Arab v The Queen

[2019] NSWCCA 39

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Arab v R [2019] NSWCCA 39

Hearing dates:

21 November 2018

Date of orders:

01 March 2019

Decision date:

01 March 2019

Before:

Macfarlan JA at [1];
Rothman J at [2];
R A Hulme J at [63]

Decision:

(1)   Time for the filing of the appeal extended to the date upon which the Notice to Appeal was lodged, namely, 21 September 2018;

 

(2)   Leave to appeal granted;

 (3)   Appeal dismissed.

Catchwords:

CRIME – CRIMINAL APPEAL – sentence appeal – four co-offenders, three of whom charged with more serious offences than applicant – applicant’s sentence significantly less than co-offenders – applicant claims justifiable sense of grievance and that difference between offenders not adequately reflected in the differentiation in sentence – different sentences rationally reflect difference between offence and offenders – differentiation not plainly unjust or unreasonable – appeal refused.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)
Crimes Act 1900 (NSW), s 193B(2)
Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
Firearms Act 1996 (NSW), s 36(1),
Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases Cited:

Fenech v R [2018] NSWCCA 160
Grabovac v R [2018] NSWCCA 100
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Darwich [2018] NSWCCA 46
Why v R [2017] NSWCCA 101
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category:

Principal judgment

Parties:

Omer Arab (Applicant)
Regina (Respondent)

Representation:

Counsel:
P Lange (Applicant)
F Veltro (Crown)

  Solicitors:
Allied Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2015/326584

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2017] NSWDC 350

Date of Decision:

12 December 2017

Before:

Berman SC DCJ

File Number(s):

2015/326584; 2015/326590; 2015/327147; 2015/327147

Judgment

1. MACFARLAN JA: I agree with Rothman J.

2. ROTHMAN J: The applicant, Omer Arab, seeks leave to appeal against the severity of the sentence imposed upon him in the District Court. If leave to appeal is granted, the applicant seeks to appeal. The ground for leave to appeal and, if leave be granted, the appeal, is the same and the leave to appeal and appeal were heard at the same time.

3. The applicant raises one ground of appeal, namely, “the disparity of sentence as between the [applicant] and his co-offenders”.

Offences

4. There is no controversy on appeal as to the findings of fact made by the sentencing judge, Berman SC DCJ. The applicant pleaded guilty to three offences:

1. supply of not less than an indictable quality of a prohibited drug, namely 74.04g of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW);

2. possession of an unregistered firearm, being a Beretta shotgun, contrary to s 36(1) of the Firearms Act 1996 (NSW);

3. possession of a prohibited weapon, being a Taser, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW).

5. Each of the offences had notified with it a different Form 1 offence. In relation to the first mentioned offence, the Form 1 offence was knowingly dealing with $17,825, being the proceeds of a crime, contrary to s 193B(2) of the Crimes Act 1900 (NSW).

6. In relation to the second mentioned offence, the Form 1 was not keeping a firearm (being the shotgun) safely, contrary to s 39(1)(a) of the Firearms Act. And in relation to the third mentioned offence, the Form 1 offence to be taken into account in fixing the sentence for the principal offence, is the possession of a prohibited weapon, being an extendable baton, contrary to s 7(1) of the Weapons Prohibition Act.

7. On 12 December 2017, the learned sentencing judge gave the following indicative sentences: Offence 1: 5 years and 6 months; Offence 2: 3 months; and Offence 3: 3 months. The sentencing judge also discounted the indicative sentences by 25% for the utilitarian value of the applicant’s plea, given at the earliest stage, which is reflected in the foregoing. The learned sentencing judge subsequently imposed an aggregate sentence of 5 years and 10 months, with a non-parole period of 3 years and 4 months, commencing 14 November 2017.

8. Given the sole ground of appeal, it is appropriate to set out the sentences of the co-offenders. There were three co-offenders: Khaled Dib; Mohamed Dib; and Ihsan Salma.

