Parris v R

Court of Criminal Appeal (NSW)|2012-12-10|Before: McClellan CJ, Latham J, Adamson J, Clellan CJ

Judgment 1McCLELLAN CJ at CL: I agree with Adamson J. 2LATHAM J: I agree with Adamson J. 3ADAMSON J: The applicant seeks leave to appeal against the sentence imposed on him following his plea of guilty to an offence of supplying a commercial quantity of cocaine. There are three grounds of appeal: (1)The Sentencing Judge gave undue weight to the quantity of drugs involved in the offence; (2)The sentence imposed was manifestly excessive; and (3)The applicant has a justifiable sense of grievance in light of the sentence imposed on a participant, Richard Lipton: R v Lipton [2012] NSWDC 201. 4The applicant pleaded guilty to supplying a commercial quantity of prohibited drug (cocaine) contrary to s 25(2) of the Drugs Misuse and Trafficking Act 1985 (DMTA). The maximum penalty for this offence is, relevantly, twenty years' imprisonment: s 33(2) of DMTA. There is a standard non-parole period of 10 years. 5The applicant asked the Sentencing Judge to take into account six Form 1 offences, each of which was admitted to have occurred on 22 May 2009. Five of the offences were offences against s 16(1) of the Poisons and Therapeutic Goods Act 1966 (PTGA) for possession of the following prescribed restricted substances: (1)7 boxes of testosterone; (2)8 tablets of mesterolone; (3)60.5 g of oxandrolone; (4)methenolone; (5)27.9 g of stanzol. 6Offences under s 16(1) of the PTGA carry a maximum period of imprisonment of 2 years. 7The sixth Form 1 offence was an offence against s 527C(1)(c) of the Crimes Act 1900 (persons unlawfully in possession of property). The relevant property was $14,000 in cash. 8The Sentencing Judge allowed a discount of 12.5% for the plea of guilty. His Honour found special circumstances and reduced the non-parole period to approximately 40% of the total term. 9The total sentence, taking into account the Form 1 matters, was 6 years 1 month and 15 days with a non-parole period of 2 years and 6 months to commence on 25 May 2009, the date of his arrest, and expire on 24 November 2011 with a balance of parole of 3 years and 7 months and 15 days to commence on 25 November 2011 and expire on 9 July 2015. 10At the time of the hearing of his application before this Court, the applicant had been released to parole.

The facts 11On 22 May 2009, after the Strike Force formed to investigate the supply of cocaine in the Eastern Suburbs by Mr Lipton had received certain information, police executed a search warrant at the unit where the applicant lived on South Dowling Street. The applicant was at his parents' home in Maroubra when the warrant was executed. It was common ground that the flat-mate, with whom the applicant shared the unit, was not involved in the offences. 12Police found 707.2 g of cocaine with a purity of 78.5% in a clear plastic vacuum-sealed bag in a kitchen cupboard. They found a further 7 g of cocaine and other prescribed restricted substances (which are the subject of the Form 1 offences) in the applicant's bedroom. 13The applicant was arrested on 26 May 2009. He declined to be interviewed. 14The applicant gave evidence at the sentence hearing. He relied upon a handwritten statement, in which he said that Mr Lipton gave him the bag containing the cocaine together with $14,000 in cash four days before the warrant was executed. He said that he was storing the drugs for Mr Lipton and was not involved in the supply. Mr Lipton provided him with cocaine for his own use. He was not otherwise remunerated. 15He also relied on a report of forensic psychologist, Dr Watson-Munro, who opined that his mother's diagnosis of cancer had affected his judgment at the time of the offending. The applicant's sister and father both gave evidence as to the applicant's remorse, his mother's illness, the applicant's drug use and his apparent cessation of drug use since being in custody.

