Smith (a pseudonym) v R [2022] NSWCCA 123

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Smith (a pseudonym) v R [2022] NSWCCA 123 Hearing dates: 27 May 2022 Date of orders: 10 June 2022 Decision date: 10 June 2022 Before: Bell CJ at [1]; Button J at [62]; N Adams J at [63] Decision: 1. Extend the time in which to make the application for leave to appeal from sentence. 2. Grant leave to appeal. 3. Appeal dismissed. Catchwords: SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where applicant and co-offender pleaded guilty to offences in the same terms – where a comparison is drawn between an indicative sentence, noted pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and a sentence imposed on a co-offender for a single offence – the use of indicative sentences as a guide to the application of the parity principle – where the disparity in sentences reflected different levels of moral and criminal culpability SENTENCING – relevant factors on sentence – co-offenders – parity – where co-offender assisted applicant in the manufacture of methylamphetamine – where applicant recruited and paid co-offender to assist in the criminal enterprise – where co-offender had no prior knowledge or expertise in the manufacturing process – where applicant and co-offender pleaded guilty to offences in the same terms – the use of indicative sentences as a guide to the application of the parity principle Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 32, 53A Crimes Act 1900 (NSW) s 193C(1) Criminal Code Act 1995 (Cth) s 307.11 Drug Misuse and Trafficking Act 1985 (NSW) ss 24(2), 25(2) Cases Cited: Afu v R [2017] NSWCCA 246 Daw v R [2017] NSWCCA 327 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 House v The King (1936) 55 CLR 499; [1936] HCA 40 JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 Kadwell (a pseudonym) v R [2021] NSWCCA 42 Lloyd v R [2017] NSWCCA 303 R v Clarke [2013] NSWCCA 260 Thangavelautham v R [2016] NSWCCA 141 Vu v R [2018] NSWCCA 122 Category: Principal judgment Parties: Michael Smith (a pseudonym) (Applicant) The Crown (Respondent) Representation: Counsel: