Aljubouri v R

JUDGMENT

1. BEECH-JONES CJ at CL: I joined in the orders made by the Court on 28 November 2022. As the judgment of Walton J and the table attached thereto make clear there was little, if any, difference between the sentences, including the non-parole periods, imposed or indicated for the manufacture offence for the applicant and his co-offenders. With the exception of the co-offender Gao whose period of involvement was shorter and, to a lesser extent, the co-offender Chan, the sentencing judge's assessment was that there was no real difference in their culpabilities. I agree with that assessment. Each of their subjective cases had their strengths and weaknesses but overall they balanced out. In the end result the sentences imposed represented a correct application of the parity principle. I otherwise agree with Walton J.
2. WALTON J: By a Notice of Appeal filed on 8 September 2022, Mohammed Aljubouri ("the applicant") sought leave to appeal pursuant to s 5(1)(c) of the Criminal Appeals Act 1912 (NSW) against a sentence imposed upon him by his Honour, Judge Whitford SC ("the sentencing judge"), in the District Court of New South Wales on 17 September 2021.
3. Whilst the applicant relied upon two grounds of appeal, in substance, the appeal was predicated upon a contention that there had been a misapplication of the principles of parity from Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at [301]-[302]; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (see also Borg v R [2019] NSWCCA 129 at [88] (per Bathurst CJ, Hamill and N Adams JJ agreeing) and Mir v R [2022] NSWCCA 132 at [29] (per Hamill J with whom Gleeson JA and Bellew J agreed).
4. The applicant pleaded guilty to a single count that between 4 March 2019 and 5 April 2019 he did manufacture an amount of prohibited drug, namely, 5,820 grams of methylamphetamine, which was no less than a large commercial quantity applicable to that prohibited drug, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) ("the offence").
5. On sentence of the applicant, by way of a Form 1, the offence of knowingly deal with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 (NSW) was taken into account.
6. The maximum penalty for the offence was life imprisonment with a standard non-parole period of 15 years. The offence taken into account on the Form 1 carried a maximum penalty of 15 years imprisonment.
7. The applicant was sentenced to imprisonment for 7 years, 6 months with a non-parole period of 4 years. As the applicant had entered a plea of guilty in the Local Court, the sentencing Judge discounted the applicant's sentence by 25%. The sentence was dated from 4 April 2019 and took into account the entire period of the applicant's remand. The applicant is eligible for parole on 3 April 2023, and the sentence will expire on 3 October 2026.
8. The applicant's four co-offenders, Gavin Craig Ardus ("Mr Ardus"), Mason Chan ("Mr Chan"), Duong Le ("Mr Le") and Yan Gao ("Mr Gao") were also sentenced for their joint involvement in the offence. All but Mr Gao were sentenced on the same day as the applicant. They were all sentenced by the same sentencing judge.
9. The sentences imposed upon the co-offenders as well as other relevant considerations relevant to the question of parity in sentencing were helpfully summarised in a table produced by the Crown which is annexed to this judgment marked Annexure A.

