Kiraz v R

[2023] NSWCCA 177

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Kiraz v R [2023] NSWCCA 177

Hearing dates:

30 June 2023

Date of orders:

14 July 2023

Decision date:

14 July 2023

Before:

Beech-Jones CJ at CL at [1]
Fagan J at [2]
R A Hulme AJ at [3]

Decision:

(1)   Leave to appeal against sentence granted.

(2)   Appeal dismissed.

Catchwords:

CRIME – appeal against sentence – aggregate sentence – manifest excess by misapplication of totality principle – no error – parity with sentence of asserted co-offender – applicant a supplier of drugs purchased from a syndicate in which co-offender was a participant – not co-offenders in same criminal enterprise for purpose of parity principle

Legislation Cited:

Crimes Act 1900 (NSW), s 193C(2)

Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and (2)

Weapons Prohibition Act 1988 (NSW), s 7(1)

Cases Cited:

Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162

Burke v R [2022] NSWCCA 6

Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

GG v R [2023] NSWCCA 102

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528

Meager v R [2009] NSWCCA 215

Obeid v R (2018) 96 NSWLR 155; [2017] NSWCCA 221

R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555

R v Irwin [2019] NSWCCA 133

Category:

Principal judgment

Parties:

Allan Kiraz (Applicant)
Rex (Respondent)

Representation:

Counsel:
S Flood (Applicant)
J Styles (Respondent)

Solicitors:
Kingston Fox Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

158345/2020

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

30 November 2021

Before:

Culver AM DCJ

File Number(s):

158345/2020

HEADNOTE

[This headnote is not part of the judgment]

Allan Kiraz acquired drugs on 10 occasions from a “dial-a-dealer” supply syndicate. On one of those occasions the drugs were delivered to him by Eren Mehmed. Mr Kiraz pleaded guilty to a charge of supplying a large commercial quantity of methylamphetamine and asked that further offences on a Form 1 be taken into account, including charges of supplying indictable quantities of methylamphetamine and gamma butyrolactone and dealing with $4100 which was the suspected proceeds of crime. He also pleaded guilty to a charge of possessing a prohibited weapon (an anti-personnel conducted energy device (a “taser”)).

In assessing the objective seriousness of the primary offences the sentencing judge took into account there was a degree of overlap in that the seriousness of the taser offence was elevated by it being found in “proximity to prohibited drugs and cash, the suspected proceeds of crime”. After a 25% allowance was made for the pleas of guilty, the judge assessed indicative sentences for the two offences of 6 years and 3 years and imposed an aggregate sentence of 8 years with a non-parole period of 5 years and 4 months.

Mr Kiraz sought leave to appeal on two grounds:

(1) The aggregate sentence was manifestly excessive. Mr Kiraz confined the scope of this ground to a contention that the overlap in objective seriousness of the two offences meant there should have been less (notional) accumulation of the indicative sentences and thereby a lower aggregate sentence.

(2) There was disparity between his sentence and that imposed upon Mr Mehmed. The latter was subsequently sentenced by another judge for two large commercial drug supply offences and received an aggregate sentence 3 months shorter than that imposed upon Mr Kiraz.

The Court held (R A Hulme AJ, Beech-Jones CJ at CL and Fagan J agreeing) granting leave to appeal but dismissing both grounds.

As to ground 1:

The proposed appeal was concerned with the aggregate sentence and was not against the indicative sentences assessed for the individual offences. The critical question was whether the aggregate sentence reflected the totality of criminality involved. Having regard to the applicable maximum penalties involved; the unchallenged assessments of the sentencing judge as to the objective seriousness of the offences; the need to take into account some significantly serious further offences on the Form 1; and the need to moderate the outcome by having regard to the overlap in criminality; it could not be said that the aggregate sentence was beyond the acceptable bounds of a legitimate exercise of sentencing discretion. [34]-[36] R A Hulme AJ, [1] Beech-Jones CJ at CL, [2] Fagan J.

GG v R [2023] NSWCCA 102 applied. Burke v R [2022] NSWCCA 6 at [32] cited.

