P v The King

[2023] NSWCCA 297

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

P v R [2023] NSWCCA 297

Hearing dates:

16 October 2023

Date of orders:

27 November 2023

Decision date:

27 November 2023

Before:

Davies J at [1]
Fagan J at [2]
Dhanji J at [3]

Decision:

(1) Leave to appeal granted.

(2) Appeal dismissed.

Catchwords:

CRIME – Appeals – Appeal against sentence – leave to appeal granted – parity – whether applicant has a justifiable grievance in light of the sentences imposed on the co-offenders – manufacture of a large commercial quantity of MDMA – criminal enterprise – group of four offenders – where two co-offenders previously successfully appealed sentences to achieve parity with applicant – where applicant was slightly lower in hierarchy than co-offenders – differentiation justified by other factors – no justifiable sense of grievance established – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act1900 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Bahcekapili v R [2020] NSWCCA 296

C v R [2022] NSWCCA 285

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v NP [2003] NSWCCA 195

R v Waqa (No 2) (2005) 156 A Crim R 454; [2005] NSWCCA 33

Redfern v R (2012) 228 A Crim R 56; [2012] NSWCCA 178

Schembri v Regina [2010] NSWCCA 149

SF v R [2022] NSWCCA 216

Thorn v R (2009) 198 A Crim R 135; [2009] NSWCCA 294

Z v R [2022] NSWCCA 286

Category:

Principal judgment

Parties:

P (Applicant)
Rex (Respondent)

Representation:

Counsel:
A Chhabra with P Ye (Applicant)
V Garrity (Respondent)

Solicitors:
Toomey Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2018/00091930

Publication restriction:

Pseudonym used in accordance with the non-publication orders made by the Court of Criminal Appeal on 16 October 2023.

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

19 October 2020

Before:

Turnbull SC DCJ

File Number(s):

2018/00091930

JUDGMENT

1. DAVIES J: I agree with Dhanji J.

2. FAGAN J: I agree with Dhanji J.

3. DHANJI J: The applicant, P, was sentenced in the District Court on 19 October 2020, having pleaded guilty to the following offences:

Count 1: participate in a criminal group contrary to s 93T(1) of the Crimes Act1900 (NSW) (maximum penalty of 5 years imprisonment); and

Count 2: manufacture a prohibited drug, namely 3,4-Methylenedioxyamphetamine (MDMA) in an amount greater than the large commercial quantity contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (maximum penalty of life imprisonment).

4. In relation to count 2, two offences were taken into account on a Form 1. They were charges of recklessly deal with proceeds of crime contrary to s 193B(3) of the Crimes Act and supply a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act. The maximum penalties (if dealt with as substantive offences) for the offences of recklessly deal with proceeds of crime and supply were 10 years and 15 years imprisonment respectively.

5. Turnbull SC DCJ sentenced the applicant to an aggregate term of 7 years and 6 months imprisonment commencing on 23 November 2019 and expiring on 22 May 2027 with a non-parole period of 5 years expiring on 22 November 2024.

6. The applicant now seeks an extension of time and, if granted, leave to appeal against his sentence. The application is well out of time. As will become apparent, the proposed appeal has, at least in part, been prompted by a number of decisions of this Court relating to appeals brought by P’s co-offenders’ against their sentences. These decisions were handed down in October and December 2022. In those circumstances, and as further explained in the affidavit of the applicant’s former solicitor, read on the application, I would grant the necessary extension of time.

7. The applicant seeks to rely on a single proposed ground of appeal in the terms below. A non-publication order is in place protecting the identity of the applicant. Similar orders protect the identity of the relevant co-offenders.

Ground 1 – the applicant has a justifiable sense of grievance in light of the sentences imposed on the co-offenders “C”, “Z” and “[SF]”

8. The applicant was sentenced for his part in an enterprise involving the manufacture of a large commercial quantity of MDMA. As is common in any sizeable manufacture of prohibited drugs, there were a number of other persons involved. Two persons were identified as being at the top of the hierarchy of offenders, and were described as the principals of the enterprise. Other offenders occupied relatively lowly roles. The applicant, together with C, Z, and SF, occupied roles somewhere between those two extremes.

9. The applicant was sentenced at the same time as his co-offender SF. Others were sentenced at different times. Despite the conduct of separate proceedings, and some slight differences in the facts tendered by the Crown across those proceedings, the parties on this application accepted that the facts on which all offenders were sentenced were relevantly identical. Having regard to the confined nature of the applicant’s argument, and the earlier decisions of this Court, it is unnecessary to repeat the detail of the applicant’s involvement in the offence, or that of his co-offenders here. The relevant facts are summarised in SF v R [2022] NSWCCA 216 at [9]-[37]; Z v R [2022] NSWCCA 286 at [7]-[12]; and C v R [2022] NSWCCA 285 at [6]-[11].