Factual Background

1. Agreed statements of facts were produced with respect to the applicant and each of the co-offenders. There were differences between the agreed statements in each of the sentencing proceedings. It was suggested by counsel for the applicant that the sentencing judge did not, in his reasons for sentencing the applicant, appreciate the relevant aspects of the differences in those agreed facts or was not cognisant of them in critical aspects of his sentencing of the applicant.
2. I do not accept that submission, as it is plain from the record of the proceedings that his Honour was apprised of the differences in the factual backgrounds and his Honour's reasons for sentence demonstrate that he was cognisant of relevant differences in the criminality of the offenders, based upon those agreed facts.
3. When properly understood, the case advanced by the applicant was that his Honour did not pay sufficient attention or give sufficient weight to important differences demonstrated by the agreed facts and in particular, failed to sufficiently recognise differences in the roles of the respective offenders.
4. The Crown's written submissions as to the factual background were not controversial and with some supplementation, form the foundation for the summary which now follows.
5. The applicant and his co-offenders were involved in a joint criminal enterprise to manufacture a large commercial quantity of methylamphetamine in a residential unit located at 9/6 Hilts Road, Strathfield ("the Strathfield unit"). Surveillance was put in place by police, who observed the offenders engage in numerous activities in furtherance of the enterprise. Other places were the subject of police surveillance, including a Kennards self-storage in Prestons, which the applicant had leased and where the waste products from the drug manufacture were being stored, and Bunnings Warehouse stores located in Rydalmere and Lidcombe, from which materials used in the drug manufacture were purchased.
6. Each offender was arrested on 4 April 2019, but before each was taken into custody, the group was able to pack up part of the Strathfield unit and place items into a vehicle, which escaped police apprehension. Those items, and the driver of that vehicle, were never apprehended.
7. Police searched the Strathfield unit where the manufacture took place. Approximately 250 relevant items were seized, including induction hotplates, pH meters, barrels, resealable plastic bags, sieves, and thermometers. Chemicals such as acetone, caustic substances and magnesium sulphate were also present. An expert report determined that the methylamphetamine had been secreted in bottles of chilli sauce, from which it was separated and then refined by a process of distillation. It was determined that, in total, 5.82 kilograms of methylamphetamine had been manufactured. It was the Crown case, and the agreed position at sentence, that each of the offenders was jointly liable for the manufacture.
8. The storage units leased by the applicant were also searched. Inside, police found a number of buckets and containers containing caustic liquids which were determined to be the by-product of the manufacture of methylamphetamine. The applicant agreed that he had leased the units for approximately $1000 per month. Aside from Mr Gao, each of the offenders attended the Kennards storage units.
9. The applicant placed particular reliance on one aspect of the table of facts appearing in the agreed statement of facts for the applicant which stated that at 1.30am on 4 April 2019 the co-offender Ardus was seen carrying "a large cardboard box with stainless steel vessel" and the co-offenders Chan and Le "talk about sewerage drug testing system in Australia." The entry also noted that around "3.01am [the applicant] enters unit with water bottle and is later seen wearing gloves."
10. Reference was made to other aspects of surveillance. In that respect, emphasis was placed upon [23] of the agreed statement of facts for the applicant, which was expressed in the following terms: 23. ALJUBOURI leased two units used by the group at Kennards Self Storage, Preston with 24-hour pin access. These cost him in total about $1000 per month. The records and CCTV show that between 5 March and 4 April 2019 ALJUBOURI, CHAN, ARDUS and LE attended the storage unit on occasion. [Section omitted from the agreed statements of some co-accused]. CHAN is only captured on the CCTV attending the storage unit on one occasion.
11. It will be observed from the notation of the extract above that one section of the agreed facts was omitted in the case of the applicant. In the agreed statement of facts with respect to Mr Chan, the following words appearing in the omitted section were: "to either put in or take out items consistent with the manufacture of methylamphetamine". Those words also appear in the agreed statement of facts for Mr Le, although the final sentence of the paragraph does not appear concerning Mr Chan. The agreed statement of facts for Mr Ardus takes the same form as the applicant's, save that the final sentence is omitted.
12. By reference to the results of the analyses conducted by police, attention was focused in the applicant's submissions upon [32] of the applicant's agreed statement of facts which was in the following terms: 32. Whilst the Crown concedes it could not prove, beyond reasonable doubt, that Mr Aljubouri knew the actual amount of methylamphetamine manufactured, it is accepted by both parties that he knew it was a quantity considerably over 500 grams.

Grounds for Appeal

1. As earlier mentioned, there were two grounds for appeal. The grounds for appeal were expressed as follows: Ground One [a] The sentencing judge erred in assigning to the applicant comparable culpability in the enterprise measured against [a] Ardus and [b] Le. [b] The comparable indicative sentence determined in the case of Ardus and Le measured against the sentence imposed upon the applicant gives rise to a legitimate sense of grievance on his part. Ground Two [a] The sentencing judge erred in assigning to the applicant greater culpability in the manufacture than that found in the case for [a] Chan and [b] Gao. [b] The lesser indicative sentence determined in Chan's case in respect of the manufacture measured against the sentence imposed upon the applicant gives rise to a legitimate sense of grievance of his part. [c] The lesser sentence imposed upon Gao gives rise to a legitimate sense of grievance on the part of the applicant.
2. By way of elaboration in written submissions for the applicant, the following was advanced as demonstrating the error in House v The King (1936) 55 CLR 499; [1936] HCA 40 at [505]: 1. Did not take into account in assessing the applicant's culpability material considerations namely: 1. The Crown's concession as to his limited knowledge as to the size of the cook which in turn was consequent upon others [Messrs Le, Ardus and Gao and not the applicant] being present and active during the cook. 2. As compared to Mr Chan, Mr Le and Mr Ardus the applicant's age [23 years old] and lack of antecedents. 1. Allowed irrelevant matters to guide him namely the supposed "trust" lying in the applicant as a distinguishing feature adverse to him in the parity exercise. 2. Did not regard relevant matters as material that is the applicant was not at the cook at any material time, nor observed to do anything material before the day of his arrest in respect of it. 3. Mistook the facts having found that the applicant attending at the units as a distinguishing factor elevating his criminality [as against whom it was not clear].

The Appeal

1. At the conclusion of the proceedings before this Court on 28 November 2022, after hearing oral submissions, the primary orders made by the Court were as follows: 1. Leave to appeal granted. 2. Appeal dismissed. 3. Reasons for judgment reserved.
2. It was indicated on that occasion that reasons for judgment would be provided in due course. These are my reasons for the making of those orders.

