R v Farrugia

Court of Criminal Appeal (NSW)|2022-05-06|Before: Price J, Adams J

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2017/268880 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 22 October 2020 Before: Graham ADCJ File Number(s): 2017/268880

Judgment

BASTEN AJA: The applicant, Brian Farrugia, seeks leave to appeal from a sentence imposed on him in the District Court on 22 October 2020 with respect to one count of manufacturing a large commercial quantity of methylamphetamine (3.6kg) and a further count of supplying a large commercial quantity (11kg) of that drug.
The applicant entered pleas of guilty with respect to both counts and was sentenced by Graham ADCJ to imprisonment for a period of 8 years and 7 months, with a non-parole period of 4 years and 9 months. The sentence was backdated to commence on 22 September 2018, so that the non-parole period will expire on 21 June 2023.
The applicant seeks to raise two grounds of appeal, namely, (i) that his sentences involved unjustifiable disparity when compared with the sentences imposed on his co-offender, Christopher Nix, and (ii) that the judge erred in finding the applicant's role in the offending was higher than that of his co-offender.
The co-offender, Mr Nix, was sentenced by the same judge some 2 years earlier, on 16 October 2018. The timing of the two sentencing proceedings resulted from Mr Nix entering early guilty pleas, at a stage when the applicant was proposing to go to trial. The applicant's pleas were entered at a later stage, one consequence being an unchallenged disparity in the discounts pursuant to s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). That factor was itself sufficient to demonstrate a justifiable basis for the disparity in the sentences imposed for each individual offence.

Finding as to respective roles of offenders

It is correct, as the applicant contends, that the sentencing judge found that the applicant was "slightly more culpable" than his co-offender, Mr Nix, but "not substantially more so". The applicant contended that the heavier sentence was not justified by the slight difference in culpability. That submission is problematic for a number of reasons. First, in sentencing Mr Nix, the judge found that "the role of the offender was a relatively minor one", [1] stating that the offending fell "just below the mid-range of seriousness". [2] The latter finding was made with respect to the applicant, [3] but the former, comparative, assessment was not repeated.
Secondly, senior counsel appearing for the applicant at his sentencing hearing conceded in written submissions that it was open for the court "to find that Mr Farrugia had a slightly larger role than Mr Nix", indicating the basis for that concession. In oral submissions, counsel was a little more guarded, noting that the applicant "may well have been above, in relation to role, the offender [Nix]", but added the qualification that the differential would be slight. The trial judge appears to have accepted the latter submission.
Thirdly, for reasons which will be explained shortly, the difference in roles appears to have had a very limited impact on the sentencing exercise. Thus, to the extent that the applicant played a slightly greater role in the offending conduct, that finding was open on the facts and would not warrant a grant of leave to appeal. Leave should be refused with respect to ground 2.

Disparity in sentence terms

As has been noted, the primary explanation of the disparity between the sentencing of the co-offenders was attributable to the different discounts permitted. The calculation of the sentences may be explained as follows.
First, each offender was charged with the same offences, namely the manufacture and supply of a large commercial quantity of methylamphetamine. Each offence carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years. With respect to the applicant, an additional charge on a form 1, of dealing with money ($37,800 cash) being reasonably suspected of being proceeds of crime, was taken into account in relation to count 2. That offence carried a maximum penalty of 3 years' imprisonment. Despite that, the applicant was given the same sentence in respect of each of counts 1 and 2. (As will be seen, the additional offence affected the degree of accumulation.)
For each offence the judge stated that he adopted the same notional starting point for both the applicant and the co-offender, namely 9 years and 4 months (112 months). The 25% discount allowed in respect of Mr Nix reduced each sentence to one of 7 years. A 15% discount applicable to the applicant produced sentences of 7 years 11 months, which the judge rounded down to 7 years 10 months. At that stage, there was no relevant disparity.
Secondly, there was a question as to the appropriate level of accumulation of the sentences. In sentencing Mr Nix, the judge had permitted an accumulation of only 6 months, giving an overall sentence period of 7 years and 6 months. With respect to the applicant, the second sentence was accumulated by a period of 9 months, giving an overall sentence of 8 years and 7 months. The additional period of accumulation (3 months) was explained by "having regard to the form 1 matter which is to be taken into account on count 2." [4] . Once it is accepted that some greater level of culpability could be ascribed to the applicant, the increased period of 3 months, in an overall sentence of more than 8 years, demonstrated no error.
It follows that the complaint of disparity must rest on the fact that the applicant received a non-parole period of 4 years 9 months, as compared with a non-parole of 3 years 6 months imposed on his co-offender.

Disparity in non-parole periods

In dealing with the objective seriousness of the offending, the judge expressly addressed that of both co-offenders, [5] concluding: "Whilst it might properly be concluded that the role of this offender was slightly more culpable than that of his co-offender, Mr Nix, it is not substantially so."
In dealing with the subjective factors, [6] the judge returned to the question of parity. [7] He noted a number of points of difference between the applicant and the co-offender. First, he addressed motive. In relation to Mr Nix, the judge accepted that his methylamphetamine addiction played a major causal role in the charges against him. [8] With respect to the applicant, the judge noted that a psychologist's report included statements by him denying addiction, but claiming that he was motivated by the need to settle a drug debt of some $40,000. He also claimed that the money, subject of the form 1 offence, was lawfully acquired. The judge stated: [9] "As I indicated it is difficult to accept the first of those proffered motives [to settle his drug debt] given his claim that he lawfully acquired money which was more or less equivalent to the amount which he said he owed as a drug debt. It is difficult in the circumstances to form any clear view as to what his motive was, even on the balance of probabilities."
Secondly, although the applicant had a history of physical injuries, and had donated a kidney to his younger brother, which the judge accepted might make him more vulnerable in a custodial setting, he did not have the mental health issues which had resulted in the sentence imposed on the co-offender being "of lesser duration than might otherwise have been appropriate". [10]
Thirdly, he referred to rehabilitation. With respect to the applicant, the judge placed "some weight" on the submission that he was "a long way down the path towards rehabilitation". [11] The judge then noted concerns, "in particular, his immaturity, impulsivity and the tendency to, in the past at least, associate with those who do not have a prosocial influence on him." The judge expressed ongoing concerns in relation to the future, concluding: [12] "It is somewhat difficult to evaluate his prospects in circumstances where he did not regard his use of illicit substances as being such as to cause him to be dependent on them, but he does seem to have had a history of being able to experience significant periods of abstinence, the risk is perhaps a more general risk that those personality features might prompt him to become involved in drugs again."
The judge's conclusion with respect to rehabilitation was that he had "good prospects of rehabilitation". [13] By contrast, the judge referred to the co-offender having been found to have "very good, if not, excellent prospects of rehabilitation". [14]
There were, therefore, a number of features of their respective cases which favoured the co-offender.
As the sentencing judge correctly stated: [15] "In terms of the parity principle, the court does not simply go through a checklist of the factors which are present in the case of one offender and present or not present in the case another offender. Nonetheless, the court, in arriving at an appropriate sentence for the offender, must give weight to the sentence which is ultimately imposed on the co-offender and not impose any burden on the present offender beyond that which is justified by any difference in the circumstances. It seems to me that overall there are a number of similarities between the two offenders. Whilst this offender has a slightly greater involvement in one aspect of the case, there are two aspects of Mr Nix's involvement which are described in the present agreed facts which would suggest that he was not simply acting in lockstep with this offender at all times."
In the result, the non-parole period imposed on Mr Nix was 3 years 6 months (42 months) with a total sentence period of 7 years 6 months (90 months). The ratio of the non-parole period to the head sentence was 46.7%. With respect to the applicant, the non-parole period was 4 years 9 months (57 months) and the overall term of imprisonment 8 years 7 months (103 months). The equivalent ratio for the applicant was 55.3%. While the differential is significant, the subjective considerations justified a degree of disparity. Error is not demonstrated in a sentencing exercise where there are material differences both in the objective seriousness of the offending (including the addition of a form 1 offence in one case) and in the subjective circumstances which warrant a level of disparity, in comparing arithmetically the respective outcomes. Had the applicant's non-parole period been 9 months shorter, the ratios would have been the same. However, there is no doubt that a longer non-parole period was justifiable on the unchallenged findings of the sentencing judge. It was open to the judge to conclude that the element of disparity in the non-parole periods was justified. No error warranting intervention by this Court has been established.

Conclusion and orders

Ground 1 warrants a grant of leave to appeal; as noted above ground 2 does not. However, the appeal must be dismissed. The court should make the following orders: 1. With respect to ground 1, grant the applicant leave to appeal from the sentences imposed on him in the District Court on 22 October 2020. 2. Otherwise dismiss the application for leave to appeal. 3. Dismiss the appeal.
PRICE J: I agree with Basten AJA.
N ADAMS J: I agree with the orders proposed by Basten AJA for the reasons provided by his Honour. The narrow scope of the applicant's complaint of unjustifiable disparity, ultimately resting on the difference between the respective non-parole periods, renders it unnecessary to recount any additional details regarding the applicant's subjective case or the facts upon which he was sentenced than those identified by Basten AJA in his reasons.

Endnotes

Sentencing Judgment (Nix), 16 October 2018, p 16.
Sentencing Judgment (Nix), p 17.
Sentencing Judgment, p 20.
Sentencing judgment, p 32.
Sentencing judgment at pp 18-20.
Sentencing judgment, pp 20-28.
Sentencing judgment, pp 30-32.
Sentencing judgment, p 30.
Sentencing Judgment, p 28.
Sentencing judgment, p 30.
Sentencing judgment, p 26.
Sentencing judgment, p 27.
Sentencing judgment, p 27.
Sentencing judgment, p 30.
Sentencing judgment, p 31. 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: 18 May 2022

Crimes (Sentencing Procedures) Act 1999(NSW)

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