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Court of Criminal Appeal 15 December 2022

Labban v R

[2022] NSWCCA 275

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE PARITY THREE OFFENCES ON FORM 1 OFFENDERS

Citation: Labban v R [2022] NSWCCA 275
Court: NSW Court of Criminal Appeal
Date: 15 December 2022
Judges: Bell CJ, Mitchelmore JA, Hamill J

Background

The applicant pleaded guilty in the District Court at Campbelltown to two offences of supplying a commercial quantity of a prohibited drug under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW): 366.14 grams of cocaine and 284.89 grams of methylamphetamine. Three further offences were taken into account on a Form 1, including resisting a police officer and additional drug supply. The offending involved seven transactions with an undercover police officer conducted between November and December 2018.

Two co-offenders were sentenced at the same time. One co-offender received an aggregate term of 5 years and 6 months with a non-parole period of 3 years and 3 months, and the other received 3 years and 4 months with a non-parole period of 2 years. The applicant received an aggregate term of 7 years with a non-parole period of 5 years and 3 months.

The applicant sought leave to appeal, arguing that the sentencing judge inadequately explained the disparity between his sentence and those of his co-offenders, that the disparity gave rise to a justifiable sense of grievance, and that the judge failed to properly apply or explain the totality principle in structuring the aggregate sentence.

  • Whether the sentencing judge gave adequate reasons for the differences between the applicant's sentence and those of the two co-offenders (parity principle).
  • Whether the disparity between the applicant's sentence and that of one co-offender gave the applicant a justifiable sense of grievance.
  • Whether the sentencing judge failed to apply the totality principle, or failed to give adequate reasons for the degree of notional accumulation built into the aggregate sentence.
  • Whether the degree of notional accumulation in the aggregate sentence was excessive.

Decision

On the parity grounds, the Court held that the sentencing judge's awareness of the parity principle was sufficiently apparent from his reasons, even though he did not expressly name the principle. The judge had addressed the common facts and then assessed each offender's relative objective seriousness and subjective circumstances in turn. That approach satisfied the requirement to demonstrate engagement with parity.

The Court identified several factors that meaningfully distinguished the applicant from his co-offenders. The applicant dealt directly with the undercover officer, supplied larger quantities of both cocaine and methylamphetamine, was subject to an Intensive Corrections Order at the time of the offending, had a prior criminal record, and had poor prospects of rehabilitation. The co-offender who received the lesser sentence also faced different charges, including ongoing supply rather than commercial quantity supply. These differences justified the disparity and the applicant's grievance was not established.

On the totality grounds, the Court confirmed that a sentencing judge is not required to articulate the totality principle in explicit terms. It is sufficient that the reasons indicate whether sentences are concurrent, accumulative, or partly accumulated. Here, it was clear the judge had the principle in mind, and the absence of express reference to it did not constitute error.

On the question of whether the accumulation was excessive, the Court accepted that the methylamphetamine supplies, particularly the sixth transaction, involved criminality distinct from the cocaine offending. Sourcing a different drug and generating additional profit meant the two sets of offending were not simply a single episode of criminality. The degree of accumulation the judge adopted was open in the exercise of sentencing discretion and was neither unreasonable nor plainly unfair when measured against the overall criminality.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge is not required to use the word "parity" in reasons on sentence, provided the reasons demonstrate actual engagement with the relative seriousness of each co-offender's conduct and circumstances.
  • Differences in the charges faced, the quantities supplied, the offender's role in transactions, a criminal history, and the existence of a current supervision order can all justify a materially higher sentence compared to co-offenders, even where those co-offenders participated in some of the same transactions.
  • Under the totality principle, reasons need only indicate how sentences are to run (concurrently, cumulatively, or partly accumulated). No particular formula or express invocation of the principle is required.
  • Where separate drug supplies involve different substances, distinct sourcing arrangements, and additional profit, a sentencing court may treat them as involving independent criminality that warrants some degree of accumulation in an aggregate sentence.
  • In dismissing all four grounds, the Court of Criminal Appeal confirmed that appellate intervention on totality or accumulation grounds requires more than a competing view about the degree of overlap. The degree of accumulation must be unreasonable or plainly unfair.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25A(1), 29
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Crimes Act 1900 (NSW), s 193B(2)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- Cahyadi v R (2007) 168 A Crim R 41
- Chamon v R [2020] NSWCCA 112
- Franklin v R [2013] NSWCCA 122
- Hall v R [2021] NSWCCA 220
- Huckstadt v R [2016] NSWCCA 22
- Jackson v R [2022] NSWCCA 148
- JT v R [2012] NSWCCA 133
- Miles v R [2017] NSWCCA 266