Delleci v The Queen

[2020] NSWCCA 4

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Delleci v R [2020] NSWCCA 4
Hearing dates:	25 November 2019
Decision date:	06 February 2020
Before:	Hoeben CJ at CL at [1]; Harrison J at [71]; Button J at [72]
Decision:	(1)   Leave to appeal granted. (2)   Appeal against sentence dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – two episodes of drug supply each involving the supply of different kinds of drugs – whether sentence manifestly excessive – whether parity principle should apply – limitations on use of statistics – sentences not excessive – no application of the parity principle – offending and personal characteristics different for each offender – no justifiable sense of grievance.
Legislation Cited:	Crimes Act 1900 (NSW) – s 193C Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 10, 10A, 21A Drug Misuse and Trafficking Act 1985 (NSW) – ss 25(1), 25(2)
Cases Cited:	BB v R [2017] NSWCCA 189 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hughes v R [2018] NSWCCA 2 JM v The Queen [2014] NSWCCA 297 Kerr v R [2016] NSWCCA 218 Kresovic v R [2018] NSWCCA 37 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 MLP v R [2014] NSWCCA 183 Nguyen v R [2019] NSWCCA 87 Parente v R [2017] NSWCCA 284 Tuite v R [2018] NSWCCA 175 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category:	Principal judgment
Parties:	Neil Delleci – Applicant Regina – Respondent Crown
Representation:	Counsel: S Kluss – Applicant C Curtis – Respondent Crown   Solicitors: Ross Hill and Associates – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2017/162415; 2017/323334
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 15 April 2019 Before: Huggett DCJ File Number(s): 2017/162415; 2017/323334

JUDGMENT

1. HOEBEN CJ at CL:

Background

On 15 April 2019, at Sydney District Court, her Honour Judge Huggett sentenced the applicant to an aggregate sentence of eight and a half years with a non-parole period of five and a half years in relation to multiple drug and proceeds of crime offences. The applicant seeks leave to appeal against that sentence on the following grounds.

Ground 1 –   The applicant contends that the sentence imposed was in all the circumstances manifestly excessive and another sentence is warranted in law

Ground 2 – The applicant suffers a justifiable sense of grievance when comparing the sentence imposed on him with the sentence imposed upon his co-offender, Akram Dahmoul

2. The applicant sought leave at the commencement of the appeal to rely upon Ground 2. That application was not opposed by the respondent. Accordingly, leave was granted to amend the Grounds of Appeal.

3. There were two groups of offences before her Honour. The offences falling into the first group were committed on 30 May 2017. The offences falling into the second group were committed on 3 and 4 October 2017. The applicant was on bail for the first group of offences when he committed the second group of offences.

4. In respect of all offences, the applicant pleaded guilty in the Local Court and received a 25 per cent discount for the utilitarian value of the early plea of guilty.

5. The table below summarises the offences that were before her Honour and the sentences that she indicated for them:

Offence	Maximum Term of Imprisonment/SNPP	Indicative Sentence
First group of offences: 30 May 2017
Count 1: Supply 7.29g cocaine s 25(1) Drug Misuse and Trafficking Act 1985	15 years No SNPP	22 months
Count 2: Supply 7.89g MDMA s 25(1) Drug Misuse and Trafficking Act 1985 Form 1 attached (see POS 3): - supply 441.7g cannabis (s 25(1) Drug Misuse and Trafficking Act) (H64088305/6) - deal with suspected proceeds of crime <$100,000 ($2,800) (s 193C(2) Crimes Act) (H64088305)	15 years No SNPP	2 years
Count 3: Supply 0.48g lysergide (54DDU) s 25(1) Drug Misuse and Trafficking Act 1985	15 years No SNPP	2 years
Count 4: Supply 181.49g cannabis resin s 25(1) Drug Misuse and Trafficking Act 1985	15 years No SNPP	18 months
Second group of offences: 3 and 4 October 2017
H65435137/2: Knowingly take part in supply of cannabis leaf (19.612kg) s 25(1) Drug Misuse and Trafficking Act 1985 (3 October)	10 years [1] No SNPP	2 years
H65435137/1: Knowingly take part in supply of commercial quantity of MDMA (246.4g) S 25(2) Drug Misuse and Trafficking Act 1985 (4 October) Form 1 offences attached: Knowingly take part in supply of 0.73g lysergide on 3 October[2] Possess prohibited drug (cannabis) on 25/10/17 (date of arrest)	20 years SNPP of 10 years	6 years NPP 4 years
H65435137/5: Deal with suspected proceeds of crime >$100,000 ($184,350.00 cash) s 193C(1) Crimes Act 1900 (4 October)	5 years No SNPP	18 months

1. Although an exchange at POS 8-9 suggests that her Honour was advised that this offence carried a maximum of 15 years imprisonment, the correct maximum penalty was stated on the sentence coversheet and her Honour correctly stated the maximum penalty in her Honour’s reasons (ROS 2).

