Elfar & Golding: Sentencing Discretion And Parity Principle

Discuss about the Accordance to Principle of Parity in Relation.

In this the applicants had been convicted form importing cocaine into Australia. Cocaine is a border control drug and thus its importation is a crime under s 11.2A (1) and (2) and s 307.1(1) of the Criminal Code 1995 (Cth)[1]. The first applicant of the case Elfar has been imposed with a 30 year sentence by the court along with a 20 year non-parole period. The second applicant of the case Golding has been imposed with a 30 year sentence by the court along with a 18 year non-parole period. The third co-offender of the case Sander has been imposed with a 30 year sentence by the court along with a 16 year non-parole period. Appeals against convictions made by them had been dismissed by the court.  In this case the first and the second applicant have made a claim against the sentence imposed on them on the grounds that basis that the sentence is prima faice excessive and not in accordance to the principle of parity in relation to the three co-offenders. As per the facts of the case the importation of the drugs was well planned international operation. The first and the second applicant had sailed a yacht and exchanged 400Kg of cocaine with another ship. They were arrested by Australian Federal Police (AFP). The actions of the first applicant were more serious as he provided the Yatch and planned the whole incident. Submission had been made by the applicant that the criminal history of the co offenders did not have any material differences. Submission had been made by the applicant that in relation to Sander there was a lack of parity. It was found by the sentencing judge that Golding and Elfar hand been both liable for planning and executing the importation and the contribution of Golding was little less than Elfar. Both of the applicants had knowledge about the importation but did not know much about the seriousness of the offending. Sander had been a part of the act because of his skills of seamanship and he also had not criminal history. It was found by the sentencing judge that the motive of all offenders was monitory gain but sander facilitated the administration of justice by not providing any unnecessary evidence. In addition a number of character references had also been provided by Sander. The issue in this appeal is that whether parity principle had been observed by the sentencing judge which exercising his sentencing discretion.

Grounds for Appeal

An appeal has been made in this case by the first and second co-offenders who are Elfar and Golding respectively. The third co-offender has not made the appeal. The appeal has been made against the sentence imposed on them. The appeals have been made on the following grounds:

1. The imposed sentences are manifestly excessive;
2. The parity principle had been observed by the sentencing judge

It was stated by the judge that it had not been contended that the relevant legal principles had been misunderstood by the sentencing judge. There were various cases which had been relied upon by the judge for the purpose of identifying the difference between the levels of contribution made by the applicants with respect to the offence[2].  In relation to the consideration of parity it has been stated by the judge that in his view it is quite clear that the sentencing judge gave consideration to the issue of parity although authorities like Postiglione[3] had not been mentioned by him. The sentencing judge dealt with the individual factors which were applicable in relation to Golding. It had been stated by the judge that he had already referred to the principle of parity. Another instance which made it clear that the sentencing judge considered the issue of parity was that the individual differences between Golding, Sander and Elfar had been listed by him. Further it had been provided by the judge that the sentencing judge had been acutely aware of the requirement of Parity to be taken into account along with the test of determining whether the principles have been addressed. This case be stated evidently through the analysis of three statements made by the sentencing judge[4]. Through consideration of the Postiglione case the judge came to a conclusion that the principles of parity operate on the basis that similar actions should be provided similar punishments, however where there are any considerable differences proper allowance have to be made[5]. The judge based on the above principle and the differences between the relevant situations of the offenders came to a conclusion that the principles of parity had been considered by the sentencing judge. In relation to the issue of the sentences being manifestly excessive the judge referred to the case of R v Tout[6]. As per the case in order to prove a sentence as manifestly excessive it is not adequate to state that the sentence is different from other cases rather it has to be provided that the difference is because of not applying the principles properly or ‘unreasonable or plainly unjust’[7] element is present in the sentence. In addition no single correct sentence can be said to exist. Flexibility has to be provided to judges at first instance courts while imposing sentences as long as they are in compliance with law. Based on these principles the judge came to a conclusion that the no merit is present in the claim in relation to the sentence being manifestly excessive. Thus the court rejected the appeal made by the appellants.