9. Khaled Dib pleaded guilty to the supply of not less than a commercial quantity of a prohibited drug, being 349.3g of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act. The sentence imposed on him included consideration of a Form 1 offence, being knowingly deal with $12,000, being the proceeds of crime, contrary to s 193B(2) of the Crimes Act. The District Court imposed a head sentence of 7 years’ imprisonment with a non-parole period of 4 years’ imprisonment, taking into account the Form 1 offence.

10. Mohamed Dib pleaded guilty to the supply of not less than a commercial quantity of a prohibited drug, being 262g of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act. Again, Mohamed Dib sought to have the sentencing judge take into account, in the sentence for that offence, the offence of knowingly deal with the proceeds of crime, being $25,200, contrary to s 193B(2) of the Crimes Act.

11. Mohamed Dib was also sentenced for possession of a prohibited weapon, being an extendable baton, contrary to s 7(1) of the Weapons Prohibition Act. The learned sentencing judge imposed an aggregate sentence, being a head sentence of 7 years and 3 months and a non-parole period of 4 years and 2 months. The indicative sentence for the supply offence was 7 years, with a non-parole period of 4 years.

12. Ihsan Salma was sentenced for two offences: supply of not less than a commercial quantity of a prohibited drug, being 266g of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act; and knowingly deal with the proceeds of crime, contrary to s 193B(2) of the Crimes Act, being an amount of $337,870. Again, the learned sentencing judge imposed an aggregate sentence, being a head sentence of 7 years and 6 months, with a non-parole period of 4 years and 3 months. The indicative sentence for the supply offence was 6 years, with a non-parole period of 3 years and 6 months. Ihsan Salma received an additional 10% discount for assistance and a total discount of 35%.

Facts

13. As earlier stated, there is little or no controversy as to the facts, which formed the basis for the sentences imposed. His Honour, the sentencing judge summarised those facts, which, in turn, were derived from an Agreed Facts document, prepared by the Crown, and tendered for both the applicant and co-offenders at trial as Exhibit 1. The facts can be further summarised.

14. The applicant and the co-offenders were involved in a sophisticated syndicate that supplied cocaine to customers. The syndicate received orders through a centralised mobile telephone and the offenders arranged delivery of the drugs by one of them disguised as a taxi driver. The exception to that arrangement was that the applicant did not participate in that disguise.

15. The drugs were supplied in a bag, containing 0.7g of cocaine which was sold for $300. There were many supplies not taken into account by the sentencing judge: Remarks on Sentence at [9].

16. Police conducted 10 controlled purchases from the syndicate between 19 August and 23 October 2015. In that controlled purchase arrangement, 19 bags were purchased and the applicant delivered the drugs on 21 October 2015, during one of the controlled purchases.

17. Intercept material demonstrated that the mobile used to receive most orders was in the control of Khaled Dib, who facilitated transactions with other drivers. Some of the orders were received by Mohamed Dib. Over 60,000 calls and texts were intercepted.

18. The syndicate was run like a business. Indeed, it ran like one or more of the meal delivery services: Uber Eats (the analogy drawn by the sentencing judge) Menulog etc. Shifts were rostered, including more personnel during anticipated periods of high demand (e.g. during the Melbourne Cup), with each driver being allocated an area of Sydney. The applicant covered the Greater Sydney Metropolitan area; Khaled Dib covered the Eastern Suburbs and CBD; Mohamed Dib covered the North Shore, Northern Beaches and CBD; and Ihsan Salma covered the CBD, Inner City and Inner West.

19. There is further evidence of delivery to Wollongong and Gosford. In one intercepted call, Khaled Dib said the syndicate had made “over a hundred grand [$100,000] a night” and “we got 20, we got 50, we got a 100, we got whatever you want brother”.

20. The foregoing indicates a sophisticated organisation of drug supply. It was sophisticated both as to its organisation and also as to the drugs that could be sold to consumers and, consequently, the drugs that were purchased for sale.

21. The applicant joined the syndicate shortly before the police surveillance commenced, which was sometime between 5 August and 5 November 2015. The applicant supplied at least 74 bags, totalling 66g of cocaine, which included the 8.04g located at his premises.

22. During the execution of the search warrant on the applicant’s home, the unregistered Beretta (shotgun), the Taser and the $17,825 in cash were located.

