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Court of Criminal Appeal 24 September 2021

Griffiths v R

[2021] NSWCCA 226

Drugs

Citation: Griffiths v R [2021] NSWCCA 226
Court: NSW Court of Criminal Appeal
Date: 24 September 2021
Judges: Payne JA; Garling J; Wright J

Background

The applicant pleaded guilty in the Local Court to four drug supply offences involving methylamphetamine, all committed in November 2016. The charges included ongoing supply (125g across 16 transactions), two counts of supplying a commercial quantity (490g and 499g respectively), and one count of attempting to supply a commercial quantity. A number of additional offences were taken into account on a Form 1.

On 31 October 2018, Ellis DCJ sentenced the applicant in the District Court at Newcastle to a total effective sentence of 11 years and 9 months, with an effective non-parole period of 6 years and 9 months. A 25% discount was applied for the applicant's guilty plea. A co-offender, Mr Winner, who had been involved in the transactions underlying counts 3 and 4, had been sentenced separately by the same judge on 16 March 2018.

The applicant sought leave to appeal on two grounds: first, that the sentencing judge erred in the manner in which he took into account Mr Winner's sentence; and second, that the individual sentences and the overall head sentence were manifestly excessive. A third ground relating to the commencement date for count 2 was abandoned after the hearing.

  • Whether the sentencing judge erred by comparing the applicant's criminality and total sentence to those of co-offender Mr Winner, given the different offences each faced
  • Whether any such error was material, warranting re-sentencing
  • Whether the individual sentences and overall head sentence were manifestly excessive (ultimately not decided, given the outcome on ground 1)

Decision

The Court found error in the sentencing judge's approach on ground 1. The sentencing judge had compared the criminality of the applicant and Mr Winner in relation to counts 3 and 4, and had also compared their aggregate sentences. The Court held both comparisons were flawed. Mr Winner had been charged with offences involving a large commercial quantity of prohibited narcotics, carrying a maximum life sentence and a 15-year standard non-parole period, whereas the applicant faced commercial quantity charges with a maximum of 20 years and a 10-year standard non-parole period. These were fundamentally different charges, making a comparison of criminality inapt.

The Court also held that comparing the overall sentences imposed on the two offenders was a material error. Even though there was some factual overlap in the transactions underlying counts 3 and 4, the overall offending of each person was separate and different. Relying on Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 and Baladjam v R [2018] NSWCCA 304, the Court concluded that drawing such a comparison had infected the sentencing exercise.

Having established error, the Court proceeded to re-sentence the applicant. It adopted the same findings on objective and subjective matters as the sentencing judge had made, consistent with the approach required by Kentwell v The Queen (2014) 252 CLR 601 and DL v The Queen (2018) 265 CLR 215. An aggregate sentence was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), reducing the total sentence from 11 years and 9 months to 10 years and 8 months, with a non-parole period of 5 years and 8 months. Ground 2 (manifest excess) was not addressed, as it was unnecessary given the outcome on ground 1.

Orders Made

  • Leave to appeal on ground 1 granted
  • Appeal allowed
  • Sentences imposed by Ellis DCJ on 31 October 2018 quashed
  • Aggregate sentence of 10 years and 8 months imposed, dating from 21 December 2016 and expiring 20 August 2027
  • Non-parole period of 5 years and 8 months imposed, expiring 20 August 2022
  • Indicative sentences identified:
  • Count 1: 3 years 9 months, non-parole period 2 years 3 months
  • Count 2: 6 years 9 months, non-parole period 4 years
  • Count 3: 7 years 6 months, non-parole period 4 years
  • Count 4: 9 years, non-parole period 4 years and 4 months

Key Takeaways

  • Comparing co-offenders' sentences is only appropriate where the offences, and the overall offending, are genuinely comparable. Where different charges with different maximum penalties and standard non-parole periods are involved, such comparisons are inapt and may constitute a material sentencing error.
  • A comparison of aggregate or total effective sentences between two offenders is equally problematic where the overall bodies of offending are separate and distinct, even if some factual overlap exists between individual counts.
  • Once a material error in the original sentencing exercise is established, the appellate court proceeds to re-sentence rather than simply adjust the original sentence, applying the same factual findings on objective and subjective matters where those findings are not themselves challenged.
  • The Court of Criminal Appeal left ground 2 (manifest excess) undecided, having resolved the appeal on ground 1 alone. This reflects the established principle that it is unnecessary and undesirable to determine additional grounds once re-sentencing is warranted.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court may impose an aggregate sentence across multiple counts and is required to identify indicative individual sentences for each count.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 53A
- Criminal Appeal Act 1912 (NSW), s 5
- Drugs Misuse and Trafficking Act 1985 (NSW), ss 10, 24, 25, 25A, 36Z

Cases
- Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Robinson v R [2012] NSWCCA 26