Bridge v R

Court of Criminal Appeal (NSW)|2020-07-15|Before: Johnson J, Price J, Wright J

Judgment

JOHNSON J: I agree with Price J.
PRICE J: On 22 March 2018, Michael David Bridge ("the applicant") was sentenced by Bright DCJ ("the sentencing judge") to a total effective sentence of imprisonment for 10 years and 4 months with a non-parole period of 6 years and 4 months.
The applicant who was self-represented, seeks leave to appeal his sentence on the single ground of "[t]he parity sentence with my co-offender Abdul [Hassian]".
Abdul Hassian was sentenced by English DCJ ("the judge") on 20 June 2019 to an aggregate sentence of imprisonment of 10 years and 6 months with an aggregate non-parole period of 6 years.

The sentence imposed on Mr Hassian is summarised in the following table. Abdul Hassian - substantive charges are emboldened Count Offence and section Max penalty and SNPP Indicative sentence Sentence Sequence 1 (and Form 1) Supply prohibited drug not less than large commercial quantity (3.192 kilograms of methylamphetamine) Life imprisonment 5 years Aggregate sentence of 10 years and 6 months commencing 10/7/19 and expiring 9/1/30 with a NPP of 6 years commencing 10/7/19 and expiring 9/7/25 S 25(2) DMT Act SNPP 15 years NPP 2 years and 6 months When dealing with sequence 1, 3 matters were taken into account on a Form 1 Form 1: Supply prohibited drug - commercial quantity (40.1 kilograms of cannabis) 15 years Form 1 s 25(2) DMT Act Form 1: Supply prohibited drug - commercial quantity (300 grams of cocaine) 20 years Form 1 s 25(2) DMT Act SNPP 10 years Form 1: Knowingly deal with proceeds of crime ($42,855 cash) 15 years Form 1 s 193B(2) Crimes Act 1900 Sequence 5 Knowingly direct activities of criminal group 15 years 2 years s 93T(4A) Crimes Act 1900 Sequence 7 Contravene prohibition/restriction in ADVO 2 years 1 year and 4 months s 166 certificate s 14(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Sequence 3 (and Form 1) Assault occasioning actual bodily harm in company 7 years 2 years s 59(2) Crimes Act 1900 When dealing with Sequence 3, 2 matters were taken into account on a Form 1 Form 1: Common assault s 61 Crimes Act 1900 2 years Form 1 Form 1: Intimidation (accessory before fact) 5 years Form 1 s 14(1) Crimes (Domestic and Personal Violence) Act 2007 Sequence 6 Make counterfeit money (Australian currency) 14 years Fixed term of 16 months to date from 10/7/19 to 9/11/20 s 6 Crimes (Currency) Act 1981 (Cth) Breach s 12 bond (imposed following offences of contravening apprehended violence orders) 1 year & 8 months to date from 10/7/19 to 9/3/21

As will be seen from the table at [6] above, the applicant was sentenced for four substantive prohibited drug offences which were contrary to the DMT Act, one offence of dealing with the proceeds of crime contrary to the Crimes Act, one offence of making counterfeit money contrary to the Crimes (Currency) Act and one offence of possession of an unauthorised pistol contrary to the Firearms Act. He asked the sentencing judge to take into account on sentence a further four charges on a Form 1 and there were eleven charges on two s 166 certificates.
As will be seen from the table at [7] above, Mr Hassian was sentenced for one substantive prohibited drug offence contrary to the DMT Act, one offence of knowingly directing the activities of a criminal group contrary to the Crimes Act, one offence of assault occasioning actual bodily harm in company contrary to the Crimes Act and one offence of making counterfeit money contrary to the Crimes (Currency) Act. Mr Hassian asked the judge to take into account on sentence a further three offences that were drug related on a Form 1 and a further two offences related to assault and intimidation on another Form 1. There was one charge of contravening an apprehended violence order on a s 166 certificate. Mr Hassian was also sentenced for a breach of a s 12 bond.
Out of all the offences for which the applicant and Mr Hassian were sentenced, there are only two which bear some relationship. These offences are: 1. Supply large commercial quantity of a prohibited drug (methylamphetamine) contrary to s 25(2) of the DMT Act. This is offence sequence 28/H61103323 for the applicant. [1] For Mr Hassian, this is offence sequence 1; [2] and 2. Make counterfeit money (Australian currency) contrary to s 6(1) of the Crimes (Currency) Act. This is offence sequence 1/H61342870 for the applicant. [3] For Mr Hassian, this is offence sequence 6. [4]
As the applicant's complaint of disparity focusses on the indicative sentences for the supply of the large commercial quantity of methylamphetamine, it is necessary to detail the facts of these offences and the respective findings made by the sentencing judge and English DCJ. [5]

Factual background to the applicant's offence (sequence 28/H61103323)

