R v Lagana

Case [2012] SASCFC 135

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LAGANA

[2012] SASCFC 135

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice Vanstone and The Honourable Justice White)

17 December 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - PARITY BETWEEN CO-OFFENDERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

The appellant and a co-offender were sentenced for the offences of manufacturing a large commercial quantity of a controlled drug (s 33(1), Controlled Substances Act 1984 (SA) (CSA)), and manufacturing a controlled drug (s 33(3), CSA) - the Judge imposed a head sentence of seven years imprisonment in both cases and, in the case of the appellant, fixed a non-parole period of five years - a period of unexpired parole meant that the co-offender had to serve a total period in custody of 10 years, three months and 10 days - in his case, the Judge fixed a non-parole period of six years - the appellant appeals on the stated ground that his sentence was manifestly excessive, but his real complaint related to the perceived disparity between his sentence and that of the co-offender.

Held (dismissing the appeal) (per Gray J):

(1)  The appellant's sentence was within the discretion of the sentencing Judge and not manifestly excessive, (at [15]);

(2)  When the antecedents of the co-offender are properly understood, it cannot be said that the appellant has established any justifiable sense of grievance.  The appellant failed to make out any basis for a lack of parity, (at [33]).

Held (dismissing the appeal) (per White J, Vanstone J agreeing):

(1)  The sentence imposed on the appellant was appropriate having regard to the seriousness of the offence and his circumstances, (at [50]);

(2)  Satisfaction by an appellate court that a disparity between sentences exists does not of itself mean the appeal must be allowed, (at [53]);

(3)  Assuming, without deciding that there was a relevant disparity, any reduction to the appellant's sentence by reason of that disparity could be only minor without making it unduly lenient, (at [59]);

(4)  On the assumption that the discretion to reduce the sentence on the basis of disparity is enlivened, it should not be exercised so as to reduce the appellant's sentence, (at [59]).

Controlled Substances Act 1984 (SA), s 33, s 44; Criminal Law (Sentencing) Act 1988 (SA), s 10, s 18A; Criminal Law Consolidation Act 1935 (SA), s 353, referred to.
Green v The Queen (2011) 244 CLR 462; Lowe v The Queen (1984) 154 CLR 606; Police v El-Zaibak (2004) 90 SASR 217; Postiglione v The Queen (1997) 189 CLR 295; R v Cetojevic (2005) 92 SASR 451; R v Di Maria (1996) 67 SASR 466; R v Kite (1971) 2 SASR 94; R v MacGowan (1986) 42 SASR 580; R v Mangelsdorf (1995) 66 SASR 60

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R v Lagana [2012] SASCFC 135
Case
[2012] SASCFC 135
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CaseChat Overview and Summary

The appellant, R v Lagana, appealed to the Full Court of the Supreme Court of South Australia against a sentence imposed by a District Court judge. The appellant and a co-offender, Mr Keegan, were convicted of manufacturing a large commercial quantity of a controlled drug and manufacturing a controlled drug, both offences involving methylamphetamine. The appellant received a head sentence of seven years imprisonment with a non-parole period of five years, while Mr Keegan received a head sentence of seven years imprisonment with a non-parole period of six years, but due to unexpired parole, his total period in custody was significantly longer.

The primary legal issue before the Full Court was whether the sentence imposed on the appellant was manifestly excessive, with the appellant's real complaint focusing on the perceived disparity between his sentence and that of his co-offender, Mr Keegan. This raised the question of whether the principle of parity in sentencing, which dictates that like cases should be treated alike and that sentences on co-offenders should not exhibit such marked disparity as to create a justifiable sense of grievance, had been breached.

The Full Court, comprising Gray, Vanstone, and White JJ, dismissed the appeal. White J, in his reasons, noted that while the appellant's head sentence was seven years with a five-year non-parole period, the judge would have imposed eight years had it not been for the appellant's guilty plea. He highlighted that the appellant's true grievance concerned the disparity with Mr Keegan's sentence. However, the court found that the circumstances of the appellant and Mr Keegan were markedly dissimilar. The court considered the relevant facts of the offending, including the large quantity of pseudoephedrine being extracted, which could have yielded between five and eight kilograms of methylamphetamine with a potential wholesale value of $1.2 to $2.6 million. Ultimately, the court was not satisfied that the appellant had established any basis for a lack of parity or any justifiable sense of grievance, leading to the dismissal of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
The matters referred to above demonstrate that the circumstances of the defendant and Mr Keegan are in many respects markedly dissimilar. When those circumstances are given due consideration, I am not satisfied that the defendant has made out any basis for a lack of parity. I do not consider that he has established any justifiable sense of grievance. Conclusion I would dismiss this appeal. VANSTONE J: I would dismiss this appeal. I agree with the reasons of White J. WHITE J: The appellant was sentenced in the District Court for two offences: manufacturing a large commercial quantity of a controlled drug;[13] and manufacturing a controlled drug.[14] The drug involved in each case was methylamphetamine. [13] Controlled Substances Act 1984 (SA), s 33(1).[14] Controlled Substances Act 1984 (SA), s 33(3). The Judge imposed a single sentence of imprisonment for seven years with a non-parole period of five years. Had it not been for the appellant’s pleas of guilty, the Judge would have imposed a sentence of eight years imprisonment. The appellant appeals on the ground that the sentence imposed on him is manifestly excessive. However, on the appeal the appellant’s counsel indicated that his real complaint related to the disparity between the appellant’s sentence and that imposed on Mr Keegan, a co-offender. In Mr Keegan’s case, the same District Court Judge took a starting point of imprisonment for 10 years and imposed a sentence of seven years for the same two offences. As Mr Keegan had to serve, in addition, a period of unexpired parole, the total period in custody in his case was 10 years, three months and 10 days. The Judge fixed a non-parole period of six years in respect of that total period. The principle of parity in sentencing is that like cases should be treated alike.[15] Equal justice requires that the sentences imposed on co-offenders for the same offence should not have such a marked disparity as to give rise to “a justifiable sense of grievance”.[16][15] Lowe v The Queen (1984) 154 CLR 606 at 610-1; Postiglione v The Queen (1997) 189 CLR 295 at 301.[16] Ibid. Before addressing the application of the parity principle in the present case, it is appropriate to note relevant aspects of the offending. The police attended premises at Salisbury Plain on 25 March 2010 and found the appellant and Mr Keegan in the process of extracting pseudoephedrine, an essential ingredient of methylamphetamine. A large amount of pseudoephedrine had been extracted. The Judge accepted that between five and eight kilograms of methylamphetamine could have been manufactured using that pseudoephedrine. The potential wholesale value of methylamphetamine of that quantity was between $1.2 and $2.6 million. The activity of the appellant and Mr Keegan in extracting the pseudoephedrine constituted the offence of manufacturing a large commercial quantity of a controlled drug, for which the maximum penalty was a fine of $500,000 or imprisonment for life, or both.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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