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Court of Criminal Appeal 23 April 2021

Li v R

[2021] NSWCCA 75

Drugs
CRIMINAL LAW SENTENCE APPEAL FOUR MATTERS ON A FORM 1 OFFENDER SAME JUDGE SENTENCING BOTH OFFENDERS OFFENDER

Citation: Li v R [2021] NSWCCA 75
Court: Court of Criminal Appeal, New South Wales
Date: 23 April 2021
Judges: Hoeben CJ at CL; Bellew J; Wright J

Background

The applicant pleaded guilty in the Local Court to supplying cocaine on an ongoing basis, contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW). The offence involved three separate supplies of cocaine totalling approximately 193.8 grams to an undercover operative across August 2018, with the applicant acting as the intermediary between the supplier (co-offender Mr Tsang) and the buyer. Four additional offences were placed on a Form 1 to be taken into account at sentencing, including an offer to supply a further 7 grams of cocaine, possession of MDMA and Alprazolam, and recklessly dealing with approximately $10,000 in proceeds of crime.

The applicant was sentenced by Judge Robison in the District Court at Sydney on 19 December 2019. He received a total term of 4 years and 3 months imprisonment, with a non-parole period of 2 years and 9 months, after a 25 per cent discount for his early guilty plea. He was sentenced at the same time as two co-offenders, Mr Tsang and Mr Naberezhnov, both of whom were also convicted of ongoing supply based on the same three transactions.

The applicant sought leave to appeal his sentence to the Court of Criminal Appeal, arguing it was manifestly excessive and that he had a justifiable sense of grievance because co-offender Mr Tsang received a shorter sentence of 3 years and 4 months with a non-parole period of 2 years.

  • Whether the applicant had a justifiable sense of grievance, on parity grounds, arising from the disparity between his sentence and that imposed on co-offender Mr Tsang.
  • Whether the sentence of 4 years and 3 months imprisonment was manifestly excessive in all the circumstances.

Decision

On the parity ground, the Court found the sentencing judge had expressly turned his mind to parity principles and identified clear differences between the applicant and Mr Tsang that justified the difference in outcome. Those differences included the applicant's more serious Form 1 matter (an actual offer to supply cocaine, assessed as mid-range in objective seriousness) compared with Mr Tsang's Form 1 supply offence (assessed as low-end). The applicant also had a less favourable subjective case than Mr Tsang.

The Court applied the objective standard required by the parity principle: whether a reasonable person, aware of all the circumstances of both sentences, would regard the disparity as unjustified. It concluded that no legitimate or justifiable sense of grievance arose. The sentencing judge's exercise of discretion was well open to him given the material differences between the two offenders.

On manifest excess, the Court found no error in the sentencing judge's approach. The starting point of 5 years and 8 months before the plea discount, resulting in the final sentence of 4 years and 3 months, was not shown to be outside the range of sentences available in the circumstances. The applicant's subjective features, including his drug dependence, financial pressures, and expressions of remorse, had been considered by the sentencing judge. This ground also failed.

Leave to appeal was granted, but the appeal was dismissed by all three judges.

Orders Made

  • Leave to appeal against sentence is granted.
  • The appeal is dismissed.

Key Takeaways

  • A sentencing court's identification and consideration of parity principles at the time of sentence is a relevant factor in assessing whether any resulting disparity between co-offenders is justified on appeal.
  • The parity principle does not require co-offenders to receive identical sentences; it requires that unjustified disparity be avoided. Where clear differences exist in objective seriousness of accompanying offences and in subjective circumstances, a meaningfully longer sentence for one co-offender may still be consistent with parity.
  • In dismissing the parity ground, the Court of Criminal Appeal confirmed that the applicable test is an objective one: whether a reasonable person, aware of all relevant circumstances, would regard the applicant's sentence as unjustly greater than the co-offender's.
  • No error was established in the sentencing judge's reasoning simply because the applicant received a longer sentence than a co-offender convicted of the same principal charge, where the Form 1 matters and subjective cases differed materially.
  • An early guilty plea discount of 25 per cent and a finding of special circumstances (extending the ratio of the non-parole period to the balance of the term) do not, of themselves, render a sentence immune from challenge, but the applicant here failed to identify any specific error in the sentencing judge's exercise of discretion.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25A
- Crimes Act 1900 (NSW), s 193B(3)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Chamon v R [2020] NSWCCA 112
- Corda v R [2014] NSWCCA 281
- Dayment v R [2018] NSWCCA 132
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60
- King v R [2018] NSWCCA 273
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242