Court of Criminal Appeal
New South Wales
Case Title: R v Wicks Medium Neutral Citation: [2012] NSWCCA 208 Hearing Date(s): 7 August 2012 Decision Date: 20 September 2012 Jurisdiction: Before: McClellan CJ at CL at [1]
R A Hulme J at [2]
Schmidt J at [48]Decision: 1. Leave to appeal granted
2. Appeal dismissedCatchwords: CRIMINAL LAW - appeal and new trial - appeal against sentence - grounds for interference - parity between co-offenders - difference in sentences insignificant Legislation Cited: Drugs Misuse and Trafficking Act 1985 Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 Texts Cited: Category: Principal judgment Parties: Brett Andrew Wicks (Applicant)
Regina (Respondent)Representation - Counsel: Counsel:
Ms C Loukas (Applicant)
Mr E Balodis (Respondent)- Solicitors: Solicitors:
Legal Aid NSW
Solicitor for Public ProsecutionsFile number(s): 2009/323731 Decision Under Appeal - Court / Tribunal: - Before: Coolahan DCJ - Date of Decision: 21 April 2011 - Citation: - Court File Number(s) 2009/323731 Publication Restriction:
JUDGMENT
McCLELLAN CJ at CL: I agree with R A Hulme J.
R A HULME J: Brett Wicks was sentenced for drug supply offences to a total of three years and three months imprisonment. His brother Danny Wicks was also sentenced for drug supply offences but received a total sentence of three years imprisonment. Brett Wicks complains in this Court that there is an erroneous disparity between his sentence and that of his brother. Certainly the sentence imposed upon Brett Wicks was longer than the sentence imposed upon Danny Wicks. But in my view the disparity is not such that it calls for the intervention of this Court.
Facts
Brett Wicks pleaded guilty to two charges that he supplied a prohibited drug, namely methylamphetamine. The first offence occurred between 3 and 9 November 2009 at Grafton and the second occurred on 20 November 2009 at Charlestown. These are offences against s 25(1) of the Drug Misuse and Trafficking Act 1985 for which there is prescribed a maximum penalty of imprisonment of 15 years and/or a fine of 2000 penalty units.
Four further drug supply offences listed on a Form 1 document were taken into account in sentencing for the second offence. The drugs in these offences were either methylamphetamine or amphetamine and the supplies occurred on 13 August, 29 August and twice on 5 September 2009.
A statement of agreed facts before the sentencing judge disclosed that a police strike force had been investigating the supply of drugs in the Grafton area. Warrants were obtained to intercept the telephone services used by the Wicks brothers. Relevant conversations were intercepted between the Wicks brothers, Brett Wicks' wife Tristen Davenport, Christopher Jones and Steven Stefanovski. It was alleged that Brett Wicks was involved in the supply of drugs to his wife and to Christopher Jones for on supply in the Grafton area. It was also alleged that he was a party to a joint criminal enterprise with Steven Stefanovski in supplying drugs.
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- AGLC
- R v Wicks [2012] NSWCCA 208
- Case
- [2012] NSWCCA 208
- Decision Date
CaseChat Overview and Summary
The court examined whether the sentencing judge, in imposing the sentences, had made a mistake in comparing the sentences of the co-offenders. The appeal argued that if the difference in the sentences was due to a clerical error by the sentencing judge, then Brett Wicks' grievance might be legitimate. However, the court found that the sentencing judge had not made a mistake in her calculations and had properly considered the circumstances of each offender. The court concluded that the disparity in sentences was justified based on the differing levels of culpability and the specific circumstances of each case.
The court's reasoning was that the sentencing judge had taken into account the unique factors of each case, ensuring that the sentences were proportionate to the respective roles and the gravity of the offending. The appeal was ultimately dismissed, and the original sentences were upheld.
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
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Ratio Decidendi
Legal Principle Established
Established by: CLELLAN CJ
The argument presented on behalf of the applicant can be summarised as follows. Brett Wicks has a legitimate sense of grievance because he received a greater sentence than did Danny Wicks. Danny Wicks' objective criminality overall was greater than that of Brett Wicks. It was acknowledged that Danny Wicks had some subjective matters taken into account in his favour that were unavailable to the applicant. But when balancing the two cases, there was no justification for a longer sentence to be imposed in Brett Wicks' case.Consideration I will first deal with the issue concerning the mistake made by her Honour Judge Syme in her recitation of the total sentence imposed upon the applicant when sentencing Danny Wicks. There is a question as to whether any sense of grievance that the applicant might have could be regarded as a legitimate one if the difference in the two sentences was attributable to her Honour's inadvertent mistake. In other words, if it was the case that her Honour sought to impose the same total sentence upon Danny Wicks as she thought had been imposed upon the applicant, the question of the legitimacy of any sense of grievance held by the applicant would need to be determined. Determination of that question is, in my view, unnecessary because I do not believe that the sentence imposed upon Danny Wicks was the product of mistake. Her Honour referred, mistakenly, to the sentence imposed upon Brett Wicks as being 3 years. But she also referred, mistakenly, to the sentence imposed upon Christopher Jones as being one of 3 years with a non-parole period of 18 months. The papers before her Honour indicated that for Mr Jones' supply offence he was, in fact, sentenced to 2 years 3 months with a non-parole period of 9 months and there was a wholly concurrent fixed term of 9 months for the offence of dealing with the proceeds of crime. After the sentences for Danny Wicks had been announced, his counsel informed her Honour that the non-parole period imposed upon Mr Jones "was nine months not six". Why he said, "not six" when she had referred to it being 18 months is not clear. In any event, her Honour remarked that "[Jones] was a lesser offender". The fact remains that she thought that his total term was one of 3 years, coincidentally the same as what she thought the total term imposed upon Brett Wicks had been, and the same total term that she imposed upon Danny Wicks. This leads me to conclude that her Honour was not seeking to impose a sentence upon Danny Wicks by reference to sentences which she thought had been imposed upon Jones and Brett Wicks, solely by a comparison to the objective gravity of their offending. If that had been the case, one would expect she would have imposed a greater sentence upon Danny Wicks than the sentence she thought was imposed upon Jones because she considered Jones to be "a lesser offender". Clearly, her Honour had regard to the sentences imposed upon the others and used them in the nature of benchmarks. It is equally clear that she took into account all the circumstances of the offences, and the offender, when arriving at the sentence she imposed upon Danny Wicks. In doing so she ensured that it remained proportional to the sentences imposed upon the others.