New South Wales Court of Criminal Appeal CITATION: Kentwell v Regina [2007] NSWCCA 93 HEARING DATE(S): 26 March 2007 JUDGMENT DATE: 12 April 2007 JUDGMENT OF: Simpson J at 1; Howie J at 2; Hislop J at 3 DECISION: 1. Leave to appeal granted; 2. Appeal dismissed. CATCHWORDS: Criminal law - Sentence - Parity. LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 25(1) Lowe v R (1984) 154 CLR 606 CASES CITED: Postiglione v R (1997) 189 CLR 295 Regina v Swan [2006] NSWCCA 47 PARTIES: Applicant - Donovan Lee Kentwell Respondent - Regina FILE NUMBER(S): CCA 2007/421 COUNSEL: Applicant - Ms A. Francis Respondent - Ms V. Lydiard SOLICITORS: Applicant - Legal Aid Commission of New South Wales Respondent - Director of Public Prosecutions (New South Wales) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/1423 LOWER COURT JUDICIAL OFFICER: Marien DCJ LOWER COURT DATE OF DECISION: 11 September 2006 - 1 - IN THE COURT OF CRIMINAL APPEAL 2007/421 SIMPSON J HOWIE J HISLOP J 12 April 2007 Donovan Lee KENTWELL v REGINA Judgment 1 SIMPSON J: I agree with Hislop J. 2 HOWIE J: I agree with Hislop J. 3 HISLOP J: The applicant pleaded guilty to a charge that between 4 September 2003 and 25 September 2003 at Kings Cross and elsewhere in the State of New South Wales he did supply a prohibited drug, namely, heroin, contrary to the Drug Misuse and Trafficking Act 1985 s 25(1). The maximum penalty for such an offence is imprisonment for 15 years and/or a fine of 2,000 penalty units. 4 On 11 September 2006 the applicant was sentenced for that offence by Marien DCJ to imprisonment for a non-parole period of 16 months commencing on 26 January 2006 and expiring on 25 May 2007 and a total sentence of 2 years and 6 months imprisonment commencing on 26 January 2006 and expiring on 25 July 2008. 5 The applicant has sought leave to appeal against that sentence on the ground that "the sentence imposed upon the applicant's co-offender gives rise to a justifiable sense of grievance." 6 The facts giving rise to the offence were that in September 2003 the police received information that a heroin distribution network was operating within the Kings Cross area. The principal organiser of that network was a Mr Vu. He employed a manager and three street level runners who distributed the heroin on the streets of Kings Cross. Investigation identified the street distributors as the applicant, his de facto, Ms Burrows, and Mr Tufa. 7 The applicant, Ms Burrows and Mr Tufa pleaded guilty to the same charge and were sentenced at the same time by Judge Marien. The sentence imposed upon Ms Burrows, the most active participant in the supply of heroin, was a non-parole period of 20 months imprisonment and a total sentence of 3 years. Mr Tufa was sentenced to a non-parole period of 19 months imprisonment and a total sentence of 2 years and 9 months. His Honour took into account in sentencing Mr Tufa an offence of larceny on a Form 1. 8 It was submitted on behalf of the applicant that the differential in sentence of only 3 months between that imposed upon Mr Tufa and that imposed upon the applicant (in relation to both the head sentence and the non-parole period), gave rise to a justifiable sense of grievance on the applicant's part. It was further submitted that when proper weight was given to the subjective and objective features of the applicant's case a differential of more than 3 months was required to accommodate issues of parity and proportionality, factors which were not expressly canvassed by the sentencing judge. Accordingly, it was submitted that another sentence was warranted in law and should have been passed. 9 In Lowe v R (1984) 154 CLR 606 at 617 Brennan J held: The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case. 10 In Postiglione v R (1997) 189 CLR 295 at 323 Gummow J said: The principle for which Lowe is authority appears to be that the Court of Criminal Appeal intervenes where the difference between the two sentences is manifestly excessive and such as to engender a justifiable sense of grievance by giving the appearance, in the mind of an objective observer, that justice has not been done. 11 A comparison of the subjective features of the applicant and Mr Tufa, in short, reveals the applicant was born on 5 October 1971, Mr Tufa on 5 March 1980; each suffered a degree of disruption during their early years; each at the time of the offence was addicted to heroin; the applicant during the period between the offence and sentence had taken effective steps toward rehabilitation, Mr Tufa had not been successful thus far in his rehabilitation. The applicant had a minor criminal record and had not been in custody for any prior offence. Mr Tufa had a lengthy record for relatively minor offences and had spent time in custody. Neither had any prior convictions for drug offences. The applicant was sentenced on the basis of the supply of between 10 - 15 grams of heroin during the relevant period. Mr Tufa was sentenced on the basis of the supply of between 20 - 30 grams and his possession of 4.7 grams of heroin at the time of arrest was taken into account. In Mr Tufa's case the Court also took into account the larceny charge on the Form 1. 12 It was submitted on behalf of the applicant that the difference between the amount of heroin supplied by Mr Tufa compared to that supplied by the applicant was sufficient to explain the 3 months difference in the respective sentences. I do not agree. The amount of drugs involved is but one consideration. As his Honour observed: The offence of supply heroin is an offence of extreme gravity. … In relation to each of the offenders there was absolutely nothing before me to indicate that each did not act voluntarily and willingly and knowingly in a clearly organised highly criminal drug distribution network … Each was an active street dealer in heroin. 13 It was also submitted on behalf of the applicant that the differences in his subjective case compared to that of Mr Tufa were such as to give rise to a justifiable sense of grievance in relation to his sentence. Emphasis was placed upon the applicant's rehabilitation and future prospects compared to those of Mr Tufa and the extent of Mr Tufa's criminal record compared to that of the applicant. There is no doubt that in relation to these matters any comparison was favourable to the applicant. 14 However the applicant was considerably older than Mr Tufa, his addiction had been for a greater period and his rehabilitation had occurred only since his arrest in respect of this matter. His Honour found that Mr Tufa's "future prospects were favourable". 15 In sentencing for offences of this kind, whilst subjective features are relevant, greater emphasis is placed upon the objective criminality and the need for general deterrence. 16 His Honour sentenced all offenders at the one time. He gave lengthy consideration to all relevant factors in relation to each. In these circumstances this Court should be cautious before determining that one of the offenders has a justifiable sense of grievance just because of the different sentencing outcomes – Regina v Swan [2006] NSWCCA 47. 17 In my opinion the differences between the factors applicable to the applicant and to Mr Tufa were adequately taken into account by the 3 month differential in their respective sentences and are not such as to give rise to a marked discrepancy in sentence such as to justify the intervention of this Court. 18 In my opinion it has not been established that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal. 19 I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. ********** 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.