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[2025] NSWCCA 49
Court of Criminal Appeal (NSW)
2025-04-09
Price AJA at [1]Campbell J at [4]Hamill J at [5]
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Farrugia v R [2025] NSWCCA 49
Hearing dates: 12 March 2025
Date of orders: 09 April 2025
Decision date: 09 April 2025
Before: Price AJA at [1]
Campbell J at [4]
Hamill J at [5]
Decision: (1) Leave to appeal against sentence granted.
(2) Dismiss the appeal.
Catchwords: CRIMINAL APPEALS – sentence appeal – miscarriage of justice – asserted conflict of interest in counsel acting at first instance – no evidence to establish conflict – no rule that the same advocate cannot appear for two offenders in sentencing proceedings – fact that a different submission conjured by appellate counsel “could” have been made establishes little or nothing – invariably the case – no waiver of privilege – reliance on record of court below – no evidence tendered on appeal – no merit in ground – no evidence of practical injustice – appeal dismissed
Legislation Cited: Crimes Act 1914 (Cth), s 16BA
Criminal Appeal Act 1912 (NSW), ss 6(3), 12(2)
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), r 119
Cases Cited: Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
Baxter v R [2018] NSWCCA 281
BC v R (No 2) [2019] NSWCCA 142
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Brown v R (2018) 99 NSWLR 151; [2018] NSWCCA 257
Douar v Regina [2005] NSWCCA 455; (2005) 159 A Crim R 154
Ellis v R [2015] NSWCCA 262
Hall v R [2007] NSWCCA 301
Hamdan v R [2023] NSWCCA 80
Jones (a pseudonym) v R [2021] NSWCCA 225; (2021) 291 A Crim R 68
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
LS v R [2024] NSWCCA 110
MacDonald v R [2024] NSWCCA 240
Murray v R [2015] NSWCCA 75
Nassr v R [2015] NSWCCA 284
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
O’Neil-Shaw v R [2010] NSWCCA 42
Paul Campbell v R [2018] NSWCCA 87
Portelli v R [2018] NSWCCA 28
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Purdie v R [2019] NSWCCA 22
R v Pamplin [2001] NSWCCA 327
R v Zycki [2024] NSWCCA 9
Raymond John Munro v R [2006] NSWCCA 350
Rossall v R [2021] NSWCCA 200
Shi v R [2017] NSWCCA 126
Shortland v R [2024] NSWCCA 174
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Tsiakas v R [2015] NSWCCA 187
Texts Cited: N/A
Category: Principal judgment
Parties: Frank Samuel Farrugia (Applicant)
Rex (Respondent)
Representation: Counsel:
T F Woods (Applicant)
M England SC and E McGinness (Respondent)
Solicitors:
Gregory Goold Solicitors (Applicant)
Office of the Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2020/00178170
Publication restriction: N/A
[This headnote is not to be read as part of the judgment]
On 8 December 2023, the applicant was sentenced in the District Court following his plea of guilty to one count of conspiring to traffic a commercial quantity of a border-controlled drug, namely 20kg of MDMA and 3kg of methamphetamine. A further offence of dealing with the proceeds of crime, namely $957,217 was taken into account in sentencing. The applicant was sentenced to 11 years imprisonment, with a non-parole period of 7 years and 6 months. A co-offender, Deniz Kanmaz, was sentenced at the same time as the applicant following a plea of guilty to a similar conspiracy offence concerning 21kg of MDMA and 9.18kg of methamphetamine. A further offence of dealing with the proceeds of crime, namely $1,785,000 was also taken into account. Mr Kanmaz was sentenced to 9 years imprisonment, with a non-parole period of 6 years and 6 months. The applicant and Mr Kanmaz were jointly represented by senior counsel during the sentencing proceedings.
The applicant sought leave to appeal against the sentence imposed on a singular ground:
The Court granted leave to appeal and dismissed the appeal, finding:
1 The Court has the power in rare cases to remit a matter back to the sentencing court under s 12(2) of the Criminal Appeal Act 1912 (NSW) on the basis that there was a miscarriage of justice without determining whether a different sentence was warranted pursuant to s 6(3). This may occur where the applicant was denied procedural fairness or was subject to a sentencing hearing which was so flawed as to amount to no hearing at all. Examples of such cases may include where a judge rejected erroneously a submission that they are disqualified or where a lawyer appearing for two offenders has a conflict of interest. However, in the present case, the applicant did not establish that there was a miscarriage of justice or that senior counsel had a conflict of interest: [37]-[51] per Hamill J (Price AJA agreeing at [1] and Campbell J agreeing at [4]).
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, Raymond John Munro v R [2006] NSWCCA 350, Brown v R (2018) 99 NSWLR 151; [2018] NSWCCA 257, Rossall v R [2021] NSWCCA 200, Shi v R [2017] NSWCCA 126, Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 and O’Neil-Shaw v R [2010] NSWCCA 42 applied.
2 The evidence did not allow a finding that the barrister who appeared for both offenders had a conflict of interest such that a miscarriage of justice was occasioned by counsel continuing to act for both offenders. There is no rule of practice or ethics that one counsel cannot act for two co-offenders in sentencing proceedings. A conflict of interest will not be established merely because appellate counsel can conjure submissions that “could” have been made and which had “some possible merit” or where trial counsel makes legitimate submissions concerning the role of the offenders and their objective criminality. The fact that further or different submissions “could” have been made establishes little, if anything: Hamill J per [57]-[59], [62]-[63] (Price AJA agreeing at [1] and Campbell J agreeing at [4]).