10. It is similarly unnecessary to recount the principles with respect to the issue of parity in any detail. As was said in Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26, “[e]qual justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them”. In the event that the applicant can establish that he has a justifiable sense of grievance as a result of the sentence imposed on any of C, Z, or SF, this Court would (subject to potential reservations not here relevant) intervene to address the disparity giving rise to that grievance.

11. Each of the applicant, C, Z, and SF received substantial discounts on the sentences that would have otherwise been imposed as a result of their respective pleas of guilty and the assistance given by them to the authorities: see ss 22 and 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). No issue has been taken with the appropriateness of the various discounts. The appropriate comparators for the purposes of the argument are, therefore, the starting points for the various sentences. In the applicant’s case, he received a discount of 25 percent for his plea of guilty, and a further 20 percent discount for his past and future assistance. The parties proceeded on the basis that the discounts with respect to all co-offenders were added together to produce a combined discount, in the applicant’s case, of 45 percent. I will proceed on the same basis: see R v Waqa (No 2) (2005) 156 A Crim R 454; [2005] NSWCCA 33 at [12]; cf R v NP [2003] NSWCCA 195 at [30]. The discounts applied to the sentences of the co-offenders are discussed below.

12. Each of the applicant, Z, and SF were sentenced for an offence of participating in a criminal group contrary to s 93T(1) of the Crimes Act. C had also been charged with this offence but in his case an order was made that the charge be permanently stayed: C v R at [10]. In each case, the criminality involved was coextensive with the manufacture offence. The order for a permanent stay in C v R was on the basis the charge was an abuse of process: see in this context Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58 at [13]-[17]; Thorn v R (2009) 198 A Crim R 135; [2009] NSWCCA 294 at [27]; Schembri v Regina [2010] NSWCCA 149 at [11]-[16]; Redfern v R (2012) 228 A Crim R 56; [2012] NSWCCA 178 at [16]. Consistent with this, where the charge was proceeded with, concurrent sentences were imposed. The penalties imposed for the criminal group offences can consequently be put to one side, including for the purposes of comparison with C.

13. While the applicant, C, Z, and SF were all found to be, with respect to their involvement, in the middle group of offenders within the hierarchy, some differentiation was made between them in this regard. The sentencing judge determined, and it has not been challenged, that these offenders were ranked in the order Z, C, SF, and [the applicant], with Z’s offending being the most serious and the applicant’s offending the least serious within this group. However, some care must be taken in this regard. His Honour said:

“I accept that [the applicant] … was subordinate to [C, Z and SF]. I have noted his activities in that regard and, with respect, I think it is appropriate to bear in mind that they were all in it together. They were all acting as a team. They all had their various roles.

Aside from the clear example of the [principals] there, amongst the four that I have mentioned - [C, the applicant, Z, and SF] – [the applicant] is somewhat less than [SF]. [SF] is somewhat less than [C] and [Z]. For reasons that I will flesh out in a while, the extent of that may not be as great as indeed their counsel would urge.”

14. Later, having again distinguished this group of four offenders, which included the applicant, from the principals at the top and the more junior participants below, his Honour said, in respect of SF, “I am of the view that he sits, in terms of objective seriousness, at about the same level, for the purposes of the guidepost of the standard non-parole period, at or at about the same level as [the applicant]”.

15. In sentencing C, his Honour referred to the level of involvement of the co-offenders and said:

“As a starting point, it is clear that these men, all four of the ones that I am to sentence, as well as the other two principals and other people that are lesser in the hierarchy, were in this organised enterprise together.

Concentrating on the four that I have to sentence, all four of those individuals, [the applicant], [SF], [C], and [Z], must have been well aware of the scale and nature of the crime they were all committing. They were all trusted, and trusted each other, to perform their role in the team, and to act independently as required in that context. So the extent and effect of establishing a putative hierarchy as between these four men who sit above two clearly lesser figures, and below two clearly superior figures, is not, in my view, as significant in terms of outcome in sentence as counsel submit.

Nonetheless there are some relevant distinctions and they will be recognised and given due weight.”

16. His Honour again, in sentencing C, referred to the descending order of Z, C, SF, and the applicant, but said, consistent with his remarks set out above in the context of sentencing the applicant, that the consequence of this finding was not “as grave as their counsel would urge”.

