(vii) His role was the least influential of the five members of the syndicate (with whom his Honour dealt), being "largely receptive", that is, one of taking directions not amounting to involvement in the organisation or direction of the enterprise.
59 Subjectively his Honour noted that he had a history of recreational drug use and that he claimed to have joined the syndicate to furnish his drug habit. He also noted that this Offender had indicated that his arrest had led him to be motivated to undertake changes in his behaviour that would result in a more stable drug free lifestyle. He noted that the pre-sentence report had been "very positive"; and said that there was further supportive evidence from another brother, who was not involved in the syndicate's activities, which was "particularly persuasive", and which provided an insight into his decline into criminality following a drive-by shooting at his home which had left him "particularly traumatised" and which had led to "quite conspicuous changes in his behaviour". The evidence, his Honour said, additionally confirmed his current commitment to rehabilitation, as was evidenced by his return to his family, both in a physical sense and as a bread winner, by the fact that he was holding down night and day jobs, and by the fact that he was not using drugs.
60 In summary his Honour said of him:
"From the point of view from his personal history and in particular his history since his release from custody he has shown himself in a very convincing way a person who having fallen into a drug habit and ultimately into the supply of drugs as a consequence of circumstances over which he does not appear to have entirely had control, has made a very positive and promising commitment to total rehabilitation."
61 It is evident that, in sentencing David Nasr, his Honour took into account the fact that he had already been held in custody for four months, that he had demonstrated rehabilitation, in a more positive way while on bail than the other offenders who appeared for sentence, and that returning him to full time custody risked seriously undermining the process of his rehabilitation.
62 In allowing the Crown appeal this Court said:
"31 An inescapable consideration to emerge from the agreed facts and his Honour's findings in relation to the respondent is that over a significant period of time the respondent was actively engaged in a business which involved the serious and systematic sale of drugs for profit. He was aware of all facets of the operation. The fact that he did not have the opportunity or capacity or exert any control over the operation impacts upon his level of culpability by comparison with his co-offenders. It does not take his case out of that category in relation to which this Court has consistently said a custodial sentence is mandatory unless exceptional circumstances can be established. Exceptional circumstances were not established.
32 In factual situations of this kind this Court has consistently held that considerations of general deterrence and denunciation have to be emphasised in the sentencing process. Despite the positive progress on a subjective basis which the respondent has made towards successful rehabilitation, I am of the opinion that the sentences imposed by his Honour were manifestly inadequate. Although his Honour referred to it in his recitation of the facts, it also seems that his Honour failed to have regard to the fact that the respondent was on conditional liberty during the period when these offences occurred."
63 It is evident from the reasons of this Court that the sentences which it ultimately substituted in his case were at the lower end of the available range, and that the Court had taken into account not only the discretion reserved for Crown appeals, but also the lengthy delay between arrest and sentence, much of which was unexplained, as well as the demonstrated rehabilitation, and the harshness involved in resentencing an Offender to full time imprisonment in circumstances where there had been a three month period of uncertainty between sentence and the hearing of the appeal. Those circumstances do not apply for the present applicants, and they also assist to explain away any question of disparity.
64 Comparison of the sentences imposed with those passed on Elias also provides no assistance. He was found by his Honour Judge Nicholson to have not been involved before 5 May 2002, and thereafter only as a "runner" or "gopher" who received calls from interested buyers, collected drugs from other members of the operation, delivered them and returned with the proceeds of sale which he gave to the principals. His role was found to be less than that of Kipic and Culbert. His Honour noted that there was no evidence of him recruiting innocents into drug abuse, or of contributing to the design of the supply system, or of being the architect of the anti detection measures, or of having any role in the packing, cutting or production of the drugs. Subjectively his Honour found that he had been homeless and unemployed at the time of the offences and that he had been led into participating with the co offenders by reason of his use of drugs to cope with depression. He was found to have ceased the use of drugs while awaiting sentence, to have embarked in a positive way on his rehabilitation through TAFE courses, and to have been reconciled with his father who had provided him with a home and employment.
65 His sentence was reset, after a successful Crown appeal, which meant that the sentence imposed was at the lesser end of the available range. It took into account, inter alia, the fact that the appeal had the effect of returning him to custody after an unusually lengthy period of remand for 22 months, upsetting what could only be described as having been the very lenient sentences which his Honour had directed were to be served by way of home detention. In fact this Court at [35] described the sentences imposed at first instance as having been "extraordinarily lenient". In the absence of "exceptional circumstances" of the kind referred to in R v Clark NSWCCA 15 March 1990, and in combination with his Honour's failure to comply with the guidance given in R v Zamagias [2002] NSWCCA 17 and in R v Jurisic (1998) 45 NSWLR 209, in relation to home detention, there was found to have been appellable error.
66 Similar considerations apply in the case of Kipic, whose involvement in the ongoing supply offence concerned three sales made within a 24 to 36 hour period, in which her role had been that of driving the person who handed over the drugs. Her involvement in the supply offence was found to have concerned a series of small supplies on request to users, which were effected after she received phone calls and made solo deliveries, when Culbert was unavailable.
67 His Honour rejected the Crown submission that, together with Culbert and Saad Nasr, she had taken over the run and had been party to its continuation in the same fashion as that which had been conducted from the Ashfield premises of the Kairouz brothers. She was found not to have been involved in the design of the syndicate's operations, although she was found to have been actively engaged for reward.
68 Similarly to Elias, the sentence which was substituted on appeal is to be considered as having been at the lower end of the available range, and to have brought to an end after 22 months on remand, the earlier sentences which were to be served by way of home detention.
69 This Offender was found to have been introduced to the syndicate by Culbert with whom she has been in a relationship, to have come from a deprived, disruptive and dysfunctional family background, as well as to have been involved, in her late teens, in a violent and abusive relationship which led to depression and a nervous breakdown. Her involvement in the offences was found to have come about by "a confluence of factors including her drug use, her low sense of self esteem, her desire to impress Culbert, and his encouragement to her".
70 His Honour accepted that she had ceased the use of drugs after her arrest, had returned to gainful employment, had recognised the wrongfulness of her acts, had become caring and supportive of her younger brother, and had demonstrated good behaviour while on bail. These circumstances were found to be positive indicators of rehabilitation, albeit subject to some warning signs which his Honour identified, and which, in his view, called for a lengthy period of potential supervision in the community.
71 In the case of each of these offenders the Court of Criminal Appeal made it clear that the extent of its intervention was "qualified by a need to avoid a heavy handed upsetting of what [they] have thus far respectively achieved in connection with their rehabilitation, and to take into account "the length of time for which the shadow of possible imprisonment has hung over them; and to give fair credit for compliance to date with the orders made by Judge Nicholson."
72 It is always appropriate to take into account, for parity purposes, sentences imposed upon co offenders on appeal. However, where there are personal considerations present affecting the length of those sentences such as demonstrated substantial post offence rehabilitation, delay, or the harsh consequences of returning an offender who has been at large to prison, they are relevant in determining whether a justifiable sense of grievance could be entertained by another offender, who received a longer sentence and who did not share those factors.
73 This is in fact the case, for the reasons explained in relation to Kipic, Elias and also David Nasr. Apart from the other matters mentioned it eliminates any such sense of grievance in relation to the sentences which they ultimately receive after the Crown appeals.
74 The position in relation to Culbert is one of some importance. In relation to the ongoing supply offence, it is to be noted that it was confined to five discrete supplies between 14 May and 5 June 2002, and that his participation was as driver for Anthony Kairouz. The quantity of the drug involved was about 3.8 gms of 1.5% purity, the total value of which was $250.
75 The remaining counts spanned the period between 6 June and 19 August 2002, and between 14 May and 19 August 2002, and involved at least 5 gms of methylamphetamine and 1 Kg of cannabis. The quantity of cannabis found by police at his premises was 225 gms, that is, an amount less than the trafficable quantity. Plastic bags, scales and some Nokia phones and associated equipment were also found.
76 As a result, his role was found by his Honour Judge Nicholson to have been more substantial than that of Kipic and Elias, and to have included work which went beyond that of a "runner", such as weighing, packing and storing drugs. His premises were found to have been a place where Saad Nasr was able to collect drugs for on sale, and he was held to have been trafficking for reward. His criminality was accordingly serious.
77 Subjectively, he was found to have come from a close knit and supportive family, and although unemployed at the time of the offences, his Honour noted that he had earlier performed well while studying as an apprentice, and that he had been in regular employment since being granted bail. His involvement was not found to have been attributable to any problem with drug abuse, but rather to an inability or refusal to acknowledge the wrong doing associated with the supply of prohibited substances.
78 His Honour was unimpressed with his attempts to minimise his involvement. His failure to accept the full extent of his dealing was regarded as a matter which denied to him full credit for his contrition or for the assessment of his rehabilitation prospects. His failure to understand the harm caused by the use of drugs was similarly regarded as a matter demonstrating an absence of insight into this area of criminality. His psychological profile was also found to give rise to concern, in so far as it suggested a lack of preparedness to be frank, a "high tolerance to socially non-conforming attitudes, values and behaviours" and in so far as it revealed significant scores on the drug dependence scales, as well as a self focussed personality and immaturity in thinking.
79 Otherwise it was accepted that he had been of good behaviour while on bail during the period of 22 months on remand, and had not been using drugs. Generally, however, his Honour found that while Culbert had made some progress towards rehabilitation it was "not as impressive" as that of Kipic and Elias.
80 The differences between the subjective circumstances of Elias and Kipic on the one hand and Culbert on the other, and the findings as to their respective prospects of rehabilitation were no doubt behind the decision of his Honour to order that Elias' and Kipic's sentences be served by way of home detention, and to direct that the Culbert sentences be served by way of full time custody. It was almost certainly that difference which motivated the Crown appeal in the case of those two offenders, but not in the case of Culbert.
81 The sentences imposed upon Culbert, were surprisingly lenient and were, in my view, outside the lowest level of a permissible sentencing range, but I am not however satisfied that they give rise to a legitimate sense of grievance, for the following reasons: