Grabovac v R

Court of Criminal Appeal (NSW)|2018-03-26|Before: Bathurst CJ, Schmidt J, Hamill J

The parity appeal

Mr Grabovac now seeks leave to appeal his sentence under s 5(1) of the Criminal Appeal Act 1912 (NSW), on only one ground. That is, that there is a disparity between the sentences imposed on him and those imposed on his co-offenders Mr Elsaj and Blake Grant, which has left him with a justifiable sense of grievance.
In oral submissions it was explained that the focus of the argument advanced for Mr Grabovac was count 1 of Mr Elsaj's offences, that being the comparable transaction, even though his offence involved only a commercial quantity of ecstasy, as did Mr Grant's ecstasy offence, but submissions were also directed at the sentence imposed on Mr Grant for his comparable offence.
Mr Grabovac's three co-offenders, Mr Elsaj, Mr Grant and Dusko Samardzija, also each received 25% discounts on sentence for their guilty pleas. It was common ground between the parties that the sentence imposed on Mr Samardzija, is not relevant to this appeal, given the limited nature of his offending.
The disparity complaint is advanced in circumstances where, in total Mr Grabovac and Mr Elsaj supplied 816.47 and 489.49 grams of ecstasy respectively. The indicative sentence for Mr Elsaj's ecstasy offence was 9 years and 9 months, with a non-parole period of 6 years and 6 months. The aggregate sentence imposed on him for his five serious offences was 16 years and 6 months, with a non-parole period of 11 years and 6 months, taking into account six other offences under a Form 1.
While Mr Grant's role was junior to that of both Mr Grabovac and Mr Elsaj, his ecstasy offence involved the supply of 547.47 grams. The sentence imposed him for that offence was 6 years and 9 months imprisonment with a non-parole period of 4 years, taking into account three other offences under a Form 1. A totally concurrent sentence of 1 month was imposed for his second offence.
There is no issue between the parties as to the onus which falls on Mr Grabovac to make out the ground of appeal he seeks to advance. It is that discussed in Green v The Queen; Quinn v The Queen (2011) 244 CLR 463; [2011] HCA 49 at [32] (footnotes omitted): "A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself. Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co-offender and give it appropriate weight. In such a case, an appeal to this Court on the question whether a disparity identified in a court of criminal appeal was unjustifiable and called for intervention by that court would also involve review of a qualitative and discretionary judgment."

Leave to appeal and the appeal

For the reasons which follow, I am satisfied not only that leave to appeal must be granted, but that the appeal must be upheld and Mr Grabovac resentenced by this Court.

Mr Grabovac

Mr Grabovac's offence attracted a maximum penalty of life imprisonment and a standard non-parole period of 15 years under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). Under s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), in arriving at that sentence his Honour also took into account three other offences Mr Grabovac had admitted committing, which were specified on a Form 1. They were: 1. supplying an unknown quantity of cocaine between August and October 2014: s 25(1) Drug Misuse and Trafficking Act; attracting a maximum penalty of imprisonment for a term of 15 years and/or a fine of 2,000 penalty units. 2. supplying an indictable quantity, 86.18 grams, of MDA tablets found in his possession on arrest in November 2014: s 25(1) Drug Misuse and Trafficking Act, attracting a maximum penalty of imprisonment for a term of 15 years and/or a fine of 2,000 penalty units. 3. possession of 0.89 grams of methandienone, found on his arrest in November 2017: s 10(1) Drug Misuse and Trafficking Act, attracting a maximum penalty of imprisonment for a term of 2 years and/or a fine of 20 penalty units.
Mr Grabovac is eligible for release on parole on 23 November 2023.

Mr Elsaj

Mr Elsaj's five offences were: 1. Count 1 - supplying a commercial quantity of ecstasy, 489.49 grams, between August and October 2014: s 25(2) Drug Misuse and Trafficking Act; attracting a maximum penalty of 20 years and a standard non-parole period of 10 years; 2. Count 2 - supplying a commercial quantity of cocaine, 999.5 grams, on 20 November 2014: s 25(2) Drug Misuse and Trafficking Act; also attracting a maximum penalty of 20 years and a standard non-parole period of 10 years; 3. Count 3 - supplying an indictable quantity of cocaine, 45.8 grams, on 2 April 2015: s 25(1) Drug Misuse and Trafficking Act; attracting a maximum penalty of imprisonment for a term of 15 years; 4. Count 4 - knowingly possessing proceeds of crime, $113,145, on 20 November 2014: s 193B(2) Crimes Act 1900 (NSW); also attracting a maximum penalty of imprisonment for 15 years; 5. Count 5 - knowingly possessing proceeds of crime, $52,000, on 2 April 2015: s 193B(2) Crimes Act; also attracting a maximum penalty of imprisonment for 15 years.
The Form 1 offences taken into account on count 2 were offences committed on 20 November 2014: 1. Possessing 250 mg testosterone: s 10(1) Drug Misuse and Trafficking Act; attracting a maximum penalty of imprisonment for a term of 2 years and/or a fine of 20 penalty units; 2. Possessing 1.97 grams of MDA: s 10(1) Drug Misuse and Trafficking Act; attracting a maximum penalty of imprisonment for a term of 2 years and/or a fine of 20 penalty units; 3. Possessing 157.5 grams of cannabis leaf: s 10(1) Drug Misuse and Trafficking Act; attracting a maximum penalty of imprisonment for a term of 2 years and/or a fine of 20 penalty units.
The Form 1 offences taken into account on count 3 were offences committed on 2 April 2015: 1. Supplying 448.9 grams of cannabis leaf: s 25(1) Drug Misuse and Trafficking Act; attracting a maximum penalty of imprisonment for a term of 15 years. 2. Possessing nandrolone: s 10(1) Drug Misuse and Trafficking Act; attracting a maximum penalty of imprisonment for a term of 2 years and/or a fine of 20 penalty units. 3. Possessing testosterone: s 10(1) Drug Misuse and Trafficking Act; attracting a maximum penalty of imprisonment for a term of 2 years and/or a fine of 20 penalty units.

