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
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
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:
Solicitors:
T Game SC with P Lange (Applicant)
L Fernandez (Respondent)
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
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BASTEN AJA: I agree with Sweeney J.
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WALTON J: I agree with Sweeney J.
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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.
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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.
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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.
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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…
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- AGLC
- Bisasa v The King [2023] NSWCCA 251
- Case
- [2023] NSWCCA 251
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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