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Court of Criminal Appeal 20 February 2023

Sadiq v R

[2023] NSWCCA 25

Drugs
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE PARITY LEAVE GRANTED BUT APPEAL DISMISSED

Citation: Sadiq v R [2023] NSWCCA 25
Court: NSW Court of Criminal Appeal
Date: 20 February 2023
Judges: Leeming JA (principal judgment); Garling J and Adamson J (agreeing)

Background

The appellant pleaded guilty in the District Court to two counts of knowingly taking part in the manufacture of a large commercial quantity of a prohibited drug, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The drugs involved were approximately 5.759 kg of MDMA and 9.870 kg of methylamphetamine, each vastly exceeding the 0.5 kg statutory threshold for a "large commercial quantity." Both offences carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

The offending centred on a clandestine drug laboratory at a residential property in Stanhope Gardens. The agreed facts established that the appellant purchased materials and equipment used in the manufacturing process in the days before an explosion at the premises, and was present at the scene during the manufacturing operation. A co-offender and a third man, who has not been apprehended, were also involved.

The District Court imposed an aggregate sentence of 11 years imprisonment with a non-parole period of 6 years, incorporating a 10% guilty plea discount. The appellant sought leave to appeal, contending that the sentencing judge erred in assessing objective seriousness and that the sentence was manifestly excessive, including on parity grounds when compared with the co-offender's sentence.

  • Whether the sentencing judge erred in placing both offences in the mid-range of objective seriousness.
  • Whether the aggregate sentence of 11 years was manifestly excessive.
  • Whether the parity principle required a more favourable sentence, given the co-offender received a comparable outcome.
  • Whether parity analysis is confined to conduct falling within the timeframe specified on the indictment.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds. Leeming JA, with whom Garling J and Adamson J agreed, found no appellable error in the primary judge's sentencing discretion.

On objective seriousness, the Court accepted the sentencing judge's mid-range finding. The quantities of drugs far exceeded the large commercial threshold, the laboratory was substantial in scale, a significant volume of precursor chemicals was present, and the appellant had purchased materials for the operation and was present and available to assist in the manufacturing process. The Court found these features adequately supported the mid-range characterisation.

On parity, the Court compared the undiscounted starting points for the indicative sentences imposed on both the appellant and the co-offender. The comparison revealed no unjustified disparity. The co-offender demonstrated significantly higher remorse and contrition, was found to be less directly connected to the offending, and had a different additional offence taken into account. The appellant, by contrast, had purchased equipment, was present at the scene, and received some monetary benefit. These differences in role and subjective circumstances justified the comparable undiscounted starting points.

The Court also addressed whether parity analysis extends beyond the indictment period, confirming that it is not so confined, though this did not alter the outcome. No error was established in the exercise of the sentencing discretion.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that drug quantities far exceeding the large commercial threshold, combined with a substantial clandestine laboratory and the purchase and supply of manufacturing materials, can support a mid-range objective seriousness finding even where the offender's precise role in the physical manufacturing process is not established.
  • The parity principle, as restated from Green v The Queen; Quinn v The Queen (2011) 244 CLR 462, requires that any sense of grievance arising from disparate sentences be assessed objectively, with intervention refused where differences in role, character, criminal history, or subjective circumstances justify the disparity.
  • Parity analysis is not confined to conduct falling within the timeframe specified on the indictment.
  • Significant differences in remorse and contrition between co-offenders are a legitimate basis for differentiating sentences, even where the undiscounted starting points for indicative sentences are broadly comparable.
  • No error of principle is required to be identified specifically before a sentence is found manifestly excessive; however, the appellate court will not intervene merely because a different result might have been reached, consistent with the high threshold established in House v The King (1936) 55 CLR 499.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 11C(1), 24(2), Sch 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 53A(2)
- Crimes Act 1900 (NSW), s 193B(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Qin v R [2022] NSWCCA 137
- Tsimingos v R [2021] NSWCCA 107
- Grogan v R [2019] NSWCCA 51
- El Kheir v R [2019] NSWCCA 288
- Er v R [2018] NSWCCA 286
- Greentree v R [2018] NSWCCA 227
- R v Chandler; Chandler v R [2012] NSWCCA 135
- MLP v R [2014] NSWCCA 183
- Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61
- Nguyen & Tran [2021] NSWDC 576
- R v Forero-Gomez [2021] NSWDC 131
- R v Wensor [2019] NSWDC 399
- R v Merhi [2020] NSWDC 910