23. The evidence disclosed that Khaled Dib either supplied or was knowingly involved in the supply of cocaine on 244 occasions. This amounted to 472 bags containing 330.4g. There was a further 18.99g of cocaine on his premises and $11,460 in cash.

24. Mohamed Dib supplied on 200 separate occasions, involving 390 bags weighing a total of 250g. A further 12g of cocaine and $25,200 were found on his premises.

25. Ihsan Salma supplied on 66 occasions, weighing, in total, 46.92g. On his premises were found 219.6g of cocaine and $337,870 in cash.

26. The evidence also disclosed that prior to the commencement of each shift, drivers met at a residence associated with Ihsan Salma. Ihsan Salma held the cocaine and cash on behalf of the syndicate and was knowingly participating in the supply of, or supplied, 46.92g of cocaine over a period of three months.

Ground of appeal and principles

27. As earlier stated, one ground of appeal alone is agitated, which ground is set out above and claims that the applicant has a justifiable sense of grievance in light of the sentences imposed upon his co-offenders. The principles in relation to parity and sentencing are well-known and clear.

28. The law requires that those that are relevantly equal must be treated equally; and those that are relevantly unequal must be treated differentially, so as rationally to reflect those relevant differences. [1]

    1. Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49. For a full recitation of the authorities in this area, see the judgment of Campbell JA in Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60.

29. The broad principle of parity in sentencing, is part of the even broader norm of equal justice and applies without qualification. Nevertheless, as a matter of practicality, the implementation of differential sentences for relevantly different offenders involves difficulties. The courts ought not seek to establish false or artificial comparisons for different offences and different offenders.

30. Further, the degree to which relevant sentences are differentiated when imposed on two or more offenders must involve a discretionary assessment of the appropriate manner of reflecting the differences between them. Provided that the differences effected in the sentences imposed on co-offenders reflect a rational differentiation, then the principle of parity in sentencing is not offended and there is no cause for this Court, on appeal, to interfere.

31. The fact, if it be the fact, that this Court, or a Judge thereof, might have imposed slightly different sentences and reflected the rational difference to a greater or lesser degree, does not of itself allow the Court to interfere. It is only where the difference in sentences, at first instance, does not rationally reflect the difference between the offences committed and the offenders that committed them that this Court should interfere.

32. Sentences may be compared, even though the comparison may involve a comparison of sentences imposed on persons charged with different offences, but involved in the same criminal enterprise. Similarly, sentences may be compared even though aggregate sentences have been imposed, some of which will include sentences for different matters and may, therefore, involve “unpicking” an aggregate sentence.

33. At least, with aggregate sentences, the sentencing judge will have indicated the sentence that would have been imposed, but for the process of aggregation. This is one of the purposes of the requirement under s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

34. Any appeal against the sentence imposed is an appeal against the sentence, being the aggregate sentence. Nevertheless, when the question of parity arises in relation to such an aggregate sentence, the focus of analysis will generally be the indicative sentence for the relevant offences. [2] In those circumstances, the treatment of the indicative sentences guide the establishment of error in the imposition of the aggregate sentence. [3]

    2. Why v R [2017] NSWCCA 101.

    3. R v Darwich [2018] NSWCCA 46.

Submissions and Consideration

35. The applicant seeks to compare the indicative sentences imposed upon him with the indicative sentences imposed upon his co-offenders for a more serious offence. The applicant starts with the proposition that, given the accumulation of the weapon offence sentences, the non-parole period referable to the supply offence was 3 years’ imprisonment. At best, this proposition is an estimate, which assumes a somewhat mechanical approach in fixing an aggregate sentence.

36. The co-offenders were sentenced for the offence of supplying a commercial quantity of cocaine and, therefore, required a more severe sentence, assuming, as the sentencing judge did, that the role of each of those offenders involves similar activities in the overall criminal enterprise.

37. The applicant submits that, given the significantly more serious nature of commercial quantity over indictable quantity, which also includes the relatively greater amount of drugs involved, the differentiation between the applicant and his co-offenders was insufficient. The comparison between co-offenders, charged with different but similar offences as part of the same criminal conduct and enterprise, is permissible. [4] This accords with the principles earlier stated in these reasons.

