Dunn v R

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2016/204992 Decision under appeal Court or tribunal: District Court at Dubbo Jurisdiction: Criminal Date of Decision: 20 June 2017 Before: North DCJ File Number(s): 2016/204992

For present purposes, the only relevant count on the applicant's indictment was count 7, which charged that the applicant: "On 13 January 2016 at Dubbo in the State of New South Wales, knowingly took part in the supply of a prohibited drug, namely methylamphetamine in an amount of 42.4 grams."
His co-offenders, Ms Jenkins and Mr Kennedy, were also charged with offences in the same terms as count 7 (the corresponding charge). However, the corresponding charge was not included in the indictments presented against either of them. Rather, it appeared in a Form 1 (the approved form under cl 4(1) of the Crimes (Sentencing Procedure) Regulation 2010 (NSW)) for each of them, being a document filed pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act).
Section 32 of the Act relevantly provides: "32 Prosecutor may file list of additional charges (1) In any proceedings for an offence (the principal offence), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence. (2) A list of additional charges may be filed at any time: (a) after the court finds the offender guilty of the principal offence, and (b) before the court deals with the offender for the principal offence. . . ."
Section 33(3) of the Act provides that if the court takes a further offence into account, the penalty imposed on the offender for the principal offence must not exceed the maximum penalty that the court could have imposed for the principal offence had the further offence not been taken into account.
This Court (R A Hulme J, Hidden J agreeing) in Gordon v R [2018] NSWCCA 54 said, of present relevance, at [99]: "It must be borne in mind that an offender can only ask a sentencing court to take into account his or her guilt of further offences with the concurrence of the Director of Public Prosecutions. It is the prosecutor who files the Form 1 in court and it must be signed by or on behalf of the Director: s 32 of the Crimes (Sentencing Procedure) Act. Further, a court has a discretion whether it will accede to the request to take such further offences into account; s 33(2)(b) provides that such offences may be into taken into account 'if, in all of the circumstances, the court considers it appropriate to do so'."
Ms Jenkins and Mr Kennedy were charged that each of them, on 8 January 2016 at Dubbo in the State of New South Wales, did knowingly take part in the supply of a prohibited drug, namely methylamphetamine in an amount of 28.4 grams contrary to s 25(1) of the Drug Misuse and Trafficking Act (the principal offence). As referred to above, the corresponding charge appeared on a Form 1 to the principal offence for each of the applicant's two co-offenders. The sentence imposed on Ms Jenkins for the principal offence (which took into account the corresponding charge) was a good behaviour bond pursuant to s 9 of the Act for a period of 2 years. She had already been in custody on remand for 9 months and 11 days. Mr Kennedy was sentenced for the principal offence (which took into account the corresponding charge) to a fixed term of imprisonment of 36 months with a non-parole period of 20 months. He was also sentenced for other offences which are not relevant for present purposes.
The significance of the corresponding charge being included on a Form 1 for the co-offenders was fundamental.
First, the court which sentenced Ms Jenkins and Mr Kennedy did not impose a sentence on either of them for the offence on the Form 1. Rather, the court imposed sentences on Ms Jenkins and Mr Kennedy for the principal offence and took into account in these sentences that each had admitted the Form 1 offence (being the corresponding charge). As this Court (Spigelman CJ, Wood CJ at CL, Grove, Sully and James JJ agreeing) said in Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 (The Guideline Judgment), at [39]: "The sentencing court is sentencing only for the 'principal offence'. It is nopart of the task of the sentencing court to determine appropriate sentences foroffences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a 'discount' for the use of the procedure. This is not sentencing for the principal offence." [Emphasis in original.]
Secondly, the co-offenders could reasonably expect that the Form 1 procedure would result in a higher sentence for the principal offence to which the Form 1 was attached, not because a penalty is being imposed for the Form 1 offence, but because, taking that offence into account, the sentence should be increased: Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [22]-[23] (Bathurst CJ, Hoeben CJ at CL, Garling and Campbell JJ agreeing). Generally, the Form 1 procedure will result in a lower overall penalty for the offending behaviour (comprising the principal offence and the charge or charges on the Form 1), although the difference is not specified: The Guideline Judgment at [34].
Thirdly, the parity principles do not apply because of the inclusion of the corresponding charge on the Form 1 for the co-offenders. There is no relevant comparison between a sentence that has been imposed for an offence (as in the case of the applicant for the corresponding charge) and an unspecified increase in a sentence imposed for another offence by reason of the corresponding charge being taken into account on a Form 1, as was the case for each co-offender. The passage cited above from Gordon v R serves to highlight the difference the adoption of the Form 1 procedure makes to the sentencing exercise.
The applicant argued that this Court had, in Nguyen, Kathy v R [2015] NSWCCA 209 (Nguyen), authorised the application of parity principles in circumstances such as the present, where one offender has been sentenced for an offence and another offender has had the corresponding offence taken into account on a Form 1. I reject this argument. Although this Court did not state in terms that parity principles were inapplicable, it is implicit in the decision that this was the case.
