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Court of Criminal Appeal 21 March 2003

Regina v Colin WILKIE [2003] NSWCCA 69 revised - 4

[2003] NSWCCA 69

Also reported as 140 A Crim R 78
Drugs
CRIMINAL LAW APPEAL SENTENCE PARITY APPEAL ALLOWED RESENTENCING

Citation: Regina v Colin WILKIE [2003] NSWCCA 69; (2003) 140 A Crim R 78
Court: NSW Court of Criminal Appeal
Date: 21 March 2003
Judge(s): Shaw J; Studdert J

Background

The applicant pleaded guilty in the District Court to two charges under the Drug Misuse and Trafficking Act 1985 (NSW): one count of ongoing supply of heroin (three or more occasions within 30 consecutive days) and one count of supply of heroin. The offences occurred in mid-2001 at a Glebe premises operated by a co-offender, Ms Bala, whom police identified as the controlling operator. The applicant initially acted as a doorman and later became involved in passing over heroin at Ms Bala's direction, collecting money, and providing his phone number to prospective buyers.

The Crown had conceded, both at the original sentencing and on appeal, that Ms Bala's role in the criminal enterprise was greater than the applicant's. The applicant referred to Ms Bala as "boss" in intercepted conversations, and the police facts confirmed she directed the operation.

Urquhart DCJ sentenced the applicant to three years imprisonment with a non-parole period of one year and ten months. Ms Bala was subsequently sentenced by a different District Court judge to a total effective sentence of three years, but with a non-parole period of only six months. The applicant sought leave to appeal on the basis that this disparity gave rise to a justifiable sense of grievance.

  • Whether the disparity between the applicant's sentence and Ms Bala's sentence gave rise to a justifiable sense of grievance, engaging the parity principle.
  • Whether the Court of Criminal Appeal should intervene, even where the original sentence was otherwise within the accepted sentencing range for the offence.
  • What sentence should be substituted on resentencing, having regard to the applicant's prospects of rehabilitation and the objective gravity of the offending.

Decision

The Court accepted that the parity principle, as discussed in R v Schultz [2002] NSWCCA 462, requires that there be no marked disparity between sentences imposed on co-offenders that would give rise to a justifiable sense of grievance. Importantly, an appellate court may intervene even if the original sentence was not otherwise excessive and fell within the accepted sentencing range.

The Crown conceded throughout that Ms Bala's role in the enterprise was greater than the applicant's. Despite this, Ms Bala received a materially lighter non-parole period of six months, compared to the applicant's one year and ten months. The Court found this disparity was sufficient to warrant intervention.

On the question of rehabilitation, Shaw J noted that the trial judge had already made findings regarding the applicant's strong prospects of rehabilitation, and those findings were not disturbed. The applicant had ceased heroin use following his arrest, was receiving psychological treatment in custody, and had demonstrated a capacity for sustained sobriety based on his personal history.

In resentencing, the Court substituted a head sentence of two years and six months for each charge, with a non-parole period expiring in March 2003. The Court was careful to note that the substituted sentence still reflected the objective seriousness of ongoing drug supply offences.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed by Urquhart DCJ on 8 April 2002 quashed.
  • In their place, a sentence of two years and six months substituted for each charge, commencing 29 August 2001 and expiring 28 February 2004.
  • Non-parole period commencing 29 August 2001 and expiring 28 March 2003.
  • Applicant to be released on parole at the expiry of the non-parole period.

Key Takeaways

  • The parity principle requires that co-offenders not receive sentences so disparate as to produce a justifiable sense of grievance, and the Court of Criminal Appeal confirmed it may intervene even where the original sentence was within the acceptable range for the offence.
  • A Crown concession that a co-offender's role was greater carries significant weight in a parity analysis and supported intervention here.
  • Where a subordinate participant receives a harsher effective sentence than the principal operator of a drug supply enterprise, the disparity itself becomes the operative ground for appeal, regardless of whether the original sentence was manifestly excessive.
  • Resentencing following a successful parity appeal does not require the substituted sentence to ignore the objective gravity of the offending; the Court expressly noted the new sentence still needed to reflect the seriousness of ongoing heroin supply.
  • Positive findings by the sentencing judge regarding rehabilitation prospects are a relevant consideration on resentencing and were preserved intact in this decision.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25A

Cases
- R v Schultz [2002] NSWCCA 462
- R v Boney [2001] NSWCCA 432
- R v Bacon [2000] NSWCCA 549
- R v Bevan [2002] NSWCCA 224
- R v Bruppacker [2002] NSWCCA 182
- R v DJM [2002] NSWCCA 493
- R v Fogg [2002] NSWCCA 395
- R v Handley [2001] NSWCCA 371
- R v Jordan [2002] NSWCCA 228
- R v Chin Vu Quoc Le [2002] 26
- R v McArthur [2002] NSWCCA 390
- R v Radford [2002] NSWCCA 122
- R v Smith [2002] NSWCCA 378
- R v Zakaria [2002] NSWCCA 450
- R v Zarie [2002] NSWCCA 350
- Lowe v The Queen (referred to in Schultz)
- Postiglione v The Queen (referred to in Schultz)