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Court of Criminal Appeal 13 February 2019

Christie-Gilbert v R

[2019] NSWCCA 9

Drugs
CRIMINAL LAW SENTENCE APPEAL APPLICANT AND CO OFFENDER

Citation: Christie-Gilbert v R [2019] NSWCCA 9
Court: NSW Court of Criminal Appeal
Date: 13 February 2019
Judge(s): Hoeben CJ at CL; Wright J; Fagan J

Background

The applicant drove a co-offender's vehicle from Newcastle to Adelaide and back, during which police intercepted the car on the Sturt Highway in New South Wales. A search uncovered 10.5kg of cannabis and 218.5g of MDMA (ecstasy). The applicant pleaded guilty in the Local Court to knowingly taking part in the supply of not less than a commercial quantity of MDMA, with the cannabis supply offence dealt with on a Form 1 (a procedure under which additional offences are acknowledged at sentencing and taken into account, without separate conviction).

The sentencing judge in the District Court rejected the applicant's account that he was unaware of the drugs until late in the trip and had been coerced into participation. The judge found the applicant's evidence grossly implausible and concluded he was a knowing and willing participant who anticipated financial or drug-based reward.

The applicant was sentenced to a total term of 5 years and 6 months with a non-parole period of 3 years and 6 months. His co-offender, who had pleaded guilty to more serious charges (including a larger quantity of MDMA and additional prior-day offences), received an effective total term of 6 years and 6 months with an effective non-parole period of 4 years and 6 months. The applicant sought leave to appeal, arguing the sentence was manifestly excessive and that the disparity with his co-offender's sentence did not adequately reflect his lesser role.

  • Whether the sentence imposed on the applicant was manifestly excessive in all the circumstances.
  • Whether the parity principle was properly applied, given the differences in role and culpability between the applicant and his co-offender.

Decision

On manifest excess, the Court of Criminal Appeal found no error. Hoeben CJ at CL noted that sentencing is not a mathematical exercise and requires the balancing of many competing factors. The sentencing judge had properly weighed the applicant's lesser role against the seriousness of the overall criminal enterprise, the volume of drugs involved, and the offences on the Form 1. The sentence arrived at was within the available range and did not exceed what was warranted.

On the parity ground, the Court acknowledged that the co-offender faced more and heavier charges, including a larger MDMA quantity and additional drug and proceeds offences from the previous day. Those differences justified the gap in sentences. Hoeben CJ at CL accepted that the applicant was unlikely to have played a role in planning the enterprise, but found his participation was nonetheless essential and his objective criminality high.

The Court emphasised that the sentencing judge had expressly engaged with the parity principle and provided detailed reasons for treating the applicant's conduct as seriously criminal. While different minds might reach different views on the precise degree of differentiation, no specific error in the exercise of the sentencing discretion was identified. Interfering with the sentence in those circumstances would itself constitute an impermissible interference with that discretion.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that parity between co-offenders does not require identical sentences; differences in charges, quantities, and prior conduct can justify a substantial gap.
  • A sentencing judge's rejection of a defendant's credibility, where supported by findings of gross implausibility, can significantly affect the weight given to any mitigating account and inform findings about moral culpability.
  • Where a defendant participates in a multi-day interstate drug run alongside a co-offender who is also their drug dealer, a sentencing court is entitled to find the participant expected financial or drug-based reward even in the absence of direct evidence of an agreed payment.
  • No specific error having been identified in the exercise of the sentencing discretion, the appellate court declined to substitute its own view of what the sentence should be, reinforcing the high threshold for appellate interference in sentencing matters.
  • Form 1 offences (additional offences taken into account at sentence without separate conviction) are a legitimate factor a sentencing judge may weigh when calibrating the overall sentence, including when comparing the position of co-offenders.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)
- Road Transport Act 2013 (NSW), s 112(1)(a)

Cases:
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Burrows v R [2017] NSWCCA 45
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Hughes v R [2018] NSWCCA 2
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Muldrock v The Queen (2011) 244 CLR 120
- Nguyen, Kathy v R [2015] NSWCCA 209
- Wat v R [2017] NSWCCA 62