Bisasa v The King - [2023] NSWCCA 251

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Bisasa v R [2023] NSWCCA 251
Hearing dates: 18 August 2023
Date of orders: 06 October 2023
Decision date: 06 October 2023
Before: Basten AJA at [1];
Walton J at [2];
Sweeney J [3].
Decision:
1. Leave to appeal granted.
2. Appeal against sentence dismissed.

Catchwords:
SENTENCING – appeal against sentence – attempted possession of border-controlled drug – applicant sentenced before co-offender – expectation of equality – whether disparity in sentences before discount gave rise to justifiable sense of grievance – whether co-offender’s lesser sentence justified by lesser role in offending, youth and more favourable subjective circumstances – judge who sentenced both expressly addressed question of parity

Legislation Cited:
Criminal Code Act 1995 (Cth), ss 11.1, 11.2A, 307.5

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Chamon v R [2020] NSWCCA 112
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Lloyd v R [2017] NSWCCA 303
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Texts Cited:
Nil

Category: Principal judgment
Parties: Akuila Bisasa (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Game SC with P Lange (Applicant)
L Fernandez (Respondent)
Solicitors:
Zahr Partners (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2014/351887
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

05 November 2019

Before:

Pickering SC DCJ

File Number(s):

2014/351887

JUDGMENT

BASTEN AJA: I agree with Sweeney J.
WALTON J: I agree with Sweeney J.
SWEENEY J: The applicant, Akuila Bisasa, seeks leave to appeal against the sentence imposed upon him in the District Court on the sole ground that he has a justifiable sense of grievance in light of the sentence imposed upon a co-offender by the same sentencing judge.
The applicant was sentenced on 5 November 2019 by Pickering SC DCJ for one offence of jointly attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, namely, methamphetamine and 3,4-methylenedioxymethamphetamine, contrary to ss 11.2A, 11.1 and 307.5(1) Criminal Code Act 1995 (Cth), committed in October – November 2014. That offence has a maximum penalty of life imprisonment.
The applicant pleaded guilty to that offence in the Local Court and was sentenced, with a 25% discount for his plea of guilty, to imprisonment for 16 years 6 months with a non-parole period of 11 years 6 months. The sentence commenced on 4 February 2017 and will expire on 3 August 2033, the non-parole period expiring on 3 August 2028.
The co-offender, Mehmet Ozgen, was sentenced by Pickering SC DCJ on 20 March 2020, after being found guilty at trial of two offences of jointly attempting to possess a commercial quantity of an unlawfully imported border-controlled drug. That is, Mr Ozgen had two charges for the two drugs which were encompassed in the one charge for the applicant. Mr Ozgen was sentenced to imprisonment for 16 years with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bisasa v The King

Details

AGLC: Bisasa v The King [2023] NSWCCA 251
Case: [2023] NSWCCA 251
Decision Date: 06 October 2023

CaseChat Overview and Summary

Bisasa v The King was an appeal against sentence, heard by the High Court of Australia. The applicant, Bisasa, had been sentenced for an attempt to possess a border-controlled drug. The matter before the Court was whether the disparity in sentences imposed on Bisasa and a co-offender before discount, which resulted in Bisasa receiving a harsher sentence, gave rise to a justifiable sense of grievance. This was considered in light of the co-offender's lesser role in the offence, their youth and more favourable subjective circumstances.

The legal issues centred on the principle of parity in sentencing, particularly when one offender is sentenced before another in the same criminal enterprise. The Court considered whether the disparity in sentences imposed before discount justified a sense of grievance, and if the co-offender's lesser sentence could be justified by their lesser role and more favourable personal circumstances. The judge who had sentenced both offenders had expressly addressed the question of parity, providing a detailed analysis of the respective roles and circumstances of the two offenders.

The High Court concluded that the disparity in sentences, when considered before discount, did not give rise to a justifiable sense of grievance. The Court found that the co-offender's lesser sentence was justified by their lesser role in the offence, their youth and more favourable subjective circumstances. The judge had adequately addressed the question of parity and had exercised their discretion in a manner that was neither erroneous nor irrational. The appeal was therefore dismissed, and the original sentence upheld.

No further orders were made by the Court beyond the dismissal of the appeal and the upholding of the original sentence.

Orders