Jaafar v R

Factual Background

1. The applicant and co-offender pleaded guilty to the identical charge of attempting to possess a commercial quantity of a border-controlled drug, namely, 12.275 kilograms of pure methamphetamine. The Crown, on sentence, tendered an identical Statement of Facts (SOF) in respect of each offender. At the sentencing hearing, Counsel for the applicant indicated that the SOF was agreed to, and that the offender was asking the sentencing judge to sentence him on the basis of those agreed facts. [1]
2. It is necessary to briefly summarise the matters in the SOF below.
3. Between August and September 2020, six consignments were delivered to C&K Smash Repairs, Liverpool. Within consignments 5 and 6, 12.275kg of pure methamphetamine was concealed. The Crown conceded that the applicant did not have actual knowledge that the consignment contained a border-controlled drug at the time that he received it.
4. The first two consignments were successfully delivered on 15 September 2020. Consignments 3, 4, 5 and 6 arrived in Australia from the United States of America and were inspected by Australian Border Force on 18 September 2020. The examination of consignments 3 and 4 identified no anomalies and the consignments were delivered to C&K Smash Repairs. Consignments 5 and 6, however, were found to contain anomalies. Forensic examination took place, and the white crystalline substance contained in the four drive shafts within the consignments was identified as pure methamphetamine. The drug was removed and substituted with an inert substance.
5. On 24 September 2020, Commander Schofield in the Australian Federal Police (AFP) authorised an investigation of the importation of consignments 5 and 6. Under the direction of police, on 25 September 2020, a UPS staff member made a phone call to contact number ending in 047. The individual who answered the phone identified himself as "Callan". He confirmed that the delivery was to the mechanics at the Liverpool address, where "two guys" would be present to receive the delivery on Monday. UPS made a further call to contact number ending 047, where a male person who again identified himself as "Callan", but who was unable to immediately spell his surname, confirmed the delivery address and that he would take receipt of the delivery on Monday. On neither of these occasions did the applicant or the co-offender answer the phone ending 047.

28 September 2020

1. At about 11.30am, on 28 September 2020, AFP surveillance identified the co-offender standing next to a black Toyota Hilux at the delivery address. He was observed pacing around the street and entering and exiting the vehicle. A white Toyota Hilux was identified on the other side of the road, and the applicant was observed standing in the driveway of the delivery address.
2. At 1.39pm, a controlled delivery of consignments 5 and 6 was made. The delivery van entered the driveway of the delivery address. The applicant met with the driver and identified himself as "Callen" from "C and K". He retrieved consignments 5 and 6 and placed them in the rear tray of the white Toyota Hilux.
3. The applicant and the co-offender travelled to Arncliffe, the applicant driving the white Hilux, and the co-offender driving the black Hilux. They then travelled together to Kogarah. Covertly recorded audio from within the consignments revealed a male voice, at about 2.55pm, say "think of the money". Subsequent audio recorded loud banging and sounds consistent with attempts to force entry into a metallic driveshaft.
4. Police then entered the premises at Kogarah, finding the co-accused in the foyer area and the applicant at the top of an office area attempting to kick out a window. In the premises were folding tables with vacuum seal devices and food saver bags. Consignments 5 and 6 were opened and their contents was on the ground. It appeared that the shafts had been impacted by a sledgehammer.
5. On 30 September, police executed a search warrant of the black Toyota Hilux and found a number of items, including an 'Oppo' branded mobile phone. The SIM card of that phone was connected to the phone number that had been used to contact UPS. The user of that mobile phone had also set up a Gmail address, which was in turn used to purchase the domain name cnksmashrepairs.com, and to obtain a company extract from ASIC in relation to C&K Smash Repairs Pty Ltd. This mobile phone was used to facilitate the consignment of the border-controlled drugs.
6. The Crown conceded that neither the applicant nor the co-offender knew the exact amount or type of drug in the consignment.

Material filed on behalf of the applicant

1. A number of documents were relied on by the applicant including a psychiatric report of Dr Nielssen; psychological report of Anne Marie De Santa Brigida; the applicant's letter of apology; and character references from the applicant's mother, father-in-law, wife, sister, brother, friend, employer and previous employers.
2. The applicant told Dr Neilssen that his involvement in the offence was limited to the events of the day of arrest. He said he was asked by someone he knew from gambling to attend to an "emergency job" that involved picking up a package. He was to be paid $1000. Dr Neilssen recorded a diagnosis of substance use disorder, and a gambling disorder. Dr Neilssen reported "a number of features of [the applicant's] history indicating a better long-term prognosis and a lower probability of recidivism than other similar offenders". [2]
3. The applicant wrote a letter of apology to the presiding judge, dated 20 September 2021, in which he expressed "deep remorse for the offence", and accepted "full responsibility" for his actions. [3] He reported that at the time of the offence, he was living with his mother, who suffered various physical and mental health conditions. He reported that, when offered the job, he had "senselessly assumed [it] was an average emergency courier job", and that it was not until he was instructed to open the package that he "realised what was unfolding". [4]

Material relied on by the co-offender

1. The Sentencing Assessment Report outlined the current circumstances of the co-offender as at 24 September 2021 [5] . It recorded that he accepted responsibility for his "minimal" involvement and recorded that he was unemployed and was offered a payment of $1,000 to pick up and deliver a package.
2. Neil Ballardie, psychologist, opined that the co-offender appeared to have been negatively affected by his deprived childhood. [6] He had a fair level of insight and was motivated to address his offending behaviour. Mr Ballardie opined that "a custodial sentence will cause him psychological distress and that his overall mental condition is likely to deteriorate". [7]
3. The co-offender wrote a letter of apology to the sentencing judge in which he accepted responsibility for his actions, acknowledged the negative impact of drugs on the community, and set out the steps and strategies he had implemented since his offending to improve himself. His account of the offending was that they were approached by someone the applicant knew from gambling who offered them $1,000 each to collect a parcel. He reported that when at Kogarah, he was told to open the package and while he "did not know what drug it was or how much….in [his] head and gut, [he] believed it was drugs". [8]
4. Various documents were tendered on sentence in relation to the co-offender's father's prostate cancer, and his involvement in his father's treatment.

The Sentencing Judge's Findings

1. On Monday 11 October 2021, the applicant and the co-offender were sentenced together in the District Court. The sentencing judge was satisfied beyond reasonable doubt that both offenders accepted delivery of the consignment, moved the consignment to the Kogarah premises, and used tools to force entry into the consignment to access the drugs. [9]
2. His Honour accepted that: "…at some time during the afternoon of 28 September 2020, [the applicant] gained actual knowledge of the consignment contents. They were in the process of unpacking the consignment when they were arrested and indeed [the applicant] attempted to evade apprehension by police which points to his state of mind." [10]
3. In further analysis of the level of the applicant's involvement in the offence, the sentencing judge stated: "Further, I accept the Crown's submission that by reference to one of the co-offenders being recorded as saying "think of the money" at 2.55pm. This establishes actual knowledge of the contents of the consignments at that point at the latest. With respect to Jaafar, it must be noted that the Crown has accepted the offender Jaafar's (and indeed Ahmad's) involvement was limited to the one day, namely Monday 28 September 2020. As police involvement began well before that day and there is no forensic or surveillance material linking the offender Jaafar, other than that set out in the agreed facts. As noted, the Crown accepted that the offender Jaafar did not have actual knowledge of the fact that the consignment originally contained a border-controlled drug and conceded that he did not know the exact amount of the drugs or the type of drug contained in the consignment." [11]
4. Comparing the roles of the two offenders, the sentencing judge stated: "the possession of the phone shows slightly more involvement [of the co-offender] than [the applicant]. However, they played not dissimilar roles." His Honour stated: "I accept that both of them on that day can be said to be receivers and unpackers of the consignment 5 and 6 and also I have found that the next task would have been to vacuum seal what they recovered from the machinery. It appears that both accused were playing a dangerous role of receiving possession of the drugs for other people who were studiously staying away. They were, therefore, low in the hierarchy and were not connected with any other deliveries for this syndicate." [12]
5. The amount of the border controlled drug was approximately 16 times the commercial quantity threshold; however, at the time of taking possession, neither offender was aware of the amount or purity of the substance.
6. The applicant had "negligible record" and was "entitle[d] to some leniency". The co-offender's record disentitled him to leniency, and he was on conditional liberty at the time of the offending, a matter that his Honour took into account as an aggravating factor. [13]
7. Each offender was awarded a 25% discount for the utilitarian value of their guilty pleas. The sentencing judge considered the character, age, antecedents, and background of each offender.
8. Ultimately, the co-offender was convicted and sentenced to four years' and six months' imprisonment, with a non-parole period of 34 months' imprisonment. The applicant was convicted and sentenced to four years' imprisonment, with a non parole period of 30 months' imprisonment.

The Ground of Appeal

1. As noted, the sole ground of appeal is that the applicant has a justifiable sense of grievance in light of the sentence imposed on the co-offender. This ground of appeal invokes the parity principle.

The Applicant's Submissions

1. The applicant submitted that "the 4-month difference in the respective non-parole periods, insufficiently reflects the applicant's more favourable, subjective circumstances, as well as his lesser involvement in the joint offence, so as to give rise to a justifiable sense of grievance on the applicant's part". [14]
2. It was submitted that the co-offender was more intimately involved in the enterprise, although his involvement was also limited to one day. [15]
3. Even accepting that the two offenders had similar roles, the sentencing judge "found that the co-offender had knowledge at an earlier point in time, whereas the applicant acted recklessly to begin with, and acquired knowledge of the contents of the consignment only at a later point in time". [16] The applicant submitted that the co-offender's culpability was greater for this reason.
4. The applicant pointed to a number of more favourable features in his subjective case. His record was "substantially more favourable" than that of the co-offender. Ultimately, it was submitted that there was not a single factor which favoured the co-offender over the applicant. Instead, the applicant was less culpable; was entitled to leniency; had a stronger subjective case; and was not on conditional liberty at the time the offence was committed. [17]

The Respondent's Submissions

1. The respondent submitted that the matter in issue on appeal does not "permit a single correct answer and it is not the point that this Court might have exercised the discretion differently. So long as the sentencing judge has taken into account the relevant considerations of law and fact, as is the case here, the appellate court will not ordinarily intervene merely because some arguable discrepancy appears between the sentencing of otherwise apparently connected or like offenders". [18]

Consideration

1. In essence, the applicant submitted that the moderate difference in the sentences imposed upon each of the two co-offenders does not reflect the disparities in the nature and gravity of their offending and the differences in their subjective cases. The complaint is not that there is no differential between the co-offenders, but that the differential does not reflect rationally the difference between the moral culpability of each offender and the differences in subjective case.
2. As was noted by Rothman J in Lee v R [2021] NSWCCA 318, at [49]: "It is necessary to return to first principles. Sentencing is not a mathematical exercise; it is a process of intuitive or instinctive synthesis".
3. The application of the parity principle was discussed by the High Court in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]-[29] in the following terms: "[28] 'Equal justice' embodies the norm expressed in the term 'equality before the law'. It is an aspect of the rule of law. It was characterised by Kelsen as 'the principle of legality, of lawfulness, which is immanent in every legal order'. It has been called 'the starting point of all other liberties'. It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen: 'Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.' (Emphasis in original.) Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. [29] General concepts of 'systematic fairness' and 'reasonable consistency' in sentencing, as an aspect of the administration of federal criminal justice, were discussed in Hili v The Queen. They apply to persons charged with similar offences arising out of unrelated events. The consistency they require is 'consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence'. That kind of general consistency is maintained by the decisions of intermediate courts of appeal. The consistency required by the parity principle is focused on the particular case. It applies to the punishment of 'co-offenders', albeit the limits of that term have not been defined with precision." (Citations omitted).
4. 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. Ultimately, the question is whether the sentencing discretion miscarried, not whether this Court would have imposed a different sentence to that imposed the first instance: Moran v R [2022] NSWCCA 217 at [29].
5. It is also of importance that it was the same judge, North DCJ, who sentenced both the applicant and the co-offender. As was said by Button J in Huckstadt v R [2016] NSWCCA 22 at [90], where the same judge hears the sentence matters of two co-offenders, '[he or she is] in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way".
6. The disparity between the sentences imposed by North DCJ in respect of the applicant and the co-offender was well within the bounds of the qualitative and discretionary judgments open to his Honour. The points of differentiation relied upon by the applicant did not, in my view, warrant a greater disparity in sentence.
7. Firstly, both the applicant and co-offender were only involved in the enterprise on the one day. While his Honour accepted that the co-offender would have been generally aware of the contents of the consignment at an earlier point on 28 September 2020 than the applicant, that could only have been a matter of hours, given his Honour's further finding that the applicant had acquired the same degree of knowledge by at least 2.55pm that day. Further, the fact of the co-offender's possession of the 'Oppo' mobile telephone in the context of such temporally limited involvement placed him barely above the applicant in the hierarchy of the enterprise and rendered him only slightly more culpable. Furthermore, although the co-offender had possession of the mobile phone, the applicant deliberately provided a false name when obtaining the consignment.
8. Secondly, his Honour found that both the applicant and co-offender had the same degree of knowledge (or lack of knowledge) as to the exact type and amount of drug in the consignment.
9. Thirdly, both the applicant and co-offender committed the offence for financial gain, although his Honour could not be satisfied as to the amount involved for each offender.
10. Fourthly, his Honour had regard to the applicant's limited criminal record and extended him a degree of leniency as a result. By contrast, his Honour noted the co-offender's more extensive criminal record, which disentitled him to leniency. His Honour noted that the co-offender was on conditional liberty when he committed the offence, a matter he took into account as an aggravating feature.
11. Fifthly, both the applicant and co-offender pleaded guilty to the same offence at the earliest opportunity and were extended a 25% discount to reflect the utilitarian value of the pleas.
12. Sixthly, his Honour accepted that both offenders had demonstrated some contrition and remorse.
13. Lastly, his Honour found that both had prospects of rehabilitation but that the applicant's risk of reoffending was low, as opposed to the co-offender's risk of offending, which was assessed to be low to moderate.
14. His Honour correctly assessed the moral culpability of the applicant as only slightly less than that of the co-offender. His Honour was clearly alive to the differences and similarities between the applicant's case and that of the co-offender. He addressed each in turn. I do not consider that a justifiable sense of grievance arises. In all the circumstances, no greater disparity was warranted.

Orders

1. Accordingly, I propose the following orders: 1. Grant leave to appeal against sentence. 2. Dismiss the appeal.

Endnotes

1. Appeal Book (AB) 18.
2. AB165.
3. AB182.
4. AB182.
5. AB105.
6. AB117.
7. AB122.
8. AB129.
9. AB46.
10. AB48.
11. AB48.
12. AB50.
13. AB54.
14. Applicant's Written Submissions (AWS) [6].
15. AWS [8].
16. AWS [11].
17. AWS [16].
18. Respondent's Written Submissions (RWS) [25]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 December 2022