Findings on Sentence Relevant to the Parity Issue

1. After acknowledging that it was necessary to consider the particular agreed statement of facts and prosecution material in each offender's case, the sentencing judge stated that he accepted the prosecution's submission that, as to the objective gravity of the offending represented by the manufacture of a large, commercial quantity of methylamphetamine at the Strathfield unit, there was no discernible hierarchy between the offenders, save as to the prosecutions concession as to the lesser culpability of Mr Chan.
2. The sentencing judge accepted that none of the offenders were in control of the enterprise in which they participated. There were many participants.
3. From that starting point, his Honour indicated that there were a number of other matters that operated "globally". His Honour listed four such factors. Two of those are contained in the following passages from reasons for sentence: 19 There are a number of other matters that operate globally in the way I have indicated. They are the following: (a) First, the quantity of methylamphetamine manufactured (5.82 kg), whilst relatively low compared to what is frequently seen in respect of this offence in this Court is not insignificant. That quantum is far from determinative of the seriousness of the offending in each case, however it provides some guide to the potential for harm to be caused to the community. (b) Second, the potential financial returns from this quantity of methylamphetamine are also not insignificant. That said, the prosecution does not make any submissions as to the individual financial reward of any of the individual offenders and does not rely on financial reward as an aggravating feature. There is no evidence that supports a conclusion that these offenders were even likely to participate in the profits from the illicit commercial enterprise, as distinct from merely being paid to undertake the work they did in its execution, at the direction and under the supervision of those ultimately responsible for and intended to profit from the enterprise.
4. The sentencing judge found that, although there was evidence of different tasks performed by each offender, and it appeared there was a "degree of hierarchy", ultimately, the evidence did not permit conclusions beyond a reasonable doubt of any significant difference in the "objective gravity" of the role of each offender.
5. The sentencing judge found that each of the offenders: "was present and participating when required throughout the relevant period and they were all consciously part of a concerted, reasonably sophisticated, and reasonably well-planned criminal effort. The enterprise would not have been achieved without the individual contributions of each offender."
6. The sentencing judge then made the following findings as to the respective individual roles of the offenders and as to the comparative objective seriousness of their offending: [23] In my assessment, neither the differences in observed roles, nor the expression of the particular tasks to which they were individually devoted, justifies any practical distinction among the offenders in an assessment of the gravity of their individual offending as it relates to the manufacture. They do different things, at different times, but so far as the evidence before me reveals they each make practical, though relatively low level, contributions to the enterprise. By way of example, Mr Aljubouri appears to play a significant role with respect to the storage facility in both arranging and attending the units but spends less time at the Strathfield flat and it is not his premises. Mr Aljubouri is arrested leaving the flat in possession of a large amount of cash whereas others are not in possession of such large amounts. Mr Ardus is recorded in conversations that demonstrate he has a greater knowledge of the process of manufacture of methylamphetamine than others, but it is not his premises where the manufacture takes place, he didn't arrange the storage units or attend as often as others. Mr Chan is recorded in conversations that show he doesn't have the same knowledge as others as to the manufacture process but show he is keen to learn. However, Mr Chan attends the Strathfield flat often and assists in moving trolleys and items in an out of the flat where the manufacture is taking place. Mr Le is recorded in conversations that show he has a greater level of knowledge of the manufacture than others and the manufacture takes place in his premises. However, Mr Le did not arrange the storage units and was not arrested in possession of a large amount of cash.
7. At [81] of the remarks on sentence, the culpability of Mr Chan was found to be lower than the others in respect of manufacturing for two reasons. First, the sentencing judge accepted that his motive for involvement was to help out those doing the manufacturing in a menial way in return for small amounts of the drug and money, and secondly because of the causal connection between his mental health conditions and the offending.
8. Mr Gao's role was also (in separate remarks on sentence) found to be "slightly more limited" than the other offenders, to account for his later involvement in the enterprise; being from 13 March 2019 onwards.
9. In relation to the applicant's Form 1 offence, the sentencing judge found that the possession and transport of the $66,200 was related to his role in the offence and, therefore, it was of marginal significance to his overall penalty. However, it was a significant matter in the case against the applicant because it indicated the level of his responsibility in the principal offending, in that he was trusted to transport a substantial sum of money related to the enterprise, among other matters. The Form 1 offences of Mr Ardus and Mr Gao were also found to be related to their principal offending.
10. His Honour directly addressed the issue of parity in the following passage: [106] "Addressing in anticipation any question of parity that might arise, I re-emphasise that in my instinctive assessment the culpability of Messrs Aljubouri, Ardus and Le, in respect of the manufacture, are relevantly indistinguishable on the material before me, notwithstanding the involvement of each in different activities. Messrs Le and Ardus seem to have been more directly involved in activities at the Strathfield apartment, but Mr Aljubouri was plainly trusted to undertake significant tasks in the transportation of money and organising storage facilities. I have accepted as appropriate the prosecution submission as to the lesser culpability of Mr Chan in respect of that joint criminal enterprise. In terms of any apparent disparity arising on account of the identical aggregate sentence, notwithstanding different indicative sentences for count 2 in the cases of each of Messrs Ardus and Le, I indicate that in my assessment, the nature of the offending in the case of Mr Le's count 2, and the degree of criminality I assess to reside in it over and above the criminality embraced by count 1 - in particular on account of public safety considerations - warrant a degree more notional accumulation in respect of it than I have taken into account in respect of Mr Ardus' count 2. Again, I reiterate that although different considerations arise in the case of each offender, along with some considerations in common, the practical mitigatory effect of the combination of factors in the subjective case of each is relevantly indistinguishable in my assessment."

