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Court of Criminal Appeal 8 December 2023

Emanuele v R

[2023] NSWCCA 316

Drugs
PARITY WHERE APPLICANT AND CO OFFENDER RECEIVED IDENTICAL SENTENCE S WHERE CO APPEAL ALLOWED APPLICANT RESENTENCED

Citation: Emanuele v R [2023] NSWCCA 316
Court: Court of Criminal Appeal, NSW
Date: 8 December 2023
Judge(s): Basten AJA; Davies J; Cavanagh J

Background

The applicant pleaded guilty in the District Court to one count of knowingly taking part in the supply of a commercial quantity of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). That offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. He was sentenced to five years imprisonment with a non-parole period of three years, commencing 6 October 2022.

His co-offender was sentenced at the same time by the same judge. The co-offender had pleaded guilty to a more serious offence involving a large commercial quantity of cocaine, attracting a maximum penalty of life imprisonment and a standard non-parole period of 15 years. Despite the different offences, the co-offender received an identical sentence of five years with a three-year non-parole period.

The applicant sought leave to appeal on three grounds: two parity grounds (arguing the identical sentences were unjust given the co-offender's more serious offence) and one ground of manifest excess.

  • Whether the applicant had a justifiable sense of grievance arising from receiving the same sentence as a co-offender convicted of a more serious offence carrying a higher maximum penalty and a longer standard non-parole period.
  • Whether the sentencing judge erred by failing to account for the difference in the seriousness of the respective offences when assessing objective seriousness.
  • Whether the sentence was manifestly excessive (this ground was not the basis of the ultimate decision).

Decision

The Court of Criminal Appeal allowed the appeal, with Basten AJA and Cavanagh J delivering separate but concurring reasons, and Davies J agreeing with both.

The Court confirmed the foundational principle that consistency in sentencing requires not only that like cases be treated alike, but that different cases be treated differently: The Queen v Pham (2015) 256 CLR 550. An offender may acquire a justifiable sense of grievance when, despite materially different circumstances, they receive the same sentence as a co-offender. Here, the co-offender faced a far more serious charge, yet the sentencing judge assessed both offenders' objective seriousness as falling below the mid-range and imposed identical sentences.

Cavanagh J found the sentencing judge erred by failing to give effect to the difference between the offences. Although the judge acknowledged the disparity in maximum penalties and standard non-parole periods, the identical assessment of objective seriousness and the consequent identical sentences were irreconcilable with any proper recognition of that difference. As Basten AJA observed, achieving similar sentences would have required different findings on objective seriousness for each offender.

A complicating factor arose from an agreed statement of facts signed by the applicant, which included a prosecution allegation (not a formally agreed fact) that the applicant's cocaine was "close to" the large commercial threshold. Basten AJA flagged concern about the inclusion of prosecution allegations in documents styled as agreed facts, noting this can generate confusion. Ultimately, however, the Court held that the proper reading of the agreed facts supported only that the applicant knew the quantity exceeded 250 grams, and he was entitled to the benefit of the resulting disparity through a reduction in sentence.

Orders Made

  • Leave to appeal granted.
  • The appeal allowed.
  • The sentence imposed by Judge JA English in the District Court on 10 March 2023 quashed.
  • The applicant resentenced to four years imprisonment commencing 6 October 2022, expiring 5 October 2026, with a non-parole period of two years and four months commencing 6 October 2022.
  • The applicant eligible for parole on 5 February 2025.

Key Takeaways

  • The principle of sentencing consistency cuts both ways: where co-offenders are convicted of offences of materially different seriousness, identical sentences may give rise to a justifiable sense of grievance on the part of the less serious offender.
  • Achieving similar sentences for offenders convicted of different offences requires correspondingly different findings on objective seriousness; the sentencing court in this case made no such differentiation, which constituted error.
  • Where an agreed statement of facts includes prosecution allegations rather than formally agreed matters, it risks generating confusion, particularly when signed by the offender. Basten AJA's comments highlight the care required in drafting such documents.
  • In resentencing, the Court applied a 25% discount for early guilty plea, took into account two Form 1 matters, and had regard to the applicant's good character, remorse, and rehabilitation prospects, as well as personal hardship arising from family circumstances.
  • The applicant's sentence was reduced from five years (non-parole period three years) to four years (non-parole period two years and four months), reflecting the parity error rather than any finding of manifest excess.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases
- The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
- Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 29
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Lowe v R (1984) 154 CLR 606; [1984] HCA 46
- Elias v R (2013) 248 CLR 483; [2013] HCA 31
- Chiarlini v R [2023] NSWCCA 227
- Humphreys v R [2020] NSWCCA 144
- Narayan v R [2022] NSWCCA 163
- Tan v R [2014] NSWCCA 96
- Tuivaga v R [2015] NSWCCA 145
- R v Chandler; Chandler v R [2012] NSWCCA 135
- R v Kelly (2005) 155 A Crim R 499; [2005] NSWCCA 280