The applicant's sentencing proceedings took place on 9 March 2018 during which an agreed statement of facts were tendered. In her remarks on sentence, the sentencing judge summarised the agreed facts and the following are relevant to the large commercial quantity supply offence: "[7] In April, 2016, Newcastle police commenced "Strike Force Malsbury" targeting the supply of prohibited drugs by the offender Michael Bridge. Telephone interception warrants were granted for the two mobile services used by the offender. It became evident from a very early stage that the offender was heavily involved in the large scale supply of the prohibited drugs methamphetamine (ice), cannabis and gamma-Butryrolactone (GBL). [8] Investigators established that the offender was a close associate of co-accused Blake Waterhouse and together they ran a joint criminal enterprise supplying prohibited drugs. [9] The recorded telephone interceptions demonstrated that the offender was a large scale drug supplier in the Newcastle area. He had no other employment and was supplying prohibited drugs solely for financial gain. [10] The telephone interceptions indicated that the offender would arrange drug transactions by using two mobile phones. Once the quantity, price and location were agreed, the offender would arrange to meet his client at various locations, where he would supply them with the drugs. There were no pre-arranged meeting places in order to preserve and conceal the illegal nature of the transactions. [11] Whilst the majority of the offences took place in Newcastle, Bridge on-supplied drugs that he regularly obtained from Sydney. … H61103323 - Sequence 28 - Supply Prohibited Drug (greater than large commercial quantity) [33] Between 13 April 2016 and 20 May 2016, the offender made over 4,000 calls and texts in relation to the supply of prohibited drugs. [34] During that period, the offender was involved in at least 19 instances of actual supply, of varying amounts, in and around the Newcastle area. [35] The total amount supplied was approximately 1,115.1 grams of Methylamphetamine. [36] The following are some examples of his drug related activities. Supply to Burnes [37] On the afternoon of 30 April 2016, investigators intercepted and recorded a call between the offender and Angela Barry. This conversation was in relation to Ms Barry arranging for her partner, Stephen Burnes to meet Bridge in Newcastle to purchase drugs. [38] At 6.15pm, surveillance captured Stephen Burnes [meeting] with the offender at the Chifley Apartments on Hunter Street in Newcastle. A short time after leaving Burnes was stopped and arrested for traffic matters and an outstanding warrant. Following this, investigators intercepted a telephone call from Ms Barry to the offender informing him of the arrest of Burnes. [39] During this call the offender stated, 'Did they get the Occa?' Barry replied, 'I'm not sure, I've searched the car and it's not there'. The offender replied, 'He might still have it on him'. [40] As a result, police believed that Burnes was in possession of one ounce (28.4 grams) of the prohibited drug Methylamphetamine whilst in Corrective Services custody. Arrangements were made to have Burnes searched again which resulted in corrective services officer locating one ounce of Methylamphetamine in Burnes' shorts. Supply with Waterhouse [41] On 19 May 2016, a police surveillance operation, in conjunction with telephone interceptions, was conducted in relation to the activities of the offender and co-accused Blake Waterhouse. It was established that they intended to travel to Sydney to purchase a quantity of Methylamphetamine. During the afternoon Waterhouse drove the offender to Budget Rental in Tudor Street, Hamilton where he obtained a Holden Commodore sedan, NSW registration number CG-69-DY. [42] Later in the evening the two men were seen in the same rental vehicle, CG-69-DY, travelling to Sydney where they obtained Methylamphetamine from a person police believe to be Abdul Hassian. [43] The continued recording of intercepted mobile services of the offender and Waterhouse provided evidence that they intended to supply the drugs they obtained to other persons in the Newcastle and Lake Macquarie areas. [44] At about 2.00am on 20 May 2016, the offender and Waterhouse were stopped at the McDonalds Restaurant on the M1 Pacific Motorway, in Warnervale. They were arrested and the vehicle was searched. [45] Police located a black plastic bag which contained two smaller freezer style plastic bags secreted in the roof cavity of the vehicle. The two freezer style plastic bags contained 168.4 grams of what was later identified as Methylamphetamine. The drug was well hidden within the internal light with the sunglass holder being removed to secrete it between the roof and the interior lining. [46] The offender and Waterhouse were taken to the Wyong Police Station where they declined an opportunity to be interviewed by police. Supply from [Hassian] [47] In May 2016, the offender flew to Perth to purchase a motor vehicle. Intercepted telephone SMS messages indicated that whilst there, the offender contacted Shane Murray and commenced arranging a purchase of drugs from an "up-line supplier" from Sydney, named Abdul [Hassian] for an amount of 14 ounces. [48] The code used was "14 straight up", in addition to pounds of cannabis. Here the code used was "a few sheds". [49] Extensive intercepted conversations demonstrated that Murray arranged to procure prohibited drugs on behalf of the offender which was later confirmed as "15 and 2 sheds bro" in a text sent by [Hassian] The code in this instance, indicated 15 ounces of Methylamphetamine and 2 pounds of cannabis." [6]
Her Honour also said at [55]: "In the course of his drug supply activities, the offender would extend credit to his lower level customers. If the customer was unable to pay the offender in cash, he would also accept property as payment for the supply of prohibited drugs." [7]
The sentencing judge said that in assessing the objective seriousness of the offence, she had taken into account the following matters: "[101] In assessing the objective seriousness of this offence I have taken into account the following matters: (1) The quantity of drug supplied was 1115.1g was well above the prescribed commercial quantity of 500g. (2) The nature and extent of the supply - Within a period of 6 weeks the offender was involved in 19 separate supplies of substantial quantities of methylamphetamine. (3) The role of the offender - I am satisfied that the offender together with Blake Waterhouse was involved as a principal in running an extensive business supplying prohibited drugs. It was a very large scale operation and involved a network of other persons engaged in the supply of a significant quantity of prohibited drugs. (4) For reward - I am satisfied the offender engaged in the drug supply business for significant financial reward. I accept his evidence that at the time he had a $800 - $1000 a day drug habit." [8]
Having regard to those matters, her Honour assessed the objective seriousness of the offence as being in the middle of the range.
When referring to the applicant's subjective case, the sentencing judge found that the applicant, who was 34 years old, had a very limited criminal history and was entitled to some leniency on sentence.
Her Honour had regard to the timing of the pleas of guilty and allowed a discount of 25% on sentence.
Other findings that the judge made were that the applicant had good prospects of rehabilitation and was unlikely to re-offend. Her Honour accepted that the applicant was remorseful.
When fixing the indicative sentence for the principal offence, the sentencing judge took into account the Form 1 offences being:

Sequence 26/H61103323 - supply of 454 grams of cannabis contrary to s 25(1) of the DMT Act;
Sequence 31/H61103323 - supply of 17.7 grams of MDMA contrary to s 25(1) of the DMT Act;
Sequence 34/H61103323 - supply of 625.4 grams of GBL contrary to s 25(1) of the DMT Act; and
Sequence 39/H61103323 - recklessly deal with the proceeds of crime (motorbikes and various items) contrary to s 193B(3) of the Crimes Act.

The sentencing judge also had regard to the principle of totality. Her Honour said that the starting point of the indicative sentence was 10 years, discounted by 25% for the plea of guilty leaving a total term of 7 years and 6 months with a non-parole period of 4 years and 8 months.

The factual background to Mr Hassian's offence (sequence 1)

In Mr Hassian's sentencing proceedings a lengthy statement of agreed facts was tendered which the judge recounted in her sentencing remarks. The following summary of the facts is particularly relevant to the relationship between Mr Hassian and the applicant in the supply of the large commercial quantity of methylamphetamine: "OVERVIEW 1. In March 2016 Police commenced a Strike Force investigating the supply of prohibited drugs in the Newcastle area. Michael BRIDGE was identified as a primary suspect and found to be using the mobile telephone service … Carrier checks by Police revealed that this service was subscribed in the name of Sharon VAN ZANDEN, the de facto partner of BRIDGE. 2. On 13 April 2016, Police were granted a Telecommunications Interception Warrant for the service utilised by BRIDGE. It quickly became apparent that a clear line of supply was established whereby BRIDGE would source drugs from the offender, Abdul HASSIAN, in Sydney, for distribution within the Newcastle region. 3. In April 2016, Police commenced a concurrent investigation, by way of Strike Force Jular into the activities of a number of individuals, predominantly focussed on the offender, involved in the sale and distribution of prohibited drugs in the south west suburbs of Sydney, and the on-sale and transportation of prohibited drugs to Newcastle. 4. Police formed the believe (sic) that HASSIAN was significantly involved and was using a number of mobile telephone services to facilitate the activities of a wider group of criminal associates. On 2 May 2016, Police obtained telephone intercept warrant C15273 … … 9. HASSIAN was responsible for obtaining large commercial quantities of prohibited drugs for supply to customers, dealing with persons responsible for the street level supply of prohibited drugs, managing couriers to supply commercial quantities of methyl-amphetamine to Newcastle, and managing the everyday running of the syndicate including vehicles, proceeds of drug sales, and issues with quality control and problematic customers. … THE CRIMINAL SYNDICATE 11. Police investigations revealed that the offender, Abdul HASSIAN, was the principal at the centre or hub of the criminal group identified as operating within south-west Sydney. He was responsible for organising and directing the activities of this group (H61847073/5). 12. Telephone intercept evidence from April 2016 established that HASSIAN was on-supplying significant quantities of prohibited drugs to Michael BRIDGE in the Newcastle area, for BRIDGE'S later distribution and on-supply within his own network. HASSIAN was also supplying to others locally. 13. HASSIAN used the following co-offenders to convey drugs to BRIDGE and others: Daniel FERRE; John MUNILLA; Cindy DEVINE; and Frank ROMEO. 14. These couriers were also used to convey drugs to other members of the syndicate for on-supply, namely co-offenders Cindy MACDONALD and Josh ROMEO. … DRUG CODES & PRICING 19. Throughout the vast amount of intercepted telephone products, semi-structured, veiled conversations were utilised by HASSIAN, BRIDGE and the other members of the criminal group in an attempt to disguise transactions of prohibited drugs. … 23. Discussion in recorded calls between HASSIAN, BRIDGE and others regarding quantities of half a kilogram to a kilogram of methyl-amphetamine reflected prices ranging from $33,000.00 to $50,000.00 for half a kilogram, and from $75,000.00 up to $105,000.00 for a kilogram, respectively. … DRUG TRAFFICKING 25. Between April and June 2016, telephone intercept material captured by Police recorded numerous occasions where HASSIAN and BRIDGE would contact one another for the purposes of arranging the supply and delivery of prohibited drugs to BRIDGE in Newcastle. 26. Generally, HASSIAN inquired with BRIDGE whether he wanted a supply of prohibited drugs delivered to Newcastle, or alternately to-a half-way point between Sydney and Newcastle, located at the twin service stations and rest points along the M1 Freeway near Gosford. Alternately, BRIDGE inquired with HASSIAN whether he was able to supply further prohibited drugs, and the likely time of delivery. 27. HASSIAN would then confirm with BRIDGE that a delivery was going to, or was about to be made, with reference often made to the particular courier used. In the course of their relationship, HASSIAN and BRIDGE would occasionally discuss the cost of their drug trafficking business and profit they sought to realise from it. Supplies involving Daniel FERRE 28. On 19 April 2016, during two lawfully intercepted telephone calls, HASSIAN agreed to supply BRIDGE with 'four Garden Sheds', meaning 4 pounds or ~1.816 kilograms of cannabis, and 'fifteen "Nuts and Bolts'", meaning fifteen ounces or ~426 grams of methyl-amphetamine. HASSIAN arranged for the co-offender Daniel FERRE to courier the drugs to BRIDGE in Newcastle. 29. During the second of the calls (during which HASSIAN agreed to supply BRIDGE with the methyl-amphetamine), BRIDGE describes an unknown male customer who "chases some good work": "this is where these ten are coming from, nuts and bolts and shit, meaning that the customer is buying 10 ounces, or 284 grams, of methyl-amphetamine at a time from BRIDGE. 30. Thereafter HASSIAN and BRIDGE exchanged text messages confirming that FERRE was on his way to Newcastle with the cannabis and methyl-amphetamine. At 7.47pm, FERRE called BRIDGE, identifying himself as "Danny". BRIDGE told FERRE to meet him at the Novotel Hotel. 31. At about 8:25pm, FERRE met with BRIDGE at the Novotel Hotel in Newcastle, where he supplied the cannabis and methyl-amphetamine to BRIDGE. At 11:11pm, BRIDGE sent HASSIAN a text message concerning the money he owed for the prohibited drugs: a) Bro there's 20 of paper work [$20,000] here now and old mate has gone to bed that wanted the 10 [ounces of methyl-amphetamine]. I can send some work back or will I keep it here and pump it and I will drive it straight down to ya brother. Up to you bro" 32. At 11:12pm HASSIAN replied: "Nar al gud brotha keep it ther". 33. At 7:50pm on 20 April 2016, HASSIAN phoned BRIDGE and the pair engaged in veiled conversation relating to the supply of prohibited drugs. BRIDGE mentioned the "ten nuts and bolts" he was holding for the customer previously referred to and requested HASSIAN supply him with what he can. HASSIAN stated that he could send "6 to 8" ounces of methyl-amphetamine to BRIDGE along with a "couple of Garden Sheds." 34. HASSIAN agreed to supply BRIDGE with 6 to 8 ounces, or ~170.4 to 227.2 grams, of methyl-amphetamine. HASSIAN arranged for FERRE to courier the methyl-amphetamine to BRIDGE in Newcastle. BRIDGE said that he had close to "30 paper work" for HASSIAN, meaning he had close $30,000 for him to pay the outstanding debt for the drugs. 35. About 10:03pm, BRIDGE sent a text message to FERRE enquiring about his location, to which FERRE replied "I'm at Gosford." BRIDGE then confirmed that they would meet at the "same place as last night." A while later FERRE met with BRIDGE at the Novotel in Newcastle and supplied him with at least 6 ounces, or ~170.4 grams, of methyl-amphetamine. 36. About 12:13am on 21 April 2016, BRIDGE phoned HASSIAN to advise that he would probably need a further supply in the morning, saying "all of this work will be done tonight." HASSIAN said he would get ready for him. BRIDGE also sent a text message to HASSIAN stating that he gave "Danny" (FERRE) $500, which was a reward for couriering the drugs. 37. At 2:33pm on 22 April 2016, during a lawfully intercepted phone call, HASSIAN and BRIDGE discussed a further supply of "20" ounces of methyl-amphetamine and "ten Garden Sheds", meaning 10 pounds, or ~4.54 kilograms, of Cannabis. HASSIAN told BRIDGE that he did not have 20 ounces of methyl-amphetamine ready, and that he only had "about a dozen". BRIDGE said "a dozen will do", so HASSIAN agreed to supply BRIDGE with 12 ounces, or ~340.8 grams, of methyl-amphetamine, which he arranged for FERRE to courier. BRIDGE indicated that the "Garden Sheds", or cannabis, would last him a couple of days but that he would be calling HASSIAN "tomorrow for more of the other". 38. Later, at 7:05pm, BRIDGE and HASSIAN had a further phone conversation. During this call BRIDGE told HASSIAN that he had "close to 40 pages of paper work" to send to HASSIAN, meaning he had close to $40,000 for the outstanding debt owed re the prohibited drugs. HASSIAN told BRIDGE that "Dan" (FERRE) will be making the delivery and should "be at him any minute." 39. At 12:05am on 23 April 2016, BRIDGE phone FERRE, who referred to the location of "the big clock". This was followed by a short text message between the pair with FERRE stating, "I'm here". BRIDGE replied "1 min away". FERRE messaged back, "No worries." A short time later FERRE met with BRIDGE and supplied him with the methyl-amphetamine, and BRIDGE provided FERRE with $40,000 cash in return, to be delivered back to HASSIAN. 40. On 2 May 2016, during an intercepted call BRIDGE and HASSIAN discussed "work", as BRIDGE was in need of a fresh supply of methyl-amphetamine. At 11:28pm BRIDGE made a phone call to HASSIAN during which HASSIAN agreed to supply 15 ounces of methyl-amphetamine, and 2 pounds of cannabis to BRIDGE. HASSIAN arranged for FERRE to courier the drugs up the Newcastle. 41. At 12.22am on 3 May 2016, HASSIAN sent a text message to BRIDGE asking "Wer is dan [FERRE] goin bro witch unit", to which BRIDGE replied, "Hunter St", a street in Newcastle. About 2:40am, BRIDGE sent a text message to FERRE stating, "Hey bro wait at Novotel my mate going to be there in 10". BRIDGE was in Perth at this time and was arranging for his associate, Shane MURRAY, to collect the drugs supplied by HASSIAN through FERRE. 