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R v Dang

 

[2018] QCA 331

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Dang [2018] QCA 331

PARTIES:

R
v
DANG, Duy Nghi
(applicant)

FILE NO/S:

CA No 101 of 2018

SC No 292 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 3 April 2018 (Applegarth J)

DELIVERED ON:

30 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

19 October 2018

JUDGES:

Gotterson and Morrison and McMurdo JJA

ORDER:

The application for leave to appeal be refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS – where the applicant pleaded guilty to one count of trafficking in methylamphetamine and heroin over a five month period and two related possession offences – where the applicant was sentenced to a term of 10 years and six months for the trafficking offence – where the sentencing judge consequently declared that the applicant had committed a serious violent offence, so that the applicant must serve 80 per cent of his sentence before becoming eligible for parole – where the applicant was the head of a drug trafficking enterprise – where the applicant arranged for drugs to be transported and supplied to a man called Davenport who then supplied the drugs to users – where Davenport had some “autonomy and managerial prerogatives” but was subordinate to the applicant in the enterprise – where Davenport pleaded guilty to trafficking and was sentenced to a term of nine years and nine months without a declaration of a serious violent offence or a parole eligibility date being fixed – where Davenport will have to serve half of his sentence before becoming eligible for parole – where the sentencing judge appears to have accepted that the parity principle might have applied to increase what would otherwise be an appropriate sentence for the applicant, so that Davenport could not feel a genuine sense of grievance – whether the sentencing judge correctly applied the parity principle in sentencing the applicant – whether the applicant could have a reasonable sense of grievance because of the difference between his sentence and that imposed on Davenport –whether, if the sentencing judge erred, this Court would impose a different sentence on the applicant

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of trafficking in a dangerous drug and two counts of possession of a dangerous drug – where the applicant was sentenced to a term of 10 years and six months for the trafficking offence – where the sentencing judge consequently made a serious violent offence declaration, so that the applicant must serve 80 per cent of his sentence before becoming eligible for parole – where the applicant was aged 38 or 39 at the time of the offending, had a criminal history which did not include any previous convictions for drug offences and had a gambling disorder in remission – where the applicant had a drug habit but said that he had overcome his addiction at the time of sentence – where the applicant occupied a senior position in a large scale drug trafficking enterprise – whether the sentence for the trafficking offence is manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 161A(a), s 161B(1)

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49, cited

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited

Majeed v The Queen [2013] VSCA 40, cited

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited

R v Abbott [2017] QCA 57, cited

R v Ahmetaj (2015) 256 A Crim R 203; [2015] QCA 248, considered

R v Bojovic [2000] 2 Qd R 183; [1999] QCA 206, cited

R v Bost [2014] QCA 264, considered

R v Carlisle [2017] QCA 258, considered

R v Castner [2018] QCA 265, cited

R v Cowie [2005] 2 Qd R 533; [2005] QCA 223, cited

R v Crossley (1999) 106 A Crim R 80; [1999] QCA 223, considered

R v El Hassan (2003) 141 A Crim R 346; [2003] NSWCCA 139, approved

R v Elizalde [2006] QCA 330, considered

R v Feakes [2009] QCA 376, cited

R v Hughes [2018] 2 Qd R 134; [2017] QCA 178, cited

R v Hunt [2016] QCA 297, considered

R v Johnson [2014] QCA 79, cited

R v Markovski [2009] QCA 299, cited

R v McGinniss [2015] QCA 34, cited

R v Meerdink [2010] QCA 273, considered

R v Mikaele [2008] QCA 261, cited

R v Tran (2006) 162 A Crim R 188; [2006] QCA 174, cited

R v Willoughby [2009] QCA 105, considered

COUNSEL:

The applicant appeared on his own behalf

C M Cook for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    GOTTERSON JA:  I agree with the order proposed by McMurdo JA and with the reasons given by his Honour.
  2. [2]
    MORRISON JA:  I agree with the reasons of McMurdo JA and the order his Honour proposes.
  3. [3]
    McMURDO JA:  The applicant pleaded guilty to one count of trafficking in methylamphetamine and heroin in a period between 25 February 2015 and 29 July 2015.  At the same time he pleaded guilty to two offences of the possession of drugs which were effectively parts of his trafficking.  He was sentenced to a term of imprisonment of 10 years and six months on the trafficking charge, with a consequent declaration that he had committed a serious violent offence.[1]  He was convicted but not further punished on the other counts.
  4. [4]
    He applies for leave to appeal against his sentence upon three grounds.  The first is that the sentence was manifestly excessive.  The second is that there is an unacceptable disparity between his sentence and the sentences imposed on his co-offender.  The third is that “the totality principle was unduly considered”.
  5. [5]
    The applicant conducted his trafficking enterprise from Sydney but came to Brisbane regularly to control the operation here.  The Queensland enterprise was managed by a co-offender, Douglas Davenport.  The applicant arranged for drugs to be stored inside cars which were then transported from Sydney to Brisbane, where the drugs were removed by Davenport and another man called Rowe.  Davenport then supplied the drugs to regular users on a wholesale basis, including to a man called Cao.  The applicant arranged for two houses to be used by Davenport, one where Davenport was allowed to live as a reward for his endeavours, and the other which was a vacant house used to store the cars and the drugs.  Davenport also received from the applicant some cash for living expenses and quantities of heroin to satisfy Davenport’s own addiction.  The applicant and Davenport spoke almost daily, with Davenport reporting on the progress of his sales and payments which were due from customers.
  6. [6]
    On 28 July 2015, police executed a search warrant at the applicant’s house in Sydney, where they found more than $11,000 in cash.  On the same day they executed a search warrant at the house in Brisbane where the applicant would usually stay, and at which the applicant was then present.  In his bedroom they found four mobile phones and in his pocket was $4,900 in cash.  He was arrested and declined to participate in a recorded interview with police.
  7. [7]
    Again on 28 July 2015, police executed a search warrant at the house to which the cars were delivered from Sydney.  That house was unoccupied.  Police found various items used for packaging quantities of drugs, together with a clip seal bag containing material which was a common “cutting” agent for methylamphetamine and heroin.  In a door trim of a car parked in a garage at that place, police found a vacuum sealed bag containing a white crystalline substance, which contained 428.2 grams of methylamphetamine with a purity percentage of 74.9 per cent.  In another door trim of the same vehicle, they found a pillow case containing 13 cylindrical pellets, of a total weight of 349.56 grams and containing 213.22 grams of heroin.
  8. [8]
    The sentencing judge described the applicant as “the head of a drug syndicate that operated in Queensland … in terms of facilitating supplies to Davenport and others who occupied a more subsidiary role in the organisation.”  His Honour said that the applicant “had a close management role” and that “the money that was derived from this business was sent back to you, secreted inside cars that would be put on transporters and sent to Sydney.”  The judge said that the contents of intercepted telephone messages suggested that whilst Davenport “had some autonomy and managerial prerogatives, he looked to [the applicant] and would repatriate money to [the applicant]”.  His Honour described this enterprise as “a large operation, dealing in large quantities of drugs and substantial quantities of money” and the applicant’s position as being “at a senior level in the business”.
  9. [9]
    The applicant was born in 1976 in Vietnam.  He was aged 38 or 39 at the time of the offending and was aged 41 when sentenced.  The conditions of his early childhood were very harsh.  His parents left for Australia as refugees, taking his younger siblings but leaving the applicant and his older siblings in Vietnam in the care of others.  He completed only four years of school before going to work.  He was able to join his parents in Australia in 1991.  He met his wife in 1999 and they have three children.  A business venture of his wife’s was unsuccessful, and in what the sentencing judge described as “a foolish attempt to retrieve matters”, the applicant began to gamble heavily.  At the same time he resorted to drug use, smoking methylamphetamine to deal with his anxiety and possible depression.  He has been diagnosed with a substance use disorder, a gambling disorder in remission and a depressive illness.  Nevertheless, the judge observed, the applicant had been able to operate his trafficking business “in a fairly sophisticated way”.
  10. [10]
