Bisasa v R

Court of Criminal Appeal (NSW)|2023-08-18|Before: Walton J, Sweeney J

JUDGMENT

BASTEN AJA: I agree with Sweeney J.
WALTON J: I agree with Sweeney J.
SWEENEY J: The applicant, Akuila Bisasa, seeks leave to appeal against the sentence imposed upon him in the District Court on the sole ground that he has a justifiable sense of grievance in light of the sentence imposed upon a co-offender by the same sentencing judge.
The applicant was sentenced on 5 November 2019 by Pickering SC DCJ for one offence of jointly attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, namely, methamphetamine and 3,4-methylenedioxymethamphetamine, contrary to ss 11.2A, 11.1 and 307.5(1) Criminal Code Act 1995 (Cth), committed in October - November 2014. That offence has a maximum penalty of life imprisonment.
The applicant pleaded guilty to that offence in the Local Court and was sentenced, with a 25% discount for his plea of guilty, to imprisonment for 16 years 6 months with a non-parole period of 11 years 6 months. The sentence commenced on 4 February 2017 and will expire on 3 August 2033, the non-parole period expiring on 3 August 2028.
The co-offender, Mehmet Ozgen, was sentenced by Pickering SC DCJ on 20 March 2020, after being found guilty at trial of two offences of jointly attempting to possess a commercial quantity of an unlawfully imported border-controlled drug. That is, Mr Ozgen had two charges for the two drugs which were encompassed in the one charge for the applicant. Mr Ozgen was sentenced to imprisonment for 16 years with a non-parole period of 10 years.