3 In cases where the conduct of counsel is impugned, an applicant may need to adduce evidence to establish, for example, that instructions were not followed or that the possibility of a conflict of interest was not addressed by counsel or discussed with, and explained to, the offender(s). The failure to waive privilege may leave the court with little or no evidence of the matters which are said to have caused the proceedings to miscarry: [60]-[64] per Hamill J (Price AJA agreeing at [1] and Campbell J agreeing at [4]).
Brown v R (2018) 99 NSWLR 151; [2018] NSWCCA 257 and Hall v R [2007] NSWCCA 301 considered and applied.
4 The applicant did not demonstrate that there was a significant possibility that the joint representation adversely affected the sentence imposed. The concern of the court was to prevent a practical injustice and the applicant’s argument fell well short of establishing a practical injustice: [1]-[3] per Price AJA (Campbell J agreeing at [4]).
Hamdan v R [2023] NSWCCA 80 and Tsiakas v R [2015] NSWCCA 187 applied.
5 The sentence was within an appropriate discretionary range and the sentences imposed on the two offenders were not such as to engender a justifiable sense of grievance in the applicant. There were several features of the evidence that distinguished the case of each co-offender. Considering the relevant differences between the cases, the sentence imposed on each offender bore a proper and due proportion to the sentence imposed on the other: [68] per Hamill J (Price AJA agreeing at [1] and Campbell J agreeing at [4]).
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 applied.
PRICE AJA: I agree with the reasons of Hamill J that the appeal should be dismissed. As Hamill J points out, the evidence does not support the applicant’s contention that senior counsel had a conflict of interest. The applicant has not demonstrated that there is a significant possibility senior counsel’s joint representation adversely affected the sentence imposed upon him.
As Wilson J (with whom Price and Dhanji JJ agreed) relevantly stated in Hamdan v R [2023] NSWCCA 80 at [40]:
“A ground of appeal that relies upon some defect in the submissions made to a sentencing court is rarely seen, perhaps because the task of establishing that a miscarriage of justice has been occasioned by a flaw in submissions is a difficult one: Puan v R [2009] NSWCCA 194, at [55]; Tsiakas v R [2015] NSWCCA 187, at [44] [(‘Tsiakas’)]. A miscarriage of justice must mean that the irregularity complained of occasioned injustice. The burden falls on the applicant to make good that proposition. Necessarily, he must establish that the conduct of his counsel occasioned a material irregularity in the sentence proceedings; and that there is a significant possibility that the irregularity affected the outcome in a way that was adverse to the applicant: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, at [79]; Grant v R [2014] NSWCCA 67, at [52].”
It is well established that the concern of this Court is to avoid practical injustice: Tsiakas at [44] (Beech-Jones J, Leeming JA and Johnson J agreeing); Shortland v R [2024] NSWCCA 174 at [49] (Stern JA, Cavanagh and Sweeney JJ agreeing). The applicant’s arguments fall well-short of establishing a practical injustice. Whilst leave should be granted, the appeal should be dismissed.
CAMPBELL J: I have had the considerable advantage of reading the judgment of Hamill J in draft. I agree with his Honour’s reasons and with the orders proposed. I also agree with the additional observations of Price AJA.
HAMILL J: Frank Samuel Farrugia (the applicant or Mr Farrugia) seeks leave to appeal against a sentence imposed on him by Acting Judge Berman SC following his plea of guilty to an offence of conspiring to traffic a commercial quantity of a border-controlled drug, namely 20kg of MDMA and 3kg of methamphetamine. In sentencing for that offence, the sentencing Judge took into account an offence of dealing in the proceeds of crime, namely $957,217.
The drug offence carried a maximum penalty of life imprisonment and the proceeds of crime offence taken into account, if charged separately, has a prescribed maximum penalty of 20 years imprisonment. Mr Farrugia was sentenced to imprisonment for 11 years with a non-parole period of 7½ years. The sentence commenced on 27 April 2021 and the applicant will be eligible for parole on 26 October 2028.
A co-offender, Deniz Kanmaz, was sentenced at the same time. He was charged with a similar conspiracy offence. In his case there were 21kg of MDMA and 9.18kg of methamphetamine. An offence of dealing in the proceeds of crime ($1,785,000), with a maximum penalty of 25 years imprisonment, was taken into account on sentencing. Mr Kanmaz was sentenced to 9 years imprisonment with a non-parole period of 6½ years. His sentence commenced on 11 October 2018 and he is eligible for parole on 10 April 2025.
The offences were committed between 2013 and 2015, but the charges were not laid until 2020. Both offenders were arrested on 16 June 2020.
The reason for the different commencement dates was that Mr Kanmaz was serving a sentence for other offences (possession of an unauthorised pistol and dealing in the proceeds of crime) in relation to which he was taken into custody in 2017. Judge Berman held uncontroversially that there was “an obvious overlap between [Mr Kanmaz’s] 2017 proceeds offence” and the present offences. In those circumstances, the application of the totality principle was a significant issue in structuring the sentence imposed on Mr Kanmaz and in determining the commencement date. There was no similar issue in the applicant’s case. He was on bail for part of that period and the commencement date of his sentence was calculated based on the periods of time he had been in custody between his arrest and the imposition of sentence.
Both offenders pleaded guilty at an early stage and their sentences were reduced (by 25%) accordingly.
The applicant raised a single ground of appeal:
“The sentence proceedings miscarried because the applicant and his co-offender Deniz Kanmaz were not separately represented.”
No parity ground was advanced and there was no attempt to impugn the Judge’s factual findings or to argue that there was any misapplication of principle. Rather, it was submitted that several submissions “could” have been advanced by counsel who appeared for both offenders in the District Court. It was submitted that this, along with the fact that the men were co-offenders and that considerations of equal justice (that is, parity, or the requirement that there be a due and proper proportion between the sentences) [1] were engaged, established that the barrister had a conflict of interest.