42. BRIDGE was contacted a number of times MURRAY, who was anxiously waiting for the drugs. He sent a text message to BRIDGE saying, "This killing me here bro I got nothing at all." MURRAY was handling the running of the BRIDGE'S drug distribution network in his absence. 43. At 2.37am BRIDGE sent a text message to HASSIAN, who replied, "His at d nova", meaning the Novotel. At 2.41 am, BRIDGE spoke to FERRE, who informed BRIDGE that he was stuck in Wallsend and that his car wouldn't start. BRIDGE told FERRE that he would arrange for MURRAY to meet him there. BRIDGE contacted MURRAY, and gave him instructions to meet with FERRE in Wallsend. 44. FERRE subsequently met with MURRAY and supplied him with the 426 grams of methyl-amphetamine and 0.908 kilograms of cannabis. At 3.04am FERRE called BRIDGE and offered him the use of his Ute to take back to Sydney. During this call FERRE told BRIDGE he had met with MURRAY. 45. At 3.25am BRIDGE sent a further message to MURRAY saying, "Keep what you need and give the rest to him. Think there's 15 there." In further text messages, MURRAY and BRIDGE discussed the division, further distribution and on-supply of the 15 ounces of methyl-amphetamine. 46. At 1:51pm on 4 May 2016, once BRIDGE had returned from Perth, he sent a text message to HASSIAN to confirm the quantity supplied, asking, "Hey bro how many you send down?" HASSIAN replied in a message, "15 and 2 sheds u ok bro." BRIDGE replied, "Yep sweet as." 47. At 3:28am on 6 May 2016, a recorded call was captured between FERRE and HASSIAN, in which HASSIAN informed FERRE that BRIDGE was with him, HASSIAN is heard to ask BRIDGE, "Do you need any garden sheds?" BRIDGE asked HASSIAN if it is the same stuff; HASSIAN replied, "You like the "Northern Lights one hey?" BRIDGE replied, "10". FERRE said to HASSIAN, "Line me up a bag to?" 48. HASSIAN called FERRE back at 3.32am. HASSIAN instructed FERRE to go past Daniel BATTS' house - where HASSIAN would keep prohibited drugs - and collect 5 pounds, or ~2.268 kilograms, of Cannabis. In further recorded calls between 3.46am and 4.21am, HASSIAN directed FERRE to go to BATTS' house, tap on the garage, and "just grab the five" pounds of Cannabis. If required, FERRE was to use a taxi to transport the five pounds of cannabis. 49. Later that day BRIDGE and HASSIAN contacted each other regarding a couriering of prohibited drugs by FERRE. At 5.48pm BRIDGE sent a text message to HASSIAN saying, "Is Dan the man good to fly down in the blue rocket?" to which HASSIAN replied, "Yes brotha his on d way." 50. Subsequently, FERRE contacted BRIDGE and informed him of his progress onto and along the Freeway from Sydney to Newcastle. At 9.43pm, in a call between HASSIAN and FERRE, FERRE confirmed that he was on the highway. Later, BRIDGE told FERRE to come to the Novotel in Newcastle, where BRIDGE would meet him. During a call BRIDGE asked FERRE if he bought any "green", meaning cannabis. FERRE confirmed he had, and BRIDGE asked "about the other one", meaning methyl-amphetamine, to which FERRE replied, "8 or 10"[ounces]. 51. At 11.08pm, FERRE messaged BRIDGE to tell him that he had arrived. BRIDGE replied that, "Coming to get you now bro." At 11.43pm, HASSIAN called FERRE and told him where he had secreted the prohibited drugs within the car. At HASSIAN's behest, FERRE then supplied the five pounds, or ~2.268 kilograms, of cannabis and at least 8 ounces, or ~226 grams, of methyl-amphetamine to BRIDGE. Supplies involving John MUNILLA 52. The co-offender John MUNILLA was employed extensively by HASSIAN to courier drugs to BRIDGE and his associates in Newcastle. MUNILLA also picked up payments for drugs by BRIDGE, along with couriering drugs and conveying HASSIAN and other syndicate members around south west Sydney to facilitate the criminal activities of the syndicate. For example, on about 2 May 2016, MUNILLA attended a picnic area at the twin service stations on the M1 Motorway, where he met with Shane MURRAY, an associate of BRIDGE, and received $24,000.00 payment for HASSIAN for the supply of fifteen ounces of methyl-amphetamine, which was delivered later that evening by FERRE as referred to above. 53. On 4 May 2016, after HASSIAN had earlier supplied BRIDGE with 15 ounces of methyl-amphetamine and 2 pounds of cannabis (through FERRE on 2/5/16), HASSIAN agreed to supply the same deal to BRIDGE again. At 3:26pm, after HASSIAN has confirmed what he had sent up on 2 May 2016, BRIDGE sent a text message to HASSIAN saying, "Can we go again bro." HASSIAN then called bridge and told him that "Johnny", referring MUNILLA, would be ready to go in about half an hour. 54. HASSIAN informed BRIDGE that MUNILLA would be taking him to Liverpool, to his brother's unit, where MUNILLA would "load up". At 4:29pm, HASSIAN texted BRIDGE to say: "Jhony is levin in 10m bro." Following further calls between HASSIAN and MUNILLA, in a recorded call at 7:22pm, MUNILLA informed HASSIAN that BRIDGE had called him. HASSIAN gave MUNILLA instructions to tell BRIDGE where he was, and how long he would be. 55. MUNILLA then met with BRIDGE and supplied the 15 ounces (~426 grams) of methyl-amphetamine, and 2 pounds (~0.908 kilograms) of cannabis to him at HASSIAN's behest. At 7:47pm, MUNILLA called HASSIAN and told him that he was "heading back now", indicating that the transaction had occurred successfully. … 59. On 7-8 May 2016, MUNILLA couriered 5 ounces, or ~142 grams, of methyl-amphetamine to BRIDGE. On this occasion MUNILLA met BRIDGE at the twin service stations in Gosford. Following MUNILLA returning to HASSIAN, a phone call was made by HASSIAN to BRIDGE. 