Sentencing of the applicant

The applicant was sentenced on the basis of a Statement of Facts, some of which were disputed and resolved by his Honour in the sentence hearing.
In his Remarks on Sentence for the applicant, Pickering SC DCJ noted that he had already presided over the trial of Mr Ozgen and others, but had not yet sentenced them. His Honour stated the following facts and made the following findings.
The applicant was being sentenced for the one offence, with a maximum penalty of life imprisonment. Mr Ozgen was found guilty of "essentially the identical charges" as the applicant and his co-offenders who were sentenced with him.
The applicant pleaded guilty in the Local Court, which had a "very significant utilitarian discount value". The applicant had demonstrated genuine remorse for his involvement in the matter, and accepted responsibility for what he had done. The discount for the plea of guilty was 25%. The judge stated that, after Mr Ozgen and another were sentenced, the applicant would be able to see the impact of his plea: "… [He] should be able to see at a minimum, if they had equal involvement and equal subjective factors, assuming they existed, as an absolute minimum, [he had] receive[d] 25% less. Of course, other factors may come into play in the ultimate indication of the sentence. But… if all things were equal, it should be demonstrably obvious on the record that [he] received 25% less".
His Honour stated the factual background of the offence was as follows. On 19 November 2014 a consignment was imported into Australia. When it was examined by Customs, 113 boxes of methamphetamine and MDMA were found. The gross total weight of the drugs was 2.79 tonnes; 1.9 tonnes of MDMA and 878 kilograms of methamphetamine. The quantities of pure drugs were 655 kilograms of methamphetamine and 1.38 tonnes of MDMA, which his Honour described as "extraordinary" and "vast" quantities.
It was not the Crown case that the applicant and his co-offenders were involved in the importation of the drug into Australia, nor was it part of the Crown case that any of them were going to be part of the commercial distribution of the drugs. Their role was to obtain the drugs from the import-export facility at Blacktown, repackage them, then provide them to those who were going to be responsible for disseminating it into the community.
Australian Federal Police took the drugs from the boxes, repacked the boxes with an inert substance to "look as though nothing had happened", and maintained surveillance of the consignment.
Another co-offender had negotiated with an insider at the Blacktown premises, for payment, to facilitate access by the group to the shipping container by having the insider put the container in a non-secured area of the premises instead of the secure bonded area.
The plan was for the group to collect the drugs from Blacktown on the evening of 27 November 2014 and take them to Smithfield. That plan failed because the insider at the Blacktown premises put the container in an inaccessible position on 27 November. Two men were waiting at Smithfield for Mr Ozgen and the applicant to find out what was happening at Blacktown. Those two men were there to "move the large amount of material, but were not really trusted to know what was going on". The plan on 27 November having failed, plans were made for 28 November 2014. The co-offenders went to charity clothing shops around Sydney and bought clothes, intending to put them into the container after they removed the drugs, to give the impression, by its weight, that no one had accessed the shipping container.
The applicant and his co-offenders were thus able to obtain illicit access to the container, unpack the boxes thought to contain the drugs and replace them with materials they had brought to the facility for that purpose. They then put the removed packages in a hired truck and took the truck from Blacktown to a hired unit in Smithfield.
At the Smithfield unit all the offenders were responsible for undertaking the unpacking of the hired truck, and repacking what they thought were drugs into boxes for them to be subsequently distributed to other people. Police were waiting outside the Smithfield premises and all the men were arrested there.
His Honour said the applicant, through messages he was sending to one of those men, "seemed to have a greater insight into the plans that were going to occur". A co-offender was communicating between the insider at the Blacktown business and the applicant and Mr Ozgen. His Honour said "Ozgen was someone also to be trusted with information. [The applicant] seemed to have most of the information, but fundamentally they just all seemed to be acting as a bit of a team at that particular point".
His Honour said the applicant and Mr Ozgen were "getting instructions on the run. It did not seem to be their decisions, but others instructing them". In the task of obtaining clothes to substitute for the drugs, the applicant "was important in being involved in the organisation" and Mr Ozgen "was also involved in this aspect and was tasked with finding additional material to fill up some of the boxes".
Mr Ozgen was tasked by the applicant to find more boxes, as part of the repacking that was to be done in relation to the container and also for the repackaging of the drugs at Smithfield.
Messages on 28 November were "suggestive of [the applicant] being given orders, even if he was subsequently relaying those to other people". The applicant "was involved in asking Ozgen to do other tasks, to start finding different kinds of trucks", including trucks onto which the container could be loaded. Mr Ozgen "was involved in checking the internet to find out aspects of that". Messages on the Blackberry used by Mr Ozgen "showed that the contact was fundamentally between [the applicant] to Ozgen" and at times, another co-offender. "Indeed, more importantly, it showed that [the applicant] was the one who got orders directly from above" and forwarded them to Mr Ozgen and another co-offender.
