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Court of Criminal Appeal 7 October 2022

SF v R

[2022] NSWCCA 216

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE COVID 19 PANDEMIC 19 ON CONDITIONS OF IMPRISONMENT

Citation: SF v R [2022] NSWCCA 216
Court: Court of Criminal Appeal, New South Wales
Date: 7 October 2022
Judge(s): Simpson AJA; Hamill J; Ierace J (joint judgment by Ierace J, with Simpson AJA and Hamill J agreeing)

Background

The applicant (referred to throughout as "SF") pleaded guilty in the District Court to two offences: participating in a criminal group under s 93T(1) of the Crimes Act 1900 (NSW), and manufacturing a large commercial quantity of MDA (3,4-methylenedioxyamphetamine, exceeding 24 kg) under s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The applicant was one of eight persons involved in a joint criminal enterprise to manufacture the drug, operating across several properties in regional and western Sydney between October 2017 and March 2018. His role was described in the agreed facts as being directly involved in the manufacturing process at the Neville property on multiple occasions.

The District Court sentenced the applicant in October 2020 to two years for the first offence and seven years with a non-parole period of four years and six months for the second offence, backdated to 29 January 2019. A co-offender, Derrick Washington, was sentenced separately by a different District Court judge in June 2021 and received a lesser sentence. Washington's role was characterised as that of an employee who knowingly assisted with the diversion and decanting of chemicals at the Wetherill Park premises and transported chemicals to other locations.

The applicant sought leave to appeal to the Court of Criminal Appeal on two grounds: first, that the sentencing judge failed to take into account the more onerous conditions of imprisonment caused by the COVID-19 pandemic; and second, that there was an unjustifiable sentencing disparity between him and Washington.

  • Whether the sentencing judge erred by failing expressly to take into account the impact of the COVID-19 pandemic on conditions of imprisonment when imposing sentence.
  • Whether a disparity existed between the applicant's sentence and that of co-offender Washington that gave rise to a justifiable sense of grievance on the applicant's part, having regard to each offender's role and the ratio of their respective non-parole periods to total sentences.

Decision

Ground 1: COVID-19 and conditions of custody

The Court upheld this ground. Although the sentencing judge had acknowledged the COVID-19 pandemic during the sentencing proceedings, the remarks on sentence did not expressly address its likely impact on conditions of imprisonment. The Court found this constituted an error, as the harsher realities of custody during the pandemic were a relevant sentencing consideration that ought to have been reflected in the exercise of the sentencing discretion. The sentencing discretion was therefore required to be exercised afresh.

Re-sentencing on a fresh basis, the Court confirmed that the same aggregate sentence of seven years was appropriate given the seriousness of the offending, particularly the applicant's significant hands-on role in manufacturing a very large quantity of MDA. However, the Court found that a reduction in the non-parole period was warranted to account for the conditions of incarceration during the pandemic, the applicant's mental health needs (including depression, PTSD and a gambling disorder), and the desirability of a lengthier period of supervised parole to support rehabilitation. Special circumstances were found on those bases, justifying a departure from the standard non-parole period ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Ground 2: Parity with co-offender Washington

The Court rejected the parity ground. After analysing the respective roles of the applicant and Washington, Ierace J concluded that Washington's involvement was at a considerably lower level: he was an employee who assisted with chemical diversion and transport at the Wetherill Park premises, whereas the applicant was directly and repeatedly involved in the actual manufacture of the drug. The Court found no unjustifiable disparity giving rise to a justifiable sense of grievance on the applicant's part, and the comparison of non-parole period ratios did not alter that conclusion.

Orders Made

  • Application for leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court quashed and replaced with an aggregate term of imprisonment of seven years, backdated to commence 29 January 2019 and expiring 28 January 2026, with a non-parole period of four years and two months. The applicant's earliest eligible date for release to parole was 28 March 2023.

Key Takeaways

  • A sentencing judge's failure to expressly address the impact of the COVID-19 pandemic on conditions of imprisonment, even where the pandemic was otherwise acknowledged during proceedings, may constitute a sentencing error warranting intervention on appeal.
  • Upholding the appeal on Ground 1, the Court of Criminal Appeal exercised the sentencing discretion afresh but maintained the same total aggregate sentence, reducing only the non-parole period to reflect the COVID-related hardship and other subjective factors.
  • Under the parity principle, a co-offender who played a more limited and peripheral role (such as assisting with chemical diversion as an employee, without direct involvement in manufacturing) is not directly comparable to an offender who participated repeatedly and hands-on in the manufacturing process itself.
  • Special circumstances sufficient to justify a reduced non-parole period ratio may arise from a combination of factors including the ongoing impact of COVID-19 on custodial conditions, mental health treatment needs upon release, and the desirability of a lengthier supervised parole period to consolidate rehabilitation.
  • Where different sentencing judges sentenced co-offenders, parity analysis still requires close comparison of each offender's objective role; differences in outcome reflecting genuine differences in culpability will not, of themselves, create a justifiable sense of grievance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93T
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 44
- Drug Misuse and Trafficking Act 1985 (NSW), s 24

Cases
- Church v R [2012] NSWCCA 149
- Dunshea v R [2016] NSWCCA 244
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Li v R [2005] NSWCCA 442
- Lin v R [2006] NSWCCA 258
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Moodie v R (2020) 24 A Crim R 87; [2020] NSWCCA 160
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Edwards (1996) 90 A Crim R 510
- R v Pearce [2020] NSWCCA 61
- Stojanovski v R [2013] NSWCCA 334
- Thach v R [2018] NSWCCA 252
- Valentine v R [2020] NSWCCA 116