Submissions for the Applicant

1. The applicant approached the grounds of appeal collectively.
2. The applicant contended that he was at the lower end of the enterprise. It was submitted that there were "significant point(s) of difference" between the applicant and Mr Ardus and Mr Le (Ground 1) and Mr Gao (Ground 2) based upon the applicant's knowledge of the quantity of drugs manufactured and what the applicant "actually did" including his absence from the cook which commenced not before 23 March 2019 (with preparation for the cook commencing from 5 March 2019).
3. The agreed statement of facts tendered with respect to the applicant and Mr Chan did not prove their actual knowledge of the quantity of manufacture of methylamphetamine beyond that which was accepted by the plea, namely, that the enterprise would generate not less than 500 grams of the prohibited drug. If the applicant did not know of the scale of the manufacturing, then he could not participate in an enterprise of that scale. The applicant also submitted that it was not clear why the Crown conceded that Mr Chan's culpability was reduced by him entering a plea to a charge of "knowingly take part in the supply of a large commercial quantity of methylamphetamine."
4. The applicant's attendance at the Strathfield unit was only three occasions (5, 14 and 20 March 2019) when nothing of relevance was recorded. He also attended on the day of his arrest. The findings made by the sentencing judge that Mr Le and Mr Ardus were more directly involved in activities at the Strathfield unit than Mr Chan, did not extend to the applicant, who had significantly less involvement in the cook.
5. As to the cook, the applicant's absence may be contrasted with the more extensive role in the preparation and manufacture of illicit drugs by Mr Ardus and Mr Le. The applicant's involvement on the day of his arrest was only that he was directed to carry a shoebox containing $66,200 in cash. This gave rise to a conclusion by a sentencing judge that the applicant was "trusted" to transport a substantial sum of money related to the enterprise.
6. The sentencing judge failed to recognise these differences, particularly in the assessment of factors which operated globally against the offenders (see the extract from 19, (b) of the reasons for sentencing above).
7. Mr Gao was also in attendance at the Strathfield unit on many occasions, before and during the cook.
8. The storage units leased by the applicant were not leased for "the purposes of the enterprise", as opposed to being utilised by the offenders to store the by-products of the manufacture of methylamphetamine (it was not clear who left the by-products at the units). The applicant played no more significant role in attending the storage units than Messrs Chan, Ardus or Le. It was not clear that the leasing of the units was in furtherance of the enterprise and, therefore, it is questionable that it increased the criminality of the applicant. The history given by the applicant to Dr Neilson revealed the storage units were contemplated as being for a number of different (legitimate) purposes.
9. The applicant was not sentenced on the basis that he put in or took out items consistent with the manufacture of methylamphetamine from the storage units. His involvement in the storage units was overall "neutral". He did not attend the unit in the way characterised by the sentencing judge.
10. As to the applicant's possession of cash, he was instructed to take it and Messrs Ardus and Chan were in constructive possession of it. The "trust" in having the proceeds was no different to the trust reposing in those cooking to keep the process of cooking confidential. The applicant was not in the "inner circle" in the way that Mr Chan and Mr Gao were. For example, those persons remained with the group cleaning and packing up at the end of the manufacturing.
11. The sentencing judge considered that the subject cases for each offender would not result in a markedly different quantum on sentence for the offences and that any beneficial finding for Mr Chan needed to be considered in that light.
12. Mr Gao was viewed by the sentencing judge as having a slightly "more limited" role than other co-offenders based upon his participation being not before 13 March 2019 and his limited time in the cooking process. But both circumstances apply to the applicant's responsibility. Mr Gao was, however, aware of the true scale of the manufacture.
13. Overall, it was contended, the applicant did not spend time in the Strathfield unit during the course of the manufacture of methylamphetamine except for the date of his arrest and he was not appraised of the scale of the manufacture. He only provided the storage units, and his possession of cash was neutral in the assessment of parity with the other co-offenders, who were also involved in or in connection with the cash.

CONSIDERATION

1. The applicant has failed to establish, in my view, that there is a marked disparity between the sentence of the applicant for his offending and the sentences for Messrs Ardus and Leon the one hand and Messrs Gao and Chan on the other which would give rise to a justifiable sense of grievance.
2. The sentencing judge undertook a careful balancing of qualitative and other relevant sentencing factors in sentencing the applicant and Messrs Ardus, Chan and Gao and, in doing so, attached importance to the operation of the parity principle in his remarks on sentence. The sentencing judge specifically applied the principle of parity in sentencing: Borg v R [2019] NSWCCA 129. No error has been demonstrated in that balancing process or as to particular conclusions reached by the sentencing judge in coming to the ultimate sentence imposed on the applicant.
3. I shall consider each of the factors relied upon by the applicant in support of the grounds of appeal as to parity issues in turn.
4. Whilst the agreed statement of facts for the applicant and Mr Chan indicated they were not aware of the full quantity of methylamphetamine manufactured by the group or enterprise, they were aware that it exceeded the threshold for a large commercial quantity and were aware that the amount "considerably" exceeded 500 grams.
5. The expression "considerably" in this context was not defined in the agreed statement of facts, but an understanding of it is assisted by related considerations.
6. The applicant rented two Kennard's storage units which housed the by-products or waste from the drug manufacture (which included drugs in addition to methylamphetamine). He paid $1000 a month for those units. Whilst the applicant gave differing accounts as to the circumstance in which he leased the units (for example, he told Dr Neilson that the unit was originally rented for his concreting business), he told Dr Neilson that the offender, Mr Le, asked him to store things in the unit which he agreed increased from one barrel to ten barrels. The increase in quantity was so great that he was required to lease the second unit. He told Dr Neilson he knew something was going on. When taken with his plea, it is available to conclude that his involvement consists of leasing the unit to store the waste products. He was not only aware of the fact of the waste products, but the quantity of the waste stored. This would have most certainly indicated that a considerable amount of drugs were being manufactured.
7. These considerations have significance in two respects. First, it identifies the extent of the applicant's knowledge of the scale of the manufacturing and that it was, in fact, substantial. Secondly, it entitled the sentencing judge to come to a conclusion that the acquisition of the storage units was a factor that balanced the less identifiable role that the applicant had in attending the Strathfield unit when compared with his co-offenders. Maintaining the lease to the storage units to house the waste products of the manufacture of drugs acted, as submitted by the Crown, as a means of preventing detection for the manufacturing operation. This was a significant activity or role of the applicant relevant to his sentencing, and distinguishable from the co-offenders.
8. Aside from the holding of proceeds of crime in the form of cash, the fact that the applicant knew a quantity of drugs was being manufactured considerably above a large commercial quantity, was evidence of his trusted role in the enterprise.
9. It was open to the sentencing judge to determine that the applicant's level of culpability was similar to the roles of Messrs Ardus and Le, whose roles were related to the physical process of manufacturing the methylamphetamine. There was no mistake of fact by the sentencing judge in this respect, any more than there was an error in finding that Messrs Gao and Chan were less involved in the drug manufacturing process than Messrs Ardus and Le. Given that neither Mr Gao nor Mr Chan were involved in the leasing of the storage units that housed the waste products from the manufacturing, then, again, putting aside the proceeds of crime offence, there was no error in the sentencing judge assessing their criminality in respect of the manufacturing offence as less than that of the applicant.
10. It is true that the manufacture of methylamphetamine took place within the Strathfield unit which was leased by Mr Le. The applicant definitely attended the unit less than other offenders. However, whilst the offenders such as Mr Chan and Mr Gao were trusted to be present at the cook and Messrs Ardus and Le were involved in the cook, it does not follow that the level of trust reposed in them was greater than that in the applicant. This is because the applicant was trusted with a large sum of cash related to the enterprise with which he was detected at the point of his arrest.
11. Manufacture of methylamphetamine and other drugs involved more than just cooking and necessarily involved ancillary arrangements by the housing of the waste products and dealing with the process. The sentencing judge was entitled to form the view that the Form 1 offence of knowingly dealing with the proceeds of crime was significant in sentencing the applicant.
12. It is true that the other offenders were involved to varying degrees in or responsible for sums of money in the joint criminal enterprise, but it was the applicant who was trusted to transport the actual proceeds and this elevated his role.
13. It was these qualitative considerations, particularly as to the role of the respective offenders, which his Honour properly took into account on sentencing the applicant and the co-offenders. Further, there was nothing in the remaining discretionary factors as to sentencing as set out in Annexure A, that would indicate principles of parity were infringed in the sentencing of the applicant. I note that Mr Chan had the benefit of a finding that his moral culpability was reduced because of his mental illness.
14. Overall, the grounds of appeal have not been established.
15. YEHIA J: I agree with Walton J.

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Annexure A 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. Decision last updated: 22 February 2023