His Honour said this "showed that [the applicant] was the main person communicating higher up the line … the one trusted … to get the message directly. But [he], then, without editing it at all, merely forwarded it to Ozgen" and another co-offender. The applicant "clearly trusted Ozgen [and the co-offender] with this information, and thought they could assist him in the role that then had to take place".
His Honour said he did not accept that at that stage, having done what he had done, the applicant did not know he was involved in attempting to possess a border-controlled drug. His Honour said the applicant was "involved in supervising an operation" that was going to involve six people, a truck; "he had started to have an idea how many boxes were needed, he was involved in buying those boxes and organising that through Ozgen" and they were searching for a truck to load the shipping container, and they needed to pay more money to the insider at the Blacktown business. His Honour found that at that stage, the applicant was "very conscious that he was involved in a significant operation and attempting to possess a border-controlled drug". His Honour found the applicant did not know precisely the amount or purity of the drugs "but he knew it was going to be substantial". His Honour said that that was also true of Mr Ozgen.
The applicant contacted Mr Ozgen and worked with him to get the money together ($40,000) for the insider at the Blacktown facility. They took on the responsibility between themselves to find the cash to give to that person.
The applicant, Mr Ozgen and a third offender were going to play a significant role in the operation and use manpower from the three other men to move the "significant amount of heavy boxes".
His Honour found that all six men were "playing similar roles" in the repackaging of the drugs for distribution. His Honour found that "what was required of all [the men] was that they would play a role in unpacking and repacking the shipping container … and that all of them would be involved in repacking and packing at Smithfield". "In that respect, their roles were actually, at least on 28 November, almost identical. Whatever [the applicant's] supervisory role was", he and all the others had to move boxes back and forth at the Blacktown premises and Smithfield unit. His Honour said that "… shows that all of them were at the bottom" being in contact with the drugs, which those "higher up" would not risk. His Honour said the applicant and Mr Ozgen were, whatever their roles, still at "the bottom", "at the coalface", "carrying boxes the same as everyone else".
His Honour stated that the applicant had a supervisory role, based on the Blackberry messages, but "the enterprise did not seem … structured in a manner where [the applicant] ... was clearly above Ozgen". His Honour found the applicant was the conduit of orders to others and therefore in a supervisory role, but in other respects, others could do tasks without him.
His Honour said that Mr Ozgen received orders at times from the applicant but not in a way that showed clearly that the applicant was "higher up the chain", more that they were part of a team. His Honour said he accepted the applicant "had a supervisory role". "The importance of that and the differences between the offenders might be overrated".
His Honour said of all the offenders "fundamentally they were just the unpacking crew, the crew who were going to get the drugs, take them from the shipping container, repack them and provide them to those higher up". His Honour said the applicant and Mr Ozgen and one other may have been higher in that team, but not high in the operation as a whole. They were not the people importing the drugs. They were not the people higher up, directing the applicant. "They were fundamentally just the packing crew".
His Honour found that the applicant knew at least on 27 November that he would be dealing with a border-controlled drug. His Honour found that the applicant had knowledge it was going to be a significant amount of the drug, though not the specific amount, so the weight of the drug still had importance in sentencing him. His Honour stated that the acts done by the applicant were more significant than going to a post office to collect something or having something delivered or "just being a courier". His Honour said general deterrence loomed large given the nature and quantity of the drugs involved in the offence.
His Honour noted that the applicant had no criminal history, was a person of prior good character, was genuinely remorseful, had strong family and community support, such that he had "strong prospects of rehabilitation" and was "highly unlikely to offend in the future".
His Honour noted there was "extraordinary delay", approaching three years, from the applicant's plea in the Local Court to his sentence, so he had been "on remand for an extended period of time", "under anxiety waiting for his sentence", unable to be classified.
His Honour noted the applicant was also on extremely strict bail for a long time before he entered his plea, when his bail was then refused. His Honour stated that the applicant's "onerous bail conditions" would result in a reduction in sentence.
His Honour noted that psychological reports raised issues about the applicant's deprived upbringing, per Bugmy v The Queen (2013) 249 CLR 571. Because the applicant did not give evidence in the sentence proceedings, while his Honour accepted a psychologist's opinion about the applicant suffering ADHD, he did not find a "substantial causative link" between that condition and the offence. His Honour stated the applicant's "Bugmy upbringing" may "slightly reduce his moral culpability and slightly reduce general deterrence", but his involvement in the offence "still calls for significant general deterrence" and his moral culpability was still significant.
Turning to the issue of parity, his Honour said, "Although I am not sentencing them today, and I will await aspects of parity for when I deal with them, it strikes me on a prima facie level, that Mr Ozgen seems very similar to … [the applicant] but he will not have the benefit of any 25% discount".

