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Court of Criminal Appeal 9 June 2023

R v Dyson

[2023] NSWCCA 132

Drugs

Citation: R v Dyson [2023] NSWCCA 132
Court: NSW Court of Criminal Appeal
Date: 9 June 2023
Judge(s): Button J, Hamill J, Sweeney J

Background

The respondent pleaded guilty in the Local Court to two serious offences: directing the activities of an organised criminal group and supplying a commercial quantity of cocaine. A further offence of knowingly taking part in a commercial quantity drug supply was taken into account on a Form 1. He was sentenced in the District Court at Grafton on 22 March 2023, receiving an aggregate term of 2 years and 3 months imprisonment with a non-parole period of 1 year and 9 months. Because the sentence commenced on 23 June 2021, the non-parole period expired on the very day of sentencing, and the respondent was released from custody that day.

The Director of Public Prosecutions filed a timely Crown appeal under s 5D of the Criminal Appeal Act 1912 (NSW), arguing the sentencing judge had misapplied the parity principle (the principle that co-offenders should not receive sentences so different as to be unjust) and that the resulting aggregate sentence was manifestly inadequate.

A central complication was that a co-offender had been sentenced separately in the Local Court, under a different sentencing regime and on different agreed facts. The two sets of agreed facts described the co-offender's role in the drug syndicate in inconsistent terms, creating difficulty for the District Court in applying parity.

  • Whether the sentencing judge erred in the method used to apply the parity principle, specifically by adopting a two-step approach rather than treating parity as part of instinctive synthesis
  • Whether the sentencing judge erred by relying on the co-offender's role as described in the respondent's agreed facts, rather than the co-offender's own agreed facts
  • Whether the resulting aggregate sentence was manifestly inadequate
  • Whether, even if error was established, the Court of Criminal Appeal should exercise its residual discretion under s 5D to decline to resentence the respondent and return him to custody

Decision

The Court unanimously found that the sentencing judge had erred in two respects. First, his Honour adopted a two-stage approach, announcing an aggregate sentence and then reducing it separately for parity reasons. Parity is not a discrete adjusting step applied after sentence is determined; it must form part of the overall instinctive synthesis. Second, his Honour assessed the co-offender's role by reference to how that role was described in the respondent's agreed facts, rather than the agreed facts tendered in the co-offender's own sentence proceedings. Sweeney J noted that Rosenberg v R [2022] NSWCCA 295 makes clear that an offender must be sentenced on the basis of their own facts, and that primacy must be given to those facts to avoid a circular conundrum.

The Court also accepted the Crown's submission, and counsel for the respondent's concession, that the aggregate sentence was manifestly inadequate having regard to the seriousness of the offences and the respondent's personal circumstances. The indicative sentences for individual counts were both longer than the aggregate sentence imposed, which Button J observed was itself an inherent indication that the sentencing process had miscarried.

Despite establishing error, the Court unanimously exercised its residual discretion not to intervene and resentence the respondent. By the time of the appeal hearing, the respondent had been released from custody, was living with family, was employed full time, had re-established contact with his young daughter, was reporting to his parole officer, had distanced himself from negative associates, and had not used illicit drugs since release. His parole officer confirmed his progress. The Court concluded that returning the respondent to custody would disrupt a genuine and developing rehabilitation, which is itself a purpose of sentencing and a benefit to community safety.

The Court also observed that the necessary guidance to sentencing courts on the correct application of the parity principle could be provided through the reasons for judgment, without the need to resentence the respondent. The Crown appeal was dismissed.

Orders Made

  • The Crown appeal was dismissed.

Key Takeaways

  • Parity is not a separate adjusting step applied after an aggregate sentence is determined. The Court of Criminal Appeal confirmed it must be addressed as part of instinctive synthesis, alongside all other relevant sentencing considerations.
  • Where a co-offender has been sentenced in different proceedings, the sentencing court must assess the co-offender's role by reference to the agreed facts tendered in the co-offender's own sentence proceedings, not how that role is characterised in the offender's separate agreed facts.
  • An aggregate sentence that is shorter than both of the indicative sentences for individual counts is, of itself, a signal that the sentencing proceedings have miscarried.
  • In dismissing the appeal, the Court exercised its residual discretion under s 5D not to resentence despite established error, where the respondent had been released, was progressing well in rehabilitation, and where intervention would disrupt that progress without corresponding benefit to the community.
  • Crown appeals serve guidance purposes as well as corrective ones. The Court found it was able to clarify principles for sentencing courts without necessarily resentencing every respondent in whom error is found, particularly where the inadequacy is not so profound as to compel intervention.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93T(4A)
- Criminal Appeal Act 1912 (NSW), s 5D
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases
- CMB v Attorney General for New South Wales [2015] HCA 9
- Dwayhi v R [2011] NSWCCA 67
- Greaves v The Queen [2020] NSWCCA 140
- Green v The Queen; Quinn v The Queen [2011] HCA 49
- Jimmy v R [2010] NSWCCA 60
- Lowe v R (1984) 154 CLR 606; [1984] HCA 46
- PG v R [2017] NSWCCA 179
- R v Boney [2001] NSWCCA 432
- R v Chandler; Chandler v R [2012] NSWCCA 135
- Rosenberg v R [2022] NSWCCA 295
- Shortland v R [2013] NSWCCA 4