This, so it was submitted, amounted to an “irregularity” in the sentencing proceedings which meant that a “miscarriage of justice” had occurred, and the Court should therefore quash the sentence and remit the matter to the District Court pursuant to s 12 of the Criminal Appeal Act 1912 (NSW). Apart from the record of the proceedings in the District Court, no evidence was tendered by the applicant to establish that counsel had a conflict of interest in appearing for both offenders. When the respondent invited the applicant to waive privilege to enable her to adduce evidence from the lawyers who appeared in the District Court, the invitation was declined.
The ground of appeal is without merit. No miscarriage of justice is established on the record of the proceedings. In the interests of finality, and because of what might be considered to be the novelty of the ground, I would grant leave to appeal. However, the appeal must be dismissed.
Because of the way the appeal was conducted, because it is not asserted that Judge Berman made any error of law or fact, and because no parity ground was raised, it is unnecessary to set out more than an overview of the facts.
Those facts were agreed between the parties, reduced to a document of 11 pages, and signed by Mr Farrugia, Mr Kanmaz and the solicitor appearing for the Commonwealth Director of Public Prosecutions. The agreed facts were tendered as part of the prosecution tender bundle which was tendered as Exhibit 1. The tender bundle also included the criminal histories of both offenders and the statement of facts relating to Mr Kanmaz’s 2017 offending. Exhibit 2 was the sentencing judgment relating to that 2017 offending.
A supplementary tender bundle, including a statement by Detective Wayne Moore, agreed facts relating to the applicant (and signed by him) along with the transcripts of telephone intercepts involving Mr Farrugia and others, was tendered as Exhibit 5. Exhibit 5 was relevant to an issue of “duress” (of the non-exculpatory kind) raised on behalf of the applicant.
In December 2013, police established Strikeforce Millstream to investigate the activities of a group suspected of being involved in drug supply and money laundering. The investigation revealed that the group included Benjamin Pitt, Matthew Battah, Savas Guven, the applicant, Mr Kanmaz and others. Documents were seized which came to be known as “the Battah ledgers” along with a Blackberry operated by Matthew Battah. Mr Battah was described as “the record keeper for the group involved in coordination of both importation and trafficking activities”. His ledgers recorded the money and drug transactions “against the codename of individual members”.
The agreed facts described Mr Kanmaz’s role in the following terms (with my emphasis):
“8. Kanmaz stored drugs and cash for the group at his residence or at Kings Park. The money and drugs were made available to other group members.
…
30. Kanmaz was the storeman of cash and drugs for the group in return for a wage. He was also involved in preparing the drugs for sale at the request and direction of others. He was not a stakeholder in the drugs or cash that he stored.”
“9. Farrugia sourced drugs for and received drugs from the group.”
The document set out five specific instances where Mr Farrugia was involved in the supply of 2kg, 3kg, 10kg and 5kg of MDMA (20kg of MDMA in total) and 3kg of methamphetamine. It went on to summarise a series of communications between the applicant and Mr Battah, and the applicant and others. Mr Farrugia arranged to source and supply the group with large quantities of drugs, discussed issues involving the line of supply, advised on market prices for particular drugs in particular quantities, and arranged to obtain drugs from the group. Mr Farrugia operated separately from the main group seemingly on his own account and in conjunction with another man.
The agreed facts also detailed communications relating to Mr Kanmaz and asserted that he “used the encrypted Blackberry to receive his instructions in relation to drugs and cash” and that “at times he was directed to meet a courier … who conveyed the drugs/cash to and from other parties.” It is said that he conducted stocktakes of drugs and cash “on request” and “reported back to members of the [group] including Battah”. He also delivered drugs and cash and made collections when requested.
The agreed facts contained a table of transactions in which Mr Kanmaz was involved and his role in those transactions. This included transactions involving 9kg, 7kg and 5kg (total 21kg) of MDMA and 2kg, 5.18kg, 1kg and 1kg (total 9.18kg) of methamphetamine. In five of those six transactions, Mr Kanmaz received directions from Mr Battah.
The sentencing Judge made the following finding in relation to the roles of the two men:
“The roles played by the two offenders were different with Farrugia being more deeply involved than Kanmaz, the latter of whom was not a profit sharer, merely being paid a wage, albeit a substantial one. As is well known, those in the upper echelons of a drug trafficking enterprise do their best to make others do the things most at risk of being detected by the authorities while they keep their hands clean. For that reason the fact that Mr Kanmaz was responsible for storing the drugs and money demonstrates his relatively lowly position in the hierarchy. In contrast, Mr Farrugia was getting his share of the profits.”
When asked by the Presiding Judge about that finding on the hearing of the appeal, Mr Woods acknowledged that his client was not “contending that the sentencing judge made a specific error which should lead to the Court exercising the discretion afresh” but that “it’s relevant to the question of whether there was a conflict [of interest, in appearing for both offenders]”.
The agreed facts referred to parts of the “Battah ledgers” relevant to the offences taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth), that is the offences of dealing with the proceeds of crime. Based on deposits into his bank account which corresponded with the ledgers, Mr Farrugia supplied and received large amounts of cash. A table set out five large deposits and one withdrawal. Four of the deposits into the applicant’s Westpac bank account totalled $957,217.58. The agreed facts also set out transactions in and out of bank accounts controlled by Mr Kanmaz and records relating to “Overstock Solutions Pty Ltd”, a business that was set up “to store and distribute prohibited drugs and proceeds of crime for the Millstream group” which concealed these activities by a “website, corporate branded uniforms, email accounts etc”. A table set out 13 “outgoing transactions” amounting to the $1,785,600 that was particularised in the proceeds of crime offence against Mr Kanmaz.
