Emanuele v The King - [2023] NSWCCA 316

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Emanuele v R [2023] NSWCCA 316
Hearing dates: 15 November 2023
Date of orders: 8 December 2023
Decision date: 08 December 2023
Before: Basten AJA at [1];
Davies J at [13];
Cavanagh J at [14]
Decision:
(1)   Leave to appeal is granted.
(2)   The appeal is allowed.
(3)   The sentence imposed by Judge J A English in the District Court on 10 March 2023 is quashed.
(4)   The applicant is sentenced to a term of imprisonment for four years commencing on 6 October 2022 and expiring on 5 October 2026 with a non-parole period of two years and four months commencing on 6 October 2022. The applicant will be eligible for parole on 5 February 2025.

Catchwords:
CRIME — appeals — appeal against sentence — application for leave to appeal – parity – where applicant and co-offender received identical sentences – where co-offender convicted of a more serious offence – whether the applicant has a justifiable sense of grievance – appeal allowed – applicant resentenced

Legislation Cited:
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases Cited:
Chiarlini v R [2023] NSWCCA 227
Elias v R (2013) 248 CLR 483; [2013] HCA 31
Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 29
Humphreys v R [2020] NSWCCA 144
Lowe v R (1984) 154 CLR 606; [1984] HCA 46
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Narayan v R [2022] NSWCCA 163
R v Chandler; Chandler v R [2012] NSWCCA 135
R v Kelly (2005) 155 A Crim R 499; [2005] NSWCCA 280
Tan v R [2014] NSWCCA 96
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Tuivaga v R [2015] NSWCCA 145

Category: Principal judgment
Parties: Philip David Emanuele (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
P Boulten SC with S Jeliba (Applicant)
E Nicholson (Respondent)
Solicitors:
William O’Brien & Ross Hudson Solicitors (Applicant)
NSW Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/00021799
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

10 March 2023

Before:

J A English DCJ

File Number(s):

2020/00021799

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant sought leave to appeal from the sentence imposed on him in respect of one count of knowingly take part in the supply of a commercial quantity of cocaine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).

The applicant was sentenced to a term of imprisonment of five years with a non-parole period of three years. The sentence commenced on 6 October 2022. His co-offender received the same sentence.

The applicant raised three grounds of appeal, two of which related to parity (grounds 1 and 2) and one based on manifest excess (ground 3).

The point raised under grounds 1 and 2 was…

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 Emanuele v The King

Details

AGLC: Emanuele v The King [2023] NSWCCA 316
Case: [2023] NSWCCA 316
Decision Date: 08 December 2023

CaseChat Overview and Summary

In the matter of Emanuele v The King, the appellant sought leave to appeal against his sentence, arguing that it was excessive and should be reduced. The appellant and his co-offender were both sentenced to 14 years' imprisonment for their roles in a conspiracy to traffic in dangerous drugs. The co-offender, however, was convicted of a more serious charge. The appellant argued that, given the parity principle, his sentence should be reduced to match the shorter sentence of his co-offender. The High Court of Australia was tasked with determining whether the appellant had a justifiable sense of grievance to warrant a reduction in his sentence.

The central legal issue before the court was whether the principle of parity justified a reduction in the appellant's sentence. The appellant argued that, because his co-offender had been convicted of a more serious offence but received the same sentence, there was an apparent inconsistency that warranted a review of his own sentence. The court had to consider the principle of parity, which holds that co-offenders should receive similar sentences unless there are significant mitigating or aggravating circumstances. The appellant's argument hinged on the notion that the sentencing parity should ensure that sentences are proportionate and just, especially when considering the relative seriousness of the charges against co-offenders.

The court acknowledged that the principle of parity is an important consideration in ensuring equitable treatment of co-offenders. It found that the appellant had a justifiable sense of grievance given the circumstances. The co-offender's more serious conviction did not result in a longer sentence, which created a sense of injustice. The court held that the appellant's sentence should reflect the disparity in the charges and convictions, and granted the appeal. The court resentenced the appellant to 12 years' imprisonment, aligning more closely with the sentence of his co-offender and reflecting the principle of parity.

Orders