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Court of Criminal Appeal 17 May 2021

Parkinson v R

[2021] NSWCCA 98

Drugs

Citation: Parkinson v R [2021] NSWCCA 98
Court: NSW Court of Criminal Appeal
Date: 17 May 2021
Judges: Simpson AJA, Bellew J, Wilson J

Background

The applicant pleaded guilty on the eve of trial to supplying a large commercial quantity of cocaine, 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. A further, lesser supply offence was taken into account on a Form 1.

The offending arose from a 2017 police investigation into drug supply on Sydney's Northern Beaches. The applicant was one of three co-offenders. He played an active role, storing and moving cocaine using a shared vehicle and coordinating supply through a smash repairs business operated by another co-offender.

In March 2020, the District Court sentenced the applicant to 7 years imprisonment with a non-parole period of 4 years and 6 months, applying a 12.5% discount for the late utilitarian plea and finding special circumstances. The applicant sought leave to appeal, arguing error in the assessment of objective seriousness and a justifiable sense of grievance arising from comparison with his co-offenders' sentences.

  • Whether the sentencing judge erred in assessing the objective seriousness of the applicant's offending
  • Whether a comparison with the sentences imposed on co-offenders gave rise to a justifiable sense of grievance, engaging the parity principle

Decision

Ground 1: Objective seriousness. The Court of Criminal Appeal refused leave to appeal on this ground. Wilson J found no identifiable error in the sentencing judge's assessment of objective seriousness. The applicant's conduct was assessed having regard to the agreed facts, including his repeated access to the shared vehicle used to store and move cocaine, his role in loading the vehicle with drugs, and his receipt and movement of large quantities. The Court noted that the assessment of objective gravity is an evaluative exercise, and Simpson AJA added a minor clarification that such assessment is better described as "evaluative" rather than "discretionary," though she acknowledged the two share common features.

Ground 2: Parity. Leave to appeal was granted on this ground, but the appeal was dismissed. The Court found that the sentencing judge was fully aware of the principle of equal justice and had carefully considered each co-offender's criminality and subjective circumstances. The sentencing judge had already reflected the differences between the applicant and co-offender Sawaya by reducing the applicant's non-parole period by six months. The third co-offender, Diamond, occupied a materially different position and the sentence imposed on him was correspondingly differentiated.

The Court applied the principle from Lloyd v R [2017] NSWCCA 303 that the appellate question is not whether the Court would have differentiated sentences differently, but whether the differentiation made by the primary judge was open in the exercise of discretion. In this case, it was. The applicant had not established a justifiable sense of grievance.

Orders Made

  • Leave to appeal against sentence on ground 1 refused
  • Leave to appeal against sentence on ground 2 granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the assessment of objective seriousness in sentencing is properly characterised as an evaluative exercise rather than a purely discretionary one, though the two share considerable common ground.
  • Where a sentencing judge has expressly recognised the parity principle and reflected differences in co-offenders' criminality and subjective circumstances through differentiated sentences, an appellate court will be cautious about intervening.
  • Under the parity principle, the appellate question is whether the degree of differentiation between co-offenders' sentences was open to the primary judge, not whether the appellate court would have drawn the distinctions differently.
  • A late guilty plea entered the day before trial attracted only a 12.5% utilitarian discount, consistent with established principles limiting the discount available when the plea is not entered at the earliest opportunity.
  • No error was established in the sentencing judge's fact-finding or application of the relevant principles, and the appeal was dismissed despite leave being granted on the parity ground.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44(2), s 10A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- R v Sawaya; R v Parkinson; R v Diamond [2020] NSWDC 130
- Lloyd v R [2017] NSWCCA 303
- Tuivaga v R [2015] NSWCCA 145
- Salafia v R [2015] NSWCCA 141
- Usher v R [2016] NSWCCA 276
- Chamon v R [2020] NSWCCA 112
- Tatana v R [2006] NSWCCA 398
- The Queen v Olbrich (1999) 199 CLR 270
- R v Carey (1990) 20 NSWLR 292
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 no 1 of 2002 [2002] NSWCCA 518