Published by Geoff Harrison | 15 July 2023
The principle of parity is essentially, that like cases should be treated alike and conversely, different cases treated differently. This principle was outlined by the High Court in Green v The Queen (2011) 244 CLR 462 at [28]. Despite the language of the principle generally referring to an appellant's "justifiable sense of grievance", the test is an objective test. As quoted by Leeming JA, in Hung v R at [31]:
As was said in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31]:
The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: “the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.” The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.
The following two cases of, Hung v R [2033] NSWCCA 172 and Kiraz v R [2023] NSWCCA 177 outline the principle of parity, and Kiraz v R also deals with appeals relating to aggregate sentences.
Other Sources:
Cases:
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Hung v R [2023] NSWCCA 172
Hearing dates:1 May 2023
Decision date:10 July 2023
Before:Leeming JA at [1]; Rothman J at [38]; McNaughton J at [39]
Decision:1. Grant leave to appeal.
2. Appeal dismissed.
Catchwords:CRIME – appeal – appeal against sentence – parity – whether justifiable sense of grievance by reason of sentence imposed on co-offender – whether same total sentences imposed on applicant and co-offender justified
Legislation Cited:Crimes (Sentencing Procedure) Act 1999 (NSW), s 33 Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Cases Cited:C v R [2022] NSWCCA 285 Fenech v R [2018] NSWCCA 160 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Labban v R [2022] NSWCCA 275 Miles v The Queen [2017] NSWCCA 266 R v Achurch [2011] NSWCCA 186; 216 A Crim R 152 Weiss v R [2020] NSWCCA 188 Z v R [2022] NSWCCA 286
Category:Principal judgment
Parties:Mai Van Hung (Applicant) Rex (Respondent)
Representation:Counsel:
T Ramrakha (Applicant)
M Swift (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the DPP (NSW) (Respondent)
File Number(s):2021/00077449
Publication restriction:Nil Decision under appeal Court or tribunal:District Court of New South Wales Jurisdiction:Criminal Date of Decision:9 June 2022 Before:Buscombe DCJ File Number(s):2021/00077449 JUDGMENT
1. LEEMING JA: Mr Mai Van Hung seeks leave to appeal from the sentence imposed by the District Court on 9 June 2022 following his plea of guilty to the offence of supplying between 5 January and 18 March 2021 a large commercial quantity of a prohibited drug, namely, 722g of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty is life imprisonment, and the standard non-parole period is 15 years imprisonment. The sentence also took into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), four offences on a “Form 1”, namely, knowingly dealing with the proceeds of crime of $4,750, and three offences of possessing prohibited drugs (5g each of heroin and methylamphetamine, and 5ml of gamma-butyrolactone). The sentence, which incorporated a discount of 25% for the plea, was six and a half years imprisonment with a non-parole period of three and a half years, backdated to 18 March 2021 when the applicant was taken into custody.
2. The notice of appeal was not filed until some eight months later, on 15 February 2023. It contains a single ground:
The applicant has a justifiable sense of grievance in respect of the sentence imposed on him as compared to the sentence imposed on Thanh Quang Duong.
3. Mr Duong was sentenced on the same day by the same judge for the same offence, namely, supplying a large commercial quantity of methylamphetamine. The amount of the drug supplied was somewhat larger (915.88g), but took into account two offences on a Form 1 (one offence of supplying 29g of methylamphetamine and another of dealing with the proceeds of crime namely $5,600).
4. The sentencing of both offenders took place pursuant to separate statements of agreed facts, supplemented by affidavits from each man. Neither was required for cross-examination.
5. The offending took place in the following way. There were two other co-offenders, Mr Daniel Wong and Ms Le Thanh Vuong. The four were involved in a series of supplies of methylamphetamine to an undercover operative.
6. On a number of occasions (eight in the case of Mr Duong, four in the case of the applicant) an undercover operative was contacted by a co-offender Ms Vuong for the supply of methylamphetamine. After the amount and price was agreed, a meeting was arranged with the undercover operative to deliver the drug. Thereafter, another co-offender Mr Wong would drive to the applicant’s residence with the amount of methylamphetamine and then leave. Shortly thereafter, Mr Duong would drive to the applicant’s residence and enter into his unit for a short time, before returning to his own residence with the prohibited drugs for Ms Vuong to supply to the undercover operative.
7. In each case, a proportion of the money paid by the undercover operative was provided to the applicant by Mr Duong and Ms Vuong, who then gave this money to Mr Wong. Mr Wong then paid the applicant for his contribution of the money.
8. Mr Duong was sentenced on the basis of eight supplies as follows:
5 January 2021, 27.5g with a purity of 79.5% for $6,300.
16 January 2021, 55.7g with a purity of 80% for $12,200.
21 January 2021, 55.5g with a purity of 79.5% for $12,200.
29 January 2021, 55.1g made up of 27.5g with a purity of 80% and 27.68g with a purity of 79% for $12,200.
5 February 2021, 161.1g with a purity of 80% for $36,300.
15 February 2021, 165.7g with a purity of 81% for $36,300.
22 February 2021, 166.9g with a purity of 80.5% for $36,300.
18 March 2021, 223g for $46,600 the purity of which amount was not tested.
9. The applicant was sentenced in relation only to the last four (which were also the largest) supplies on 5 February, 15 February, 22 February and 18 March 2021.
10. According to the applicant’s affidavit, Mr Wong gave him a small amount of ice and heroin to take for pain he said he was experiencing. The applicant said he had known Mr Duong since 1988 and Mr Wong since 2001. He confirmed that Mr Wong would drop the drugs off to his home and that Mr Duong would pick up the drugs and come back with the payment. He said he received $500 from Mr Wong for the first supply, $1,000 for the second and third supply, and $4,000 for the supply on 18 March 2021. He said that he did not know the co-offender Ms Vuong prior to the offending. The sentencing judge accepted the truthfulness of this evidence.
11. The sentencing judge assessed the objective seriousness of the applicant’s offending was assessed as “towards the lower end of the range of objective seriousness, but not at the bottom”. When comparing the applicant’s offending and that of Mr Duong, the sentencing judge noted that the total amount involved in the supplies by the applicant was “almost 200g less than the total amount involved in the supplies that Duong involved himself in”. His Honour was satisfied that both the applicant and Mr Duong were involved in the offence for financial gain. Significantly for one of the applicant’s submissions, he said “I consider Duong’s role to be greater than that of [the applicant], and similar to that of Vuong, but a little below her role”. His Honour assessed the objective seriousness of Mr Duong’s offence as “considerably below the mid-range of objective seriousness for such offending”. His Honour did not express a comparison between the objective seriousness of Ms Vuong and the applicant.
12. The sentencing judge devoted considerable attention to the subjective cases of each the applicant and Mr Duong, and what follows is taken from his Honour’s sentencing remarks, about which no complaint was made.
13. Mr Duong was 52 years old when sentenced but had a very limited criminal history (fines in 2018 and 2021 for offences of possessing prohibited drugs and goods in custody). His Honour said that his lack of a criminal record entitled him to some leniency, there being “no evidence suggesting that his lack of a criminal record somehow facilitated the commission of the offence”. He had two adult daughters from his first marriage, and retained the support of his ex-wife. He was estranged from his second wife, whom he had married four years earlier. He had a “strong” employment history, although unemployed at the time, and was using 1g of “ice” a day. His offending was attributed to the need to fund his drug consumption and gambling addictions.
14. On the other hand, the applicant was 62 when sentence was imposed and had previously been convicted in 1990 for the offences of possessing prohibited imports and attempting to obtain possession of prohibited imports. He had been sentenced to 13 years imprisonment with a minimum term of 10 years.
15. The applicant was born in Vietnam. He left school aged 11 and was sent to board with another family. He returned home at the end of the Vietnam war, and found work. When aged 18 he was part of the crew of a vessel which mutinied, and he ended up in Singapore. He was granted refugee status and settled in Australia in 1978.
16. After his release from prison for the offence for which he was sentenced in 1990, he was shot in the leg in 2002 while working in a restaurant in Cabramatta, and claimed that he suffered pain in that leg ever since.
17. There had been a significant gap in the applicant’s criminal record so far as drug offending was concerned, but he returned to Vietnam in 2006. He commenced a relationship with a woman in 2011, and two children were born in 2013 and 2014. He lived in Ho Chi Minh City until 2017. He became ill and returned to Australia in 2017 to seek medical treatment. In 2018 his wife and children arrived from Vietnam to live with him. He had not worked since around 2005 because of medical issues. He was in receipt of a disability pension, and his wife said that the applicant engaged in offending “because he wanted to earn money to provide for the children” and her. The sentencing judge said that the applicant’s wife remained supportive, and was willing to accommodate him after his release, although it appeared that the marriage was over.
18. The sentencing assessment report stated that he used between 1g – 3g of “ice” daily. The applicant disputed this and said he used about one gram of “ice” a fortnight. The applicant said that most of the money he received from the offending was used to support his habit, but noted in his affidavit that it was his intention to use the money to assist with his family’s financial difficulties.
19. The most serious offending aside from the 1990 drug offending was a high range PCA which was first dealt with in 2006. It was ultimately dealt with by way of an intensive correction order in 2019, the sentencing judge stating that “it would appear because he absconded to Vietnam, not having completed a community service order”.
20. The applicant suffers from a series of serious medical conditions. He requires dialysis three times a week as a consequence of end stage renal failure. He has also been diagnosed with ischemic heart disease, diabetic retinopathy, neuropathy and hypertension. The dialysis is administered in the prison hospital, where he has been since arrest on 18 March 2021 for the offending the subject of this appeal. There was evidence that the treatment was effective.
21. The sentencing judge noted evidence that although the applicant was on a waiting list for a kidney transplant, he had a significantly higher mortality risk than a healthy person. The sentencing judge adverted to the significance of a serious medical condition to the exercise of the sentencing discretion, and addressed R v Achurch [2011] NSWCCA 186; 216 A Crim R 152 at length. Ultimately his Honour concluded that:
Where an offender with serious health problems engages in serious and protracted criminality knowing that the consequences of detection is a substantial period of imprisonment, then that is also a consideration to have regard to. Here the offender had his serious medical conditions as at the time of the commission of the offending, which was a … large commercial supply of prohibited drugs.
22. The applicant placed reliance on the following aspect of his Honour’s reasons:
In the past, he had received a significant sentence of imprisonment for involving himself in the drug trade, and he must have known that involving himself in the offending would lead to a significant sentence being imposed if he was caught. There is no suggestion that the offender Hung’s medical condition has significantly deteriorated since the commission of the offence, and overall the evidence supports a finding that Corrective Services are ensuring that his medical conditions are being appropriately treated. I do find, however, that the offender Hung’s medical conditions make his time in custody more onerous than it would be for an offender who does not suffer his medical conditions. He would also appear to be particularly vulnerable given his medical conditions and the COVID-19 pandemic. I also note that he has a reduced life expectancy as a consequence of the time he has been on dialysis, although that would have occurred whether or not he was in prison.
23. After noting that there was no suggestion that the prospects of receiving a kidney transplant were lessened by his imprisonment, his Honour stated that he had “mitigated the offender’s sentence to some degree due to his health in accordance with the principles discussed in Achurch.”
24. No criticism was addressed to any aspect of the way in which his Honour addressed the applicant’s medical condition.
25. The sentencing judge found that both the applicant and Mr Duong expressed remorse, but that Mr Duong’s was “not as fulsome as that displayed by the offender, Hung”. His Honour was satisfied that the applicant had “some genuine remorse in relation to his offending”.
26. The sentencing judge found that each of the applicant and Mr Duong had reasonable prospects of rehabilitation, the former despite his much worse history of offending, but in light of his community support and the gap in his offending. His Honour made findings of special circumstances for each man. His Honour stated that in both cases the Form 1 offending had no real impact on the sentence to be imposed.