Mr Grant

Mr Grant's offences were: 1. Supplying a large commercial quantity of ecstasy, 547.47 grams, between August and September 2014: s 25(2) Drug Misuse and Trafficking Act; attracting a maximum penalty of life imprisonment and a standard non-parole period of 15 years; 2. Supplying .47 grams of 25B-NBOMe on 20 November 2014: s 25(1) Drug Misuse and Trafficking Act; attracting a maximum penalty of imprisonment for a term of 15 years.
The Form 1 offences taken into account on count 1 were: 1. Supplying 25.55 grams of ecstasy on 20 November 2014: s 25(1) Drug Misuse and Trafficking Act; attracting a maximum penalty of imprisonment for a term of 15 years and/or a fine of 2,000 penalty units; 2. Supplying 2.87 grams of MDMA on 20 November 2014: s 25(1) Drug Misuse and Trafficking Act attracting a maximum penalty of imprisonment for a term of 15 years and/or a fine of 2,000 penalty units; 3. Supplying an unknown quantity of cocaine between August and October 2014: s 25(1) Drug Misuse and Trafficking Act; attracting a maximum penalty of imprisonment for a term of 15 years and/or a fine of 2,000 penalty units.

The nature of the respective offending

The amount and type of drugs involved in the four offenders' respective offending differed, with the result that they were each charged with different offences, but they had each been involved in Mr Grabovac's supply of ecstasy. His offence comprised 18 transactions which had occurred between August and October 2014.
The facts later agreed for sentence in respect of each offender thus differed, reflecting their different role in this drug operation, with Mr Elsaj being the most senior and Mr Grant the most junior of those who arise for consideration on this appeal.
None of the offenders gave evidence on sentence, but the evidence which they each led established that their subjective circumstances and their criminal records, were also all different.

The sentencing judgment

In his sentencing judgment Sides QC DCJ explained the strike force investigation and how the offenders each came to be charged, as well as their respective roles in the transactions which comprised their respective offences.
Count 1 in the case of each offender involved the supply of ecstasy in the period August to October 2014.

Mr Grabovac

Sides QC DCJ described the transactions involved in Mr Grabovac's offending: "1. During communication between the Offenders Grant and Grabovac on 10 August, the Offender Grant, indicated that he had run out "last night" and asked for another 150 ecstasy tablets at $11 per tablet. When the Offender Grabovac agreed, the Offender Grant said that he had the "dosh" and they agreed to meet on 12 August. However, they actually met at about 8.20pm on 11 August when the Offender Grabovac supplied the Offender Grant with 150 ecstasy tablets that weighed approximately 35.55 grams and received $1,659 in return. The Court notes that, on 13 August, the Offenders Grant and Grabovac spoke and the latter asked if the former could supply him with 300 ecstasy tablets for $10 each, but the Offender Grabovac indicated that the $11 per tablet on 11 August was a favour. The facts in the case of the Offender Grant do not indicate that they reached an agreement. The Offender Grant also said that he needed a 250 bag on the weekend. As there was no agreement, the Court did not treat it as part of the supply cocaine on the form 1 schedule in the case of the Offender Grabovac. However, the Court notes that, during his ERISP interview, the Offender Grant admitted buying $250 worth for him and the boys for his birthday which was two days later. In the circumstances, in his case, the Court treated this transaction as part of the supply of cocaine on his form 1 schedule. 2. On 13 August, the Offender Grabovac agreed to supply an UCO 300 ecstasy capsules the following day. At about 10.37am on 14 August the Offender Grabovac rang the Offender Samardzija and arranged to pick him up later that morning. They met in a unit where the Offender Samardzija lived with his mother. Up until these events, the Offender Samardzija had not come under notice as an associate of the Offender Grabovac or as being involved in any illegal activity. At 12.14 the Offender Grabovac sent the under cover officer a text message, asking if he had the money. When the UCO applied in the affirmative, the Offender Grabovac sent a text message indicating the ecstasy would cost $20 per capsule. Later that day when he met the UCO, the Offender Grabovac got into the UCO's car and asked about the money, which the UCO showed him. At this time, the Offender Samardzija was inside a nearby fast food restaurant. Whilst there, he received a phone call from the Offender Grabovac. Shortly afterwards, the Offender Samardzija walked up to the car containing the UCO and the Offender Grabovac, leaned into the window and introduced himself to the UCO as Dusko. He then reached into his jacket, removed a plastic bag containing the ecstasy capsules, handed them to the Offender Grabovac and stepped back from their car. The Offender Grabovac then gave the capsules containing the ecstasy to the UCO receiving $6,000 in return. The content of the tablets weighed 19.5 grams of which 58% was pure ecstasy. 3. On 16 August the Offenders Grant and Grabovac spoke over the phone and the Offender Grant said he wanted 150 tablets and two bags of cocaine. Later the same day, the Offender Grabovac spoke to the Offender Elsaj, telling him he needed 150 tablets. After a number of communications between these three Offenders, with the Offender Grabovac, as the go between, the Offender Elsaj supplied the Offender Grabovac with 150 ecstasy tablets. About seven minutes later, the Offender Grabovac met the Offender Grant at McDonald's in Casula and supplied him with 150 ecstasy tablets that weighed approximately 35.55 grams and some cocaine. The evidence does not disclose where the Offender Grabovac had obtained the cocaine. 4. On 20 August, the Offender Grabovac agreed to supply a UCO with 300 ecstasy tablets. Later that same day, he contacted the Offender Elsaj who agreed to supply over 300 tablets to him. They met at 2.10pm on 22 August, when the Offender Elsaj supplied the Offender Grabovac with the 300 ecstasy tablets. About 20 minutes later, the Offender Grabovac supplied the 300 tablets to the UCO receiving $6,000 for them. The 300 tablets weighed 71.2 grams of which 4.5% was pure ecstasy. The tablets also contained 6% amphetamine. 5. On 23 August, the Offender Grant asked the Offender Grabovac to get him 260 ecstasy tablets. The Offender Grabovac then contacted the Offender Elsaj who agreed to supply him with the 260 ecstasy tablets. At about 4.20pm, the Offenders Grabovac and Elsaj met and the latter supplied the former with 260 ecstasy tablets. Shortly afterwards, the Offender Grabovac supplied those tablets to the Offender Grant and they weighed approximately 61.62 grams. 6. Later the same day, 23 August, the Offender Grant ordered another 100 tablets from the Offender Grabovac, asking if he could get them for $11 each. The Offender Grabovac agreed. The Offender Grabovac and the Offender Elsaj spoke about the agreement shortly afterwards. Later that night they met and the Offender Elsaj supplied the Offender Grabovac with 100 ecstasy tablets, which the Offender Grabovac then supplied to the Offender Grant. These tablets weighed approximately 23.7 grams. 7. On 27 August, the Offender Grabovac agreed to supply the Offender Grant 100 ecstasy tablets at $11 per tablet. In the case of the Offender Grabovac, the facts indicate that the Offender Grant said that he would send someone to collect them and that they weighed approximately 23.7 grams. As the prosecution cannot prove the supply to the associate of the Offender Grant actually took place in his case it has not been included in count 1, but is relied on as context. In the case of the Offender Grabovac, as he agreed to supply, this transaction is included in count 1. 8. On 29 August, the Offender Grabovac supplied a UCO with 300 capsules, the contents of which weighed 15.5 grams of which 60.5% was pure ecstasy. The UCO paid the Offender Grabovac $6,000 for those 300 ecstasy capsules. 9. The Offenders Grabovac and Grant spoke again on 30 August, the Offender Grant indicating he wanted 200 ecstasy tablets. Shortly after midday that day, the Offender Grabovac contacted the Offender Elsaj and made arrangements to get the 200 ecstasy tablets from the Offender Elsaj who supplied the ecstasy tablets to the Offender Grabovac less than 20 minutes later. Within the hour the Offender Grabovac had supplied the 200 ecstasy tablets to the Offender Grant. Those ecstasy tablets weighed approximately 27.4 grams. 10. During a conversation on 4 September, the Offender Grabovac agreed to supply the Offender Grant with 150 ecstasy tablets early on the morning of 6 September. On 5 September the Offender Grant increased the order to 200 tablets. Later that day, the Offender Grabovac met the Offender Elsaj and got the 200 ecstasy tablets from him. He supplied them to the Offender Grant early on 6 September. Those 200 tablets weighed approximately 47.4 grams. Later, the Offender Grant sent the Offender Grabovac a text message indicating that there were six tablets missing and, on the previous occasion, there was one missing and eight broken tablets. 11. On 13 September, after a series of phone calls involving the Offenders Grant, Grabovac and Elsaj, the Offender Elsaj supplied the Offender Grabovac with 250 ecstasy tablets. Sometime shortly afterwards, the Offender Grabovac supplied those 250 ecstasy tablets to the Offender Grant. They weighed approximately 59.25 grams. 12. After a series of communications over a number of days between the Offender Grabovac and a UCO, the Offender Grabovac agreed to supply the UCO with 300 capsules of ecstasy. They met at 1.30pm on 17 September when, pursuant to the agreement, the Offender Grabovac supplied the 300 ecstasy capsules to the UCO who paid $6,000 for them. The content of those 300 capsules weighed 20 grams, but contained no ecstasy. Two days later, the UCO phoned the Offender Grabovac and complained about the quality of what he had been supplied on the 17th. On 23 September the Offender Grabovac sent the UCO a text message indicating he would return to his old supplier. 13. On 17 September, the Offenders Grabovac and Grant came to an agreement whereby the latter would purchase 500 ecstasy tablets at $10 each from the Offender Grabovac. Later that day, the Offender Elsaj supplied the Offender Grabovac with the 500 ecstasy tablets. About 30 minutes later, he supplied those 500 tablets to the Offender Grant. They weighed approximately 118.5 grams. According to the negotiations, the purchase price would have been $5,000. 14. On 19 September, the Offender Grabovac agreed to supply the Offender Grant two bags of cocaine and some ecstasy and, later, supplied them to a male who collected the drugs on the behalf of the Offender Grant. This contributes the supply of cocaine on their form 1 schedules, but because the weight of ecstasy could not be calculated it has not been included in the total referred to in count 1, but has been treated as part of the context in the case of each of these two Offenders. 15. On 29 September, the Offender Grabovac agreed to supply the Offender Grant 500 ecstasy tablets for $5,000. They met at about 5.25pm and the supply occurred. The ecstasy tablets weighed approximately 118.5 grams. 16. On 2 October, the Offender Grabovac agreed to supply the Offender Grant four bags of cocaine and to meet at 10pm for that purpose. The prosecution is not in a position to indicate the supply actually occurred. 17. On 14 October, the Offender Grabovac and a UCO had a conversation during which the Offender Grabovac agreed to supply the UCO with 100 ecstasy tablets the next day. Early on 15 October, the Offender Grabovac ordered the 100 tablets from the Offender Elsaj. Shortly afterwards, they met and the Offender Elsaj supplied the 100 ecstasy tablets to the Offender Grabovac. About an hour later, the Offender Grabovac sold the 100 ecstasy tablets to the UCO for $2,000. The ecstasy tablets weighed 22.89 grams. 18. On 20 October, the Offender Grabovac agreed that, the following day, he would supply the Offender Grant with 400 ecstasy tablets for $4,000. In the case of the Offender Grabovac, the weight of the 400 tablets is estimated to be 94.8 grams and encompassed in count 1. However, in the case of the Offender Grant this agreement has been treated as context and not included in the amount of drug mentioned or encompassed in count 1."
The Form 1 offences taken into account on Mr Grabovac's sentence were described as having involved Mr Grabovac agreeing to supply ecstasy to an undercover operative on 3 November 2014 and the following day, on search he being found in possession of 86.18 grams of MDA, as well as .89 of a gram of methandienone. On 19 November he was found to be breach of his bail when he was not at home when police attended. He was arrested when he later presented himself to police.
His Honour concluded that Mr Grabovac's offending was premeditated, he then realising that he was immersing himself in organised crime; that Mr Grabovac had occupied a rung in the drug hierarchy at about the middle; but that he was considerably below Mr Elsaj, who had been involved in nine of the transactions identified in the investigation.
Unlike the other three offenders, Mr Grabovac had been involved in all 16 transactions involving ecstasy and in one of them, had supplied an unknown quantity to Mr Grant. The amount of Mr Grabovac's known supplies ranged from 15.5 grams up to 118.5 grams, involving 900 capsules in three supplies and 3,210 tablets in the other 13 transactions, which were found to involve wholesale supply. There was actual supply to an undercover operative on five of those occasions and supplies to Mr Grant on the others. On nine occasions Mr Grabovac's purchases were made from Mr Elsaj and the rest, from others.
His Honour found that the value of what Mr Grabovac had supplied exceeded $32,000 and amounted to 60% more than the large commercial quantity. He did not know who consumed the drugs on the occasions they were not seized by police. Given the Form 1 offences taken into account, his offence was found not to have involved an isolated aberration, but it fell somewhere below the middle of the range of seriousness connoted by the 15 year standard non-parole period for his offence.
His Honour thus concluded that while Mr Grabovac had been involved in wholesale supply, the price he paid to Mr Elsaj and what he received for the drugs he supplied others, was not disclosed by the evidence. Mr Grabovac was also found to have been involved in a large scale venture, able to source drugs from more than one source.
His Honour also concluded that the criminality involved in Mr Grabovac's and Mr Elsaj's ecstasy supply offences were roughly equivalent, given their respective roles and where they fell in the drug trafficking hierarchy, but ignoring the respective Form 1 matters, which he had to take into account. Mr Grant's criminality for that offending was found to be well below theirs.

Mr Grabovac's subjective circumstances

Sides QC DCJ found that Mr Grabovac was 25 when arrested and that he had had a difficult childhood, which had impacted on his moral development, due to his father's gambling addiction and the problems that had caused for his family and its finances, but he had no prior convictions. Mr Grabovac's arrest had led to the breakdown of his relationship with his partner, who was due to give birth.
Mr Grabovac had been diagnosed with attention deficit hyperactivity disorder at school, but had a sound work history as a gyprocker and shopfitter. Mr Grabovac also, however, had a history of alcohol abuse as a teenager and later drug abuse, which had escalated to daily use at a cost of thousands of dollars each week. In custody he had been drug free and when granted bail had sought treatment from a psychologist, as well as relapse counselling.
Mr Grabovac had also been diagnosed to have suffered a problem with his brain development in adolescence, which had meant that he was not able to properly use his prefrontal cortex to analyse problems. This was compounded by his drug and alcohol abuse, as well as by his ADHA.
The history Mr Grabovac gave to the psychologist, Mr Costello, was that he had become involved in supply after he became indebted to a supplier, having initially resisted that opportunity.
Sides QC DCJ concluded that Mr Grabovac's account to the psychologist had to be approached with some caution, given his ability while drug free in custody, to decide to turn his life around and then to refrain from drug use, a decision to which he adhered for some 18 months. When this was considered together with his rejection of involvement in drug supply, until he became indebted to his supplier, his drug abuse was not accepted as excusing his behaviour.
His Honour noted Mr Costello's opinions that Mr Grabovac's brain had developed only to the late adolescent stage; that he was not able to use his prefrontal cortex to properly analyse problems; and that this was compounded by lack of communication with his family, drug and alcohol abuse, with cocaine in particular making him feel comfortable in social situations he had not been comfortable in before.
Given his ability, however, to remain substance free in custody and to adhere to his resolution for 18 months while out of custody, his Honour concluded that the only adverse influence over his decision-making came from his drug abuse and not the other facts nominated by Mr Costello. In the result, Mr Grabovac's problem solving and analysing capacity were not found to have been materially compromised by delayed development of his cognitive functioning.