2. The facts suggested that this offence was attached to sequence 2 (knowingly take part in supply of cannabis leaf on 3 October), however, the Form 1 itself indicated that it was in fact attached to the s25(2) offence (and it was correctly dealt with by her Honour on that basis).

Factual background

6. The first group of offences arose out of the execution of a search warrant on 30 May 2017 at what appears to have been the applicant's home in Mountain Street in Ultimo. When police arrived at the unit, the applicant threw a backpack onto an adjoining balcony. When it was retrieved, police found the following inside:

1. 18 resealable bags containing 7.29g of cocaine (Count 1);

2. 9 resealable bags containing 7.78g of MDMA (Count 2);

3. 11 bags containing 441.7g of cannabis leaf (Form 1); and

4. a variety of plastic bags containing 159.46g of cannabis resin (Count 4).

7. Inside the unit, police found a further 22.03g of cannabis resin (part of Count 4), 0.48g of lysergic acid (Count 3) and $2,800 in cash (Form 1).

8. The Form 1 matters were to be taken into account when sentencing for Count 2.

9. Police also found indicia of supply including resealable plastic bags of various types, four mobile phones, three sets of scales and what was described in the Agreed Facts as a “handwritten drug menu where drugs and their associated process were written down (e.g Acid - 1 tab = $30)”.

10. The second group of offences arose out of the execution of two search warrants, first at a unit in Darlinghurst on 3 October 2017 and then at a storage unit leased from Kennards Self Storage on 4 October 2017.

11. At the unit in Darlinghurst, police found a total of 19.612kg of cannabis (Sequence 2), including: 21 vacuum sealed bags of cannabis inside a suitcase; a plastic shopping bag containing cannabis; and a Tupperware container containing 20 bags of cannabis. They also found 84 tabs of lysergide in a plastic bag in the fridge (0.73g in total) (Form 1 attached to Sequence 1).

12. The applicant’s fingerprint or fingerprints were found on:

1. two of the plastic bags of cannabis inside the Tupperware container; and

2. the plastic bag containing the lysergide.

13. The applicant’s DNA was found on:

1. the handle of a suitcase containing a set of scales and resealable plastic bags;

2. a water bottle;

3. a Magnum ice cream stick; and

4. a cigarette butt.

14. Acting on the basis of evidence discovered in the possession of a person described as the applicant’s co-offender, Mr Dahmoul, police executed a search warrant at the Kennards Self Storage unit the following day. Inside the storage unit police found 246.4g of MDMA including a bag containing 161.9g with a purity of 74 per cent and a second bag containing 84.5g, with a purity of 75.5 per cent (Sequence 1). Police also found $184,350 cash (Sequence 5).

15. CCTV footage seized from Kennards showed that Mr Dahmoul regularly attended the storage unit to pay the rent. It showed that on 8 February 2017 the rent was paid by another unknown man who was accompanied by the applicant.

16. Investigations revealed that throughout 2017, the applicant and Mr Dahmoul lived together in a unit in Pyrmont.

17. The applicant’s fingerprint or fingerprints were found on:

1. 2 x Kennards direct deposit request authorities; and

2. the plastic bag containing the MDMA.

18. The applicant’s DNA was found on the handle of a bag containing some of the cash.

19. Liability for the second group of offences was on the basis that the applicant knowingly took part in the supply of the prohibited drugs in that he took or participated in steps, or caused steps to be taken, in the process of that supply:

1. he “participated in and assisted in” the packing of the cannabis and lysergide found in the Darlinghurst unit;

2. he “participated in and assisted in” the leasing of the storage unit;

3. he “participated in and assisted in” packing the MDMA found in the storage unit; and

4. he “participated in and assisted in” counting the money found in the storage unit.

