New South Wales Court of Criminal Appeal CITATION: Jaskierski v Regina [2007] NSWCCA 168 HEARING DATE(S): 12 June 2007 JUDGMENT DATE: 19 June 2007 JUDGMENT OF: Hodgson JA at 1; Grove J at 2; Simpson J at 3 DECISION: Leave to appeal granted. Appeal dismissed. CATCHWORDS: CRIMINAL LAW – SENTENCING – supply heroin – plea of guilty – parity – joint participation in enterprise LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s 44(2) CASES CITED: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 PARTIES: Joseph Jaskierski (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2007/770 COUNSEL: G Gillett (Applicant) T Thorpe (Respondent) SOLICITORS: N/A (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0676 LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ LOWER COURT DATE OF DECISION: 15 September 2006 IN THE COURT OF CRIMINAL APPEAL 2007/770 HODGSON JA GROVE J SIMPSON J 19 JUNE 2007 JOSEPH JASKIERSKI v REGINA Judgment 1 HODGSON JA: I agree with Simpson J. 2 GROVE J: I agree with Simpson J. 3 SIMPSON J: In April and May 2006 the applicant was tried in the District Court on an indictment containing a single count of supplying a prohibited drug, heroin. On 8 May 2006 the jury returned a verdict of guilty. On 15 September 2006 he was sentenced by Ainslie-Wallace DCJ to imprisonment for 5½ years, made up of a non-parole period of 3½ years and a balance of term of 2 years, commencing on 8 May 2006, the date of verdict. The applicant now seeks leave to appeal against the sentence. He does not appeal against the conviction. 4 Although two grounds of the application are pleaded, they essentially raise a single issue: parity of sentencing. The facts 5 The offence was committed between 4 March and 14 May of 2004 around the south-eastern suburbs of Sydney. The applicant was part of an enterprise that involved two co-offenders, Macaliuaki Falemaka and Siobhan Langbien. Put shortly, the two male offenders (the applicant and Falemaka) supplied quantities of heroin to Langbien, who, in turn, supplied the drug to consumers, operating from her home address. She was required to, and did, account to the applicant and Falemaka for the proceeds of the sales. 6 Falemaka and Langbien each pleaded guilty to a similar offence. Langbien was sentenced on 6 October 2005 by Donovan DCJ to a total period of 12 months' imprisonment, made up of a non-parole period of six months and a balance of term of six months to be served by way of periodic detention. No issue of parity in relation to this sentence has been raised by the applicant. Although she was well aware of the sentence, Ainslie-Wallace DCJ rejected it as one to which she should have regard in sentencing the applicant, stating that she considered that it inadequately reflected the objective gravity of Langbien's crime. 7 Falemaka was also sentenced by Ainslie-Wallace DCJ, on the same day as the applicant. The sentence imposed on him was of a total term of imprisonment for 4 years and 5 months (53 months), made up of a non-parole period of 3 years (36 months), and a balance of term of 1 year and 5 months (17 months). (Stated in months, the sentence imposed on the applicant was of a total term of 66 months, with a non-parole period of 42 months and a balance of term of 24 months.) A reading of the Remarks on Sentence in each of the two cases reveals that there was little, if anything, to distinguish the two offenders in terms of subjective circumstances. The only basis for the discrepancy in sentence was Falemaka's plea of guilty, by reason of which he was given a reduction, in accordance with the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, of 20 percent. 8 The sentence imposed on the applicant was, when regard is had to Falemaka's plea of guilty (and the quantification of the discount therefor at 20 percent) comparable with that imposed on Falemaka. That said, the comparison is not precise. If the 20 percent discount is (mathematically precisely) factored back into Falemaka's sentence, the starting point would have been: Total term 66.25 months Non-parole period 45 months Balance of term 21.25 months Quite obviously, what her Honour did was to start with a total term of 5½ years (66 months); apply a reduction of about (in fact a little over) 20 percent, yielding the 53 months' total term; and divide that sentence into the non-parole period and balance of term. (It is implicit in the result that she found, pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 , special circumstances justifying departure form the ratio there stated.) 