60. In a recorded call at 5:59pm on 7 May 2016, HASSIAN said to MUNILLA, "I need 5 Johnny that's straight up". HASSIAN then connected with BRIDGE, and asked him, "Are you right for sheds, garden sheds?". BRIDGE replied, "Yep.". 61. In a recorded call at 8:46pm, HASSIAN confirmed with BRIDGE he had readied the drugs for transit, and would use MUNILLA as the courier. Arrangements were made to meet at the twin service stations on the M1 Freeway at Gosford. At 9:58pm, HASSIAN called MUNILLA and instructed him to call BRIDGE and inform him when he was at Pennant Hills, so as to ensure neither party would have to wait before they met. … 64. Later on 8 May 2016, MUNILLA was with HASSIAN at HASSIAN's home in Casula. At this time HASSIAN made a telephone call to BRIDGE which was lawfully intercepted. HASSIAN told BRIDGE he was sending "Johnny", meaning MUNILLA, to see him and he is sending up "13 minus 7." This conversation related to 13 ounces minus 7 grams, being 362.2 grams of Methyl-amphetamine, which HASSIAN arranged for MUNILLA to courier to BRIDGE at the Twin Service Stations at Gosford. … HASSIAN supply to BRIDGE and WATERHOUSE 107. On 19-20 May 2016, police were conducting covert surveillance on BRIDGE and another co-accused from the Newcastle syndicate, Blake WATERHOUSE. Telephone intercept material revealed that they were going to travel to Sydney to purchase a quantity of methyl-amphetamine from HASSIAN. During the afternoon, WATERHOUSE drove BRIDGE to Budget Rental on Tudor Street, Hamilton, where they hired a Holden Commodore sedan bearing NSW registration… 108. Later that evening BRIDGE and WATERHOUSE were seen driving the Commodore to Sydney. At 11:00pm during a lawfully recorded telephone conversation, HASSIAN confirmed with BRIDGE that he had everything waiting for him. BRIDGE told HASSIAN he was about 20 minutes away. Further discussion took place regarding whether BRIDGE would book a hotel room. Eventually BRIDGE and WATERHOUSE were supplied with methyl-amphetamine by HASSIAN. 109. At 2.07am on 20 May 2016, BRIDGE and WATERHOUSE were stopped by Police at McDonalds on the M1 Pacific Motorway, Wamervale, NSW. The pair were arrested and their vehicle, the Commodore, searched. Police located a black plastic bag containing smaller freezer style plastic bags secreted in the roof cavity of the vehicle. The two freezer style plastic bags were found to contain 168.4 grams of methyl-amphetamine at a purity of 51%. This was the methyl-amphetamine that had been supplied by HASSIAN. The drug was well hidden with the internal light and sunglass holder being removed to secrete it between the roof and the interior lining." (Errors in original.)
The judge found that Mr Hassian was engaged as a principal in a medium sized drug syndicate involving the distribution of drugs at a wholesale level and at a street level. Her Honour found that he was the principal who was sourcing and supplying substantial quantities of methylamphetamine, cannabis and cocaine.
The judge said that Mr Hassian had access to large sums of working capital to ensure his enterprise continued successfully. He had couriers and suppliers working for him who delivered drugs around Sydney, the Central Coast and Newcastle.
Her Honour found that there were 13 supplies "in less than eight weeks between 14 April 2016 and 4 June 2016, of 3.92 (sic) kilograms of methylamphetamine which was six times more than the amount applicable to constitute the large commercial quantity".
Her Honour assessed the objective seriousness of the offence to fall "at above the midrange of objective seriousness."
When referring to Mr Hassian's subjective case, the judge said that Mr Hassian's prior criminal history was "replete with convictions and custodial sentences for offending of a like nature".
Her Honour also considered that the Form 1 offences were "very serious". Her Honour found that Mr Hassian's prospects of rehabilitation remained guarded and without a genuine commitment to rehabilitation he was "highly likely to reoffend".
Her Honour said that Mr Hassian had done his best to express remorse. His pleas of guilty demonstrated contrition.
The judge allowed a 25% discount for his pleas of guilty and an additional 7.5% discount for assistance.
The judge took into account the following matters on a Form 1: 1. Supply of not less than the commercial quantity of cannabis, namely 40.1 kilograms contrary to s 25(2) of the DMT Act; 2. Supply of not less than the commercial quantity of cocaine, namely 300 grams contrary to s 25(2) of the DMT Act; and 3. Knowingly dealing with the proceeds of crime, namely $42,855 contrary to s 193B(2) of the Crimes Act.
Taking into account the matters on the Form 1, her Honour said that the indicative sentence for count 1 was 5 years with a non-parole period of 2 years and 6 months.

