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Court of Criminal Appeal 26 August 2024

Keen v R

[2024] NSWCCA 157

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE PARITY OFFENDERS EXTENT OF DISPARITY NOT JUSTIFIED

Citation: Keen v R [2024] NSWCCA 157
Court: NSW Court of Criminal Appeal
Date: 26 August 2024
Judges: Wilson J, Dhanji J, Yehia J (Yehia J delivered the principal judgment, with Wilson and Dhanji JJ agreeing)

Background

The applicant was one of six men involved in a scheme to possess a commercial quantity of cocaine, a border-controlled drug. He was employed at a warehouse where the cocaine was concealed within imported aluminium ingots, and his role was to aid and abet the other participants in their attempts to access the drugs. He was not a member of the drug syndicate and did not participate in all four access attempts.

In August 2022, the applicant was sentenced in the District Court for two drug offences. For the federal offence of aiding and abetting an attempt to possess a commercial quantity of cocaine, he received nine years' imprisonment with a five-year non-parole period. His five co-offenders, who played more central roles in the syndicate, received considerably shorter sentences for the same federal offence.

The applicant sought leave to appeal out of time, arguing that the disparity between his sentence and those of his co-offenders gave rise to a justifiable sense of grievance. He also pointed to Crown appeals against the co-offenders' sentences, both of which were dismissed.

  • Whether the disparity between the applicant's sentence and those of his co-offenders was sufficient to give rise to a justifiable sense of grievance, warranting appellate intervention on parity grounds.
  • Whether the sentencing judge erred in finding the applicant's moral culpability to be similar to that of co-offenders who held higher positions in the drug enterprise.
  • Whether issue estoppel or estoppel by conduct could apply in criminal proceedings, given the Crown's conduct in separately pursuing inadequacy appeals against co-offenders' sentences.

Decision

The Court of Criminal Appeal found that the applicant had been treated more severely than his co-offenders, and that the extent of the disparity was not justified by the differences in their subjective circumstances. The sentencing judge's finding that the applicant's criminality was similar to that of Barkl, Dumbrell and Theobald was held to be unavailable on the evidence, for six distinct reasons. The applicant was not a syndicate member, brought no particular expertise, was lawfully present at the warehouse as an employee, missed two of the four access attempts, had no contact with drug suppliers, and attended none of the off-site meetings held by the co-offenders.

Yehia J (with whom the others agreed) confirmed the applicable parity test: whether the sentence imposed on a co-offender is reasonably justified in light of the differences between co-offenders, taking into account the qualitative and discretionary judgments required of the sentencing judge. The Court acknowledged the deference owed to a sentencing judge who sentenced both the applicant and his co-offenders, but held that deference does not excuse an appellate court from carefully analysing the differences in criminality and subjective circumstances.

On the estoppel question, Wilson J (with the others agreeing) confirmed that there is no estoppel or issue estoppel in criminal law. However, his Honour noted that a very high standard of conduct is expected of the Crown in criminal proceedings, and that standard is not necessarily met where the Crown runs related cases in an inconsistent manner.

The Court resentenced the applicant for the federal offence to seven years' imprisonment with a non-parole period of three years and six months, adopting the same starting point as had been used for co-offender Theobald, adjusted to account for the applicant's less compelling subjective case and the fact that he was on parole at the time of the offending.

Orders Made

  • Time to appeal extended; leave to appeal against sentence granted.
  • The appeal against sentence allowed.
  • The sentence imposed by the District Court for the federal Code offence quashed.
  • In lieu thereof, for the federal offence: seven years' imprisonment with a non-parole period of three years and six months, commencing 21 February 2022; non-parole period to expire 20 August 2025; head sentence to expire 20 February 2029.
  • The sentence for the State offence confirmed: five years' imprisonment with a non-parole period of three years and nine months, commencing 21 February 2021.
  • Effective overall sentence: eight years, with a total non-parole period of four years and six months commencing 21 February 2021; eligible for parole release on 20 August 2025.
  • No finding of special circumstances made (futile given the Code offence sentence).

Key Takeaways

  • A justifiable sense of grievance arises where the disparity between co-offenders' sentences cannot be reasonably explained by differences in their roles, criminality, or subjective circumstances. The court must analyse those differences carefully rather than simply defer to the sentencing judge's discretion.
  • Appellate courts will be cautious before intervening where the same judge sentenced the applicant and all co-offenders, but that caution does not remove the obligation to scrutinise whether the proportionality of the sentences is supportable.
  • A finding that an aider and abettor possessed the same moral culpability as members of the drug syndicate who directed operations, attended all access attempts, and communicated with suppliers, was held to be unavailable on the facts of this case.
  • No issue estoppel operates in criminal proceedings. The Court of Criminal Appeal reaffirmed the consistent line of authority, from the House of Lords through to the High Court, confirming the doctrine has no application in criminal law.
  • Where the Crown has pursued inadequacy appeals against co-offenders' sentences and those appeals have been dismissed, an applicant cannot adopt the appellate court's findings from those proceedings unless they were a party to them. Procedural fairness prohibits otherwise.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 11.1(1), 11.2(1), 307.5(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases
- Assie v R (Cth) [2020] NSWCCA 249
- Cameron v R [2017] NSWCCA 229
- Carl v R [2023] NSWCCA 190
- Chamon v R [2020] NSWCCA 112
- Edmonds v R [2022] NSWCCA 103
- Giles-Adams v R; Preca v R [2023] NSWCCA 122
- Hung v R [2023] NSWCCA 172
- Island Maritime Limited v Filipowski (2006) 226 CLR 328; [2006] HCA 30
- Lupica v R [2024] NSWCCA 111
- Mammone v R [2013] NSWCCA 95
- Martellotta v R [2021] NSWCCA 168
- Ooi v R [2023] NSWCCA 97
- R v Barkl; R v Dumbrell; R v Theobald [2022] NSWDC 760
- R v Barkl; R v Dumbrell; R v Theobald [2023] NSWCCA 309
- R v Butler [2024] NSWCCA 133
- R v Butler [2024] NSWDC 79
- R v Humphrys [1977] AC 1
- R v Keen [2022] NSWDC 369
- Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42