The sentencing of Mehmet Ozgen

In sentencing Mehmet Ozgen, his Honour began by observing that Mr Ozgen was found guilty by a jury of two charges pursuant to s 307(1) of the Criminal Code, both with a maximum penalty of life imprisonment. His Honour noted that the offences arose out of Mr Ozgen's participation in a joint criminal enterprise with a number of people concerning approximately 655 kilograms of unlawfully imported methamphetamine and 1.3 tonnes of unlawfully imported MDMA.
His Honour noted the factual background, that the drugs had arrived in Australia from Germany in a shipping container on 19 November 2014, packed in 113 cardboard boxes, which were replaced with substitute materials by the Australian Federal Police before being released to a freight logistics company in Blacktown. On the evening of 28-29 November 2014, Mr Ozgen and five co-offenders accessed the container at the freight logistics company's Blacktown premises, removed the 113 large boxes with substituted contents, which they put into the back of a hired truck and conveyed to an industrial unit in Smithfield, where all were arrested in the early hours of 29 November, while in the process of unpacking and resorting the substituted packages for further distribution. There were 849 packages of methamphetamine and 1522 packages of MDMA.
His Honour said that in assessing Mr Ozgen's role, he would start with saying what his role did not involve. His Honour said he accepted Mr Ozgen was not involved in any aspect of the importation of the drug and there was no evidence to suggest he was going to be involved in the distribution of the drug to the community, and profiting from the sale. His Honour found Mr Ozgen's role was a "limited one but nonetheless an important one", "for several days at the most in the lead up to this particular incident". His Honour found that Mr Ozgen was not involved in negotiations with the man who worked in the freight logistics business to ensure access could be obtained to the drugs when they arrived, nor was he in a "managerial role".
His Honour found that Mr Ozgen was entrusted with the key to the Smithfield unit where the boxes of drugs were to be taken for unpacking, resorting and repacking; he obtained cardboard removalist boxes to be used for repacking the container with clothing and other items sourced by co-offenders from charity shops. He owned a Blackberry phone used for messages. He was conscious of clothing being obtained by his co-offenders and being repacked. He made internet searches for alternative means of accessing the container, such as hiring a transport crane, at the direction of the applicant. He was prepared to provide at least $5000 to be used to further the operation. He participated in some of the planning and logistical organisation, both in the aborted attempt to access the container on 27 November and the successful attempt on 28 November, including corresponding with co-offenders by encrypted Blackberry messages.
His Honour said: "There is no doubt that he was involved in aspects of planning logistics, but maybe that should not be overstated. In many ways, he did seem to be acting at the direction of [the applicant] and in many ways, to use the euphemism, was a bit of a gofer in that role. He was not the one making decisions, he was very much responding to what he was being asked for. Nevertheless, the fact that he was trusted with information suggests that he is still part of the planning, at least for that period of 24 to 48 hours. He was part of the original decision to try and access the container on the 27 November 2014 that failed and obviously was part of the successful operation of 28 November. Also as part of that participating in the important effort to access and unpack the container... shows that he was more than just someone who been coming along for use of muscle". and "He was part of the party at six that was unpacking the boxes from the container and putting them into the Thrifty truck".
He participated in repacking the container with 120 dummy boxes filled with clothes and other items sourced by various people in the joint enterprise. He conveyed four of his co-offenders back to the Smithfield unit in his car, once he and his co-offenders had completed the work of unpacking and repacking the container at the Blacktown premises. He participated with his co-offenders in unpacking 113 boxes from the truck at the Smithfield unit in the early hours of 29 November, including unpacking and resorting the contents of boxes for further distribution. His Honour stated that all of the participants in the joint enterprise were involved in the repacking or resorting of the drugs once they were back at the Smithfield unit.
His Honour said "There is a good reason to find that he had a lesser role than [the applicant]". His Honour found that the messages on the Blackberry demonstrated that Mr Ozgen was responsive to the applicant's directions and "from that point of view that [the applicant] was higher up the line. That is not to say that [the applicant] was at the top of the enterprise, just that [he] was higher than Mehmet Ozgen".
His Honour stated the Blackberry messages showed that Mr Ozgen did have some understanding of what was to occur, not that he knew the precise weight or precise purity of the drugs, or "everything of the operation", but "he knew it was going to be a substantial amount", which required "significant muscle power from various men", could involve a crane, involved a lot of boxes, and he knew that people had to be paid. "From that point of view, he had to know … what he was involving himself in was going to be the … accessing of goods that had been imported into Australia of a significant amount". Some of the Blackberry messages clearly suggested he was aware it was going to be drugs, and he had some idea that he was going to be rewarded for it.
