Hassoun v The King

[2023] NSWCCA 5

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Hassoun v R [2023] NSWCCA 5

Hearing dates:

7 October 2022

Date of orders:

8 February 2023

Decision date:

08 February 2023

Before:

Mitchelmore JA at [1];
Davies J at [36];
Hamill J at [37].

Decision:

(1) Grant leave to appeal.

(2) Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against sentence – parity – criminal drug syndicate – supply of large commercial quantity of prohibited drug, cocaine, contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) – where all offenders involved in day-to-day running of syndicate, but applicant not involved in some significant parts of the joint criminal enterprise – where applicant acknowledged involvement in smaller quantity of drugs than co-offenders – where one co-offender had substantial criminal record – whether justifiable sense of grievance in light of sentences imposed on co-offenders

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A

Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33(3)

Firearms Act 1996 (NSW), s 65(3)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Chamon v R [2020] NSWCCA 112

DS v R [2014] NSWCCA 267

Harris v R [2021] NSWCCA 322

Huckstadt v R [2016] NSWCCA 22

Jaafar v R [2022] NSWCCA 254

Kuo v R [2018] NSWCCA 270

Moranv R [2022] NSWCCA 217

Ninness v R [2014] NSWCCA 288

Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v MacDonnell (2002) 128 A Crim R 44; [2002] NSWCCA 34

Wong v R (2001) 207 CLR 584; [2001] HCA 64

Category:

Principal judgment

Parties:

Nouril Hassoun (Applicant)
Crown (Respondent)

Representation:

Counsel:
Mr P Lange (Applicant)
Ms A Bonnor (Respondent)

Solicitors:
Kadadi & Co Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/346662

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 519

Date of Decision:

18 June 2021

Before:

M L Williams SC DCJ

File Number(s):

2019/346662

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Nouril Hassoun, sought leave to appeal against the sentence imposed for one count of supplying a large commercial quantity of cocaine (1.47 kilograms) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”).

Mr Hassoun was sentenced in accordance with a Statement of Agreed Facts which detailed his participation in a criminal drug syndicate which operated throughout Sydney between June and November 2019. The syndicate operated two “call centre” telephone services connecting customers to drug runners, who would typically supply deal bags of less than 1 gram of cocaine. Mr Hassoun was responsible for managing one of the call centres, taking orders, directing drug runners to deliver orders, and organising the runners’ working arrangements.

Mr Hassoun pleaded guilty and was sentenced in the District Court to a term of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 6 months, the sentencing judge having found special circumstances.

He was sentenced at the same time as two co-offenders who were also involved in the syndicate, Ahmed Halloum and Mohommed Chami. Mr Halloum and Mr Chami also pleaded guilty to charges under s 25(2) of the DMT Act. Although all three offenders were involved in the day-to-day running of the syndicate and directing the activities of other members, the respective roles of Mr Halloum and Mr Chami also extended to involvement with the drugs located at two safe houses in Bankstown, attendance at those safe houses, and handling the drugs and the receipts of sales. Mr Chami had a further charge relating to possession of ammunition taken into account on a Form 1. Unlike the applicant and Mr Chami, Mr Halloum had a criminal record involving offences of kidnapping and robbery in company.

Mr Hassoun advanced a single ground of appeal: that he had a justifiable sense of grievance in light of the sentences imposed on his co-offenders.

The Court (Mitchelmore JA, Davies and Hamill JJ agreeing), granting leave to appeal, but dismissing the appeal, held:

1. The sentencing judge had regard to the applicant’s offending as part of the coordinated syndicate in which he and his co-offenders were involved, as well as to each of their relative subjective cases. His Honour’s reasons and the respective sentences did not give rise to any justifiable sense of grievance on the applicant’s part in light of the sentences imposed on his co-offenders: [28], [36], [37].

2. The criminality of the three offenders was largely shared within the syndicate, and the sentencing judge did not err by not making greater differentiation between the applicant’s sentence and that of his co-offenders. None of the matters identified by the applicant called for a contrary conclusion, including: that Mr Halloum and Mr Chami were involved in the supply of a larger quantity of drugs than the applicant; that the relative levels of risk involved in their respective roles might have fluctuated over time; that the applicant was not involved in what occurred at the Bankstown safe houses; and that Mr Halloum had a criminal record: [29]-[33], [36], [37].