In advancing the applicant’s single ground of appeal, Mr Woods relied on the fact that the Prosecutor asserted that Mr Kanmaz’s objective criminality was higher than that of the applicant whereas Mr Djemal SC, appearing for both offenders at first instance, put the opposite. At the hearing, the Prosecutor accepted the position taken by Mr Djemal.
The Prosecutor’s written submission was in the following terms:
“The objective seriousness of each of Farrugia’s and Kanmaz’s conduct for the trafficking offences fall within a broad mid-range for offences of their type, with that of Kanmaz approaching the higher end of the mid-range and that of Farrugia falling within the mid-point of the mid-range …”
“The Court would conclude, contrary to the Crown’s written submissions (CWS paragraph [19]) that Kanmaz fell just below the midrange of offending while Farrugia would be placed toward the bottom of the midrange of offending (cf CWS paragraph [19]).”
“DJEMAL: One point of tension between the parties is as to the objective seriousness of Mr Kanmaz. It seems the parties are not quite aligned, but more aligned with Mr Farrugia. The Crown says, with respect to Mr Farrugia, you’d find him in the mid of the broad mid-range. My submission is that you’d find him towards the bottom of that broad range, and I’ll get to his reasons at another time, but with respect to Mr Kanmaz, the Crown position is that Mr Kanmaz would be within the broad mid-range but towards the top end. My submission is he’d fall below the mid-range, and if your Honour is of that view when looking at him with respect to--
HIS HONOUR: You agree, though, that Mr Kanmaz is more culpable than Mr Farrugia, don’t you?
DJEMAL: This is the difficulty. Both fall at a particular zone within the hypothetical ranges, but--
HIS HONOUR: I just want to check I’ve got your submissions right. In your submissions, don’t you agree that Mr Kanmaz is more culpable than Mr Farrugia?
DJEMAL: No, I say the opposite.
HIS HONOUR: Do you? You say the opposite of what the Crown says.
DJEMAL: The Crown says Mr Kanmaz is more culpable than Mr Farrugia, and my submission, unless I’ve articulated it wrongly, Mr Kanmaz is below.
HIS HONOUR: Let’s go to that because I don’t want to misunderstand something from the very beginning.
DJEMAL: If I was to take your Honour to para 17 of my written submissions. That’s the basis and the reason I say that’s--
HIS HONOUR: Did you say something about parity somewhere?
DJEMAL: Your Honour’s referring to para 22.
HIS HONOUR: Sorry, I have misunderstood it.
DJEMAL: The Crown talks about parity between the two, I don’t give that heading.
HIS HONOUR: So you disagree about who is more culpable. You’re talking about the tension and that’s the tension.
DJEMAL: And the reason I say that your Honour would conclude that he’s lower, and can I say this is one of those cases where Mr Farrugia is not part of - when I use the word hierarchy, I’m talking about the group where you’ve got Mr Guven, Mr Pitt, then Mr Battah who’s doing the books, and the others are doing the organising, et cetera. Mr Farrugia runs off that; this is not in dispute between the parties. He’s not part of that group. Mr Farrugia seems to run a smaller operation with a person by the name of BJ(?), and he does some sourcing and purchasing from the group, and he doesn’t seem to have the network. So for certain reasons, I submitted another time how his objective seriousness is determined, but as far as the group and the hierarchy goes, Mr Kanmaz is at the bottom, there’s no one lower than him.
All the messages indicate that whoever the upper echelons determine and attribute drugs to and negotiate supplies to and source their drugs. So Mr Kanmaz doesn’t do any sourcing, doesn’t do any negotiating, doesn’t do any price setting. What he does is, at the direction of others, stores; so has the drugs when they’re dropped off and provides them, when he’s directed, to certain parties where they come and pick up, stores money and makes available money, all at the directions. There is no message that would indicate Mr Kanmaz is giving anyone else any direction or any activity to do that’s connected to the offending. So he’d have to be at the bottom rung.”
“HIS HONOUR: Can we start with objective criminality?
PACE: Yes.
HIS HONOUR: You have them round the other way from Mr Djemal; why?
PACE: I don’t know that I expressly do, your Honour. Your Honour is referring to para 19 of the Crown’s submissions, which is perhaps the appropriate starting point about which we talk about the level of objective seriousness in relation to each of the offending.
HIS HONOUR: You say Kanmaz is approaching the higher end of the midrange, Farrugia is falling in the midpoint of the mid-range, so you say Kanmaz is objectively worse than Farrugia. Mr Djemal says the opposite.
PACE: Yes.
HIS HONOUR: Who’s right?
PACE: I think I would appropriately concede orally now that Mr Djemal is right about that, and I can articulate reasons why, which perhaps might--
HIS HONOUR: If they’re just reproducing what Mr Djemal said, then--
PACE: It does require me to go into Mr Farrugia’s criminality and what it is he did, but perhaps a simple way to describe it is that the role that has been attributed to Mr Kanmaz has been accurately described as that of someone who was receiving wages not involved in receiving profits from the enterprise, unlike Mr Farrugia who was operating effectively with the group and independently of them, such that his capacity to earn profits in a much larger way was - well, the capacity to earn profits compared to Mr Kanmaz, obviously, so was his motivating factor. So I think that answers your Honour’s question, but if I can just focus on Mr Kanmaz, including what’s been identified at para 62 of the offender’s submissions from Mr Djemal.”
“… there’s no complaint about his Honour making an error in the circumstances of his Honour having heard submissions about these matters, but may I say that the applicant disputes the conclusion that was reached about the issue. I note that in this paragraph, which is para 2 on appeal book p 97, [2] a matter of emphasis reflecting the emphasis that was given to this issue by counsel in submissions was that Mr Kanmaz was being paid a wage, albeit a substantial one, that’s reading from para 2.
