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

DAVIES J: I agree with Dhanji J.
FAGAN J: I agree with Dhanji J.
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).

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…

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 P v The King

Details

AGLC: P v The King [2023] NSWCCA 297
Case: [2023] NSWCCA 297
Decision Date: 27 November 2023

CaseChat Overview and Summary

The case involves an appellant, referred to as P, who had been convicted of manufacturing a large commercial quantity of MDMA and was part of a criminal enterprise with three co-offenders. The appeal was against the sentence imposed, and leave to appeal was granted. The primary issue before the court was to determine whether the appellant had a justifiable grievance in light of the sentences imposed on the co-offenders, particularly given that two of them had already successfully appealed to achieve parity with the appellant.

The court considered the hierarchy within the criminal enterprise and the roles played by each of the four offenders. It was noted that the appellant was slightly lower in the hierarchy than two of his co-offenders. Despite this, the court found that the differentiation in sentences was justified by other factors, including the extent of each individual's involvement and their respective roles in the enterprise. The court concluded that the appellant had not established a justifiable sense of grievance regarding the disparity in sentences.

In light of the reasoning, the appeal was dismissed. The court held that the appellant's sentence was appropriately reflective of his role and involvement in the criminal activity, and there was no basis for the appellant to feel aggrieved by the sentences imposed on his co-offenders. The court's decision emphasised the importance of considering the individual circumstances and roles of offenders within a criminal enterprise when determining appropriate sentences.

Orders