Sentence proceedings

20. Her Honour noted that a number of matters needed to be taken into account in assessing the objective seriousness of the offending such as “quantity, purity if known and role”. Turning to the assessment of the objective seriousness of the first group of offences, her Honour noted that for Count 1, 7.29g of cocaine was nearly one and a half times the indictable quantity of 5g and that it was packaged and ready for supply. As for Count 2, 7.78g of MDMA, her Honour noted that the quantity was over six times the indictable quantity and was packaged into nine bags. As for Count 3 (lysergic acid), her Honour noted that 54 tablets was “significantly in excess of the indictable quantity and approaching the commercial quantity” of 0.5g. As for Count 4 (cannabis resin), her Honour noted that it was nearly twice the indictable quantity.

21. On the basis of the variety of drugs found, their packaging and the indicia of supply, her Honour found, in respect of the first group of offences, that the applicant “was in possession of different types of drugs which he was able to supply to users on the street” (Sentence judgment p5.4).

22. Her Honour then turned to the second group of offences. Her Honour noted that Sequence 1 (246.4g of MDMA) involved almost double the commercial quantity of 125g and that the purity was 74 per cent (for one bag) and 75.5 per cent (for the other bag). Her Honour noted that for Sequence 2 (19.612kg cannabis), the amount of drug was “well below but approaching the commercial quantity” of 25kgs. So far as Sequence 3 is concerned ($184,350), her Honour regarded it as relevant that the amount involved was well over the $100,000 required to make out an offence under s 193C(1) of the Crimes Act 1900 (NSW).

23. Her Honour found in relation to the second group of offences:

1. that the applicant was knowingly involved in many steps relating to the offending, in that he was connected both to the Darlinghurst unit (which was not his residential address but a location obtained for the purpose of storing drugs) and the storage unit (Sentence judgment p8.8);

2. that his involvement in the MDMA offence at the storage unit “commenced several months before that drug was seized”. The CCTV showed that he was involved at least from February 2017 (Sentence judgment p8.1);

3. that the storage unit was “clearly obtained in order to store a large amount of drugs and cash for the further distribution and supply within the community” (Sentence judgment p9.1);

4. that the applicant’s involvement was “at a level higher than a street dealer”. The quantities of drugs and cash indicated that he had “at least had a mid-level of involvement in those offences”, which were not isolated activities (Sentence judgment p9.3);

5. that there was no doubt that he was “actively involved in the supply of both prohibited drugs, the subject of the principal offences within the second group of offences” (Sentence judgment p10.2); and

6. both of the principal drug supply offences in that group were “very serious offences”, particularly Sequence 1 (the MDMA in the storage unit), which involved “relatively high average purity” and double the commercial quantity. On the other hand, it was well below the large commercial quantity and “balancing all matters it falls below mid-range but not way below mid-range for an offence of its type” (Sentence judgment p10.4).

24. Her Honour made the following findings as to the applicant’s subjective case.

25. The applicant was 26 years old when sentenced. He was born in Algeria but moved to France as a small child. He had limited contact with his father when growing up and was raised by his mother and older sister. His relationship with his mother soured when he was aged nine when she started a new relationship. His relationship with his older sister broke down in adolescence. Before coming to Australia, his relationship with them was “civil but distant”.

26. He arrived in Australia on a Working Holiday Visa in 2016. There is an expectation that he will be deported after serving his non-parole period, although no evidence was called about that.

27. He obtained average marks at school, however graduated from high school and commenced a number of different courses at university, including economics, marketing, medicine and engineering. His teachers at school consistently reported that his results did not reflect what he was capable of achieving. He reported to a psychologist, who prepared a report for sentencing purposes, that his IQ had been assessed at 140 when he was a child. According to the psychologist, this is well above average and means that he is “gifted with high intelligence”.

28. Her Honour found that he is “by all accounts … an intelligent man”. He said that he planned to resume his studies once he returned to France. He had a history of casual employment, becoming bored with a job within months.

29. He began smoking cannabis aged 17 or 18. After arriving in Australia, he started drinking alcohol and taking cocaine, MDMA and “poppers”. He also started abusing codeine, which he would use to help him sleep. The psychologist diagnosed him with “cannabis use disorder, cocaine use disorder and codeine use disorder”. He has historically used substances in order to cope with anxiety.