His Honour said: "I never lose sight though that the same role that Ozgen really played was the same role of everyone else in this respect. The fundamental role was actually just unpacking the container, repacking the container and repacking and unpacking at Smithfield. Everyone played that role. In that respect, all of them were much lower down the organisation than people at a higher level because all of them took an enormous risk … in this respect there has been a great similarity between Ozgen … [and the applicant and other co-offenders]. But there are still subtle differences between them."
His Honour said, "Objectively I see Ozgen below [the applicant]". He said: "Ultimately, I am careful about assessing precisely what the role was of Mehmet Ozgen. I am conscious that he was aware of the unpacking required and the need for six men. I am aware that he was conscious about the amount of boxes involved. I am aware that he was conscious of the role that he would play in that respect but at the same time, fundamentally his main role was a packer and unpacker. That is not to underestimate the seriousness of it …. This was still pretty sophisticated. Someone had to hire trucks. Someone had to move things around. People had to be paid off. An import-export facility had to be accessed illegally at night. There was a range of things that had to be done, so although his role was still fundamentally packing and unpacking".
His Honour said he was not prepared to accept that Mr Ozgen knew about drugs only at Smithfield, that the Blackberry meant he "must have known well before attending [the import-export premises] that he was involved in seeking to access prohibited drugs".
His Honour found that Mr Ozgen was of prior good character with no criminal history and he had been of good character while on bail. His Honour said he should give significant weight to Mr Ozgen's good character.
His Honour said: "On top of that, it seems to me that this is a matter that youth is important. He was only 23 at the time of his offending, he was much younger than his co-offenders. That is not unimportant in my view in sort of looking at the different roles that they have".
His Honour stated that the delay in the matter had been "enormous", an "extraordinary delay of essentially more than five years", none of which was Mr Ozgen's fault. His Honour found that Mr Ozgen was on strict bail for a long period of time, which he did not breach, and demonstrated that "he may have learnt his lesson from this matter by his good behaviour on strict bail". His Honour said the delay showed that Mr Ozgen had already demonstrated he could rehabilitate himself in relation to the offence and not reoffend in the future.
His Honour found that the delay and stress of the matter had had an impact on Mr Ozgen's mental health, with evidence of depression and anxiety.
His Honour stated that because of the maximum penalty of life imprisonment and the "sheer weight of the drug" Mr Ozgen must receive a "substantial sentence" and said, "If it was not for those features, I think Mr Ozgen would be someone who be worthy of leniency and, indeed, as much as I can in a sentence, I intend to try and give him leniency." His Honour acknowledged that the weight of the drug was not the only important feature, but that Mr Ozgen's role was the most important feature. His Honour stated that despite Mr Ozgen's good character and youth, general deterrence still had a significant role, but specific deterrence did not have a particular role to play for him.
His Honour noted from a psychologist's report that Mr Ozgen reported his father had a long-term drug problem and Mr Ozgen turned to drugs at an early stage in his life. His Honour said that Mr Ozgen's drug use was not a factor in his offending, it may have been for financial reward although he did not know what the financial reward was. His Honour found the offending was "probably a reflection of Mr Ozgen's youth and the vulnerable position he was in at that particular time in his life, and a lack of maturity".
His Honour noted that Mr Ozgen did not give sworn evidence in the sentence proceedings but had written a letter which, although it did not amount to remorse, because he maintained his innocence, showed insight by Mr Ozgen.
On the issue of parity of sentences his Honour stated that the applicant "had a bigger role, but … got a 25% discount. Ozgen has the benefit of youth, much more than any of the others". His Honour stated that the applicant "may think … that [his] 25% discount should have seen [him] get a much lesser sentence than Ozgen, who did not plead guilty but … Ozgen has a lesser role and has youth and better subjective features, so that is the reason that balances out in many ways, that 25% discount that Ozgen does not get".
His Honour noted that the indictment could have contained one count for Mr Ozgen specifying multiple drugs, and not much was to be made of the fact that there were two charges. His Honour stated, "essentially I am just looking at the matter globally and taking into account both drugs in determining one sentence, one non-parole period".
His Honour also stated, "I have tried to set what I think is the lowest non-parole that I can on Mr Ozgen without invoking aspects of parity on appeal". His Honour imposed a head sentence of 16 years imprisonment with a non-parole period of 10 years. His Honour stated that he was setting just one sentence for the two charges "consistent with the Code". (That seems to have been an error.)

