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Court of Criminal Appeal 10 July 2023

Hung v R

[2023] NSWCCA 172

Drugs
CRIME APPEAL APPEAL AGAINST SENTENCE PARITY OFFENDER OFFENDER JUSTIFIED

Citation: Hung v R [2023] NSWCCA 172
Court: NSW Court of Criminal Appeal
Date: 10 July 2023
Judges: Leeming JA at [1]; Rothman J at [38]; McNaughton J at [39]

Background

The applicant pleaded guilty in the District Court to supplying a large commercial quantity of methylamphetamine (722g) between January and March 2021, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Four further offences, including dealing with the proceeds of crime and possessing prohibited drugs, were taken into account on a Form 1. He was sentenced to six and a half years imprisonment with a non-parole period of three and a half years, backdated to 18 March 2021, reflecting a 25% discount for his guilty plea.

The applicant and a co-offender, Mr Duong, were sentenced on the same day by the same judge for the same category of offence. Mr Duong's offending involved a larger quantity (915.88g) across eight supplies, compared to the four supplies (the four largest) to which the applicant was party. Despite differences in the objective and subjective features of each case, both men received identical total sentences of six and a half years.

The applicant sought leave to appeal approximately eight months after sentencing. His single ground of appeal was that the identical sentence gave rise to a justifiable sense of grievance when compared to the sentence imposed on Mr Duong.

  • Whether the applicant had a justifiable sense of grievance arising from the same total sentence being imposed on both him and the co-offender Mr Duong, in circumstances where their offending and personal circumstances differed.
  • Whether the sentencing judge erred in imposing identical total sentences on two offenders whose objective and subjective circumstances were not identical.

Decision

The Court of Criminal Appeal, led by Leeming JA (Rothman and McNaughton JJ agreeing), granted leave to appeal but dismissed the appeal. The Court accepted as a general proposition that identical sentences do not automatically foreclose a parity complaint. The task is to compare the sentences as a whole and ask whether the differences between the offenders supply a reasonable justification for the outcome.

The Court identified that several factors favoured a lesser sentence for the applicant: his role was assessed as less serious than Mr Duong's, he was involved in only four of the eight supplies, the total quantity he was responsible for was almost 200g less, and his subjective case included remorse and serious medical conditions (including end-stage renal failure requiring dialysis three times weekly). These factors pointed toward the applicant receiving a lighter sentence.

However, the applicant's criminal history told significantly against him. He had previously been convicted in 1990 of serious drug importation offences and sentenced to 13 years imprisonment with a minimum term of 10 years. Mr Duong, by contrast, had only minor prior offences and was expressly found to be entitled to leniency on account of his lack of significant criminal history. The applicant was not entitled to that leniency.

Leeming JA found it tolerably plain how the same total sentence was justified: the worse objective seriousness of Mr Duong's offending and the mitigating subjective features available to the applicant were offset by the applicant's disqualifying criminal history. The Court also noted a meaningful difference beneath the identical head sentences: the applicant's non-parole period (3 years 6 months) was substantially shorter than Mr Duong's (4 years), reflecting a special circumstances finding in the applicant's favour. No justifiable sense of grievance arose.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that identical total sentences imposed on co-offenders do not automatically prevent a parity complaint from arising; the comparison requires examining the sentences as a whole, including non-parole periods.
  • A serious prior drug conviction can properly offset mitigating factors that would otherwise have attracted a lesser sentence, justifying an outcome equivalent to that of a co-offender with fewer mitigations but a cleaner record.
  • Where a sentencing judge expressly grants leniency to one co-offender for lack of criminal history, a co-offender with a serious prior record in the same category of offending cannot claim parity on the basis of that leniency.
  • Differences in non-parole periods, even where head sentences are identical, form part of the parity analysis and may themselves reflect meaningful distinctions between co-offenders.
  • In dismissing the appeal, the Court emphasised that parity is assessed by asking whether differences between co-offenders supply a reasonable justification for the respective sentences, not simply whether the total figures are the same or different.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33 (Form 1 offences)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) (supply of large commercial quantity of prohibited drug)

Cases
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- R v Achurch [2011] NSWCCA 186; 216 A Crim R 152
- Weiss v R [2020] NSWCCA 188
- Fenech v R [2018] NSWCCA 160
- Miles v The Queen [2017] NSWCCA 266
- C v R [2022] NSWCCA 285
- Labban v R [2022] NSWCCA 275
- Z v R [2022] NSWCCA 286