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Court of Criminal Appeal 28 October 2020

Bond v R

[2020] NSWCCA 277

Drugs
C RIMINAL LAW SENTENCE APPEAL PARITY WITH SENTENCE OF CO OFFENDER RELEVANCE OF CO OFFE NDER’S REHABILITATION EFFORTS

Citation: Bond v R [2020] NSWCCA 277
Court: NSW Court of Criminal Appeal
Date: 28 October 2020
Judges: McCallum JA, Campbell J, N Adams J

Background

The appellant was convicted of supplying not less than the commercial quantity of methylamphetamine (361.22 grams), an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) carrying a maximum of 20 years imprisonment and a standard non-parole period of 10 years. He pleaded guilty at an early stage and was sentenced in the District Court in June 2019 to 5 years imprisonment with a non-parole period of 2 years and 9 months. Two additional offences were taken into account on a Form 1, including an agreement to supply a further 481.9 grams of methylamphetamine.

Nearly a year later, his co-offender was sentenced by the same judge for the related but differently charged offence of supplying methylamphetamine on an ongoing basis under s 25A(1) of the same Act, an offence with the same maximum penalty but no standard non-parole period. The co-offender, who pleaded guilty late and had been on bail, received a total term of 4 years and 6 months with a non-parole period of approximately 16 months. That sentence followed the co-offender completing a residential rehabilitation program at Odyssey House while on bail.

The appellant contended that this comparison gave rise to a justifiable sense of grievance. He sought leave to appeal on the sole ground that the disparity between his sentence and his co-offender's was marked and unjustified, particularly given that he had pleaded guilty early while his co-offender pleaded late.

  • Whether the appellant had a justifiable sense of grievance arising from the disparity between his sentence and the lesser sentence imposed on his co-offender.
  • Whether the sentencing judge adequately accounted for the parity principle when the co-offender was sentenced after the appellant.
  • Whether differences in the two offenders' subjective circumstances, including rehabilitation efforts, guilty plea timing, and Form 1 offences, sufficiently justified the sentencing differential.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. N Adams J (with McCallum JA and Campbell J agreeing) found that, while the parity principle required courts to avoid unjustifiable disparity between co-offenders, the critical question is always whether the difference in sentences is explained by genuine differences in the respective cases. It is not sufficient merely to point to the fact that an early-guilty-plea offender received a longer sentence than a late-guilty-plea co-offender.

The Court found that the two cases were not nearly as comparable as the appellant contended. The co-offender's charge under s 25A(1) differed materially from the appellant's charge, and no standard non-parole period applied to the co-offender's offence. The co-offender also had no Form 1 offences, whereas the appellant's Form 1 included an agreement to supply a substantial further quantity of the drug.

On rehabilitation, the Court accepted that the appellant had completed courses in custody and that the sentencing judge made favourable findings. However, the appellant's drug addiction was long-standing and entrenched, and the sentencing judge had expressed reservations about his prospects. The appellant's argument that he could have achieved the same rehabilitation outcomes as his co-offender had he been granted bail was characterised as speculation only.

The Court concluded that, having examined the respective cases in full, the sentencing differential was justified. The appellant had not established a justifiable sense of grievance.

Orders Made

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

Key Takeaways

  • The parity principle requires an examination of whether sentencing disparity between co-offenders is actually justified by differences in their cases; the principle does not operate as a mechanical guarantee of equal outcomes.
  • An early guilty plea by one offender does not automatically entitle that offender to a lower sentence than a co-offender who pleaded late, particularly where other objective and subjective factors differ significantly.
  • Differences in the charges faced by co-offenders can be material to parity analysis, including whether a standard non-parole period applies and whether Form 1 offences were taken into account.
  • Rehabilitation evidence must be assessed on its own merits; a claim that an offender would have achieved the same rehabilitation outcomes as a co-offender, had circumstances been different, will be treated as speculative.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the sentencing court's task is to weigh all relevant factors for each offender individually, and that apparent disparity in sentences does not establish a justifiable grievance where genuine differences explain the differentiation.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Appeal Act 1912 (NSW), s 5(1)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(2), 25A(1)

Cases:
- Dungay v R [2020] NSWCCA 209
- Gaggioli v R [2014] NSWCCA 246
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Huckstadt v R [2016] NSWCCA 22
- Lloyd v R [2017] NSWCCA 303
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Newport [2020] NSWDC 245
- R v Rutter [2003] NSWCCA 306
- Usher v R [2016] NSWCCA 276