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Court of Criminal Appeal 27 November 2023

P v R

[2023] NSWCCA 297

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE LEAVE TO APPEAL GRANTED PARITY OFFENDERS

Citation: P v R [2023] NSWCCA 297
Court: NSW Court of Criminal Appeal
Date: 27 November 2023
Judge(s): Davies J, Fagan J, Dhanji J (Dhanji J delivering the principal judgment)

Background

The applicant, referred to as "P," was sentenced in the District Court in October 2020 after pleading guilty to participating in a criminal group and manufacturing MDMA in a quantity exceeding the large commercial threshold. He received an aggregate sentence of 7 years and 6 months imprisonment, with a non-parole period of 5 years.

P was one of four mid-ranking offenders in a drug manufacturing enterprise. The sentencing judge placed the four within a hierarchy, ranking them in descending seriousness as Z, C, SF, and then P, with P occupying the least serious role among the four. However, the sentencing judge also noted that the practical differences in culpability between this group were not as significant as their respective counsel submitted.

In 2022, three of P's co-offenders (C, Z, and SF) successfully appealed their own sentences to achieve parity with P. P then sought leave to appeal out of time, arguing that those co-offenders' reduced sentences now gave him a justifiable sense of grievance. That parity argument formed the sole ground of appeal before the Court of Criminal Appeal.

  • Whether the extension of time to appeal should be granted given the application was well out of time.
  • Whether the sentences subsequently imposed on co-offenders C, Z, and SF gave the applicant a justifiable sense of grievance, warranting intervention by the Court of Criminal Appeal on parity grounds.

Decision

The Court granted the extension of time, accepting that the delay was substantially explained by the co-offenders' appeals being decided only in late 2022, well after P's original sentencing.

On the parity ground, the Court applied the principle from Postiglione v The Queen (1997) 189 CLR 295: equal justice requires like to be treated alike, but relevant differences justify different outcomes. The Court examined P's sentence against each co-offender's starting point (that is, before discounts for guilty plea and assistance were applied), since each offender received varying combined discounts.

The Court found that, while P occupied a slightly lower position in the hierarchy, his personal circumstances differed materially from those of his co-offenders in ways that justified the sentencing differentiation. In particular, P had a more significant criminal history and less favourable prospects of rehabilitation compared to SF, for whom the sentencing judge found a genuine rehabilitation trajectory. Those factors required greater weight to be given to personal deterrence in P's case and supported a higher starting point.

The Court concluded that no justifiable sense of grievance had been established with respect to any of the three co-offenders. Leave to appeal was granted but the appeal was dismissed.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A parity argument requires the applicant to establish a justifiable sense of grievance by reference to the starting points for sentence, not the final sentences after individual discounts for guilty pleas and assistance are applied.
  • The Court of Criminal Appeal confirmed that where co-offenders have previously appealed to achieve parity with an applicant, the applicant may still bring their own parity appeal if those reduced sentences are said to generate a new grievance, provided the delay is adequately explained.
  • Ranking within a criminal hierarchy is only one factor in a sentencing exercise; differences in criminal history, prospects of rehabilitation, and the weight to be given to personal deterrence can justify sentencing outcomes that do not precisely track hierarchical position.
  • In dismissing the appeal, the Court emphasised that there is no single correct sentence or correct relationship between co-offenders' sentences: the task requires a holistic value judgment across all relevant factors.
  • Where a sentencing judge expressly finds that intra-group hierarchical differences are less significant than counsel submit, that finding shapes the weight given to relative ranking on any subsequent parity analysis.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93T(1) (participating in a criminal group)
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(2) (manufacture of prohibited drug, large commercial quantity); s 25(1) (supply of prohibited drug)
- Crimes Act 1900 (NSW), s 193B(3) (recklessly deal with proceeds of crime)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22 and 23 (discounts for guilty plea and assistance)

Cases:
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58
- Thorn v R (2009) 198 A Crim R 135; [2009] NSWCCA 294
- Schembri v Regina [2010] NSWCCA 149
- Redfern v R (2012) 228 A Crim R 56; [2012] NSWCCA 178
- R v Waqa (No 2) (2005) 156 A Crim R 454; [2005] NSWCCA 33
- R v NP [2003] NSWCCA 195
- Bahcekapili v R [2020] NSWCCA 296
- SF v R [2022] NSWCCA 216
- Z v R [2022] NSWCCA 286
- C v R [2022] NSWCCA 285