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Court of Criminal Appeal 3 June 2020

Chamon v R

[2020] NSWCCA 112

DrugsFraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE PARITY SAME SENTENCING JUDGE FOR CO OFFENDERS

Citation: Chamon v R [2020] NSWCCA 112
Court: Court of Criminal Appeal, New South Wales
Date: 3 June 2020
Judge(s): R A Hulme J, Hamill J, Wilson J

Background

The applicant pleaded guilty in the District Court to three offences arising from his involvement in a Sydney-based drug supply syndicate operating between late 2017 and April 2018. Those offences were: knowingly dealing with proceeds of crime (approximately $163,000 in cash found at his home and in his car); participating in a criminal group; and supplying 28.3 grams of MDMA. Two further drug supply offences were taken into account on a Form 1. The sentencing judge imposed an aggregate sentence of five years' imprisonment with a non-parole period of three years.

Three co-offenders, Hannachi, Watchou and Micah, were also sentenced by the same judge for their roles in the same syndicate. Hannachi received an aggregate sentence of six years with a non-parole period of three years and seven months. Micah received an intensive correction order of one year and ten months. Watchou received a lesser sentence than the applicant.

The applicant sought leave to appeal on a single ground: that the disparity between his sentence and those of his co-offenders gave rise to a justifiable sense of grievance, engaging the parity principle in sentencing.

  • Whether the disparity between the applicant's sentence and those imposed on his co-offenders was sufficient to give rise to a justifiable sense of grievance under the parity principle.
  • How the parity principle applies when co-offenders are charged with different offences, carry different maximum penalties and standard non-parole periods, and occupy different roles in the criminal enterprise.
  • Whether the sentencing judge adequately addressed the comparative circumstances of the offenders when imposing sentence.

Decision

The Court granted leave to appeal but, by majority (Hulme J and Wilson J, Hamill J dissenting), dismissed the appeal. The majority found that the sentencing judge had carefully considered the comparative circumstances of each offender and identified legitimate reasons for the differences in sentence. In particular, the judge addressed the different offences charged, the different roles played, and the different personal circumstances of each co-offender.

The majority accepted that direct comparison between the sentences was made difficult by the absence of any common charges. Watchou faced a single offence carrying a maximum penalty of 15 years and a standard non-parole period, while the applicant's offences carried lower maxima and no standard non-parole periods. Micah's sentence, though lighter, reflected his limited, street-level role over a short period and the particular features of his charge. The majority concluded that the differentiation made by the sentencing judge was open on the evidence and that no justifiable sense of grievance was established.

Hamill J dissented. His Honour accepted the same legal principles but reached a different factual conclusion, finding that the applicant, despite his more senior and trusted role in the enterprise and the significantly larger proceeds of crime amount attributed to him, received a sentence that lacked due proportion to those of his co-offenders. On those facts, Hamill J would have upheld the appeal.

Wilson J agreed with Hulme J's analysis and reasoning, confirming that the sentence was modest in the circumstances and that the parity ground was not made out.

Orders Made

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

Key Takeaways

  • The parity principle is not excluded by practical difficulties in comparing sentences, including where co-offenders face different charges with different maximum penalties and standard non-parole periods.
  • Where a sentencing judge has explicitly addressed the comparative circumstances of co-offenders, an appellate court will be slow to interfere, particularly when the same judge has sentenced all parties.
  • The ultimate appellate question is whether, considered objectively and accounting for all relevant differences, a proper "due proportion" exists between the sentences, and whether the outcome leaves the applicant with a justifiable sense of grievance.
  • In dismissing the appeal, the majority found that differences in charges, roles, maximum penalties, standard non-parole periods and personal circumstances each independently justified the sentencing outcomes reached.
  • A majority of the Court of Criminal Appeal confirmed that a "modest" sentence, even one that appears lenient relative to a co-offender's greater culpability, does not automatically generate a justifiable sense of grievance in a co-offender sentenced more heavily.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93T(1), 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases:
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Jimmy v The Queen (2010) 77 NSWLR 540
- Lloyd v R [2017] NSWCCA 303
- Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77
- Dunn v R [2018] NSWCCA 108
- Tatana v R [2006] NSWCCA 398
- Hilder v R [2011] VSCA 192
- McCloskey-Sharp v R [2015] VSCA 87
- Roujnikov v R [2015] VSCA 97
- Anthony v R [2016] VSCA 22
- Ryan v R [2016] VSCA 255
- Williamson v R [2019] VSCA 138