As to ground 2

The parity principle is concerned with the comparison of sentences imposed upon co-offenders involved in the same criminal enterprise (even if charged with different offences). It is not concerned with the comparison of sentences imposed upon persons who were not co-offenders. [42]-[43] R A Hulme AJ, [1] Beech-Jones CJ at CL, [2] Fagan J.

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30]; Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [30]; Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 at [136]-[137], [202] and [246]); R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555 at [66]; and Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162 at [148]-[149] cited.

Mr Kiraz had no involvement or interest in the drug supply enterprise from which he acquired his drugs and the participants in that enterprise had no interest or involvement in the drug supply activities of Mr Kiraz. They were not co-offenders in the same criminal enterprise and so the parity principle had no application. [44]-[47] R A Hulme AJ, [1] Beech-Jones CJ at CL, [2] Fagan J.

Meager v R [2009] NSWCCA 215; Why v R [2017] NSWCCA 101; and Malouf v R [2019] NSWCCA 307 referred to.

JUDGMENT

1. BEECH-JONES CJ AT CL: I agree with R A Hulme AJ and the orders his Honour proposes.

2. FAGAN J: I agree with the orders proposed by R A Hulme AJ and with his Honour’s reasons.

3. R A HULME AJ: Allan Kiraz was sentenced in the District Court at Sydney by her Honour Judge Culver AM on 30 November 2021 in respect of a number of drug and prohibited weapon offences.

4. Her Honour imposed an aggregate sentence of imprisonment for 8 years with a non-parole period of 5 years and 4 months dating from 27 May 2020.

5. The drug supply offences were contrary to the Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) and (2), and the weapons offences were contrary to the Weapons Prohibition Act 1988 (NSW), s 7(1). There was also a proceeds of crime offence contrary to the Crimes Act 1900 (NSW), s 193C(2). Details of each offence and the indicative sentences are as follows.

Seq 1: Supply large commercial quantity (740.8g) of methylamphetamine between 9 February 220 and 22 May 2020	Maximum penalty: imprisonment for life Standard non-parole period: 15 years	6 years with non-parole period of 4 years
Seq 12: Supply 500ml of gamma butyrolactone on 16 May 2020	15 years’ imprisonment &/or 2000 penalty unit fine	On Form 1, taken into account re Seq 1
Seq 19: Possess prohibited weapon (cannister of oleoresin capsicum spray) without permit on 27 May 2020	14 years’ imprisonment SNPP: 5 years
Seq 22: Supply 212.2g of methylamphetamine on 27 May 2020	15 years’ imprisonment &/or 2000 penalty unit fine
Seq 23: Deal with suspected proceeds of crime ($4100 cash) on 27 May 2020	3 years’ imprisonment
Seq 18: Possess prohibited weapon (anti-personnel conducted energy device) without permit on 16 May 2020	14 years’ imprisonment SNPP: 5 years	3 years with non-parole period of 2 years

6. Mr Kiraz seeks leave to appeal against the aggregate sentence on the following grounds:

1. The aggregate sentence imposed is manifestly excessive.

2. There is a disparity in the sentence of the applicant and that imposed on the co-offender, Eren Mehmed, that gives rise to a justifiable sense of grievance on the applicant’s behalf.

The offences

7. The agreed facts for the large commercial supply offence were that between 9 February 2020 and 22 May 2020 Mr Kiraz obtained quantities of methylamphetamine on nine occasions and gamma butyrolactone on one occasion. He negotiated the purchase by telephone, usually with Abdul Ali-Ahmed, and then obtained the drugs by attending a location or having it delivered to him.

8. Midway through the agreed facts document it is stated:

[16] On Friday 8 May 2020 between about 10 and 11.30am police observed Abdul Ali-Ahmed, Allan Kiraz and Eren Mehmed attending Abdul Ali-Ahmed’s residence at xxx Yagoona, at times which overlapped with each other. …

[17] During the period of these offences, a “Run Phone” was operated by Eren Mehmed, Abdullah Dannawi, Omar Dannawi and Mr Eli-Ahmed for the supply of prohibited drugs, and primarily methylamphetamine. The mobile service was xxx 796.

9. For the purpose of considering Ground 2 of the proposed appeal it is useful to have regard to the following details pertaining to each supply to Mr Kiraz.