The notion that an offender is a wage earner as distinct from somebody who is deriving a financial advantage from the offending in some other way was an important notion in the presentation of the case on behalf of Mr Kanmaz and it was an important factor which his Honour emphasised in the reasons. But it is a label that can tend to obscure what an offender actually does. It’s a bit like ‘courier’ or ‘storeman’ or ‘principal’. Sometimes these labels can be useful but there’s a risk that they can obscure and this is, of course, relying on that well known passage from Olbrich, can obscure an assessment of what the offender actually did.
So I just make that point, not because in this appeal my client is contending that the sentencing judge made a specific error which should lead to the Court exercising the discretion afresh; I make the point because it’s relevant to the question of whether there was a conflict because if the facts and circumstances of the case were so clear in discriminating between the applicant and Mr Kanmaz and their relative culpabilities, including because he was a wage earner, then the respondent might well rely on that to argue that there is and was no conflict. But that submission, I respectfully submit, would have to be rejected because the mere fact that Mr Kanmaz was earning wages was not so important that it completely outweighed other considerations and took this case out of the category where counsel had a conflict.”
“30. Counsel was conflicted in appearing for both offenders, in that:
a. there was an issue of parity as between the two offenders; and
b. there was a submission available which counsel could have made in the interests of the applicant if he had not also been appearing for Mr Kanmaz.
31. The submission that counsel could have made is that the applicant’s criminality was the same as or less than that of Mr Kanmaz and that his sentence ought to be the same as or less than that of Mr Kanmaz. Counsel could have submitted that although the offenders were involved in the offences in different ways, their culpability was around the same level, and that the circumstances were not such as to warrant the imposition upon the applicant of a more severe sentence.
32. If the applicant had been separately represented, his counsel could have made submissions on the question of parity referring to the extensive role played by Mr Kanmaz in the offending, and could have submitted that the sentence imposed on the applicant should be no more severe than that imposed upon Mr Kanmaz.
33. In that regard, counsel could have pointed out that although Mr Kanmaz was on wages and at risk of detection, his role was extensive and crucial to the success of the criminal enterprise, as the agreed facts show:
i. ‘Kanmaz set up a company named Overstock Solutions Pty Limited (‘Overstock’) to store and on request make drugs available to others.’ (para [32])
ii. ‘On request, Kanmaz conducted stocktakes of drugs and audits of cash held for the group and reported back to members of the ground [sic – group] including Battah. Kanmaz also delivered drugs and cash and made collections from time to time when requested.’ (para [33])
iii. ‘[Kanmaz] was in possession of large amounts of funds and was responsible for collecting and distributing and making available large amounts of cash on instructions from members of the group.’ (para [41])
iv. ‘On 16 September 2014, Overstock commenced the lease of 5/1 Bowmans Road, Kings Park. Kanmaz was the sole director and shareholder of Overstock and signed the lease as guarantor.’ (para [42])
34. Looking at what the offender did, i.e., the acts actually performed by the offender, is an important part of assessing role and objective seriousness. The various acts performed by Mr Kanmaz indicate a significant role in the offending and that his criminality and culpability is high. He was not just a storeman. In any event, the storage of drugs (or illicit cash) is a ‘vital function’: Donnelly v R [2024] NSWCCA 151, per Faulkner J (Harrison CJ at CL and Garling J agreeing) at [42]-[44]. In this case, Mr Kanmaz’s role was vital to the overall operation.
35. Counsel briefed separately to appear on behalf of the applicant could have noted that, although the applicant was in direct contact with Mr Battah, this did not mean he was ‘closer to the centre of the operation’ (cf. judgment, p.7) because pp.8-13 of the statement of facts showed that Mr Kanmaz was also regularly in direct contact with Mr Battah.
36. Counsel could have emphasized the matters raised in para [66] of the Crown’s written submissions, as to which see para [12] supra. He or she could also have submitted that regardless of any arguably greater criminality on the applicant’s part, his sentence should be close to or the same as that of Mr Kanmaz because of the strongly mitigating effect of his disadvantaged childhood.”
Mr Woods submitted that the approach taken to the issue of the offenders’ respective roles and objective criminality, along with the availability of a number of submissions that could have been made, but were not made, supports a finding by this Court that Mr Djemal had a conflict of interest in appearing for both men and that a miscarriage of justice is established because the applicant was not separately represented.
Mr Woods relied on rule 119 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) which provides:
A barrister who is briefed to appear for two or more parties in any case must determine as soon as possible whether the interests of the clients may, as a real possibility, conflict and, if so, the barrister must then return the brief for:
(a) all the clients in the case of confidentiality to which rule 114 would apply, or
(b) one or more of the clients so as to remove that possibility of conflict.
The applicant tendered no additional evidence on the appeal concerning the issue raised by his ground of appeal. An affidavit was read on “the usual basis”, that is if the Court came to exercise the sentencing discretion afresh: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [4], [46], [52]. However, the applicant tendered no evidence going to the issue of whether counsel had a conflict of interest or whether the applicant should have been separately represented.
The respondent read an affidavit on the appeal annexing email correspondence between the Commonwealth Director of Public Prosecutions (CDPP) and the applicant’s solicitor. The CDPP indicated it was considering obtaining evidence from Mr Farrugia’s lawyers and inquiring whether the applicant would waive privilege. On 3 March 2025, the applicant’s solicitor wrote “there will be no wavier of privilege by our client”.
The applicant relied on the record of proceedings and the argument proceeded on the basis that once (that is, if) the Court found that Mr Djemal had a conflict of interest in appearing for both offenders, the sentencing proceedings miscarried and the case should be remitted to the District Court. As I followed the submission, this conclusion was compelled by the existence of the conflict, rather than by a conclusion that the Judge was led into error, that the sentence was legally wrong or that the statutory basis of the Court’s jurisdiction – that a more or less severe sentence is warranted in law and should have been passed – was established.
