Citation: P v R [2023] NSWCCA 297
Court: Court of Criminal Appeal
Date: 27 November 2023
Judge(s): Davies J, Fagan J, Dhanji J (judgment delivered by Dhanji J)
Background
The applicant was one of four mid-tier offenders involved in a criminal enterprise to manufacture a large commercial quantity of MDMA. Two principals sat above this group, and a number of lesser participants sat below. The applicant, along with co-offenders identified as Z, C, and SF, occupied roles in between those two extremes. Of that middle group, the applicant was ranked as the least culpable.
In October 2020, the applicant pleaded guilty and was sentenced by Turnbull SC DCJ in the District Court to an aggregate term of 7 years and 6 months imprisonment, with a non-parole period of 5 years. Z and C were sentenced approximately six weeks later by the same judge. Each of those co-offenders subsequently appealed their sentences and succeeded on grounds of disparity with the applicant and SF, with this Court adjusting Z's and C's sentences downward to achieve parity.
The applicant then brought his own out-of-time application for leave to appeal, arguing that the sentences ultimately received by Z, C, and SF gave him a justifiable sense of grievance.
Legal Issues
- Whether the applicant should be granted an extension of time to file his appeal out of time
- Whether the applicant had a justifiable sense of grievance, within the parity principle, arising from the sentences imposed on co-offenders Z, C, and SF
- Whether any disparity between the applicant's sentence and SF's sentence was adequately explained by differences in their personal circumstances
Decision
Extension of time: The Court granted the extension of time. The delay was explained in part by the timing of the co-offenders' appeals, the outcomes of which were not known until October and December 2022, and was further explained by evidence from the applicant's former solicitor (at [6]).
Parity as against Z and C: The applicant's disparity argument against Z and C was found to be untenable. Both Z and C had already succeeded in appeals to this Court solely on the ground of disparity with the applicant. Reducing the applicant's sentence to achieve parity with theirs would directly undermine this Court's own earlier assessment of the appropriate relativities between all four sentences. No argument was advanced that those earlier decisions were wrong (at [23]).
Parity as against SF: The applicant and SF were sentenced at the same time. Although the applicant occupied a marginally lower position in the hierarchy than SF, his starting point was almost two years longer. The Court considered whether that difference was justified by factors other than hierarchical rank (at [26]-[27]). The answer was yes. SF had only a minor criminal record and was found to have turned his life around, with good prospects of rehabilitation. Those findings entitled SF to leniency that the applicant could not access. By contrast, the applicant had a substantial criminal history involving fraud, firearms, and drug offences, and his prospects of rehabilitation were viewed more guardedly. The Form 1 offences also required personal deterrence to be maintained in the applicant's sentence in a way that did not arise for SF (at [37]-[40]). The Court found that these differences in personal circumstances adequately explained the disparity in starting points (at [40]).
Outcome: The applicant failed to establish a justifiable sense of grievance with respect to any of his co-offenders. Leave to appeal was granted but the appeal was dismissed (at [41]).
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
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Where this Court has already reduced a co-offender's sentence specifically to achieve parity with an applicant, a subsequent parity claim by that applicant based on the co-offender's reduced sentence is untenable: allowing it would contradict the Court's own earlier calibration of relativities (at [23]).
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Hierarchical rank within a criminal enterprise is only one sentencing factor. A marginally lower rank does not, without more, entitle an offender to a lower sentence than a co-offender if other individual factors, such as criminal history and prospects of rehabilitation, point in the opposite direction (at [17], [40]).
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A substantially criminal history that deprives an offender of leniency, combined with a finding that personal deterrence must be maintained, can justify a materially higher starting point than that imposed on a co-offender who was found to have turned their life around and had only a minor criminal record (at [37]-[40]).
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The parity principle, as confirmed in this decision, requires equal treatment of those in like circumstances, but mandates that relevant differences between offenders be given due weight before any disparity can be found to produce a justifiable sense of grievance, following Postiglione v The Queen (1997) 189 CLR 295 (at [10]).
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In dismissing the appeal, the Court of Criminal Appeal reiterated that there is no single correct sentencing outcome and no single correct relationship between the sentences of co-offenders, echoing the observation in Bahcekapili v R [2020] NSWCCA 296 (at [40]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Bahcekapili v R [2020] NSWCCA 296
- C v R [2022] NSWCCA 285
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v NP [2003] NSWCCA 195
- R v Waqa (No 2) (2005) 156 A Crim R 454; [2005] NSWCCA 33
- Redfern v R (2012) 228 A Crim R 56; [2012] NSWCCA 178
- Schembri v Regina [2010] NSWCCA 149
- SF v R [2022] NSWCCA 216
- Thorn v R (2009) 198 A Crim R 135; [2009] NSWCCA 294
- Z v R [2022] NSWCCA 286