Date	Negotiations by Mr Kiraz were with:	Delivery was effected by:
9.2.20	Ali-Ahmed	Collection at Ali-Ahmed’s home
5.3.20	Ali-Ahmed	At a meeting with Ali-Ahmed
6.4.20	Ali-Ahmed	Delivery by Eren Mehmed
20.4.20	Ali-Ahmed	Delivery by Ali-Ahmed
23.4.20	Ali-Ahmed who arranged for Mr Kiraz to speak to another (unnamed) person.	Delivery by the unnamed person
26.4.20	The user of phone service xxx 449	Delivery by an unnamed person
28.4.20	The user of phone service xxx 449	Delivery by an unnamed person
11.5.20	Ali-Ahmed and the user of “Run-Phone” xxx 796	No details of delivery
16.5.20	With Ali-Ahmed and the user of “Run Phone” xxx 796	Delivery by an unnamed person
22.5.20	Ali-Ahmed	Collection at Ali-Ahmed’s home

10. It may be inferred that Mr Ali-Ahmed was involved with others including Eren Mehmed in an enterprise of supplying drugs. The reference to the use of a “Run Phone” suggests the operation of what is sometimes referred to as a “Dial-a-Dealer” drug supply enterprise whereby orders are taken by telephone and delivery drivers supply the drug to the purchaser.

11. It may also be inferred from the quantities involved that the applicant was a supplier of drugs to others in his own right.

12. A search warrant was executed at Mr Kiraz’s home on 27 May 2020 where the following were found:

• 212.2g of methylamine in four separate bags.

• $4100 in Australian currency.

• An anti-personnel conducted energy device, similar to a Taser gun.

• A cannister of oleoresin capsicum spray.

13. Mr Kiraz gave evidence at the sentencing hearing of having a long-standing addiction to drugs. He managed to remain abstinent during a period of employment but returned to drugs when he lost his job during the COVID-19 pandemic. He claimed he was dealing in drugs to support his own habit and to pay back debts he had accrued as a result of it. [1]

    1. Proceedings on sentence (POS), 5.11.21, T7.10

14. When it was suggested in cross-examination that the volume and value of drugs involved were inconsistent with that explanation, he protested that he “was always the middle person”; people would ring him asking him to get it for them and he would make “a little percentage of it and that then would be to support my habit”. [2]

    2. POS 5.11.21, T11.45

15. A little later he explained: [3]

It was very easy for me to get a hold of; it was very ‑ I was mixed with the drug people and it was so easily accessible for me, therefore when I knew it was easily accessible for me, I rang them up and told the other people, "Look, there's more here if you want it ‑ if I got the money to sell you" ‑ whatever. At the time I'd be thinking if I can make more to support my habit and pay my rent, then that's how easy it was for me to get. Like, I couldn't have funded my own pocket; I couldn't handle that much for myself. It was always for other people to come and get and I would just take a little percentage out of it.

3. POS 5.11.21, T12.15

16. The sentencing judge said the following in the course of explaining her assessment of the objective gravity of the large commercial drug supply offence: [4]

The Court understands that the agreement between the parties is that the offender would be characterised as engaging in these transactions where he was, in effect, in a middle stage of the supply chain. It’s not suggested he operated closely to the manufacturing point. The Court does not have evidence, on the other hand, of street dealing. Instead, it seems from the facts placed before the Court by agreement that the offender would be contacted by others for the supply of drugs. Sometimes those others would be seeking significant quantities of drugs not consistent with those other people themselves necessarily being street dealers. The offender would then approach his upline suppliers such as Ahmed to receive the drugs.

It seems that the offender had some degree of autonomy, but it is not clear to what extent. The facts, for example, reveal that the offender was bringing a woman, unidentified, to meet with Ahmed to purchase the methylamphetamine. It is not clear whether that was an act of introducing a new customer directly to Ahmed or whether the offender was merely a conduit to facilitate that supply. In the absence of being able to make any finer assessment of the offender’s role, I accept the characterisation by the offender himself that he was operating as a middle man. It seems that he expected not only monetary reward, but also to be able to access some drugs for himself, being himself a drug user.

