McCALLUM J: Michael Lopatinsky seeks leave to appeal against the sentence imposed upon him in the District Court after he pleaded guilty to the offence of supplying not less than the large commercial quantity of cocaine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for that offence is imprisonment for life. The offence carries a standard non-parole period of 15 years.
The principal ground of appeal is disparity with the sentence imposed upon Mr Lopatinsky's co-offender, David Lukasik (ground 1). The applicant also asserts error in failing to give full effect to the finding of special circumstances (ground 2).
Both men were sentenced by Bennett SC DCJ. The applicant was sentenced first, on 15 June 2016. He was aged 52 years at the time he was sentenced. The judge made a careful assessment of the applicant's involvement in the offence and concluded that its objective seriousness fell "below mid-range". The drugs had been imported from the United States packed inside a large, metal log-splitting device encased in a wooden crate. The consignment was intercepted by Customs who found it to contain 10 clear plastic packages each containing approximately 1kg of white powder (later found to be cocaine with a purity of almost 75%). The consignment was transferred to the Australian Federal Police who seized the cocaine, replaced it with an inert substance and installed covert surveillance devices including a listening device. The package was then delivered to the consignment address.
The consignment address was an auto business in Croydon. It was the co-offender, Mr Lukasik, who had arranged for the package to be received at those premises. He had asked his de facto partner whether she knew anyone who owned a business where a large package could be delivered. She arranged for it to be delivered to the business address of a mechanic, telling him she had ordered something on-line for her car. She and Mr Lukasik collected the package from that address. They returned home with the package and were joined by the applicant shortly afterwards.
The listening devices captured conversation between the two men as they opened the package including a discussion as to the price for which the drug could be sold and the profit they could achieve. Towards the conclusion of the process they discovered it was not cocaine and became angry. The device then captured the sound of sirens in the background and recorded the two men laughing, evidently thinking it could not be an offence for them to be caught in possession of "fuckin' cement". Both men were arrested shortly afterwards.
In his judgment sentencing the applicant, the judge found that there were no aggravating factors of the kind listed in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), commenting that all of the circumstances before him were integral to the offence. His Honour noted that the quantity of the drug was substantial (being ten times the large commercial quantity specified in Schedule 1 to the Drug Misuse and Trafficking Act and that the offenders stood to make $150,000 as a reward for their work. His Honour considered that the applicant was "somewhere at the lower management level of the enterprise", being the conduit through whom the drugs would have found their way into the community by a distribution network extending well beyond the two offenders.
The applicant had pleaded guilty in the Local Court and accordingly received a discount of 25% to reflect the utilitarian value of the plea. The judge said that, but for the plea, he would have imposed an overall sentence of 12 years' imprisonment. His Honour made a finding of special circumstances on the basis that "the circumstances of [the applicant's] family are of significance and will impact upon his difficulties in gaol". On the strength of that finding and applying the discount of 25%, his Honour sentenced the applicant to a term of imprisonment of 9 years with a non-parole period of 6 years and 6 months and a balance of term of 2 years and 6 months.
Mr Lukasik was sentenced a few months later, on 31 October 2016. Both matters had initially been listed to be heard together but Mr Lukasik's matter was not ready to proceed on that date. The judge was accordingly compelled to deal with the two matters on separate dates.
Mr Lukasik was younger than the applicant, being aged 25 years at the time he was sentenced. As in the case of the applicant, Mr Lukasik had pleaded guilty at the earliest opportunity and received a discount of 25%. In addition, he had provided assistance to police for which he received an additional 25% discount, giving a total discount of 50%. He faced an additional charge, being an offence of knowingly dealing with the proceeds of crime (an amount of $5,600 found in his possession when he was arrested). That offence was taken into account on a Form 1.
In sentencing Mr Lukasik, the judge adhered to his assessment made in respect of the applicant that the objective circumstances of the offence fell below the mid-range. However, for reasons not expressly stated, his Honour accepted a submission that Mr Lukasik was "at a lower level of involvement marginally at least comparably with Lopatinsky". It will be necessary to return to that finding.
