Regina v Stanton

[2000] NSWCCA 417

CITATION:	Regina v Stanton [2000] NSWCCA 417
FILE NUMBER(S):	CCA 60521/99
HEARING DATE(S):	31 July 2000
JUDGMENT DATE:	31 July 2000
PARTIES :	The Crown Peter Graham Stanton (Appl)
JUDGMENT OF:	Newman J at 1; Sperling J at 14

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/41/0008
LOWER COURT JUDICIAL OFFICER :	Garling DCJ

COUNSEL :	A M Blackmore (Crown) P J D Hamill (Appl)
SOLICITORS:	S E O'Connor (Crown) Kremmer Townsend (Appl)
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985
CASES CITED:	Regina v Lowe (1984) 154 CLR 606 Regina v Postiglioni (1996) 195 295
DECISION:	Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

60521/99

NEWMAN J
SPERLING J

MONDAY, 31 JULY 2000

REGINA v Peter Graham STANTON

JUDGMENT

1    NEWMAN J: This is an application for leave to appeal brought by the applicant against the sentence imposed by Garland DCJ on 24 August 1999. Before his Honour the applicant and a co-offender, one Vagg, having been found guilty at trial of cultivating not less than the trafficable quantity of a prohibited plant, namely, cannabis, contrary to s 23(2)(a) of the Drugs Misuse and Trafficking Act, 1985 was sentenced. The maximum penalty of imprisonment under that section of the Act is fifteen years and/or a fine of 3,500 penalty units.

2    His Honour in the event sentenced both the applicant and co-offender to what I would describe as the same head sentence, namely, three years, but having taken into account the subjective features raised on behalf of the present applicant, imposed upon him, having found special circumstances, what was then known as the minimum term of eighteen months, whereas in relation to the co-offender, he imposed a term of two years.

3    Before this Court no submission has been made, nor may I observe could there be made, that the sentence imposed upon the applicant was manifestly excessive. This Court has made it plain in a number of cases that those who are found guilty of cultivating cannabis for commercial purposes are to receive custodial sentences.

4    The custodial sentence imposed upon the applicant was a head sentence of three years and a minimum term of eighteen months. This has not been and could not be criticised.

5 However, it is not that matter which has caused this appeal to advance. The applicant contends that in the light of the vastly different standing of the subjective circumstances in relation to the applicant and his co-offender, the applicant has, in terms of Regina v Lowe (1984) 154 CLR 606 and Regina v Postiglioni, (1996) 195 CLR 295a justifiable sense of grievance in relation to the head sentence imposed upon him.

6    In essence the applicant's submission is that his Honour erred in that he found the objective culpability of the parties as being equal and therefore he should impose the same head sentence. I should add that no criticism was made of the proportion which his Honour determined between the head sentence and the minimum term, having found special circumstances in the applicant's case. The criticism advanced of his Honour's sentence is that the applicant should have been sentenced to a lesser head sentence because his subjective circumstances were manifestly more favourable in terms of sentence than of his co-offender.

7    It is true that in determining a head sentence the sentencing judge should take into account both objective criminal circumstances and subjective matters which are available to an accused. But, as I have said, no criticism here could be properly advanced if this man had been sentenced alone for the crime, even taking into account the subjective circumstances, and it could not be said a head sentence of three years was excessive.

8    As I have said, essentially the matter comes back to an argument of whether or not, having regard to the differences between the two offenders, the applicant has in the relevant sense a justifiable sense of grievance. In so determining the question of the time in fact the applicant will spend in custody is, in my view, a matter of great importance.

9    The applicant having a minimum or non-parole period of eighteen months will in fact be released at the expiration of that term to his parole. So certainty does exist as to the sentence imposed in terms of the time the applicant will spend in custody. That time is twenty-five per cent less than his co-offender in circumstances where the objective criminality for the offence is indistinguishable. It may be that his Honour, in using the verbiage he used in determining the head sentence for both, could well be the subject of criticism, that he was in error in not differentiating between the two cases in terms of the subjective matters advanced on behalf of both applicants.

10    However, as Dawson and Gaudron JJ observed in Postiglioni, the sentence is one component. A proper comparison involves consideration of all components.

11    In Lowe Gibbs CJ, as he then was, observed:

"Although it might have been appropriate to reduce the head sentence proportionately with the non-parole period, the failure of the Court of Criminal Appeal to reduce the head sentence cannot, in my opinion, be described either as an error of law or an error of principle or as a violation of settled sentencing principles."

12    Ultimately in determining the question of whether or not the applicant has a justifiable sense of grievance, the question of treatment afforded him in terms of the custodial sentence which he will serve is a matter of important consideration. Here we have a case where the objective criminality of both the applicant and his co-offender was exactly the same. The ultimate result is that his Honour imposed a sentence which in fact requires the applicant to spend twenty-five per cent less time in custody than his co-offender.

13    In those circumstances I am of the view that the applicant has not made out a case that he has a justifiable sense of grievance and, accordingly, although I would grant leave to appeal, in view of the importance of the matters to the applicant I would dismiss the appeal.

14    SPERLING J: I agree with what is proposed and his Honour's reasons. I would like to add a short observation of my own.

15    It was part of the applicant's argument that there was error on the part of the sentencing judge in fixing the same head sentence for the two offenders notwithstanding the disparity, as the judge recognised, in subjective considerations.

16    My own view is that an appeal based on parity or insufficient disparity does not involve consideration of error on the part of the trial judge where there is no question of the sentence imposed on the particular applicant being manifestly excessive. I think that can be demonstrated by this thought: that if one proceeds on the basis that the judge erred in not making a difference between the two head sentences, the implications of that are either that Mr Vagg's sentence should have been higher, or this sentence should have been lower. In logic there is no way of saying which ought to have occurred. If it was the former, then the error, if it be an error, does not in logic lead to a situation in which the present applicant could have a basis upon which to advance his appeal.

17    It seems to me that appeals of this sort are a species of miscarriage of justice if they are properly found and are not based on error. The miscarriage arises under what has been called a justifiable sense of grievance in relation to the outcome of sentencing hearings in relation to co-offender.

18    In this case if one looked at the head sentence in isolation it may be the applicant has or would have a justifiable sense of grievance in that the judge did not reflect in the head sentence the findings he made in relation to subjective considerations. But that is not the way I would look at the case in either way than his Honour has done. If we were to look at the totality of the situation with particular regard to the fact that the present applicant will be released after eighteen months, whereas his co-offender has been sentenced to a minimum term of two years, the fact that he received the same sentence as his co-offender pales into insignificance.

19    The result is there is not, in my view, a justifiable sense of grievance on his part concerning the outcome of two sentencing hearings.

20    These are additional observations. I reaffirm that I agree entirely and without qualification with what his Honour has said.

21    NEWMAN J The order of the Court will be as I have proposed.

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