Neale v R

Court of Criminal Appeal (NSW)|2024-08-09|Before: Ward P, Wilson J, Sweeney J

The applicant's submissions

The applicant relied on the statement of the High Court in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30] that the parity principle is not confined to sentences imposed on co-offenders who have committed the same crime; it also applies to sentences imposed upon persons who are co-offenders by virtue of having been engaged in the same criminal enterprise, regardless of the charges laid against them.
In response to the Crown's submission that the parity principle did not apply, counsel relied on the statement of Price J in B v R [2022] NSWCCA 102 at [85] that whether people were engaged in a common criminal enterprise and were co-offenders depends on the circumstances of their case. He submitted that the cases the Crown relied on in support of its submission were factually distinguishable.
Counsel submitted that the criminal enterprise in which the applicant and Mr Weis were involved was the supply of methylamphetamine by Mr Marshall, and they were co-offenders because they both transported similar quantities of the same drug from Sydney to Mr Marshall, at his behest and direction, in the same time period, and in so doing they furthered Mr Marshall's enterprise of supplying methylamphetamine.
Counsel submitted there was little to distinguish the applicant's and Mr Weis's subjective cases. Both pleaded guilty and received 25% discounts for their pleas. Although they pleaded guilty to different charges, counsel submitted that the substance, not the form, should be examined.

The Crown's submissions

The Crown submitted that the applicant and Mr Weis were not co-offenders so as to attract the application of the parity principle, relying on Why v R [2017] NSWCCA 101 and B v R. Although they both acted as a courier for Mr Marshall, they did so independently of each other, without any interconnection, overlap or common involvement.
The Crown submitted that the applicant and Mr Weis were sentenced for different offences with different maximum penalties. All of the applicant's supplies were the subject of one "rolled up" commercial quantity supply charge. The prosecutorial charging discretion was exercised legitimately and the Court cannot go behind that.
The Crown submitted the sentencing judge found the applicant was a courier and street level dealer, involved in the street supply of drugs under Mr Marshall's direction as well as couriering drugs to him.
The Crown submitted that the applicant's offence and offending involved different and separate offending from that of Mr Weis, although the applicant's offence included some conduct of a similar nature to Mr Weis's offending. However, the applicant's offence involved 13 street level supplies over about one month. The Crown relied on the evidence that Mr Weis did not know the quantities of drugs he collected for Mr Marshall.
The Crown submitted that Mr Weis's subjective case was more favourable than the applicant's, and they had different motivations for their offending.
The Crown relied on the same judge having sentenced both the applicant and Mr Weis, so this Court should be slow to intervene: Croke v R [2021] NSWCCA 249.
The Crown submitted that because of the real differences in the criminality of the applicant and Mr Weis and their subjective circumstances, the disparity in the sentences imposed was open to the sentencing judge.

Consideration

In Green v The Queen; Quinn v The Queen, the High Court said: "[28] 'Equal justice' embodies the norm expressed in the term 'equality before the law'… it requires, so far as the law permits, that like cases be treated alike. … 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. … [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. [31] … In the exercise of [statutory] powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may 'reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender…. Gibbs CJ said in Lowe v The Queen: '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.' The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria".
I am of the view that a reasonable person, looking at the circumstances of this case, would regard the applicant's grievance at the disparity between the sentences imposed on him and Mr Weis as justified, that objectively justice has not been done to the applicant.
The applicant and Mr Weis were co-offenders in the sense that they assisted Mr Marshall in his criminal enterprise, even though they did not know or interact with each other. Their roles in collecting methylamphetamine on two occasions from a person in Sydney and delivering it to Mr Marshall were indistinguishable, except that Mr Weis did not know the quantities of drugs he collected. There was not a significant variation in their subjective circumstances or motivations for offending; both did so for financial reward and financial need. It could not be said that the applicant, living in a tent with his family, demonstrated a lavish lifestyle from his proceeds of delivering drugs to and for Mr Marshall. The applicant did have the further criminality of 13 supplies of smaller quantities, totalling 42.95g, over about one month, but again he acted on the direction of Mr Marshall. Although he provided that assistance to Mr Marshall in distributing drugs into the community, his conduct in so doing was less serious than if he had done it on his own account, independently and for greater financial reward or profit.
By objective criteria, the reasonable person in the community, looking at what the applicant and Mr Weis both did in their offending, and their personal circumstances, would consider that an injustice has been done to the applicant. Therefore this Court must intervene to correct that injustice.

Resentence

As the applicant did not challenge any of the sentencing judge's factual findings or findings about his subjective circumstances I would proceed on the same basis. I take into account the material contained in the two affidavits of the applicant's solicitor. They show that the applicant has been employed while in custody, with very positive work reports by his supervisors. His concern about his family has continued during his time in custody.
In re-sentencing the applicant, the non-parole period I have selected involves a lesser reduction in the statutory ratio than the sentencing judge applied, but I consider that no lesser actual period in custody would be appropriate for the applicant's offending and personal circumstances.
I propose the following orders: 1. Extend time for leave to appeal against the sentence. 2. Grant leave to appeal. 3. Allow the appeal. 4. The sentence imposed in the District Court on 3 November 2022 is quashed. 5. In lieu thereof the applicant is sentenced to 3 years and 3 months imprisonment with a non-parole period of 2 years. The sentence commenced on 12 October 2022 and expires on 11 January 2026. The non-parole period expires on 11 October 2024.