The starting point in the case of Mr Lukasik was significantly more favourable than for the sentence imposed upon the applicant. The judge said that, but for Mr Lukasik's plea, he would have imposed a sentence of imprisonment for 9 years compared with 12 years for the applicant. Allowing for the combined discount, the total sentence was accordingly 4½ years compared with the applicant's sentence of 9 years (the greater discount to which Mr Lukasik was entitled must be taken into account in that comparison).
The structure of Mr Lukasik's sentence was also more favourable. In his case, the judge fixed a non-parole period of 3 years with a balance of term of 1½ years. The non-parole period was accordingly 66% of the total sentence whereas, in the case of the applicant, it was about 72%. Expressed as periods of time, in the case of Mr Lukasik, the finding of special circumstances meant he was eligible for parole 4½ months earlier than would otherwise have been the case (having spent less than half the time the applicant will spend in prison) whereas the applicant will be eligible for an additional period of parole of 3 months.
Ground 1 is:
There is an unjustifiable disparity between the sentences imposed and the effect of a finding of special circumstances on the applicant and a co-offender, so as to disclose error.
I am of the view that this ground is made out.
The principles to be applied are well known and were not in contest in the present case. Mr Coady, who appears for the applicant, relied on the summary provided in the decision of this Court in Kemp v R [2012] NSWCCA 281 at [29] - [31] as follows:
29 The relationship between the principles of consistency and parity can be distilled into the following propositions:
(1) The goal of consistency in sentencing is to be obtained by a consistent application of the appropriate principles established by the legislature or otherwise applicable under the general law: Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520 at [77]-[78].
(2) 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: Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 608, cited with approval in Green v R; Quinn v R (2011) HCA 49; (2011) 244 CLR 462 at [28] (Green & Quinn).
(3) Consistency in the punishment of offences against the criminal law is a fundamental element in a rational and fair system of criminal justice: Green & Quinn.
(4) In relation to co-offenders consistency finds expression in the parity principle. In relation to offenders who are not co-offenders, it finds expression in the principle of consistency in sentencing: see Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540 at 588-589, cited with approval in Green & Quinn at [30], per French CJ, Crennan and Kiefel JJ and at [119]-[123], per Bell J with whom Heydon J agreed.
30 The plurality (French CJ, Crennan and Kiefel JJ) in Green & Quinn explained the rationale for intervention by an appellate court, citing Gibbs CJ in Lowe v The Queen [1984] HCA 46; 154 CLR 606, who said, at 610:
"...the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done."
31 The plurality in Green & Quinn articulated the principles to be applied by an appellate court if it considered that there was an unjustified disparity, which include, relevantly, the following:
(1) An appellate court has the power to reduce a sentence that is not manifestly excessive in order to correct a marked disparity with a sentence imposed on a co-offender.
(2) The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria.
(3) An appellate court ought not intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.
(4) An appellate court deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders.
The applicant submitted that the difference between his Honour's starting points of 12 years in the case of the applicant and 9 in the case of Mr Lukasik shows a significant disparity and resulted in a marked difference between the effective sentences.
As already noted, the judge accepted a submission that Mr Lukasik was "marginally" less involved than the applicant. Assuming the correctness of that finding, it would not warrant a significant difference between the two sentences. Further, with great respect to the sentencing judge, the basis for the finding is not clearly articulated. For my part, I see little to distinguish the roles of the two offenders. It was the co-offender, Mr Lukasik, who arranged for a place for delivery of the package and who collected it. Both men were involved in unpacking its contents. The only material by reference to which their roles might otherwise have been distinguished was the listening device material.
