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Court of Criminal Appeal 19 February 2024

Vujinovic v R

[2024] NSWCCA 10

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE PARITY DISPARITY BETWEEN SENTENCES OF CO OFFENDER’ S

Citation: Vujinovic v R [2024] NSWCCA 10
Court: NSW Court of Criminal Appeal
Date: 19 February 2024
Judges: Davies J, Button J, Weinstein J

Background

The applicant pleaded guilty to trafficking a commercial quantity of cocaine (2.2613 kilograms) contrary to the Criminal Code 1995 (Cth). A separate charge of dealing with money reasonably suspected of being proceeds of crime was taken into account on a schedule at sentencing. The offending arose from involvement in an organised criminal syndicate that imported cocaine in packages addressed to undeliverable addresses across the Parramatta and Macquarie Park areas.

Two co-offenders participated in the same scheme as delivery drivers for logistics companies. Each falsely scanned consignments as "delivered," retained the packages, and passed them to others including the applicant. Both co-offenders pleaded guilty to importing a commercial quantity of cocaine and were sentenced separately.

In October 2022, the District Court sentenced the applicant to six years' imprisonment with a non-parole period of three years and eight months, after a 25% discount for his early guilty plea. The sentencing judge remarked that the applicant would receive a "slightly longer" sentence than his co-offenders to reflect his greater role. The applicant then appealed on the ground that the actual disparity between his sentence and those of his co-offenders was so marked as to produce a justifiable sense of grievance.

  • Whether the disparity between the applicant's sentence and the sentences imposed on his two co-offenders was so unreasonable or irrational as to demonstrate that the sentencing discretion had miscarried.
  • Whether the differences in the parties' subjective cases and individual roles were sufficient to justify the degree of difference between their sentences.

Decision

The Court of Criminal Appeal found that the sentencing judge's own remarks acknowledged that the differences between the applicant and his co-offenders were not significant enough to justify a great difference in sentences. Despite that finding, the sentencing judge imposed an undiscounted head sentence on the applicant of eight years, compared to undiscounted head sentences of six years for one co-offender and five years and nine months for the other.

The practical effect was striking: by the time the applicant's 25% discount was applied, his discounted sentence had only reached the level of his co-offender's undiscounted head sentence. Weinstein J (with Davies and Button JJ agreeing) held that this degree of disparity was unreasonable and irrational, and that the sentencing discretion had miscarried. The appeal ground was upheld.

On resentence, Weinstein J adopted the sentencing judge's own parity findings, accepting that the applicant should receive a sentence slightly longer than those of his co-offenders to reflect his greater role in the syndicate. Starting from an undiscounted figure of six years and six months (modestly above the co-offenders' undiscounted sentences), and applying a 25% discount with some rounding, the Court arrived at a sentence of four years and ten months with a non-parole period of three years.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 28 October 2022 quashed.
  • Applicant resentenced to imprisonment of 4 years and 10 months, with a non-parole period of 3 years, commencing 14 December 2020.
  • First eligible for parole on 13 December 2023; head sentence to expire on 13 October 2025.

Key Takeaways

  • A sentencing court's own characterisation of the appropriate parity is a significant anchor: where the sentencing judge found only "slight" differences justified only a "slightly longer" sentence, imposing a substantially longer one demonstrated an internal inconsistency amounting to error.
  • The parity principle requires that co-offenders not receive sentences so different as to produce a justifiable sense of grievance, even where some difference in sentence is warranted by differences in role or culpability.
  • On resentence, the Court of Criminal Appeal adopted the original sentencing findings on parity and gave effect to them consistently, imposing a sentence that was marginally above the co-offenders' undiscounted figures before applying the guilty plea discount.
  • A 25% discount for an early guilty plea under the Criminal Code 1995 (Cth) regime was applied to the resentenced term, consistent with the approach taken at first instance.
  • In assessing disparity, the court considered both co-offenders' sentences together, noting that the same justifiable sense of grievance arose when the applicant's sentence was compared to either.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Code 1995 (Cth), ss 302.2, 311.2, 400.9

Cases:
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- DS v R [2014] NSWCCA 267
- Lloyd v R [2017] NSWCCA 303
- Jaafar v R [2022] NSWCCA 254
- Hassoun v R [2023] NSWCCA 5