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HEADNOTE [This headnote is not to be read as part of the judgment] On 3 November 2022, the applicant, Joseph Neale, was sentenced in the District Court by Abadee DCJ for an offence of supplying not less than a commercial quantity of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act). His Honour imposed a term of 4 years and 3 months imprisonment, with a non-parole period of 2 years and 4 months. Mr Neale sought leave to appeal on the ground that the sentence imposed by Abadee DCJ on a co-offender and other member of the same drug syndicate, Luke Weis, gave rise to a justifiable sense of grievance on the part of Mr Neale. Mr Weis was sentenced for lesser offences under s 25(1) of the DMT Act. Abadee DCJ sentenced Mr Weis to a sentence of 2 years, 2 months and 17 days to be served by way of an Intensive Correction Order. The Court held (Ward P and Wilson J agreeing, Sweeney J dissenting), dismissing the appeal: Abadee DCJ, in sentencing both the Mr Neale, Mr Weis and various other co-offenders, was clearly familiar with the details of the criminal activity of the syndicate and of the crimes of the individual offenders. His Honour made numerous findings, by reference to the parity principle, as to the respective role of each offender, and noted their respective cases. The determination of each offender's sentence was fully informed by those comparisons: [5]-[6] (Ward P and Wilson J). Lloyd v R [2017] NSWCCA 303 cited. The question on appeal is not whether this Court might have imposed a different sentence upon the applicant at first instance; rather, it is whether the sentence imposed by the primary judge was one that was open to the court in the exercise of sentencing discretion. In this case, the sentences imposed were open to Abadee DCJ, his Honour having given reasons for the differences in penalties between the co-offenders: [8]-[10] (Ward P and Wilson J). There were differences in both the objective and subjective cases of the two men, the starting point of those differences being the charges faced by each. The differences in the charges faced by Mr Neale and Mr Weis recognised the greater involvement of Mr Neale in the syndicate, and his greater criminality and moral turpitude: [11]-[15] (Ward P and Wilson J). Mr Neale and Mr Weis were co-offenders in the sense that they assisted Mr Marshall in his criminal enterprise, even though they did not know or interact with each other. Their roles were indistinguishable, except that Mr Weis did not know the quantities of drugs he collected. There was not a significant variation in their subjective circumstances or motivations for offending; both did so for financial reward and financial need. It could not be said that the applicant, living in a tent with his family, demonstrated a lavish lifestyle from his proceeds of delivering drugs to and for Mr Marshall: [70] (Sweeney J). By objective criteria, the reasonable person in the community, looking at what Mr Neale and Mr Weis both did in their offending, and their personal circumstances, would consider that an injustice has been done to Mr Neale: [71] (Sweeney J). The applicant should be sentenced to 3 years and 3 months imprisonment with a non-parole period of 2 years. This non-parole period involves a lesser reduction in the statutory ratio than the sentencing judge applied, but no lesser period in custody would be appropriate for the applicant's offending and personal circumstances: [73]-[74] (Sweeney J).

The sentencing of Luke Weis

Mr Weis was sentenced separately from, and after the applicant. The facts were agreed.
His Honour stated that on two occasions Mr Marshall used the offender Mr Weis to collect methylamphetamine from the up-line supplier in Sydney, and Mr Weis travelled to Sydney, collected the drugs and brought them to Mr Marshall on the Central Coast. His payment was that he had his drug debts to Mr Marshall reduced by $800 and $700. The facts also stated that on two occasions Mr Marshall used the applicant Mr Neale to collect methylamphetamine from the up-line supplier in Sydney and bring it back to him on the Central Coast, and Mr Neale also supplied methylamphetamine on the Central Coast at the direction of Mr Marshall.
Mr Weis's two occasions of collecting drugs for Mr Marshall, which gave rise to the two charges to which he pleaded guilty, were that he delivered 140g of methylamphetamine from the up-line supplier in Sydney to Mr Marshall on the Central Coast, and on the second occasion he delivered 168g of methylamphetamine from the supplier in Sydney to Mr Marshall.
In assessing the objective seriousness of Mr Weis's offending his Honour found that Mr Weis was part of an organised network but his role was at the lower end of the syndicate. His Honour found the quantity of drugs was significant but was diminished to a degree by the agreed fact that Mr Weis did not know the actual quantity of drugs. His Honour stated that "in a technical sense [Mr Weis's] motive was financial gain in the sense of reducing his indebtedness to his principal" but "his motive was to feed a drug habit. Reducing his indebtedness contributed to that overriding objective."
His Honour found Mr Weis's offending was "quite serious for offending of this kind".
His Honour took into account the following subjective circumstances of Mr Weis.
He was 35 at the time of offending. He told a Community Corrections Officer that during the period of his offending he had a significant addiction to using methylamphetamine and that his addiction was a direct contributing factor to his offences. His Honour found that his drug addiction did not reduce his moral culpability.
He was given a 25% discount for his pleas of guilty.
He had no prior drug related convictions but had a history of driving related offences and domestic violence offences. His Honour found Mr Weis's criminal history disentitled him to the leniency afforded a first time offender and, although of a different kind of offending, also manifested disobedience to the law in the Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 1 sense. His Honour said he was unable to find genuine remorse or contrition. Mr Weis had been compliant with a Community Corrections Order and had completed a 12 week MERIT program. His Honour found Mr Weis's prospects of rehabilitation reasonable.

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