The extracts of that material included in the statement of facts contain nothing to indicate that the applicant had a greater role than Mr Lukasik. There was a conversation about the profit each man expected to make from the deal. They appear to discuss that issue as two people on equal terms, with no suggestion that one had a greater role than the other or an entitlement to receive greater pro rata remuneration. On the contrary, they appear to discuss making equal profit. The only differentiation between the two men during that exchange is that the applicant suggests the terms of a text message to be sent to someone about sale price while Mr Lukasik types the text. However, each contributes to its composition.
The next passage of the extracts records the moment when the two men discover that the material they are unpacking is not cocaine. Nothing in that exchange suggests any greater role on the part of the applicant. In my respectful opinion, the roles of the two men were indistinguishable.
Separately, as already noted, Mr Lukasik had a matter taken into account on a Form 1 whereas the applicant faced only the charge of supply.
Further, apart from the difference in the ages of the two men (the applicant was 52, Mr Lukasik was 23), the subjective cases were unusually similar. Each had pleaded guilty at the earliest opportunity and was allowed a discount of 25% and neither had any significant criminal history. Each had developed a drug addiction while struggling to deal with family issues. Each attributed his offending to that addiction and the difficulties it created. Curiously, each had gone to Thailand to undertake a drug rehabilitation course and each had failed to undertake that course once in Thailand. Each had expressed contrition and remorse in an unsworn statement tendered in the proceedings and accepted by his Honour. Each had difficult family circumstances but retained the support of family and friends.
As acknowledged in the applicant's written submissions, the co-offender, Mr Lukasik, perhaps had stronger prospects of rehabilitation but there is no suggestion that the judge regarded that as a basis for imposing a longer sentence on the applicant.
The applicant submitted that the only subjective matter of significant difference was that of age. Whilst acknowledging that age can be a differentiating factor, the applicant submitted that the difference was insufficient of itself or in combination with other factors in the present case to justify the significant difference between the two sentences. In particular, the applicant noted that the co-offender, Mr Lukasik, although young, was well into adulthood.
In my respectful opinion, having regard to the foregoing considerations, the disparity between the two sentences is such as to give rise to a justifiable sense of grievance on the part of the applicant. Indeed, although this was not argued on behalf of the applicant, the closeness of the factors described in the two judgments and the neatness of the arithmetic suggests the possibility that the disparity was due to oversight or numerical misstatement rather than an assessment of relevant difference. Whether or not that is so, ground one is plainly made out.
In light of that conclusion, it is not necessary to determine ground 2, which asserts error in failing to give full effect to the finding of special circumstances, since it will be necessary to re-sentence the applicant in any event. The appropriate course is to have regard to the parties' submissions on that issue in undertaking the re-sentencing task.
For the reasons set out above, I consider that the applicant should be sentenced to substantially the same sentence as his co-offender, making due allowance for the greater discount to which the co-offender was entitled. I accept that the co-offender was younger. That is relevant but does not, in my view, warrant any substantially different approach. There is no suggestion that youth or immaturity were significant factors in his offending. Further, on the other hand, it was necessary in the co-offender's case to take into account the offence on the Form 1.
Turning to the question of special circumstances, as already noted, the judge made a finding of special circumstances on the basis that the applicant's family circumstances were of significance and would have an impact on his experience in custody. That finding was based on a number of matters. First, there was evidence as to the poor health of the applicant's parents. His father has diabetes and his mother has been diagnosed with cancer. The finding was also based on the applicant's concerns for his children. He has two sons who are in the care of their mother. The applicant's involvement in drugs resulted in the failure of the marriage, but he remained on good terms with his wife and was important in the sons' lives. His drug addiction and subsequent incarceration had imposed significant hardship on them.
In the case of the co-offender, the judge made a finding of special circumstances but did not articulate the basis for that finding. His Honour probably had in mind the need for the co-offender to be supported in maintaining his rehabilitation from his drug addiction once released from prison. That is a consideration which would also apply in the case of the applicant. I would respectfully share the sentencing judge's conclusion as to special circumstances but am inclined to think that, in the case of the applicant, it warranted a departure from the statutory ratio more in line with that allowed to the co-offender.
