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Court of Criminal Appeal 6 February 2020

Delleci v R

[2020] NSWCCA 4

Drugs
CRIMINAL LAW SENTENCE APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE WHETHER PARITY PRINCIPLE SHOULD APPLY LIMITATIONS ON USE OF STATISTICS SENTENCES NOT EXCESSIVE

Citation: Delleci v R [2020] NSWCCA 4
Court: NSW Court of Criminal Appeal
Date: 6 February 2020
Judge(s): Hoeben CJ at CL; Harrison J; Button J

Background

The appellant was sentenced in the Sydney District Court to an aggregate term of eight and a half years imprisonment, with a non-parole period of five and a half years, for multiple drug supply and proceeds of crime offences. The offences fell into two distinct groups. The first arose from a search warrant executed on 30 May 2017, which uncovered cocaine, MDMA, cannabis, lysergic acid, and $2,800 cash at the appellant's home. The second arose from search warrants executed on 3 and 4 October 2017, which uncovered approximately 19.6 kilograms of cannabis at a Darlinghurst unit and 246.4 grams of MDMA along with $184,350 cash at a self-storage facility.

The appellant had pleaded guilty in the Local Court and received a 25 per cent discount for the utilitarian value of those early pleas. He was on a section 10 bond when both groups of offences were committed, and on bail for the first group of offences when he committed the second. His co-offender, Mr Dahmoul, had been sentenced separately by a different judge.

  • Whether the aggregate sentence of eight and a half years was manifestly excessive in all the circumstances
  • Whether the parity principle applied, such that the appellant suffered a justifiable sense of grievance when comparing his sentence to that imposed on his co-offender

Decision

Manifest excess. The Court found no error in the sentencing judge's approach to objective seriousness. The first group of offences involved multiple drug types packaged for street-level supply, with quantities at or above indictable thresholds. The second group involved a commercial quantity of high-purity MDMA, nearly 20 kilograms of cannabis, and a substantial amount of cash. The sentencing judge correctly identified the appellant's role as involving active participation in multiple steps of the supply operation, and the Court held that the resulting indicative sentences and aggregate term were not excessive.

The Court also noted the limitations of sentencing statistics, reaffirming the principle from Wong v The Queen that statistics cannot displace the requirement to sentence for the specific offending and circumstances before the court. The appellant's subjective circumstances, including the absence of remorse, guarded prospects of rehabilitation, poor attitude to the offending, and continued drug use while in custody, were properly weighed against any mitigating factors.

Parity. The Court rejected the parity ground. Parity requires that a co-offender suffers a justifiable sense of grievance arising from a material difference in sentences, not merely a difference. Here, the appellant and Mr Dahmoul were sentenced by different judges for offences that, while overlapping, were not identical. The first group of offences related only to the appellant. Even for the shared offences, the two offenders' circumstances differed substantially. Mr Dahmoul was found to be remorseful with reasonable rehabilitation prospects; the appellant was neither remorseful nor assessed as having strong rehabilitation prospects. Crucially, the appellant was on conditional liberty, both on a section 10 bond and on bail for the first offences, when he committed the second group. That aggravating feature alone was capable of explaining the higher notional starting points applied by Judge Huggett. No justifiable sense of grievance was established.

Orders Made

  • Leave to appeal granted
  • Appeal against sentence dismissed

Key Takeaways

  • Sentencing statistics serve only a limited role: the Court of Criminal Appeal reaffirmed that statistical sentencing data cannot override the obligation to sentence for the individual offence and offender before the court.
  • A justifiable sense of grievance under the parity principle requires more than a numerical difference in sentences. Differences in objective offending, subjective circumstances, and aggravating features between co-offenders can fully account for sentencing disparities.
  • Being on conditional liberty, including a section 10 bond or bail, at the time of offending is a significant aggravating factor capable of independently justifying a higher starting point compared to a co-offender who was not subject to such conditions.
  • Where co-offenders are sentenced by different judges and the offences are not entirely shared, courts will closely scrutinise whether the comparison is truly apt before entertaining a parity challenge.
  • The absence of remorse, poor rehabilitation prospects, and adverse conduct while in custody are legitimate bases for a sentencing court to impose a heavier sentence relative to a co-offender with a more favourable subjective case.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 193C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 10A, 21A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)

Cases
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- BB v R [2017] NSWCCA 189
- Hughes v R [2018] NSWCCA 2
- JM v The Queen [2014] NSWCCA 297
- Kerr v R [2016] NSWCCA 218
- Kresovic v R [2018] NSWCCA 37
- MLP v R [2014] NSWCCA 183
- Nguyen v R [2019] NSWCCA 87
- Parente v R [2017] NSWCCA 284
- Tuite v R [2018] NSWCCA 175