4. Remarks on sentence (ROS) 10

17. Her Honour’s finding coincided with the submission on behalf of Mr Kiraz [5] that the objective gravity of the large commercial supply offence was “just under the midrange level”.

    5. POS 30.11.21, T20.1

Subjective factors

18. The nature of the grounds of appeal and submissions in support of them do not require detailed consideration of the applicant’s background and personal circumstances unless the Court finds merit in Ground 1 or that a fundamental issue pertaining to Ground 2 is established. It will suffice to note some findings of the sentencing judge.

19. There were controversial aspects of Mr Kiraz’s account of his background as a result of conflicting versions he had provided. Her Honour did not accept that as a child he had been the victim of domestic violence but did accept he had been sexually assaulted. She also accepted he had commenced using illicit drugs at around the age of 15. There was therefore either a link or a coincidence between the experience of sexual abuse and the immature resort to drug abuse. [6]

    6. ROS 21

20. Her Honour did not find there was a causative link but did accept there was a lessening of moral culpability for the offending as a result of a psychologist’s report of Mr Kiraz having symptoms of post-traumatic stress disorder and substance dependence disorder. She found that the emphasis upon general deterrence was reduced on account of these various factors. [7]

    7. ROS 22-23

21. In relation to more general subjective matters, her Honour found his experience of custody was more onerous due to the restrictions in place because of the pandemic. She described his criminal history as “extensive and serious” which was relevant to the emphasis given to specific deterrence and prospects of rehabilitation. [8]

    8. ROS 25-27

22. Early pleas of guilty entitled Mr Kiraz to a 25% reduction of the individual sentences. It was also accepted that remorse and contrition had been demonstrated and added to a favourable prospect of rehabilitation, although her Honour regarded this as “guarded”. [9]

    9. ROS 27

23. Special circumstances were found because of more onerous custody due to the pandemic and the “strong need for intensive rehabilitation”. Another basis was because Mr Kiraz was “being sentenced for multiple offences”, but why that should lead to a reduction of the non-parole period of an aggregate sentence was not explained.

Ground 1 – the sentence is manifestly excessive

Principles

24. The principles relating to a ground asserting that a sentence is manifestly excessive were summarised in Obeid v R (2018) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

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.

It is not to the point that this Court might have exercised the sentencing discretion differently.

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.

It is for the applicant to establish that the sentence was unreasonable or plainly unjust.

25. An appeal against an aggregate sentence is concerned with that sentence and not directly with the indicative sentences assessed by the sentencing judge. Principles concerning the appellate review of aggregate sentences were summarised in JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40] including:

11.   The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence.

12.   Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive.

13.   A principal focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved. This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures. (Citation of authorities omitted)

26. The extent to which the sentences for the two primary offences were to be served (notionally) concurrently or accumulatively involved an exercise of the principle of totality. Its correct application was described by Howie J in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]:

[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality.

Submissions

27. The applicant’s submissions clarified that this ground of the proposed appeal was focussed upon the impact of the possession of the taser-type weapon upon the aggregate sentence ultimately imposed. This was said to be the case because of the interplay between:

The facts of the applicant’s possession of this weapon; and

the nominal accumulation of the two indicative sentences. [10]

10. Applicant’s written submissions [17]

28. The submissions referred to factors that would have made the offending in respect of this offence “more objectively serious”. These were if the taser was functioning; if it was charged and ready for use; and if it was in a place where it was readily accessible. [11] While there are more serious and dangerous types of prohibited weapons, the submissions acknowledged that the possession of a taser is not “a minor example of an offence under s 7(1) of the Weapons Prohibition Act”, citing R v Irwin [2019] NSWCCA 133 at [76]. [12]