Argument

In written submissions, the applicant supported his ground of appeal by stating: "1. I was put as principal when clearly my co-offender Abdul [Hassian] was principal as he was my supplier; 2. I believe my sentence is excessive in comparison to my co-offender Abdul [Hassian]."
In oral submissions, the applicant contended that his sentence was excessive as Mr Hassian had "three times… the quantity of drugs" and Mr Hassian "received 10 years 6 months on top with a non-parole period of 6 years" whereas he received "10 years 4 months on top with a non-parole period of 6 years 4 months".
The applicant said that Mr Hassian's indicative sentence was "two and a half years on the bottom". However, he "received 4 years 6 months on the bottom" when his quantity of drugs was "a third of the size". It is apposite to note that contrary to the applicant's oral submission, the indicative non-parole period is 4 years and 8 months.
The applicant argued that Mr Hassian got "10 months per kilo" whereas he ended up with "54 months as opposed to [Mr Hassian]".
The applicant told this Court that his prior criminal record was very limited whereas Mr Hassian had an extensive and serious prior criminal history. He said that the sentencing judge assessed him as being unlikely to reoffend and as having a medium to low risk of offending. On the other hand, Mr Hassian's prospects of rehabilitation were assessed by the judge as remaining guarded and having a high likelihood of reoffending.
It was the Crown's submission that parity principles have minimal application in the applicant's case.
The Crown submitted that the particular circumstances of the applicant and Mr Hassian did not permit a mere comparison of the aggregate sentences as Mr Hassian was sentenced in respect of a number of different offences not related to the applicant. Furthermore, an issue arises as to the extent to which the applicant and Mr Hassian were "co-offenders" or "like offenders". Both were involved in drug supply but each had one drug supply offence in which both had some involvement.
The Crown argued that even where there was shared involvement, the applicant and Mr Hassian were not parties to a joint criminal enterprise to supply prohibited drugs. It was submitted that Mr Hassian was a wholesaler of drugs, operating with others on his own account, with the applicant being one of his customers. The applicant (in Newcastle) sourced drugs from Mr Hassian (in Sydney) to on-supply those drugs in the Newcastle area. The Crown contended that the applicant was involved as a principal (with others) in that drug dealing enterprise in which Mr Hassian was not involved. Mr Hassian, the Crown submitted, was a principal (with others) in a separate wholesale distribution enterprise.
In relation to the counterfeiting offence, the Crown's contention was that it could be said that the applicant and Mr Hassian were both involved in the same criminal enterprise. However, the Crown submitted that the offence played a minimal role in the overall sentences that were imposed on each of them and did not appear to form the basis of the applicant's complaint.