    The applicant had a criminal history which relevantly included offences of inflicting grievous bodily harm and burglary, for which he was sentenced in the Supreme Court of the Australian Capital Territory in 1996 to a period of imprisonment totalling nine years with a non-parole period of four years.  He had no previous convictions for drug offences.
  11. [11]
    The applicant spent most of the time between his arrest in 2015 and his sentencing hearing in April 2018 on bail.  During that time the applicant did not re-offend.  His instructions to his lawyers at the sentencing hearing were that he had overcome his drug habit, although there was no evidence of drug tests to verify that statement.  The judge said that he was prepared to accept that the applicant had taken steps towards his own rehabilitation, which was to his credit, and in this period the applicant been employed.
  12. [12]
    At the sentencing hearing, the prosecutor described the applicant’s position as being “effectively at the apex of … the Queensland syndicate”.  She disavowed a suggestion that the applicant was “a major player in New South Wales”.  The prosecutor referred to a report by a psychiatrist who had recently interviewed the applicant, and to the relevant history as related to him by the applicant.  The psychiatrist had there recorded the applicant’s statement that “he denied being the principal of the operation, and said that he was a middle man trying to pay off debts to his own suppliers.”  The prosecutor said that nevertheless “it is quite appropriate to lay blame [on the applicant] as the principal of the operation in Queensland because he was the supplier of the drugs to Mr Davenport and Mr Rowe”.  As to whether the applicant was a drug user, the prosecutor acknowledged that in the intercepted telephone calls there was evidence of the applicant speaking “in a very slurred way”.  Nevertheless, it was submitted, the applicant was able to fully understand the enterprise in which he was participating, and “despite his addiction, he was able to, in fact, continue and amass … a lucrative business over a relatively short period of time”.
  13. [13]
    The prosecutor referred to the sentence which Davenport had received (from another judge).  Davenport pleaded guilty to trafficking in methylamphetamine and heroin in a period from 15 January 2015 to 29 July 2015, for which he was sentenced to a term of nine years and nine months, without a declaration of a serious violent offence or a parole eligibility date being fixed.  In Davenport’s case, the sentencing judge said that he would have imposed a sentence of 10 and half years, but for the need to allow for a period of 261 days which Davenport had spent in custody but which could not be declared.  For that reason the head sentence was reduced to nine and half years, providing what that judge described as the significant advantage of removing the necessary declaration of a serious violent offence.  Davenport had previous convictions for drug offences, although not as serious as his trafficking offence.  Davenport had committed further offences whilst on bail for his trafficking charge, for which he received cumulative terms which increased his overall period of imprisonment by two years.
  14. [14]
    In the present case, the prosecutor submitted that because the applicant’s role was “superior to that of Mr Davenport”, it followed that the applicant’s sentence should exceed 10 years.  This was said to follow from an application of the parity principle, for which Green v The Queen[2] was cited.  Further to that submission, the prosecutor said that a sentence of more than 10 years was supported by a number of judgments in this Court, being R v Ahmetaj,[3] R v Feakes,[4] R v Tran,[5] R v Johnson,[6] R v Willoughby[7] and R v Markovski.[8]
  15. [15]
    The applicant’s then counsel submitted that the applicant should be sentenced upon the basis that his role was “pretty much on equal footing to [Davenport]”.  He conceded that the conversations evidenced directions being by the applicant to Davenport, but submitted that Davenport had acted with autonomy and authority within the organisation.  The submission was that there was not a “massive difference between … their roles”.  Consequently, it was contended, the appropriate sentence was that which was imposed in Davenport’s case.
  16. [16]
    In his reasons, the sentencing judge emphasised the seriousness of the offending, the large scale of the operation and the commercial motive of the applicant.  However, his Honour acknowledged that the applicant’s gambling addiction and his own drug use put the applicant in “a different category to someone who wasn’t a drug user or drug dependent and trafficked purely for profit.”  The judge noted that the applicant had spent 53 days in pre-sentence custody which could not be declared, which he said would be taken into account in reducing what otherwise would be the sentence.
  17. [17]
    I have mentioned already the judge’s finding that the applicant was the head of the syndicate that operated in Queensland, thereby distinguishing his position from that of Davenport.  But the judge added that, in the applicant’s favour, he did not have Davenport’s criminal history in drug offending.  As to any question of parity with Davenport’s sentence, the judge said this:

“Considerations of parity and equal justice are important. Neither you nor Mr Davenport should have a legitimate sense of grievance that one of you has been more harshly treated if you were in the same identical circumstances. By the same token, your different circumstances should be reflected in different sentences. As I’ve said, there are some matters in your favour compared to Mr Davenport in terms of his criminal history and his reoffending whilst on bail; however, the totality of his conduct was reflected in an accumulated sentence of 11 years. In your favour, you didn’t reoffend whilst on bail. Nonetheless, it seems to me that you occupied a position somewhat higher in terms of organisation and responsibility to Mr Davenport. He effectively answered to you, notwithstanding some degree of managerial autonomy, and it seems to me that it would give Mr Davenport a legitimate sense of grievance if you received the same drug trafficking sentence that he did of nine years and nine months, given your more elevated role as head of the Queensland syndicate in which he played a managerial role.”

  1. [18]
    The sentencing judge referred to Markovski, Feakes, Ahmetaj and Willoughby, as well as his Honour’s own judgment in R v Carlisle.[9]  The judge said that those authorities “well establish that effective sentences of 11 years are imposed on substantial drug trafficking, even by [a] person who [has] a substantial drug habit or even a drug dependence.”  The judge then said:

“It seems to me, consistent with the authorities and an attempt to achieve parity with Mr Davenport and the other offenders, that had it not been for the presentence custody that I can’t declare, your sentence would be close to 11 years.”

His Honour said that taking into account the pre-sentence custody which could not be declared, the applicant’s “timely” plea of guilty, his steps towards rehabilitation and the circumstances in which he descended into drug use and drug trafficking, the appropriate sentence was that which he then imposed.

  1. [19]
    The first ground of the proposed appeal is that the sentence is manifestly excessive.  The applicant, who was without legal representation in this Court, cited several cases which were said to be comparable to his and which demonstrated that his sentence was beyond any proper range in his case.
  2. [20]
    The first of those cases is R v Bost,[10] in which a sentence of nine years, with a declaration of a serious violent offence, was imposed for an offence of trafficking in dangerous drugs over a period of more than two and half years.  This Court refused leave to appeal, holding that the sentence was not outside the range appropriate for his offending.  That offender was involved in what the sentencing judge described as a “large-scale example of trafficking” and he was the head of a syndicate, controlling a large quantity of drugs and a large amount of money over a long period of time, with a number of people working for him.[11]  The sentencing judge had said that the “notional starting point” should be 15 years imprisonment, which Fraser JA, giving the principal judgment, said could not be regarded as excessive.[12]  The judge had discounted that sentence for various mitigating factors, including the plea of guilty, several references as to the applicant’s character and other factors which were not detailed in the judgment.[13]  The real challenge to this sentence was the declaration of a serious violent offence.  This Court held that the sentence, with that declaration, was not manifestly excessive.  It did not involve determination by the court that a heavier sentence would have been impermissible.
  3. [21]
    The applicant referred to R v Hunt,[14] involving a sentence of seven years for trafficking in methylamphetamine over a period of five months.  That offender was also sentenced to 12 months’ imprisonment for the unlawful possession of a motor vehicle, which was made cumulative upon the seven year sentence.  His parole eligibility date was fixed at the one third mark of his eight year period of imprisonment.  Leave to appeal against sentence was granted but the appeal was dismissed.  The scale of the offending in that case was clearly below that in the present case, as appears from the circumstances of the offending set out in the Court’s judgment.[15]
  4. [22]
    The next of the cases relied upon by the applicant is R v Frith,[16] where the offender was sentenced to six years’ imprisonment for trafficking a schedule one drug over a 10 and a half month period.  This Court reduced the sentence to five years, suspended after the applicant had served three and a half years.  The scale of the trafficking was quite different from that in the present case: it involved some seven supplies of methylamphetamine, on five occasions involving 14 grams and lesser quantities for the others.[17]  In addition the successful rehabilitation from the offender’s drug addiction warranted the reduction of his sentence, especially because the original sentence of six years was imposed in the context of the operation of what was then s 5(2) of the Drugs Misuse Act 1986 (Qld), by which 80 per cent of the sentence had to be served.  The case is not relevantly comparable to the present one.
  5. [23]
    The next of the cases is R v Elizalde,[18] where the offender was sentenced to nine years’ imprisonment for trafficking in MDMA, methylamphetamine and cocaine over a four month period.  The sentencing judge found that he was a “large scale drug dealer”, selling up to five thousand tablets of MDMA at a time for a total turnover of about $100,000.[19]  The issue in this Court was whether the sentencing judge had erred in characterising the scale of the offending in that way, contrary to the submissions for the offender that he had not been dealing in significant quantities of the drugs.  The Court concluded that the judge’s findings had been open.[20]  It rejected the further argument that a sentence of nine years’ imprisonment was manifestly excessive.[21]  Again, it was not said that a higher sentence would have been impermissible.
  6. [24]
    In his oral argument, the applicant also addressed some of the decisions upon which the prosecutor had relied in the sentencing hearing.  He submitted that R v Ahmetaj,[22] in which a 10 year sentence had been imposed, was distinguishable because the scale of the trafficking was higher and because the offender had a criminal history of drug offending.  That offender had trafficked in heroin and methylamphetamine over a period in excess of two years.  He argued that his sentence was manifestly excessive in circumstances which included his psychiatric and psychological difficulties, namely a chronic and complex post-traumatic stress disorder, an associated major depressive disorder and a panic disorder, which would make his time in prison more difficult.  The Court held that the sentence was not manifestly excessive;[23] again it did not determine that a higher sentence would have been beyond the range for that offending.  Most relevantly, the Court there endorsed what was said by Fraser JA in R v McGinniss,[24] to which I will return.
  7. [25]
    The applicant referred to R v Willoughby, and submitted that that trafficking was on a larger scale, as appears from the reference in that case to the applicant having engaged in a transaction involving the supply of five thousand tablets of MDMA worth $117,000.[25]  The sentence there, one of 10 years’ imprisonment, was not disturbed in this Court.  It far from appears that the scale of trafficking in that case was higher than in the present one.
  8. [26]
    The present case does not call for a review of every comparable sentence.  That exercise has been undertaken in other decisions which remain applicable.  In R v Feakes,[26] McMurdo P said:

“My analysis of the comparable cases relied on by Feakes and the respondent in this application demonstrate that, absent extraordinary circumstances, in cases of trafficking in sch 1 drugs on a scale like the present offence, the sentence imposed on mature offenders who have pleaded guilty is ordinarily in the range of 10 to 12 years imprisonment.  Younger offenders without a significant criminal history and with excellent rehabilitative prospects may be sentenced to a slightly lesser term of imprisonment in the range of eight to nine years[.]”

That analysis was applied by the President, with the agreement of Holmes and Fraser JJA, in R v Johnson,[27] and in R v McGinniss, by Fraser JA with the agreement of the other members of that Court.[28]