17. In each case, the position of the particular offender in the hierarchy, reflecting the objective gravity of that offender’s crime, was, of course, just one factor to be considered in the sentencing of that offender. As is the case in any sentencing exercise, the sentencing judge was required to identify all the factors relevant to the sentence, discuss their significance, and then make a value judgment as to the appropriate sentence given all the factors of the case: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]. This exercise incorporated any additional weight to be given to personal deterrence and retribution as a result of offences taken into account on a schedule. Having done so, any sentence arrived at by that orthodox process was to be considered against any sentence known to have been imposed on a co-offender, and adjusted downwards to eliminate any justifiable sense of grievance that would otherwise result as a consequence of that other sentence. Of course, when sentencing co-offenders at the same time, the comparison process will ordinarily be undertaken within the single exercise.

The sentences imposed on Z, C and SF

18. As noted above, the applicant was sentenced at the same time as SF. C and Z were sentenced approximately six weeks later, also by Turnbull DCJ, on 1 and 2 December 2020 respectively. Each of these co-offenders successfully appealed to this Court against the sentences imposed at first instance.

19. SF, for his corresponding manufacturing offence, was initially sentenced by Turnbull DCJ on 19 October 2020 to imprisonment for 7 years with a non-parole period of 4 years and 6 months. This represented a starting point, prior to the application of discounts, of approximately 11 years and 8 months. He appealed to this Court on two grounds: SF v R. The complaint of disparity by comparison with one of the lesser offenders was dismissed. A complaint of error in failing to take into account “that the Covid 19 pandemic makes conditions of imprisonment more onerous” was upheld. As a consequence, evidence on resentence was admitted and taken into account. The Court, nonetheless, found that with respect to the head sentence, no lesser sentence was warranted. An adjustment was, however, made to the non-parole period which was reduced from 4 years and 6 months to 4 years and 2 months imprisonment.

20. When sentenced in the District Court for his part in the manufacture, Z received a sentence of imprisonment for 7 years and 4 months with a non-parole period of 3 years and 8 months. This reflected a starting point of approximately 16 years and 3 months. On appeal, he received a sentence of imprisonment for 6 years with a non-parole period of 3 years, reflecting a starting point of approximately 13 years and 4 months: Z v R.

21. When sentenced in the District Court, C received a sentence of imprisonment for 6 years and 10 months with a non-parole period of 4 years and 5 months. This reflected a starting point of approximately 17 years and 1 month. As result of his appeal, his sentence was reduced to 5 years and 6 months imprisonment. This reflects a starting point of approximately 13 years and 9 months: C v R.

22. For the purposes of comparison, the relevant starting points are therefore:

1. Z:       13 years, 4 months;

2. C:      13 years, 9 months;

3. SF:      11 years, 8 months; and

4. Applicant:    13 years, 7 months.

Parity with C and Z

23. There is an obvious difficulty with the applicant’s complaint of disparity as against Z and C. While each of Z and C were successful in their appeals, that success was on a sole ground which complained of disparity between the sentences imposed upon them and the sentences imposed on the applicant and SF. Given that this Court adjusted the sentences of Z and C to achieve parity with this applicant, any interference with this applicant’s sentence to achieve parity with them, would interfere with the earlier judgment of this Court with respect to the appropriate relativities between the sentences imposed on those offenders. It was not directly argued that the decisions of this Court in Z v R and C v R were wrong. This is understandable. It does, however, render the applicant’s complaint of disparity as against Z and C untenable.

Parity with SF

24. In contrast with the appeals of Z and C, the determination of SF’s appeal did not have anything to say with respect to any justifiable grievance the applicant may have based on his sentence compared to that imposed on SF. It is necessary, therefore, to consider the applicant and SF’s sentences in the context of the relevant factors affecting their determination.

25. In considering the issue of parity as between the applicant and SF, it is relevant that they were sentenced together. This is, of course, not fatal to the applicant’s case. By way of example, while not sentenced at the same time, Z and C were sentenced by the same judge at a time when his Honour had already sentenced the applicant and SF, but was nonetheless found to have imposed sentences that resulted in a justifiable sense of grievance on the part of Z and C.

Matters relevant to the applicant for the purposes of comparison with SF

26. As noted above, while the applicant was found to be slightly lower in the hierarchy than SF, the extent of any difference was, particularly in the case of SF, who was next in the order above him, found to be marginal. This finding was not challenged.

27. Despite being slightly lower in the hierarchy than SF, the starting point for the applicant’s sentence is almost 2 years longer. The question is whether this level of differentiation can be justified by other factors.

28. The applicant was about 43 years old at the time of the offence. His Honour accepted, based on various testimonials, that the applicant had “many fine qualities”, was “a worker”, and mixed with prosocial individuals.

