Yacoub v R

Background facts

1. Strike Force Porkfish was established to investigate the commercial supply of methylamphetamine and MDMA. This was a controlled operation using an undercover police officer, multiple telephone intercepts, physical surveillance and forensic analysis.
2. The applicant was a disqualified driver and used a co-offender, Javier Caroca as his driver for the distribution of the drugs. Mr Caroca was also sentenced by Judge Marien.
3. Another co-accused, Christopher Agoris, was, for the purpose of the sentence hearing, agreed to be the upline supplier to the applicant. He provided the applicant with commercial quantities of methylamphetamine and large commercial quantities of MDMA which the applicant then onsold. The applicant travelled from Sydney to the home of Mr Agoris in the Shellharbour area to obtain the drugs. There are numerous lawfully intercepted conversations between the applicant and Mr Agoris as well as physical surveillance which provided evidence of the involvement of Mr Agoris. Further, Mr Agoris' DNA was found on some drugs which were sold to the undercover police officer.
4. Intercepted telephone conversations, listening device recordings and physical surveillance identified a large number of transactions where the applicant supplied methylamphetamine to various persons between 4 December 2015 and 25 February 2016. Many of these supplies were in amounts that could be regarded as street level supplies. However, a number of them involved individual supplies of approximately one ounce of the drug and, in relation to one transaction, the supply of four ounces.
5. On 28 February 2016 a car in which the applicant and his partner, the co-accused Jasmine McQuillan, were travelling, was stopped by the police. The vehicle was searched and police located 109.61 grams of methylamphetamine and a small set of silver scales.
6. On 2, 9, 16 and 31 March 2016 the undercover police officer purchased on each occasion one ounce of methylamphetamine and a number of MDMA tablets in multiples of 1000 from the applicant.
7. On 7 April 2016 Mr Agoris supplied the applicant with 55.60 grams of methylamphetamine and 383.40 grams of MDMA (1500 tablets) which the applicant then onsold to the undercover police officer. Other police arrived at the scene. They located 111.30 grams of methylamphetamine concealed under the tray of the motor vehicle in which the applicant was seated. At that time the applicant was arrested and charged with the present offences.
8. Later that day police executed a search warrant at the home of the applicant and Ms McQuillan. A number of items were seized, being stolen/fraudulent cards and identification documents including photocopies of stolen/fraudulent cards and identification documents as well as mobile phones, SIM cards, computers, laptops, and clothing identified during surveillance of the applicant. A search warrant was also executed at a Department of Housing address occupied by the applicant. Police located a small quantity of cannabis and a number of items of clothing that had been worn by the applicant in surveillance photographs.
9. As mentioned, Judge Marian sentenced the co-offender Caroca at the same time as he sentenced the applicant. The co-offender McQuillan pleaded not guilty and was to stand trial at a later date in the District Court. For reasons not made clear, the co-offender Agoris pleaded guilty and was ultimately sentenced by Judge Haesler SC in the District Court at Wollongong on 24 May 2018, some six months after the applicant was sentenced by Judge Marien. Mr Agoris was only sentenced in respect of the large commercial supply of the MDMA, although the following two offences were taken into account on a Form 1: (a) Supply a prohibited drug, being 14 grams of cocaine; (b) Supply a prohibited drug, being 220.38 grams of methylamphetamine. Both of those charges were at the level of indictable supply.
10. Judge Haesler sentenced Mr Agoris to a term of imprisonment of seven years and nine months commencing 7 April 2016 and expiring 6 January 2024 with a non-parole period of five years expiring 6 April 2021. In doing so, his Honour provided a discount of 20% for the guilty plea and 20% for assistance provided by Mr Agoris. Judge Haesler noted that the notional starting point for the sentence was 13 years' imprisonment.

