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Court of Criminal Appeal 28 May 2021

Tsimingos v R

[2021] NSWCCA 107

Drugs
CRIMINAL LAW OFFENCES SENTENCE SERIOUS OFFENDING SUBSTANTIAL MAXIMUM PENALTY SIGNIFICANT ROLE PLAYED BY THE OFFENDER

Citation: Tsimingos v R [2021] NSWCCA 107
Court: NSW Court of Criminal Appeal
Date: 28 May 2021
Judges: Hoeben CJ at CL, Bellew J, N Adams J

Background

The applicant pleaded guilty in the Local Court to manufacturing a large commercial quantity of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The manufacture took place at a rural property in Kurrajong on 28 to 29 December 2015, as part of a joint criminal enterprise with two co-offenders.

During the operation, an explosion occurred in the shed where the drug was being produced. The applicant sustained severe injuries, including full-thickness nerve laceration, burns to 13% of his total body surface area, multiple shrapnel punctures to both legs, and deep lacerations requiring four surgeries and six weeks of hospitalisation.

In May 2017, the District Court sentenced the applicant to 9 years' imprisonment with a non-parole period of 6 years and 9 months. His co-offender, who had been found guilty after a jury trial, was sentenced separately in December 2018 to 12 years' imprisonment with a non-parole period of 9 years. The applicant subsequently sought leave to appeal, relying primarily on the parity principle.

  • Whether the applicant's sentence was manifestly excessive given the objective seriousness of the offending and his role in it.
  • Whether, applying the parity principle, the applicant had a justifiable sense of grievance when compared to the sentence later imposed on his co-offender.
  • What weight should be given to injuries sustained during the course of the offending as a form of extra-curial punishment (that is, punishment occurring outside the formal court process), and to their effect on the conditions of custody.
  • Whether differences in the subjective circumstances of the applicant and his co-offender justified a sentencing disparity between them.

Decision

Manifest excess: The Court of Criminal Appeal rejected the ground that the original sentence was manifestly excessive. The offending was serious, the maximum penalty severe, the applicant played a significant role, and general deterrence remained a weighty consideration. The original sentence fell within the range open to the sentencing judge.

Parity: The Court granted leave and allowed the appeal on the parity ground. The parity principle holds that co-offenders who commit the same or similar offences should not receive sentences so different that an unjustifiable sense of grievance arises. The applicant's sentence, when compared to that of his co-offender, produced exactly that outcome. The applicant received a total head sentence 9 months longer, and a non-parole period 3 months longer, than a strict proportionate reduction from the co-offender's sentence would have produced.

Differentiating factors: The Court identified several factors that distinguished the applicant's position favourably from his co-offender's. The sentencing judge had found the applicant slightly less involved in the enterprise than the co-offender. The applicant's injuries constituted extra-curial punishment, which the law recognises as relevant to the overall sentencing exercise. Those injuries would also make his period of imprisonment more onerous than it would be for a person in ordinary health. Critically, the sentencing judge had made positive findings of genuine remorse and highly favourable prospects of rehabilitation in the applicant's case; no equivalent findings were made when the co-offender was sentenced.

Re-sentencing: Taking all of these factors together, the Court concluded that the sentence should be reduced. The applicant was re-sentenced to 8 years and 3 months' imprisonment with a non-parole period of 6 years and 2 months.

Orders Made

  • Time for filing the notice of application for leave to appeal extended to 17 February 2021.
  • Leave to appeal granted.
  • Appeal allowed.
  • District Court sentence quashed.
  • Applicant re-sentenced to 8 years and 3 months' imprisonment, commencing 20 February 2017 and expiring 19 May 2025.
  • Non-parole period of 6 years and 2 months, commencing 20 February 2017 and expiring 19 April 2023.

Key Takeaways

  • The parity principle can ground a successful sentence appeal even where the original sentence was not itself manifestly excessive, provided the comparison with a co-offender's sentence produces a justifiable sense of grievance.
  • Where a co-offender is sentenced after the applicant, and receives a heavier sentence, the applicant may still have a parity grievance if the resulting differential does not accurately reflect the relative culpability and subjective circumstances of each offender.
  • Injuries sustained in the course of offending can constitute extra-curial punishment, reducing the appropriate sentence; they are also relevant insofar as they render the offender's period of custody more burdensome than it would otherwise be.
  • Positive findings of remorse and rehabilitation prospects are material differentiating factors between co-offenders under the parity analysis. The absence of such findings in one co-offender's case can justify a more favourable sentence for the other.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal reaffirmed that offences of manufacturing large commercial quantities of prohibited drugs attract significant weight on general deterrence, even where the offender's role falls below the most serious category.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases
- Alameddine v R [2006] NSWCCA 317
- Christodoulou v R [2008] NSWCCA 102
- Gill v R [2010] NSWCCA 236
- Goodbun v R [2020] NSWCCA 77
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Li v R [2021] NSWCCA 75
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Power v The Queen; Selenski v The Queen; Lyons v The Queen (1974) 131 CLR 623; [1974] HCA 26
- R v Amati [2019] NSWCCA 193
- R v Lewis [2018] NSWDC 522
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- Silvano v R [2008] NSWCCA 118
- Tatana v R [2006] NSWCCA 398