27. His Honour addressed parity in terms:
There is an issue of parity in this sentence. In particular, having regard to the sentence I imposed on the co-offender, Vuong. I sentenced Vuong for the same offence that these two offenders are to be sentenced for, although the amount of drug the subject of her sentence was the same as in relation to the offender, Duong, and less therefore, than the amount of drug the subject of Hung’s offence. Vuong also had a proceeds of crime offence on the form 1. I found that offence had no impact on the sentence to be imposed on the principal count. I noted when sentencing the offender, Vuong, that the Crown had accepted that her role was less than her co-offenders. Based on the material I now have before me, I am not satisfied that concession was an appropriate one.
Given what appears to be the limited roles of the offenders, Hung and Duong, as revealed in the material before me on their sentence, I consider that although Vuong’s role involved her meeting with the undercover officer, and therefore, having the risk associated with doing so, she appears to have had more of an organising role than either of the two offenders I am to sentence today. As explained earlier when discussing the objective seriousness of the offences, I consider that Hung’s role is a limited one. He receives the drugs from [Wong] for a relatively short time. Vuong and Duong collect them, and return with the buy money which Hung holds until it is collected by Wong. Duong’s role is closer to that of Vuong, in my opinion. In terms of the subjective cases, all three offenders pleaded guilty in the Local Court. Vuong had a relatively poor subjective case. She committed the offence while on parole for a similar offence for which she had been sentenced in 2013. Her criminal record disentitled her to leniency and the offence was committed on conditional liberty which was an aggravating factor. I found that the offender, Vuong, had little insight or remorse in relation to her offending, and had a medium risk of re-offending. I found that the offender, Vuong, had no better than guarded prospects of rehabilitation. I made a limited finding of special circumstances when fixing her non-parole period.
Given my findings as to the role of each of the offenders in these remarks, and the different subjective cases, in my opinion, the offenders, Hung and Duong, should receive a considerably lesser sentence than Vuong received, although I am conscious of not imposing sentences which create a justifiable sense of grievance for any of the offenders. (Emphasis added.)
28. It is apparent that the word “less” highlighted above is a slip for “more”. Nothing turns on this, and the applicant’s counsel placed no reliance upon it. Elsewhere in the reasons the sentencing judge correctly stated that the drugs involved in the applicant’s offending were less than those involved in Mr Duong’s offending. The error in the sentencing judge’s remarks happened when he was determining that despite his rejection of the Crown’s concession about the role of Ms Vuong, and in the course of making favourable findings as to each of the applicant and Mr Duong receiving a considerably lesser sentence than was imposed upon her.
29. Mr Duong received the same total sentence of 6 years and 6 months imprisonment, but with a non-parole period of 4 years, as opposed to the non-parole period of 3 years and 6 months received by the applicant.
30. The applicant’s written and oral submissions were brief. He referred to the fact that the sentencing judge characterised Mr Duong’s offending as “similar to” and “closer to that of” Ms Vuong, that the applicant’s record was not an aggravating factor, although it disentitled him to leniency, that the applicant had the advantage of a finding of genuine remorse, and the applicant’s serious health concerns. The oral submissions emphasised the same points, and made reference to a very recent decision of this Court, Butler v R [2023] NSWCCA 100, in which a parity ground succeeded notwithstanding that the applicant and his co-offender were sentenced by the same judge.
31. There was no dispute as to the applicable principles. The question is an objective one, although styled in terms of an offender’s grievance. As was said in Green v The Queen; Quinn v The Queen(2011) 244 CLR 462; [2011] HCA 49 at [31]:
The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: “the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.” The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise. (Footnotes omitted.)
32. The question is whether the sentence imposed on a co-offender is reasonably justified in light of those differences, bearing in mind the qualitative and discretionary judgments required of the sentencing judge: C v R [2022] NSWCCA 285 at [33]; Z v R [2022] NSWCCA 286 at [31]-[32]; Labban v R [2022] NSWCCA 275 at [24]. It is not necessary to find a “gross, marked or glaring” discrepancy: Miles v The Queen [2017] NSWCCA 266 at [9], [38], [67]. Instead, it is better to use the expressions of the High Court, namely, “marked disparity” or “marked and unjustified disparity”: Fenech v R[2018] NSWCCA 160 at [30]; Weiss v R [2020] NSWCCA 188 at [89].
33. The position then is that two men were sentenced for the same offence on the same day by the same judge, although that does not stand in the way of this ground’s success. The applicant’s offending involved fewer supplies, and less drugs, than that of Mr Duong, and although both were at the lower end of the range of objective seriousness, the applicant’s offending was less objectively serious than that of Mr Duong. Both pleaded guilty and received a 25% discount. Both were involved in the offending to fund their drug and gambling addictions. Both men were found to be remorseful, with the applicant’s remorse exceeding that of Mr Duong. Both were found to have reasonable prospects of rehabilitation. The applicant, unlike Mr Duong, suffered from a series of serious medical conditions, which were said to mitigate his sentence “to some degree”.
34. All of those factors favour a lesser sentence being imposed upon the applicant as opposed to Mr Duong. But telling against that result is the fact that Mr Duong had no significant criminal record, while the applicant had previously been involved in a serious drug offence and had been sentenced to 13 years’ imprisonment with a non-parole period of 10 years. Mr Duong was entitled to leniency, and the sentencing judge said as much expressly (“[h]is lack of a criminal record entitles him to some leniency”). The applicant was not.
35. Although the applicant’s submissions drew attention to the finding that the objective seriousness of Mr Duong’s offending was “similar to that of Vuong”, what matters is that it was greater than that of the applicant, and that both were well below the mid-range (“towards the lower end of the range of objective seriousness, but not at the bottom” as opposed to “considerably below the mid-range of objective seriousness”).
36. It is the sentences as a whole which are to be compared in order to determine whether the applicant has a justifiable sense of grievance. I readily accept that the fact that the total sentence imposed on each man is the same does not prevent a complaint of parity arising. However, I see no error in these two men receiving the same total sentence. It is tolerably plain how the same total sentence is to be justified in the present case. In effect, the somewhat worse objective seriousness of Mr Duong’s offending, and the aspects of the applicant’s subjective case which warranted a lesser sentence (notably, his remorse and his health) were offset by the fact that he had previously committed a serious drug offence, thereby disentitling him to leniency. It is to be noted that the differential findings of special circumstances result in a substantially shorter non-parole period for the applicant (3 years and 6 months) as opposed to Mr Duong (4 years).
37. For those reasons, the differences between the applicant and Mr Duong supply a reasonable justification for the sentence imposed on each man. They do not give rise to a justifiable sense of grievance. Although there should be a grant of leave to appeal, I would dismiss the appeal.
38. ROTHMAN J: I agree with Leeming JA.
39. McNAUGHTON J: I agree with Leeming JA.
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Kiraz v R [2023] NSWCCA 177 (14 July 2023)
Last Updated: 14 July 2023
Court of Criminal Appeal
Supreme Court
New South Wales
Case Name:
Kiraz v R
Medium Neutral Citation:
[2023] NSWCCA 177
Hearing Date(s):
30 June 2023
Date of Orders:
14 July 2023
Decision Date:
14 July 2023
Before:
Beech-Jones CJ at CL at [1]
Fagan J at [2]
R A Hulme AJ at [3]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal dismissed.
Catchwords:
CRIME – appeal against sentence – aggregate sentence – manifest excess by misapplication of totality principle – no error – parity with sentence of asserted co-offender – applicant a supplier of drugs purchased from a syndicate in which co-offender was a participant – not co-offenders in same criminal enterprise for purpose of parity principle
Legislation Cited:
Crimes Act 1900 (NSW), s 193C(2)
Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and (2)
Weapons Prohibition Act 1988 (NSW), s 7(1)
Cases Cited:
Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162
Burke v R [2022] NSWCCA 6
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
GG v R [2023] NSWCCA 102
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Meager v R [2009] NSWCCA 215
Obeid v R (2018) 96 NSWLR 155; [2017] NSWCCA 221
R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555
R v Irwin [2019] NSWCCA 133
Category:
Principal judgment
Parties:
Allan Kiraz (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Flood (Applicant)
J Styles (Respondent)
Solicitors:
Kingston Fox Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s):
158345/2020
Decision under appeal:
Court or Tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
30 November 2021
Before:
Culver AM DCJ
File Number(s):
158345/2020
HEADNOTE
[This headnote is not part of the judgment]
Allan Kiraz acquired drugs on 10 occasions from a “dial-a-dealer” supply syndicate. On one of those occasions the drugs were delivered to him by Eren Mehmed. Mr Kiraz pleaded guilty to a charge of supplying a large commercial quantity of methylamphetamine and asked that further offences on a Form 1 be taken into account, including charges of supplying indictable quantities of methylamphetamine and gamma butyrolactone and dealing with $4100 which was the suspected proceeds of crime. He also pleaded guilty to a charge of possessing a prohibited weapon (an anti-personnel conducted energy device (a “taser”)).
In assessing the objective seriousness of the primary offences the sentencing judge took into account there was a degree of overlap in that the seriousness of the taser offence was elevated by it being found in “proximity to prohibited drugs and cash, the suspected proceeds of crime”. After a 25% allowance was made for the pleas of guilty, the judge assessed indicative sentences for the two offences of 6 years and 3 years and imposed an aggregate sentence of 8 years with a non-parole period of 5 years and 4 months.
Mr Kiraz sought leave to appeal on two grounds:
(1) The aggregate sentence was manifestly excessive. Mr Kiraz confined the scope of this ground to a contention that the overlap in objective seriousness of the two offences meant there should have been less (notional) accumulation of the indicative sentences and thereby a lower aggregate sentence.
(2) There was disparity between his sentence and that imposed upon Mr Mehmed. The latter was subsequently sentenced by another judge for two large commercial drug supply offences and received an aggregate sentence 3 months shorter than that imposed upon Mr Kiraz.
The Court held (R A Hulme AJ, Beech-Jones CJ at CL and Fagan J agreeing) granting leave to appeal but dismissing both grounds.
As to ground 1:
The proposed appeal was concerned with the aggregate sentence and was not against the indicative sentences assessed for the individual offences. The critical question was whether the aggregate sentence reflected the totality of criminality involved. Having regard to the applicable maximum penalties involved; the unchallenged assessments of the sentencing judge as to the objective seriousness of the offences; the need to take into account some significantly serious further offences on the Form 1; and the need to moderate the outcome by having regard to the overlap in criminality; it could not be said that the aggregate sentence was beyond the acceptable bounds of a legitimate exercise of sentencing discretion. [34]-[36] R A Hulme AJ, [1] Beech-Jones CJ at CL, [2] Fagan J.
GG v R [2023] NSWCCA 102 applied. Burke v R [2022] NSWCCA 6 at [32] cited.
As to ground 2
The parity principle is concerned with the comparison of sentences imposed upon co-offenders involved in the same criminal enterprise (even if charged with different offences). It is not concerned with the comparison of sentences imposed upon persons who were not co-offenders. [42]-[43] R A Hulme AJ, [1] Beech-Jones CJ at CL, [2] Fagan J.
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30]; Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [30]; Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 at [136]- [137], [202] and [246]); R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555 at [66]; and Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162 at [148]- [149] cited.
Mr Kiraz had no involvement or interest in the drug supply enterprise from which he acquired his drugs and the participants in that enterprise had no interest or involvement in the drug supply activities of Mr Kiraz. They were not co-offenders in the same criminal enterprise and so the parity principle had no application. [44]-[47] R A Hulme AJ, [1] Beech-Jones CJ at CL, [2] Fagan J.
Meager v R [2009] NSWCCA 215; Why v R [2017] NSWCCA 101; and Malouf v R [2019] NSWCCA 307 referred to.
JUDGMENT
1. BEECH-JONES CJ AT CL: I agree with R A Hulme AJ and the orders his Honour proposes.
2. FAGAN J: I agree with the orders proposed by R A Hulme AJ and with his Honour’s reasons.
3. R A HULME AJ: Allan Kiraz was sentenced in the District Court at Sydney by her Honour Judge Culver AM on 30 November 2021 in respect of a number of drug and prohibited weapon offences.
4. Her Honour imposed an aggregate sentence of imprisonment for 8 years with a non-parole period of 5 years and 4 months dating from 27 May 2020.
5. The drug supply offences were contrary to the Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) and (2), and the weapons offences were contrary to the Weapons Prohibition Act 1988 (NSW), s 7(1). There was also a proceeds of crime offence contrary to the Crimes Act 1900 (NSW), s 193C(2). Details of each offence and the indicative sentences are as follows.
Seq 1: Supply large commercial quantity (740.8g) of methylamphetamine between 9 February 220 and 22 May 2020
Maximum penalty: imprisonment for life
Standard non-parole period: 15 years
6 years with non-parole period of 4 years
Seq 12: Supply 500ml of gamma butyrolactone on 16 May 2020
15 years’ imprisonment &/or 2000 penalty unit fine
On Form 1, taken into account re Seq 1
Seq 19: Possess prohibited weapon (cannister of oleoresin capsicum spray) without permit on 27 May 2020
14 years’ imprisonment
SNPP: 5 years
Seq 22: Supply 212.2g of methylamphetamine on 27 May 2020
15 years’ imprisonment &/or 2000 penalty unit fine
Seq 23: Deal with suspected proceeds of crime ($4100 cash) on 27 May 2020
3 years’ imprisonment
Seq 18: Possess prohibited weapon (anti-personnel conducted energy device) without permit on 16 May 2020
14 years’ imprisonment
SNPP: 5 years
3 years with non-parole period of 2 years
6. Mr Kiraz seeks leave to appeal against the aggregate sentence on the following grounds:
(1) The aggregate sentence imposed is manifestly excessive.
(2) There is a disparity in the sentence of the applicant and that imposed on the co-offender, Eren Mehmed, that gives rise to a justifiable sense of grievance on the applicant’s behalf.
The offences
7. The agreed facts for the large commercial supply offence were that between 9 February 2020 and 22 May 2020 Mr Kiraz obtained quantities of methylamphetamine on nine occasions and gamma butyrolactone on one occasion. He negotiated the purchase by telephone, usually with Abdul Ali-Ahmed, and then obtained the drugs by attending a location or having it delivered to him.
8. Midway through the agreed facts document it is stated:
[16] On Friday 8 May 2020 between about 10 and 11.30am police observed Abdul Ali-Ahmed, Allan Kiraz and Eren Mehmed attending Abdul Ali-Ahmed’s residence at xxx Yagoona, at times which overlapped with each other. ...
[17] During the period of these offences, a “Run Phone” was operated by Eren Mehmed, Abdullah Dannawi, Omar Dannawi and Mr Eli-Ahmed for the supply of prohibited drugs, and primarily methylamphetamine. The mobile service was xxx 796.
9. For the purpose of considering Ground 2 of the proposed appeal it is useful to have regard to the following details pertaining to each supply to Mr Kiraz.
Date
Negotiations by Mr Kiraz were with:
Delivery was effected by:
9.2.20
Ali-Ahmed
Collection at Ali-Ahmed’s home
5.3.20
Ali-Ahmed
At a meeting with Ali-Ahmed
6.4.20
Ali-Ahmed
Delivery by Eren Mehmed
20.4.20
Ali-Ahmed
Delivery by Ali-Ahmed
23.4.20
Ali-Ahmed who arranged for Mr Kiraz to speak to another (unnamed) person.
Delivery by the unnamed person
26.4.20
The user of phone service xxx 449
Delivery by an unnamed person
28.4.20
The user of phone service xxx 449
Delivery by an unnamed person
11.5.20
Ali-Ahmed and the user of “Run-Phone” xxx 796
No details of delivery
16.5.20
With Ali-Ahmed and the user of “Run Phone” xxx 796
Delivery by an unnamed person
22.5.20
Ali-Ahmed
Collection at Ali-Ahmed’s home
10. It may be inferred that Mr Ali-Ahmed was involved with others including Eren Mehmed in an enterprise of supplying drugs. The reference to the use of a “Run Phone” suggests the operation of what is sometimes referred to as a “Dial-a-Dealer” drug supply enterprise whereby orders are taken by telephone and delivery drivers supply the drug to the purchaser.
11. It may also be inferred from the quantities involved that the applicant was a supplier of drugs to others in his own right.
12. A search warrant was executed at Mr Kiraz’s home on 27 May 2020 where the following were found:
212.2g of methylamine in four separate bags.
$4100 in Australian currency.
An anti-personnel conducted energy device, similar to a Taser gun.
A cannister of oleoresin capsicum spray.
13. Mr Kiraz gave evidence at the sentencing hearing of having a long-standing addiction to drugs. He managed to remain abstinent during a period of employment but returned to drugs when he lost his job during the COVID-19 pandemic. He claimed he was dealing in drugs to support his own habit and to pay back debts he had accrued as a result of it.[1]
14. When it was suggested in cross-examination that the volume and value of drugs involved were inconsistent with that explanation, he protested that he “was always the middle person”; people would ring him asking him to get it for them and he would make “a little percentage of it and that then would be to support my habit”.[2]
15. A little later he explained:[3]
It was very easy for me to get a hold of; it was very ‑ I was mixed with the drug people and it was so easily accessible for me, therefore when I knew it was easily accessible for me, I rang them up and told the other people, "Look, there's more here if you want it ‑ if I got the money to sell you" ‑ whatever. At the time I'd be thinking if I can make more to support my habit and pay my rent, then that's how easy it was for me to get. Like, I couldn't have funded my own pocket; I couldn't handle that much for myself. It was always for other people to come and get and I would just take a little percentage out of it.
16. The sentencing judge said the following in the course of explaining her assessment of the objective gravity of the large commercial drug supply offence:[4]
The Court understands that the agreement between the parties is that the offender would be characterised as engaging in these transactions where he was, in effect, in a middle stage of the supply chain. It’s not suggested he operated closely to the manufacturing point. The Court does not have evidence, on the other hand, of street dealing. Instead, it seems from the facts placed before the Court by agreement that the offender would be contacted by others for the supply of drugs. Sometimes those others would be seeking significant quantities of drugs not consistent with those other people themselves necessarily being street dealers. The offender would then approach his upline suppliers such as Ahmed to receive the drugs.
It seems that the offender had some degree of autonomy, but it is not clear to what extent. The facts, for example, reveal that the offender was bringing a woman, unidentified, to meet with Ahmed to purchase the methylamphetamine. It is not clear whether that was an act of introducing a new customer directly to Ahmed or whether the offender was merely a conduit to facilitate that supply. In the absence of being able to make any finer assessment of the offender’s role, I accept the characterisation by the offender himself that he was operating as a middle man. It seems that he expected not only monetary reward, but also to be able to access some drugs for himself, being himself a drug user.
17. Her Honour’s finding coincided with the submission on behalf of Mr Kiraz[5] that the objective gravity of the large commercial supply offence was “just under the midrange level”.
Subjective factors
18. The nature of the grounds of appeal and submissions in support of them do not require detailed consideration of the applicant’s background and personal circumstances unless the Court finds merit in Ground 1 or that a fundamental issue pertaining to Ground 2 is established. It will suffice to note some findings of the sentencing judge.
19. There were controversial aspects of Mr Kiraz’s account of his background as a result of conflicting versions he had provided. Her Honour did not accept that as a child he had been the victim of domestic violence but did accept he had been sexually assaulted. She also accepted he had commenced using illicit drugs at around the age of 15. There was therefore either a link or a coincidence between the experience of sexual abuse and the immature resort to drug abuse.[6]
20. Her Honour did not find there was a causative link but did accept there was a lessening of moral culpability for the offending as a result of a psychologist’s report of Mr Kiraz having symptoms of post-traumatic stress disorder and substance dependence disorder. She found that the emphasis upon general deterrence was reduced on account of these various factors.[7]
21. In relation to more general subjective matters, her Honour found his experience of custody was more onerous due to the restrictions in place because of the pandemic. She described his criminal history as “extensive and serious” which was relevant to the emphasis given to specific deterrence and prospects of rehabilitation.[8]
22. Early pleas of guilty entitled Mr Kiraz to a 25% reduction of the individual sentences. It was also accepted that remorse and contrition had been demonstrated and added to a favourable prospect of rehabilitation, although her Honour regarded this as “guarded”.[9]
23. Special circumstances were found because of more onerous custody due to the pandemic and the “strong need for intensive rehabilitation”. Another basis was because Mr Kiraz was “being sentenced for multiple offences”, but why that should lead to a reduction of the non-parole period of an aggregate sentence was not explained.
Ground 1 – the sentence is manifestly excessive
Principles
24. The principles relating to a ground asserting that a sentence is manifestly excessive were summarised in Obeid v R (2018) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:
When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].
Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
It is not to the point that this Court might have exercised the sentencing discretion differently.
There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
It is for the applicant to establish that the sentence was unreasonable or plainly unjust.
25. An appeal against an aggregate sentence is concerned with that sentence and not directly with the indicative sentences assessed by the sentencing judge. Principles concerning the appellate review of aggregate sentences were summarised in JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40] including:
11. The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence.
12. Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive.
13. A principal focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved. This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures. (Citation of authorities omitted)
26. The extent to which the sentences for the two primary offences were to be served (notionally) concurrently or accumulatively involved an exercise of the principle of totality. Its correct application was described by Howie J in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]:
[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality.
Submissions
27. The applicant’s submissions clarified that this ground of the proposed appeal was focussed upon the impact of the possession of the taser-type weapon upon the aggregate sentence ultimately imposed. This was said to be the case because of the interplay between:
The facts of the applicant’s possession of this weapon; and
the nominal accumulation of the two indicative sentences.[10]
28. The submissions referred to factors that would have made the offending in respect of this offence “more objectively serious”. These were if the taser was functioning; if it was charged and ready for use; and if it was in a place where it was readily accessible.[11] While there are more serious and dangerous types of prohibited weapons, the submissions acknowledged that the possession of a taser is not “a minor example of an offence under s 7(1) of the Weapons Prohibition Act”, citing R v Irwin [2019] NSWCCA 133 at [76].[12]
29. It was submitted that the judge had correctly found the objective seriousness of the taser offence as follows:[13]
With respect to the possession of the taser type weapon, it is submitted by the Crown that this is just at the midrange level. On behalf of the offender, it is conceded that this falls at the midrange. I share the view of the parties. Whilst a taser type weapon is a serious type of weapon, I do bear in mind the extent of different types of weapons that can be caught by this offence provision. What elevates the seriousness of this offence is the finding of the taser type weapon in proximity to prohibited drugs and cash, suspected proceeds of crime. In other words, where there is a prohibited weapon in the context of serious drug supplying, then the circumstances bear concern. That is not to say that the offender himself intended to use the weapon for offensive purposes. As I stated at the outset, what it does do is elevate the risk that, the weapon can fall into the wrong hands. It elevates the risk that, even if not intended, the weapon might ultimately be used. (Emphasis added)
30. The applicant submitted that without the “elevating” factor of the taser being found in proximity to drugs and cash, the objective seriousness of the taser possession offence would have been assessed at a level lower than “at the mid-range”.
31. The applicant’s case in respect of this ground was encapsulated in the submission that “the degree of accumulation reflected in the aggregate sentence is excessive because there is significant overlap between the criminality that aggravates the prohibited weapon offence and the supply offending”.[14]
Consideration
32. With indicative sentences for the two offences of 6 years and 3 years and the aggregate sentencing being one of 8 years, the sentencing judge may have considered that it would be appropriate for there to be a notional period of accumulation of 2 years and of concurrency of 1 year. She did not express this in her judgment and nor was she required to. She did, however, explicitly and correctly acknowledge and apply the totality principle as is evident in the following extract from her sentencing remarks:
Turning then to a consideration of totality and proportionality, I note the decisions in Pearce and Cahyadi and decisions that have followed those cases. The Court must ensure that the overall sentencing outcome is proportionate to the offending with the consideration of the relevant subjective features. The Court must ensure that each individual offence receives the sentence appropriate to the individual circumstances arising for that offence, but also ensure that the overall sentencing outcome is appropriate to the totality of circumstances and remains proportionate to the offending. The Court must ensure that the overall outcome is not unduly crushing on the offender.
Here, the issue of totality arises in a couple of aspects. Firstly, there are two offences for substantive sentences. Secondly, there are form 1 offences to be taken into account in respect of the sentence for sequence 1, supply prohibited drug in large commercial quantity. I note that, taken together, it is troubling that the Court is sentencing the offender for supplying prohibited drug in a large commercial quantity and also sentencing the offender for the possession of the taser like implement. I note that some degree of accumulation is necessary, but I have referred to the fact that the offence for the taser like weapon is somewhat exacerbated by the drug supply context. In the circumstances, the Court must ensure that the accumulation is not a total accumulation. In other words, because I have aggravated the type of taser offence by the circumstance of the drug context, it then is appropriate that there be some degree of concurrency, because there has been an overlap in factual consideration.
33. Accordingly, the judge posed for herself the correct question and answered it in a way that is challenged by the applicant as being “unreasonable or plainly unjust”.
34. N Adams J, with the concurrence of Bell CJ and Davies J, recently considered the application of the totality principle in the context of aggregate sentencing in GG v R [2023] NSWCCA 102 and in doing so provided pertinent passages from two recent cases which are of present relevance:
[85] As for the applicable principles when error is alleged in the application of the totality principle in aggregate sentencing, in Noonan v R [2021] NSWCCA 35 Beech-Jones J (as his Honour then was), with whom Bathurst CJ and Wilson J agreed, stated the following at [33] in that regard:
... The starting point is that the subject matter of an application for leave to appeal against an aggregate sentence is the aggregate sentence itself, not any indicative sentence. Next, it is necessary to identify the error complained of in the fixing of the aggregate sentence. If the complaint is an error such as a failure to apply the totality principle then an appellant may seek to deploy a comparison between the indicative sentences and the total aggregate sentence to argue that the principle was misunderstood or misapplied such that an error has been demonstrated. For example, if there were three related offences with the indicative sentence for each being 2 years imprisonment and the total aggregate sentence was 6 years imprisonment then it might be inferred that the sentencing judge failed to apply the totality principle. In that case, one of the forms of error discussed in House v R (1936) 55 CLR 499; [1936] HCA 40 would be established even though the aggregate sentence was not itself manifestly excessive (namely a failure to take ‘into account some material consideration’: House v R at 505). However, any analysis that seeks to reconstruct some precise starting and end point for the indicative sentences in order to show error in the fixing of the aggregate sentence is misconceived as aggregate sentences were intended to avoid sentencing judges undertaking that very process. ... I note that in imposing an aggregate sentence in R v Stoupe [2015] NSWCCA 175 (‘Stoupe’), Johnson J considered ‘notional issues of accumulation, concurrency and totality for the purpose of reaching the aggregate sentence to be imposed’ (at [128]).
[86] In Aryal v R [2021] NSWCCA 2, a purported misapplication of the totality principle in arriving at the aggregate sentence was relied upon as a stand-alone ground of appeal. R A Hulme J (with whom Johnson and Wilson JJ agreed) identified a number of difficulties in establishing a breach of the totality principle in an aggregate sentence. In dismissing that ground of appeal, his Honour observed the following at [49]-[50]:
The second difficulty is that the applicant's submissions assume the correctness of the individual sentences assessed and indicated for each offence. As noted above, one of the propositions relating to appellate review of an aggregate sentence listed in JM v R was that ‘even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive (’). This was affirmed recently by Beech-Jones J in Lee v R [2020] NSWCCA 244 at [32]. Generally speaking, the same must apply if the indicative sentences are inadequate, at least where their sum equals or exceeds the aggregate.
Rather than making an assumption that the indicative sentences are correct, and then endeavouring to assess the extent by which there has been some notional accumulation, the critical question is another of the principles noted in JM v R, ‘whether the aggregate sentence reflects the totality of criminality involved’. That raises for determination under Ground 2 of the proposed appeal.
See, similarly, Burke v R [2022] NSWCCA 6 at [32] (Fullerton J, McCallum JA and Walton J agreeing).
35. Addressing the “critical question” of “whether the aggregate sentence reflects the totality of criminality involved” and not assuming the correctness of the indicative sentences, the following matters are significant:
(a) The large commercial drug supply offence had a maximum penalty which is the highest available to the criminal law, imprisonment for life, as well as a standard non-parole period of 15 years.
(b) There is no challenge to the finding of the sentencing judge that the objective seriousness of that offence was “just under the midrange level”.[15]
(c) There were four offences listed on a Form 1 document that the judge was asked to take into account when sentencing for the large commercial drug supply offence. Three of those offences were of significant seriousness in their own right.
(d) The taser possession offence had a maximum penalty of imprisonment for 14 years and a standard non-parole period of 5 years.
(e) The possession of the taser in the context of being engaged in a drug supply enterprise rendered it, as the applicant conceded, a more serious offence than it otherwise might have been, and there was no challenge to the judge’s finding that it was in the midrange of objective seriousness.
