Hassoun v R [2023] NSWCCA 5 | Case summary

Court of Criminal Appeal (NSW)|2022-10-07|Before: Mitchelmore JA, Davies J, Hamill J, Mr P

The applicant's submissions

The applicant submitted that although the sentences imposed on the three offenders may seem justified, the sentences did not reflect the differences in the objective gravity of their conduct. The applicant accepted that the role each offender played was more important than the quantity of drugs involved (as to which see R v MacDonnell (2002) 128 A Crim R 44; [2002] NSWCCA 34 at [33] per Wood CJ at CL) ("MacDonnell"). In the present case, however, there was a material difference between the quantities of drugs in which the applicant was involved, as compared with Mr Chami and Mr Halloum. The applicant submitted that the notional sentences involved a "significant lack of differentiation", with one year between the applicant and Mr Halloum, and five months between the applicant and Mr Chami. The applicant contended that this was not open to the sentencing judge.
Apart from the difference in the quantity of drugs in which he was involved, the applicant also relied upon the sentencing judge's acceptance that he was not involved in some significant parts of the enterprise. While accepting the force of the Crown's submission that this was a joint criminal enterprise, the applicant submitted that he was not demonstrably aware of what was happening in terms of the process of supply of the drugs to the enterprise, or of the additional kilogram of drugs, or, indeed, the existence of the additional safe houses. These were matters for which his co-offenders were responsible and he was not, meaning his role was less.

The Crown's submissions

The Crown disputed that the matters on which the applicant relied warranted a greater difference between his sentence and that of his co-offenders, so as to give rise to a justifiable sense of grievance. In relation to the objective circumstances, the Crown accepted that the applicant was not involved in the Bankstown safe houses (and the drugs located therein) but submitted that it did not follow that those safe houses were significant in the sentencing exercise. Relying on what Wood CJ at CL said in MacDonnell about the importance of the role of an offender, the Crown submitted that it was open to the sentencing judge to find that the applicant was equally responsible for the day-to-day running of the syndicate, and he was properly sentenced on the basis of that culpability. The Crown submitted that the applicant's involvement in the overarching operation of the syndicate, which relied upon receipt of cocaine from the Bankstown premises, was significant and not reflected in an arithmetical approach to the quantities of drugs attributable to each offender.
The Crown also submitted that Mr Halloum's criminal record, which was the primary difference in the subjective factors, did not warrant a material difference beyond what was reflected in the sentence imposed upon him. It relied in this respect on the proposition that prior good character and a lack of a criminal record are of reduced significance in drug offences: Ninness v R [2014] NSWCCA 288 at [90].

Consideration

The applicable principles in relation to parity are well settled and do not require extensive repetition in these reasons: DS v R [2014] NSWCCA 267 at [39] per Bathurst CJ, Fullerton J, and Davies J. Recently, in Jaafar v R [2022] NSWCCA 254 ("Jaafar"), Yehia J (Harrison and Fagan JJ agreeing) reiterated that "merely pointing to some difference between the two subjective cases of co-offenders who commit the same crime would not of itself establish a justifiable sense of grievance": at [42]. The question is "whether or not the sentencing discretion miscarried and not whether or not this Court would have imposed a different sentence to that imposed at first instance": Moran v R [2022] NSWCCA 217 at [29] per Beech-Jones CJ at CL (Price and Yehia JJ agreeing). Particular caution is required where, as in the present case, the same judge hears the sentence matters of two or more co-offenders and is "in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way": Jaafar at [43], citing Huckstadt v R [2016] NSWCCA 22 at [90] per Button J (Johnson and Fagan JJ agreeing); see also Chamon v R [2020] NSWCCA 112 at [35]-[37].
The agreed facts that were before the sentencing judge revealed a coordinated syndicate in which each of the applicant, Mr Halloum and Mr Chami participated and had a significant role. Having regard to the nature of the applicant's offending as part of that syndicate, and considering his subjective factors, the sentence that his Honour imposed does not give rise to a justifiable sense of grievance on his part. The three matters which were the focus of the applicant's submissions do not call for a contrary conclusion.

The quantity of drug involved

It has long been accepted that the role of an offender is more important than the quantity of drugs involved, although quantity remains a relevant consideration: Wong v R (2001) 207 CLR 584 at 609; [2001] HCA 64 (per Gaudron, Gummow and Hayne JJ). The role of an offender is to be assessed by reference to their involvement in the steps taken to effect supply: Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242 at [135]; Kuo v R [2018] NSWCCA 270 at [97]. Although Mr Halloum and Mr Chami were involved in the supply of a larger quantity of drugs than the applicant, the criminality of the three offenders was largely shared within the syndicate, notwithstanding that they performed different roles (see [12] above). That the relative levels of risk involved in their respective roles might have fluctuated over time (depending on where the drugs were located) does not call for a contrary conclusion.
In some circumstances it may be the case, as the applicant hypothesised, that an offender's involvement in additional (or lesser) quantities of the drug in question is a consideration that warrants greater differentiation between the sentences imposed between co-offenders. Care must always "be taken when evaluating the seriousness of 'an offence' in the context of an offence committed by an offender jointly with other offenders": Harris v R [2021] NSWCCA 322 at [58] per Dhanji J (Simpson AJA and Ierace J agreeing). In the present case, however, the applicant was sentenced on a single charge of supply, involving what remained a large commercial quantity of cocaine, arising out of a syndicate in which he was heavily involved. Of the three offenders sentenced by his Honour, the lowest sentence was imposed on the applicant. That his Honour did not make greater differentiation between his sentence and that of Mr Halloum and Mr Chami, on the basis of the quantity of cocaine in which they were involved, does not give rise to a justifiable sense of grievance.

The Bankstown safe houses

There was no evidence that the applicant ever attended the two safe houses at Bankstown. However, as the Crown submitted, the significance of his non-attendance at those places must be read in the context of his Honour's finding that the Croydon Park residence was used by the syndicate "as the base of operations". It was Croydon Park where, inter alia, the runners attended at the start of their "shifts" and to where they would return with the proceeds. Further, the runners attended Croydon Park in response to orders placed with the two "call centres", one of which the applicant managed. Although the applicant was not involved in what occurred at the Bankstown safe houses, the sentencing judge found that he was nevertheless involved in the day-to-day running of the syndicate and directing the activities of other members of the syndicate, all based at Croydon Park. It does not follow from the fact that the applicant's physical activities were limited to the Croydon Park premises that he has a justifiable sense of grievance arising from the sentencing judge not having made greater differentiation between his (lower) sentence and that of his co-offenders.

Mr Halloum's criminal record

Mr Halloum had a criminal record, whereas Mr Chami and the applicant did not (save for the minor matters which his Honour noted at [36] and [54]). The sentencing judge clearly took this into account, expressing the view that the applicant's good record was a mitigating factor while Mr Halloum was disentitled to leniency. That the difference between the sentences is greatest as between Mr Halloum and the applicant reflected, at least in part, Mr Halloum's prior record. That difference was also attributable, in part, to his Honour's finding that this was the applicant's first period of full-time custody, which was also reflected in the finding of special circumstances.
While I accept the applicant's submission that Mr Halloum's criminal history was "quite serious", that history cannot be considered in isolation from the sentencing judge's other findings in relation to Mr Halloum. Those findings included that Mr Halloum had experienced a difficult childhood, with two family members diagnosed with schizophrenia and one of those family members, his father, re-entering his life sporadically to abuse him and his family including, on one occasion, with a metal pole: [50]. Although Mr Halloum did not seek to characterise his childhood as being one to which the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 should apply, the sentencing judge accepted the disadvantage in his upbringing went to a slight reduction in his moral culpability: [78]. The fact that the reduction was, as his Honour described it, only to "a very limited extent", highlights that his Honour was considering the interrelationship between the objective and subjective features of each of the offenders in an overarching way. Again, it does not follow from what the applicant described as a "significant lack of differentiation" that the sentencing exercise miscarried in relation to Mr Halloum's criminal record.

Conclusion

The applicant has not demonstrated that the matters on which he relied, individually or cumulatively, give rise to a justifiable sense of grievance on his part when regard is had to the sentences imposed on Mr Halloum and Mr Chami. His ground of appeal should be dismissed.
I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal.
DAVIES J: I agree with Mitchelmore JA and with the additional remarks of Hamill J.
HAMILL J: I agree with the orders proposed by Mitchelmore JA and with her Honour's reasons. It may have been open to the sentencing Judge to impose a slightly less severe sentence on the applicant, because of his lack of established connection with the Bankstown residences and the smaller quantity of drugs particularised in the charge preferred against him, and still produced a result that accorded with principles of equal justice and parity (or "due proportion"): Postiglione v The Queen (1997) 189 CLR 295 at 301-302; [1997] HCA 26 (per Dawson and Gaudron JJ). However, the sentencing Judge was well aware of the factual matters that distinguished the cases, and the applicant's role in the enterprise was not very different to those of Messrs Chami and Halloum. Just as there is no single correct sentence, there is no single correct proportion between sentences imposed on different offenders. I am unable to conclude that the sentencing discretion miscarried or that the sentence imposed on the applicant created a justifiable sense of grievance because it lacked due and proper proportion with those imposed on the two co-offenders.

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HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Nouril Hassoun, sought leave to appeal against the sentence imposed for one count of supplying a large commercial quantity of cocaine (1.47 kilograms) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) ("DMT Act"). Mr Hassoun was sentenced in accordance with a Statement of Agreed Facts which detailed his participation in a criminal drug syndicate which operated throughout Sydney between June and November 2019. The syndicate operated two "call centre" telephone services connecting customers to drug runners, who would typically supply deal bags of less than 1 gram of cocaine. Mr Hassoun was responsible for managing one of the call centres, taking orders, directing drug runners to deliver orders, and organising the runners' working arrangements. Mr Hassoun pleaded guilty and was sentenced in the District Court to a term of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 6 months, the sentencing judge having found special circumstances. He was sentenced at the same time as two co-offenders who were also involved in the syndicate, Ahmed Halloum and Mohommed Chami. Mr Halloum and Mr Chami also pleaded guilty to charges under s 25(2) of the DMT Act. Although all three offenders were involved in the day-to-day running of the syndicate and directing the activities of other members, the respective roles of Mr Halloum and Mr Chami also extended to involvement with the drugs located at two safe houses in Bankstown, attendance at those safe houses, and handling the drugs and the receipts of sales. Mr Chami had a further charge relating to possession of ammunition taken into account on a Form 1. Unlike the applicant and Mr Chami, Mr Halloum had a criminal record involving offences of kidnapping and robbery in company. Mr Hassoun advanced a single ground of appeal: that he had a justifiable sense of grievance in light of the sentences imposed on his co-offenders. The Court (Mitchelmore JA, Davies and Hamill JJ agreeing), granting leave to appeal, but dismissing the appeal, held: (1) The sentencing judge had regard to the applicant's offending as part of the coordinated syndicate in which he and his co-offenders were involved, as well as to each of their relative subjective cases. His Honour's reasons and the respective sentences did not give rise to any justifiable sense of grievance on the applicant's part in light of the sentences imposed on his co-offenders: [28], [36], [37]. (2) The criminality of the three offenders was largely shared within the syndicate, and the sentencing judge did not err by not making greater differentiation between the applicant's sentence and that of his co-offenders. None of the matters identified by the applicant called for a contrary conclusion, including: that Mr Halloum and Mr Chami were involved in the supply of a larger quantity of drugs than the applicant; that the relative levels of risk involved in their respective roles might have fluctuated over time; that the applicant was not involved in what occurred at the Bankstown safe houses; and that Mr Halloum had a criminal record: [29]-[33], [36], [37]. Wong v R (2001) 207 CLR 584; [2001] HCA 64; Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242; Kuo v R [2018] NSWCCA 270; Harris v R [2021] NSWCCA 322 applied. (3) There is no single correct sentence, nor is there a single correct proportion between sentences imposed on different offenders. The fact that it was open to the sentencing judge to impose a slightly less severe sentence on the applicant does not give rise to any error of the nature for which the applicant contended: [27], [36], [37]. Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 applied.

Hassoun v R

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