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[2012] NSWCCA 4
Court of Criminal Appeal (NSW)
2011-12-05
Meagher JA, Hoeben J, Rothman J
Original judgment source is linked above.
Judgment 1MEAGHER JA: I agree with Rothman J for the reasons he gives that leave to appeal should be granted and that the appeal against sentence be dismissed. 2HOEBEN J: I agree with Rothman J. 3ROTHMAN J: Jaime Felipe Paredes was charged with knowingly taking part in the supply of a prohibited drug, namely, methylamphetamine, approximately, but less than, 1 kg and not less than a commercial quantity. The date of the offence was between 26 February 2008 and 28 March 2008. Mr Paredes pleaded guilty (on the first day of trial) and was sentenced by Freeman DCJ on 18 March 2011. 4Mr Paredes was sentenced to a term of imprisonment for a non-parole period of four years and six months commencing on 27 March 2008, with a balance of term of a further three years to expire on 26 September 2015. Mr Paredes seeks to appeal on the sole ground of lack of parity with co-offenders.
Facts 5As already stated, Mr Paredes pleaded guilty on the first day of trial. Notwithstanding the plea of guilty (or because of it) there was, thereafter, a factual contest in relation to that which was to form the basis for sentencing. 6An appeal based upon lack of parity assumes, at least for the purpose of that argument, that no other error, identifiable or manifest, is disclosed by the remarks on sentence or the outcome of the exercise of discretion by the sentencing judge. Of necessity, that requires an acceptance of the findings of fact by the sentencing judge, except, perhaps, on the question of the relative culpability of the co-offenders. The applicant, through his counsel, expressly conceded the correctness of the facts set out in the sentencing judge's remarks on sentence. 7The sentence proceedings in relation to each of the relevant co-offenders were conducted at the same time. His Honour sentenced each of the co-offenders (except Gustavo Araya, who was sentenced approximately 1 month later) also at the same time. 8Because of the nature of the hearing on sentence, his Honour spent a substantial part of his remarks on sentence dealing with the disputed facts. Those findings of fact occupy 100 paragraphs of his Honour's remarks. Notwithstanding their apparent length, the findings of fact are a concise summary of the evidence adduced before his Honour and his Honour's conclusions in relation to that evidence. 9The parties before this Court accept the following summary, which is taken, largely, from the submissions on behalf of Mr Paredes. 10Mr Paredes, together with two co-offenders, Mr Barillaro and Mr Donevski, pleaded guilty to certain drug offences. The pleas were very late. In broad terms, an informer, "Mr X", introduced an undercover officer to the co-offender Mr Donevski. Mr X encouraged Mr Donevski to become involved in the supply to the undercover officer. 11In due course, Mr Donevski supplied one half of an ounce of methylamphetamine in return for a payment of $4,000. This occurred on 12 March 2008. Mr Donevski agreed to supply approximately 1 kg of methylamphetamine on 27 March 2008. The half an ounce was considered a sample. 12No money or drugs were exchanged on 27 March 2008. In substance, the offence of supplying a commercial quantity of methylamphetamine was committed by agreeing to supply or attempting to arrange the supply of the methylamphetamine. It was not delivered. 13Mr Donevski and a fourth offender, Mr Araya, were arrested at the scene on 27 March 2008 and Mr Paredes was arrested later that night. The co-offender Mr Barillaro was arrested on 3 April 2008. 14Having been introduced to the undercover agent by Mr X, Mr Donevski agreed to supply the drug and obtained a sample from Mr Barillaro. Mr Donevski, having agreed to supply the undercover officer, then sought to obtain the drugs to complete the transaction. He did this through Mr Barillaro. Mr Barillaro provided the sample of half an ounce after shopping around to seek the most favourable price. Mr Donevski had agreed to supply the undercover officer with the kilogram (approximately) for a price of $280,000. 15Mr Paredes, who was in financial difficulties, was involved in the search for a supplier in order that Mr Donevski's proposed supply could proceed. The sentencing judge heard evidence of telephone calls between all three of Mr Donevski, Mr Barillaro and Mr Paredes. In the course of those telephone calls, Mr Paredes informed the undercover officer of the difficulties he was having with the end supplier. The sentencing judge reached the conclusion that Mr Paredes was "intimately involved" in the supply from "a time before the provision of the sample". 16The Crown, in its submissions, draws attention, in particular, to paragraphs [79]-[106] of his Honour's remarks. I will repeat some of that passage: "[79] Paredes accepts by his plea that he was a participant in the supply but his evidence is directed to establishing that such participation came very late, was peripheral and in effective and was brought about only because of fears he felt for the safety of his friend Donevski and, indeed, for his own and his family's well-being. He said that he was not to gain any monetary benefit for himself. [80] The evidentiary burden of establishing these propositions, on the balance of probability, rests on the offender. [81] In giving evidence, Paredes asserted that he knew nothing about the supply with which he is charged until mid day on 26 March 2008, that is the day before the delivery of 1 kg of methylamphetamine was scheduled to take place. Specifically, he denied any knowledge of the actual supply of a half ounce of methylamphetamine as a sample which had taken place on 12 March 2008. [82] I do not accept that he was unaware of the supply on 12 March 2008.... ... [102] Paredes is not a witness I was prepared to accept. I do accept that Paredes was in financial difficulties, for example, attempting to sell his laptop computer.... ... [106] The conclusion I have reached is that Paredes was intimately involved in the supply from a time before the provision of the sample".