    4. Grabovac v R [2018] NSWCCA 100.

38. The applicant accepts, as he must, that the assessment of objective seriousness must have regard not only to the quantity of drugs, but also the offender’s role and, perhaps, the anticipated reward. [5]

    5. Wong v R, supra.

39. As earlier stated, His Honour accepted that each of the three offenders who pleaded guilty to the commercial drug supply was involved in activities of the same objective gravity. It is appropriate to recite at least one of the paragraphs that deal with objective gravity in the Remarks on Sentence of the sentencing judge. That extract is in the following terms:

“Objective Gravity

In assessing the objective gravity of these offences I bear in mind a number of matters. Firstly, and perhaps most obviously, Mr Arab is to be sentenced for non-commercial drug supply unlike his co-offenders. Those co-offenders each performed the role of drug deliverer but also had other roles to play as well. Salma was what I inelegantly described in the course of submissions as ‘the bag man’ a description that Mr Greg James QC, who appeared with Mr E James for Mr Salma did not argue with. He appears to have been the person who distributed drugs to others and collected the proceeds. Khaled Dib appears to have been the main contact for customers but on occasions Mohamed Dib performed that role. It appears to me that each of the 3 offenders who have pleaded guilty to commercial drug supply were involved, broadly speaking, in drug supply activities of the same objective gravity. Sure they each performed slightly different roles at times, but they were all working towards a common goal, just as in a legitimate business with someone taking orders, someone distributing goods to the deliverers, and someone being responsible for the receipt of the proceeds. Each of the three offenders involved in commercial drug supply had their own part to play in pursuit of the objective of being involved in a major drug supply operation. But that doesn’t mean that I ignore the separate criminality involved in Mr Salma’s offence of dealing with the proceeds of crime.”

40. The applicant submits that little attention was paid to the role of the applicant in the scheme and little attention was paid by his Honour (other than the passage extracted above) to the moral culpability of the applicant. That is not accurate.

41. In the summary by his Honour at first instance of the Agreed Facts, his Honour detailed the business operations of the offenders. It is clear from that summary that Omer Arab, together with his co-offenders, met, as earlier stated in these reasons, at the home of Ihsan Salma, to plan the day and allocate the work.

42. Further, his Honour recited or summarised the facts that the offenders (that is, all of them including the applicant) “anticipated periods of increased demand such as Friday and Saturday nights and days around the running of the Melbourne Cup”. As a consequence, it is not accurate to suggest, as do the submissions of the applicant or on his behalf, that the applicant did not have “such a directing role” as the other co-offenders and that the Agreed Facts “contain only scant reference” to the applicant. The passage in the Remarks on Sentence of the sentencing judge at [5], describing the role of all of the offenders, including the applicant, as anticipating periods of increased demand, point conclusively to the proposition that his Honour found, as a fact, that his role was more than that of a delivery person. See also the reference to “these four offenders” being involved in “the highly organised” and “successful drug dealing business” in the Remarks on Sentence at [30].

43. Contrary to the submission of the applicant, the Agreed Facts point to the operation of a sophisticated business by all of the offenders and, leaving aside for present purposes the subjective factors, it is only the quantity of drugs with which the applicant is charged that disclose a “lesser involvement” or, more accurately, the commission of a less serious offence.

44. The fact is the applicant was sentenced, in relation to the drug offences, for a less serious offence. That less serious offence takes into account the significant differences in the amounts of drugs that are the subject of each of the drug supply charges.

45. The applicant pays too little regard to the subjective circumstances. The sentencing judge made no finding of remorse in relation to the applicant, as there was no evidence to suggest remorse. The applicant had no or no substantial prior offences. On the other hand, there were strong subjective factors for each co-offender.

46. Ihsan Salma had a longstanding drug addiction; Khaled Dib suffered childhood trauma, resulting in self-medication and chronic drug dependency; Mohamed Dib also had no prior convictions; and Khaled Dib and Ihsan Salma had limited priors.

40. There was some discussion about the reliance upon arithmetic calculation or ratio as between the maximum sentence and standard non-parole period, applicable to the drug supply offence for which the applicant was charged and the offences with which his co-offenders were charged. It should be reiterated that sentencing, including the calculation of an appropriate sentence, is not a mathematical or arithmetic exercise.

41. Sentencing is an exercise in the evaluation of an appropriate sentence for the offender and the offence that was committed. It necessarily involves discretion. [6]

    6. House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

42. Whatever be the ratio between the sentence imposed upon him and the head sentence indicated by the sentencing judge, compared to the maximum sentence that could have been imposed on Khaled Dib and its ratio to the head sentence of the offence for which he was sentenced, that is not the basis for opposing or supporting the existence of a justifiable sense of grievance. This purely arithmetic comparison is to be deprecated and such a comparison is not supportive of and does not negative a sense of justifiable grievance.

43. For the drug offences, the applicant was sentenced to an aggregate sentence, as indicated earlier, of 5 years and 10 months, with a non-parole period of 3 years and 4 months. The indicative sentence for the drug offence under s 25(1) of the Drug Misuse and Trafficking Act, for which the maximum sentence is 15 years’ imprisonment, was a head sentence of 5½ years, with indicative sentences of 3 months each for the possession of unregistered firearm and for the possession of a prohibited weapon.

44. Khaled Dib was sentenced to a head sentence of 7years, including a non-parole period of 4 years. Khaled Dib was sentenced for the one offence only. Greater emphasis was placed on the comparison with Khaled Dib, than the other offenders.

45. The relative roles of the offenders have been dealt with earlier and were dealt with by the learned sentencing judge.

46. The fact is the applicant was sentenced for his involvement in the criminal enterprise for a lesser offence than his co-offenders. But the relative sentences do not need to reflect the relative maximum sentences for each offence. Indeed, an approach that based the relative sentence for each co-offender solely on the relative maximum sentences for the different offences would be an error.

47. Further, the applicant’s sentence on the drug offence takes account of a Form 1 offence, being knowingly dealing with the proceeds of crime. The aggregate sentence takes into account the two firearm or prohibited weapon offences to which earlier reference has been made. Khaled Dib is not involved in any other offences, other than the Form 1 offence, which was taken into account in the sentence that is to be utilised or sought to be utilised for comparison purposes.

48. The sentencing judge made it clear that he was applying the principles of parity: see [20] of the Remarks on Sentence.

49. There are differences, relevant to sentencing, between the applicant and Khaled Dib and the other co-offenders. As a consequence, the learned sentencing judge has imposed a sentence that is relevantly different.

50. Mathematical calculations do not assist. The question is whether the difference between the sentence imposed upon the applicant and the sentence imposed upon Khaled Dib and the others gives rise to a justifiable sense of grievance. In other words, is the differential in sentence between the applicant and Khaled Dib irrational?

51. In my view, the applicant has not satisfied any of the tests that would warrant this Court interfering in the sentence imposed by the learned sentencing judge.

52. Lastly, the appeal was out of time and the applicant has sought an extension. For that purpose, the applicant relies on the Affidavit of Sam Abbas, sworn 12 October 2018 and filed 15 October 2018.

53. A Notice of Intention to Appeal was filed on 22 December 2017 and counsel was briefed in February 2018. The advice on prospects was not received until September 2018 and the appeal was lodged within three weeks thereafter.

54. The substantial delay in filing the appeal was not occasioned by the conduct of the applicant or through any fault on his part. In those circumstances, it is just for the extension of time to be granted. [7]

    7. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [30].

55. I propose that the Court make the following orders:

1. Time for the filing of the appeal extended to the date upon which the Notice to Appeal was lodged, namely, 21 September 2018;

2. Leave to appeal granted;

3. Appeal dismissed.

63. R A HULME J: The disparity between the sentence imposed upon the applicant and those imposed upon his co-offenders is not unreasonable or plainly unjust (see Fenech v R [2018] NSWCCA 160 at [29]-[33]) for the reasons provided by Rothman J. I agree with the orders his Honour has proposed.

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Endnotes

Decision last updated: 01 March 2019