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Court of Criminal Appeal 13 October 2023

Chapman v R

[2023] NSWCCA 259

DrugsTraffic & driving
CRIME APPEALS APPEAL AGAINST SENTENCE WHETHER THE APPLICANT WAS A CO WHETHER PARITY PRINCIPLE APPLIED

Citation: Chapman v R [2023] NSWCCA 259
Court: NSW Court of Criminal Appeal
Date: 13 October 2023
Judges: Adamson JA; Price J; Davies J

Background

The appellant was sentenced in the District Court at Campbelltown in September 2022 after pleading guilty to two offences: supplying a large commercial quantity of 1,4-Butanediol (a prohibited drug) on 9 July 2020, and driving whilst his licence was cancelled on the same date. He received a total effective sentence of five years' imprisonment with a non-parole period of three years and nine months.

The appellant had a lengthy criminal history spanning New South Wales, Western Australia and Commonwealth offences. He was on parole at the time of the offending, and that parole was subsequently treated as revoked. His subjective circumstances included the death of his sister by suicide in 2006, significant drug dependence since that time, and some steps toward rehabilitation.

He brought his appeal unrepresented, arguing on two grounds: that the sentencing judge erred by failing to find special circumstances (which can justify a longer parole period relative to the head sentence), and that his sentence was disproportionately harsh compared to the sentence imposed on his supplier, who had been sentenced separately by a different judge.

  • Whether the sentencing judge erred in refusing to find special circumstances warranting a different ratio between the head sentence and the non-parole period
  • Whether the parity principle applied as between the appellant and his supplier, who was sentenced by a different judge for related but distinct drug offences
  • Whether the appellant and his supplier were co-offenders in the same criminal enterprise, as a threshold requirement for the parity principle to operate

Decision

Special circumstances: The Court of Criminal Appeal rejected the first ground of appeal. The sentencing judge had considered the applicant's need for supervision on release, his background, and his rehabilitative prospects. Price J found no error in the judge's exercise of discretion in declining to find special circumstances. The standard ratio between the head sentence and non-parole period was not disturbed.

Parity principle: The Court also rejected the second ground. The parity principle requires that co-offenders in the same criminal enterprise should not receive sentences that are unjustifiably disparate. Here, however, the appellant and his supplier were not co-offenders in that sense. The supplier had sold the drug to the appellant, who then on-sold it to his own customers. The two men operated independently: the supplier's subsequent offences involved sales to different customers, the appellant was not a party to those transactions, and the agreed facts underlying the appellant's sentence made no reference to a joint criminal enterprise.

The Court noted that the parity issue had not even been raised in the original sentencing proceedings. Critically, the supplier was not charged with supplying the drug to the appellant on 9 July 2020, and the two were strangers to each other's respective criminal enterprises beyond the single buyer-seller transaction. That commercial relationship alone was insufficient to engage the parity principle.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The parity principle applies between co-offenders in the same criminal enterprise; a buyer-seller relationship, standing alone, does not make two individuals co-offenders for parity purposes.
  • Where two offenders were sentenced by different judges for distinct offences arising from overlapping but separate criminal activity, the Court of Criminal Appeal confirmed that parity was not available as a ground of appeal.
  • A failure to raise the parity issue at the original sentencing proceedings is a relevant contextual factor, though not necessarily determinative on its own.
  • No error was established in the sentencing judge's refusal to find special circumstances where the judge had turned her mind to the relevant factors, including rehabilitation prospects and supervision needs.
  • Under the agreed facts framework, the scope of what constitutes a joint criminal enterprise is assessed on the facts as found and agreed, not inferred from a commercial connection between an upstream supplier and a downstream on-seller.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Firearms Act 1996 (NSW), s 51(1A)(a)
- Road Transport Act 2013 (NSW), s 54(4)(a)

Cases:
- Baladjam v R (2018) 341 FLR 162; [2018] NSWCCA 304
- Beale v R [2015] NSWCCA 120
- Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31
- 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
- Jiang v R [2010] NSWCCA 277
- Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
- Kiraz v R [2023] NSWCCA 177
- R v Araya (2005) 155 A Crim R 555; [2005] NSWCCA 283
- R v Carter [2003] NSWCCA 243
- R v Cramp [2004] NSWCCA 264
- R v Tuuta [2014] NSWCCA 40