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Court of Criminal Appeal 21 December 2022

Rosenberg v R

[2022] NSWCCA 295

Drugs
SENTENCING PARITY DRUG SUPPLY OFFENCES OFFENDERS OFFENDER LEAVE GRANTED

Citation: Rosenberg v R [2022] NSWCCA 295
Court: NSW Court of Criminal Appeal
Date: 21 December 2022
Judges: Meagher JA; Beech-Jones CJ at CL; Garling J

Background

The appellant pleaded guilty to two drug supply offences: supplying not less than a commercial quantity of MDMA, and supplying an indictable quantity of cocaine. He was sentenced to an aggregate term of 5 years and 5 months' imprisonment with a non-parole period of 3 years and 4 months. His co-offender, sentenced at the same time by the same judge, received an aggregate sentence of 5 years and 9 months with a non-parole period of 3 years and 6 months for three offences, including additional drug possession charges and a proceeds of crime offence.

The sentencing judge received separate statements of agreed facts for each offender. Those statements differed materially. The agreed facts in the appellant's case described a relatively limited role: personally supplying 505.49 grams of MDMA, agreeing to supply a further quantity, and facilitating introductions to the co-offender, without sourcing the drugs or setting prices. By contrast, the agreed facts in the co-offender's case described him supplying 3,831.94 grams of MDMA, holding significant drug quantities at his property, and portrayed the appellant as having a more substantial involvement than his own agreed facts disclosed.

The appellant sought leave to appeal on the ground that the sentencing judge had created an unjustified degree of equivalence between the indicative sentences for the two drug supply offences he was convicted of and those imposed on the co-offender for comparable offences, given the differences in their respective culpability.

  • Whether the sentencing judge applied the parity principle correctly when comparing sentences across two offenders who had separate and materially inconsistent statements of agreed facts
  • Whether, for the purposes of a parity comparison, a sentencing judge may rely on the description of an offender's role as it appears in the co-offender's agreed facts, rather than being confined to that offender's own agreed facts
  • Whether the resulting sentences reflected an unjustified degree of equivalence given the differences in the offending disclosed by each set of agreed facts

Decision

The Court of Criminal Appeal granted leave to appeal, allowed the appeal, and resentenced the appellant. The court held unanimously that where separate statements of agreed facts contain material differences, the correct approach to a parity comparison is to assess each offender's culpability as disclosed in the agreed facts tendered in their own case. It is an error to compare an offender's role as described in their own agreed facts against the co-offender's role as described in those same agreed facts.

Beech-Jones CJ at CL, with Meagher JA and Garling J agreeing, reasoned that the sentencing judge had proceeded on the basis that both offenders participated in the same offending. That approach was incorrect. Each offender could only be sentenced on the facts proved or agreed in their own case, and the parity comparison had to proceed on the same basis.

Examining each set of agreed facts separately, the court found that the co-offender's offending was plainly more substantial in terms of quantity, scope, sophistication, and role. Because both offenders had similarly strong subjective cases, those differences in objective culpability were not adequately reflected in the proximity of their indicative sentences. That proximity gave rise to an objectively justifiable sense of grievance on the part of the appellant.

The court resentenced the appellant to an aggregate term of 4 years and 10 months' imprisonment, with a non-parole period of 2 years and 10 months, representing a meaningful reduction from the original sentence.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Original sentence imposed on 17 December 2021 set aside
  • Appellant resentenced to an aggregate term of imprisonment of 4 years and 10 months commencing 4 October 2020 and expiring 3 August 2025
  • Non-parole period of 2 years and 10 months, expiring 3 August 2023, with earliest parole eligibility date of 3 August 2023
  • Indicative sentences specified: 4 years and 1 month (non-parole period 2 years and 5 months) for the commercial quantity MDMA supply offence; 2 years and 7 months for the indictable quantity cocaine supply offence

Key Takeaways

  • Where co-offenders are sentenced on separate and materially different statements of agreed facts, the parity comparison must be conducted by reference to each offender's own agreed facts, not by using one set of agreed facts to assess both offenders' roles.
  • A sentencing court errs if it treats co-offenders as participants in identical offending when the agreed facts tendered in their respective cases describe different conduct, quantities, and roles.
  • The parity principle, as confirmed in Lowe v The Queen (1984) 154 CLR 606 and applied in Moran v R [2022] NSWCCA 217, requires that any disparity between sentences for co-offenders be proportionate to the relevant differences in their culpability and subjective circumstances.
  • A complaint of unjustified parity does not amount to a challenge to the sentence imposed on the co-offender; it proceeds on the assumption that the appellant's own sentence was otherwise appropriate.
  • Where co-offenders share similarly strong subjective cases, significant differences in the objective seriousness of their respective offending must be meaningfully reflected in the sentences imposed on each.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32(1), 44(2A), 53A(2)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes Act 1900 (NSW), s 193B(2)
- Criminal Appeal Act 1912 (NSW), s 5

Cases
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Moran v R [2022] NSWCCA 217
- DS v R [2014] NSWCCA 267
- Usher v R [2016] NSWCCA 276
- Chamon v R [2020] NSWCCA 112
- Tatana v R [2006] NSWCCA 398
- Lewins v R [2007] NSWCCA 189
- Cameron v R [2017] NSWCCA 229
- Hordern v R [2019] NSWCCA 138
- Miles v R [2017] NSWCCA 266
- Youkhana v R [2011] NSWCCA 37
- R v O'Donoghue (1988) 34 A Crim R 397