HOEBEN CJ at CL:
Offences and Background
In 2010 the applicant became involved in a large scale drug supply operation. He began by travelling from Perth to Sydney carrying large amounts of cash. In Sydney he met Mr Yazdani, who was the principal of the criminal syndicate. Yazdani asked the applicant to be a driver for him and also test drugs for him, both of which he did. The sentencing judge found that the applicant "acted as the personal assistant to the principal". In this role, the applicant travelled around the country assisting with the transport of several separate deliveries of drugs (large commercial quantities of methylamphetamine and heroin), helped cut and package drugs and collected profits from interstate.
Berman SC DCJ found that the applicant did not get involved in drug dealing due to addiction, but for money. The applicant was arrested on 15 February 2011 after the police intercepted suitcases containing almost 10kg of methylamphetamine with a street value of more than $2.9 million. The applicant pleaded guilty to six charges relating to the supply of large commercial quantities of methylamphetamine and heroin through his participation in a criminal group. The applicant was sentenced in the District Court on 2 December 2011. After discount the applicant's overall sentence was 13 years with a non-parole period of 9 years starting on 15 February 2011 making the applicant eligible for parole on 14 February 2020.
The applicant received a discount of 55 per cent on his sentences for his guilty plea, remorse, contrition and assistance to authorities. Upon his arrest, he provided immediate assistance to the police and told them much more about his own illegal activities than they would otherwise have been able to discover. He promised to give evidence against others involved in the operation, including Yazdani, which he did. Berman SC DCJ found "this is high level assistance".
The offences and individual sentences were as follows:
Sequence 4 - participating in a criminal group - s 93T Crimes Act 1900 (NSW) - 2 years fixed term, starting 15 February 2011.
Sequences 5 and 6 - each: supply a large commercial quantity (6kg) of methylamphetamine - s 25(2) of Drug Misuse and Trafficking Act 1985 (NSW) (DMTA) - for each: 9 years imprisonment with a non-parole period of 6 years starting 15 February 2011.
Sequence 7 - supply a large commercial quantity (1.05kg) of heroin - s 25(2) DMTA - 6 years imprisonment with a non-parole period of 4 years, starting 15 February 2012.
Sequence 8 - supply a large commercial quantity (6kg) of methylamphetamine - s 25(2) DMTA - 9 years imprisonment with a non-parole period of 6 years starting 15 February 2012.
Sequence 9 - supply a large commercial quantity (10kg) of methamphetamine - s 25(2) DMTA - taking into account the Form 1 offence (listed below) 11 years imprisonment with a non-parole period of 7 years starting 15 February 2013.
The Form 1 offences were:
1. Possess prescribed restricted substance, namely anabolic steroids, contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW); and
2. Deal with the proceeds of crime, namely $16,500, contrary to s 193C(1) of the Crimes Act.
The applicant appealed against his sentence. There were four grounds of appeal including a complaint that the sentences were manifestly excessive. The Court of Criminal Appeal dismissed the appeal on 1 February 2013 (AMZ v R [2013] NSWCCA 6). This appeal was dealt with before Yazdani was sentenced. The issue of parity was not raised.
Yazdani pleaded not guilty to 16 counts relating to supply and distribution of drugs and stood trial in December 2014. On two counts there was a directed verdict of not guilty (Counts 7 and 15); on one count there was a finding by the jury of not guilty (Count 12); and on one count he was found not guilty as charged, but guilty of the statutory alternative relating to the indictable quantity of the prohibited drug (Count 13). The jury found Yazdani guilty of the remaining 12 counts.
On 15 May 2015 Yazdani was sentenced by Woods QC DCJ in the District Court at Gosford. His Honour imposed an aggregate sentence for all of the offences 28 years with a non-parole period of 21 years beginning 27 March 2012 with Yazdani eligible for parole on 26 March 2033.
The offences and indicative sentences assessed by Woods QC DCJ were as follows:
Count 1 - participate in a criminal group - s 93T Crimes Act - 3 years.
Counts 2 to 4 - each: supply a large commercial quantity (6kg) of methylamphetamine - s 25 DMTA - for each: 20 years with a non-parole period of 15 years.
Count 5 - supply a large commercial quantity (slightly over 1kg) of heroin - s 25 DMTA - 12 years with a non-parole period of 9 years.
