Lopatinsky v Regina [2017] NSWCCA 227

Lopatinsky v Regina [2017] NSWCCA 227

The disparity between the sentences imposed on the applicant and his co-offender was unjustified, giving rise to a justifiable sense of grievance, as there was no material difference in their respective roles, responsibilities, or subjective cases sufficient to warrant a significant difference in sentences.

Parties
Applicant: Michael Lopatinsky; Respondent: Regina
Jurisdiction
Australia
Judgment Date
20 September 2017
Procedural Posture
Criminal Appeal / Leave to Appeal Against Sentence
Outcome
leave to appeal granted; sentence varied
Legal Topics
Appeal Against Sentence, Parity Principle, Drug Offences, Disparity in Sentencing
Criminal Law Appeal Against Sentence Parity Principle Drug Offences Disparity in Sentencing

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Parties

Michael Lopatinsky

Applicant

Regina

Respondent

Procedural Posture

Criminal Appeal / Leave to Appeal Against Sentence

Legal Issues

  1. 1 Whether there was an unjustifiable disparity between the applicant's sentence and that imposed on the co-offender
  2. 2 Whether failure to give full effect to the finding of special circumstances constituted error

Ratio Decidendi

The disparity between the sentences imposed on the applicant and his co-offender was unjustified, giving rise to a justifiable sense of grievance, as there was no material difference in their respective roles, responsibilities, or subjective cases sufficient to warrant a significant difference in sentences.

Court Disposition

leave to appeal granted; sentence varied

Orders

  • Leave to appeal be granted.
  • The sentence imposed in the District Court set aside and, in substitution, applicant sentenced to imprisonment with a non-parole period of 4 years and 6 months commencing on 6 March 2015 and expiring on 5 September 2019 and a balance of term of 2 years and 3 months expiring on 5 December 2021.