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Court of Criminal Appeal 8 September 2021

Lai v R

[2021] NSWCCA 217

Drugs
CRIMINAL LAW OFFENCES SENTENCE PA RITY PRINCIPLE OFFENDERS WHERE THE FACT THAT ALL CO

Citation: Lai v R [2021] NSWCCA 217
Court: NSW Court of Criminal Appeal
Date: 8 September 2021
Judges: Bathurst CJ, Adamson J, Bellew J

Background

The applicant pleaded guilty in the Local Court to attempting to possess a commercial quantity of an unlawfully imported border controlled drug, specifically methamphetamine, contrary to the Criminal Code Act 1995 (Cth). The charge carried a maximum penalty of life imprisonment. Two co-offenders were involved in the same criminal enterprise.

The offending arose from the importation into Australia of 200 kg of methamphetamine, concealed in the bases of two metal lathes shipped from Malaysia. The drugs, with an estimated street value of up to approximately $80 million, were intercepted by police before any distribution occurred. All three men played active roles in receiving the lathes, breaking them open, and extracting the drug packages at a leased warehouse in Sydney.

The applicant was sentenced in the District Court to 12 years imprisonment with a non-parole period of 8 years. His co-offenders received 15 years (non-parole 10 years) and 14 years (non-parole 9 years and 3 months) respectively, all imposed by the same sentencing judge. The applicant sought leave to appeal his sentence on the basis of unjustified disparity with the sentences imposed on his co-offenders.

  • Whether the applicant had a justifiable sense of grievance about his sentence when compared to those of his co-offenders, having regard to the parity principle in sentencing
  • Whether the fact that all co-offenders were sentenced by the same judge presented a particular obstacle to a parity-based appeal
  • Whether differences in the subjective circumstances of the applicant and his co-offenders justified the sentencing differentials
  • Whether an unsworn statement tendered by the applicant at sentencing, in lieu of sworn evidence, was appropriately relied upon

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. The central question was whether the applicant had a justifiable sense of grievance under the parity principle, which requires that co-offenders in relevantly similar circumstances should receive sentences that are not unjustifiably disparate. The Court confirmed that where the same judge sentences all co-offenders, an appellate court faces a significant hurdle in establishing unjustified disparity, because the sentencing judge is presumed to have been alive to consistency across the proceedings.

The Court found that the subjective circumstances of the three co-offenders were meaningfully different. The applicant's co-offenders had more significant roles in the enterprise, longer periods of involvement in Australia before the arrests, and different criminal histories and personal circumstances. These distinguishing features provided a rational basis for the differential in sentences.

In relation to Ngan, the most senior co-offender, the Court noted that his sentence was slightly lower than might have been expected given his greater culpability. However, this did not mean the applicant's sentence was too high. The parity principle does not require a court to reduce an otherwise appropriate sentence simply because a co-offender may have been dealt with too leniently.

The Court also made observations about the practice of an offender tendering a written statement to the sentencing court without giving sworn evidence. The Court noted that material of this kind, because it is untested by cross-examination and unsworn, deserves little or no weight. The Court indicated this practice should be discouraged.

Orders Made

  • Leave to appeal granted
  • The appeal dismissed

Key Takeaways

  • Where all co-offenders were sentenced by the same judge, an applicant for leave to appeal based on parity faces a significant hurdle, as the sentencing judge is presumed to have had consistency in view across all proceedings.
  • The parity principle does not entitle an offender to a reduced sentence merely because a co-offender may have been sentenced with undue leniency; the principle protects against unjustified disparity, not against the consequences of another's potential windfall.
  • Differences in the subjective circumstances of co-offenders, including role, period of involvement, and personal background, can provide a rational basis for differential sentences that would otherwise appear disparate.
  • Unsworn written statements tendered by an offender at sentencing, in lieu of sworn evidence, are deserving of little or no weight and the Court of Criminal Appeal signalled that the practice should be discouraged.
  • In dismissing the appeal, the Court confirmed that an otherwise appropriate sentence will not be disturbed on parity grounds alone where the differential is explicable by legitimate distinctions between co-offenders.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 11.1(1), 307.1(1), 307.5(1)
- Crimes Act 1914 (Cth), s 16BA

Cases
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Lai; R v Po [2019] NSWDC 771
- R v Ngan [2020] NSWDC 493
- Chamon v R [2020] NSWCCA 112
- Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77
- Klomfar v R [2019] NSWCCA 61
- Gwardys v R [2019] NSWCCA 62
- Weber v R [2020] NSWCCA 103
- Pfitzner v R [2010] NSWCCA 314
- Ryan v R [2009] NSWCCA 183
- R v Paliwala [2005] NSWCCA 221
- Ferrer-Esis v R (1991) 55 A Crim R 231
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- R v Dennison [2011] NSWCCA 114