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Court of Criminal Appeal 19 March 2020

Shi v R

[2020] NSWCCA 42

Drugs
CRIME APPEAL AGAINST SENTENCE OFFENDERS DISPARITY BETWEEN SENTENCES NO LEGITIMATE SENSE OF GRIEVANCE APPEAL DISMISSED

Citation: Shi v R [2020] NSWCCA 42
Court: NSW Court of Criminal Appeal
Date: 19 March 2020
Judges: R A Hulme J (with Adamson J and Ierace J agreeing)

Background

The appellant had been sentenced in the District Court for knowingly taking part in the supply of 2.545 kilograms of methylamphetamine, a large commercial quantity under the Drug Misuse and Trafficking Act 1985 (NSW). Acting Judge Hosking SC imposed a sentence of 10 years imprisonment with a non-parole period of 7 years, reflecting a starting point of 15 years that was reduced by one-third to account for an early guilty plea and assistance to authorities.

This was the appellant's second attempt to appeal his sentence on the basis of unjustified disparity with a co-offender. His first appeal, determined in August 2017, was dismissed after the Court of Criminal Appeal found the sentencing differences between the appellant and two co-offenders (Mohammed and So) were justified. At that time, a further co-offender, Mr Chan, had not yet been sentenced.

Mr Chan was sentenced by Judge Craigie SC in October 2017 and received an indicative sentence of 11 years 6 months for the offence he shared with the appellant. The appellant subsequently applied under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), contending his sentence was unjustifiably disparate when compared with Mr Chan's. Davies J referred the matter to the Court of Criminal Appeal, finding there was a sufficient appearance of doubt to warrant referral.

  • Whether the disparity between the appellant's starting-point sentence of 15 years and Mr Chan's indicative sentence of 11 years 6 months was justified by differences in their objective and subjective circumstances.
  • Whether the appellant held a legitimate sense of grievance arising from the comparison with Mr Chan's sentence.

Decision

Hulme J applied the parity principle as stated by the High Court in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462: consistency in punishment is a fundamental element of rational and fair criminal justice, requiring that like offenders be treated in a like manner. The key question was whether any apparent disparity could be justified by relevant differences between the two offenders.

The Court identified several factors that distinguished the appellant's position from Mr Chan's. The appellant was sentenced for a significantly more serious offence, involving a large commercial quantity (over 2.5 kilograms, more than twice the threshold), compared with Mr Chan's commercial quantity charge (372 grams). Mr Chan had also been convicted after a trial and received no discount, making the comparison between undiscounted starting points the appropriate one. The appellant was 30 at the time of sentence; Mr Chan was 70 and in ill health. The appellant's prospects of rehabilitation were assessed as uncertain, while Mr Chan's were assessed as good or reasonable with a low likelihood of reoffending.

The Court acknowledged two considerations that favoured the appellant in comparison: Mr Chan operated at a higher level in the drug trade (the appellant sourced drugs from Mr Chan), and Craigie SC DCJ assessed Mr Chan's role in the shared offence as slightly above the appellant's. However, these factors did not outweigh the aggregate of differences favouring a higher sentence for the appellant.

Hulme J concluded that the considerations amply justified the degree of disparity and that the appellant could hold no legitimate sense of grievance. Adamson J and Ierace J agreed without further reasons.

Orders Made

  • Appeal against sentence dismissed.

Key Takeaways

  • A referral to the Court of Criminal Appeal under s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) does not require a finding that error occurred: the referring judge need only be satisfied there is an "appearance" of a doubt or question as to the sentence.
  • Under the parity principle, apparent sentencing disparity between co-offenders does not give rise to a legitimate sense of grievance where the differences are explained by meaningfully different objective and subjective circumstances.
  • The gravity of the offence charged matters when comparing sentences: a charge of supplying a large commercial quantity (maximum: life imprisonment; SNPP: 15 years) is not readily comparable to a charge of supplying a commercial quantity (maximum: 20 years; SNPP: 10 years), even where both offences arise from related conduct.
  • Factors such as age, health, criminal history, prospects of rehabilitation, and an offender's relative position in the drug supply chain each carry independent weight in a parity analysis.
  • In dismissing the appeal, the Court confirmed that a one-third discount for guilty plea and assistance is irrelevant to a parity comparison conducted at the undiscounted starting-point level.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93T(1A)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 79(1)(b), 79(2)
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- Buttrose v Attorney General of New South Wales [2015] NSWCA 221
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- R v San Sang Chan (District Court (NSW), 26 October 2017, unrep)
- Shi v Attorney-General for New South Wales [2019] NSWSC 1686
- Shi v R [2017] NSWCCA 183