King v R [2012] NSWCCA 185

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: King v R [2012] NSWCCA 185 Hearing dates: 17 August 2012 Decision date: 27 August 2012 Before: McClellan CJ at CL at [1] Hall J at [2] R A Hulme J at [3] Decision: Leave to appeal refused Catchwords: CRIMINAL LAW - appeal - sentence - disparity in non-parole period between co-offenders - no question of principle Legislation Cited: Criminal Code 1995 (Cth) Customs Act 1901 (Cth) Cases Cited: Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367 Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 Category: Principal judgment Parties: Anthony Edward King (Applicant) Regina (Respondent) Representation: Counsel: Mr G James QC (Applicant) Mr C P O'Donnell (Respondent) Solicitors: Law Corporation Pty Ltd Commonwealth Director of Public Prosecutions File Number(s): 2010/59240 Decision under appeal Date of Decision: 2011-08-25 00:00:00 Before: Tupman DCJ File Number(s): 2010/59240

Judgment 1McCLELLAN CJ at CL: I agree with R A Hulme J. 2HALL J: I agree with the reasons and conclusions of R A Hulme J. 3R A HULME J: Mr Anthony King sought leave to appeal against a sentence imposed by her Honour Judge Tupman in the District Court on 25 August 2011 for an offence of conspiring with others, between 27 July and 11 December 2003, to import prohibited imports, namely a commercial quantity of ecstasy. The offence was contrary to s 233B(1)(b) of the Customs Act 1901 (Cth) (as it existed at the time of the offence) and s 11.5(1) of the Criminal Code 1995 (Cth) and the maximum penalty was life imprisonment. The sentence imposed was one of imprisonment for 16 years with a non-parole period of 10 years. 4The applicant had been arrested in the United Kingdom in December 2003. The delay in sentencing was largely because of his efforts to contest extradition to Australia which ultimately occurred in February 2010. A plea of guilty was entered in October 2010. 5After hearing the application on Friday 17 August 2012 the Court announced its decision that leave to appeal was refused. These are my reasons for joining in that decision. 6The applicant proposed three grounds of appeal which invoke the parity principle: 1. That the Learned Trial Judge erred in sentencing the Appellant to a sentence of 16 years, with 10 years non-parole, which was disparate to the sentence and non-parole periods imposed on the Co-offenders to an extent beyond what was appropriate to Her Honours findings. 2. The sentence and non-parole period imposed by Her Honour was in error in failing to observe a proper parity or relativity with that imposed on the Co-offender Henry. 3. The sentence and non-parole period were manifestly excessive having regard to the [sic] Her Honour's findings and the sentences imposed on the Co-offenders. 7Notwithstanding the formulation of the grounds, Mr James QC made clear at the hearing that the challenge to the sentence was confined to the non-parole period. He further clarified that such challenge was based solely upon an unacceptable level of disparity between the applicant's non-parole period and that of two co-offenders (Mohamad Alchikh and Peter Henry). Their respective sentences were: Applicant: 16 years - non-parole period 10 years Alchikh: 12 years - non-parole period 7 years 3 months Henry: 11 years - non-parole period 7 years 8There is an abundance of cases in which the parity principle has been discussed and explained and it is unnecessary to embark upon the same exercise here. The most recent and authoritative discussion is to be found in Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [28]-[34]; [105]-[106].