The jurisdiction of this Court to intervene in an appeal against sentence is enlivened when it is of the opinion that “some other sentence, whether more or less severe is warranted in law and should have been passed”: Criminal Appeal Act, s 6(3). That generally involves the Court finding a patent legal error and proceeding in accordance with the High Court’s decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 especially at [42]-[43]. In other cases, the error may be “latent” because, on its face, the sentence is unreasonable, manifestly wrong or plainly unjust such that error, while not specifically identified, may be imputed. Such a finding necessarily involves a conclusion that a different sentence is warranted in law. In the vast majority of cases, the Court will then “pass such other sentence in substitution” of the sentence imposed at first instance: Criminal Appeal Act, s 6(3). In relatively rare cases, the Court will remit the case to the primary Judge or sentencing court.
Section 12 of the Criminal Appeal Act provides several “supplemental powers of the court”. Section 12(2) provides:
(2) The Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made.
Without being prescriptive, the power of remittal will generally arise when the Court has reached the opinion referred to in s 6(3). A question arose in this case as to whether the Court can exercise the power to remit on the basis that there was a miscarriage of justice without determining whether a different (less severe) sentence was warranted.
Some categories of cases where the Court has remitted proceedings back to the original sentencing court include:
Cases where a conviction has been quashed which impacts on an aggregate sentence or series of partially accumulated sentences: for example, see Nassr v R [2015] NSWCCA 284 at [12]-[14], Baxter v R [2018] NSWCCA 281 at [14], BC v R (No 2) [2019] NSWCCA 142, LS v R [2024] NSWCCA 110 at [259] and MacDonald v R [2024] NSWCCA 240 at [222].
Cases where a substantial amount of additional evidence is to be tendered and challenged in the re-sentencing exercise: see, for example, R v Pamplin [2001] NSWCCA 327 at [5], Douar v Regina [2005] NSWCCA 455; (2005) 159 A Crim R 154 at [146], Raymond John Munro v R [2006] NSWCCA 350 at [26] and Brown v R (2018) 99 NSWLR 151; [2018] NSWCCA 257 at [46].
Cases where the evidence before the appellate court does not allow the court to resolve a disputed factual issue: Shi v R [2017] NSWCCA 126 at [10] and Portelli v R [2018] NSWCCA 28 at [47].
Cases where there has been such a significant irregularity that it might be said that the offender has not had a proper sentencing hearing at all: Murray v R [2015] NSWCCA 75 (where the Judge wrongly failed to uphold a submission that they were disqualified from hearing the matter), Ellis v R [2015] NSWCCA 262 at [4], [6] (where the applicant was denied procedural fairness because of the Judge’s interventions in his evidence on sentence), Purdie v R [2019] NSWCCA 22 at [59] (denial of procedural fairness) and Jones (a pseudonym) v R [2021] NSWCCA 225; (2021) 291 A Crim R 68 at [65]-[66] (denial of procedural fairness).
Cases where an offence was included erroneously on a Form 1: Paul Campbell v R [2018] NSWCCA 87 at [75] and R v Zycki [2024] NSWCCA 9.
Both parties referred to the decision in Raymond John Munro v R [2006] NSWCCA 350 (“Munro v R”), where this Court remitted a matter for sentence when a significant amount of evidence had not been led despite the primary Judge making enquiries of counsel at the sentencing hearing. Counsel signed an affidavit on appeal in which he said he would have led the evidence had he known of it and, in retrospect, that he should have led direct evidence of several relevant matters. The Court levelled “severe criticism” at counsel who appeared at first instance and concluded at [25] “the omissions of the type made by counsel here” resulted in “a miscarriage of justice”. The need for evidence to be adduced and tested led the Court to accept at [26] that the Court of Criminal Appeal was “not the most appropriate body to determine disputed factual matters in the sentencing process”. Accordingly, the Court remitted the matter to the sentencing Judge.
Brown v R (2018) 99 NSWLR 151; [2018] NSWCCA 257 was a similar case in which the conduct of the lawyers appearing on sentence was held to fall short of the standard expected of a competent legal practitioner. There were issues surrounding the advice given to the applicant as to his right to give evidence and the applicant was not called to give evidence when he expressed a desire to testify. The applicant gave evidence on appeal, as did his former barrister and solicitor, and the Court was able to make detailed findings which are set out by Payne JA from paragraph [40]. The Court (Payne JA and N Adams J, Johnson J dissenting) upheld the appeal and exercised the power of remittal in s 12(2).
By contrast, in Rossall v R [2021] NSWCCA 200, the Court found miscarriage based on counsel’s conduct but was able to re-sentence on the evidence before the Court. Accordingly, the Court did not remit the case for sentence, but proceeded to impose sentence in the usual way.
In Shi v R [2017] NSWCCA 126, the Court (Hoeben CJ at CL, Harrison J (as his Honour then was) and Bellew J) said:
“9. There are two possible courses that might flow from the error. First, if the Court accepted that there has been an error in the sentencing process, it could re-sentence the applicant if it were of the opinion that some other sentence, whether more or less severe, was warranted in law and should have been passed: s 6(3) Criminal Appeal Act 1912. Alternatively, the whole of the proceedings could be remitted to the District Court: s 12(2) of the Criminal Appeal Act.
10. As the High Court said in Betts v The Queen (2016) 90 ALJR 758; [2016] HCA 25 at [19], there is a tension between the terms of s 6(3) and the power to remit the matter to the court below. However, where, as in the present case, the sentencing hearing has been tainted by procedural irregularity, the preferable course is to remit the matter to the District Court. That is especially so here as well having regard to the fact that this Court does not have, and by the same token the applicant has not had, the benefit of all of the evidentiary material and submissions from counsel upon which the applicant might in due course wish to rely.”