Principles on Parity 17The principles applicable to the application of parity in sentencing are well known. They were extensively summarised by Campbell JA in Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 (with whom Howie J and I agreed) and the judgment of Campbell JA was cited with approval by the High Court in Green v The Queen; Quinn v The Queen [2011] HCA 49. 18In Green & Quinn, supra, the High Court reaffirmed, in the context of the Crown appeal, the importance of the principle and its underlying philosophical basis in the doctrine of equal justice. The majority in the High Court (French CJ, Crennan and Kiefel JJ) said: "[28] "Equal justice" embodies the norm expressed in the term "equality before the law". It is an aspect of the rule of law. It was characterised by Kelsen as "the principle of legality, of lawfulness, which is immanent in every legal order." It has been called "the starting point of all other liberties." It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen : "Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect." (emphasis in original) Consistency in the punishment of offences against the criminal law is "a reflection of the notion of equal justice" and "is a fundamental element in any rational and fair system of criminal justice". It finds expression in the "parity principle" which requires that like offenders should be treated in a like manner. As with the norm of "equal justice", which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. [29] General concepts of "systematic fairness" and "reasonable consistency" in sentencing, as an aspect of the administration of federal criminal justice, were discussed in Hili v The Queen . They apply to persons charged with similar offences arising out of unrelated events. The consistency they require is "consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence." That kind of general consistency is maintained by the decisions of intermediate courts of appeal. The consistency required by the parity principle is focussed on the particular case. It applies to the punishment of "co-offenders", albeit the limits of that term have not been defined with precision. [30] In Lowe v The Queen and in Postiglione v the Queen , this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen , there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged." [references omitted] 19As is clear from an application of the principles relating to parity in sentencing, like offenders should be treated alike and a difference in sentence should reflect rationally the difference between offenders, either in objective or subjective circumstances. Ultimately, the principle is engaged on appeal when there is, objectively, a justifiable sense of grievance because of the disparity in sentence suffered by an appellant (or applicant for appeal) compared to the sentence imposed on the co-offenders. 20It is the foregoing test that Mr Paredes must satisfy in order to succeed in his appeal.
Consideration 21Best practice dictates that the same sentencing judge should, where possible, sentence co-offenders ( Dwayhi v R; Bechara v R (2011) 205 A Crim R 274 at [33] - [43], [46]; see also R v Nguyen; R v Pham (2010) 205 A Crim R 106 at [13], [24]; Gurney v R; Willetts v R [2011] NSWCCA 48 at [81]; Rae v R [2011] NSWCCA 211 at [50] - [55]; Ng v R [2011] NSWCCA 227 at [77] - [78]). In that way all of the considerations relevant to each of the co-offenders are known and are able to be taken into account in determining any appropriate relativity. Further, in those circumstances, differences in findings of fact can be minimised or accommodated. Sometimes, inevitably, because of the difference in burden of proof, there will, even before the same sentencing judge, be a different factual matrix for each offender. That is not the situation here. 22Freeman DCJ came to a conclusion, expressed at [135] of his remarks on sentence, that the sentences for each of the three offenders should be "roughly the same, except for an allowance for Donevski's slightly reduced capacity and, of course, a mathematical adjustment to counter the fact that Barillaro has served only seven months and has been on strict bail conditions for two years and five months". 23The sentences imposed on Mr Donevski and Mr Barillaro, respectively, were a non-parole period of four years with an additional term of three years and a non-parole period of three years and three months with an additional term of three years. None of the offenders had any charges on a Form 1 except Mr Donevski whose Form 1 offence was described as having only a minor effect on the sentence. 24The roles played by each were similar. Mr Donevski was said to have a greater physical involvement than the others but lacked apparent authority (Remarks at [112]), whereas Mr Barillaro was described as the "classic middle man" (Remarks at [20]) and, as already stated, Mr Paredes was intimately involved in the supply from the time before provision of the sample. 25Mr Donevski suffered from a mental illness, which lessened the weight to be given to general deterrence but he was not a user of drugs. On the other hand, Mr Paredes suffered psychological problems arising from a broken home (Remarks at [129]) and was an abuser of alcohol and cannabis who had been the subject of psychiatric treatment over a number of years (Remarks at [132]). Mr Barillaro suffered depression for which he was "self-medicating" with cannabis. Each had prior criminal history, which obviously differed, but Mr Paredes seemed to have the slightly more serious prior criminal history. 26Each of the offenders was married with dependents. Mr Barillaro has six children and will, as a consequence of these offences, lose his house. Mr Donevski has a son and ailing mother. 27The sentencing judge conceded that Mr Paredes had good prospects of rehabilitation but qualified his contrition because of his attempt to minimise his involvement in the scheme (Remarks at [133]). 28Leaving aside the adjustment for Mr Barillaro's period of incarceration of seven months (and making some allowance for the restrictive bail conditions under which he operated for the remainder of the period) the sentence imposed upon him is not significantly different from that imposed upon Mr Paredes (being a difference of six months to accommodate the restricted liberty caused by bail conditions for almost two and a half years). 29The Court notes that Mr Donevski was sentenced to a six-month shorter non-parole period, which was to take account of the mental illness factors affecting the commission of the offence, to which his Honour referred. Mr Paredes completes his sentence earlier than each co-offender. 30Sentencing is an exercise of discretion and can be interfered with only on one of the well-known bases to which the High Court referred in House v R [1936] HCA 40; (1936) 55 CLR 499 . That a judge of this Court may, if sentencing at first instance, have imposed a different sentence does not justify, of itself, interference with the sentence imposed. In my view, there is no justifiable sense of grievance, objectively determined. His Honour, in sentencing, noted the differences between the offenders and fixed sentences accordingly. 31The ground of appeal should fail and I propose that the Court make the following orders: (i) Leave to appeal granted; (ii) Appeal dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 February 2012
Jaime Felipe PAREDES
R
(1936) 55 CLR 499
(2010) 77 NSWLR 540
[1936] HCA 40