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Court of Criminal Appeal 14 September 2020

Bridge v R

[2020] NSWCCA 233

DrugsFraud & dishonestyFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL AGGREGATE SENTENCE OFFENDERS CHARGED WITH DIFFERENT CRIMES UNDERSTANDABLE SENSE OF GRIEVANCE WHETHER CO

Citation: Bridge v R [2020] NSWCCA 233
Court: NSW Court of Criminal Appeal
Date: 14 September 2020
Judges: Johnson J, Price J (with whom Johnson and Wright JJ agreed), Wright J

Background

The applicant was sentenced in March 2018 to an aggregate term of 10 years and 4 months imprisonment, with a non-parole period of 6 years and 4 months, following convictions for a large array of offences. These included supplying a large commercial quantity of methylamphetamine (the principal offence), several other drug supply charges, possession of an unauthorised pistol, dealing with proceeds of crime, and making counterfeit money.

His co-offender, Abdul Hassian, was sentenced separately in June 2019 by a different judge to an aggregate of 10 years and 6 months with a non-parole period of 6 years. Hassian's principal offence was supplying a large commercial quantity of methylamphetamine (3.192 kilograms), which was significantly greater in volume than the applicant's 1,115.1 grams. Hassian received an indicative sentence of 5 years with a non-parole period of 2 years and 6 months for that offence.

The applicant, who was self-represented, sought leave to appeal his sentence on the sole ground that his indicative sentence for the large commercial quantity supply offence was disproportionate to the indicative sentence received by Hassian for a comparable offence. He required an extension of time, having taken no steps to progress the appeal for over a year after the Registrar extended his filing deadline.

  • Whether the parity principle applies to indicative sentences imposed within an aggregate sentencing framework under s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether Hassian's indicative sentence of 5 years for the large commercial quantity supply offence was manifestly inadequate
  • Whether, if Hassian's sentence was manifestly inadequate, the applicant could nevertheless establish a legitimate sense of grievance justifying intervention in his own sentence
  • Whether the applicant's own indicative sentence and aggregate sentence were manifestly excessive

Decision

Price J, with whom Johnson and Wright JJ agreed, accepted that the parity principle can apply to indicative sentences within an aggregate sentencing framework, not just to aggregate sentences themselves. The court also accepted that the two offenders had been sentenced for offences bearing a relevant relationship, namely the supply of large commercial quantities of methylamphetamine and the making of counterfeit money, sufficient to engage the parity analysis.

However, the court found that Hassian's indicative sentence of 5 years (with a non-parole period of 2 years and 6 months) for his supply offence was manifestly inadequate. The maximum penalty is life imprisonment, the standard non-parole period is 15 years, the objective gravity of Hassian's offending was above the midrange, and his subjective case offered little mitigation. The Form 1 matters taken into account added further weight against leniency. The indicative sentence fell well short of what the legislative framework required.

The critical consequence of that finding was that the applicant could not establish a legitimate sense of grievance. The court applied the principle established in cases including Postiglione v R and Saraya v R: where a co-offender's sentence is not merely lenient but manifestly inadequate, the resulting disparity does not give rise to a legitimate grievance capable of supporting intervention. As Price J put it, responding to one manifest error by making another would itself erode public confidence in the administration of justice, which is the very concern the parity principle is designed to address.

The court further found that the applicant's own indicative sentence for the large commercial quantity supply offence was neither unreasonable nor plainly unjust, and that neither his indicative sentence nor his aggregate sentence was manifestly excessive. The applicant did not challenge the indicative sentences for the counterfeit money offences.

Orders Made

  • Time for leave to appeal extended
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the parity principle can apply to indicative sentences under an aggregate sentencing regime, not only to aggregate sentences as a whole.
  • A co-offender's sentence that is manifestly inadequate, rather than merely lenient, does not generate a legitimate sense of grievance in the applicant sufficient to warrant reducing an otherwise appropriate sentence.
  • Under the parity principle, reducing a sound sentence to match an erroneously lenient one would compound, rather than correct, the original error by multiplying manifest mistakes.
  • Where only some offences across two co-offenders' matters share a relevant relationship, the parity analysis is confined to those offences; the broader disparity between very different charge profiles carries limited weight.
  • No error was established in the applicant's indicative sentence or aggregate sentence, and the appeal was dismissed despite leave being granted.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 Div 3
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25(2), 25A(1)
- Crimes Act 1900 (NSW), ss 59(2), 61, 93T(1A), 93T(4A), 193B(2)-(3)
- Firearms Act 1996 (NSW), ss 7(1), 65(3)
- Crimes (Currency) Act 1981 (Cth), ss 6(1), 11(2)(b), 14(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)

Cases:
- Postiglione v R (1997) 189 CLR 295
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Jimmy v R (2010) 77 NSWLR 540
- Saraya v R [2015] NSWCCA 63
- AMZ v R [2017] NSWCCA 184
- Application by AMZ pursuant to Part 7 of the Crimes (Appeal and Review) Act (NSW) [2017] NSWSC 432
- R v Ilbay [2000] NSWCCA 251
- R v Kollas and Mitchell [2002] NSWCCA 491