Citation: Narayan v R [2022] NSWCCA 163
Court: Court of Criminal Appeal
Date: 5 August 2022
Judge(s): Beech-Jones CJ at CL; Price J; Chen J (Chen J delivered the principal judgment, with the other judges agreeing)
Background
The applicant pleaded guilty in November 2017 to attempting to possess a commercial quantity of border-controlled drugs reasonably suspected of having been unlawfully imported, contrary to the Criminal Code (Cth). He was part of a four-person syndicate that arranged to import approximately 198 kilograms of pure cocaine and 80 kilograms of pure methamphetamine from South Africa, concealed inside an iron ore extractor shipped to Australia in December 2016. In July 2018, he was sentenced to 11 years and 6 months' imprisonment, with a non-parole period of 7 years.
A co-accused in the same syndicate was separately tried and convicted of a related but distinct offence: attempting to possess commercial quantities of unlawfully imported border-controlled drugs under a different provision of the Criminal Code. That co-accused was sentenced by a different judge in October 2021, receiving 15 years' imprisonment with a non-parole period of 9 years.
The applicant sought leave to appeal his sentence out of time. He raised a single ground: that the sentence imposed on the co-accused created an unjustifiable disparity, giving him a legitimate sense of grievance. He argued the co-accused had a greater role in the syndicate and should therefore have received a heavier undiscounted sentence, which he contended made the disparity between their sentences unjust.
Legal Issues
- Whether the applicant had a justifiable sense of grievance arising from the disparity between his sentence and the sentence imposed on the co-accused (the parity ground).
- Whether, in pursuing a parity argument, the applicant could challenge or impugn the factual findings made by the sentencing judge in the co-accused's separate sentencing proceedings.
- Whether the difference in the offences charged, combined with the co-accused's subjective factors, adequately explained any apparent disparity in the sentences.
Decision
The Court of Criminal Appeal granted leave to appeal and extended the time for filing, but dismissed the appeal. Chen J delivered the principal judgment, with Beech-Jones CJ at CL and Price J agreeing.
On the central parity argument, the Court rejected the applicant's contention that the co-accused had a greater role in the syndicate. The judge who sentenced the co-accused had expressly found that the applicant and the co-accused operated "at about the same level." The Court held that a parity ground necessarily accepts the correctness of the co-accused's sentence, including the factual findings on which it rests. It is therefore not open to an applicant raising parity to impugn findings made in a co-accused's separate sentencing judgment.
The Court also found that even accounting for the applicant's plea of guilty, the disparity between the two sentences was not unjustified. The difference in the undiscounted sentences could be explained by the co-accused's subjective circumstances, including mental health disorders and significant delay in bringing his matter to trial. These factors legitimately reduced his sentence below what the objective criminality alone would otherwise have attracted.
Although the two offenders were charged under different provisions, the Court found that the findings of each sentencing judge established a very similar degree of knowledge and level of criminality. On the evidence before each sentencing judge, both offenders had knowledge of the drugs, though the co-accused acquired that knowledge later in the enterprise, close to the attempt to recover the drugs on 29 January 2017. Those findings did not support a conclusion of material difference in culpability sufficient to establish an absence of proportionality between the sentences.
Orders Made
- Time for filing the Notice of Appeal extended to 22 January 2022.
- Leave to appeal the sentence imposed by Norton SC DCJ on 27 July 2018 granted.
- Appeal dismissed.
Key Takeaways
- A parity ground in a sentencing appeal necessarily accepts the correctness of the co-accused's sentence, including the underlying factual findings. An applicant cannot use a parity argument as a vehicle to challenge or undermine findings made in a co-accused's separate sentencing proceedings.
- Where different judges sentence different co-offenders, their factual findings may differ because they are based on different evidence. This does not, of itself, give rise to a justifiable sense of grievance.
- A difference in the undiscounted sentences of co-offenders can be justified by subjective factors particular to one offender, such as mental health conditions or delay in bringing proceedings to trial, even where the co-offenders' objective criminality is comparable.
- In dismissing the appeal, the Court confirmed that parity can still be assessed even where co-offenders are charged with different offences, provided each sentencing court's findings allow a meaningful comparison of relative culpability.
- No error was established in the original sentence; the applicant's sentence of 11 years and 6 months with a 7-year non-parole period remained undisturbed.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Code (Cth), ss 11.1, 307.5, 307.8, 311
Cases:
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 65
- Jones v The Queen (1993) 67 ALJR 376
- Martellotta v R [2021] NSWCCA 168 (applied)
- Rae v R [2011] NSWCCA 211 (considered)
- Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
- Chen v R; He v R [2018] NSWCCA 95
- Kadwell (a pseudonym) v R [2021] NSWCCA 42
- Lonsdale v R [2020] NSWCCA 267
- Lewins v R [2007] NSWCCA 189
- PG v R [2017] NSWCCA 179
- R v Wei Pan [2005] NSWCCA 114