   Wong v R (2001) 207 CLR 584; [2001] HCA 64; Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242; Kuo v R [2018] NSWCCA 270; Harris v R [2021] NSWCCA 322 applied.

3. There is no single correct sentence, nor is there a single correct proportion between sentences imposed on different offenders. The fact that it was open to the sentencing judge to impose a slightly less severe sentence on the applicant does not give rise to any error of the nature for which the applicant contended: [27], [36], [37].

   Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 applied.

Judgment

1. MITCHELMORE JA: The applicant, Nouril Hassoun, seeks leave to appeal against the sentence of imprisonment imposed by M L Williams SC DCJ sitting in the District Court at Sydney on 18 June 2021, following his plea of guilty to one count of supplying a large commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”), namely, 1.47 kilograms of cocaine. The applicant was sentenced to a term of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 6 months.

2. The sentencing judge sentenced the applicant at the same time as his Honour sentenced two co-offenders, Ahmed Halloum and Mohommed Chami. Both Mr Halloum and Mr Chami also pleaded guilty to one count of supplying a large commercial quantity of a prohibited drug contrary to s 25(2) of the DMT Act, namely, 2.63 kilograms of cocaine. In addition, Mr Chami asked the Court to take into account, on a Form 1, one count of possess ammunition without authority, contrary to s 65(3) of the Firearms Act 1996 (NSW). Mr Halloum was sentenced to a term of imprisonment of 8 years and 3 months, with a non-parole period of 5 years; while Mr Chami was sentenced to a term of imprisonment of 7 years and 10 months, with a non-parole period of 4 years and 8 months.

3. The applicant advances a single ground of appeal: that he has a justifiable sense of grievance in light of the sentences imposed upon his co-offenders. For the reasons that follow, I would grant leave to appeal but dismiss the appeal.

The offending conduct

4. The offenders were sentenced based on two statements of agreed facts, one agreed between the applicant and the Crown, and the other between Mr Halloum and Mr Chami and the Crown. The applicant did not contend that there were any material differences between the two statements of agreed facts.

5. In May 2019, Strike Force Northrop commenced investigations into the supply of prohibited drugs throughout Sydney by a criminal group, or “syndicate”, involving the applicant, Mr Halloum, Mr Chami, and various others (whose trials were pending when the applicant was sentenced). Lawfully obtained telephone intercepts, in addition to physical and electronic surveillance, revealed that the syndicate operated two “call centre” telephone services by which customers placed orders for cocaine, primarily by text message. The operators of the call centres would connect customers to drug runners, who typically supplied “deal bags” containing between 0.6 and 0.7 grams of cocaine, for $300 each.

6. All of the drug supplies occurred at the direction of the applicant, Mr Chami, or Mr Halloum. The syndicate conducted roughly 150 transactions per week, producing earnings of $60,000 per week between June and November 2019 (by which point all of the participants had been arrested). Three residences were used as safe houses: two in Bankstown and a third in Croydon Park. Police surveillance revealed that the Croydon Park residence was used by the syndicate as “the base of operations”. As the sentencing judge described at [11]-[12]:

“The runners attended here at the start of their shift and collected ten deal bags of cocaine usually, the supply at the direction of the users of the call centre mobile services. After successfully supplying ten deal bags the runner would return to Croydon Park to hand over the proceeds from the sales and collect further deal bags.

The residence was also used by other members of the criminal group to facilitate meetings in which the running of the enterprise and other relevant issues were discussed.”

7. On 4 November 2019, police executed two warrants at the Bankstown residences where a total of 1,138 grams of cocaine was located. No forensic evidence linked the applicant to either of the Bankstown residences. Later the same day, police executed a warrant at the Croydon Park residence. The police located three safes, a large drop safe and a number of bags containing white powder; 249 grams of cocaine of 54% purity; and drug ledgers: [17]. The applicant’s DNA was identified at the Croydon Park residence, along with the DNA of Mr Halloum and Mr Chami.

8. Search warrants were also executed at:

1. The applicant’s residence, where police found one of the mobile phones used as part of the “call centre” operation: [19].

2. Mr Chami’s residence, where police found a significant quantity of Australian currency, including some matching the serial numbers of the cash exchanged on 3 November 2019 during a controlled operation, in which Mr Chami supplied five deal bags of cocaine for $1,500. There was also $18,000 in a cupboard in Mr Chami’s bedroom and $9,900 in his bedside table. Police also located ammunition in a duffel bag in Mr Chami’s garage, which was the subject of the Form 1 offence: [18].

3. Mr Halloum’s residence, where police found a mobile phone and $4,830 in currency: [19].

9. The applicant, Mr Chami, and Mr Halloum were arrested and declined to participate in interviews: [20]. Each offender later agreed that they facilitated the syndicate’s supply of prohibited drugs with respect to all cocaine supplied by the “runners” and other members of the syndicate during the investigation period. They agreed that they oversaw the supply of at least 1,913 “deal bags” of cocaine, at 0.64 grams per bag, totalling 1,224.32 grams of cocaine. It was agreed that Mr Halloum and Mr Chami jointly possessed 1,397 grams of cocaine across the houses, and the applicant was in joint possession of 249 grams of that amount. The applicant thus acknowledged involvement in supply of a total of 1.47 kilograms of cocaine, while his co-offenders acknowledged involvement in 2.63 kilograms of cocaine.

Sentencing of the applicant, Mr Chami, and Mr Halloum

10. Each offender entered pleas of guilty at the first available opportunity in the Local Court, entitling them to the utilitarian discount. The proceedings on sentence were heard in the District Court and determined on 18 June 2021.

11. An offence contrary to s 25(2) of the DMT Act, involving not less than the large commercial quantity of the prohibited drug concerned, carries a maximum penalty of life imprisonment and is referrable to a standard non-parole period of 15 years: DMT Act, s 33(3)(a); Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A. As noted above, Mr Chami had a further charge taken into account on a Form 1, of possess ammunition without authority contrary to s 65(3) of the Firearms Act.

12. The sentencing judge found that the applicant and each of his co-offenders performed different roles within the syndicate:

1. Mr Chami was responsible for handling and transporting the bulk cocaine, managing the safe houses, collecting the proceeds of sales, and paying runners on occasion: [21]-[23].

2. Mr Halloum was responsible for managing one of the call centres, handling the bulk cocaine, managing the safe houses, arranging the runners’ work rosters, and briefing runners about how to conduct supply operations: [24].

3. The applicant was responsible for managing the second call centre, taking orders, directing the runners to deliver orders, and organising the runners’ working arrangements: [25].

13. In relation to the subjective circumstances of the offenders, each was aged in their late twenties at the time of the offending, and was 30 years old at the time of sentence.

14. His Honour found that the applicant was of “good character”, although he was fined in 2009 in relation to offences of assault police officer: [54]. The applicant had completed a Bachelor of Arts and Bachelor of Science, and a Masters of Secondary Teaching. The applicant had worked as a teacher in a private school before he was involved in a car accident that resulted in orthopaedic injuries and led to a decline in his mental health. These matters impeded the applicant’s ability to complete the necessary curriculum, and he was asked to resign: [57]. The applicant subsequently obtained certification as a provider with the National Disability Insurance Scheme: [55].

15. The sentencing judge found that the applicant was using several grams of cocaine on a regular basis. His Honour also found that the applicant was engaged in gambling, but treated the evidence about the extent of his gambling with scepticism, in the absence of specific evidence by which that claim could be tested: [56]. The applicant wrote a lengthy letter of apology to the Court, accepting full responsibility for his offending, and his family provided affidavits of support which gave further details about his struggles with addiction and mental health. This evidence was supplemented by affidavits from a former student and close family friends: [59]-[61]. His Honour also took into account a report of a psychiatrist, Dr Olav Nielssen, who diagnosed the applicant with a substance use disorder in remission and a gambling disorder: [62]. The sentencing judge noted that the applicant had obtained and maintained a position “of some trust and seniority” in custody, first as a wing delegate and then as a sweeper: [58].

16. Mr Chami had no relevant criminal history other than two minor matters in 2009 of assault officer and resist police for which he was fined: [36]. He described having a “close and supportive family relationship”. He had worked in the cleaning and telecommunications industry but his employment was affected by a problematic drug dependency (cocaine and methamphetamine). Mr Chami’s mother provided an affidavit, which was not challenged, in which she described her son as a “hard-working family man” who had “expressed shame and regret as to what he has done”. Mr Chami also relied on a number of supportive references: [44]-[45]. He wrote a letter to the Court expressing remorse for his “irresponsible and dangerous conduct”, which he attributed to the vulnerability caused by his mental health. This was objected to by the Crown and instead put as a submission, which the sentencing judge found difficult to accept as a purely causative matter; but his Honour did note that Mr Chami was sad at the effect of his actions upon himself and the community: [46]. Evidence from the Chaplain of the correctional facility where Mr Chami was in custody demonstrated the Chaplain’s high opinion of Mr Chami, and noted his positive interactions with others: [44].

17. Mr Halloum came from a large supportive family, and he had enjoyed stable employment as a painter: [47]. Unlike the other two offenders, however, Mr Halloum had two significant matters on his criminal record: kidnapping and robbery in company offences, which he had committed in July 2009 and which resulted in respective terms of imprisonment of 2 years and 8 months (non-parole period 1 year and 3 months), and 4 years and 6 months (non-parole period 2 years and 3 months): [48]. Mr Halloum also reported a gambling habit, and submitted bank records showing significant cash withdrawals: [49]. He relied upon a report from a psychologist, who reported that Mr Halloum had suffered abuse at the hands of his father when he was a child (to which I will return in greater detail at [33] below): [50]. The psychologist said that Mr Halloum had been showing symptoms of substance dependence for about six years and a mixed anxiety and depressive disorder: [51]. The psychologist also described difficulties experienced by Mr Halloum’s wife, although no submission was made that this was exceptional hardship: [52]. Mr Halloum was conducting himself very well in custody, undertaking a number of programs and acting in the trusted position of a sweeper: [53].

18. The sentencing judge accepted that all three offenders were responsible for the day-to-day running of the syndicate and directing the activities of other members: [68]. Mr Halloum’s role was slightly higher in the hierarchy of offending; and his previous offending deprived him of a right to leniency afforded to his co-offenders: [85]. The applicant’s role was considered to be lower in the hierarchy “to a very limited extent” compared to Mr Chami (at [85]) due, in part, to his not being involved in “some significant parts” of the enterprise: [85]. The applicant’s criminality did not extend to the drugs located at the safe houses at Bankstown, to attendance at the Bankstown houses, or to handling the drugs or the receipts of the sales: [70].

19. Having considered the relevance of the quantities of the drug to the question of objective seriousness, as well as the role of each offender, their states of knowledge, the reward to be received, and moral culpability, the sentencing judge assessed the objective seriousness for all three offenders as “approaching mid-range”: [66], [71]. His Honour accepted by way of mitigation the pleas of guilty entered by all offenders, as well as the good records of Mr Chami and the applicant: [84]. In relation to Mr Chami and Mr Halloum, the sentencing judge (somewhat reservedly) accepted that both had been victims of the drug trade and had then become a part of servicing it, and that they had demonstrated remorse and regret: [73], [79].

20. His Honour also considered that each of the offenders was entitled to a modest reduction in their moral culpability, given Mr Halloum’s disadvantaged upbringing, and the individual subjective circumstances of both Mr Chami and the applicant: [78]-[80]. His Honour found that each offender had reasonable prospects of rehabilitation and was unlikely to reoffend, and that some weight was to be given to their “untested expressions of remorse and contrition”: [82], [74]. His Honour acknowledged the significance of specific and general deterrence, with the latter being considered a “significant matter”: [72], [83].

21. There was no dispute as to the necessity of a sentence of imprisonment. His Honour made a finding of special circumstances for each offender based on the need for supervision and treatment. In the case of Mr Chami and the applicant, this finding extended to the fact that it would be their first periods in full-time custody: [81].

The ground of appeal: the applicant has a justifiable sense of grievance in light of the sentences imposed upon the co-offenders Halloum and Chami

The applicant’s submissions

22. The applicant submitted that although the sentences imposed on the three offenders may seem justified, the sentences did not reflect the differences in the objective gravity of their conduct. The applicant accepted that the role each offender played was more important than the quantity of drugs involved (as to which see R v MacDonnell (2002) 128 A Crim R 44; [2002] NSWCCA 34 at [33] per Wood CJ at CL) (“MacDonnell”). In the present case, however, there was a material difference between the quantities of drugs in which the applicant was involved, as compared with Mr Chami and Mr Halloum. The applicant submitted that the notional sentences involved a “significant lack of differentiation”, with one year between the applicant and Mr Halloum, and five months between the applicant and Mr Chami. The applicant contended that this was not open to the sentencing judge.

23. Apart from the difference in the quantity of drugs in which he was involved, the applicant also relied upon the sentencing judge’s acceptance that he was not involved in some significant parts of the enterprise. While accepting the force of the Crown’s submission that this was a joint criminal enterprise, the applicant submitted that he was not demonstrably aware of what was happening in terms of the process of supply of the drugs to the enterprise, or of the additional kilogram of drugs, or, indeed, the existence of the additional safe houses. These were matters for which his co-offenders were responsible and he was not, meaning his role was less.

24. In relation to the subjective circumstances, the applicant relied primarily on Mr Halloum’s criminal history, which put him in a less favourable position. The applicant submitted that this was “quite significant” but not reflected in the respective sentences of the applicant and Mr Halloum.

The Crown’s submissions

25. The Crown disputed that the matters on which the applicant relied warranted a greater difference between his sentence and that of his co-offenders, so as to give rise to a justifiable sense of grievance. In relation to the objective circumstances, the Crown accepted that the applicant was not involved in the Bankstown safe houses (and the drugs located therein) but submitted that it did not follow that those safe houses were significant in the sentencing exercise. Relying on what Wood CJ at CL said in MacDonnell about the importance of the role of an offender, the Crown submitted that it was open to the sentencing judge to find that the applicant was equally responsible for the day-to-day running of the syndicate, and he was properly sentenced on the basis of that culpability. The Crown submitted that the applicant’s involvement in the overarching operation of the syndicate, which relied upon receipt of cocaine from the Bankstown premises, was significant and not reflected in an arithmetical approach to the quantities of drugs attributable to each offender.

26. The Crown also submitted that Mr Halloum’s criminal record, which was the primary difference in the subjective factors, did not warrant a material difference beyond what was reflected in the sentence imposed upon him. It relied in this respect on the proposition that prior good character and a lack of a criminal record are of reduced significance in drug offences: Ninness v R [2014] NSWCCA 288 at [90].

Consideration

27. The applicable principles in relation to parity are well settled and do not require extensive repetition in these reasons: DS v R [2014] NSWCCA 267 at [39] per Bathurst CJ, Fullerton J, and Davies J. Recently, in Jaafar v R [2022] NSWCCA 254 (“Jaafar”), Yehia J (Harrison and Fagan JJ agreeing) reiterated that “merely pointing to some difference between the two subjective cases of co-offenders who commit the same crime would not of itself establish a justifiable sense of grievance”: at [42]. The question is “whether or not the sentencing discretion miscarried and not whether or not this Court would have imposed a different sentence to that imposed at first instance”: Moranv R [2022] NSWCCA 217 at [29] per Beech-Jones CJ at CL (Price and Yehia JJ agreeing). Particular caution is required where, as in the present case, the same judge hears the sentence matters of two or more co-offenders and is “in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way”: Jaafar at [43], citing Huckstadt v R [2016] NSWCCA 22 at [90] per Button J (Johnson and Fagan JJ agreeing); see also Chamon v R [2020] NSWCCA 112 at [35]-[37].

28. The agreed facts that were before the sentencing judge revealed a coordinated syndicate in which each of the applicant, Mr Halloum and Mr Chami participated and had a significant role. Having regard to the nature of the applicant’s offending as part of that syndicate, and considering his subjective factors, the sentence that his Honour imposed does not give rise to a justifiable sense of grievance on his part. The three matters which were the focus of the applicant’s submissions do not call for a contrary conclusion.

The quantity of drug involved

29. It has long been accepted that the role of an offender is more important than the quantity of drugs involved, although quantity remains a relevant consideration: Wong v R (2001) 207 CLR 584 at 609; [2001] HCA 64 (per Gaudron, Gummow and Hayne JJ). The role of an offender is to be assessed by reference to their involvement in the steps taken to effect supply: Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242 at [135]; Kuo v R [2018] NSWCCA 270 at [97]. Although Mr Halloum and Mr Chami were involved in the supply of a larger quantity of drugs than the applicant, the criminality of the three offenders was largely shared within the syndicate, notwithstanding that they performed different roles (see [12] above). That the relative levels of risk involved in their respective roles might have fluctuated over time (depending on where the drugs were located) does not call for a contrary conclusion.

30. In some circumstances it may be the case, as the applicant hypothesised, that an offender’s involvement in additional (or lesser) quantities of the drug in question is a consideration that warrants greater differentiation between the sentences imposed between co-offenders. Care must always “be taken when evaluating the seriousness of ‘an offence’ in the context of an offence committed by an offender jointly with other offenders”: Harris v R [2021] NSWCCA 322 at [58] per Dhanji J (Simpson AJA and Ierace J agreeing). In the present case, however, the applicant was sentenced on a single charge of supply, involving what remained a large commercial quantity of cocaine, arising out of a syndicate in which he was heavily involved. Of the three offenders sentenced by his Honour, the lowest sentence was imposed on the applicant. That his Honour did not make greater differentiation between his sentence and that of Mr Halloum and Mr Chami, on the basis of the quantity of cocaine in which they were involved, does not give rise to a justifiable sense of grievance.

The Bankstown safe houses

31. There was no evidence that the applicant ever attended the two safe houses at Bankstown. However, as the Crown submitted, the significance of his non-attendance at those places must be read in the context of his Honour’s finding that the Croydon Park residence was used by the syndicate “as the base of operations”. It was Croydon Park where, inter alia, the runners attended at the start of their “shifts” and to where they would return with the proceeds. Further, the runners attended Croydon Park in response to orders placed with the two “call centres”, one of which the applicant managed. Although the applicant was not involved in what occurred at the Bankstown safe houses, the sentencing judge found that he was nevertheless involved in the day-to-day running of the syndicate and directing the activities of other members of the syndicate, all based at Croydon Park. It does not follow from the fact that the applicant’s physical activities were limited to the Croydon Park premises that he has a justifiable sense of grievance arising from the sentencing judge not having made greater differentiation between his (lower) sentence and that of his co-offenders.

Mr Halloum’s criminal record

32. Mr Halloum had a criminal record, whereas Mr Chami and the applicant did not (save for the minor matters which his Honour noted at [36] and [54]). The sentencing judge clearly took this into account, expressing the view that the applicant’s good record was a mitigating factor while Mr Halloum was disentitled to leniency. That the difference between the sentences is greatest as between Mr Halloum and the applicant reflected, at least in part, Mr Halloum’s prior record. That difference was also attributable, in part, to his Honour’s finding that this was the applicant’s first period of full-time custody, which was also reflected in the finding of special circumstances.

33. While I accept the applicant’s submission that Mr Halloum’s criminal history was “quite serious”, that history cannot be considered in isolation from the sentencing judge’s other findings in relation to Mr Halloum. Those findings included that Mr Halloum had experienced a difficult childhood, with two family members diagnosed with schizophrenia and one of those family members, his father, re-entering his life sporadically to abuse him and his family including, on one occasion, with a metal pole: [50]. Although Mr Halloum did not seek to characterise his childhood as being one to which the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 should apply, the sentencing judge accepted the disadvantage in his upbringing went to a slight reduction in his moral culpability: [78]. The fact that the reduction was, as his Honour described it, only to “a very limited extent”, highlights that his Honour was considering the interrelationship between the objective and subjective features of each of the offenders in an overarching way. Again, it does not follow from what the applicant described as a “significant lack of differentiation” that the sentencing exercise miscarried in relation to Mr Halloum’s criminal record.

Conclusion

34. The applicant has not demonstrated that the matters on which he relied, individually or cumulatively, give rise to a justifiable sense of grievance on his part when regard is had to the sentences imposed on Mr Halloum and Mr Chami. His ground of appeal should be dismissed.

35. I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

36. DAVIES J: I agree with Mitchelmore JA and with the additional remarks of Hamill J.

37. HAMILL J: I agree with the orders proposed by Mitchelmore JA and with her Honour’s reasons. It may have been open to the sentencing Judge to impose a slightly less severe sentence on the applicant, because of his lack of established connection with the Bankstown residences and the smaller quantity of drugs particularised in the charge preferred against him, and still produced a result that accorded with principles of equal justice and parity (or “due proportion”): Postiglione v The Queen (1997) 189 CLR 295 at 301-302; [1997] HCA 26 (per Dawson and Gaudron JJ). However, the sentencing Judge was well aware of the factual matters that distinguished the cases, and the applicant’s role in the enterprise was not very different to those of Messrs Chami and Halloum. Just as there is no single correct sentence, there is no single correct proportion between sentences imposed on different offenders. I am unable to conclude that the sentencing discretion miscarried or that the sentence imposed on the applicant created a justifiable sense of grievance because it lacked due and proper proportion with those imposed on the two co-offenders.

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Decision last updated: 08 February 2023