  1. [27]
    Of course the appropriate sentence in the applicant’s case had to be determined with regard to its particular facts and circumstances.  Nevertheless, given the large scale of this enterprise and the applicant’s position within it, by reference to the yardstick cases, it cannot be said that a sentence of 10 and a half (or 11) years was (or would have been) manifestly excessive.
  2. [28]
    As already noted, Davenport was sentenced to nine years, nine months with no declaration of a serious violent offence.  Consequently his head sentence is nine months less than the applicant’s, which can largely be put down to the period of 261 days in Davenport’s case which could not be declared as pre-sentence custody.  The substantial difference between the two sentences is in the parole eligibility date:  Davenport will have to serve half of his sentence (together with half of the cumulative sentence of two years) whereas the applicant will have to serve 80 per cent of his sentence before being eligible for parole.
  3. [29]
    It should be noted at this point that Davenport applied for leave to appeal against his sentence, in part on the ground that Davenport had a proper sense of grievance that he did not receive a lighter sentence having regard to this applicant’s sentence.  In a separate judgment, the Court (constituted by Morrison, Philippides and McMurdo JJA) has refused leave to appeal against Davenport’s sentence.[29]
  4. [30]
    I have set out above what the judge said in this case about the relevance of Davenport’s sentence.  Encouraged by the argument of the prosecutor, the judge appears to have accepted that the parity principle might be applied to increase what would otherwise be an appropriate sentence, so that Davenport could not feel a genuine sense of grievance.  In my respectful view, that is not a permissible application of the parity principle.  I adopt the reasoning of Smart AJ, with whom Santow JA and Simpson J agreed, in R v El Hassan,[30] who said:

“47 This Court pointed out in argument that the principle of parity had never been and could not be used to increase a sentence on one of two co-offenders.  The principle of parity or proportionality is called into operation where an applicant has a justifiable sense of grievance in that a lower sentence has been imposed upon a co-offender and the difference between the sentence imposed upon a co-offender and that upon the offender is unwarranted or the sentence imposed upon an offender when compared with that imposed upon the co-offender lacks due proportion in that the former is too high.  The principle does not operate to increase a sentence.”

That judgment was followed by the Victorian Court of Appeal in Majeed v The Queen,[31] where Kaye AJA, with whom Neave JA and Lasry AJA agreed, said:

“49 The principles, as to the relevance of a sentence imposed on a co-offender, were usefully stated by the New South Wales Court of Criminal Appeal in R v El Hassan, to which counsel referred.  In essence, the principle of parity is only relevant where a sentence, imposed on an offender by a court, might be such as to engender a justifiable sense of grievance in the offender because a lower sentence had been imposed on a co-offender.  Thus, the correct approach is to determine the appropriate sentence of the offender, and then to ensure that that sentence does not offend the principle of parity, in that it is disproportionate to a sentence imposed on a co-offender.”

Although the point was not raised by the applicant, in my view there was an error in that respect which may have affected the exercise of the sentencing discretion.  However leave to appeal should not be granted if this Court would not impose a different sentence.

  1. [31]
    The applicant’s argument raises a different point, namely whether he could have a reasonable sense of grievance because of the difference between his sentence and that imposed upon Davenport.  The parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.[32]  The sentencing judge found that there was a greater degree of culpability in the applicant’s case and there is no basis for doubting that finding.  Davenport acted under the direction of the applicant and it was to the applicant that Davenport accounted for the proceeds of sale.  The applicant could not complain that he received a heavier sentence.  The question is whether the particular difference between the sentences was unjustified.
  2. [32]
    The complication for the application of the parity principle came from the requirement of s 161B(1) of the Penalties and Sentences Act 1992 (Qld) that a sentence of 10 years or more had to be declared a serious violent offence, with the consequence that the prisoner would serve 80 per cent of the sentence before being eligible for parole.  That provision limited the scope of the sentencing discretion, making it more difficult to impose a sentence that more precisely reflected the different degrees of culpability of the two offenders.  As the Court (de Jersey CJ, Thomas JA and Demack J) said in R v Bojovic:[33]

“[T]he mandatory requirements of s 161B(1) will inevitably interfere with the courts’ capacity to maintain parity and consistency …”.