    11. AWS [18]-[19]

    12. AWS [20]

29. It was submitted that the judge had correctly found the objective seriousness of the taser offence as follows: [13]

With respect to the possession of the taser type weapon, it is submitted by the Crown that this is just at the midrange level. On behalf of the offender, it is conceded that this falls at the midrange. I share the view of the parties. Whilst a taser type weapon is a serious type of weapon, I do bear in mind the extent of different types of weapons that can be caught by this offence provision. What elevates the seriousness of this offence is the finding of the taser type weapon in proximity to prohibited drugs and cash, suspected proceeds of crime. In other words, where there is a prohibited weapon in the context of serious drug supplying, then the circumstances bear concern. That is not to say that the offender himself intended to use the weapon for offensive purposes. As I stated at the outset, what it does do is elevate the risk that, the weapon can fall into the wrong hands. It elevates the risk that, even if not intended, the weapon might ultimately be used. (Emphasis added)

13. ROS 11.5

30. The applicant submitted that without the “elevating” factor of the taser being found in proximity to drugs and cash, the objective seriousness of the taser possession offence would have been assessed at a level lower than “at the mid-range”.

31. The applicant’s case in respect of this ground was encapsulated in the submission that “the degree of accumulation reflected in the aggregate sentence is excessive because there is significant overlap between the criminality that aggravates the prohibited weapon offence and the supply offending”. [14]

    14. AWS [25]

Consideration

32. With indicative sentences for the two offences of 6 years and 3 years and the aggregate sentencing being one of 8 years, the sentencing judge may have considered that it would be appropriate for there to be a notional period of accumulation of 2 years and of concurrency of 1 year. She did not express this in her judgment and nor was she required to. She did, however, explicitly and correctly acknowledge and apply the totality principle as is evident in the following extract from her sentencing remarks:

Turning then to a consideration of totality and proportionality, I note the decisions in Pearce and Cahyadi and decisions that have followed those cases. The Court must ensure that the overall sentencing outcome is proportionate to the offending with the consideration of the relevant subjective features. The Court must ensure that each individual offence receives the sentence appropriate to the individual circumstances arising for that offence, but also ensure that the overall sentencing outcome is appropriate to the totality of circumstances and remains proportionate to the offending. The Court must ensure that the overall outcome is not unduly crushing on the offender.

Here, the issue of totality arises in a couple of aspects. Firstly, there are two offences for substantive sentences. Secondly, there are form 1 offences to be taken into account in respect of the sentence for sequence 1, supply prohibited drug in large commercial quantity. I note that, taken together, it is troubling that the Court is sentencing the offender for supplying prohibited drug in a large commercial quantity and also sentencing the offender for the possession of the taser like implement. I note that some degree of accumulation is necessary, but I have referred to the fact that the offence for the taser like weapon is somewhat exacerbated by the drug supply context. In the circumstances, the Court must ensure that the accumulation is not a total accumulation. In other words, because I have aggravated the type of taser offence by the circumstance of the drug context, it then is appropriate that there be some degree of concurrency, because there has been an overlap in factual consideration.

33. Accordingly, the judge posed for herself the correct question and answered it in a way that is challenged by the applicant as being “unreasonable or plainly unjust”.

34. N Adams J, with the concurrence of Bell CJ and Davies J, recently considered the application of the totality principle in the context of aggregate sentencing in GG v R [2023] NSWCCA 102 and in doing so provided pertinent passages from two recent cases which are of present relevance:

[85] As for the applicable principles when error is alleged in the application of the totality principle in aggregate sentencing, in Noonan v R [2021] NSWCCA 35 Beech-Jones J (as his Honour then was), with whom Bathurst CJ and Wilson J agreed, stated the following at [33] in that regard:

… The starting point is that the subject matter of an application for leave to appeal against an aggregate sentence is the aggregate sentence itself, not any indicative sentence. Next, it is necessary to identify the error complained of in the fixing of the aggregate sentence. If the complaint is an error such as a failure to apply the totality principle then an appellant may seek to deploy a comparison between the indicative sentences and the total aggregate sentence to argue that the principle was misunderstood or misapplied such that an error has been demonstrated. For example, if there were three related offences with the indicative sentence for each being 2 years imprisonment and the total aggregate sentence was 6 years imprisonment then it might be inferred that the sentencing judge failed to apply the totality principle. In that case, one of the forms of error discussed in House v R (1936) 55 CLR 499; [1936] HCA 40 would be established even though the aggregate sentence was not itself manifestly excessive (namely a failure to take ‘into account some material consideration’: House v R at 505). However, any analysis that seeks to reconstruct some precise starting and end point for the indicative sentences in order to show error in the fixing of the aggregate sentence is misconceived as aggregate sentences were intended to avoid sentencing judges undertaking that very process. … I note that in imposing an aggregate sentence in R v Stoupe [2015] NSWCCA 175 (‘Stoupe’), Johnson J considered ‘notional issues of accumulation, concurrency and totality for the purpose of reaching the aggregate sentence to be imposed’ (at [128]).