Consideration

Where there is a marked disparity between the sentences imposed on co-offenders giving rise to a justifiable sense of grievance, this Court will intervene. [9] The applicant must show that a reasonable person, looking at the circumstances of the case, would regard the applicant's grievance was justified. [10] The plurality (French CJ, Crennan and Kiefel JJ) in Green v The Queen; Quinn v The Queen [11] ("Green") said at [31]: "…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.)
The parity principle is not confined to sentences imposed upon co-offenders who have committed the same crime; it can also apply to offenders engaged in the same criminal enterprise, even though they have been charged with different offences. In Green, the plurality said at [30]: "…The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co‑offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged." (Footnotes omitted.)
In Jimmy v R, [12] Campbell JA observed that there are limits to the use of the parity principle. His Honour said at [203]: "There are significant limitations, however, on reducing a sentence on the basis of that of a co-offender who has committed a different crime. At least some of the limits on the use of the parity principle in such a case are: 1. It cannot overcome those differences in sentence that arise from a prosecutorial decision about whether to charge a person at all, or with what crime to charge them; 2. If it is used to compare the sentences of participants in the same criminal enterprise who have been charged with different crimes, there can be significant practical difficulties. Those practical difficulties become greater the greater the difference between the crimes charged becomes, and can become so great that in the circumstances of a particular case a judge cannot apply it, or cannot see that there is any justifiable sense of grievance arising from the discrepancy; 3. It cannot overcome differences in sentence that arise from one of the co-offenders having been given a sentence that is unjustifiably low; 4. There are particular difficulties in an applicant succeeding in a disparity argument where the disparity is said to arise by comparison with the sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the applicant." (Citations omitted.)
The practical difficulties in comparing the sentences of participants in the same criminal enterprise are increased when the crime is part of an aggregate sentence imposed pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which includes other offences that are not part of that criminal enterprise.
It is difficult to apply the parity principle when there is a wide divergence between the nature of the other offences charged against the applicant and a co-offender. In these circumstances, a comparison of the aggregate sentences will do little to inform this Court as to whether there is a justifiable sense of grievance. Such is the present case.
This does not mean that the parity principle cannot be applied to aggregate sentences. The indicative sentence for the joint criminal enterprise crime may provide some guidance as to whether there is unjustified disparity. In AMZ v R, [13] Hoeben CJ at CL (Price and Schmidt JJ agreeing) approved the approach of R A Hulme J in considering Pt 7 Div 3 of the Crimes (Appeal and Review) Act 2001 (NSW). [14] Hoeben CJ at CL said at [16]: "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])." [15]
One of the arguments advanced by the Crown was that the applicant and Mr Hassian were not parties to a joint criminal enterprise. True it is, in the agreed facts, the participants in the joint criminal enterprise for the supply of prohibited drugs in the Newcastle area were stated to be the applicant and Blake Waterhouse. [16] However, it is evident from the agreed facts that they sourced methylamphetamine from Mr Hassian. The applicant and Mr Hassian had a common understanding to commit the crime although they participated in the offence in different ways.
Furthermore, it is apparent from the agreed facts placed before the judge in Mr Hassian's case that the applicant was a participant in the joint criminal enterprise for the supply of prohibited drugs. The agreed facts reveal that Mr Hassian supplied almost three kilograms of methylamphetamine to the applicant.
The application of the parity principle is governed by substance rather than form. Although the agreed facts in the applicant's case did not name Mr Hassian as one of the participants in the joint criminal enterprise, they were clearly co-offenders. In my view, the issue of equal justice can be assessed from the undiscounted starting points of the indicative sentences for the charges of supply of the large commercial quantity of methylamphetamine as there are significant differences in the amount of the drug supplied and the subjective circumstances of the applicant and Mr Hassian.
In the applicant's case, 1.115 kilograms of methylamphetamine was supplied whereas 3.192 kilograms was supplied by Mr Hassian. Although on Mr Hassian's agreed facts, the applicant received almost three kilograms of the prohibited drug, he was not charged with these offences and accordingly, that does not bear consideration on the parity issue.
The sentencing judge assessed the objective seriousness of the applicant's offence as being "in the middle of the range" whereas the judge's assessment of the objective seriousness of Mr Hassian's offence was "at above the mid-range of objective seriousness".
The sentencing judge's findings included the applicant's very limited criminal history, good prospects of rehabilitation, unlikelihood of re-offending and remorse.
On the other hand, Mr Hassian had an extensive prior criminal history. The judge's findings included guarded prospects of rehabilitation, high likelihood of re-offending without a genuine commitment to rehabilitation and that he had done his best to express remorse.
In both cases, the indicative sentences took into account the Form 1 offences. As judges do not quantify the effect that Form 1 offences have on the sentence for the principal offence, it is not possible to ascertain the impact that the Form 1 offences had on the indicative sentences. It is sufficient to state that they are serious offences in both cases.
The undiscounted starting point of the applicant's indicative sentence is 10 years. Adding the discount of 32.5% to Mr Hassian's indicative head sentence the undiscounted starting point was 7 years and 5 months (round figures). Having regard to the differences in the amounts of the drug supplied, assessments of the objective seriousness of the offences and the applicant's more favourable case, the applicant's sense of grievance is understandable.
The question remains, however, whether Mr Hassian's indicative sentence was so manifestly inadequate that it does not give rise to a legitimate sense of injustice. In Saraya v R, this Court (Meagher JA, Fullerton and Schmidt JJ) said at [13]-[17]: "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. 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]. 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]. 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". 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." [17]
In my view, the discounted indicative sentence for Mr Hassian's offence of 5 years with a non-parole period of 2 years and 6 months was erroneously lenient. The legislative guideposts are a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The objective gravity of the offence was above the midrange. Mr Hassian's subjective case did little to assist him on sentence. Furthermore, there were the matters on the Form 1 to be taken into account. The manifest inadequacy of Mr Hassian's sentence is of such a degree that any sense of injustice engendered in the applicant cannot be regarded as legitimate.
I would add that the applicant's indicative sentence for the supply of the large commercial quantity of methylamphetamine was not unreasonable or plainly unjust. Neither the indicative sentence nor the aggregate sentence are manifestly excessive.
The applicant did not complain about the indicative sentences for the offences of making counterfeit money contrary to s 6(1) of the Crimes (Currency) Act.
Accordingly I propose the following orders: 1. Extend the time for leave to appeal. 2. Grant leave to appeal. 3. Dismiss the appeal.
WRIGHT J: I agree with Price J.

Endnotes

See [6] above.
See [7] above.
See [6] above.
See [7] above.
See [32]-[35] below.
R v Bridge [2018] NSWDC 96.
R v Bridge [2018] NSWDC 96.
R v Bridge [2018] NSWDC 96.
Postiglione v R (1997) 189 CLR 295; [1997] HCA 26; 71 ALJR 875; 145 ALR 408; 94 A Crim R 397.
R v Ilbay [2000] NSWCCA 251 at [6]; R v Kollas and Mitchell [2002] NSWCCA 491 at [50].
(2011) 244 CLR 462; [2011] HCA 49; 86 ALJR 36; 283 ALR 1; 214 A Crim R 152.
(2010) 77 NSWLR 540; [2010] NSWCCA 60; 269 ALR 115; 240 FLR 27.
[2017] NSWCCA 184.
Application by AMZ pursuant to Part 7 of the Crimes (Appeal and Review) Act (NSW) [2017] NSWSC 432.
AMZ v R [2017] NSWCCA 184 at [16].
See [12] above.
[2015] NSWCCA 63. 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: 15 September 2020

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