Count 6 - supply a large commercial quantity (1.65kg) of 3, 4 methylenedioxymethamphetamine (ecstasy) - s 25 DMTA - 12 years with a non-parole period of 9 years
Count 8 - supply a large commercial quantity (7kg) of methylamphetamine - s 25 DMTA - 20 years with a non-parole period of 15 years.
Count 9 - supply a commercial quantity (700g) of heroin - s 25 DMTA - 8 years with a non-parole period of 6 years.
Count 10 - supply a large commercial quantity (approximately 18kg) of 3,4 methylenedioxymethamphetamine (ecstasy) - s 25 DMTA - 20 years with a non-parole period of 15 years.
Count 11 - supply a large commercial quantity (slightly under 10kg) of methylamphetamine - s 25 DMTA - 20 years with a non-parole period of 15 years.
Count 13 - supply a commercial quantity (337g) of methylamphetamine - s 25 DMTA - 5 years.
Count 14 - deal with the proceeds of crime, namely a sum slightly over $7,000, knowing it was the proceeds of crime - s 193C Crimes Act - 5 years.
Count 16 - deal with the proceeds of crime, namely a sum of $861,300, knowing it was the proceeds of crime - s 193C Crimes Act - 8 years.
Yazdani appealed against his conviction but did not seek leave to appeal against sentence. The Court of Criminal Appeal dismissed the conviction appeal on 2 September 2016 (Yazdani v R [2016] NSWCCA 194).
The applicant made an application, pursuant to Pt 7 Div 3 of the Crimes (Appeal and Review) Act 2001 (NSW), for an inquiry into the sentence imposed on him. The basis for the application was that he had a justifiable sense of grievance in the light of the sentence imposed upon Yazdani. The applicant submitted that there was a doubt or question as to a mitigating circumstance in the case, namely the lack of appropriate disparity between his sentence and those assessed for Yazdani.
The applicant submitted that when one compared his undiscounted sentences to the indicative sentences imposed on Yazdani, it could be seen that the sentences imposed on him were either the same or greater than the indicative sentences for Yazdani. This comparison, he submitted, made it clear that he was dealt with more harshly than Yazdani.
The Pt 7 application was considered by R A Hulme J on 19 April 2017 (Application by AMZ pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2017] NSWSC 432). His Honour found that the issue of equal justice could be assessed from calculations of the starting point for the applicant's individual sentences before the application of the discount. Having regard to the notional starting point for his individual sentences, compared to the indicative sentences for Yazdani, there did appear to be a basis for the applicant having a legitimate sense of grievance.
R A Hulme J was satisfied that there were significant differences between the circumstances of the applicant and Yazdani so as to justify the applicant's sense of grievance. Yazdani was the "principal", whereas the applicant was "the personal assistant to the principal". Berman SC DCJ found that while the applicant's "role was much higher in the hierarchy than a mere courier", his actions were "at the direction of others" and there was no suggestion that he "exercised any independent or innovative thought about this drug supply business".
R A Hulme J noted that there was also a significant difference between the subjective cases of the applicant and Yazdani. Berman SC DCJ accepted that the applicant was remorseful, most unlikely to re-offend, had good prospects of rehabilitation and had no prior convictions. Yazdani, on the other hand, had a criminal history of previous drug offences and was declared a habitual trafficker in Western Australia. Woods QC DCJ found that the only mitigating factor in Yazdani's case was the dislocation in his early life and his family because they came to Australia as refugees.
R A Hulme J was satisfied that sentences between two co-offenders may be compared for the purposes of determining whether there has been equal justice, despite the fact that one offender received an aggregate sentence (R v Clarke [2013] NSWCCA 260 at [68] and [75] per McCallum J; Prelipceanu v R [2016] NSWCCA 280 at [57] per Button J). R A Hulme J determined that the primary consideration in such an exercise would be considering the indicative sentence for the equivalent offence (R v Clarke at [68]). He noted that one of the functions of requiring judges to provide indicative sentences was to afford an ability to analyse sentence structures and compare sentences imposed on offenders who shared crimes (JM v R [2014] NSWCCA 297 at [39]; Prelipceanu v R at [57]).