[86] In Aryal v R [2021] NSWCCA 2, a purported misapplication of the totality principle in arriving at the aggregate sentence was relied upon as a stand-alone ground of appeal. R A Hulme J (with whom Johnson and Wilson JJ agreed) identified a number of difficulties in establishing a breach of the totality principle in an aggregate sentence. In dismissing that ground of appeal, his Honour observed the following at [49]-[50]:

The second difficulty is that the applicant's submissions assume the correctness of the individual sentences assessed and indicated for each offence. As noted above, one of the propositions relating to appellate review of an aggregate sentence listed in JM v R was that ‘even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive (’). This was affirmed recently by Beech-Jones J in Lee v R [2020] NSWCCA 244 at [32]. Generally speaking, the same must apply if the indicative sentences are inadequate, at least where their sum equals or exceeds the aggregate.

Rather than making an assumption that the indicative sentences are correct, and then endeavouring to assess the extent by which there has been some notional accumulation, the critical question is another of the principles noted in JM v R, ‘whether the aggregate sentence reflects the totality of criminality involved’. That raises for determination under Ground 2 of the proposed appeal.

See, similarly, Burke v R [2022] NSWCCA 6 at [32] (Fullerton J, McCallum JA and Walton J agreeing).

35. Addressing the “critical question” of “whether the aggregate sentence reflects the totality of criminality involved” and not assuming the correctness of the indicative sentences, the following matters are significant:

1. The large commercial drug supply offence had a maximum penalty which is the highest available to the criminal law, imprisonment for life, as well as a standard non-parole period of 15 years.

2. There is no challenge to the finding of the sentencing judge that the objective seriousness of that offence was “just under the midrange level”. [15]

3. There were four offences listed on a Form 1 document that the judge was asked to take into account when sentencing for the large commercial drug supply offence. Three of those offences were of significant seriousness in their own right.

4. The taser possession offence had a maximum penalty of imprisonment for 14 years and a standard non-parole period of 5 years.

5. The possession of the taser in the context of being engaged in a drug supply enterprise rendered it, as the applicant conceded, a more serious offence than it otherwise might have been, and there was no challenge to the judge’s finding that it was in the midrange of objective seriousness.

6. There was a degree of overlap in the criminality in each offence but the extent of it, and thus the determination of the totality of criminality, was a matter for the sentencing judge’s evaluation.

   15. ROS 11.3

36. In the context of statutory prescriptions of substantial maximum penalties and standard non-parole periods, focussing upon the overall criminality of the two offences and bearing in mind the further offences to be taken into account, it cannot be said that the aggregate sentence was unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. I am satisfied that it was within the acceptable bounds of a legitimate exercise of the sentencing discretion.

37. I accept that this ground was arguable and I would favour a grant of leave to appeal. However, the ground must be rejected.

Ground 2 – disparity between the sentence imposed upon the applicant with that imposed upon Eren Mehmed giving rise to a justifiable sense of grievance

38. The argument in support of this ground involves a comparison of the sentence imposed upon the applicant on 30 November 2021 with the sentence imposed upon Eren Mehmed by his Honour Judge Arnott SC on 22 July 2022 for the following offences:

1. Knowingly take part in the supply of a large commercial quantity (728g) of methylamphetamine between 8 May 2020 and 12 May 2020.