The first ground: the weight of the drug 16Under Schedule 1 of the DMTA, the commercial quantity of cocaine is 250 g and the large commercial quantity is 1 kg. The quantity of the drug of 714g was, accordingly significant. The quantity of the drug is a "very material consideration" in assessing the overall seriousness of the offence: Paxton v R [2011] NSWCCA 242 at [132], per Johnson J (Tobias AJA and Hall J agreeing). It is not, however, the sole, or chief factor to be taken into account in determining the objective seriousness of the offence: Wong v The Queen [2001] HCA 64; 207 CLR 584. Rather it is a factor that will be relevant to such a determination but the relevance of which will depend on the circumstances of each case. 17There is no indication in the ROS that the Sentencing Judge gave undue weight to the amount and purity of the cocaine. Indeed at the sentence hearing the applicant's counsel conceded, in my view properly, that the submission that the offence was at the low end of the range of seriousness was foreclosed to him because of the quantity, purity, and concomitant value, of the drug. 18Since the first ground appears to be a conclusion that the Sentencing Judge must have given undue weight to the quantity of cocaine because of the length of the sentence and the role played by the applicant, the question is, in substance, to be determined by resolution of the second ground: namely that the sentenced imposed was manifestly excessive.

The second and third grounds: that the sentence was manifestly excessive and that there was an unjustified disparity between applicant's sentence and that imposed on Lipton 19In the course of the hearing of the application for leave, the applicant's submission that the sentence was manifestly excessive was, in substance, confined to a submission that there was an unjustified disparity between his sentence and Lipton's. Accordingly I will consider the two grounds together, since I did not understand the second ground to be independently pursued. 20The applicant argued that he was entitled to feel a justified sense of grievance because the difference between their respective offences and moral culpability ought to have been reflected in a greater difference in their sentences and that this Court ought intervene to rectify the inconsistency or disparity.

Sentence imposed on Lipton 21Between the date of filing of the application for leave to appeal, which contained the second ground, and the hearing of the application, Lipton pleaded guilty to two offences and was sentenced by the Sentencing Judge as follows: Date of offence Offence Max penalty SNPP Sentence, taking into account 25% discount for plea and special circumstances Undiscounted sentence 22 April 2009 Supply a large commercial quantity of a prohibited drug, 586.9 g ecstasy: DMTA s 25(2) Life 15 years 6 years commencing 21 May 2009 and expiring on 20 May 2015, with a non-parole period of 3 years expiring on 20 May 2012 8 years 21 May 2009 Supply a large commercial quantity of a prohibited drug, 1.905 kg of cocaine: DMTA s 25(2) Life 15 years 7 years and 6 months, commencing 21 November 2009, and expiring on 20 May 2017 10 years

22Lipton was thus sentenced to an overall term of imprisonment of 8 years with a non-parole period of 4 years and 6 months. His undiscounted sentence for supplying a large commercial quantity of cocaine was 10 years; the applicant's undiscounted sentence for possession of a large commercial quantity of cocaine was 7 years. 23The Sentencing Judge accepted that Lipton was not an addict and was engaged in drug supply for the purposes of profit. 24Lipton gave evidence at his own sentence hearing. The Sentencing Judge said of Lipton, at [54]-[56]: "He sought to claim that his mind was in turmoil and he supplied drugs to the undercover police officer because of the turbulent nature of his relationship with MB [his erstwhile girlfriend] but he agreed that he was not pressured by the undercover police officer to supply the drugs. He agreed to supply the drugs of his own accord. There is no doubt, however, in my mind that he would not have embarked on the providing of thirty ounces of cocaine except for the fact that the officer sought that amount of cocaine. During the conversations with the officer, it seemed to be made clear to me that this was much more than he had ever supplied before. In a very real sense, he involved himself in the large commercial supply of cocaine because the officer asked him to supply it and a similar conclusion can be reached with regard to the supply of MDMA [methylenedioxymethamphetamine]. The Crown did not seek to contradict the offender by calling evidence from the undercover police officer or from MB. It could have done so and I can only conclude that calling either of these witnesses would not have advanced case the Crown was seeking to make." 25The Sentencing Judge, who had the advantage of seeing and hearing Lipton give evidence at the sentence hearing, said, at [60]: "Ultimately I have come to the conclusion that I should regard his drug dealing as serious but not as serious as it would have been if no explanation had been given about his involvement. In my opinion these offences should not be regarded as meriting very severe punishments." 26It is apparent from the ROS that the Sentencing Judge accepted Lipton's evidence that he had been, in substance, lured into a different league of drug-dealing than that with which he had previously been involved, by an undercover police officer and that this was an effective cause of his commission of the offences to which he had pleaded guilty. 27In R v Taouk (1992) 65 A Crim R 387 at 403, Badgery-Parker J, with whom Clarke JA and Abadee J agreed, said: "...the real thrust of the decisions is that even where the conduct of the police was regarded by the court as within the bounds of acceptable police procedures, nevertheless if there was a possibility that the offence might not have been committed had the police not in some way facilitated it, that might be regarded as a matter which diminished the culpability of the offender." 28Accordingly, The Sentencing Judge was entitled to regard the objective seriousness of the offences committed by Lipton as being diminished by the actions of the undercover police officer who brought them about.

Applicable principles 29The plurality (French CJ, Crennan and Kiefel JJ) in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [28] (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." 30The plurality in Green & Quinn at [31]-[32] 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. 31The applicant conceded that Lipton was not a co-offender since there was no evidence that the drugs involved in the supply by Lipton included those which were the subject of the charge to which the applicant pleaded guilty. However, he relied on the following passage in Green & Quinn, at [30]: "In Lowe v R ([1984] HCA 46; 154 CLR 606) and in Postiglione v R ([1997] HCA 26; 189 CLR 295) 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 R ([2010] NSWCCA 60; 77 NSWLR 540), 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." 32On the basis of this passage, the applicant argued, correctly, that questions of parity and consistency are to be determined by reference to substance rather than form, and that the principles applied to the applicant and Lipton such that a comparison between their sentences was warranted to determine whether there was an unjustified disparity.

A comparison between the applicant's sentence and Lipton's 33If one removes the effect of the discount, which is a matter entirely within the discretion of the Sentencing Judge, and has regard only to the offences concerning cocaine, the 10 year term of imprisonment imposed on Lipton, was 43% greater than the 7 year term imposed on the applicant. Special circumstances were found in respect of both Lipton and the applicant. The proportion the non-parole period bore to the total overall sentence (for all offences) was 56% in the case of Lipton and 40% in the applicant's case. The applicant's non-parole period was 55% of Lipton's. 34As referred to above, the sense of grievance must be judged by reference to objective criteria. When considering the factors germane to the sentencing of those knowingly concerned in the importation of heroin, the plurality in Wong considered the matters of particular relevance to such offences and said, at 607-608: "In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case. Those features will also include those that differentiate between particular cases: the quantity of drug involved, the offender's knowledge about what was being imported, the offender's role in the importation, the reward which the offender hoped to gain from participation. All these are matters properly to be taken into account in determining a sentence." 35Although the offences to which the applicant and Lipton pleaded guilty are different from those under consideration in Wong and different from each other, they have in common that general deterrence and punishment are important considerations in sentencing offenders and will generally outweigh subjective circumstances, particularly in the determination of the total sentence. In R v Shi [2004] NSWCCA 135, Wood CJ at CL, with whom Spigelman CJ and Simpson J agreed, referred, at [34] to: "...the well recognised principle that the culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse: R v Le Cerf (1975) 13 SASR 237 and R v Laurentio and Becheru (1962) 63 A Crim R 402." 36No challenge is made to the findings of the Sentencing Judge as to the applicant's role. The differences between the sentences imposed on the applicant and on Lipton were substantial, both as to total term and as to non-parole period. While the applicant may harbour a sense of grievance about the relationship between his own sentence and Lipton's, I do not consider his sense of grievance to be justified by any identified objective criteria. 37I propose the following orders: (1)Leave to appeal granted. (2)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: 04 February 2013

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