As a result of that analysis, R A Hulme J determined that the applicant had a justifiable sense of grievance arising from parity issues between his sentence and that of Yazdani. As a result, his Honour found that there was a doubt or question as to the sentence imposed on the applicant and referred the whole of the case to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act.
It is as a result of that determination by R A Hulme J that the matter is presently before the Court.
The ground of appeal relied upon by the applicant was:
Ground 1: In light of the sentence imposed upon the co-offender Yazdani, the applicant has a justifiable sense of grievance.
Consideration
I have concluded that the applicant does have a justifiable sense of grievance for the reasons already referred to. In addition, when one has regard to the fact that Yazdani was sentenced for 13 very serious offences, whereas the applicant was sentenced in respect of 6, the discrepancy between the sentences becomes even more obvious. In those circumstances, the major issue for consideration by the Court is whether a further reduction in the applicant's sentence would produce a result which would be regarded as erroneously lenient and therefore "an affront to the proper administration of justice".
In considering that question, regard has to be had to the substantial quantities of drugs which were involved in each supply and the objective gravity and high moral culpability associated with the offending.
These issues were fully discussed by the Court (Meagher JA, Fullerton and Schmidt JJ) in Saraya v Regina [2015] NSWCCA 63:
"8 The ground of appeal invokes the "parity" principle which is founded on the notion of equal justice. In broad terms that notion requires that "like offenders should be treated in a like manner": per French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [28].
9 The jurisdiction of this Court under s 6(3) of the Criminal Appeal Act to quash a sentence "if it is of opinion that some other sentence, whether more or less severe is warranted in law" permits the Court, in its discretion, to reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender or co-offenders. As Gibbs CJ explained in Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610, the reason why the Court interferes 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". See also per Mason J at 613.
10 Whether there is an unjustifiable disparity directs attention to the differences in the sentences and whether, in the mind of an objective observer, the disparity would give the appearance that equal justice has not been done. That comparison must take account of differences between the antecedents, personal circumstances of the co-offenders and any mitigating factors and the part played by each in the relevant criminal conduct, as well as the fact that those differences form the basis of qualitative and discretionary judgments made as part of the sentencing process: Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 323, 338; Green at [31], [32].
11 Whilst disparity between sentences may be an indicator of appealable error, it is the presence of unjustifiable disparity that is the ground for intervention: Lowe at 610, 613, 617, 623; Postiglione at 322; Green at [32]. Consistently with that being the position and as was the case in Lowe, the disparity may arise in respect of, and the principle apply to, the sentence imposed on the first of a number of co-offenders to be sentenced, as is the case on this application: Jones v The Queen (1993) 67 ALJR 376; R v Bellorini and R v Ruiz [2000] NSWCCA 50.
12 In Green, the majority considered, in accordance with the view expressed by Mason J in Lowe at 613 - 614, that in the exercise of the appellate discretion enlivened by unjustifiable disparity, a "sentence which would otherwise be appropriate can be reduced … to a level which, had there been no disparity, would be regarded as erroneously lenient": [33]. At the same time it was recognised that the existence of a discretion to mitigate disparity by reducing a sentence to one which is otherwise inadequate does not amount to an obligation to do so; and would not require the reduction of a sentence to a level which could be characterised as "an affront to the proper administration of justice": [33].
13 These observations of the majority do not squarely address whether a sentence imposed on a co-offender that is manifestly inadequate can give rise to unjustifiable disparity.
14 As is noted by Bell J in Green at [106], there is authority in this Court that the inadequacy of the sentence imposed on a co-offender may be of such a degree that any sense of grievance engendered in the offender sentenced more severely cannot be regarded as legitimate. That was also the view of Brennan J in Lowe at 617 - 618. In R v Diamond (Court of Criminal Appeal (NSW), 18 February 1993, unrep) Hunt CJ at CL said at 5 (James J agreeing):
"The sentence imposed … was, as I have said, appropriate and not excessive. That imposed by the Magistrate was, as I have also said, irresponsible. The disparity between them may give rise to a sense of grievance on the part of the applicant, but it was not a justifiable one."
See also per Howie J (McClellan CJ at CL and Simpson J agreeing) in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [69] and per Howie J (James and Davies JJ agreeing) in Josefski v R [2010] NSWCCA 41; 217 A Crim R 183 at [65].