  1. [33]
    But that is not to say that the effect of s 161B(1) is to be ignored in considering whether there is an unacceptable disparity between two sentences.  In Postiglione v The Queen, Dawson and Gaudron JJ said that the non-parole period, as well as the head sentence, was to be considered in the application of the parity principle.[34]  Subject to the cases about to be mentioned, the difference between the respective non-parole periods here, which is largely attributable to the operation of s 161B(1), would have to be considered in assessing whether there was an unacceptable disparity between the two sentences.
  2. [34]
    But in R v Crossley,[35] in separate judgments Pincus and McPherson JJA said that, in effect, the parity principle was substantially displaced by s 161A and s 161B.  On their reasoning, the principle applied but all that could be compared were the respective head sentences.  Their Honours acknowledged the effect of Postiglione in requiring that “the parity principle requires comparison of the periods of actual custody, as well as head sentences.”[36]  But they said that the principle could be and had been qualified by the statute.  The other member of the Court, McMurdo P, said that it was unnecessary to determine the question because there was no unjustified disparity between the sentences, even considering the non-parole periods.[37]
  3. [35]
    In R v Meerdink,[38] the question was discussed by White JA who found it unnecessary to reach a concluded view.  Her Honour’s judgment suggests that Crossley on this point was followed by the Court in R v Cowie.[39]  Although the reasoning of Pincus JA in Crossley was quoted in the joint judgment in Cowie, this was for a different question because Cowie did not involve any issue about the parity principle.  In her judgment in Meerdink, White JA also referred to R v Mikaele, and to the statement by Mackenzie AJA, with whom Keane JA and Douglas J agreed, that Crossley:[40]

“is authority for the conclusion that, once a serious violent offence declaration is appropriately made in one case but not made in the other, the principle of parity that would ordinarily apply has little scope for operation.”

White JA said that this observation was to be “treated with some caution bearing in mind that there were significant differences between the relative criminality of each of the co-offenders in that case.”

  1. [36]
    More recently, in R v Hughes, it was said that:[41]

Crossley and Mikaele are binding on this Court and no argument was advanced that they should be departed from.  There is no need to resolve whether White JA’s observation on the need for caution is sufficient to moderate the impact of Crossley and Mikaele insofar as they hold that issues of parity are not, by reason only of the statutory rule setting the minimum time to serve, relevant as between [those two offenders]”.

  1. [37]
    In the present case, it is not necessary to decide whether the obiter dicta of Pincus and McPherson JJA in Crossley should be followed, because in my view the disparity between the applicant’s sentence and that imposed upon Davenport, even considering the non-parole periods, was not such as to warrant a reduction in the applicant’s sentence by the parity principle if the applicant’s sentence was otherwise appropriate.  However some observations might be made.
  2. [38]
    The correctness of the majority view in Crossley is founded upon an interpretation of s 161A and s 161B that, by an implication, the parity principle is to be substantially compromised if not entirely excluded.  Accepting that it was open to the Parliament to do so, it is to be expected that such a consequence would have been clearly expressed, because of the importance of the parity principle as an element of the wider principle that there should be consistency in the punishment of offences, which is “a reflection of the notion of equal justice” and “is a fundamental element in any rational and fair system of criminal justice”.[42]
  3. [39]
    As the Court said in Cowie and in the cases referred to in that judgment, it must be accepted that the inevitable declaration of a serious violent offence is relevant in the consideration of what sentence is just in all the circumstances.[43]  Although that consideration is relevant, a court should not impose a sentence below the range for that offending in order to avoid having to make a declaration.  But the operation of s 161A and s 161B according to those principles would not be inconsistent with the operation of the parity principle which permits a sentence to be reduced to a level which, had there been no disparity, would be below the range.[44]  As I have said, the practical application of the parity principle can be affected by these provisions; but it is another thing to say that they were intended to so substantially compromise the application of the principle.
  4. [40]
    Undoubtedly there is a substantial difference between the respective non-parole periods here.  But that is not the only relevant comparison.  There is hardly a difference between the effective head sentences, when it is recalled that there were 261 days of pre-sentence custody which could not be declared in Davenport’s case, but only 53 such days in the present case.  Further, Davenport’s sentences called for the application of the totality principle, because of the cumulative sentences, one of which was a term of two years, in his case.  Overall, the applicant’s sentence was heavier than that imposed upon Davenport, but in my conclusion the different roles of the two offenders, by which one acted under the direction of and was remunerated by the other, did warrant such a substantial difference between the sentences, and it could not be said that the applicant should have a justifiable sense of grievance about the difference.  The argument based upon the parity principle should be rejected.
  5. [41]
    The other ground of appeal was expressed in terms of the totality principle.  But there is no other sentence which was being served by the applicant which, taken in conjunction with this sentence, could have engaged this principle.
  6. [42]
    I return to the question of whether this Court should resentence the applicant because of the apparent error which I have discussed above at [30].  I would not vary the sentence which was imposed, having regard to the scale of this trafficking enterprise and the applicant’s role within it.[45]
  7. [43]
    In my conclusion none of the grounds of appeal is established.  I would order that the application for leave to appeal be refused.

