B)
  • Whether the applicant suffered a justifiable sense of grievance arising from a lack of parity between his non-parole period and those of his three co-offenders (Ground 2)

(Grounds 1A and 3, relating to procedural fairness and manifest excess respectively, were abandoned before the hearing.)

Decision

On parity (Ground 2): The Court found that the parity ground succeeded. The applicant's personal circumstances were more favourable than those of each of his co-offenders: he had no prior criminal history, demonstrated genuine remorse, had no background of drug use or gambling, and had evidence of good character and community involvement. A justifiable sense of grievance arose because, despite those comparative advantages, the applicant was required to serve a longer minimum period of actual imprisonment than his co-offenders. The Court concluded there was no good reason for his non-parole period to exceed theirs.

On special circumstances (Ground 1B): The Court was divided in its reasoning. Hoeben CJ at CL held that Ground 1B had not been established, since a finding of special circumstances is discretionary and not lightly disturbed on appeal. Cavanagh J, by contrast, found that special circumstances were made out both because the applicant's rehabilitation prospects warranted a longer parole period and because the need to maintain parity with co-offenders was itself capable of constituting special circumstances. Brereton JA agreed that special circumstances should have been found, reasoning that it followed necessarily from the Court's unanimous view that the non-parole period should not have exceeded that of the co-offenders. The majority therefore held that Ground 1B also succeeded.

On resentencing: The Court proceeded to resentence the applicant. Having regard to the finding on parity, and accepting that special circumstances existed, the Court set the non-parole period at 9 years with a balance of term of 4 years and 4 months, maintaining the total sentence of 13 years and 4 months. The sentence was to commence on 22 July 2015, with the applicant eligible for release on parole on 21 July 2024.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The applicant resentenced to a total term of 13 years and 4 months, comprising a non-parole period of 9 years commencing 22 July 2015, with a balance of term of 4 years and 4 months
  • Eligible for release on parole on 21 July 2024

Key Takeaways

  • A justifiable sense of grievance can arise where a co-offender with comparatively less favourable personal circumstances receives a shorter non-parole period. The parity principle operates to prevent such an outcome, even where the total sentences are identical.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), a finding of special circumstances is a discretionary finding of fact, and an appellate court will be slow to interfere with it unless the non-parole period is manifestly excessive or inadequate.
  • The need to maintain parity with co-offenders can itself constitute "special circumstances" for the purpose of s 44(2), as confirmed by the majority in this decision, following the approach in Tatana v Regina [2006] NSWCCA 398.
  • Where an applicant's personal characteristics are clearly more favourable than those of co-offenders sentenced to shorter non-parole periods, failing to reduce the applicant's non-parole period to match amounts to penalising, rather than rewarding, good character and conduct.
  • The Court was unanimous in allowing the appeal and resentencing the applicant, despite differing in their reasoning on Ground 1B, illustrating that the same outcome may be reached on parity grounds even where special circumstances is contested.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(1), 44(2)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 24A(1)(a)

Cases:
- House v R (1936) 55 CLR 499; [1936] HCA 40
- Lowe v The Queen (1984) 154 CLR 606
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- Tatana v Regina [2006] NSWCCA 398
- Caristo v R [2011] NSWCCA 7
- R v Fidow [2004] NSWCCA 172
- R v Lulham [2016] NSWCCA 287
- Collier v R [2012] NSWCCA 213
- Thach v R [2018] NSWCCA 252
- R v Pan [2005] NSWCCA 114
- R v Wahabzadah [2001] NSWCCA 253