15 The decision in Diamond is also cited in support of the proposition that the discretion to mitigate disparity should not be exercised to reduce an otherwise adequate sentence to a level which would be an affront to the proper administration of justice: see Green at [33] fn 96; R v Doan [2000] NSWCCA 317; 50 NSWLR 115 at [19]; R v Chen & Others [2002] NSWCCA 174; 130 A Crim R 300 at [289]; R v Ismunandar and Siregar [2002] NSWCCA 477; 136 A Crim R 206 at [23] - [26].
16 The relevant principle is stated by R A Hulme J (Beazley JA and Hidden J agreeing) in Youkhana v R [2011] NSWCCA 37 at [49]:
"… the Court has a discretion and is not bound to intervene if a sentence offends the parity principle. A reason for not intervening is if the sentence imposed upon the co-offender is manifestly inadequate and intervention would "produce a sentence disproportionate to the objective and subjective criminality involved".
17 In such a case the necessity to uphold public confidence in the administration of justice continues to prevail for the reasons given by Gleeson CJ in R v Rexhaj (Court of Criminal Appeal (NSW), 29 February 1996, unrep), in the following passage which is extracted in R v Ismunandar at [38]:
"The principle which underlies … [intervention for disparity] … is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice … . There are, however, other things which may also lead to an erosion of public confidence in the administration of justice, and they include the multiplication of manifest errors. That is why numerous judges have stressed the unattractiveness of responding to one wrong decision by making another wrong decision.""
Although the sentence imposed on Yazdani was a lenient one, given the extensive nature of his offending, it was not one which I would regard as erroneously lenient. In any event, there was no Crown appeal against sentence. Accordingly, there is some capacity for a further reduction in the applicant's sentence, although as already indicated, that is constrained by the seriousness of his offending and the need to impose a sentence which is not erroneously lenient. In those circumstances, error having been identified, it is appropriate to resentence the applicant.
What needs to be taken into account before resentencing are those matters which have happened to the applicant between the date of the original sentence and the present time. It seems that the applicant's parents and family remain highly supportive of him and travel from Perth to Sydney at least once a month to visit him. The applicant has held institutional employment since his entry into custody and has attained various occupational certificates during that time. He has abstained from the use of illicit substances while in custody and there have not been any positive urine analysis results. He has suffered some periods of anxiety while in custody but has endeavoured to remain positive by keeping himself busy. He continues to be in protection while in prison.
On resentence the indicative sentences which I would impose are as follows:
Sequence 4 - participate in a criminal group - 1 year fixed term.
Sequence 5 - supply large commercial quantity of methylamphetamine (6kg) - 7 years imprisonment with a non-parole period of 4½ years.
Sequence 6 - supply large commercial quantity of methylamphetamine (6kg) - 7 years imprisonment with a non-parole period of 4½ years.
Sequence 7 - supply large commercial quantity of heroin (1.05kg) - 4½ years imprisonment with a non-parole period of 2½ years.
Sequence 8 - supply large commercial quantity of methylamphetamine (6kg) - imprisonment for 7 years with a non-parole period of 4½ years.
Sequence 9 - supply large commercial quantity of methylamphetamine (10kg) - 8 years imprisonment with a non-parole period of 5 years.
Having regard to totality and general deterrence, I have in the re-exercise of the sentencing discretion reduced the amount of concurrency from that allowed by Berman SC DCJ. As the indicative sentences make clear I have used the same combined discount of 55 per cent as Berman SC DCJ. This has resulted in an aggregate sentence of imprisonment for 12 years with a non-parole period of 8 years, commencing 15 February 2011 and expiring on 14 February 2019, with the balance of term expiring on 14 February 2023. The applicant will be eligible for parole on 14 February 2019.
The orders which I propose are:
1. Leave to appeal against sentence granted.
2. Appeal allowed.
3. The sentence imposed by Berman SC DCJ on 2 December 2011 is quashed.
4. In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 8 years commencing 15 February 2011 and expiring on 14 February 2019 with a balance of term of 4 years expiring on 14 February 2023.
PRICE J: I agree with Hoeben CJ at CL.
SCHMIDT J: I agree with Hoeben CJ at CL.
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Decision last updated: 02 August 2017