Regina v Tipler [2000] NSWCCA 382

New South Wales Court of Criminal Appeal

CITATION : Regina v Tipler [2000] NSWCCA 382 FILE NUMBER(S) : CCA 60627/99 HEARING DATE(S) : 2/8/00 JUDGMENT DATE : 2 August 2000

PARTIES : The Crown Daniel Henry Tipler (Appl) JUDGMENT OF : Newman J at 1; Sperling J at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/31/0322 99/31/0323 LOWER COURT JUDICIAL Howie DCJ OFFICER :

COUNSEL : R D Ellis (Crown) L Flannery (Appl) SOLICITORS : S E O'Connor (Crown) T A Murphy (Appl)

LEGISLATION CITED : Drug Misuse and Trafficking Act 1986 R v Lowe (1984) 154 CLR 606 CASES CITED: R v Postiglione (1997) 189 CLR 295 R v Doggett, unreported, Court of Criminal Appeal, 24 March 1997 DECISION : Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

60627/99 NEWMAN J SPERLING J

WEDNESDAY, 2 AUGUST 2000

REGINA v Daniel Henry TIPLER

JUDGMENT

1 NEWMAN J: This is an application for leave to appeal against a sentence passed in the Port Macquarie District Court by Howie DCJ. Before his Honour the applicant had pleaded guilty to supplying a prohibited drug on an ongoing basis contrary to the provisions of s 25A(1) of the Drug Misuse and Trafficking Act 1986. The maximum penalty prescribed by that section is imprisonment for twenty years and/or a fine of three thousand five hundred penalty units. That section is a recent addition to the Drug Misuse and Trafficking Act by the legislature and it is plain from the maximum penalty available that it is an offence which stands high in the criminal calendar of this State. 2 In addition to pleading guilty to the s 25A(1) offence, the applicant asked his Honour to take into account seven matters on a form one, they involve a number of drug matters. In that event, his Honour sentenced the applicant to a head sentence of five years, being constructed by way of a minimum term of two years and nine months and an additional term of two years and three months, his Honour finding special circumstances. 3 The substance involved in the s 25A charge was heroin. The applicant had been apprehended as a consequence of an undercover police operation carried out in the Tamworth area. The undercover operation resulted in the applicant being tape recorded as to his participation in drug trafficking in the Tamworth area and his plea of guilty, which his Honour quite properly took into account in the sentence, was perhaps in the face of a very powerful Crown case in which it would seem he would have great difficulty in raising any defence. 4 The nub of the appeal sought to be brought by the applicant is that he claims that he has a justifiable sense of grievance in that his Honour sentenced another person engaged in the same drug operation in Tamworth to a lesser sentence, a lady by the name of Carter. 5 Miss Carter's matter was in fact dealt with at the same time as that of the applicant by his Honour. His Honour sentenced her to a head sentence of three years and six months consisting of a minimum term of two years and an additional term of eighteen months. 6 In both cases his Honour delivered very detailed remarks on sentence involving a close analysis of the part played in the drug operation in Tamworth by both parties. In relation to the positions held within that organisation by the applicant and Miss Carter, his Honour made this observation: "A major factor, however, in the sentencing of the prisoner, as opposed to the sentencing of Miss Carter, is the fact that I have already referred to in relation to my determination of where Miss Carter was in the hierarchy of the drug trafficking organisation in Tamworth and where, in my view, the prisoner stands. He stands significantly higher in that hierarchy than Miss Carter, as I have already attempted to indicate, and in my view that must be reflected in a substantially higher sentence than that imposed upon Miss Carter, notwithstanding the matters which could be put one way or the other to suggest there is parity between them or there is disparity between them." 7 In other words, his Honour found the present applicant to hold a position much higher in the hierarchy than Miss Carter, whom when he sentenced indicated she was, as it were, one step above, a mere recipient of drugs for personal use, a type of street salesperson. In fact in relation to the matters for which Miss Carter pleaded guilty it was the applicant who took part with others in the supply of drugs to her for resale. 8 It is not submitted that his Honour erred in considering that the applicant operated at a higher level in the hierarchy than Miss Carter. What is submitted is that in Miss Carter's case, as was the case with the present applicant, matters were taken into account on a form one. In her case a very serious drug offence was attributed to her, namely the supply of caps of heroin over a period of three or so months to a value of some three hundred and fifty thousand-odd dollars. 9 Secondly, the sentence imposed upon Miss Carter by his Honour was backdated to the time of her apprehension. This, as his Honour stated in his remarks on sentence when dealing with Miss Carter, was an exercise of considerable leniency on his behalf. The reason for that is that Miss Carter at that time, that is at the time of her apprehension, was in breach of the recognisance, to use his Honour's language in relation to Miss Carter: "I intend to date the sentence back to the time she went into custody. And that is to some extent to give her a windfall because in fact she is serving a sentence of three months for the breach of recognisance. I do that because this is part of the continuing course of conduct in which she was involved over the period of time and because if I made it accumulative, as I would be entitled to do, I think that it might, in totality, end up as a heavier sentence than was otherwise justified." 10 It is on these two aspects of his Honour's sentencing of Miss Carter that the applicant relies in submitting that he has a justifiable sense of grievance. 11 The principles relating to the concept of a justifiable sense of grievance where co-offenders have been sentenced have been dealt with by the High Court in R v Lowe (1984) 154 CLR 606 and R v Postiglione, (1997) 189 CLR 295. In Postiglione at 301 the Court observed: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated." 12 Later on the same page: "Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." 13 In R v Doggett, unreported, Court of Criminal Appeal, 24 March 1997, Sully J, with whom I agreed, observed as to the concept of parity on page 4 of his judgment: "What has to be demonstrated by the person complaining on the grounds of parity is, not that he feels aggrieved, but that a reasonable mind looking overall at what has happened, would see that his sense of grievance is a justified one." 14 Here there is no question that if the matter was standing alone, meaning that Miss Carter had not been a co-offender, the sentence passed by his Honour fell squarely within the ambit of his discretion. There is no suggestion that in fact his Honour erred in concluding that the applicant stood high in the hierarchy of the particular drug operation with which both he and Miss Carter had been involved. The discrepancy between the sentences is, in my view, reflective of the difference in position within the organisation occupied by the applicant and Miss Carter. 15 His Honour in dealing with Miss Carter for the reason I have already adverted to, was of the view he should backdate. Not to backdate would result in utilising the concept of totality in the imposition of a sentence which was too harsh in the circumstances. The applicant here could have no justifiable sense of grievance for his Honour so acting. 16 As far as the more serious offence which was detailed in the form one involving Miss Carter is concerned, the fact is that there was no evidence to suggest that she was dealing, otherwise than she was in the case before his Honour, namely as a street salesperson. 17 Again, looking at the matter from the position of a bystander with a reasonable mind, in those circumstances the applicant could have no justifiable sense of grievance. I am, therefore, of the view that any appeal brought against his Honour's sentence must fail. Because of the seriousness of the matter to the applicant I would grant leave but would refuse the appeal.