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District Court 22 March 2023

R v Dyson

[2023] NSWDC 72

DrugsPublic order & justice offences
CRIME DRUG OFFENCES SUPPLY PROHIBITED DRUG COMMERCIAL QUANTITY

Citation: R v Dyson [2023] NSWDC 72
Court: District Court of NSW
Date: 22 March 2023
Judge(s): Priestley SC DCJ

Background

The offender was a fully patched member of the Lone Wolves Outlaw Motorcycle Gang in Coffs Harbour. Police investigations revealed he was running a commercial cocaine supply syndicate over a five-month period from November 2020 to April 2021, directing a network of at least seven associates and using vehicles fitted with hidden compartments to transport drugs.

The offender pleaded guilty to two principal offences: knowingly directing the activities of a criminal group under s 93T(4A) of the Crimes Act 1900, and supplying a commercial quantity of a prohibited drug (486 grams of cocaine) under s 25(2) of the Drug Misuse and Trafficking Act 1985. A further supply offence was taken into account on a Form 1. At the time of the offending, the offender was subject to an intensive correction order, which he breached.

A significant sentencing complication arose from the prior sentence of a co-offender, Mr Pincham. Pincham had been dealt with in the Local Court on the lesser charge of participating (not directing) a criminal group, and was sentenced on agreed facts that understated his role. The agreed facts in the offender's case, however, revealed that Pincham was approximately equally involved in the criminal enterprise, if not more so.

Legal Issues

  • What is the appropriate objective seriousness of each offence?
  • What weight should be given to the offender's subjective circumstances, including historical child abuse, the absence of prior drug offences, and custody conditions during COVID-19?
  • Does the parity principle apply where a co-offender was charged with a different, less serious offence and sentenced on facts that are now known to have understated his involvement?
  • If the parity principle applies, should the offender's sentence be reduced even if that reduction produces a sentence below what would otherwise be appropriate?

Decision

Issue 1: Objective seriousness

The criminal group charge under s 93T(4A) was assessed as falling into the mid-range of seriousness, based on the regularity of the offending over five months, the number of people involved, and the significant quantities of cocaine (at [17]). The supply charge involving 486 grams, nearly double the commercial quantity threshold of 250 grams, was assessed as touching on the mid-range but below the statutory midpoint (at [20]). The offender's role was characterised as a mid-level supplier answerable to Pincham, rather than the primary organiser of the entire enterprise (at [19]).

Issue 2: Subjective circumstances

The offender received a 25% discount for his early guilty plea (at [28]). His Honour accepted that historical institutional child sexual abuse had a profound ongoing impact on the offender's life, though no direct causal link to the offending was established (at [30]-[31]). Harsher custody conditions during COVID-19 were also accepted as a mitigating factor (at [29]). The absence of any prior drug supply charges provided some basis for a favourable view of rehabilitation prospects (at [34]). Before considering parity, the indicative aggregate sentence was 3 years and 9 months with a non-parole period of 2 years and 3 months (at [43]).

Issue 3: Application of the parity principle

Priestley SC DCJ held that the parity principle applied despite Pincham having been charged with a different and less serious offence (at [63]-[64]). The principle is founded on the concept of equal justice and concerns itself with substance over form (at [73]). Relying on the High Court's statements in Lowe v R and Green v The Queen, his Honour confirmed that practical difficulties in comparing sentences across different charges do not exclude the operation of the parity principle (at [63]-[64]).

The central difficulty was that the agreed facts in the offender's case revealed Pincham's involvement to be approximately equal to the offender's, whereas Pincham had been sentenced on facts that left his precise role unclear and charged him with a lesser offence (at [72]-[73]). His Honour reasoned that to ignore what was now known about Pincham's involvement would be to accept form over substance, and that a hypothetical objective bystander would perceive injustice if the offender received a significantly greater sentence for effectively the same criminal conduct (at [74]-[75], [79]).

Issue 4: Extent of reduction

His Honour accepted, drawing on the reasoning of Mason and Dawson JJ in Lowe, that it is permissible in appropriate circumstances to impose a sentence below what would otherwise be proper in order to avoid the appearance of injustice (at [57], [62]). Pincham had effectively served 18 months (five months on remand plus a 13-month intensive correction order), whereas the offender had already been in custody for 21 months by the date of sentence (at [80]). Applying the parity principle, the aggregate sentence was reduced to a non-parole period of 21 months commencing 23 June 2021, with a balance of term of 6 months (at [83]).

Orders Made

  • The offender was convicted of the s 93T(4A) offence (knowingly directing the activities of a criminal group) and the s 25(2) offence (supply of a commercial quantity of a prohibited drug).
  • Aggregate sentence imposed: non-parole period of 21 months commencing 23 June 2021, expiring on the date of sentence; balance of term of 6 months expiring 22 September 2023.
  • Indicative sentence for the s 93T(4A) offence: 3 years 9 months (after 25% plea discount).
  • Indicative sentence for the s 25(2) offence (including the Form 1 matter): 31 months (after 25% plea discount and rounding).

Key Takeaways

  • The parity principle applies even where co-offenders are charged with different offences arising from the same criminal conduct; practical difficulties in making comparisons reduce but do not eliminate its operation, consistent with the High Court's statements in Green v The Queen (at [63]-[64]).

  • Where agreed facts in a later sentencing proceeding reveal that a co-offender's involvement was approximately equal to the offender's, but the co-offender was sentenced on facts that understated that involvement, the sentencing court may apply the parity principle based on the fuller picture now before it (at [72]-[75]).

  • A sentence that would otherwise be inadequate may be imposed where necessary to avoid the appearance of injustice to a hypothetical objective bystander, a principle drawn from the judgments of Mason and Dawson JJ in Lowe v R (at [57], [62]).

  • The parity principle is grounded in equal justice and operates on substance rather than form; a sentencing court should not knowingly look away from what is now known about a co-offender's true involvement simply because that co-offender was charged with lesser offences (at [73], [79]).

  • Custody conditions during COVID-19 were accepted as making imprisonment more onerous, warranting consideration as a mitigating factor even without specific evidence of the particular lockdown periods experienced by the individual offender (at [29]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Chamon v R [2020] NSWCCA 112
- Greaves v R [2020] NSWCCA 140
- Green v The Queen [2011] HCA 49
- Jimmy v The Queen [2010] NSWCCA 60
- Lowe v R (1984) 154 CLR 606
- Muldrock v The Queen [2011] HCA 39
- R v Cattell [2019] NSWCCA 297.
- Valentine v R [2020] NSWCCA 116