30. He told the psychologist that while he accepted that he had to stop abusing drugs, he did not plan to stop using cannabis.

31. Her Honour did not accept that his drug addiction was at all causally connected to the offending such that it would in any way mitigate the seriousness of the offences.

32. Her Honour rejected the applicant’s expressions of remorse in his letter to the court, noting that the psychologist had perceived that his expressions of shame and remorse were “focused on the consequences his offending had had for himself, including his incarceration, social embarrassment and a possible effect on his career”. Nor was her Honour convinced that the plea of guilty was indicative of genuine remorse, noting that the “attitude he has to his offending would suggest otherwise”. In short, her Honour was not willing to find on the balance of probabilities that the applicant was genuinely remorseful (Sentence judgment p14.8).

33. Her Honour further found that the applicant had limited insight into his offending. He had not engaged in any drug or alcohol treatment and, since being taken into custody, had been dealt with for refusing to provide a drug sample and for failing a prescribed drug test (in March and November respectively of 2018).

34. When the applicant committed both groups of offences he was on a bond, pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for an offence of possess a prohibited drug which was imposed by the Local Court at the Downing Centre on 10 November 2016. That related to the possession of 1.1g of MDMA on 16 October 2016. He had also been dealt with on 30 January 2017 under s 10A of the Crimes (Sentencing Procedure) Act for another offence of possess a prohibited drug on 29 December 2016.

35. The applicant was initially bail refused on the first set of offences, but was released to bail on 22 June 2017. He was therefore on bail for the first group of offences when he committed the second group of offences. Her Honour regarded this as a matter of “serious aggravation”.

36. Her Honour found that there was a risk of re-offending and that his prospects of rehabilitation were “guarded” (sentence judgment p15.5).

37. The fact that the applicant would serve his sentence in Australia far from his family in France was a basis for a finding of special circumstances.

Applicant’s submissions

Ground 1 – The applicant contends that the sentence imposed was in all the circumstances manifestly excessive and another sentence is warranted in law

38. The applicant submitted that by reference to statistics relating to pleas of guilty for an offence of drug supply to that of the applicant, the median sentence was 4 years with a non-parole period of 2 years. The applicant noted that the most serious offence for which he was sentenced, attracted an indicative sentence of 6 years imprisonment with a non-parole period of 4 years. This was before the discount for an early plea of guilty. This meant that the pre-discount starting point was 8 years for the head sentence. The applicant submitted that this pre-discount starting point was not consistent with the offence having been assessed at “below mid-range” by her Honour.

39. The applicant submitted that although the previous convictions for possession of cannabis and MDMA were relevant to the sentencing exercise, and the finding of aggravated circumstances, they appear to have had a more significant impact on the level of sentence than was warranted by the facts.

40. The applicant submitted that while there was no patent error disclosed in her Honour’s reasons, the aggregate sentence of 8½ years with a non-parole period of 5½ years imprisonment was in all the circumstances manifestly excessive.

41. The applicant submitted that the overall criminality was one where the activity in the first group of offences was in some ways encompassed by the more serious offending in the second group. The applicant submitted that while it was accepted that her Honour was obliged to attribute individual sentences for each offence, the overall accumulation had resulted in a sentence which was excessive. Having said that, the applicant accepted that there had to be some accumulation of the sentences. Nevertheless, given that the offending was so closely connected, the level of accumulation should have been more modest than was indicated by the aggregate sentence.

Ground 2 – The applicant suffers a justifiable sense of grievance when comparing the sentence imposed on him with the sentence imposed upon his co-offender, Akram Dahmoul

42. The co-offender, Mr Dahmoul, was sentenced by her Honour Judge Payne on 20 September 2019. He was not involved in any of the first group of offences for which the applicant was sentenced. Mr Dahmoul was sentenced in relation to the second group of offences for two offences:

Count 1 – Supply cannabis leaf (20.519kg); and

Count 2 – Supply a commercial quantity of MDMA (246.4g).

43. There were four Form 1 offences to be taken into account when he was sentenced for Count 2:

1. deal with proceeds of crime ($184,350);

2. possess 1.42g tetrahydrocannabinol;

3. deal with proceeds of crime ($680); and

4. supply lysergic acid.

44. Because Mr Dahmoul’s plea of guilty was late, he received a discount of 10 per cent.

45. Judge Payne assessed the offending as “serious”. This was particularly so in relation to the MDMA supply offence which carried with it a prescribed standard non-parole period. Judge Payne assessed the seriousness of that offending at “below middle range but just below for an offence of its type”. Judge Payne assessed Mr Dahmoul as “taking an active role in the supply of prohibited drugs”.

44. Judge Payne found that Mr Dahmoul’s offending was mitigated by genuine contrition and remorse pursuant to s 21A(3)(i) of the Crimes (Sentencing Procedure) Act. Judge Payne found that Mr Dahmoul had accepted responsibility for his actions and had acknowledged the potential harm which his offending was calculated to bring about.

45. Judge Payne noted that Mr Dahmoul had only a very limited criminal record. Her Honour also noted that even though Mr Dahmoul was still on remand, he had undertaken two course while in custody and had expressed a desire to undertake further treatment programs while in custody. Her Honour was unable to make a finding as to whether Mr Dahmoul was likely or unlikely to re-offend but did find that he had reasonable prospects of rehabilitation.

46. Her Honour did not find any aggravating factors pursuant to s 21A(2).

47. On the issue of parity, Judge Payne said:

“A significant amount of consideration was given to the co-accused. When I say co-accused he is in fact not strictly a co-accused in the sense that he had other offending. Indeed he had a series of offences committed when he was on a bond and then the present equivalent offences when he was on bail for earlier offences. The court has been provided with his sentencing bundle but not the subjective material. Her Honour’s remarks are part of the bundle. He though had a first group of offences, supply prohibited drug 7.29g of cocaine; supply prohibited drug 7.89g of MDMA; supply prohibited drug 0.48g of lysergide (54 tablets); supply a prohibited drug 181.49g of cannabis resin.

Two offences committed during that, if they can be described as earlier offences, went on a Form 1 being supply a prohibited drug 441.7g of cannabis and the second, deal with the proceeds of crime being $2,800. So there were four offences and two on the Form 1 that he committed quite distinctly from the present offender. He was given the benefit of 25 per cent reduction for utilitarian considerations for the plea unlike the present offender who is entitled only to 10 per cent.” (Sentence judgment, 9.1)

50. Judge Payne ultimately imposed an aggregate sentence of 6 years commencing 3 October 2017 and expiring 2 October 2023, with a non-parole period of 3 years commencing 3 October 2017 and expiring 2 October 2020.

51. Judge Payne indicated the following sentences:

Count 1 – 2 years reduced by 10 per cent, being 1 year and 9 months; and

Count 2 – after attaching the four offences on a Form 1, 6½ years reduced by 10 per cent thereby producing a figure of 5 years 10 months with an indicative non-parole period of 2 years 11 months.

52. In relation to parity, the applicant submitted that what should be compared were the indicative sentences and in particular the starting point for those indicative sentences before any reduction for the utilitarian value of a plea of guilty. The applicant submitted that his notional starting point for supplying a commercial quantity of MDMA was 8 years, whereas that of his co-offender, Mr Dahmoul, was 6½ years.

53. The applicant further noted that the second offence for which Mr Dahmoul was sentenced, involved a kilogram more of cannabis leaf than did his offence, yet the undiscounted indicative sentence was significantly less than that imposed on him, i.e. 2 years compared to 2 years and 8 months.

54. The applicant noted that Judge Payne assessed the role of Mr Dahmoul as being the same as his. The applicant noted that there was no difference in the findings by both judges of the objective criminality, i.e. below mid-range.

55. The applicant submitted that even though the signature offence was the same as that for which he was sentenced, in Mr Dahmoul’s case it had attached to it four Form 1 offences. Despite this, the applicant noted that the notional starting point indicated for the sentence was significantly less than his.

Consideration

Ground 1 – The applicant contends that the sentence imposed was in all the circumstances manifestly excessive and another sentence is warranted in law

56. The principles applicable to a claim of manifest excess are clear. They were re-stated by this Court in Hughes v R [2018] NSWCCA 2 where the Court (Payne JA, R A Hulme and Garling JJ) said:

“86    …

(1)   appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

(2)   intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

(3)   it is not to the point that this Court might have exercised the sentencing discretion differently;

(4)   there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

(5)   it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

…”

57. The applicant’s principal contention in respect of the claim of manifest excess is that the indicative sentence of 6 years (with a non-parole period of 4 years) for the principal offence under s 25(2) is revealed to be excessive when regard is had to the Judicial Commission’s statistics. There are two significant difficulties confronting this submission.