Subjective matters

1. The applicant gave evidence at the sentence hearing. In addition, Judge Marien had a Pre-sentence report, a report from the clinical psychologist, Ms Anita Duffy, various medical reports concerning the applicant and his mother, and a number of references.
2. In his evidence the applicant said that he met Mr Agoris whilst he was serving a prison sentence in 2015. After his release in August 2015 he was in need of money. He went to see Mr Agoris who offered him a job selling drugs.
3. Mr Agoris would give him quantities of methylamphetamine ranging from one to four ounces. Mr Agoris wanted $4,800 from the applicant for each ounce with the applicant keeping the difference after he onsold it. The applicant said he made $50 for each gram and $500 for each ounce that he sold. Sometimes when selling larger quantities he would sell on credit, and there were occasions when he was not paid by the purchaser.
4. The applicant said that in 2013 or 2014 he stole $10,000 from his parents' bank account, and also stole jewellery. He did that for the purpose of supporting a drug dependency that he had.
5. The applicant said his parents travelled to Egypt in November 2015 to sell an apartment there to obtain funds for surgery for his mother. His mother suffered a stroke on the aeroplane on their way back to Australia in March 2016. She was treated at a hospital in Sri Lanka. She needed a nurse to accompany her back to Australia. The applicant said that on 4 April 2016 he paid $7,040 for his parents' airfares home.
6. Ms Duffy carried out psychometric testing of the applicant. That testing showed that he was above the diagnostic threshold for ADHD. She said there were suggestions that he experienced depressive symptoms and its concomitants of low self-worth, feelings of inadequacy and poor resources to cope with adversity since his youth.
7. He told Ms Duffy that he began drinking during his teenage years and described binge drinking at weekends. Although he experimented with methylamphetamine in 2000 he did not smoke it regularly until 2005. He became dependent on it. He said his heaviest usage was from 2009 to 2015 when he went to gaol for drug related charges. He would cease drug use when in custody but would relapse after release. He insisted that he was not using drugs at the time of the present offences.
8. Ms Duffy thought the major risk factors for recidivism were his history of crime and imprisonment, and his adult ADHD which had been found to increase impulsivity and reduce problem solving ability, together with co-morbid problems such as substance abuse, anxiety disorder and major depressive episode.
9. He told both the author of the Pre-sentence report and Ms Duffy that after completing his Higher School Certificate he worked in a variety of jobs. The Pre-sentence report records that he sustained an injury to his hand when working as a courier, and it was at that time that he ceased work and started using drugs. He told Ms Duffy that, having been unemployed for a period of time, he commenced work at a door manufacturing company where he was introduced to "ice" by his colleagues. He then developed a habit which saw him going to gaol for 12 months in 2005 and 2006.
10. The applicant was aged 41 at the time of the offending. His criminal record commenced in May 1990 when he was 15 years old. This record included personal violence, property offences, driving offences, fraud offences, and drug offences, both possession and supply. Of some relevance for the present offending, the applicant had been imprisoned for 2 years from 2010 to 2012 for two counts of dealing with identity information with intent to commit an indictable offence with some associated dishonesty offences.
11. He had been imprisoned for supplying a prohibited drug from 11 November 2014 to 10 June 2015. While serving that sentence he was imprisoned for 7 offences involving entering dwelling houses and stealing as well as possessing false documents. For four of those offences, the non-parole period expired on 7 August 2015 with the balance of term concluding on 7 April 2016. For three of the offences, the non-parole period expired on 11 August 2015 with the balance of term concluding on 10 March 2016. It can be seen, therefore, that the applicant was on parole throughout the present offending.

Ground 1: The learned sentencing Judge erred in the assessment of the objective seriousness of the offence of supply methylamphetamine by an erroneous understanding of the purity of the entirety of the drugs.

1. In his Remarks on Sentence, Judge Marien said: In relation to the supplies of prohibited drugs to the undercover officer on 2 March, 9 March and 16 March 2016 I note that the purity of the methylamphetamine supplied ranges between 75% and 78% which is clearly a high purity. However, the MDA [sic] supplied on those dates were [sic] of relatively low purity ranging between 19.5% and 20%.
2. When his Honour came to assess the objective seriousness of the offences he said this: In assessing the objective seriousness of an offence of supply prohibited drug it is relevant to take into account the quantity and purity of the drug concerned. As I have said, in relation to the second charge (sequence 2) relating to the drug MDMA that charge relates to a quantity of MDMA in excess of four times the large commercial quantity. However, the purity of the drug was relatively low. However, with respect to the first charge (sequence 1) relating to the methylamphetamine the drug supplied in relation to that offence was of a relatively high purity. Where a drug is of a high purity usually that makes the offence more objectively serious because the drug has considerable destructive potential and also the drug can be cut to produce a larger quantity of the drug. However, the quantity and purity of drugs are not the sole or principal determinant for sentencing in relation to drug supply offences. More important is the role of the offender and the level of his or her participation in the offence (see Melikian v R [2008] NSWCCA 156 para 42). For supply offences an offender's role is not to be determined by the use of shorthand labels such as a courier, a warehouseman etc). Rather, the offender's role is to be assessed by assessing what is is [sic] his or her involvement and what steps were taken to effect supply. General description of types of participation must not obscure the assessment of what the offender actually did (see R v Olbrich (1999) 199 CLR 270 at para 19). … Taking into account the quantity of the drug involved and its purity and the role played by the offender and the other surrounding objective circumstances I would assess the objective seriousness of the first charge (sequence 1) as falling between the low and mid-range of objective seriousness for an offence of that kind.
3. The applicant submitted that the only evidence in support of the purity of the methylamphetamine was what was contained in the Agreed Facts, and that referred only to the three supplies on 2, 9 and 16 March 2016. Those supplies represented approximately 10% of the total amount of the supply in respect of which the applicant was charged. The applicant further submitted that the amount of street level supplies between 4 December 2015 and 25 February 2016 totalled almost 391 grams which was 50% of the total amount the subject of the offence. The applicant submitted that, being street level supplies, it is unlikely that those amounts of methylamphetamine would have been of high purity.
4. There are a number of answers to these submissions. First, self-evidently, the purity of the individual supplies not made to undercover operatives would not be able to be determined unless it was seized immediately after the sale. His Honour was careful to refer only to the purity of the three supplies.
5. Secondly, the table in the Agreed Facts setting out the individual supplies shows that on seven occasions single supplies were made of approximately one ounce (28.34g) of methylamphetamine, and on one occasion four ounces in one supply. Those supplies cannot be regarded as street level supplies. They are, in amount, equivalent supplies to those made to the undercover officer. Even if it can be assumed that the small supplies had been made less pure by being cut with other agents, the assumption cannot so easily be made for the large supplies. The applicant submitted that it could be inferred that the street level supplies were of a lower purity, but the only evidence of purity was what was analysed from the sales to the undercover operative.
6. Thirdly, it is clear from the passages set out in his Honour's Remarks that his Honour did not confine his assessment of objective seriousness to the issue of the purity of the drugs. He made express reference to the fact that what was more important in assessing objective seriousness was the role of the offender and the level of his participation in the offence. His Honour conclusion in that regard was that he assessed the objective seriousness: [t]aking into account the quantity of the drug involved and its purity and the role played by the offender and the other surrounding objective circumstances… . That role was described by the sentencing judge as, [a]t least that of a middle man in a reasonably sophisticated and organised drug supply network.
7. I would reject this ground.

Ground 2: The learned sentencing Judge erred in the assessment of the objective seriousness of the offence of supply MDMA.

1. In his Remarks on Sentence concerning the objective seriousness of the second count, Judge Marien said this: However, with respect to the second charge (sequence 2) I assess the objective seriousness of that offence as falling in the mid-range of objective seriousness. As I have said that offence involved a quantity of MDMA in excess of four times the large commercial quantity. And as I have indicated I am satisfied that the offender played the role of at least being a middle man in this drug supply enterprise.
2. Earlier in his Remarks his Honour had noted that the MDMA supplied to the undercover officer was of relatively low purity ranging between 19.5% and 20%.
3. The applicant submitted that when the remarks concerning objective seriousness for the methylamphetamine were compared to what was said concerning the supply of MDMA, and the different assessments of objective seriousness for each offence compared, it was unlikely that the purity of the drugs was a relevant consideration in determining the elevation of the objective seriousness for the MDMA offence. Rather, the applicant submitted, the sentencing judge's basis for the elevation of the objective seriousness for the MDMA offence to mid-range must have related to the amount of the drugs supplied.
4. The applicant submitted that while the amount of the drugs supplied was a relevant consideration in determining objective seriousness, it was not the only consideration. The role of the offender and the level of criminality involved was more important in determining a sentence than the quantity of drugs involved. The applicant pointed to what was said in Markarian v R (2005) 228 CLR 357 where the High Court said (at [33]): A serious fallacy in his Honour's reasoning is that it assumes that any case involving more than 250 grams of heroin is likely to be a worse case than any case involving only 250 grams or less. That cannot be so in the virtually absolute terms in which his Honour puts it. Little imagination is required to envisage a case involving a relatively small quantity of heroin, as being of very great seriousness, for example, supply to create an addiction in an infant.
5. The applicant submitted that the supply of MDMA was on each occasion part of a controlled supply where the applicant was also supplying methylamphetamine. They were the only occasions when the applicant supplied MDMA. The MDMA was of low purity. The applicant was described as a middleman and not a principal. The applicant submitted that the offence has no upper limit, and there are significantly worse cases that come before the courts.
6. The starting point is that the characterisation of objective seriousness is quintessentially a matter for the sentencing judge, and is a determination that this Court would be slow to disturb: Mulato v R [2006] NSWCCA 282 at [37], [46]-[47]; Ali v R [2010] NSWCCA 35 at [33]. In Ali, the Court went on to say at [34] that, the assessment of objective criminality, when a standard non-parole period is provided, should be approached intuitively based upon the general experience of the courts in sentencing for the particular offence at issue.
7. When his Honour has taken into account the amount of the drugs supplied, its purity, and the applicant's role in the drug distribution enterprise, it cannot be said that any error in the nature of a House v The King error is demonstrated. The applicant's main submission appears to be that, because the purity of the methylamphetamine was found to be high, the amount was not significantly more than the threshold for large commercial quantity, and the applicant's role remained the same, his Honour could not have properly reached the conclusion he did in respect of the objective seriousness of the supply of the MDMA, when he assessed the objective seriousness of the supply of the methylamphetamine as between the low and mid-range.
8. Two things can be said in response to that. First, the fact that his Honour may have made a lenient assessment in relation to the objective seriousness of one count (although that was not conceded by the applicant) does not demonstrate that error has been made because the assessment of the objective seriousness of another count is at a higher level.
9. Secondly, the amount of the drug supplied is a significant but not determinative factor in the assessment of objective seriousness: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [67]-[70]; Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318 at [51]-[52]. The applicant's submission amounts in substance to a complaint about the weight his Honour has accorded to the quantity of the drug in the assessment of objective seriousness. The weight to be given to a factor is a matter for the sentencing judge and is not a matter for this Court's consideration. Error is not demonstrated by challenges to the weight given to any particular factor.
10. The error in Makarian was a different type of error from the one raised by the applicant in the present case. As the extract set out above shows, the sentencing judge in that case assumed a direct connection between the quantity of the drug and the level of objective seriousness.
11. I would reject this ground of appeal.

Ground 3. The learned sentencing Judge made erroneous findings in relation to the applicant's motivation for the offences and his prospects of rehabilitation.

Ground 4. The applicant was denied procedural fairness with respect to the findings of the learned sentencing Judge concerning the applicant's motivation for the offences and his prospects of rehabilitation.

1. His Honour discussed matters set out in both the Pre-sentence report and the report from the psychologist, Ms Duffy. His Honour identified a number of matters where he said there appeared to be inconsistency between what the applicant had told the community corrections officer who prepared the Pre-sentence report and what he told Ms Duffy. His Honour then went on to say: In the light of those inconsistencies I am unable to make a finding as to the motivation of the offender to commit the offences other than to simply derive some financial profit. As to what precisely he was going to do with the money or had done with the money that he made from selling drugs I am unable to determine. But in any event neither of the explanations given by the offender to Ms Duffy and to the Community Corrections officer as to why he committed the offences and what he had done or proposed to do with the profits he made from selling drugs, reduce his culpability in the commission of the offences, whether to pay for his mother's medical expenses and travel or to repay money he had stolen from his parents. There is nothing in the evidence before me to suggest that the offender was incapable of obtaining money by legitimate means for those purposes. Certainly on the evidence before me I am unable to make a finding that the offender became involved in the commission of these offences because of any drug addiction and need to feed that addiction. … I have to say that it is difficult on all the evidence before me to make a determination as to the offender's prospects of rehabilitation. As I have said he gave two different accounts as to how he became involved in committing these offences to Ms Duffy and the Community Corrections officer. It is therefore unclear whether any drug addiction played a role in his offending and accordingly I am unable to make a determination as to whether or not he has favourable prospects of rehabilitation at this time.
2. The applicant submitted that there were no significant discrepancies or major inconsistencies as the sentencing judge found. The applicant submitted that his Honour made adverse findings about his motivation for the offences and his prospects of rehabilitation, and that those findings adversely affected the overall sentence. The applicant submitted that what his Honour described as ambiguities were not such as could form the basis for adverse findings. The applicant submitted that when giving evidence the applicant was not challenged in relation to the inconsistencies in the reports. The sentencing judge did not invite the applicant's legal representative to make submissions in relation to those inconsistencies, and in that way the applicant was denied procedural fairness.
3. As can be seen, his Honour said that the only finding he could make was that the offender committed the offences to derive some financial profit.
4. The applicant's own evidence was that he became involved because he needed the money and not because he was addicted to drugs and needed to support his habit. He denied that he was using drugs after he came out of prison in 2015 and commenced the arrangement with Mr Agoris. The need for money was said by his counsel at the sentence hearing to be for repaying his parents the money he stole from them, to pay Mr Agoris for the drugs seized by the police, and to pay for his parents to come home from overseas.
5. The applicant did not in fact give evidence that he was selling the drugs to pay his parents back, only that he was doing it to help pay for their airfares to return to Australia. He did, however, tell the Community Services officer that he was selling drugs to repay his parents the money he stole from them. He told Ms Duffy that he was selling the drugs to help pay for their airfares back to Australia, but he also told her that he was doing it to help support his partner, pay her rent and for her children's education.
6. He gave evidence that he also needed the money to pay to Mr Agoris for the drugs he had supplied. In some cases the applicant had supplied the drugs on credit and had not been paid. In another case, the police seized some of the drugs from the applicant's car, but Mr Agoris was still insisting on being paid by the applicant. However, in my opinion, this could only have been a subsequent motive, after he had been selling for Mr Agoris in the first place. It was not his reason for becoming involved in the first place.
7. It cannot be said, therefore, that his Honour's conclusion that he committed the offences to derive some financial profit was not open to him. Nor can his Honour's inability to make any other finding as to the motivation of his offending be fairly criticised. To the extent that the applicant desired a positive finding in relation to prospects of rehabilitation and risk of reoffending, the onus was on him to establish those matters. On the face of the reports, there were inconsistencies concerning the motive for his offending.
8. The evidence left a number of matters unclear, including; when, after his release from prison in August 2015, he started selling drugs (the first recorded sale is 4 December 2015); when his parents left for overseas and whether he had repaid any money to them before they left (the airfares home were only paid on 4 April 2016); when it was in 2015 that he ceased using drugs (before he went into custody in April 2015, by the time he came out of custody in August 2015, or some time thereafter?); what the status of his relationship was with his partner at the time he was sentenced, a matter that Ms Duffy thought was relevant to his rehabilitation and risk of reoffending; and whether he had dealt with his drug addiction. In that regard he told Ms Duffy that he had completed an EQUIPS course whilst on parole, but he told the community corrections officer that he had "yet to address his illicit drug dependency".
9. It was for the applicant to provide the evidence to explain those inconsistencies. The reports were put forward by him. The finding made by the sentencing judge, and the determination that other findings could not be made were open on the evidence and do not amount to error.
10. There was no procedural unfairness in the way the sentencing judge dealt with the reports. As Basten JA said (Harrison J agreeing) in Chong v R [2017] NSWCCA 185 at [5], subsequently approved in Newman v R [2018] NSWCCA 208 at [26]: Procedural unfairness involves the denial to an offender of an opportunity to deal with material adverse to his or her interests. Justifiable claims of unfairness on sentencing where the offender has not given evidence can arise only in limited circumstances.
11. In the present matter, the applicant gave evidence but made no attempt to clarify the inconsistencies in the reports put forward by him. Indeed, the evidence he gave about his motivation for offending concerning his parents only served to cloud the matter further. He described Ms McQuillan as his "ex-partner" to the community corrections officer. Although he had been living with her at the time of his arrest, he told the community corrections officer that after he was released from prison he would live with his parents. On the other hand, he answered questions to his own counsel saying that he was still in a relationship with her, without any clarification of that inconsistency.
12. The applicant was denied no opportunity to deal with these matters that needed clarification. This was not a case of the sentencing judge in his sentencing remarks departing from a view expressed during submissions without any warning. In Toole, Kurt v R; Toole, Joshua v R, R S Hulme J (with whom Basten JA and Button J agreed) said at [43]-[45]: [43] …Not uncommonly a judge will have a number of cases before him, hopefully some or all of which will be disposed of during the day. The circumstances of each may be simple or complex. The Crown will often hand up written submissions which may deal with a few or, on the other hand, a myriad of issues and which may or may not contain concessions. Generally defence counsel, but not the judge, will have had those submissions in advance. The Crown may make concessions in the course of oral submissions. [44] For a judge, who may wish to reserve because of the difficulties of a particular case, or so that he or she can deal with other cases in their list, in those circumstances to be obliged to read or listen to those submissions with a fine tooth comb, so that he or she can comprehensively identify any concessions and bring any with which he or she does or may disagree, to the attention of defence counsel, is to place a burden on the judge that the system cannot, and in my view should not, have to bear. The judge is there to read or listen to what is put before him or her and to decide, in light of the relevant statutory provisions and other law, the sentence appropriate to impose. The representatives of the parties have the obligation to raise matters that argue in favour of their respective clients, they can fairly be assumed to know them (or they should not be practising in the jurisdiction), and in sentencing proceedings I do not believe "fair procedure requires ... that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties or their representatives". [45] I do accept that if a judge gives a positive indication that he or she is disposed to adopt a particular argument or approach, and a party or legal representative in reliance on that indication, also adopts a particular course, then the judge will, because of his or her or own conduct, come under an obligation to warn of the possibility of any change of view. To maintain silence when the judge's view has changed is to mislead and is in character no different from representations that are or become misleading in other fields of activity. …
13. It is difficult, in any event, to conclude that these grounds, even if made out, made any difference to the sentence imposed. The sentencing judge made clear that whatever the applicant's motive was in selling the drugs, his moral culpability for doing so was not thereby reduced. The fact that he may have used some of the profits he made to pay airfares and health costs for his parents cannot be regarded as an altruistic motive when he had stolen from them in the first place, with the result that, seemingly, they needed to travel to Egypt to sell an apartment to raise money by that means. In any event, the applicant was selling the drugs long before the need arose to pay his parents' airfares. That need did not arise until March 2016. He was selling drugs again at least as early as 4 December 2015 as the Agreed Facts establish.
14. I would reject these grounds.

Ground 6: The sentence imposed upon the applicant is manifestly excessive.

1. The applicant submitted that both the aggregate sentence imposed by his Honour and the indicative sentences were manifestly excessive. The applicant also submits that the manner in which the sentences were accumulated points to error in the aggregate sentence.
2. The principles with respect to whether a sentence is manifestly excessive are well-known. They have recently been set out by R A Hulme J in Vaiusu v R [2017] NSWCCA 71 at [28] and by Payne JA in Ngati v R [2018] NSWCCA 32 at [34]. It is not necessary to reproduce those principles, but I have had regard to them in what follows.
3. Although the aggregate sentence imposed might be thought to be towards the upper end of the range of appropriate sentences for the offending, applying the appropriate principles I do not consider that the sentence demonstrates manifest excess. Regard must of course be had to the maximum sentence which in each case was life imprisonment, and to the standard non-parole period which in each case was 15 years' imprisonment.
4. As the sentencing judge appropriately noted, the amount of MDMA supplied was more than four times the threshold for the large commercial quantity. The supply of the methylamphetamine involved 43 discrete transactions, many of which were at the level of street supply but a number of which (as already noted) were for considerably larger amounts. Further, when the applicant's vehicle was stopped and searched on 28 February 2016, 109.61 grams of methylamphetamine was found together with a set of silver scales. Although he was not arrested, that did not serve as any caution on the applicant continuing to supply methylamphetamine, as was demonstrated by the controlled purchases in March and April 2016.
5. The sentencing judge correctly found that the applicant's role was that of a middle man.
6. The first offence on the Form 1 was a serious example of that sort of offence, not only by what was found on the execution of the search warrant on 7 April 2016 but by the numerous telephone calls that were intercepted between 9 December 2015 and 9 January 2016. That offence was of some significance also by reason of the applicant's criminal history which involved a large number of offences of dishonesty including earlier offences for dealing with identity information for which the applicant had been sentenced to a period of imprisonment. In addition, the applicant had a number of drug offences on his record including a supply offence committed as recently as October 2014 and for which offence he served a period of imprisonment concluding 10 June 2015. The criminal history itself was an aggravating factor.
7. Finally, the applicant was on parole throughout the entire time the present offences were committed.
8. I would reject this ground of appeal.

Ground 5: The applicant has a justifiable sense of grievance as a result of the indicative sentence that would have been imposed had a separate sentence been passed with respect to the supply of the large commercial quantity of MDMA, and the sentence imposed in relation to that same offence upon the co-offender, Christos Agoris.

1. As noted earlier, Mr Agoris was sentenced by Judge Haesler in respect of the supply of the large commercial quantity of MDMA. His Honour took into account the supply of 14 grams of cocaine and 220.38 grams of methylamphetamine, both at the level of indictable supply. The supply of the methylamphetamine related to the on-supply of that amount of the drug by the applicant. Judge Haesler's sentence of seven years and nine months with a non-parole period of five years, involving a combined discount of 40% for the guilty plea and assistance, meant that his Honour's notional starting point was 13 years' imprisonment.
2. Judge Marien specified a nine year' indicative sentence for that charge with a five year non-parole period. There were no matters taken into account on a Form 1 in respect of that offence. The notional starting point for that indicative sentence was 15 years' imprisonment. The notional starting point for the aggregate sentence was 20 years imprisonment. There was an overall discount of 40% for the early plea and assistance.
3. The applicant submitted that the significant matters touching disparity between the sentences were these: (a) The role of Mr Agoris was more objectively serious as he was higher up in the hierarchy of supply. The applicant was described as a middle man whereas Mr Agoris was described as the up-line supplier; (b) The applicant received a cumulative sentence of five years in relation to the supply of methylamphetamine. That was one of the offences on Mr Agoris' Form 1; c. Although Mr Agoris alleged he was pressured to supply the drugs by the applicant, the applicant's case was that he was invited to supply them by Mr Agoris. No adverse finding was made against the applicant in relation to that issue. d. Both offenders were found to have supplied for financial motives; and e. Both offenders had lengthy criminal records, and were on parole at the time of the offences.
4. The Crown submitted that the Court would be cautious in finding a justifiable sense of grievance where the sentencing judge is fully aware of the co-offender's circumstances, and states reasons for distinguishing the two. The Crown submitted that Judge Haesler was in that position and gave reasons for departure from Judge Marien's sentence.
5. The Crown accepted that the same total discount was given to the two offenders, that their subjective cases, their motives in offending and their criminal history were similar. The Crown submitted that the real point of distinction was the respective assessments of objective seriousness for the common offence of the supply of the MDMA. The Crown submitted that the different evidence before Judge Haesler concerning Mr Agoris' role meant that the disparity between the two sentences is justified.
6. In Fenech v R [2018] NSWCCA 160 R A Hulme J (Beazley P and Button J agreeing) said at [29]-[33]: [29] A succinct statement of the parity principle may be drawn from the joint judgment of French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]: "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' [Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 at 610 per Mason J]. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner [Leeth v The Commonwealth (1992) 174 CLR 455; [1992] HCA 29 at 470 per Mason CJ, Dawson and McHugh JJ]. 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 [Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 301 per Dawson and Gaudron JJ]. [30] There has been some discussion in this Court in recent times about whether the epithets, "gross, marked or glaring" should be used in the application of the parity principle; see for example Cameron v R [2017] NSWCCA 229 at [86]-[90] (Hamill J); and Miles v R [2017] NSWCCA 266 at [9] (Leeming JA), [36]-[40] (Rothman J), and [67] (Hamill J). The better course in my respectful view is to confine discussion of the principle to the terms used in judgments of the High Court. There, the expressions, "marked disparity" or "marked and unjustified disparity" have been used in the majority judgment in Green v The Queen; Quinn v The Queen; see similarly Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 per Gibbs CJ at 610, Mason J at 611, and Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 per Dawson and Gaudron JJ at 301. [31] In Lowe v The Queen, Dawson J also used the expression, "manifestly excessive" in the following context (at 623-624): "The view has been expressed in England that a court should not interfere unless the disparity is gross or glaring and the circumstances are 'most exceptional'; see R v Stroud (1977) 65 Cr App R 150 at 153-154; R v Potter [1977] Crim LR 112 at 113. The decisions in this country do not appear to be quite as restrictive as this but on any view the interference of a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice: see Pecora v The Queen [1980] VR 499; R v Tisalandis [1982] 2 NSWLR 430." [32] It is well known that the description "manifestly excessive" signifies something that is "unreasonable or plainly unjust": Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. [33] In Postiglione v The Queen (at 302), Dawson and Gaudron JJ also spoke in terms of there being "due proportion" between sentences when regard is had to the "different circumstances of the co-offenders in question and their different degrees of criminality".
7. In my opinion, when the two indictable supply offences are taken into account in respect of Mr Agoris' sentence, the difference in the notional starting point between the two sentences imposed was reasonably significant. The disparity becomes even more significant when the overall aggregate sentence is regarded, because the indictable supply of methylamphetamine in Mr Agoris's case was almost one third of the amount for which the applicant was sentenced. The point was further emphasised by Judge Haesler who, somewhat inappropriately, said this: I have carefully considered Judge Marien's Remarks. I imply no criticism of his Honour. Judges are given considerable discretion. But it seems to me that the sentence imposed on Mr Yacoub was very severe.
8. His Honour went on to mention two ways that the sentence had been moderated by Judge Marien; first, by the significant finding of special circumstances that reduced the ratio to 58.33%; secondly, by what Judge Haesler described as the very generous reduction for assistance. That reduction was in fact 15% against Judge Haesler's reduction of 20% for Mr Agoris' assistance.
9. However, the first of those matters has no relevance to the parity point in the present case. Even if it is thought to be relevant to parity generally, which I doubt, it does not result in any adjustment to the head sentence. The second of those matters only highlights the disparity between the sentences, because each offender received a combined discount of 40% for plea and assistance.
10. Another factor which had the effect of increasing the disparity in the sentence was evidence given by Mr Agoris to Judge Haesler that he was pressured by the applicant to supply him with drugs when he, Mr Agoris, did not wish to do anything that would cause his return to gaol. On the other hand, the applicant's evidence before Judge Marien was that he and Mr Agoris arranged to meet when they got out of gaol so that Mr Agoris could help the applicant out with some money. When they met Mr Agoris did not have money to give to him. Rather, he offered to the applicant that he should sell drugs on Mr Agoris' behalf. The applicant declined at first but eventually accepted the offer.
11. Despite the differences in the accounts, what is clear is that Mr Agoris was the applicant's up-line supplier, a matter of some significance in a comparison of roles. That is highlighted by the evidence that Mr Agoris was insisting that the applicant pay him the money for the drugs seized by the police. That was an indication of Mr Agoris' more senior role in the drug enterprise.
12. As the very useful table prepared by the Crown shows, there was little to differentiate Mr Agoris and the applicant in terms of their ages, their criminal history (the applicant had more offences of lesser seriousness whereas Mr Agoris was given a lengthy sentence for drug manufacture), their prospects of rehabilitation and likely reoffending, and the fact that the present offences were committed while each was on parole. As far as subjective matters went, Mr Agoris, unlike the applicant, did not have any diagnosable mental health or drug issues to explain his involvement in the drug milieu. Contrary to Judge Haesler's assessment, it was not the case that "both men had not dissimilar backgrounds". The differences are made clear in the reports of Ms Duffy for the applicant and Mr Borenstien for Mr Agoris.
13. The sentence imposed by Judge Haesler has had the effect that, whether a comparison is made between his Honour's sentence and the indicative sentence for count 2 only in respect of the applicant, or between Judge Haesler's sentence and the aggregate sentence imposed on the applicant, the applicant has a justifiable sense of grievance. An adjustment to the applicant's sentence would not be made if Judge Haesler's sentence is regarded as unreasonably lenient and is below what is an appropriate sentence for the offence taking all the circumstances into account. I do not consider that it is.
14. It is necessary, therefore, to resentence the applicant.

Resentence

1. I have regard to the factual findings made by Judge Marien. I would not differ from those findings. His Honour was well justified in his conclusions about the motive for the offending, the applicant's role in the drug supply enterprise and his Honour's inability to make a determination about whether he has favourable prospects of rehabilitation particularly because of the contradictory evidence about whether the applicant had undergone any treatment for his drug addiction. On the other hand, an affidavit provided to the Court in the event of resentencing provides some early indication of remorse and early steps pointing towards rehabilitation.
2. I would not differ from the sentencing judge in his assessment of the objective seriousness of the offending. Both the applicant's criminal record and the fact that he was on parole at the time of the present offending are aggravating factors. I note that he is on protection in custody as a result of assistance provided and that such protection involves him being confined to his cell for long periods each day.
3. I note the other subjective matters set out in the report of Ms Duffy and, to a lesser extent, in the Pre-sentence report.
4. It is appropriate to impose an aggregate sentence. There must be some accumulation because the supply of the methylamphetamine was carried out, largely, in individual transactions over a period of some months separately from the supply of the MDMA.
5. I propose an aggregate sentence of ten years imprisonment commencing 7 April 2016 and expiring 6 April 2026 with a non-parole period of five years nine months expiring 6 January 2022. That aggregate sentence involves a 25% discount for an early plea and 15% for assistance. I find special circumstances because the applicant will be serving his sentence in protection and because he will need an extended period of supervision on parole to assist him assimilating into the community. The indicative sentences are as follows: Count 1: (taking into account the matters on the Form 1) Imprisonment for five years with a non-parole period of three years. Count 2: A period of imprisonment of seven years with a non-parole period of four years.

Conclusion

1. I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed by Acting Judge Marien SC in the District Court on 3 November 2017. 4. In lieu, sentence the appellant to an aggregate sentence of ten years imprisonment commencing 7 April 2016 and expiring 6 April 2026 with a non-parole period of five years nine months expiring 6 January 2022.

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