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Court of Criminal Appeal 9 April 2025

Farrugia v R

[2025] NSWCCA 49

Drugs
CRIMINAL APPEALS SENTENCE APPEAL MISCARRIAGE OF JUSTICE NO EVIDENCE TO ESTABLISH CONFLICT INVARIABLY THE CASE NO WAIVER OF PRIVILEGE

Citation: Farrugia v R [2025] NSWCCA 49
Court: Court of Criminal Appeal
Date: 09 April 2025
Judges: Price AJA, Campbell J, Hamill J

Background

The appellant pleaded guilty in the District Court to conspiring to traffic a commercial quantity of border-controlled drugs (20kg of MDMA and 3kg of methamphetamine). A proceeds of crime offence involving $957,217 was taken into account at sentencing. He received 11 years imprisonment with a non-parole period of 7 years and 6 months.

A co-offender was sentenced at the same hearing on a similar conspiracy charge involving larger drug quantities and a substantially higher proceeds of crime amount ($1,785,000). The co-offender received 9 years imprisonment with a non-parole period of 6 years and 6 months. Critically, a totality issue arose in the co-offender's case due to a prior sentence he was already serving, which did not arise for the appellant.

Both offenders were jointly represented by the same senior counsel throughout the sentencing proceedings. On appeal, the appellant sought leave to appeal on a single ground: that the joint representation created a conflict of interest causing the sentencing proceedings to miscarry.

  • Whether joint representation of two co-offenders in sentencing proceedings by the same senior counsel constituted a conflict of interest
  • Whether that alleged conflict of interest caused a miscarriage of justice in the sentencing proceedings
  • Whether the failure to waive legal professional privilege affected the appellant's ability to establish his ground of appeal
  • Whether the sentences imposed on the two offenders gave rise to a justifiable sense of grievance under the parity principle

Decision

The single ground: alleged conflict of interest and miscarriage of justice

Hamill J (with whom Price AJA and Campbell J agreed) held that no miscarriage of justice was established. The Court acknowledged that in rare cases it may remit a matter to the sentencing court under s 12(2) of the Criminal Appeal Act 1912 (NSW) where a miscarriage of justice has occurred, without needing to determine whether a different sentence was warranted. Scenarios where this may arise include cases where a lawyer representing two offenders has a genuine conflict of interest. However, the appellant did not establish that any such conflict existed on the evidence before the Court.

No rule against joint representation at sentencing

The Court confirmed there is no rule of practice or professional ethics prohibiting a single barrister from appearing for two co-offenders in sentencing proceedings. The fact that appellate counsel could identify submissions that "could" have been made, and which had "some possible merit," establishes little or nothing. Submissions made in the District Court correctly characterised the relative objective criminality of the two offenders, were accepted by the prosecution, and were accepted by the sentencing judge after detailed consideration.

Privilege, evidence, and practical injustice

Where counsel's conduct is challenged, an appellant may need to adduce evidence, for example by waiving privilege, to demonstrate that instructions were not followed or that the potential conflict was not explained to the client. The appellant did not waive privilege and tendered no evidence on the appeal. As a result, the Court was left with only the record from below, which did not support the contention that any conflict existed or that the representation adversely affected the outcome. The appellant failed to demonstrate a significant possibility that joint representation caused practical injustice.

Parity

On the parity principle, the Court found the sentences were not such as to engender a justifiable sense of grievance in the appellant. Several features distinguished the two offenders' cases: the co-offender's drug quantities were substantially greater, his proceeds of crime were larger, and a totality principle calculation applied to his sentence in a way that did not arise for the appellant. The appellant had mitigating matters advanced on his behalf, including a dysfunctional and deprived childhood, that were accepted by the sentencing judge. The sentences bore proper and due proportion to one another.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • There is no rule of professional conduct or practice that prohibits a single barrister from representing two co-offenders during sentencing proceedings in New South Wales.
  • A miscarriage of justice based on an alleged conflict of interest is not established merely because appellate counsel can identify alternative submissions that "could" have been made or that had "some possible merit."
  • Where the conduct of trial counsel is directly challenged on appeal, the failure to waive legal professional privilege may leave the Court without the evidence necessary to establish the ground of appeal.
  • To succeed on a ground alleging defective sentencing submissions, an appellant must demonstrate both a material irregularity in the proceedings and a significant possibility that the irregularity adversely affected the outcome, so as to occasion a practical injustice.
  • Under the parity principle, a justifiable sense of grievance is not established where identifiable factual differences between co-offenders, including differences in drug quantities, proceeds amounts, and applicable sentencing principles such as totality, rationally explain a sentencing disparity.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16BA
- Criminal Appeal Act 1912 (NSW), ss 6(3), 12(2)
- Legal Profession Uniform Conduct ( Barristers) Rules 2015 (NSW), r 119

Cases
- Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
- Baxter v R [2018] NSWCCA 281
- BC v R (No 2) [2019] NSWCCA 142
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Brown v R (2018) 99 NSWLR 151; [2018] NSWCCA 257
- Douar v Regina [2005] NSWCCA 455; (2005) 159 A Crim R 154
- Ellis v R [2015] NSWCCA 262
- Hall v R [2007] NSWCCA 301
- Hamdan v R [2023] NSWCCA 80
- Jones (a pseudonym) v R [2021] NSWCCA 225; ( 2021) 291 A Crim R 68
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- LS v R [2024] NSWCCA 110
- MacDonald v R [2024] NSWCCA 240
- Murray v R [2015] NSWCCA 75
- Nassr v R [2015] NSWCCA 284
- Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
- O’ Neil-Shaw v R [2010] NSWCCA 42
- Paul Campbell v R [2018] NSWCCA 87
- Portelli v R [2018] NSWCCA 28
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Purdie v R [2019] NSWCCA 22
- R v Pamplin [2001] NSWCCA 327
- R v Zycki [2024] NSWCCA 9
- Raymond John Munro v R [2006] NSWCCA 350
- Rossall v R [2021] NSWCCA 200
- Shi v R [2017] NSWCCA 126
- Shortland v R [2024] NSWCCA 174
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Tsiakas v R [2015] NSWCCA 187