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[2024] NSWCCA 10
Court of Criminal Appeal (NSW)
2023-11-27
Davies J, Button J, Weinstein J, Weinstein JJ
Original judgment source is linked above.
HEADNOTE [This headnote is not to be read as part of the judgment] The applicant pleaded guilty to one count of trafficking a commercial quantity of cocaine contrary to ss 302.2(1) and 311.2 of the Criminal Code 1995 (Cth) (the Code). One count of dealing with money contrary to s 400.9(1A) of the Code was placed on a s 16BA schedule. The applicant was knowingly involved in a joint criminal enterprise involving the importation of cocaine in packages addressed to multi-tenanted or commercial or residential addresses. The applicant's two co-offenders were delivery drivers for logistics companies. They falsely scanned consignments as "delivered" during their delivery runs, retained possession of the consignments and later delivered them to the applicant. On 28 October 2022, the applicant was sentenced in the District Court by Coleman SC DCJ to a sentence of 6 years imprisonment with a non-parole period of 3 years and 8 months. One co-offender was sentenced by Coleman SC DCJ at the same time as the applicant to a term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 9 months. The other was sentenced later by J Smith SC DCJ to a term of imprisonment of 4 years and 7 months with a non-parole period of 2 years and 6 months. Upon sentencing the applicant, Coleman SC DCJ remarked that the applicant would receive a slightly longer sentence than his co-offender because the differences in their roles and culpability were not such that the difference in their sentences would be significant. The applicant appealed against his sentence on the single ground that there was a marked disparity between the sentence imposed on him and the sentences imposed on his co-offenders such as to give rise to a justifiable sense of grievance. The Court (Davies, Button and Weinstein JJ) held, allowing the appeal and resentencing the applicant: 1. The differences between the subjective cases and individual roles of the applicant and his two co-offenders were not significant enough to produce a great difference in their sentences. The degree of disparity between the sentences imposed by the primary judge was unreasonable or irrational and indicates that the sentencing discretion miscarried: [57] per Weinstein J (Davies J agreeing at [1]; Button J agreeing at [2]). 2. On resentence, adopting the sentencing judge's findings on parity, the applicant should receive a slightly longer sentence than his co-offenders. Taking into account the matter on the s 16BA schedule and after applying a 25% discount, the applicant is sentenced to 4 years and 10 months imprisonment with a non-parole period of 3 years: [60] and [61] per Weinstein J (Davies J agreeing at [1]; Button J agreeing at [2]).
JUDGMENT
Background
Other relevant findings by Judge Coleman SC and Judge J Smith SC
The sentencing of the applicant and the co-accused
Applicant's submissions
Respondent's submissions
Principles
Consideration
Resentence
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Vujinovic
R
(2011) 244 CLR 462
(1984) 154 CLR 606
(1999) 195 CLR 665