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Court of Criminal Appeal 5 April 2019

Connell v R

[2019] NSWCCA 70

DrugsFraud & dishonesty
CRIMINAL LAW APPEAL SENTENCE PARITY PRINCIPLE OFFENDER NO UNJUSTIFIED DISPARITY CRIMINAL LAW

Citation: Connell v R [2019] NSWCCA 70
Court: NSW Court of Criminal Appeal
Date: 5 April 2019
Judges: Macfarlan JA, Fullerton J, Bellew J (Bellew J delivering the leading judgment)

Background

The applicant pleaded guilty in the District Court to three offences arising from his participation in a drug supply syndicate operating in Sydney between 2014 and 2015. The offences were: supplying a prohibited drug on an ongoing basis, dealing with the proceeds of crime ($2,950), and supplying a prohibited drug in a quantity not less than the indictable amount (375.45 grams of Gamma-Butyrolactone). Five additional matters were taken into account on a Form 1.

The sentencing judge gave indicative sentences for each charge and then imposed an aggregate sentence of 3 years and 6 months imprisonment, with a non-parole period of 2 years. The applicant's co-offender in the syndicate, a solicitor named Gouliaditis, had been sentenced separately in the District Court.

The applicant sought leave to appeal, arguing that the aggregate sentence was infected by parity error relative to the sentence imposed on his co-offender, and separately that the sentencing judge erred in the structure of the indicative sentences by not making two of them wholly concurrent.

  • Whether the applicant had a justifiable sense of grievance arising from a disparity between his sentence and the sentence imposed on his co-offender (the parity principle).
  • Whether the sentencing judge erred by not indicating that the proceeds of crime offence and the supply offence should both be served wholly concurrently with the ongoing supply offence.
  • Whether the aggregate sentence, viewed as a whole, reflected the overall criminality of the offender and was not manifestly excessive.

Decision

Parity. The court held that no unjustified disparity existed between the applicant's sentence and that of his co-offender. The court identified several differentiating factors that justified the respective sentences, including differences in the offenders' roles, criminal histories, and personal circumstances. The parity principle, derived from cases such as Lowe v R and Postiglione v R, requires that co-offenders not be left with a justifiable sense of grievance, but that principle does not mandate equal outcomes where genuine distinctions exist.

Concurrence and cumulation. The applicant argued that the proceeds of crime offence and the supply offence should have been treated as wholly concurrent with the ongoing supply offence. The court rejected this contention. There is no fixed rule requiring wholly concurrent sentences whenever an offender is sentenced for drug supply and related proceeds of crime offences. Whether sentences run concurrently or cumulatively is governed by the principles of totality and by whether the criminality of one offence is fully comprehended within the sentence for another.

Aggregate sentence. The court observed that aggregate sentencing creates a particular difficulty for appellate courts asked to scrutinise concurrence and accumulation, because a sentencing judge is not obliged to explain how those questions were resolved when imposing an aggregate sentence. The ultimate question is whether the aggregate sentence reflects the overall criminality of the offender. On the facts, the court was satisfied that the aggregate sentence of 3 years and 6 months did so: the ongoing supply offence involved a vital role in systematic drug distribution; the supply offence was committed on bail and during an adjournment granted specifically for an Intensive Corrections Order assessment; and the quantity involved was seven times the indictable threshold. The sentence was not manifestly excessive, and the ground was not made out.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle does not produce identical sentences for co-offenders where genuine differentiating factors, such as role, criminal history, or personal circumstances, justify different outcomes.
  • No general rule requires that sentences for drug supply and dealing with the proceeds of crime be imposed wholly concurrently. The correct framework is totality and whether one sentence fully comprehends the criminality of another.
  • Where an aggregate sentence is imposed, a sentencing judge is not required to explain the resolution of concurrence and accumulation questions. The Court of Criminal Appeal confirmed that requiring such explanation would undermine the simplified process Parliament established for aggregate sentencing.
  • In dismissing the appeal, the court affirmed that the central appellate inquiry in aggregate sentence cases is whether the total term reflects the offender's overall criminality, not whether any individual indicative component was structured in a particular way.
  • Committing a further supply offence while on bail and during an adjournment granted for remedial assessment purposes is a significant aggravating circumstance capable of supporting a higher aggregate sentence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25A, 36X(1)(a)
- Crimes Act 1900 (NSW), ss 58, 193B(2)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)

Cases:
- Cahyadi v R [2007] NSWCCA 1
- Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
- Jadron v R [2015] NSWCCA 217
- Lowe v R [1984] HCA 46; (1984) 154 CLR 606
- Pizzimenti v R [2017] NSWCCA 231
- Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
- R v Gouliaditis (No 2) [2016] NSWDC 216
- Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77
- Toksoz v R [2019] NSWCCA 10