Observation of the Parity Principle

The judge did not agree to the decision provided by Morrison JA. He stated that it had not been contended by the applicants’ counsels that the 30 years head sentence was too high. The arguments which had been made by the applicants were that the sentences showed disparity and were against the principles of equal justice. He held that this is an acceptable argument. He held that there was no difference between the actions which had been committed by Sander and Golding. A difference had not been suggested by the prosecutor or the sentencing judge. The case between Golding and Slander had been differentiated by stating that there was “slightly more” criminality involved[8]. However the reason for such conclusion has not been explained. However the involvement of Elfar in the act can be stated as more serious as he had control of the Yatch “Mayhem”. However the sentencing of Golding was not in accordance to the principles of Parity as although Golding has some criminal history as compared to no criminal history of Sander his history was of very less significance. Age of both men was also similar. The factors that Sander had been a model prisoner and had disability with his teeth in the prison were not significantly mitigating factors. In addition the reasoning provided by the judge that sander “did not at any time waste the court’s time with irrelevant questions” was insignificant in relation to the seriousness of the crime committed[9]. Especially these considerations cannot be made to reduce the sentence by a period of 2 years as compared to that of Golding. The charge had been after all defended by sander and no remorse has been depicted. The judge was of the view that a justifiable sense of grievance may be held by Golding in relation to the fact that he has to be in Jail for a period of two years more than Sander before being eligible for parole. Thus the judge held that the appeal which has been made by Golding has to be granted by the court. However, the arguments presented in favor of Elfar had been rejected by the judge.

The judge agreed with the reasoning of Morrison JA and thus the appeal had been dismissed by a ratio of 2:1.

The jurisdiction of Queensland Supreme Court to hear commonwealth criminal matters

The supreme court of Queensland has been provided with the jurisdiction to hear any case which arises within its jurisdiction. This power has been provided to the court through the provisions of Supreme Court of Queensland Act 1991[10]. Thus any commonwealth matter which takes place within the jurisdiction of the Supreme Court can be heard at the court.

Jurisdiction of Queensland Supreme Court

The list of the drugs which are categorized as border control drugs are provided through Criminal Code Regulations 2002. It has been provided through Section 301.4 of the Criminal Code that any drug which has been listed as a border controlled drug by any regulation is a border control drug[11]. Schedule 4 of the Criminal Code Regulations 2002 lists cocaine as a border controlled drug at number 41. It has been provided through Section 301.10 of the Criminal Code that any quantity of drug which has been listed as commercial quantity of a border controlled drug by any regulation is a commercial quantity of a border controlled drug[12]. Schedule 4 of the Criminal Code Regulations 2002 lists cocaine as a border controlled drug at number 41 and states that its commercial quantity is 2 kilo grams through column 2[13].

No in the given situation Rick and Morty would have not been liable to be charged under the same section which Elfar and Golding have been changed in this situation which is section 307.1 of the Criminal Code 1995[14]. This is because it has been stated by section 311.4 that the section in breached if a person imports or exports a border controlled drug in a commercial quantity repeatedly for business purpose[15]. Here it is provided that drug import is carried out by Rick and Morty repeatedly.

Yes in the given situation their sentence would be same like that of Elfar and Golding. This is because when a person braches section 311.4 and there is no additional penalty which is provided in relation to the breach of this section[16].

Through the experience which I had in relation to Hart v Rankin [1979] WAR 144 tutorial I have learnt various things. I learnt how to locate a case law online and how to find the specific wordings provided by the judges in the case. I got to know how to divide the case into specific sections where the division is not done. There are various things which need to be cross checked before handing my assignment to ensure best work. These include sticking to the word limit and ensuring that all sources used in the assignment are properly addressed. I also have to ensure that I provide to the point answers and proof read my own assignment to locate and rectify any error.

Criminal Code Regulations 2002 (Cth)

Hili v The Queen (2010) 242 CLR 520 at [58]

Postiglione v The Queen (1997) 189 CLR 295

R v Elfar & Golding [2017] QCA 170

R v Tout [2012] QCA 296 at [8].

Supreme Court of Queensland Act 1991 (Cth)

The Criminal Code 1995 (Cth)

Wong v The Queen [2013] VSCA 52