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Court of Criminal Appeal 23 July 2020

Phan v R

[2020] NSWCCA 168

Drugs
CRIMINAL LAW SENTENCE APPEAL TWO OFFENCES PAROLE PERIOD OF 3 YEARS AND 6 MONTHS WHETHER PARITY PRINCIPLE BREACHED NEED TO RESENTENCE

Citation: Phan v R [2020] NSWCCA 168
Court: Court of Criminal Appeal, New South Wales
Date: 23 July 2020
Judges: Hoeben CJ at CL; Rothman J; Fagan J

Background

The appellant, a Vietnamese national unlawfully in Australia, pleaded guilty in the Parramatta Local Court to two offences of knowingly taking part in the cultivation of prohibited plants by enhanced indoor means. The first offence involved 165 cannabis plants at a Carlingford property; the second involved 288 cannabis plants at a Parramatta property. A further offence of participating in a criminal group was taken into account on a Form 1.

The offending was connected to a South East Asian crime syndicate operating across north-western Sydney. Police surveillance gathered extensive evidence of the appellant's involvement, including DNA on a gardening glove found at the Parramatta premises and records linking his mobile number to rent payments for that property.

The sentencing judge imposed an aggregate sentence of 5 years and 6 months with a non-parole period of 3 years and 6 months, after applying a 25 per cent discount for the guilty pleas. The appellant sought leave to appeal on three grounds.

  • Whether the sentencing judge erred in his assessment of the objective seriousness of the offences
  • Whether the sentencing judge failed to correctly apply the parity principle in relation to a co-offender
  • Whether the aggregate sentence was manifestly excessive

Decision

Ground 1: Objective seriousness. The Court found that the sentencing judge had erred in his assessment of the objective seriousness of the offences. This error was sufficient to require the Court to resentence the appellant. However, after independently evaluating the objective circumstances of the offending and the appellant's subjective circumstances, the Court concluded that no lesser sentence was warranted in law.

Ground 2: Parity. The Court rejected the parity argument. Rothman J, applying reasoning consistent with his concurrent judgment in Downes v R [2020] NSWCCA 167, confirmed that a parity error must be manifest and must give rise to a justifiable sense of grievance. In this case, any difference between the sentences of the appellant and his co-offender rationally reflected differences in their respective circumstances of offending and their subjective circumstances. No unjustified disparity was established.

Ground 3: Manifest excess. The Court declined to find that the aggregate sentence was manifestly excessive. Rothman J observed that, having regard to the maximum penalties and the standard non-parole period applicable to the large commercial quantity offence, the aggregate sentence was in fact lenient. The appellant's submission that he did not realise he was engaged in illegal conduct until it was too late was rejected as implausible given the overwhelming indicia of illegality at each location.

The Court also noted that the aggregate sentence reflected a significant degree of notional concurrency among the indicative sentences, and that the sentencing judge's approach was consistent with available guideposts.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that identifying a sentencing error on objective seriousness does not automatically produce a lesser sentence on resentencing; the appellate court independently assessed all relevant factors and reached the same result.
  • A parity argument will not succeed unless the alleged disparity is manifest and gives rise to a justifiable sense of grievance. Differences that rationally reflect the distinct circumstances of co-offenders do not constitute a parity error.
  • In dismissing the appeal, the Court underscored that an aggregate sentence may be affirmed, or even described as lenient, where the maximum penalties and standard non-parole periods applicable to the individual offences provide a high ceiling against which the aggregate is measured.
  • Where an appellant asserts a lack of awareness of the illegal nature of their conduct, that claim will be assessed against the totality of the factual circumstances; here, the Court found the contention had no credibility given the scale and sophistication of the cannabis operations.
  • Under the totality principle, a sentencing court may build in notional concurrency when imposing an aggregate sentence, and the Court of Criminal Appeal will assess manifest excess by reference to that aggregate rather than simply by adding indicative sentences.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(2)(a)
- Crimes Act 1900 (NSW), s 93T(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Electricity Supply Act 1995 (NSW), s 64(1)

Cases:
- Downes v R [2020] NSWCCA 167
- Fenech v R [2018] NSWCCA 160
- Gill v R [2010] NSWCCA 236
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Kay v R [2019] NSWCCA 275
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Barri [2004] NSWCCA 221
- R v Qutami [2001] NSWCCA 353
- Tepania v R [2018] NSWCCA 247
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64