(f) There was a degree of overlap in the criminality in each offence but the extent of it, and thus the determination of the totality of criminality, was a matter for the sentencing judge’s evaluation.
36. In the context of statutory prescriptions of substantial maximum penalties and standard non-parole periods, focussing upon the overall criminality of the two offences and bearing in mind the further offences to be taken into account, it cannot be said that the aggregate sentence was unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. I am satisfied that it was within the acceptable bounds of a legitimate exercise of the sentencing discretion.
37. I accept that this ground was arguable and I would favour a grant of leave to appeal. However, the ground must be rejected.
Ground 2 – disparity between the sentence imposed upon the applicant with that imposed upon Eren Mehmed giving rise to a justifiable sense of grievance
38. The argument in support of this ground involves a comparison of the sentence imposed upon the applicant on 30 November 2021 with the sentence imposed upon Eren Mehmed by his Honour Judge Arnott SC on 22 July 2022 for the following offences:
(1) Knowingly take part in the supply of a large commercial quantity (728g) of methylamphetamine between 8 May 2020 and 12 May 2020.
(2) Supply of a large commercial quantity (1kg) of methylamphetamine on 20 May 2020.
39. Information was provided to Arnott SC DCJ about a number of “related offenders” including the present applicant, although it was submitted by the Crown that this was for “context purposes” and that “parity doesn’t have much application because of the different offences that were laid ... and ... the quantities involved are of such a difference” and that “the dissimilarity of the charges and the bases of liability makes any meaningful comparison very difficult”.[16]
40. The applicant contended that his aggregate sentence of 8 years was longer than the sentence of 7 years and 9 months imposed upon Mr Mehmed even though his criminality was less and he thereby held a justifiable sense of grievance. The Crown responded with arguments concerning the merits of the ground, seeking to differentiate the cases of the two offenders, submitting that “the applicant is seeking to argue for equality from a base of difference”.[17]
Consideration
41. There is a fundamental flaw in this ground: the applicant and Mr Mehmed were not co-offenders in the same criminal enterprise.
42. There is no doubt that the parity principle is concerned with the comparison of sentences imposed upon co-offenders involved in the same criminal enterprise (even if charged with different offences arising therefrom). It has been confirmed by the High Court in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 per French CJ, Crennan and Kiefel JJ at [30] and in Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 per French CJ, Hayne, Kiefel, Bell and Keane JJ at [30]. The same was said in Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 (per Campbell JA at [136]-[137], [202] and per Howie J at [246]).
43. The parity principle is not, however, concerned with the comparison of sentences imposed upon persons who were not co-offenders: R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555 at [66] (Johnson J); Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162 at [148]- [149] (Bathurst CJ).
44. The applicant’s argument is virtually the same as that which was raised unsuccessfully by the applicant in Meager v R [2009] NSWCCA 215. Narelle Collier was a supplier of heroin to persons who contacted her by telephone. They were persons who were users of the drug and persons (namely Ms Meager and a man named Patrick McDaid) who in turn supplied to users of it. In explicitly complying with the parity principle the sentencing judge had regard to the sentence he had imposed upon Mr McDaid when sentencing Ms Meager. In applying for leave to appeal Ms Meager raised a parity argument by reference to the sentencing of Ms Collier. Latham J (Young JA and Johnson J agreeing) rejected the contention on the basis that they were not co-offenders so the parity principle had no application.
45. Other examples of the parity principle not applying to persons who are not co-offenders include:
Why v R [2017] NSWCCA 101: an attempted comparison of sentences passed upon a supplier and his customer where they each had other customers and suppliers.
Malouf v R [2019] NSWCCA 307: a complaint of disparity of sentences imposed upon a drug dealer and the person from whom he was receiving his supplies.
46. I have earlier (at [9]-[11]) sought to describe the facts of the present applicant’s offending in a manner that makes clear that he and Mr Mehmed can in no sense be regarded as “co-offenders”; that is, offenders involved in the same criminal enterprise. The applicant was a supplier of drugs to others. He sourced drugs from Mr Ali-Ahmed and others who were engaged in a separate drug supply enterprise. The agreed facts disclose only one occasion where the applicant’s offending intersected with that of Mr Mehmed and that was on 6 April 2020 when the applicant negotiated with Mr Ali-Ahmed to purchase drugs and they were delivered to him by Mr Mehmed.
47. The offender had no apparent interest or involvement in the drug supply enterprise being conducted by Mr Ali-Ahmed and others apart from being one of its customers and they had no interest or involvement in the drug supply enterprise being conducted by the applicant apart from being his upline supplier.
48. There was some discussion at the hearing about whether the applicant might alternatively rely upon the sentencing of Mr Mehmed as a comparator for the assessment of the manifest excess contention raised under Ground 1.[18] It was not an approach that was advanced with any enthusiasm by the applicant’s counsel. The discussions by Johnson J in R v Araya at [65]-[72], and by Latham J in Meager v R at [10]-[12], indicate that this would not have been a useful approach in any event. It is rarely useful to assess the severity (or inadequacy) of a sentence by reference to a single comparative case and here there are so many differences, from the offences charged through to the subjective factors that make such an exercise inutile.
49. There is no merit in this ground.
Orders
50. I propose the following orders:
(1) Leave to appeal against sentence granted.
(2) Appeal dismissed.
[1] Proceedings on sentence (POS), 5.11.21, T7.10
[2] POS 5.11.21, T11.45
[3] POS 5.11.21, T12.15
[4] Remarks on sentence (ROS) 10
[5] POS 30.11.21, T20.1
[6] ROS 21
[7] ROS 22-23
[8] ROS 25-27
[9] ROS 27
[10] Applicant’s written submissions [17]
[11] AWS [18]-[19]
[12] AWS [20]
[13] ROS 11.5
[14] AWS [25]
[15] ROS 11.3
[16] AWS [32]
[17] Crown written submissions at [60]
[18] CCA 30.6.23, T4.35ff
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