“17. The question of whether the appellate court is empowered to remit the determination of a sentence appeal under the supplemental powers conferred by s 12(1) of the CAA and its analogues is controversial. A general power of remittal was introduced into the CAA in 1987. It is contained in s 12(2), which provides:
‘The Court of Criminal Appeal may remit a matter or issue to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made.’
18. To the extent that the extrinsic material affords any assistance in identifying the object of the inclusion of the general power of remittal, it does not provide support for the conclusion that s 12(2) qualifies the conditional re-sentencing obligation imposed by s 6(3).
19. As the Court of Criminal Appeal recognised in *O’*Neil-Shaw v R [2010] NSWCCA 42 there is a tension between the terms of s 6(3) and recourse to the power of remittal. The utility of a power of remitter in a case such as O’Neil-Shaw, where the sentence hearing has been tainted by procedural irregularity, is evident. The question of whether it is available is not reached in this case. It might be a matter for consideration by the legislature.”
“This power will be of great assistance in matters where, for example, there are deficiencies in the evidence or where there are further matters to be considered which can be better attended to before a first-instance judge. These bills are a rationalization of existing avenues of appeal from interlocutory applications in criminal proceedings on indictment in the District Court and the Supreme Court, while ensuring that issues can be dealt with which justice requires should be resolved prior to the completion of a trial.”
“29 Finally, the Director submitted that the appeal should be dismissed because, even if the matters relied on by the applicant were taken into account and given their proper weight, no less severe a sentence was warranted in law. This submission was based on the terms of s 6(3) of the Criminal Appeal Act, which reads:
6 Determination of appeals in ordinary cases
...
(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.
30 Read literally, this provision allows of only two courses, namely to quash the sentence and impose another sentence, or to dismiss the appeal. However, such a reading would deny an applicant the right to an effective appeal against sentence where the sentencing process has miscarried, but this Court is unable to determine what is the appropriate sentence.
31 In its terms, s 6(3) (dealing with sentencing appeals) is quite differently, and more simply, worded in contrast to s 6(1) (dealing with conviction appeals) with its proviso requiring dismissal of an appeal where there has been no substantial miscarriage of justice. Nevertheless, they serve similar purposes. In dealing with s 6(1), McHugh J noted in TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at [76]:
‘In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice. ... It cannot be right to insist that the appeal can succeed only if the court thinks that counsel’s conduct might have affected the verdict. To require the accused to persuade the court that the conduct might have affected the verdict comes close to substituting trial by appellate court for trial by jury. No matter how strong the prosecution case appears to be, an accused person is entitled to the trial that the law requires. In principle, therefore, where the trial has been unfair, the accused should not have to show that counsel’s conduct might have affected the result.’
32 In relation to a sentence appeal, there is no question of substituting a trial by this Court for trial by jury. Nor is there any objection in principle to this Court exercising sentencing powers in place of the sentencing judge. Rather, the situation in which this Court is placed resembles that of any appellate court, civil or criminal, where error has been established but the Court is not in a position to determine the matter itself. The only appropriate course is to direct a retrial of the issue. Such a course is open pursuant to s 12(2) of the Criminal Appeal Act, which provides a supplemental power not to be understood as inconsistent with the scope of s 6(3).”
See also, Johnson J at [56]-[58].
While these issues were raised in argument on the hearing of the appeal, the parties did not make extensive submissions on the subject or, apart from Munro v R, refer to the cases discussed above. The applicant’s primary position appeared to be that the Court should remit the matter without considering whether a different (less severe) sentence was warranted.
One issue that is not resolved by the authorities, and which was not addressed in argument in any detail, is that the power to quash the sentence derives from s 6(3) which requires a finding that a different sentence is warranted. Even so, I am prepared to proceed on the basis that remittal may be appropriate where a defect or irregularity in the sentencing hearing is such that the applicant was denied procedural fairness and/or, in effect, endured a sentencing hearing which was so flawed as to amount to no hearing at all. That category of case will be rare, but I accept the occasion to proceed in that way may arise where a lawyer has a conflict of interest in appearing for two offenders in the same case.
As noted, the applicant tendered evidence “on the usual basis”: Betts v The Queen at [4], [46], [52]. However, there does not appear to be any significant dispute about that evidence and there was no suggestion that additional evidence is to be called if the matter is remitted. If a miscarriage of justice was occasioned because the applicant was not separately represented, it seems to be a case where the Court would be in a position to sentence afresh on the material before the Court. In accordance with the process described in Kentwell v The Queen, that sentence would only be imposed if it was less than the penalty imposed by the sentencing Judge.
However, this matter does not reach the stage of re-sentencing or remittal because the applicant has not established that there was a miscarriage of justice.
“22 A ground of appeal such as this cannot be pursued in the absence of evidence. In so saying, I am mindful of the applicant’s disadvantage being unrepresented. Nevertheless, we are without evidence from him or from his solicitor. We do not know how the case was prepared. We do not know what negotiation, if any, took place before the proceedings. That, in any event, is not a matter about which we would have received evidence. Nor do we know why the applicant was not called. That may have been a decision by the solicitor for sound tactical reasons. Certainly, it was a matter residing within the ‘wide discretion’ of an advocate to which Gleeson CJ referred in Nudd.”
Ms England SC, appearing for the respondent, referred to the “evidentiary vacuum” that exists in this case. She submitted that the absence of evidence meant that any number of possibilities could not be ruled out, including that the applicant had signed written instructions authorising everything that senior counsel had done.
Mr Woods emphasised that his client was “entitled to maintain his privilege” and that the possibility raised by the respondent was:
“not a reasonable explanation for [what] occurred based on the record, which is that there was a possibility and, in my submission, an actual conflict, [when] counsel continued to act for both offenders.”
