R v Smith

In this case the applicant and a co-accused entered pleas of guilty to trafficking in dangerous drugs. The applicant was sentenced to 10 years’ imprisonment, which triggered a serious violence offence (“SVO”) declaration under Pt 9A Penalties and Sentences Act 1992 (the “SVO regime”). The co-accused was sentenced to 9 years’ imprisonment with parole eligibility after having served 3 years. Under the SVO regime, the applicant was required to serve 8 years before being eligible for parole, which was 5 years more than the co-accused. One of the grounds of appeal against sentence relied on by the applicant was that the parity principle required a reduction of her sentence to maintain a “just relationship” with the sentence imposed on the co-accused. However, Applegarth J (with whom Morrison JA agreed and with Bond JA giving separate but concurring reasons) held that the disparity was justified as there were relevant differences in age and culpability between the offenders, which were appropriately taken into account by the sentencing judge when applying the parity principle.

Morrison and Bond JJA and Applegarth J

24 May 2022

Background

The applicant and a co-accused were both convicted on their own pleas of guilty of trafficking in dangerous drugs. [22]. A head sentence of 10 years’ imprisonment was imposed on the applicant. [22]. As trafficking in dangerous drugs is a scheduled offence for the purpose of Part 9A Penalties and Sentences Act 1992 (the “SVO regime”), the offence was automatically declared to be a serious violent offence (“SVO”). [22]. This meant that the applicant was required to serve 80 per cent of her sentence of imprisonment before being eligible for parole. [22].

The applicant contended that the sentencing discretion miscarried as a result of a specific error in the application of the parity principle. [25]. This was in circumstances where the co-accused was given a head sentence of 9 years’ imprisonment with parole eligibility after having served 3 years. [25]. The significant disparity, as a consequence of the automatic SVO declaration that applied to the applicant’s sentence only, was that she was required to serve five more years before being eligible for parole. [25].

Whether the sentence imposed on the applicant offended the parity principle

There was “abundant authority” for the proposition that the applicant’s trafficking in dangerous drugs called for a sentence of at least 10 years, even after taking into account her “timely” plea of guilty, as well as other mitigating features. [110]–[114]. The more lenient head sentence of 9 years’ imprisonment imposed on the co-accused took into account two important differences: his relative youth; and his “subordinate” role to the applicant in the criminal enterprise. [115]–[118].

It was submitted that, in any event, the parity principle required a “just relationship” be maintained between the sentence imposed on the applicant and the co-accused. [122]. This, it was submitted, justified a reduction of the applicant’s sentence to one of 9 years’ imprisonment with parole eligibility after serving half of the sentence of imprisonment. [122], [127]. However, Applegarth J considered that such a sentence would be “inappropriately low” in all the circumstances, and had parity not been relevant, a sentence of 12 years or more would have been open to the sentencing judge. [127]–[128].

As Applegarth J observed:

“… The one-year difference, viewed in isolation, is inadequate to reflect the substantial differences in their ages and the roles that they played in the criminal enterprise. Viewed in isolation, the five-year difference in their non-parole periods seem excessive. However, that difference cannot be viewed in isolation, the sentences must be looked at as a whole, and also as the products of principles and statutory provisions that govern parole eligibility dates and which necessitated their guilty pleas being taken into account ‘at the bottom’ (in the case of the [co-accused]) and ‘at the top’ (in the case of the applicant).” [130].

Justice Applegarth held that there was no error in the application of the parity principle. [132]. Justice Morrison agreed. [2]. Justice Bond gave separate, but concurring reasons. [7]–[19].

Disposition

In the result, the application for leave to appeal against sentence was dismissed. [1]–[2], [19], [137].

D Kerr