Application by AMZ pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001

[2017] NSWSC 432

Supreme Court

New South Wales

Medium Neutral Citation:	Application by AMZ pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2017] NSWSC 432
Hearing dates:	On the papers
Decision date:	19 April 2017
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Whole case referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence under Criminal Appeal Act 1912 (NSW)
Catchwords:	CRIMINAL LAW – sentencing – whether appropriate disparity of sentences between co-offenders
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Pt 7 Div 3, s 79 Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2) Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Poisons and Therapeutic Goods Act 1966 (NSW)
Cases Cited:	AMZ v R [2013] NSWCCA 6 Buttrose v Attorney General of New South Wales [2015] NSWCA 221 JM v R [2014] NSWCCA 297 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Plaisted v R [2015] NSWCCA 287 Prelipceanu v R [2016] NSWCCA 280 R v Clarke [2013] NSWCCA 260 Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; 85 NSWLR 783 Yazdani v R [2016] NSWCCA 194
Category:	Principal judgment
Parties:	AMZ (Applicant)
Representation:	Counsel: P Lange (Applicant) D Kell SC and R Ranken (Attorney General)   Solicitors: Trimmer Criminal Defence Lawyers Crown Solicitor’s Office
File Number(s):	2014/00155881

DECISION

1. HIS HONOUR: This is an application made pursuant to Part 7 Division 3 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into the sentence imposed upon AMZ (“the applicant”) whose identity is subject to a suppression order for reasons that will become apparent.

2. The applicant seeks referral of the whole of the case to the Court of Criminal Appeal in order for it to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912 (NSW). Such action is authorised by s 79(1)(b) of the Crimes (Appeal and Review) Act, but only “if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case”: s 79(2). In Buttrose v Attorney General of New South Wales [2015] NSWCA 221 the Court of Appeal considered this precondition, stating that the “statutory language is not whether there is a doubt or question, but whether there appears to be a doubt or question” (original emphasis, per Beazley P and Leeming JA) at [16].

3. The issue raised in this application is one of parity between the applicant’s sentence and the sentence received by a co-offender. The pre-requisite in s 79(2) is satisfied if there appears to be a “doubt or question” regarding the sentence imposed: Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; 85 NSWLR 783 at 791-792, [28]-[32].

Background to the applicant’s case

4. In 2010 the applicant became involved in a large scale drug supply operation. He began by travelling from Perth to Sydney carrying large amounts of cash. In Sydney he met Mr Sahba Yazdani, who was the principal of the criminal syndicate. Yazdani asked the applicant to be a driver for him and also test drugs for him, both of which he did. The sentencing judge found that the applicant “acted as the personal assistant to the principal” (AMZ ROS p. 13). In this role the applicant travelled around the country assisting with the transport of several separate deliveries of drugs (large commercial quantities of methylamphetamine and heroin), helped cut and package drugs, and collected profits from interstate. Berman SC DCJ found that the applicant did not get involved in drug dealing due to addiction, but for money (AMZ ROS pp. 1, 13). The applicant was arrested on 15 February 2011 after the police intercepted suitcases containing almost 10 kg of methylamphetamine with a street value of more than $2.9 million.

5. The applicant pleaded guilty to six charges relating to the supply of large commercial quantities of methylamphetamine and heroin through his participation in a criminal group. The applicant was sentenced in the District Court by Berman SC DCJ on 2 December 2011. The applicant’s overall sentence was 13 years with a non-parole period of 9 years, starting on 15 February 2011, making the applicant eligible for parole on 14 February 2020.

6. The applicant received a discount of 55% on his sentences for his guilty plea, remorse, contrition, and assistance to authorities. Upon his arrest, the applicant provided immediate assistance to the police. He described the inner workings of the criminal syndicate and told police much more about his own illegal activities than they would have otherwise been able to discover. He promised to give evidence against others involved in the operation, including Yazdani, which he did. The sentencing judge found “This is high level assistance. I will not say it is unknown, but assistance at this level is uncommon. It was immediate, comprehensive and useful.” (AMZ ROS p. 11).

7. The offences and individual sentences are as follows:

Sequence 4 - Participate in a criminal group: Crimes Act 1900 (NSW) s 93T

2 years fixed term, starting 15 February 2011

Sequences 5 and 6 – Each: Supply a large commercial quantity (6 kg) of methylamphetamine: Drug Misuse and Trafficking Act 1985 (NSW) (DMTA) s 25

For each: 9 years imprisonment with a non-parole period of 6 years, starting 15 February 2011

Sequence 7 – Supply a large commercial quantity (1.05 kg) of heroin: DMTA s 25

6 years imprisonment with a non-parole period of 4 years, starting 15 February 2012

Sequence 8 – Supply a large commercial quantity (6 kg) of methylamphetamine: DMTA s 25

9 years imprisonment with a non-parole period of 6 years, starting 15 February 2012

Sequence 9 – Supply a large commercial quantity (10 kg) of methylamphetamine: DMTA s 25

Taking into account the Form 1 offences (listed below) 11 years imprisonment with a non-parole period of 7 years, starting 15 February 2013

8. The Form 1 offences were:

(1) Possess prescribed restricted substance, namely anabolic steroids, contrary to s 16 of the Poisons and Therapeutic Goods Act 1966 (NSW); and

(2) Deal with the proceeds of crime, namely $16,500, contrary to s 193C of the Crimes Act.

9. The applicant appealed against his sentence. There were four grounds of appeal: three asserted specific errors by the sentencing judge, while the fourth asserted that the sentences were manifestly excessive. The Court of Criminal Appeal dismissed the appeal on 1 February 2013: AMZ v R [2013] NSWCCA 6. This appeal was dealt with before Yazdani’s sentence. The issue of parity was not raised.

Proceedings against Yazdani

10. Yazdani pleaded not guilty to 16 counts relating to supply and distribution of drugs, and stood trial in December 2014. On two counts there was a directed verdict of not guilty (counts 7 and 15), on one count there was a finding by the jury of not guilty (count 12), and on one count he was found not guilty as charged but guilty of the statutory alternative relating to the indictable quantity of the prohibited drug (count 13). The jury found Yazdani guilty of the remaining 13 counts.

11. On 15 May 2015 Yazdani was sentenced by Woods QC DCJ in the District Court at Gosford. His Honour imposed an aggregate sentence for all the offences of imprisonment of 28 years with a non-parole period of 21 years, beginning on 27 March 2012, with Yazdani eligible for parole on the 26 March 2033.

12. The offences and the indicative sentences assessed by Woods QC DCJ are as follows:

Count 1 – Participate in a criminal group: Crimes Act s 93T 3 years

Counts 2–4 – Each: Supply a large commercial quantity (6 kg) of methylamphetamine: DMTA s 25

For each: 20 years with a non-parole period of 15 years

Count 5 – Supply a large commercial quantity (slightly over 1 kg) of heroin: DMTA s 25

12 years with a non-parole period of 9 years

Count 6 – Supply a large commercial quantity (1.65 kg) of 3.4 methylenedioxymethamphetamine (ecstasy): DMTA s 25

12 years with a non-parole period of 9 years

Count 8 – Supply a large commercial quantity (7 kg) of methylamphetamine: DMTA s 25

20 years with a non-parole period of 15 years

Count 9 – Supply a commercial quantity (700 g) of heroin: DMTA s 25

8 years with a non-parole period of 6 years

Count 10 – Supply a large commercial quantity (approximately 18 kg) of 3.4 methylenedioxymethamphetamine (ecstasy): DMTA s 25

20 years with a non-parole period of 15 years

Count 11 – Supply a large commercial quantity (slightly under 10 kg) of methylamphetamine: DMTA s 25

20 years with a non-parole period of 15 years

Count 13 – Supply a commercial quantity (337 g) of methylamphetamine: DMTA s 25

5 years

Count 14 – Deal with the proceeds of crime, namely a sum slightly over $7,000, knowing it was the proceeds of crime: Crimes Act s 193C

5 years

Count 16 – Deal with the proceeds of crime, namely a sum of $861,300, knowing it was the proceeds of crime: Crimes Act s 193C

8 years

13. Yazdani appealed against his conviction but did not seek leave to appeal against his sentence. The Court of Criminal Appeal dismissed the appeal on 2 September 2016: Yazdani v R [2016] NSWCCA 194.

Present application

Applicant’s submissions

14. The sole issue raised in the current application is one of parity. The applicant contends that he has a justifiable sense of grievance in light of the sentence imposed upon Yazdani on 15 May 2015, after both the applicant’s sentence (2 December 2011) and appeal against sentence (1 February 2013). The applicant submits that there is a doubt or question as to a mitigating circumstance in the case, namely, the lack of appropriate disparity between his sentences and those assessed for Yazdani.

15. It was submitted that the applicant’s sense of grievance was readily apparent from the starting point adopted by Woods QC DCJ in respect of Yazdani being 28 years, compared to that adopted by Berman SC DCJ for the applicant of 29 years.

16. This was said to be indicative of legitimate grievance because “Yazdani was sentenced in respect of a greater number of offences, involving greater criminality”, as well as the fact that “his role was greater than that of the applicant; and that the applicant was able to put forward a strong subjective case, in contrast to which, Yazdani had previously been convicted for similar offending, and he was unable to advance anything by way of mitigation.”

17. It was also submitted that a comparison between the sentences imposed on the applicant and the indicative sentences specified in respect of Yazdani bears out the applicant’s sense of grievance. The following comparisons are made:

Offence	Applicant		Yazdani
	Head sentence pre-discount	Indicative sentence (no discount)
Participate in a criminal group	Seq 4	4 years 5 months	Count 1	3 years
Supply large commercial quantity: 6kg ice	Seq 5	20 years	Count 2	20 years (15 non-parole)
Supply large commercial quantity: 6kg ice	Seq 6	20 years	Count 3	20 years (15 non-parole)
Supply large commercial quantity: 1.05kg heroin	Seq 7	13 years 4 months	Count 5	12 years (9 non-parole)
Supply large commercial quantity: 6kg ice	Seq 8	20 years	Count 4	20 years (15 non-parole)
Supply large commercial quantity: approximately 10kg ice	Seq 9	24 years 5 months (taking into account the Form 1 matters)	Count 11	20 years (15 non-parole)

18. In the applicant’s submissions it was observed that the applicant’s undiscounted sentence for participating in a criminal group (4 years 5 months) was substantially higher than the indicative sentence for Yazdani (3 years); the applicant’s undiscounted sentences for sequences 5, 6 and 8 were identical to the indicative sentences for Yazdani (20 years); the applicant’s undiscounted sentence for sequence 7 (13 years 4 months) was greater than the indicative sentence for Yazdani (12 years); and the applicant’s undiscounted sentence for sequence 9 (24 years 5 months) was greater than the indicative sentence for Yazdani (20 years). These comparisons, it was said, make it clear that the applicant was dealt with more harshly than Yazdani.

Whether there is the appearance of a question or doubt

19. The submission that the applicant has a grievance based upon the aggregate sentence imposed on Yazdani of 28 years cannot be accepted. It cannot be said that Berman SC DCJ adopted a starting point of 29 years imprisonment for the applicant before applying the discount of 55%, as was claimed in the applicant’s submissions. The discount attached to the individual sentences. The overall sentence was affected, not just by the 55% discount, but also by the degree of accumulation decided upon by the sentencing judge.

20. The notion that Berman SC DCJ adopted an overall starting point of 29 years was one that was attributed to him by the Court of Criminal Appeal (AMZ v R at [9]) and repeated in subsequent judgments when the sentencing of AMZ was referred to. There is nothing in the sentencing remarks to indicate that his Honour was not aware of the fundamental obligation to assess the sentences for the individual offences before considering the issues of concurrence, accumulation and totality: see Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [45].

21. The issue of equal justice can be assessed from calculations of the starting point for the applicant’s individual sentences before the application of the discount. Having regard to the notional starting point for the applicant’s individual sentences compared to the indicative sentences for Yazdani, there appears to be a basis for the applicant to have a legitimate sense of grievance.

22. I am satisfied that there are significant differences between the circumstances of the applicant and Yazdani so as to justify the applicant’s sense of grievance. Yazdani was the “principal” (Yazdani ROS p. 2) whereas the applicant was “the personal assistant to the principal” (AMZ ROS p. 13). Berman SC DCJ found that whilst the applicant’s “role was much higher in the hierarchy than a mere courier”, his actions were “at the direction of others” and there was no suggestion that he “exercised any independent or innovative thought about this drug supply business” (AMZ ROS p. 13).

23. The issue of parity was raised by counsel for Yazdani at his sentence hearing. It was submitted on his behalf that Yazdani should be seen in equivalent terms of culpability as the applicant. Woods QC DCJ rejected that submission, finding that “although ‘the witness’ [AMZ] started out as a beginner and did indeed become more enterprising and active in his dealings with the drugs, he was always the lieutenant, never the boss” (Yazdani ROS p. 5).

24. His Honour also made findings about Yazdani’s greater role in the organisation of specific offences. For example, he found in relation to Count 5 (the applicant’s Sequence 7) that “it was ‘the witness’ [AMZ] who did a lot of the actual donkey work, so to speak, but the organising hand was that of Mr Yazdani” (Yazdani ROS p. 6).

25. Furthermore, as the applicant’s submissions noted, there is a significant difference between the subjective cases of the applicant and Yazdani. Berman SC DCJ accepted that the applicant was remorseful, most unlikely to reoffend, had good prospects of rehabilitation and had no prior convictions (AMZ ROS p. 13). Yazdani, on the other hand, had a criminal history of previous drug offences and was declared a habitual trafficker in Western Australia (Yazdani ROS p. 11). Woods QC DCJ found that the only mitigating factor in Yazdani’s case was the dislocation in his early life and his family coming to Australia as refugees (Yazdani ROS p. 12). This was one of two factors which convinced the sentencing judge not to impose a sentence of life imprisonment (Yazdani ROS p. 13). Psychiatric material was tendered but it did not mitigate Yazdani’s culpability (Yazdani ROS p. 11).

Parity and aggregate sentences

26. Given Yazdani was given an aggregate sentence, one issue that arises in this application is the validity of comparing actual sentences with indicative sentences. There is authority for such an exercise being valid.

27. Sentences between two co-offenders may be compared for the purposes of determining whether there has been equal justice despite the fact that one offender received an aggregate sentence: R v Clarke [2013] NSWCCA 260 at [68] and [75] per McCallum J; Prelipceanu v R [2016] NSWCCA 280 at [57] per Button J. The primary consideration in the exercise will be considering the indicative sentence for the equivalent offence: R v Clarke at [68]. One of the functions of requiring judges to provide indicative sentences is to afford an ability to analyse sentence structures and compare sentences imposed on offenders who share crimes: JM v R [2014] NSWCCA 297 at [39](6); Prelipceanu v R at [57].

Attorney General’s submissions

28. The Attorney General accepted that it would be open to the Court to find that there is the appearance of a question or doubt as to a mitigating circumstance in the applicant’s case within the meaning of s 79(2) of the Crimes (Appeal and Review) Act. However, it was further submitted that there are reasons why the Court may properly exercise its discretion to refuse to consider or otherwise deal with the application. Three arguments were presented to that end.

29. First, it was submitted that the Court of Criminal Appeal has already upheld the severity of the applicant’s sentences as “within the range of an appropriate exercise of discretion”. Although such a finding was made, it is significant that AMZ v R was decided prior to the sentencing of Yazdani. Therefore, the issue of parity between the applicant and Yazdani’s sentences did not form part of the Court’s consideration in AMZ v R.

30. Second, it was submitted that any further reduction in the applicant’s sentence would result in a sentence that was so low as to be an affront to the administration of justice having regard to the nature and circumstances of the applicant’s offending. This is a matter for the Court of Criminal Appeal to consider.

31. Third, the Attorney General pointed to the fact that a reduction in the applicant’s sentence would have an adverse impact upon another parity issue, namely parity between the applicant’s sentence and the sentence imposed by the Court of Criminal Appeal on another co-offender, Robert Plaisted. Plaisted was involved in the same criminal group as Yazdani and the applicant. Garling ADCJ, who first sentenced Plaisted, made remarks comparing AMZ and Plaisted which a majority of the Court of Criminal Appeal found to display an unjustified equivalence between the two offenders’ situations: Plaisted v R [2015] NSWCCA 287 per Basten JA at [8] and RS Hulme AJ at [51]. The Court of Criminal Appeal considered the issue of parity between AMZ and Plaisted, and reduced Plaisted’s sentence after finding that “AMZ’s role was very substantially greater than [Plaisted’s]”: Plaisted v R at [52] per RS Hulme AJ (Basten JA making a similar finding at [8]). Consequential issues of parity between the applicant and Plaisted do not alter the applicant’s grievance in relation to Yazdani. The more significant matter in this application is that of parity between the applicant and Yazdani.

Applicant’s submissions in reply

32. The applicant made submissions in reply to those from the Attorney General, but having regard to the view I have already formed there is no need to deal with those responsive arguments.

Further issues for the Court of Criminal Appeal

33. There is a possibility that the degree of partial accumulation of the applicant’s sentences could be regarded as unduly lenient. The Court of Criminal Appeal may form a different view to the sentencing judge: Kentwell v The Queen [2014] HCA 37; 252 CLR 601. This does not need to be considered at this time.

Conclusion

34. It appears that the applicant has a justifiable sense of grievance arising from the parity issues between his sentences and the sentencing of Yazdani. It therefore appears to me that there is a doubt or question as to the sentence imposed on the applicant by Berman SC DCJ.

34. I refer the whole of the case to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act.

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Decision last updated: 20 April 2017