58. The first is that this Court and the High Court have said that statistics are of limited utility (see MLP v R [2014] NSWCCA 183 at [40]-[44] per Bellew J with whom Macfarlan JA and Adamson J agreed; Kresovic v R [2018] NSWCCA 37 at [36] per Hoeben CJ at CL, Campbell and N Adams JJ concurring). In BB v R [2017] NSWCCA 189 at [42] per Bellew J (Bathurst CJ and McCallum J agreeing) said that “consistency in sentencing is not demonstrated, and does not require, numerical equivalence”.

59. The second difficulty is the focus of the applicant’s complaint on the indicative sentence for the s 25(2) offence in circumstances where her Honour was imposing an aggregate sentence for seven offences (and taking into account Form 1 offences). Where an aggregate sentence is imposed the appeal lies from the aggregate sentence not the indicative sentence (JM v The Queen [2014] NSWCCA 297 at [40]). For this reason, in Kresovic v R, this Court pointed out that where an aggregate sentence is imposed, focus on a single indicative sentence is misplaced:

“42   The statistics provided by the applicant and the challenge made to the asserted excessiveness of the sentence are directed primarily at the indicative sentence nominated for the cultivation offence. The difficulty with that approach is that an appeal lies in respect to the aggregate sentence not the indicative sentences. …”

60. For the same reason, this Court in Tuite v R [2018] NSWCCA 175 at [100] said that reliance on statistics for a single offence where an aggregate sentence is imposed is “misconceived” (per Hoeben CJ at CL, R A Hulme and Button JJ agreeing). To like effect, Bathurst CJ observed in Kerr v R [2016] NSWCCA 218 (at [114]) that if an indicative sentence is excessive, it does not necessarily follow that the aggregate sentence is excessive (although the indicative sentences may be a guide). (See also Nguyen v R [2019] NSWCCA 87.)

61. It follows that the only relevant question is whether the aggregate sentence reflects the totality of the criminality. The statistics relied upon by the applicant must be examined with these principles in mind.

62. While the statistics provided by the applicant indicate that the indicative sentence for the s 25(2) offence was stern, it was by no means excessive. Those statistics demonstrate that for a guilty plea for offenders aged 21 to 25 years, total terms for s 25(2) offences range from 2 years to 9 years with non-parole periods from 1 year to 5 years. When the search is limited to principal offences only, the range is total terms of 2 years to 9 years with non-parole periods of 1 year to 4 years.

63. However, relevantly in this case the applicant was not being sentenced only for the s 25(2) offence. The applicant was being sentenced for seven offences and four Form 1 offences. The only question for this Court is whether the overall sentence imposed reflected the totality of the criminality separated by several months; disclosed in all those offences. When regard is had to the following factors, it can be seen that the sentence while stern, was well within her Honour’s broad sentencing discretion:

1. the applicant was being sentenced for a total of five drug supply offences. Four of those carried a maximum penalty of 15 years and one a maximum penalty of 10 years;

2. the applicant was being sentenced for his involvement in supplying a commercial quantity of MDMA, such offending carrying a standard non-parole period of 10 years and a maximum penalty of 20 years;

3. the first and second groups of offences represented discrete episodes of criminality;

4. without over emphasising the weight of the drugs, in the first group, the supply of 7.89g of MDMA was much greater than the 1.25g threshold for an indictable supply. The lysergide charge of 54 discrete dosage units was more than double the indictable threshold of 25 discrete dosage units. The cannabis resin charge was double the indictable threshold;

5. in the second group, the amount of MDMA was almost double the applicable commercial quantity and was of relatively high purity (around 75 per cent);

6. the second proceeds of crime charge involved a significant amount of cash (well in excess of the $100,000 required to make out the charge). This made it a serious charge in its own right and also illustrated the profitability of the drug supply enterprise in which the applicant was involved;

7. in respect of the first group of offences, the number and quantity of drugs, their packaging and the indicia of supply demonstrated that the applicant was involved in substantial drug trafficking (albeit at street level);

8. in respect of the second group of offences, her Honour found that the applicant’s involvement was higher than that of a street dealer and was at least that of a middle level dealer;

9. in respect of the second group of offences, her Honour found that the applicant was “actively involved” in the supply of both the cannabis in the unit and the MDMA in the storage unit;