2. Supply of a large commercial quantity (1kg) of methylamphetamine on 20 May 2020.

39. Information was provided to Arnott SC DCJ about a number of “related offenders” including the present applicant, although it was submitted by the Crown that this was for “context purposes” and that “parity doesn’t have much application because of the different offences that were laid … and … the quantities involved are of such a difference” and that “the dissimilarity of the charges and the bases of liability makes any meaningful comparison very difficult”. [16]

    16. AWS [32]

40. The applicant contended that his aggregate sentence of 8 years was longer than the sentence of 7 years and 9 months imposed upon Mr Mehmed even though his criminality was less and he thereby held a justifiable sense of grievance. The Crown responded with arguments concerning the merits of the ground, seeking to differentiate the cases of the two offenders, submitting that “the applicant is seeking to argue for equality from a base of difference”. [17]

    17. Crown written submissions at [60]

Consideration

41. There is a fundamental flaw in this ground: the applicant and Mr Mehmed were not co-offenders in the same criminal enterprise.

42. There is no doubt that the parity principle is concerned with the comparison of sentences imposed upon co-offenders involved in the same criminal enterprise (even if charged with different offences arising therefrom). It has been confirmed by the High Court in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 per French CJ, Crennan and Kiefel JJ at [30] and in Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 per French CJ, Hayne, Kiefel, Bell and Keane JJ at [30]. The same was said in Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 (per Campbell JA at [136]-[137], [202] and per Howie J at [246]).

43. The parity principle is not, however, concerned with the comparison of sentences imposed upon persons who were not co-offenders: R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555 at [66] (Johnson J); Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162 at [148]-[149] (Bathurst CJ).

44. The applicant’s argument is virtually the same as that which was raised unsuccessfully by the applicant in Meager v R [2009] NSWCCA 215. Narelle Collier was a supplier of heroin to persons who contacted her by telephone. They were persons who were users of the drug and persons (namely Ms Meager and a man named Patrick McDaid) who in turn supplied to users of it. In explicitly complying with the parity principle the sentencing judge had regard to the sentence he had imposed upon Mr McDaid when sentencing Ms Meager. In applying for leave to appeal Ms Meager raised a parity argument by reference to the sentencing of Ms Collier. Latham J (Young JA and Johnson J agreeing) rejected the contention on the basis that they were not co-offenders so the parity principle had no application.

45. Other examples of the parity principle not applying to persons who are not co-offenders include:

Why v R [2017] NSWCCA 101: an attempted comparison of sentences passed upon a supplier and his customer where they each had other customers and suppliers.

Malouf v R [2019] NSWCCA 307: a complaint of disparity of sentences imposed upon a drug dealer and the person from whom he was receiving his supplies.

46. I have earlier (at [9]-[11]) sought to describe the facts of the present applicant’s offending in a manner that makes clear that he and Mr Mehmed can in no sense be regarded as “co-offenders”; that is, offenders involved in the same criminal enterprise. The applicant was a supplier of drugs to others. He sourced drugs from Mr Ali-Ahmed and others who were engaged in a separate drug supply enterprise. The agreed facts disclose only one occasion where the applicant’s offending intersected with that of Mr Mehmed and that was on 6 April 2020 when the applicant negotiated with Mr Ali-Ahmed to purchase drugs and they were delivered to him by Mr Mehmed.

47. The offender had no apparent interest or involvement in the drug supply enterprise being conducted by Mr Ali-Ahmed and others apart from being one of its customers and they had no interest or involvement in the drug supply enterprise being conducted by the applicant apart from being his upline supplier.

48. There was some discussion at the hearing about whether the applicant might alternatively rely upon the sentencing of Mr Mehmed as a comparator for the assessment of the manifest excess contention raised under Ground 1. [18] It was not an approach that was advanced with any enthusiasm by the applicant’s counsel. The discussions by Johnson J in R v Araya at [65]-[72], and by Latham J in Meager v R at [10]-[12], indicate that this would not have been a useful approach in any event. It is rarely useful to assess the severity (or inadequacy) of a sentence by reference to a single comparative case and here there are so many differences, from the offences charged through to the subjective factors that make such an exercise inutile.

    18. CCA 30.6.23, T4.35ff

49. There is no merit in this ground.

Orders

50. I propose the following orders:

1. Leave to appeal against sentence granted.

2. Appeal dismissed.

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Endnotes

Decision last updated: 14 July 2023