29. He had a background which involved trauma, leading to,
    what his Honour described as, “frank and severe symptoms of [post-traumatic stress disorder]”. He was suffering from a drug addiction. His Honour did not, however, accept that there was any relevant medical condition causally related to the offending. Rather, his Honour found that while the applicant’s “judgment may have been impaired by drug use and his psychological illness”, he was “a willing participant who stood to gain, alongside access to drugs, financially”.

30. The applicant’s wife was extremely debilitated as a result of a motor vehicle accident. His Honour accepted that the applicant had effectively become her carer. His Honour did not find that the hardship to the applicant’s wife was “exceptional” so as to result in a “substantial reduction” in penalty, but did have regard to that matter as “part of the general mix of factors to be taken into account in diminution of the ultimate penalty”.

31. The applicant had a number of convictions on his criminal record. In 1995, he received bonds and a community service order in relation to three offences of obtaining benefit by deception. In 1997, he was sentenced for seven fraud related offences and a number of firearm related offences, resulting in imprisonment for 3 months and the imposition of bonds and fines. In 1998, the applicant was sentenced for possession, cultivation, and supply of cannabis, together with an offence of not keeping a firearm safe. A sentence of 6 months imprisonment was imposed. Most recently, in 2005, he was sentenced to 4 years and 6 months imprisonment with a non-parole period of 2 years and 9 months for an offence of fraud against the Commonwealth. There was, it must be acknowledged, a substantial period of some 12 years between the imposition of that sentence and the commission of the present offence in 2017. The applicant’s criminal record was nonetheless of relevance. There was no criticism of his Honour’s finding that it deprived him of the leniency that he may have received in the absence of that history.

32. The sentencing judge accepted, based on the applicant’s letter to the Court, that he was remorseful and had taken “significant steps towards reformation and rehabilitation”. His Honour noted the offences taken into account on the Form 1 of supply (a deemed supply of approximately 41 grams of cocaine) and recklessly deal with proceeds of crime ($24,195). Having regard to those matters, together with the offending generally, his Honour found, “[t]here has to be … an aspect of personal deterrence in this sentence that is not significantly diminished”.

Matters relevant to SF for the purposes of comparison with the applicant

33. As noted above, while SF was assessed as being senior to the applicant in the hierarchy, this difference was described as marginal.

34. At the time of the offending, SF was about 50 years old. His Honour accepted, based on SF’s letter to the Court, that he was “remorseful and contrite” in the same manner as was accepted in the case of the applicant.

33. His Honour recounted SF’s exposure to “horrific and traumatic incidents” in his childhood. He also accepted that SF had worked and had his own businesses but suffered financial setbacks. He had developed a gambling problem. His Honour noted that while this might provide an explanation for the offending and “show a degree of vulnerability”, it was not an excuse for the commission of the offence. His Honour found that “exposure to war as a child, a gambling disorder and depression” affected SF’s judgment, resulting in a slight reduction in his culpability for the crime.

34. SF was, at the time of sentence, a carer for both his elderly parents. As in the case of the applicant, hardship to these third parties was not found to be exceptional and did not, therefore, result in any substantial reduction in the sentence.

35. Unlike the applicant, his Honour found that SF had only a “minor” criminal record which did not disentitle him to leniency.

36. Significantly, his Honour found that SF had “seemingly turned his life around”. His Honour concluded that SF was unlikely to reoffend and, correspondingly, had good prospects of rehabilitation.

Comparison between the applicant and SF

39. As can be seen from the above, there was a clear difference between the respective histories of the applicant and SF. The leniency afforded to SF on this basis, but denied to the applicant, had to be clearly reflected in the sentences imposed. While to an extent related to the differing histories, the finding that SF had “turned his life around” was significant in comparison to his Honour’s somewhat guarded view with respect to the applicant’s prospects of rehabilitation. That finding with respect to the applicant and the Form 1 offences had the result that weight was required to be given to personal deterrence in a manner that did not apply to SF.

40. The weight to be given to SF’s prior good character and his prospects of rehabilitation were reflected in the differentiation between the sentence passed on him and that passed on the applicant. As Rothman J put it in Bahcekapili v R [2020] NSWCCA 296 (at [7]), “[t]here is, in this area, as with sentencing generally, no one correct sentence and no one correct relationship”. The differences in their respective circumstances, in my view, adequately explain the different starting points as between the applicant and SF.

Conclusion

41. I am of the view that the applicant has not established a justifiable sense of grievance as a result of the sentences imposed on his co-offenders Z, C, or SF. I would grant leave to appeal but dismiss the appeal.

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Decision last updated: 27 November 2023