The Court in Nguyen (Hall J, Hoeben CJ at CL and McCallum J agreeing) said as follows: "[64] However, the fact that Tran was being sentenced for additional offences, and had some offences included on a Form 1 rather than on his indictment, means that a straightforward comparison is not possible. The Form 1 offences, of course, were to be brought into account in accordance with accepted principles: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 at [42], [66]. [65] The sentencing judge determined that it was appropriate for the starting point in relation to the applicant to be one year less than the starting point for Tran's sentence. In reaching this conclusion there was a range of competing considerations to be evaluated and balanced in the exercise of the sentencing judge's discretion. These included the objective seriousness of the offences, the seriousness of the Form 1 offences on Tran's indictment, and the fact that they were being charged on a Form 1 rather than on the indictment, the relative strengths of each offenders' subjective cases and the additional criminality of Tran, as compared to the applicant, as a result of the firearms offences. [66] The fact that the charges brought against Tran and the applicant were not identical does not, of course, necessarily displace the application of the principal of parity: Green v R [2011] 244 CLR 462 at [30]. . . [67] Accordingly, in the present case what the sentencing judge was required to determine was not simply a case in which there was a difference in the charges against the applicant and her co-offender Tran, but rather a case that involved the exercise of the prosecutorial decision to proceed with some charges on a Form 1 in Tran's case rather than on an indictment. Additionally, the firearm offences with which Tran was charged were, on the evidence, entirely separate from the conduct of the applicant. [68] Taking into account the sentencing judge's findings, and the variations in the offences charged, I do not consider there exists a basis for a justifiable sense of grievance as to the disparity in the starting points determined for the sentences ultimately imposed on the applicant and Tran. There are a number of factors which could have justified the fact that the applicant's starting point was only one year less than Tran's, including the method of charging the offences on a Form 1 in Tran's case and his Honour's explicit rejection of aspects of the applicant's subjective case which may have otherwise been more compelling. I note, as well, that the material on the applicant's drug, alcohol, psychological history was restricted to the account in Mr Watson-Munro's report of 12 June 2013 (at p 3), the applicant not having given evidence at the sentence hearing. No error, in my opinion, has been established in the way in which the sentencing judge approached the exercise of his sentencing discretion."
Although this Court in Nguyen at [68] appeared to undertake a comparison such as one which is usually undertaken when the principles of parity apply, I am not persuaded that it ought fairly be read as accepting that parity principles are applicable in such a case. Nguyen ought not be read as authorising a comparison which could only be based on a false premise and finds no support in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green).
In Green, the Court (French CJ, Crennan and Kiefel JJ) said at [30] that, although the application of parity principles does not require formal identity of charges, it does involve a comparison of the sentences of participants in the same criminal conduct or enterprise, whether they have been charged with the same or different crimes. In Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 the High Court (French CJ, Hayne, Kiefel, Bell and Keane JJ) said at [30] (citations omitted): "Parity is concerned with the equal treatment of co-offenders. As Green v The Queen explains, the principle is not confined to co-offenders in the strict sense. It has application in the sentencing of persons involved in the same criminal enterprise. The norm of equality discussed in Green v The Queen is not disturbed by sentencing an offender for the offence for which he or she has been convicted and not by reference to a different, less serious, offence which the court considers to be more appropriate to the offending conduct."
Relevantly, the applicant, Ms Jenkins and Mr Kennedy were involved in the same criminal enterprise which formed the basis for count 7 on the applicant's indictment and the corresponding charges on the Form 1 documents for his co-offenders. The charges were the same. However, the parity principles cannot apply since there can be no comparison in the sentences because the co-offenders were not sentenced for the corresponding charges.
Moreover, it is well-established that the principles of parity ought not be used as a means to seek review by this Court of prosecutorial discretion: see the review of the authorities in Gaggioli v R [2014] NSWCCA 246 at [28]-[34] (Fullerton J, Hoeben CJ at CL and Adamson J agreeing). In Green, the plurality referred at [30] to "the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions." Similarly, the High Court said in Elias v The Queen; Issa v The Queen at [35] (citations omitted): "Prosecutors are subject to a duty of fairness in the exercise of their important public functions. In the unlikely event that the discretion to prosecute a particular charge (or at all) was exercised for some improper purpose, the court has the power to relieve against the resulting abuse of its process. The time for debate as to any claimed abuse arising out of the selection of the charge is before the entry of a plea. After an offender has been convicted of an offence it risks compromising the impartiality and independence of the court to require that it sentence by reference to an offence of which the offender has not been convicted but which it considers the prosecution should have charged."
It was a matter for the prosecutor whether to include the corresponding charge on the Form 1 documents for Ms Jenkins and Mr Kennedy, or to include it on their respective indictments. The prosecutor chose to file the Form 1 documents pursuant to s 32 of the Act when the co-offenders were to be sentenced for other charges on indictment to which they pleaded guilty. This decision was not reviewable once the pleas had been entered. Accordingly, it was not open to the sentencing judge to sentence either Ms Jenkins or Mr Kennedy for the respective charges which corresponded with count 7 on the applicant's indictment. Nor is it open to this Court to compare, on a parity ground, the sentences imposed on Ms Jenkins or Mr Kennedy for other offences, which took into account the corresponding charges on the Form 1.
While the applicant might harbour a grievance that his co-offenders received substantially lesser sentences for offences which took into account the offence for which he was sentenced to a term of imprisonment of 6 years with a non-parole period of 3 years 6 months, it is not one for which this Court can provide redress. This Court's intervention on parity grounds is limited to instances where a grievance is justified as assessed by objective criteria: Green at [31].
For the reasons given above, I propose that leave to appeal be refused.

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