AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 23 October 2020

Cutajar v R

[2020] NSWCCA 273

DrugsFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL ADDITIONAL OFFENCE ON A FORM 1 PARITY WITH SENTENCE OF CO OFFENDER APPLICANT'S REHABILITATION EFFORTS

Citation: Cutajar v R [2020] NSWCCA 273
Court: Court of Criminal Appeal, NSW
Date: 23 October 2020
Judges: Hoeben CJ at CL, Button J, N Adams J

Background

The appellant was the co-owner and occupier of a semi-rural property at Badgery's Creek where police surveillance uncovered an operation manufacturing large quantities of methylamphetamine. Recorded conversations showed him actively involved in discussing drug quality, acting as a storeman for the product, and sharing in the proceeds of sale. When police searched the property in August 2015, they seized 15.98 kilograms of methylamphetamine and a prohibited firearm with accessories.

The appellant pleaded guilty to manufacturing not less than a large commercial quantity of methylamphetamine under s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW), an offence carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. He was sentenced in June 2017 to a non-parole period of 7 years, with a total sentence of 11 years. A concurrent 12-month term was imposed for possession of a prohibited firearm, with two further firearms offences taken into account on a Form 1.

His co-offender, who had attended the property on several occasions and acted as the primary agent for the distribution and sale of the manufactured drug, was sentenced separately in December 2018 by a different judge to 6 years and 4 months with a non-parole period of 4 years, for manufacturing not less than a large commercial quantity (7.98 kilograms). After becoming aware of the co-offender's sentence, the appellant sought legal aid and filed a notice of appeal, well outside the ordinary time limit.

  • Whether the extension of time to file the appeal should be granted
  • Whether the disparity between the appellant's sentence and that of his co-offender gave rise to a justifiable sense of grievance, warranting appellate intervention on parity grounds

Decision

The Court granted the extension of time, noting the Crown did not oppose it. The substantive question was whether the difference in sentences violated the principle of equal justice articulated in cases such as Lowe v The Queen and Postiglione v The Queen. The parity principle requires that co-offenders should not receive sentences that are so different as to appear unjust, unless those differences are explained by genuinely different circumstances.

N Adams J, with whom the other judges agreed, found that the factual circumstances of the two offenders differed in several material respects. The appellant's sentence started from a significantly higher base, reflecting that he was the property owner, was present throughout the operation, and had 15.98 kilograms seized at his property, almost twice the quantity attributed to the co-offender's charge. The co-offender's role, while significant as the commercial distributor, was characterised differently in his agreed facts, and the sentencing judge accepted that he was remorseful.

The Court was not satisfied that the starting point for the co-offender's sentence was inconsistent with his lower quantity and different factual role, or that the appellant's higher sentence reflected an error in principle. The difference in sentences was sufficiently explained by the different objective criminality of each offender. Accordingly, no justifiable sense of grievance was established, and the appeal was dismissed.

The Court took the occasion to repeat a concern about the practice of sentencing co-offenders separately before different judges. N Adams J reiterated that wherever possible, the Director of Public Prosecutions should make all reasonable efforts to ensure co-offenders are sentenced by the same judge, who can assess the interrelationship between objective and subjective features of both offenders in a holistic way.

Orders Made

  • Extension of time to appeal granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The parity principle does not require identical sentences for co-offenders. Differences in the quantity of drugs, the nature of each offender's role, and their individual subjective circumstances can each constitute sufficient explanation for significantly different sentencing outcomes.
  • A justifiable sense of grievance, as required to succeed on a parity ground, was not established where the objective criminality of the two offenders differed materially, even though the appellant's sentence started from almost twice the base of his co-offender's sentence.
  • In dismissing the appeal, the Court of Criminal Appeal emphasised that the same judge should, wherever possible, sentence all co-offenders, so that the interrelationship between each offender's circumstances can be assessed holistically.
  • Where an appellant was unaware of a co-offender's sentence until after the ordinary appeal period had expired, that circumstance can ground an application for an extension of time to appeal on parity grounds.
  • Under s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW), manufacturing not less than the large commercial quantity of methylamphetamine carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years, reflecting the legislature's assessment of the gravity of large-scale drug manufacturing.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)
- Firearms Act 1996 (NSW), s 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Appeal Act 1912 (NSW), s 5(1)

Cases:
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Dungay v R [2020] NSWCCA 209