For those reasons, I propose the following orders:
1. that leave to appeal be granted;
2. that the sentence imposed in the District Court be set aside and, in substitution therefor, that the applicant be sentenced to a term of imprisonment with a non-parole period of 4 years and 6 months commencing on 6 March 2015 and expiring on 5 September 2019 and a balance of term of 2 years and 3 months expiring on 5 December 2021;
3. note that the first date on which the applicant will be eligible for release to parole is 5 September 2019.
FAGAN J: I agree with McCallum J. Having carefully compared the learned sentencing judge's remarks on sentence of 16 June 2016 concerning the applicant and those of 31 October 2016 concerning the co-offender I do not see any material difference between his Honour's findings regarding the participation and responsibility of each of them in the crime. In the remarks concerning the co-offender there is a conclusion that he was "at a lower level of involvement marginally at least comparable with [the applicant]". His Honour did not particularise any comparison of activities or of interaction with others concerned in the crime, upon which this conclusion may have been based.
It is apparent that his Honour read closely the listening device product. His remarks in relation to both offenders contain analysis of its content. That evidence does not reveal, to my perception, any material difference in the offenders' respective roles, responsibilities and activities.
The Crown made the following submission on the hearing of appeal:
… there is no issue that the distinction as to the objective seriousness of offending as between the applicant and the co-offender was a marginal one. … The implication being that the applicant had some greater involvement because of the use of the text message. That's the extent of it, that it showed some degree of greater involvement in the transaction. I don't suggest that that's of great significance but it is of some significance … . So it is not to be disregarded, I simply say that.
I do not see that such evidence as there is about the composition and sending a text message to someone else who was concerned with the drugs revealed any differentiation between the objective gravity of the criminal conduct and involvement of two offenders respectively. With the possible distinction in objective seriousness narrowed to this insubstantial point, the Crown then submitted:
Far more compelling is the distinction as between the subjective cases of the co-offender and the applicant.
I do not accept that submission. Both men have backgrounds of personal troubles, the co-offender's having commenced early in life and the applicant's having commenced later. Both had descended into destructive drug use over several years leading up to their commission of this crime. The only tangible difference between the subjective position of each of them is that the applicant was 52 at the date of the offence whereas the co-offender was 23. Certainly the relative youth of an offender may be taken into account on sentence for any of a number of reasons. If immaturity is a factor in the commission of the offence then the degree of moral culpability may be reduced. That did not apply here where, at 23 years, the co-offender was as well able to judge the wrongfulness of involvement in the possession for supply of nearly 10 kg of cocaine as the applicant at 52 years. This was not a spontaneous or impetuous crime which was attributable to the co-offender's age or inexperience.
Relative youth may also reduce the need for specific deterrence, in recognition of the capacity of a younger offender to correct his behaviour. In this case the applicant also had the capacity for reform, having only one prior conviction and being, as His Honour accepted, "a person of good character but for his misuse of drugs". For both of them the likelihood of rehabilitation is necessarily uncertain. There is no marked difference between the two men in the degree to which the objective of fostering rehabilitation calls for mitigation of sentence. Further, the co-offender is not so young that the harshness of prison would likely be significantly more punitive for him than for the applicant.
I do not find that, given the overall personal circumstances of each offender, the difference in their ages constitutes a "compelling" distinction which could justify the disparity between starting point sentences of 12 years for the applicant and 9 years for the co-offender. Nor would it explain the contrast between the small adjustment to the non-parole period default ratio for the applicant (down to approximately 72%) and the more significant adjustment in the co-offender's case (down to 66%).
I consider that the starting point sentence and the percentage ratio of non-parole period had to be substantially the same for both offenders in order to achieve parity on the facts of this case. The two are entitled to different discounts. When the applicant's 25% discount is applied to a starting point sentence and a non-parole ratio equivalent to the co-offender's, the outcome proposed by McCallum J will accord with the principles of parity in sentencing which her Honour has cited.
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Decision last updated: 06 April 2018