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Court of Criminal Appeal 10 June 2022

Smith (a pseudonym) v R

[2022] NSWCCA 123

Drugs
SENTENCING A PPEAL AGAINST SENTENCE C O OFFENDERS DISPARITY BETWEEN SENTENCES WHERE APPLICANT AND CO

Citation: Smith (a pseudonym) v R [2022] NSWCCA 123
Court: NSW Court of Criminal Appeal
Date: 10 June 2022
Judges: Bell CJ at [1]; Button J at [62]; N Adams J at [63]

Background

The applicant (referred to by the pseudonym "Smith") was sentenced in the District Court on 20 February 2020 for four drug-related offences arising from his involvement in a criminal enterprise that imported precursor chemicals and manufactured methylamphetamine. He received a 25% discount for his early guilty plea and a further 20% discount for assistance provided to law enforcement, resulting in a total effective sentence of 12 years and 4 months, with a non-parole period of 8 years and 2 months.

One of the NSW offences (Count 2) involved the manufacture of 9.6 kilograms of methylamphetamine. The applicant had recruited and paid a co-offender, Lou, to assist with the manufacture and delivery of the drug. Lou had no prior knowledge or expertise in the manufacturing process and received a substantially lesser financial benefit from the offending. Lou was sentenced separately, on 25 July 2019, to 4 and a half years imprisonment (non-parole period of 3 years), reduced from a starting point of 6 years.

The applicant sought leave to appeal on the sole ground that there was an unjustifiable disparity between his sentence and Lou's. Specifically, he pointed to the difference between the sentencing judge's indicative starting point of 12 years for Count 2 (before discounts) and the 6-year starting point applied to Lou for the same offence.

  • Whether an unjustifiable disparity existed between the sentences imposed on the applicant and his co-offender, engaging the parity principle
  • Whether indicative sentences (noted under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW)) can be used as a guide when applying the parity principle
  • Whether differences in the offenders' respective roles and culpability justified the sentencing disparity

Decision

The Court (Bell CJ, with Button and N Adams JJ agreeing) granted leave to appeal but dismissed the appeal. Bell CJ confirmed that indicative sentences, recorded under s 53A when an aggregate sentence is imposed for multiple offences, may be referred to when assessing whether the parity principle is engaged. However, the aggregate sentence, not the indicative sentence for any single count, is ultimately what must be compared with the co-offender's sentence.

On the parity principle itself, the Court applied the High Court's reasoning in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, which recognises that disparity between co-offenders' sentences may be justified by differences in the nature and degree of their criminal conduct. The Court found that such differences were clearly present here: the applicant had organised and led the enterprise, recruited and paid Lou, and possessed the relevant manufacturing knowledge, while Lou was a paid assistant with no expertise who played a far lesser role.

Bell CJ noted that, to the extent any comparison between the indicative sentence for Count 2 and Lou's sentence revealed a disparity, that disparity was justified by the applicant's significantly greater culpability. The applicant's slightly stronger subjective case (personal circumstances) did not outweigh those differences. The aggregate sentence imposed was consistent with a substantial degree of concurrency between the indicative sentences, and was plainly open to the sentencing judge.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Indicative sentences recorded under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) may be referred to when assessing the parity principle, but the ultimate comparison must be between aggregate sentences, not individual indicative sentences.
  • A justified sense of grievance about sentencing disparity cannot be established where the difference in outcomes reflects genuinely different levels of moral and criminal culpability between co-offenders.
  • Where one co-offender organised a criminal enterprise, recruited the other, possessed relevant expertise, and received greater financial benefit, a substantially higher sentence for that organiser is capable of justification even when both pleaded guilty to offences framed in identical terms.
  • In dismissing the appeal, the Court confirmed that a slightly stronger subjective case does not, on its own, overcome the weight of significantly greater objective culpability when the parity principle is assessed.
  • Under s 53A, sentencing courts imposing aggregate sentences must note indicative sentences for each individual offence; those indicative sentences have a legitimate role in appellate parity analysis, though they do not displace the need to compare aggregate outcomes.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 53A
- Crimes Act 1900 (NSW), s 193C(1)
- Criminal Code Act 1995 (Cth), s 307.11
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2)

Cases
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- R v Clarke [2013] NSWCCA 260
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Kadwell (a pseudonym) v R [2021] NSWCCA 42
- Vu v R [2018] NSWCCA 122
- Thangavelautham v R [2016] NSWCCA 141
- Lloyd v R [2017] NSWCCA 303
- Afu v R [2017] NSWCCA 246
- Daw v R [2017] NSWCCA 327