Submissions on behalf of the applicant

The applicant relied on the following matters. 1. He pleaded guilty, whereas Mr Ozgen went to trial. 2. He relied on Pickering SC DCJ's statements in the Remarks on Sentence for him:

that Mr Ozgen was found guilty of "essentially the identical charges" as the applicant
the applicant's plea of guilty had a very significant discount for its utilitarian value, which his Honour was aware of from having presided over the trial of Mr Ozgen and others
that unlike Mr Ozgen, who had shown no remorse or acceptance of responsibility, the applicant had demonstrated genuine remorse and accepted responsibility for what he had done
that the applicant should see the impact of his plea after Mr Ozgen was sentenced, the difference for his 25% discount.

Senior counsel for the applicant submitted that far from seeing the impact of his plea, the difference the 25% discount made, there was a marked disparity between the sentences imposed on the applicant and Mr Ozgen. Senior counsel submitted that the starting point of the applicant's sentence was 22 years imprisonment and for the non-parole period, 15 years and 4 months, in comparison with a sentence of 16 years with a non-parole period of 10 years for Mr Ozgen.
Senior counsel relied on statements by the sentencing judge in the Remarks on Sentence about the similarities of the roles of the applicant and Mr Ozgen, that although the applicant seemed to have "most of the information", they all seem to be acting as a team, acting on instructions from others, not making decisions.
The applicant accepted he held a coordinating position in the enterprise and delegated tasks to others, including to Mr Ozgen, but submitted that although he had a coordinating role, he did not thereby hold a substantially more senior or higher-ranking position in the hierarchy.
Senior counsel referred to the sentencing judge's findings that the applicant received orders directly from above, which he forwarded to Mr Ozgen without editing, that the applicant clearly trusted Mr Ozgen with the information, and thought he could assist him, but all offenders were equally involved in the tasks of unpacking and repacking the drugs. He relied on the sentencing judge's findings that the applicant had a supervisory role but the enterprise did not seem to be structured in a manner where the applicant was clearly above Mr Ozgen, and that Mr Ozgen was also happy to do tasks on his own.
Senior counsel relied on the sentencing judge's finding that the applicant acquired his knowledge of the drugs only a short time before his participation.
He relied on the applicant's prior good character, lack of criminal history, genuine remorse, strong family and community support, his acceptance of responsibility suggesting strong prospects of rehabilitation and that he was highly unlikely to offend in the future. He referred to the sentencing judge's taking into account the delay between his plea of guilty and his sentence, causing him anxiety and stress and permitting him to demonstrate good behaviour in custody, consistent with his prior good character and strong rehabilitation prospects, and that his onerous bail conditions would result in a reduction in sentence. He referred to the sentencing judge's findings that the principles in Bugmy v The Queen had some application, slightly reducing his moral culpability and general deterrence, although they both remained significant.
Senior counsel referred to his Honour's statement, without having received subjective material or submissions on behalf of Mr Ozgen, that "on a prima facie level Mr Ozgen seems very similar to [the applicant] but he will not have the benefit of any 25% discount".
From the Remarks on Sentence for Mr Ozgen, senior counsel for the applicant relied on the following findings of the sentencing judge:

that Mr Ozgen participated in some of the planning and logistical organisation;
in many ways, he seemed to be acting at the direction of the applicant and was a bit of a "gofer";
he was not making decisions, but doing what he was asked to do;
he was trusted with information;
he was part of the failed attempt to access the container on 27 November and the successful operation on 28 November;
his role in accessing and unpacking the container was more than "just.. muscle";
he had a lesser role than the applicant;
he was responsive to the applicant's directions and from that point of view the applicant was higher up the line;
Mr Ozgen knew what was to occur, not the precise weight or purity of the drugs, but that it was to be a substantial amount;
his main role was the same as everyone else, unpacking and repacking
there was a great similarity between Mr Ozgen, the applicant and others but "subtle differences" between them, and
that His Honour saw Mr Ozgen below the applicant.

Senior counsel noted Pickering SC DCJ's finding that Mr Ozgen did not plead guilty, but his youth and better subject features balanced out the 25% discount Mr Ozgen did not receive.
Senior counsel submitted that the applicant and Mr Ozgen both had prior good character and good prospects of rehabilitation. Delay and bail conditions were relevant factors for both. The applicant pleaded guilty and Mr Ozgen did not. The applicant was remorseful, whereas Mr Ozgen was found to have showed insight but not remorse, maintaining his innocence. Mr Ozgen's age of 23 was an important factor for the sentencing judge.
Senior counsel submitted that neither the objective features of the offences or their subjective features justified a marked disparity between the sentences imposed upon the applicant and Mr Ozgen. Senior counsel accepted the applicant's offence may be seen as more serious, since he was in contact with the person above, but submitted it was not significantly more serious. In the leadup to the unpacking, the applicant gave directions as to what acts other offenders should perform, but he was acting under direction and was the conduit of information. The fact that he forwarded messages unedited to Mr Ozgen demonstrated that Mr Ozgen was a trusted member among those operating at the lower level of the hierarchy and all performed the same role in the unpacking.
Senior counsel submitted that Mr Ozgen's youth could not have had a significant impact on the outcome and other than his youth, his Honour's finding that Mr Ozgen had "better subjective features" than the applicant was difficult to understand, especially since the applicant was remorseful, which Mr Ozgen was not, and had a Bugmy finding, albeit limited.
Senior counsel also placed weight on the applicant having pleaded guilty to one offence, and Mr Ozgen having been found guilty of two offences in respect of the same conduct, and thus submitted the applicant's sentence should have been ameliorated because he faced only one maximum penalty of life imprisonment.
Senior counsel submitted that notwithstanding the applicant's "marginally greater role" and Mr Ozgen's comparative youth, but that the applicant had pleaded guilty to one offence, the disparity between the sentence imposed upon him and Mr Ozgen gives rise to a justified sense of grievance on the applicant's part.

Crown submissions

Counsel for the Crown relied on a table he had prepared, comparing the applicant's and Mr Ozgen's objective and subjective features, extracted from the Remarks on Sentence for each.
He submitted the applicant was in a more senior and more culpable role; the sentencing judge found that the applicant had excellent prospects of rehabilitation, whereas Mr Ozgen had demonstrated rehabilitation. He submitted Mr Ozgen's youth was an important substantial difference, that his Honour found his youth, vulnerable position and lack of maturity contributed to his offence. He submitted that, whereas delay was a relevant factor for both the applicant and Mr Ozgen, the sentencing judge found it had a further significance for Mr Ozgen in that the delay had affected his mental health.
The Crown submitted that the sentencing judge addressed the differences between the applicant and Mr Ozgen, turned his mind to the issue of parity and explained why the sentences were to be different, and the judge did not err in the exercise of his sentencing discretion.
The Crown submitted that when he sentenced the applicant, the sentencing judge had foreshadowed the sentence of Mr Ozgen, but when he came to sentence Mr Ozgen, there were some matters that resulted in different findings than his Honour had foreshadowed, especially as to the relative roles of the applicant and Mr Ozgen, and his Honour explained why Mr Ozgen's lesser role, youth and better subjective circumstances balanced out the 25% discount the applicant received. Further, his Honour specifically stated he considered it appropriate that Mr Ozgen be accorded leniency.

