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Court of Criminal Appeal 25 June 2025

Antony v R

[2025] NSWCCA 82

Drugs
SENTENCING APPEAL AGAINST SENTENCE OFFENDERS PARITY PRINCIPLE DISPARITY BETWEEN SENTENCES WHERE A CO

Citation: Antony v R [2025] NSWCCA 82
Court: NSW Court of Criminal Appeal
Date: 25 June 2025
Judges: Davies J (principal judgment); Hamill J and McNaughton J (agreeing)

Background

The applicant pleaded guilty on the second day of his trial to aiding and abetting the importation of a commercial quantity of a border controlled precursor (pseudoephedrine), an offence under the Criminal Code (Cth) carrying a maximum of 25 years imprisonment. The offending related to a March 2021 attempt to import approximately 41 kilograms of pseudoephedrine (28 times the commercial quantity) from India into Australia. Australian Border Force intercepted the shipment, substituted the drug with sand, and conducted a controlled delivery.

The applicant's role involved helping secure payment for the consignment and attending the co-offender's premises to assist in extracting the product from the substituted goods. A co-offender, referred to throughout as "GG," was separately charged with attempting to import the same precursor and was also involved in two further, unrelated consignments in which the applicant had no part.

The applicant was sentenced on 6 December 2024 to 3 years 7 months imprisonment with a non-parole period of 2 years. GG had been sentenced by a different judge on 18 July 2024 to 8 years 4 months with a non-parole period of 5 years. The applicant sought leave to appeal, arguing the difference in sentences was improperly large and reflected errors in the sentencing process.

  • Whether the sentencing judge erred by stating that "questions of parity do not have any part to play" and by failing properly to apply parity principles as between the applicant and GG
  • Whether the sentencing judge made an erroneous assessment of the objective seriousness of the applicant's offending
  • Whether the sentence was disproportionate to the applicant's role, culpability, and personal circumstances
  • Whether the sentence was manifestly excessive when considered independently of the co-offender's sentence

Decision

On the parity grounds (Grounds 1, 2, and 3), the Court found no error. Although the sentencing judge used language suggesting parity was irrelevant, a fair reading of the entire sentencing remarks showed that his Honour had in fact engaged in detailed consideration of the similarities and differences between the applicant and GG. The phrase "questions of parity do not have any part to play" was interpreted as a statement that the two sentences would bear little resemblance to each other, not as a declaration that equal justice principles were being ignored.

A significant complication arose from conflicting role assessments by two judges. The sentencing judge found the applicant was lower in the criminal hierarchy than GG, while Judge Hunt (who sentenced GG) had found the opposite. The Court of Criminal Appeal held that both assessments were open on the evidence before each judge. Critically, Judge Hunt's findings about GG's role did not obligate the applicant's sentencing judge to adopt a starting point inconsistent with his own findings about the applicant's culpability.

Taking into account the quantity involved (28 times the commercial quantity), the maximum penalty of 25 years, the applicant's lower but still significant role, and the differences between the two offenders' conduct, the Court found the applicant had no justifiable sense of grievance. The sentence was lower than GG's, as expected given the differences in their offending.

On the manifest excess ground (Ground 4), the Court found the sentence was not unreasonable or plainly unjust. Hamill J added a note of caution, declining to describe the sentence as "lenient" (as Davies J had), but agreed it fell within the acceptable range. The applicant's involvement in attempting to physically extract the substituted goods, combined with the scale of the importation, supported the sentence imposed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's loose language suggesting parity is "irrelevant" will not establish error where the full sentencing remarks demonstrate genuine engagement with the relevant principles of equal justice between offenders.
  • Where two judges sentence co-offenders separately and reach different conclusions about their relative positions in a criminal hierarchy, each assessment may be valid if open on the evidence before that judge. Neither finding binds the other court.
  • Judge Hunt's higher assessment of GG's role did not require the applicant's sentencing judge to adopt an artificially low starting point to maintain proportionality with GG's sentence. The parity principle does not operate in that mechanical way.
  • In dismissing the manifest excess ground, the Court confirmed that a sentence significantly below the co-offender's, reflecting a lower but still meaningful role in a large-scale importation, is unlikely to be characterised as unreasonable or plainly unjust.
  • Conflicting role assessments by different judges in related matters will not automatically generate a successful parity appeal: the applicant must demonstrate a justifiable sense of grievance in light of all relevant differences between the two cases.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth) ss 11.2(1), 307.11(1)
- Crimes Act 1914 (Cth) s 16A
- Drug Misuse and Trafficking Act 1985 (NSW) s 25

Cases:
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v Pan [2005] NSWCCA 114
- Mulato v R [2006] NSWCCA 282
- Lewins v R [2007] NSWCCA 189; (2007) 175 A Crim R 40
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 274
- Rae v R [2011] NSWCCA 211
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Mohr v R [2024] NSWCCA 197
- R v Antony [2024] NSWDC 580