9 Had her Honour applied an exact mathematical formula to sentencing the applicant by reference to Falemaka's sentence, she would have sentenced him to a non-parole period of 45 months, a balance of term of 21.25 months, and a total term of 66.25 months. Instead, she sentenced him to a non-parole period of 42 months (a variation slightly in his favour), a balance of term of 24 months (slightly longer than Falemaka's starting point) and a total term of 66 months (almost precisely Falemaka's starting point). The variations, such as they are, are to the applicant's advantage. In my opinion, the sentences show that her Honour intended to, and did treat the two equally before giving appropriate recognition to Falemaka's plea of guilty. 10 In sentencing Falemaka her Honour expressly held that his criminality was "roughly on a par with" that of the applicant; she added that the telephone calls involving Falemaka were more extensive and the amount of heroin supplied by him greater than that supplied by the applicant. She did not explicitly make a similar finding in the separate sentencing remarks in the applicant's case; but since she sentenced the two on the same day, it is appropriate to read the two Remarks on Sentence together. 11 The evidence against the offenders was very largely derived from intercepts of voluminous telephone calls between the three offenders. The evidence established that Falemaka had actually supplied 96 grams of heroin; the evidence against the applicant established that he had actually supplied 25.6 grams. 12 Because of this, the first ground of the application pleads that her Honour was in error in finding that the criminality of the two was "roughly on par". It followed that, in imposing sentences which, except for the reduction in Falemaka's sentence by reason of his plea of guilty, were comparable, her Honour failed to apply well known principles concerning parity of sentencing. 13 There are two aspects to the attack made on the basis upon which her Honour adopted the course that she did. The first is what can be gleaned from the very extensive transcript of telephone intercepts, resulting in the observation in the remarks on sentencing of Falemaka, that the telephone calls involving him were more extensive; the second that, by reason of the relative quantities of heroin shown to have been actually supplied by the two offenders, the applicant was entitled to a lower sentence. It was contended that the finding of equality was not, on the evidence, reasonably open. 14 On the hearing of the application, counsel who appeared for the applicant pointed to some evidence given by Falemaka, in which he accepted that it was he who determined the commissions to be paid to Langbien and determined the payment arrangements. It was put to him by the Crown Prosecutor that "on scale of hierarchy" he held a higher position than the applicant. He replied: "It would seem that way. The only reason I took responsibility for collecting the money was because I was the one getting it off from the other person." 15 Later, in submissions, the Crown Prosecutor stated that the Crown agreed that the applicant was "on a lower level than Falemaka". This, he said, was derived from the telephone intercepts. 16 In her Remarks on Sentence in Falemaka's case her Honour held: "I find that the offender's role was akin to being a manager of the supply, and communicated with others higher up the supply chain than Langbien." 17 There was no comparable finding (with respect to a managerial role) in the sentencing of the applicant. 18 I am not satisfied that the mere fact that the telephone records involving one offender are "more extensive" than another of itself establishes greater criminality. So far as can be ascertained, each participated in the management and organisation of the business, in supplying Langbien, and in ensuring that she accounted properly for the proceeds. Falemaka's answer extracted above is insufficient to establish that the applicant played a lesser role in the overall enterprise than Falemaka. 19 That leaves the question whether the considerably greater quantity of heroin shown to have been supplied by Falemaka mandated a differential approach in sentencing. The difference in quantity is considerable; as her Honour observed, the 96 grams attributed to Falemaka is 32 times the trafficable quantity, which is 3 grams; the 25.6 grams attributed to the applicant is about 8 times the trafficable quantity. 20 That may be a relevant consideration in some circumstances, for example, where two offenders are engaged in independent enterprises and transactions. However, in the circumstances of this case it is of no moment. The fact is that Falemaka and the applicant were partners in the enterprise; it is of no consequence at all that the physical act of supplying was in one case greater than in the other. The truth is, given the way this enterprise operated, each is responsible for the supply of the entire amount. 21 Accordingly, no error is shown in the decision of the sentencing judge to treat the two comparably other than in recognising, appropriately, Falemaka's plea of guilty. 22 I would grant leave to appeal but dismiss the appeal. ********** 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.