AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 26 August 2024

Neale v R

[2024] NSWCCA 159

Drugs

Citation: Neale v R [2024] NSWCCA 159
Court: Court of Criminal Appeal, NSW
Date: 26 August 2024
Judge(s): Ward P; Wilson J (majority); Sweeney J (dissenting)

Background

The appellant was sentenced in the District Court in November 2022 for supplying not less than a commercial quantity of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). He received four years and three months imprisonment with a non-parole period of two years and four months. The offence carries a maximum of 20 years and a standard non-parole period of 10 years.

About eight months later, a co-offender, who had collected and delivered drugs on behalf of the same syndicate leader, was sentenced by the same judge for lesser offences under s 25(1) of the same Act. That co-offender received an aggregate sentence of just over two years and two months, to be served by way of an Intensive Correction Order (a community-based sentence involving strict supervision rather than full-time custody).

The appellant sought leave to appeal his sentence on the ground of parity: that the disparity between his sentence and the co-offender's produced a justifiable sense of grievance. The Court granted an extension of time and leave to appeal, but divided two to one on whether the appeal should succeed.

  • Whether the difference in sentences between the appellant and his co-offender gave rise to a justifiable sense of grievance, engaging the parity principle
  • Whether the sentencing judge's reasons adequately explained the disparity by reference to differences in the objective and subjective circumstances of each offender
  • Whether the sentencing discretion had been exercised in a manner open to the judge, such that appellate intervention was not warranted

Decision

Majority (Ward P and Wilson J): Appeal dismissed. The majority emphasised that the primary judge had sentenced most members of the drug syndicate himself, was thoroughly familiar with each offender's role and personal circumstances, and had expressly applied the parity principle when sentencing both the appellant and the co-offender. That careful comparative analysis by a single judge across multiple co-offenders called for caution on appeal.

The majority reaffirmed the principle drawn from Lloyd v R [2017] NSWCCA 303: the appellate question is not whether this Court would have imposed a different sentence, but whether the differentiation made was one open to the sentencing judge in the exercise of discretion. The majority found it was. The differences began with the charges themselves: the appellant faced the more serious commercial quantity offence under s 25(2), while the co-offender was charged under s 25(1), reflecting his greater criminality and moral culpability within the syndicate.

Dissent (Sweeney J): Appeal should be allowed. Sweeney J concluded that the two men were properly regarded as co-offenders and that their roles in the syndicate were substantially indistinguishable, the only material operational difference being that the co-offender was unaware of the quantities involved. Their subjective circumstances and motivations were similarly aligned. Sweeney J considered that a reasonable person in the community, viewing the offending and personal circumstances of both men objectively, would regard the disparity as unjust, requiring appellate intervention. Her Honour would have resentenced the appellant to three years and three months imprisonment with a non-parole period of two years.

Orders Made

The majority's orders:
- Extension of time granted
- Leave to appeal granted
- Appeal dismissed

Sweeney J's proposed orders (dissenting):
- Extension of time granted
- Leave to appeal granted
- Appeal allowed
- District Court sentence quashed
- Appellant resentenced to 3 years and 3 months imprisonment with a non-parole period of 2 years (commencing 12 October 2022)

Key Takeaways

  • The parity principle does not automatically entitle a co-offender to appellate relief where a sentencing judge has expressly addressed the comparison and given reasons for the differential. The Court of Criminal Appeal confirmed that the appellate inquiry is whether the sentencing differentiation was open to the primary judge, not whether the appellate court would have reached the same result.

  • Where a single judge sentences multiple co-offenders across a series of proceedings, appellate courts will afford that judge's comparative analysis considerable weight, given the judge's direct familiarity with all offenders' conduct and circumstances.

  • Differences in the charges faced by co-offenders can themselves reflect and justify differences in objective culpability, even where the underlying conduct appears broadly similar at a factual level.

  • A 2:1 split in the Court of Criminal Appeal illustrates that parity arguments can involve genuinely contestable evaluative judgments, particularly where co-offenders did not know or interact with each other but operated within the same criminal enterprise.

  • Under the Drug Misuse and Trafficking Act 1985 (NSW), the distinction between s 25(1) and s 25(2) offences carries practical sentencing consequences: s 25(2) (commercial quantity) attracts a standard non-parole period of 10 years, while no such standard non-parole period applies to s 25(1) offences.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) and s 25(2)

Cases
- B v R [2022] NSWCCA 102
- Croke v R [2021] NSWCCA 249
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Lloyd v R [2017] NSWCCA 303
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 1
- Why v R [2017] NSWCCA 101