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Court of Criminal Appeal 18 May 2022

R v Farrugia

[2022] NSWCCA 98

Drugs
SENTENCING APPEAL AGAINST SENTENCE OFFENDERS DIFFERENCE IN NON DISPARITY JUSTIFIED

Citation: Farrugia v R [2022] NSWCCA 98
Court: NSW Court of Criminal Appeal
Date: 18 May 2022
Judge(s): Basten AJA (principal judgment); Price J and Adams J agreeing

Background

The applicant pleaded guilty in the District Court to manufacturing a large commercial quantity of methylamphetamine (3.6kg) and supplying a large commercial quantity of the same drug (11kg). He was sentenced to 8 years and 7 months imprisonment, with a non-parole period of 4 years and 9 months. A further charge of dealing with suspected proceeds of crime ($37,800 cash) was taken into account on a Form 1.

His co-offender, who had been sentenced by the same judge approximately two years earlier, received an overall term of 7 years and 6 months with a non-parole period of 3 years and 6 months. The co-offender had entered his pleas much earlier and received a 25% discount, whereas the applicant entered his pleas later and received only a 15% discount.

The applicant sought leave to appeal on two grounds: first, that the difference between his sentence and that of his co-offender amounted to an unjustifiable disparity; and second, that the sentencing judge erred in finding him to have played a greater role in the offending than his co-offender.

  • Whether the sentences imposed on the applicant involved an unjustifiable disparity when compared with those imposed on his co-offender (Ground 1)
  • Whether the sentencing judge erred in finding the applicant's role in the offending was higher than that of his co-offender (Ground 2)

Decision

Ground 2 (relative culpability): The Court addressed this ground first. The sentencing judge found the applicant "slightly more culpable" than his co-offender, but "not substantially more so." The Court noted that counsel for the applicant at sentencing had effectively conceded it was open to find the applicant's role was slightly larger. The difference in culpability had only limited impact on the overall sentencing exercise, and the finding was open on the facts. Leave to appeal on Ground 2 was refused.

Ground 1 (disparity in head sentences): The Court found that the different guilty plea discounts (25% for the co-offender versus 15% for the applicant) produced the same notional starting point of 9 years and 4 months for each offender. This alone provided a sufficient justifiable basis for the disparity in the individual sentence lengths. The modest additional accumulation of 3 months applied to the applicant's sentence was explicable by the Form 1 offence.

Ground 1 (disparity in non-parole periods): The remaining and principal complaint concerned the difference in non-parole periods: 4 years and 9 months for the applicant versus 3 years and 6 months for his co-offender. The Court identified three subjective factors that distinguished the two cases. The co-offender's methamphetamine addiction was found to have been a major causal factor in his offending, whereas the applicant's motive remained unclear. The co-offender had mental health issues that had warranted a shorter sentence duration. The co-offender was also assessed as having "very good, if not excellent" prospects of rehabilitation, compared with the applicant's assessment of merely "good" prospects, with ongoing concerns about immaturity, impulsivity and past associations.

The Court concluded that the combination of these differences in subjective circumstances, together with the objective differences (including the Form 1), justified the degree of disparity in the non-parole periods. No error warranting intervention was established.

Orders Made

  • Leave to appeal granted on Ground 1
  • Application for leave to appeal on Ground 2 refused
  • Appeal dismissed

Key Takeaways

  • A difference in guilty plea discounts between co-offenders can itself constitute a sufficient justifiable basis for disparity in sentence length, without the need to identify any other distinguishing feature.
  • Under the parity principle, courts do not apply a mechanical checklist comparison; sentencing remains an evaluative exercise that accounts for the full range of differences in objective and subjective circumstances between co-offenders.
  • No error was established where the difference in non-parole periods between co-offenders was supported by distinct subjective findings on motive, mental health needs, and prospects of rehabilitation.
  • A Form 1 offence taken into account on sentencing can legitimately influence the degree of accumulation applied, even where the head sentence for the relevant count remains nominally the same as that of a co-offender.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that arithmetical differences in ratios of non-parole period to head sentence do not alone demonstrate error, where material differences in the offenders' circumstances justify the outcome.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22 (discounts for guilty pleas)

Cases cited: No cases were cited in the judgment text provided.