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District Court 6 March 2020

R v Ayrton

[2020] NSWDC 45

Drugs
SENTENCE COMMONWEALTH SENTENCING TOTALITY PARITY OF SENTENCING DISCOUNT FOR PLEA OF GUILTY.

Citation: R v Ayrton [2020] NSWDC 45
Court: District Court of New South Wales
Date: 6 March 2020
Judge: Norrish QC DCJ

Background

The prisoner was a qualified mariner who was recruited into a large-scale drug importation network and participated in two separate conspiracies to import commercial quantities of cocaine into Australia. The conspiracies involved sailing Australian vessels to meet South American "motherships" offshore, transferring the drugs at sea, and returning them to Australia. The prisoner's role was as master of the vessels used in these operations.

The broader investigation identified five distinct conspiracies, involving 28 kg of heroin and multiple shipments of cocaine totalling in the hundreds of kilograms. The prisoner was involved in the third and fifth of these conspiracies, together covering approximately 1,110 kg of cocaine. Only the fifth conspiracy resulted in drugs actually reaching Australia, though all five conspiracies involved genuine attempts.

The prisoner entered a plea of guilty in early July 2018 to a single "rolled-up" charge combining the two conspiracies. Several co-conspirators and principals had already been sentenced in related proceedings, including a Supreme Court judgment that was restricted to parties in related proceedings at the time.

  • What was the appropriate starting point for sentence, having regard to the objective seriousness of the offending and the prisoner's role?
  • How should the principles of parity apply, given that co-conspirators of varying roles had already been sentenced by different courts?
  • How should totality be applied to a rolled-up charge spanning two conspiracies?
  • What discount was appropriate for the utilitarian value of the plea of guilty?

Decision

His Honour identified three relevant comparators for parity purposes. "Co-conspirator A" was an intermediary who participated in the same two conspiracies as the prisoner, plus a third conspiracy. He received an indicative sentence of 8 years 11 months for the common criminality (which his Honour treated as reflecting a 25% guilty plea discount, making the starting point approximately 11 years 10 months). "Co-conspirator B" was a seafarer, like the prisoner, involved in the fifth conspiracy only. He received a total sentence of 8 years with a starting point calculated at approximately 10 years 8 months. The two principals, who were more senior and involved in more conspiracies, received substantially longer sentences of up to 22 years 6 months.

His Honour found that the prisoner's culpability sat between that of Co-conspirator A and Co-conspirator B, but closer to B. The prisoner was not as senior as A, who had an oversight and intermediary function, but the prisoner's involvement in two conspiracies (compared to B's one) placed him above B. The prisoner had no prior drug trafficking history, unlike B, who had Queensland drug offences.

Taking all objective and subjective factors into account, including the prisoner's work history, comparative isolation in custody, and expressed regret, his Honour fixed a starting point of 11 years imprisonment. A 25% discount for the utilitarian benefit of the guilty plea reduced the sentence to 9 years 7 months. The non-parole period of 5 years 9 months was fixed having regard to the objective seriousness of the offending, the prisoner's subjective circumstances, and the need for supervised reintegration into the community.

Orders Made

  • The prisoner was convicted.
  • Sentenced to 9 years 7 months imprisonment, commencing 25 December 2016 and expiring 24 July 2026.
  • Non-parole period of 5 years 9 months fixed, expiring 24 September 2022.

Key Takeaways

  • Where co-conspirators have been sentenced for the same criminality in different proceedings, a sentencing court must treat those sentences as having integrity for parity purposes, even where totality adjustments within those earlier sentences complicate the comparison.
  • Parity analysis requires the sentencing court to disentangle the indicative sentence for common criminality from any aggregate sentence reflecting additional offences, so that like is compared with like.
  • A rolled-up charge encompassing two distinct conspiracies does not create injustice where the indictment particularises both, co-accused have been treated similarly, and the prisoner is not worse off than if sentenced separately.
  • The District Court applied a 25% discount for the utilitarian value of the guilty plea, consistent with the approach taken in the related proceedings and the principles in R v Thomson and Houlton.
  • Under Commonwealth sentencing provisions (Part IB of the Crimes Act 1914 (Cth)), the non-parole period must reflect not only the objective and subjective factors relevant to the offence and offender, but also the need for the prisoner to receive assistance in adjusting to community living upon release.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), Part IB: ss 16A(1) and (2), 17A, 19AB

Cases:
- Jimmy v Regina [2010] NSWCCA 60
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR 295
- R v Gow [2015] NSWCCA 208
- R v Hili [2010] HCA 10
- R v Nguyen and Pham [2010] NSWCCA 238
- R v Thomson and Houlton [2000] NSWCCA 309