“because of the absence of evidence your Honours are entitled to proceed on the assumption that there was transparency by the lawyers about the submission that would be put and about continuing to act for the other offender and that my client was informed about those issues.”
“… and also because of what I have relied on in submissions in chief, which is that the error in continuing to advocate for both offenders had the potential, and in the circumstances of this case had the real and obvious potential to influence what findings the judge ultimately made. And in those circumstances consent is no answer. The duties of counsel are duties which have no analogies. And the role of counsel in - the importance of counsel’s role should not be understated.”
Insofar as those responses possessed any meaningful content, the assumption behind the submission is that there was “an error [by first instance counsel and his solicitor] in continuing to advocate for both offenders”. I am unable to accept the assumption. It is a matter upon which the Court must reach a factual conclusion. The evidence does not allow such a finding.
There is no rule of practice or ethics that one counsel cannot act for two co-offenders in sentencing proceedings. That is so whether (or not) a parity issue will arise in the case. A conflict of interest will not be established merely because appellate counsel can conjure submissions that “could” have been made or where (as here) trial counsel makes legitimate submissions concerning the role of the offenders and their objective criminality. The fact that further or different submissions “could” have been made establishes little, if anything. Experience tells us that, in the case of some lawyers and judges, this is invariably true.
To be clear, I do not accept the proposition put by Mr Woods in reply that once it is established that a submission “could” have been made that had “some possible merit”, the inevitable conclusion is that counsel should not have appeared for both offenders.
There will no doubt be cases where a conflict of interest will be established on the record of the trial court. Examples of such a case might include where one offender asserts that they acted on the insistence of (or under duress by) the co-offender, or where the offenders blame each other for particular acts, or dispute each other’s role in the offence. There is no evidence of that kind in the present case. In many cases where the conduct of counsel is impugned, an applicant may need to adduce evidence to establish, for example, that instructions were not followed or that the possibility of a conflict of interest was not addressed by counsel or discussed with, and explained to, the offender(s). Each case will turn on its own facts and circumstances and nothing in this paragraph is intended to be prescriptive or exhaustive. None of this analysis is calculated to gainsay the right of an offender to maintain their legal privilege, but the failure to waive privilege may leave the court with little or no evidence of the matters which are said to have caused the proceedings to miscarry.
Insofar as the applicant sought to rely on the ethical rules of the Bar, there is no evidence that supports a conclusion that senior counsel in this case did not, in accordance with rule 119, “determine as soon as possible whether the interests of the clients may, as a real possibility, conflict”. In any event, as Mr Woods ultimately accepted in his oral submission in reply, this Court does not sit as a disciplinary tribunal to determine whether there was a breach of ethical rules.
In the way that this appeal was conducted, the question for determination is whether the sentencing proceedings amounted to a miscarriage of justice: cf, for example, TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662, Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 and Murray v R [2015] NSWCCA 75. Two intrinsically connected anterior questions are whether Mr Farrugia should have had separate representation and whether counsel appearing for both offenders had a conflict of interest.
The evidence does not support such a conclusion. There is no evidence as to the applicant’s instructions to his solicitor and barrister, and no evidence as to the discussions between Mr Farrugia, his solicitor and senior counsel as to what the applicant said about his role, and what submissions were to be made in relation to his role and objective criminality relative to Mr Kanmaz or otherwise. There is no evidence of the advice provided by counsel and nothing to suggest that the applicant was not provided with advice as to his representation.
The submissions made on the appeal referring to what Mr Djemal said and did not say in the District Court were selective and unpersuasive. The appeal submissions did not address the detailed written and oral submissions concerning the role of both offenders and those which outlined what each offender actually did. [3] Mr Djemal identified several factual matters that tended to reduce Mr Farrugia’s objective criminality including that he did not have a planning or decision making role in relation to the activity of the main group, did not traffic drugs as part of that group, and that he was part of a smaller operation sourcing and purchasing drugs for himself which he and one other offender trafficked on their own account.
The submissions made in the District Court concerning a relative evaluation of the objective criminality of the two offenders were correct. That is no doubt why the Prosecutor ultimately agreed with them and why Judge Berman, who explored in some detail the reasons for the position taken by both counsel, accepted them.
Mr Woods did not address the length of the sentence itself or make any detailed submissions about the substantive issue of parity. He addressed the latter issue in the context of the suggestion that counsel had a conflict of interest. On the material before the Court, the sentence was within an appropriate discretionary range and the sentences imposed on the two offenders are not such as to engender a justifiable sense of grievance in the applicant. There were several features of the evidence that distinguished the case of each co-offender. For example, Mr Farrugia had a dysfunctional and deprived childhood which was emphasised by senior counsel and accepted to be relevant by Judge Berman. There was also an allegation of “non-exculpatory duress” pressed by Mr Djemal in Mr Farrugia’s case but not accepted by the sentencing Judge. As noted earlier, there was a totality issue in Mr Kanmaz’s case which did not arise in the applicant’s case. All of these matters were taken into account by the sentencing Judge and, considering relevant differences between the cases, the sentence imposed on each offender bore a proper and due proportion to the sentence imposed on the other.
The applicant’s single ground of appeal must be rejected.
I would make the following orders:
Leave to appeal against sentence granted.
Dismiss the appeal.
**********
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 301-2.
This is a reference to the finding reproduced at [24] of these reasons.
Cf The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54.
Farrugia
R
(2005) 79 ALJR 662
(2016) 258 CLR 420
(2018) 99 NSWLR 151
(2014) 252 CLR 601
(2006) 80 ALJR 614
(1997) 189 CLR 295
(1999) 199 CLR 270
(2002) 212 CLR 124
(2016) 90 ALJR 758