New South Wales Court of Criminal Appeal CITATION : EG v Regina [2003] NSWCCA 246 HEARING DATE(S) : 19 August 2003 JUDGMENT DATE : 19 August 2003 JUDGMENT OF : Spigelman CJ at 1,16,18; Sully J at 17; Hidden J at 2 DECISION : Leave to appeal granted, appeal dismissed. CATCHWORDS : CRIMINAL LAW - Sentence - supply heroin - substantial commercial enterprise - applicant in a managerial role - whether sufficient discount for plea of guilty, remorse and assistance to authorities - whether unwarranted disparity from sentence passed upon co-offender - whether any lesser sentence warranted in law LEGISLATION CITED : Criminal Appeal Act PARTIES : EG (applicant) Regina (respondent) FILE NUMBER(S) : CCA 60192/03 COUNSEL : S Odgers SC (applicant) D Arnott (Crown) SOLICITORS : Adamson Solicitors (applicant) S E O'Connor (Crown) LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0019 FILE NUMBER(S) : LOWER COURT Dalgleish QC, ADCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60192/03 SPIGELMAN CJ SULLY J HIDDEN J Tuesday 19 August 2003 REGINA v EG Judgment 1 SPIGELMAN CJ: I invite Hidden J to give the first judgment. 2 HIDDEN J: The applicant pleaded guilty in the District Court to a charge of supplying a large commercial quantity of heroin. He also asked the sentencing judge to take into account, on a Form 1, a related offence of supplying a commercial quantity of cocaine. He was sentenced to imprisonment for eleven years and three months to date from 3 August 2000, when he was taken into custody, with a non-parole period of eight years and six months. He seeks leave to appeal against that sentence. 3 The facts are helpfully summarised in the written submissions of the Crown and I do not understand there to be any dispute with that summary of the facts on the part of senior counsel for the applicant. It is sufficient to say that the applicant was involved, at a managerial level, in a major drug trafficking enterprise over a period of some four months. He was not the principal in the enterprise but his role does not appear to have been very much less than that of a principal. The drugs were actually sold by other offenders but they were supplied to those offenders by the applicant and he maintained a supervisory role over them. 4 Over the relevant period about four kilograms of heroin were sold and a very substantial quantity of cocaine. On any view of it the two offences, and in so saying I include the cocaine offence on the Form 1, were very serious. 5 The learned sentencing judge was of the view that the appropriate starting point for sentence was fourteen and a half years. However, his Honour had regard to the applicant's plea of guilty and his finding that the applicant had exhibited a degree of remorse. He also had regard to some assistance which the applicant had rendered to the authorities. The evidence of that was before his Honour in the form of a sealed envelope from the New South Wales Crime Commission. 6 In the light of the plea, the remorse and the assistance, his Honour reduced the sentence which he would otherwise have passed to eleven years and three months, a reduction of about twenty-two and a half per cent. 7 The document from the New South Wales Crime Commission records that much of the information supplied by the applicant was already known to the Commission. Other information was of such a general nature that it was unable to be verified. Nonetheless, the Commission passed such information as could be verified on to other law enforcement agencies and accepted that the applicant's attempts to provide assistance were genuine. It should be said, however, that the applicant declined to give evidence against the principal in the drug distribution enterprise for which he stood for sentence. 8 One of the applicant's co-offenders, one of the persons actually involved in the sale of the drugs, was also dealt with by his Honour and he appealed to this Court. For reasons which the we have found persuasive, the name of the applicant will not be published and, for the same reasons, it is preferable not to name the co-offender. That offender had been sentenced by his Honour to imprisonment for ten years with a non-parole period of seven and a half years. This Court reduced the non-parole period of that offender to six and a half years, in large part to achieve a measure of parity with yet another offender, also one of the sales persons who had been dealt with. The co-offender's antecedents were relevantly similar to that of the present applicant and he had, like the present applicant, pleaded guilty. The Court which heard that appeal expressed the view that his plea of guilty should merit a reduction of something of the order of twenty per cent. He, unlike the applicant, had not provided assistance to the authorities. It should be noted that the non-parole period which this Court fixed in respect of that offender was about sixty-five per cent of the head sentence. 9 Mr Odgers SC for the applicant submits, firstly, that his Honour's overall reduction of the sentence otherwise appropriate by some twenty-two and a half per cent for the factors to which I have referred is simply inadequate. Mr Odgers submits that that is so when the matter is viewed in isolation, but he submits that that view is reinforced by the view of the Court of Criminal Appeal who dealt with the co-offender, that Court expressing the view that that offender was entitled to a discount of twenty per cent purely for the plea of guilty, without the added factor of assistance to the authorities. 10 Mr Odgers also submits that the present applicant would have a justified sense of grievance when his non-parole period is compared to that imposed upon the co-offender by this Court. In the present case the sentencing judge found no special circumstances and fixed a non-parole period in accordance with the normal statutory proportion, whereas, as I have said, the co-offender had the benefit of a non-parole period which was only some sixty-five per cent of the head sentence. 11 In so far as this application turns upon a comparison of the disposition of this applicant and that of the co-offender, relying upon the familiar principles relating to parity of sentence, I am unpersuaded that this Court should intervene. The fact is that the role of the present applicant was very much more serious than that of the co-offender and an assessment of the present applicant's criminality bore not only upon the appropriate head sentence but, of course, also on the non-parole period. 12 In so far as the application asserts generally that his Honour's discount of some twenty-two and a half per cent for the factors to which I have referred was inadequate, I must say that, on the face of it, that submission has some force. 13 The applicant's assistance to the authorities was by no means as significant as one sees in some cases but it was of some significance. A discount of some twenty-two and a half per cent is certainly modest as a recognition of that assistance and the applicant's remorse, as his Honour found it, and of the plea of guilty. It certainly would have been open to his Honour to have allowed a greater reduction of sentence for that combination of factors. On the other hand, it must be said that it would equally have been open to his Honour to have fixed a considerably higher starting point for sentence before any such reduction was made. 14 The view which I have reached at the end of the day is that, within the terms of s 6(3) of the Criminal Appeal Act, no less a sentence than that which his Honour passed is warranted in law. I say so because of the obvious gravity of the offence on the indictment, coupled with the offence on the Form 1, and the very significant role which the applicant had to play in that episode of criminality. 15 It is for those reasons that I am of the view that leave to appeal should be granted but I would dismiss the appeal. 16 SPIGELMAN CJ: I agree. 17 SULLY J: I too agree. 18 SPIGELMAN CJ: The orders are as indicated. ********** Last Modified: 09/10/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.