10. in respect of the second group of offences, the applicant’s involvement in the storage unit commenced well before the execution of the search warrant;

11. the applicant was on a s 10 bond when he committed both groups of offences;

12. the applicant was on bail for the first group of offences when he committed the second group of offences;

13. her Honour found that the applicant was not genuinely remorseful;

14. her Honour found that his prospects of rehabilitation were guarded at best;

15. the applicant proposed to continue to consume cannabis. This consideration, combined with his criminal history, and the fact that he had offended while on bail, made specific deterrence important;

16. significant weight had to be placed on general deterrence and denunciation in a drug supply case, particularly in the light of the evident profitability of this particular enterprise (Parente v R [2017] NSWCCA 284 at [110]);

17. the statutory ratio was generously varied such that the non-parole period is only 65 per cent of the total term; and

18. support for the Crown’s contention that the sentence was within the range that was available to her Honour can be found in the suggestion made by the applicant’s counsel at first instance that an appropriate non-parole period would be “in the vicinity of five years” with a finding of special circumstances.

64. This ground of appeal has not been made out.

Ground 2 – The applicant suffers a justifiable sense of grievance when comparing the sentence imposed on him with the sentence imposed upon his co-offender, Akram Dahmoul

65. I did not understand there to be any disagreement at the level of principle. The “parity principle” requires that like offenders should be treated in a like manner and allows for different sentences to be imposed to reflect different degrees of culpability and/or different circumstances: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [65]. The principle is broader than cases where persons are charged with the same offences arising out of the same criminal conduct or enterprise, and in cases where offenders have been charged with different crimes, there can be significant practical difficulties in applying the principles: Green at [30].

66. The issue as formulated in Ground 2 is whether the sentence imposed on the co-offender gave rise to a “justifiable sense of grievance”: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at [3]. In Green at [31] French CJ, Crennan and Kiefel JJ said:

“31   … The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.”

67. There are in this case significant differences in both the offending and in relation to personal circumstances which do not give rise to the necessary “justifiable sense of grievance” as would bring about the application of the parity principle.

68. The following significant differences existed between the applicant and his so called co-offender, Mr Dahmoul.

1. The applicant was sentenced in respect of the first group of offences committed on 30 May 2017. Those offences included four offences of supply with a further supply charge on a Form 1. The maximum sentence for each of the supply charges was imprisonment for 15 years. There was significant additional criminality in the first group of offences for which Mr Dahmoul was not sentenced.

2. The applicant was being sentenced for the significant proceeds of crime offence (involving $184,350 cash) whereas this offence was taken into account on a Form 1 in respect of Mr Dahmoul.

3. Mr Dahmoul was not sentenced on the basis that he was any more culpable than the applicant since Payne DCJ did not accept that submission by the Crown. It is apparent that the applicant and Mr Dahmoul were sentenced on the basis that they occupied a similar position in the drug supply organisation.

4. The applicant was on conditional liberty when he committed the offences. He was on a s 10 bond when both sets of offences were committed and on bail for the first set of offences when he committed the second set of offences. This is a significant matter of aggravation which alone was capable of explaining why Judge Huggett’s notional starting points were higher for the applicant than Judge Payne’s were for Mr Dahmoul.

5. Mr Dahmoul’s subjective case was far more impressive than that of the applicant. Mr Dahmoul was found to be remorseful and to have reasonable prospects of rehabilitation. The applicant, by contrast, was not remorseful and his prospects of rehabilitation were assessed as guarded. In this regard, Judge Huggett noted that he had no plans to stop using cannabis, a poor attitude to the offences, limited insight into his offending and since being taken into custody, had been dealt with for refusing to provide a drug sample and for failing a prescribed drug test. Unlike Mr Dahmoul, he had not undertaken any courses while in custody. There was also a finding against the applicant that there was a risk that he would re-offend.

69. When those matters are taken into account, there is no basis for the application of the parity principle and no basis for “a justifiable sense of grievance” on the part of the applicant.

70. This ground of appeal has not been made out.

71. Accordingly, the orders which I propose are:

1. Leave to appeal is granted.

2. The appeal against sentence is dismissed.

72. HARRISON J: I agree with Hoeben CJ at CL.

73. BUTTON J: I agree with Hoeben CJ at CL.

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Endnotes

Decision last updated: 06 February 2020