Principles

In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, French CJ, Crennan and Kiefel JJ said: "The 'parity principle' requires that like offenders should be treated in a like manner … The parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances": [28].
Their Honours said consistency in sentencing requires "consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence": [29].
In Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, Gibbs CJ said at 609: "It is obviously desirable that people who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as age, background, previous criminal history, the general character of the offender and the part he played in the commission of the offence have to be taken into account".
In Chamon v R [2020] NSWCCA 112, RA Hulme J said that the Court: "…will be cautious and not overly willing to intervene where the same judge sentenced an appellant and the co-offender, recognised the importance of the parity principle and gave effect to it". and "'Considerable obstacles' are placed before an applicant contending error on a parity basis where a sentencing judge is fully aware of the sentences imposed on co-offenders and the reasons for the sentences, and provides reasons for departing from those sentences."
In Lloyd v R [2017] NSWCCA 303, RA Hulme J said that "a differentiation between sentences imposed upon co-offenders was a discretionary assessment by the judge who had the facts and circumstances of the offences and each offender in mind in the one sentencing exercise". His Honour said at [96]-[97]: "It is a basic principle of appellate review of sentencing that 'there is no single correct sentence and 'judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach…' In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done… The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion?"
The question to be addressed is whether the sentence imposed on Mr Ozgen is objectively capable of giving rise to a justifiable sense of grievance on the part of the applicant.

Consideration

His Honour sentenced the applicant and Mr Ozgen on essentially the same facts as to the circumstances of the offending. He differentiated their roles, finding that the applicant bore somewhat greater responsibility than Mr Ozgen. The judge was conscious of the parity principle and directly addressed it, and when he sentenced Mr Ozgen second in time, he explained why the sentences were as they were.
At the time his Honour sentenced the applicant he adverted to Mr Ozgen's situation but he had not, at that time, received subjective material on behalf of Mr Ozgen. By the time his Honour came to sentence Mr Ozgen and had received subjective material and submissions made on his behalf, it is clear from the Remarks on Sentence in respect of Mr Ozgen that his Honour's views had developed and been refined to a greater extent than when he sentenced the applicant.
In sentencing the applicant, the judge expressly premised his remarks about parity on the basis of "if all things were equal". By the time he had sentenced Mr Ozgen, his Honour made clear that all things were not equal. It is clear from his Honour's sentencing remarks in respect of Mr Ozgen that he had reached more definite views about Mr Ozgen's lesser role in the offending than the applicant's and he placed weight on Mr Ozgen's youth as a significant factor in his favour, and on the longer delay, of five years compared with three, before Mr Ozgen's sentencing, which had impacted adversely on his mental health.
His Honour's sentencing remarks about both offenders clearly demonstrate that he carefully and thoroughly considered all of the relevant factors in sentencing them, including the issue of parity.
I do not consider that the applicant derives much assistance from his having been sentenced for one offence involving the two same drugs as the subject of Mr Ozgen's two offences and their conduct in the same enterprise. His Honour was clearly aware of the charging process as it applied to each and aware that he was dealing with them for similar conduct. He expressly adverted to that.
I consider that it was reasonably open to the sentencing judge to differentiate between the applicant and Mr Ozgen in the way he did. I am not persuaded that there is, on an objective assessment, any justifiable sense of grievance arising from the sentence imposed upon the applicant as compared with that imposed upon Mr Ozgen. Therefore I would grant leave to appeal but dismiss the appeal.

Orders

I propose the following orders: 1. Leave to appeal granted. 2. Appeal against sentence dismissed.

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