AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
3
Court of Criminal Appeal 19 March 2021

Kadwell (a pseudonym) v R

[2021] NSWCCA 42

Drugs
OFFENDERS — PARITY

Citation: Kadwell (a pseudonym) v R [2021] NSWCCA 42
Court: NSW Court of Criminal Appeal
Date: 19 March 2021
Judges: Leeming JA at [1]; Walton J at [34]; Adamson J at [39]

Background

The appellant and her co-offender participated together in a series of serious drug supply offences involving methylamphetamine, heroin, and gamma-Butyrolactone (GBL). Twelve of the offending instances involved both of them jointly; the co-offender was also involved in two additional supplies not attributable to the appellant.

Because of separate exercises of prosecutorial discretion, the appellant pleaded guilty to three charges and the co-offender to four charges. Critically, they were sentenced on different days by different District Court judges. The appellant received an aggregate sentence of 4 years and 3 months imprisonment with a non-parole period of 2 years and 3 months. The co-offender received 5 years and 9 months with a non-parole period of 2 years and 10 months.

The appellant appealed on the ground that the difference between her sentence and her co-offender's was unjustifiably narrow, giving rise to a legitimate sense of grievance under the parity principle.

  • Whether the parity principle applied where the appellant and her co-offender faced different charges, arising from different prosecutorial charging decisions, and were sentenced by different judges on different dates.
  • Whether the disparity between the aggregate sentence imposed on the appellant and that imposed on the co-offender was insufficient to constitute unjustifiable disparity.
  • Whether the comparison of backdated commencement dates and discounted indicative sentences was the appropriate analytical framework for the parity assessment.

Decision

The Court granted leave to appeal and, by majority (Adamson J, with Walton J agreeing), allowed the appeal. Adamson J found that the sentence imposed on the appellant gave rise to a legitimate sense of grievance when compared with the co-offender's sentence, and resentenced the appellant to an aggregate term of 3 years and 9 months with a non-parole period of 2 years.

Leeming JA dissented on the outcome. His Honour agreed that the parity principle applied despite the different charges and different sentencing judges, but concluded that several factors adequately explained the apparent disparity. Those factors included the different plea discounts applied to each offender, their differing criminal histories, the treatment of the co-offender's parole revocation under the totality principle, and the concurrency that inevitably flowed from the co-offender's additional charges arising from the same course of conduct.

All three judges confirmed that the parity principle operates as a matter of substance, not form. Formal identity of charges is not required for the principle to apply. The question in every case is whether the difference in sentences is explicable by relevant differences between the offenders or their offending.

The Court also rejected two arguments that had the potential to complicate the analysis. First, while differential backdating of sentences is relevant under Postiglione, the Court found it did not, in isolation, resolve the parity question here. Second, comparing the sum of discounted indicative sentences was treated with caution: the relationship between sentence length and severity is not linear, and differential discounts for assistance could distort the comparison.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by the District Court on 17 April 2020 quashed.
  • Appellant resentenced to an aggregate term of imprisonment of 3 years and 9 months, with a non-parole period of 2 years, backdated to 13 June 2019, with first eligibility for parole on 13 June 2021.
  • Indicative sentences (reflecting a total 30% discount for guilty plea and assistance) specified under s 53A(2)(b) as: 28 months (seq 5), 31 months (seq 14), and 35 months (seq 13).

Key Takeaways

  • The parity principle is governed by substance over form: formal identity of charges between co-offenders is not a precondition to its application, as confirmed by reference to Green v The Queen; Quinn v The Queen (2011) 244 CLR 462.
  • Differential prosecutorial charging decisions do not insulate a sentence from parity scrutiny, though the greater the divergence between the charges, the greater the practical difficulty in making meaningful comparisons.
  • Comparing the aggregate of discounted indicative sentences between co-offenders carries risk as an analytical tool, because sentence severity does not increase in a simple linear relationship with sentence length, as noted in R v MAK; R v MSK (2006) 167 A Crim R 159.
  • Relevant differences that may explain sentencing disparity between co-offenders include differential guilty plea discounts, differences in criminal history, the application of the totality principle to distinct circumstances, and the degree of concurrency flowing from additional charges.
  • The fact that co-offenders are sentenced by different judges on different occasions does not prevent a finding of unjustifiable disparity, though it adds to the complexity of the comparative exercise.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 22, 23, 25D, 53A
- Crimes Act 1900 (NSW), s 97
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A

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
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- AMZ v R [2017] NSWCCA 184
- Bridge v R [2020] NSWCCA 233
- Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145
- Daw v R [2017] NSWCCA 327
- Noonan v R [2021] NSWCCA 35
- Vaughan v R [2020] NSWCCA 3
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460