Mr Elsaj

His Honour noted that Mr Elsaj was arrested on 20 November while driving while his license was suspended. He was then aged 40. In total $113,145 was then seized from him, that being cash found in his possession on arrest and what was later found on search of his home and car. After he was released on bail he offended further. Police later found cocaine in a vacuum sealed bag at his home and more buried in the garden, as well as other drugs. Another $52,000 cash was found in his garage.
Mr Elsaj's ecstasy offence, count 1, involved nine wholesale transactions committed over the course of some two months, with the weights involved ranging from 23 grams to just over 118 grams. He supplied some 1960 ecstasy tablets to Mr Grabovac, weighing some 489.49 grams, over 3.9 times the commercial quantity and almost 89% of the large commercial quantity. How much Mr Elsaj was paid for each supply was not established on the evidence, but he had been quickly able to supply these drugs when approached and on arrest was found in possession of more cash than these sales could have generated. Most of the drugs he supplied were not seized by police and so his Honour was satisfied that the result was that Mr Elsaj had done substantial harm to the community.
In the result, Mr Elsaj was found to be above both Mr Grabovac and Mr Grant in the drug hierarchy. Given the drugs and money found in his possession, he was found to be well up in the drug trafficking hierarchy, albeit not in the very upper echelons.
Mr Elsaj's ecstasy offence was found to have been somewhat above or a little above the middle of the range of seriousness as connoted by the standard non-parole period of ten years prescribed for offences within this provision.
An indicative sentence for Mr Elsaj's ecstasy offence was identified to have been 9 years and 9 months, with a non-parole period of 6 years and 6 months years, taking into account the Form 1 matters.
Count 2, Mr Elsaj's commercial quantity cocaine offence, involved a quantity only 1.5 grams less than the large commercial quantity and its purity was found to be quite high. There was no evidence as to its value, and there was no harm done by this offence, because the cocaine had been seized by police, but the potential for harm was found to have been substantial; it involved a wholesale amount; and Mr Elsaj did not know who would have consumed it, if it had not been seized.
His Honour concluded that there was no evidence that Mr Elsaj had supplied the cocaine involved in Mr Grabovac's and Mr Grant's cocaine offences. He concluded that Mr Elsaj's cocaine offences marked a significant change and expansion of his drug trafficking business and hence, his criminal behaviour. That offence was found to fall somewhat, or a little above the middle of the range of seriousness of such offending.
Mr Elsaj's first cocaine offence was found to have been objectively somewhat, or a little, above the mid-range of seriousness connoted by the standard non-parole period of 10 years.
An indicative sentence for Mr Elsaj's first cocaine offence was identified to have been 10 years, with a non-parole period of 6 years and 9 months, taking into account the Form 1 matters.
Count 3, involved the supply of an indictable quantity of cocaine while Mr Elsaj was on bail, 45.8 grams, which his Honour found was not related to the $52,000 the subject of count 5. This offence was found to have involved nine times the indictable quantity of cocaine, over fifteen times the trafficable quantity and about 9% of the commercial quantity, with high purity at 75%. This also involved a wholesale transaction and while it was found that no harm had been done because the drug was seized, the potential for harm was found to be significant. This offence was found to fall into the middle of the low range of such offending.
An indicative sentence for this offence was identified to have been 3 years, and 6 months.
Count 4, the first proceeds of crime offence, was found to fall at about the middle of the range of such offending. His Honour noted that Mr Elsaj's offending did not cease after his arrest, because some two months after he was released, he was found in possession of more cocaine and proceeds of crime.
His Honour also noted that the evidence did not establish how Mr Elsaj was able to return to such serious offending, so soon after his arrest, but found that the evidence demonstrated his links to individuals and/or corporations at the upper echelons of the drug trafficking hierarchy and/or other criminal behaviour.
An indicative sentence for this offence was identified to have been 5 years, and 6 months.
The evidence also did not establish the nature of the crime or crimes which had generated the $52,000 the subject of count 5, but that offence was found to have fallen in about the middle of the low range of seriousness.
An indicative sentence for this offence was identified to have been 2 years, and 6 months.
Mr Elsaj was sentenced to an aggregate sentence of 16 years and 6 months, with a non-parole period of 11 years and 6 months.

Mr Elsaj's subjective circumstances

Evidence about Mr Elsaj's subjective circumstances came from a report of Dr Furst. He was born in Lebanon and came to Australia at age 14, after he had been subjected to the atrocities of war from age 7 or 8; his father had died when he was aged 10; that being when one of his brothers was kidnapped. He was believed to be dead for 4 years, before he was found in a Syrian gaol.
Mr Elsaj had also been involved in a turbulent and conflicted relationship for some 22 years. He was the father of 5 children aged 7 to 20. There had been two separations in that time, the last in 2015, after which he had not had contact with his children.
Mr Elsaj had no schooling in Lebanon because of the war and in Australia, left school at age 16 after, attending four schools and truanting often. He had, however, been gainfully employed for most of his life. He had begun cocaine use at age 32, with the result that he became dependent on cocaine and also used ecstasy and amphetamines recreationally. He had never sought treatment for his drug abuse.
In an affidavit Mr Elsaj's ex-wife described him as having become socially isolated and his drug use increasing, after his mother died in 2014, but no reference was made to this in Dr Furst's report. She also described ill health suffered by two of their children, but no medical evidence supporting that account was tendered. No finding of hardship to third parties justifying a reduction in sentence was found on this evidence.
While Mr Elsaj had no prior convictions for supply, Sides QC DCJ considered that his prior record of offending meant that he was not of good character. That considerable record dated back to 1999. His Honour took into account that counts 3 and 5 had been committed while Mr Elsaj was on bail for the other three counts and that in custody he had also been disciplined for being in possession of drugs.
Mr Elsaj told Dr Furst that he had committed the offences for which he was being sentenced when he was in debt and unhappy with his relationship. He was diagnosed to be suffering a substance abuse disorder, as well as an adjustment disorder with anxious mood, which his Honour accepted would make his time in custody more burdensome.
Sides QC DCJ accepted that Mr Elsaj's depression and anxiety had indirectly contributed to his offending, but because of their long association with his substance abuse, his Honour was not persuaded that Mr Elsaj did not know what he was doing when he committed his offences, or that he did not appreciate the consequences of his offending, taking note of his use of codes when communicating with Mr Grabovac.
In the result his Honour was not persuaded that there was any reduction in Mr Elsaj's moral culpability, because of mental health issues and/or intoxication. On the evidence he concluded that Mr Elsaj was motivated by greed and that his offending was premeditated, committed while appreciating that he was enmeshing himself in criminal activity.
Sides QC DCJ also concluded that Mr Elsaj's 2014 offences marked a significant escalation in his criminal behaviour. Further, that his breach of conditional liberty and return to serious offending soon after release on bail, as well as his absence of participation in rehabilitation programs in custody, were of considerable concern.
His Honour was not persuaded that Mr Elsaj was at a cross roads and concluded that his prospects of rehabilitation and not re-offending were poor. He did accept, however, that Mr Elsaj was remorseful, meeting the conditions specified in s 21(a)(3) of the Crimes (Sentencing Procedure) Act. Reasons for that conclusion were not given, but an acceptance of remorse was undoubtedly reflected in the aggregate sentence imposed on Mr Elsaj.

Mr Grant

On execution of a search warrant at his home, Mr Grant revealed to police the drugs stored in a safe in his bedroom, which he opened voluntarily. They formed the subject of his charges, although some of the pills were found on examination to have contained no illicit drugs.
On later interview Mr Grant made admissions as to some of the transactions in which he had been involved and claimed that he had purchased drugs from Mr Grabovac on behalf of someone who he only spoke to face to face; that he received payment in the form of pills; that he ate some of them; and that he had supplied the rest to friends in return for money.
Sides QC DCJ concluded that the ecstasy Mr Grant had received from Mr Grabovac in over nine transactions, amounting to some 2,310 tablets, were wholesale transactions. Whether his on-supply was wholesale and who consumed those tablets was not established by the evidence, although his account to the psychologist established that there had been supply to more than one individual. Further, that while the evidence established that at a dance party which he attended on 3 October 2014, when police found no drugs in his possession on search, that he had then intended to supply drugs to others, but whether they were strangers or friends, was not apparent.
His Honour found that on his own admissions, Mr Grant was supplying on a wholesale basis. That as well as to his friends, he was supplying to others was not, however, established beyond reasonable doubt. Nevertheless, it was concluded that Mr Grant's offending had done considerable harm to the community, the total ecstasy involved being a little over 9% greater than the large commercial quantity. His offending was also found to be premeditated and committed at a time when he appreciated that he was enmeshing himself in organised criminal activity.
Mr Grant's explanation that he had offended in order to obtain pills for his own use, was considered to explain, but not excuse his behaviour. Further, on his own account he obtained quantities of drugs which exceeded his own needs, but there were inconsistencies in his accounts to his psychologist and to police, which had not been explained, which left the credibility of his accounts open to question. In the result, his Honour concluded that Mr Grant was in part motivated by greed could not be excluded, at least in order to maintain a party lifestyle beyond what his friends were prepared subsidise, in light of the drugs which he supplied to them.
Nevertheless his Honour concluded that Mr Grant's ecstasy offence, count 1, fell well below the middle of the range of seriousness connoted by the prescribed 15 year non-parole period.
Mr Grant was sentenced to 6 years and 9 months imprisonment for this offence, with a non-parole period of 4 years.
Count 2 was found to fall close to the bottom of the range, given that only two tablets were involved, with the result that the additional criminality involved, compared to the matters on the Form 1, which were committed on the same day, was found to be minimal. Accordingly, there was no accumulation of the one month sentence imposed for this offence, on that imposed for count one.

Mr Grant's subjective circumstances

Mr Grant turned 20 between transactions 1 and 3 of his ecstasy offence. His parents had separated while he was a child, but his then age was unclear. He and his mother had been the victim of his father's physical and mental abuse. Shortly after the separation his father kidnapped him and subjected him to extreme violence during the two weeks that he held him. He had not seen his father for some 11 years and had been told over social media that his father was not interested in pursuing a relationship with him.
Mr Grant and his sisters were raised by his mother, with the support of his maternal grandparents and an uncle. His grandfather died in 2011 and his uncle the next year. There was no evidence that the disadvantage flowing from his dysfunctional upbringing had had an adverse impact on his moral development. On one occasion he went to the defence of his aunt when she was violently assaulted by his cousin.
His mother's circumstances led to Mr Grant frequently changing schools. He did not fit in and had difficulty developing friendships. He was physically and verbally bullied at high school. In Year 10 he was placed in a special learning centre, which his psychologist considered indicated that he had difficulties with learning and possibly behavioural issues, which would have arisen out of the bullying. There was no evidence of any intellectual disability.
Mr Grant had a history of work in fishing, labouring and construction and before arrest was completing a TAFE qualification in bricklaying, which he intended to finish. There was also favourable evidence from his employer at the time he went into custody.
Mr Grant began substance abuse at age 14 or 16, when he was too young to appreciate the long term consequences. Within a year he was using cannabis daily and at 18 he began taking ecstasy at weekends, but he had not used illicit drugs since his arrest in November 2014. Despite this record of drug abuse, his Honour accepted that Mr Grant was of prior good character, because he had no prior convictions.
His Honour also concluded that Mr Grant suffered post-traumatic stress disorder, which remained untreated and that he was suffering significant symptoms which interfered with his ability to trust people and to communicate, which would make his time in custody more burdensome.
His Honour noted the opinion of the psychologist Mr Hudd, that Mr Grant had difficulty with effective problem solving and had told him that he used ecstasy to regulate his emotional state and had devised a means of obtaining drugs for others, with his reward being a few pills of MDMA for his own use.
His Honour concluded from what was found on police search, which did not include items normally regarded as indicia of supply, that the evidence did not exclude Mr Grant having become involved in supply to people he perceived to be friends, because of his need for attachment due to his PTSD.
Account was, however, taken of Mr Grant's admissions about drug supply made to police; the code he had used when speaking to Mr Grabovac, after Mr Grant heard police were about; and what had been disclosed by police surveillance, when Mr Grant's appreciation of the risks of communicating by phone was revealed.
His Honour concluded that while at the time of his offending, Mr Grant may not have appreciated that his supply could attract very lengthy sentences, he knew that what he was doing was wrong and could have consequences for others. In the result, he was not persuaded that there was any reduction in Mr Grant's moral culpability for his offending.
His Honour also concluded, given what Mr Grant had admitted to police, despite what he had told his former employer and the probation officer, the possibility that he had sought to minimise his criminality could not be excluded. Nor had there been acknowledgment of the harm he had done and so, lenience for remorse was concluded not to be available in his case. It was, however, concluded that his prospects for rehabilitation were reasonable.

Parity

After dealing with the position of the fourth offender, Mr Samardzija, Sides QC DCJ explained how it was that he had approached the principle of parity in relation to the ecstasy supply offences, they being the only offence which the offenders had in common.
Mr Grabovac and Mr Grant's offences both involved a large commercial quantity of ecstasy, Mr Elsaj's offence a commercial quantity and Mr Samardzija not less than the indictable quantity, with resulting different maximum penalties. His Honour noted that other than in the case of Mr Grabovac, the principle of totality also had to be applied to the sentences imposed on the offenders and that in applying the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act, he had taken into account in the case of Mr Grabovac and Mr Grant, that because of their relatively young ages, greater weight had to be given to rehabilitation and less to deterrence. He also took into account that a sentence of imprisonment was a sentence of last resort.
His Honour identified the relevant differences between the offenders to be: "• age. Aged 20 to 21 at the time of the offence, the Offender Grant, is the youngest of the four and, at 24, the Offender Grabovac is the second youngest. These two are the only one that, in terms of sentencing, are young, the Court noting that the Offender Grabovac, is at the upper end of what the Court regards as young. The Offender Samardzija was 29 at the time of his offence and the Offender Elsaj was around 40; • the Offender Grant, is the only one who admitted any relevant involvement; • the Offenders Grant and Grabovac are the only two entitled to the benefit of good character; • the Offender Elsaj is the only one with subsequent offences that he committed in breach of bail for those committed in 2014; • in the case of the Offender Elsaj, his substance abuse did not start at an age when he would have been too young to appreciate the long term consequences of that abuse; • save in the case of the Offender Elsaj, the Court took into account in their favour the Offenders' compliance with strict bail conditions; • the Court did not extend leniency for remorse in the case of the Offenders Grant and Samardzija; • the Offenders Elsaj and Samardzija have no form 1 schedule attached to count 1; • the Offender Grabovac is the only one where totality does not arise; • the Court found that the prospects of rehabilitation in the case of the Offenders Grabovac and Samardzija were good, in the case of the Offender Grant, reasonable and, in the case of the Offender Elsaj, poor; • bearing in mind the different weights of ecstasy and maximum penalties as well as their respective roles and where they fell within the drug trafficking hierarchy and ignoring the matters on the form 1 schedule, the Court is of the view that the criminality of the Offender Grabovac is roughly equivalent to that of the Offender Elsaj. The Offender Grant's criminality is well below that and the Offender Samardzija is even well below that of the Offender Grant's criminality."

The Crown's case

The Crown contended that Sides QC DCJ had not fallen into error in his application of the principle of parity, even though it was acknowledged that what his Honour meant in the last quoted dot point, was not entirely clear.
It was submitted that what his Honour there said did not necessarily evince an intention to impose an identical penalty on Mr Grabovac and Mr Elsaj for their ecstasy offences, particularly given that these conclusions set aside the Form 1 matters which had to be taken into account in their respective cases, on this count.
It was further submitted that the need to take the serious Form 1 offences into account when imposing a sentence for Mr Grabovac's offence, which attracted a maximum penalty of life imprisonment, explained why the sentence arrived at in his case, was higher than the indicative sentence in Mr Elsaj's case, even though Mr Grabovac had a stronger subjective case.
It was also necessary to take into account that the aggregate sentence imposed on Mr Elsaj was a significantly heavier sentence than the sentence imposed on Mr Grabovac, even though that reflected a significant degree of concurrence, for Mr Elsaj's other serious offending.
In the result, the sentences imposed on both Mr Elsaj and on Mr Grant, whose criminality was found to be well below that of Mr Grabovac, properly reflected the differences in their criminality, their roles and subjective circumstances and did not give rise to a disparity, which could have left Mr Grabovac with a justifiable sense of grievance.

Why Mr Grabovac's appeal must succeed

As discussed in Green at [30], there can be significant practical difficulties in comparing the sentences imposed on participants in the same criminal enterprise, who have been charged with different crimes and that the difficulties are greater, where disparity arises out of a sentence imposed on a co-offender, who has been charged with a less serious offence. Nevertheless, the parity principle is not confined to sentences imposed upon co-offenders who have committed the same crime. It also applies to sentences imposed upon persons who are co-offenders by virtue of having been engaged in the same criminal enterprise, regardless of the charges that have been actually laid against them.
Thus in this case, while both Mr Elsaj and Mr Grant were convicted of less serious ecstasy offences than that of which Mr Grabovac was convicted, his Honour was correct in applying the parity principle to each of the sentences imposed.
That exercise also had to be approached in a context where, overall, the offending for which Mr Elsaj was being sentenced was considerably more serious than that of either Mr Grabovac or Mr Grant. That was because of the number of serious offences for which Mr Elsaj was being sentenced which required the principle of totality also to be taken into account in his case. The considerably more senior role which Mr Elsaj played in this drug hierarchy and the fact that two of his offences were committed while he was at liberty on bail, an aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act, also pointed towards a heavier sentence in his case.
It was also necessary to bear in mind that subjective features of individual offenders may result in significant differences in the sentences imposed between offenders: R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 [166]. In this case however, those factors also pointed to a heavier overall sentence for Mr Elsaj, given his age and other subjective circumstances, including his long criminal record, which did not entitle him to leniency, despite the favourable conclusions reached about his remorse, for reasons which were not explained in his case.
By way of comparison, in the case of Mr Grant, who had been involved in considerably less serious offending than Mr Elsaj, Sides QC DCJ approached the account he had given to the psychologist as to his remorse with caution, given the conflicting accounts he had given to police about his criminal conduct and the fact that he had not given evidence which could be tested. In the result he concluded that a favourable finding as to Mr Grant's remorse was not available.
That accorded with the approach to the mitigating factor specified in s 23A(3)(i) of the Crimes (Sentencing Procedure) Act, discussed in authorities such as R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at [58]-[59], that caution must be exercised in respect of the weight, if any, which should be given to untested and self-serving statements made to psychologists and in R v Harrison [2001] NSWCCA 79; 121 A Crim R 380 at [44], that such untested expressions of remorse may be approached with scepticism. Uncritical reliance on such statements was also warned against in Butters v R [2010] NSWCCA 1 and in Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297, these authorities were discussed together with conduct which may evidence remorse.
Despite this, the sentence imposed on Mr Grant, by comparison to that imposed on Mr Grabovac, given the nature and seriousness of his offending was, like the aggregate sentence finally imposed on Mr Elsaj, relatively lenient.
In arriving at the sentence imposed on Mr Grabovac by application of the instinctive synthesis discussed in Markarian v The Queen (2008) 228 CLR 357; [2008] HCA 45, proper account had to be taken of the maximum penalty for his offence, being life imprisonment and the standard non-parole period of 15 years; the nature and seriousness of his offending, committed by the 16 transactions by which he supplied a large commercial quantity of ecstasy, 816.47 grams, while taking into account his moral culpability for that offending, as well as his subjective circumstances and the aggravating and mitigating factors arising in his case under s 21A of the Crimes (Sentencing Procedure) Act. His sentence also had to be heavier than it would otherwise have been, because of the need to take into account the Form 1 offences, as discussed in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 581.
The result of that exercise had to be a non-parole period, that being the minimum period of actual incarceration which must be spent in full-time custody, which had regard to all the elements of punishment including rehabilitation, the objective seriousness of his offending and his subjective circumstances: Power v The Queen (1974) 131 CLR 623 at 628-629; HCA 26. That period also had to be arrived at taking into account the principle of parity, given the sentences imposed on his co-offenders for their offending.
In arriving at Mr Grant's sentence, the same exercise had to be undertaken.
In arriving at the aggregate sentence imposed on Mr Elsaj for all of his very serious offending, some of it committed while he was at liberty on bail, these considerations also had to be taken into account when the indicative sentences were first determined for each of his offences, they being regarded as the head sentence for each offence: Dimian v R [2016] NSWCCA 223 at [49].
In finally arriving at the aggregate sentence for all of Mr Elsaj's offending, the principle of totality also had to be applied, but that could not to be used to minimise his offending, or to obscure or obliterate the range of his criminal conduct, or its totality: R v MJB [2014] NSWCCA 195 at [58]-[60]. Nor could it involve some kind of discount for multiple offending: R v Knight [2005] NSWCCA 253; 155 A Crim R 252 at [112].
Further, when applying the totality principle, the related parity principle also had to borne in mind, as discussed in Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26. This required that care be taken to avoid any disproportion between the sentences imposed on Mr Elsaj and his co-offenders, having regard to their individual circumstances and their respective degrees of culpability for their criminal behaviour, which might justify a real difference in the time each was to be sentenced to serve in prison. While "like must be compared with like", the check which the parity principle required be applied in this overall sentencing exercise, had to be undertaken as Kirby J observed, having regard to "subtle considerations which defy precision either of description or implementation": at 341.
So approaching the sentences imposed on these co-offenders, I am satisfied that his Honour did fall into error, in this undoubtedly difficult exercise.
In my view that was revealed by the outcome of his Honour's assessment of the relevant objective criteria established by the evidence, by which the relative seriousness of the offenders' ecstasy offences was established. That outcome had to reflect not only the respective seriousness of their individual offences, but also the respective roles which the offenders each played in this drug hierarchy, as well as the considerable differences in their subjective circumstances: Green at [31]-[32].
In the case of the ecstasy offences, unarguably the sentences imposed on these co-offenders had to be different, given the charges to which they each entered their pleas and the amount of the ecstasy they had each supplied. Those imposed did not reflect his Honour's conclusion, that apart from the Form 1 offences which had to be taken into account in both cases, the criminality involved in Mr Grabovac and Mr Elsaj's ecstasy offences were roughly equivalent.
It will be remembered that the respective sentences arrived at were: 1. Mr Grabovac's ecstasy offence - a sentence of 12 years imprisonment, with a non-parole period of 7 years and 6 months; 2. Mr Elsaj's ecstasy offence - an indicative sentence of 9 years and 9 months, with a non-parole period of 6 years and 6 months, and an aggregate sentence of 16 years and 6 months, with a non-parole period of 11 years and 6 months; 3. Mr Grant's ecstasy offence - a sentence of only 6 years and 9 months imprisonment with a non-parole period of 4 years.
The final result, an aggregate non-parole period for all of Mr Elsaj's offending, which was only 4 years longer than that imposed on Mr Grabovac, whose non-parole period was 3 years and 6 months longer than that imposed on Mr Grant, confirms the error into which his Honour fell.
The nature and seriousness of Mr Elsaj's overall offending, was very considerably more serious than that of either Mr Grabovac or Mr Grant. This aggregate sentence was the result of very considerable concurrency of the non-parole periods indicated for Mr Elsaj's individual offences. The indicative sentences given were: 1. Count 1 - 9 years and 9 months, with a non-parole period of 6 years and 6 months; 2. Count 2 - 10 years with a non-parole period of 6 years and 9 months; 3. Count 3 - 3 years and 6 months; 4. Count 4 - 5 years and 6 months; 5. Count 5 - 2 years and 6 months.
The result, an aggregate sentence of 16 years and 6 months, with a non-parole period of only 11 years and 6 months, that being only five years more than the non-parole period indicated for both Mr Elsaj's ecstasy and cocaine offences, reveals a lenient application of the approach discussed in Postiglione, to the application of the related principles of totality and parity.
When the non-parole period imposed on Mr Grabovac, 7 years and 6 months for the ecstasy offence alone, is considered in light of that result, his Honour's error is confirmed.
I thus consider both that it must be accepted that Mr Grabovac does have a justifiable sense of grievance with the sentence which was imposed upon him and that the sentences imposed on his co-offenders have given rise to the appearance that justice has not been done in his case. That is because there is an unjustifiable discrepancy in the sentencing of these three offenders: Lowe v The Queen (1984) 154 CLR 606, Mason J at 610; [1984] HCA 46.
Accordingly, I consider that the appeal must be upheld and Mr Grabovac resentenced.

Re-sentence

Having undertaken the sentencing exercise I described above in light of all of the evidence I have discussed, after a 25% discount for his plea and a finding of special circumstances, having regard to Mr Grabovac's subjective circumstances, as well as his need for a significant period of supervision after release on parole, the sentence I would impose upon him is a non-parole period of 6 years, 9 months, a balance term of 3 years, 9 months, making a total sentence of 10 years and 6 months. That also reflects the impact of the Form 1 offences which have to be taken into account in his case.
I am also satisfied that this exercise of the Court's discretion would not result in a sentence for Mr Grabovac's undeniably serious offending, which would be "an affront to the proper administration of justice": Green at [33].

Orders

The orders I would make are thus: 1. Leave to appeal is granted; 2. The appeal is upheld; 3. The sentence imposed by Sides QC DCJ on 7 September 2016 is set aside; and 4. Mr Grabovac is sentenced to a total term of imprisonment of 10 years, 6 months, commencing on 21 June 2016, with a non-parole period of 6 years, 9 months, with the result that he will first become eligible for parole on 20 March 2023.
HAMILL J: I agree with the orders proposed by Schmidt J and with her Honour's reasons.

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