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Smith (a pseudonym) v R

Smith (a pseudonym) v R

Case [2022] NSWCCA 123 10 June 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Smith (a pseudonym) v R [2022] NSWCCA 123
Hearing dates: 27 May 2022
Date of orders: 10 June 2022
Decision date: 10 June 2022
Before: Bell CJ at [1];
Button J at [62];
N Adams J at [63]
Decision:
1.    Extend the time in which to make the application for leave to appeal from sentence.
2.    Grant leave to appeal.
3.    Appeal dismissed.

Catchwords:
SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where applicant and co-offender pleaded guilty to offences in the same terms – where a comparison is drawn between an indicative sentence, noted pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and a sentence imposed on a co-offender for a single offence – the use of indicative sentences as a guide to the application of the parity principle – where the disparity in sentences reflected different levels of moral and criminal culpability
SENTENCING – relevant factors on sentence – co-offenders – parity – where co-offender assisted applicant in the manufacture of methylamphetamine – where applicant recruited and paid co-offender to assist in the criminal enterprise – where co-offender had no prior knowledge or expertise in the manufacturing process – where applicant and co-offender pleaded guilty to offences in the same terms – the use of indicative sentences as a guide to the application of the parity principle

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 32, 53A
Crimes Act 1900 (NSW) s 193C(1)
Criminal Code Act 1995 (Cth) s 307.11
Drug Misuse and Trafficking Act 1985 (NSW) ss 24(2), 25(2)

Cases Cited:
Afu v R [2017] NSWCCA 246
Daw v R [2017] NSWCCA 327
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
House v The King (1936) 55 CLR 499; [1936] HCA 40
JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
Kadwell (a pseudonym) v R [2021] NSWCCA 42
Lloyd v R [2017] NSWCCA 303
R v Clarke [2013] NSWCCA 260
Thangavelautham v R [2016] NSWCCA 141
Vu v R [2018] NSWCCA 122

Category: Principal judgment
Parties: Michael Smith (a pseudonym) (Applicant)
The Crown (Respondent)
Representation:
Counsel:

T Anderson SC (Applicant)
C Curtis (Respondent)

Solicitors:
Katsoolis + Co (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/194345; 2018/22655
Publication restriction: N/A
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

20 February 2020

Before:

Buscombe DCJ

File Number(s):

2017/194345; 2018/22655

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 20 February 2020, Mr Smith (a pseudonym) (the Applicant) was sentenced for four drug-related offences in the District Court, including one Commonwealth offence and three New South Wales offences. For each offence, he received a discount of 25% for his early guilty plea, and a further 20% discount for assistance he provided to law enforcement authorities.…

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 Smith (a pseudonym) v R

Details

AGLC: Smith (a pseudonym) v R [2022] NSWCCA 123
Case: [2022] NSWCCA 123
Decision Date: 10 June 2022

CaseChat Overview and Summary

The case before the court involved an appeal against the sentence imposed on Smith, a pseudonym for the applicant, following his guilty plea to charges related to the manufacture of methylamphetamine. The dispute centred around the disparity in sentencing between the applicant and his co-offender, who had also pleaded guilty to similar charges. The court was asked to consider whether the sentencing disparity was justified given the differences in their respective roles and levels of culpability in the criminal enterprise. The matter was heard in the Court of Criminal Appeal in New South Wales.

The primary legal issue for the court to determine was whether the disparity in sentences between the applicant and his co-offender was justified, considering their roles in the criminal activity. The court had to assess whether the disparity appropriately reflected the different levels of moral and criminal culpability between the two individuals. This required a close examination of the roles played by the applicant and his co-offender, particularly in light of the principle of parity in sentencing co-offenders. The court also needed to consider the relevance of indicative sentences as a guide in applying the parity principle, as outlined in section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

In its reasoning, the court noted that the applicant had recruited and paid his co-offender to assist in the manufacture of methylamphetamine, while the co-offender had no prior knowledge or expertise in the manufacturing process. The court found that the applicant's role was significantly more substantial and that he played a more central role in the criminal activity. This led the court to conclude that the disparity in sentences was justified, as it appropriately reflected the differences in their levels of moral and criminal culpability. The court emphasised the importance of considering the specific circumstances of each case when applying the principle of parity in sentencing co-offenders. Based on this reasoning, the appeal against the sentence was dismissed.

The court's final order was that the appeal against the sentence imposed on the applicant was dismissed, upholding the original sentencing decision. The court affirmed that the disparity in sentences between the applicant and his co-offender was justified and appropriately reflected their differing levels of involvement in the criminal enterprise. This decision underscores the importance of considering the specific roles and levels of culpability of co-offenders when applying the principle of parity in sentencing.

Orders