Footnotes

[1] Penalties and Sentences Act 1992 (Qld), s 161A(a), s 161B(1).

[2]  (2011) 244 CLR 462; [2011] HCA 49.

[3]  [2015] QCA 248.

[4]  [2009] QCA 376.

[5]  [2006] QCA 174.

[6]  [2014] QCA 79.

[7]  [2009] QCA 105.

[8]  [2009] QCA 299.

[9]  [2017] QCA 258.

[10]  [2014] QCA 264.

[11]  Ibid at [13].

[12]  Ibid at [22].

[13]  Ibid at [13].

[14]  [2016] QCA 297.

[15]  Ibid at [4] – [5].

[16]  [2017] QCA 143.

[17]  Ibid at [13] – [14].

[18]  [2006] QCA 330.

[19]  Ibid at [8].

[20]  Ibid [13].

[21]  Ibid [21].

[22]  [2015] QCA 248.

[23]  Ibid at [91].

[24]  [2015] QCA 34 at [11].

[25]  [2009] QCA 105 at [17].

[26]  [2009] QCA 376 at [33].

[27]  [2014] QCA 79 at [45].

[28]  [2015] QCA 34 at [11]; see also R v Abbott [2017] QCA 57 at [23] and R v Castner [2018] QCA 265 at [28].

[29]  [2018] QCA 330.

[30]  [2003] NSWCCA 139.

[31]  [2013] VSCA 40 at [49] (footnotes omitted).

[32] Postiglione v The Queen (1997) 189 CLR 295 at 302 per Dawson and Gaudron JJ; [1997] HCA 26; Green v The Queen (2011) 244 CLR 462 at 473 [28] per French CJ, Crennan and Kiefel JJ.

[33]  [2000] 2 Qd R 183 at 191 [34]; [1999] QCA 206.

[34]  (1997) 189 CLR 295 at 302.

[35]  (1999) 106 A Crim R 80; [1999] QCA 223.

[36]  (1999) 106 A Crim R 80 at 86 [25] per Pincus JA and at 88 [34] per McPherson JA.

[37]  Ibid 82 83 [9] – [12].

[38]  [2010] QCA 273.

[39]  [2005] 2 Qd R 533; [2005] QCA 223.

[40]  [2008] QCA 261 at [36].

[41]  [2018] 2 Qd R 134 at [31]; [2017] QCA 178.

[42] Lowe v The Queen (1984) 154 CLR 606 at 610 per Mason J; [1984] HCA 46; cited in Green v The Queen (2011) 244 CLR 462 at 473 [28] per French CJ, Crennan and Kiefel JJ.

[43]  [2005] 2 Qd R 533 at [19]; [2005] QCA 223.

[44] Green v The Queen (2011) 244 CLR 462 at 475 – 476 [33] per French CJ, Crennan and Kiefel JJ.

[45]  See especially R v Feakes supra and the cases which have applied it.

Close

Editorial Notes

  • Published Case Name:

    R v Dang

  • Shortened Case Name:

    R v Dang

  • MNC:

    [2018] QCA 331

  • Court:

    QCA

  • Judge(s):

    Gotterson JA, Morrison JA, McMurdo JA

  • Date:

    30 Nov 2018

Litigation History

No Litigation History

Appeal Status

No Status