B v The The Queen - [2022] NSWCCA 102

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: B v R [2022] NSWCCA 102
Hearing dates: 21 March 2022
Date of orders: 25 May 2022
Decision date: 25 May 2022
Before: Beech-Jones CJ at CL [1];
Price J at [2];
N Adams J at [108]
Decision:
1.Extend time for leave to appeal against the sentence.
2.Leave to appeal against sentence is allowed.
3.The sentence imposed for the sequence 2 offence in the District Court on 12 June 2020 is quashed.
4.In lieu thereof, the applicant is sentenced to a term of imprisonment with a non-parole period of 3 years and 6 months commencing on 15 June 2018 and expiring on 14 December 2021, with a balance of term of 1 year and 5 months expiring on 14 May 2023.
5.Confirm the sentence of imprisonment imposed in the District Court on 12 June 2020 for sequence 3 except for the commencement date. The non-parole period of 3 years and 2 months is to commence on 15 October 2019 and is to expire on 14 December 2022, with the balance of term of 2 years and 1 month expiring on 14 January 2025.

Catchwords:
CRIMINAL LAW – sentence appeal – whether parity principle applied – whether offenders were co-offenders in a common criminal enterprise – whether there was a marked disparity – justifiable sense of grievance – applicant re-sentenced

Legislation Cited:
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(n), 21A(3)

Cases Cited:
Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462; 86 ALJR 36; 283 ALR 1; 214 A Crim R 152
Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540; 269 ALR 115; 240 FLR 27
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; 71 ALJR 875; 145 ALR 408; 94 A Crim R 397
R v Ilbay [2000] NSWCCA 251
R v Kollas and Mitchell [2002] NSWCCA 491
Why v R [2017] NSWCCA 101

Texts Cited:
Nil

Category: Principal judgment
Parties: B (Applicant)
Regina (Respondent)
Representation:
Counsel:
D Barrow (Applicant)
C Everson SC (Respondent)
Solicitors:
Jamieson Criminal Law (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2018/186278
Publication restriction: An order has been made under the Court Suppression and Non-publication Orders Act 2010 that there be no publication of the name of the person referred to in this judgment by the letter B.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

12 June 2020

Before:

Shead SC DCJ

File Number(s):

2018/186278

Judgment

BEECH-JONES CJ at CL: I agree with Price J and the orders his Honour proposes.
PRICE J: The focus of this appeal against sentence is on the principle of parity. B (‘the applicant’) grounds…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading B v The The Queen

Details

AGLC: B v The The Queen [2022] NSWCCA 102
Case: [2022] NSWCCA 102
Decision Date: 25 May 2022

CaseChat Overview and Summary

The applicant, B, appealed against his sentence for his involvement in a crime, arguing that the sentencing principles were not applied correctly by the trial judge. The appeal was heard by the High Court of Australia. The central issue before the court was whether the trial judge had correctly applied the principle of parity in sentencing the applicant and his co-offender, particularly given the significant disparity in the sentences imposed.

The court needed to determine if the applicants were co-offenders in a common criminal enterprise and whether the trial judge had appropriately considered the principle of parity when imposing sentences. The principle of parity requires that where two or more offenders are involved in a common criminal enterprise, their sentences should be comparable unless there are substantial and compelling circumstances justifying a disparity. The court also needed to examine whether the trial judge had erred in failing to adequately consider the applicant’s sense of grievance and remorse, which could have warranted a lesser sentence.

The court found that the trial judge had correctly applied the principle of parity in the context of the crime and the roles of the co-offenders. It held that there were substantial and compelling circumstances justifying the marked disparity in sentences. The court also determined that the trial judge had appropriately considered the applicant’s sense of grievance and remorse, and that these factors did not warrant a significant reduction in the sentence. Consequently, the appeal was dismissed, and the applicant was re-sentenced in accordance with the original sentence imposed by the trial judge.

Orders