Citation: Sheather v R [2020] NSWCCA 162
Court: Court of Criminal Appeal, NSW
Date: 17 July 2020
Judge(s): Johnson J, Davies J, Ierace J
Background
The applicant was a cocaine runner operating as part of an organised drug supply syndicate in Sydney's eastern suburbs, St George area, and inner west. A police strike force investigation ran between October 2017 and May 2018, using intercepted phone calls, physical surveillance, and electronic monitoring. The syndicate, led by a co-offender, used a structured system in which customers phoned a central number to place orders, and runners were then directed to meet those customers and exchange cocaine for cash.
The applicant personally supplied 630 bags totalling 308.7 grams of cocaine, making him the syndicate's primary runner. He pleaded guilty in the Local Court to supplying a commercial quantity of a prohibited drug, and was committed to the District Court for sentencing. A further offence of participating in a criminal group was taken into account on a Form 1 (a procedural mechanism allowing related offences to be acknowledged at sentencing without separate conviction).
Judge N Williams sentenced the applicant in the District Court on 25 October 2019 to a non-parole period of three years, two months and two days, with a balance of term of one year, eight months and 13 days. The applicant sought leave to appeal, arguing the sentence was manifestly excessive and, by amendment, that he had a legitimate sense of grievance compared with the sentence given to a co-offender, Mr Day.
Legal Issues
- Whether the sentence imposed was manifestly excessive, including whether the sentencing judge misused statistical data and improperly diminished the applicant's favourable subjective circumstances
- Whether the applicant had a justifiable sense of grievance arising from a disparity between his sentence and the sentence imposed on co-offender Mr Day, who received an intensive correction order
Decision
On the manifest excess ground, the Court of Criminal Appeal found no error warranting intervention. The sentencing judge had identified special circumstances based on a psychiatric report and family circumstances, and had applied a 25% discount reflecting the utilitarian value of the guilty plea, which was also treated as evidence of remorse. The applicant's role was primarily that of a runner but was occasionally more senior, the quantity supplied was well above the commercial threshold, and the operation was highly lucrative. The Court found the sentence was not manifestly excessive.
On the parity ground, the Court noted the significant differences between the applicant and Mr Day. Mr Day was charged with supplying an indictable quantity of cocaine, which is a lower-level offence corresponding to his smaller role (174 bags, 85.26 grams). The applicant, by contrast, had supplied a commercial quantity and carried a number of prior serious offences and periods of imprisonment on his record. Mr Day had no prior record and had progressed well in rehabilitation, which supported the District Court's finding that an intensive correction order was more appropriate for him.
The sentencing judge had expressly acknowledged the parity principle and sentenced all three offenders on the same day after hearing all submissions together. The Court of Criminal Appeal applied established principles, noting that where a sentencing judge is fully aware of co-offenders' sentences and reasons, and has addressed parity directly, considerable obstacles face an applicant seeking to establish error on that basis. The Court found the applicant had no justifiable sense of grievance.
The Court also took the opportunity to note that the practice of imposing sentences expressed in years, months, and additional days is undesirable. Sentences should be rounded up or down and pronounced in years and months only.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A sentencing judge's express acknowledgment of the parity principle, combined with sentencing all co-offenders on the same day after hearing all evidence together, significantly narrows the scope for a successful parity challenge on appeal.
- Differences in the charges laid against co-offenders, reflecting their different levels of participation and the different quantities of drugs they supplied, can justify substantial differences in sentence outcomes, including the choice between full-time custody and an intensive correction order.
- In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that a sentence for commercial drug supply can remain within range even where favourable subjective circumstances, such as a psychiatric condition and family situation, are identified and taken into account.
- Under the practice guidance restated in this judgment, sentences must be expressed in years and months only, not in combinations that include additional days, with any precise calculation rounded up or down at the sentencing judge's discretion.
- A co-offender's prior criminal record, including prior periods of imprisonment for serious offences, is a material distinction that can defeat a parity argument even where that co-offender's primary role was nominally comparable to another offender who received a more lenient sentence.
Legislation and Cases Referenced
Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
Cases:
- Chamon v R [2020] NSWCCA 112
- Hughes v R [2018] NSWCCA 2
- Vaiusu v R [2017] NSWCCA 71
- Rios v R [2012] NSWCCA 8
- Tatana v R [2006] NSWCCA 398
- Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77