MH v R

[2022] NSWCCA 287

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

MH v R [2022] NSWCCA 287

Hearing dates:

17 June 2022

Date of orders:

15 December 2022

Decision date:

15 December 2022

Before:

Ward P at [1]
Mitchelmore JA at [2]
Lonergan J at [3]

Decision:

(1) To the extent necessary, extend time within which to file a notice of appeal until 13 October 2021.

(2) Grant leave to appeal.

(3) Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against sentence – extension of time in which to appeal – sentenced and notice of intention filed in 2018 – appeal filed in 2021 – extension granted

CRIME – appeals – appeal against sentence – multiple offences – where background of very substantial disadvantage taken into account – whether error in application of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 principles – whether error in not reducing offender’s moral culpability – no error shown

CRIME – appeals – appeal against sentence – assistance to authorities – provision of phone number resulting in sentencing of another offender for drug and other offences – whether 5% discount manifestly inadequate – no misapplication of principle or error shown

CRIME – appeals – appeal against sentence – multiple offences – custodial conditions significantly worse than contemplated – whether evidence “new” or “fresh” – whether evidence should be admitted – not “exceptional” – evidence not admitted – ground dismissed

CRIME – appeals – appeal against sentence – parity – specially aggravated kidnapping – whether sentencing judge failed adequately to consider each offender’s level of criminality and subjective cases – no justifiable sense of grievance

Legislation Cited:

Crimes Act 1900 (NSW), ss 86(3), 154C(2), 350

Crimes (Sentencing Procedure) Act 1999 (NSW), s 23

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

Cases Cited:

Brierley v The Queen [2022] NSWCCA 26

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

Fordham v R (1997) A Crim R 359

House v The King (1936) 55 CLR 499; [1936] HCA 40

Judge v R [2018] NSWCCA 203

Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207

Perkins v R [2018] NSWCCA 62

R v Chaaban [2006] NSWCCA 107

R v Dungay [2020] NSWCCA 209

R v Munday [1981] 2 NSWLR 177

R v Vachalec (1981) 1 NSWLR 351; [1981] NSWCCA 26

WM v R [2020] NSWCCA 96

Wright v R [2016] NSWCCA 122

Category:

Principal judgment

Parties:

MH (Applicant)
Regina (Respondent)

Representation:

Counsel:
T Woods / K Lloyd (Applicant)
A Morris (Respondent)

Solicitors:
Just Defence Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2011/00413945
2012/00092150
2013/00248578

Publication restriction:

(1) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), on the ground set out in s 8(1)(c), the Court makes a suppression and non-publication order in respect of anything that would identify the Applicant for leave to appeal in these proceedings.

(2) Order (1) shall remain in force until the expiry of the Applicant’s sentence or until further order of the Court.

(3) Order (1) applies throughout the Commonwealth of Australia.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

1 June 2018

Before:

Frearson SC DCJ

File Number(s):

2011/00413945
2012/00092150
2013/00248578

HEADNOTE

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

The applicant sought leave to appeal out of time against the sentence imposed upon him by Judge Frearson SC DCJ sitting in the District Court at Sydney on 1 June 2018.

The applicant pleaded guilty to four offences: supply prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (with a Form 1 offence taken into account) (“Count 1”); assault with intent to take motor vehicle contrary to s 154C(2) of the Crimes Act 1900 (NSW) (“Count 2”); accessory after the fact to discharge firearm with intent to cause grievous bodily harm contrary to s 350 of the Crimes Act (“Count 3); and specially aggravated kidnapping on 18 January 2012 contrary to s 86(3) of the Crimes Act (“Count 4”).

The offending on Count 1 involved police finding the applicant (who was on bail at the time) in possession of 13.9 grams of methylamphetamine of an 80% purity in circumstances which the sentencing judge described as a “blatant drug transaction being in possession for supply”. Count 2 was committed in 2012 and involved the applicant and two others carrying out a violent carjacking in the context of seeking the repayment of a debt. Count 3, which was committed on the same day as Count 2, was a “complicated matter” which involved an exchange of gunfire between two vehicles, of which the applicant was an occupant in one. The sentencing judge found that the applicant was in the vicinity of the shots and assisted a co-offender to avoid detection in a number of ways. Count 4, which occurred approximately a week after Count 3, involved the forcible kidnapping in company of a person whom the applicant and his co-offenders thought, mistakenly, owed them money. During the kidnapping, the victim was assaulted in terms which the sentencing judge found exceeded the threshold of actual bodily harm.

In the proceedings on sentence, the applicant tendered evidence showing his assistance to authorities, a large part of which related to the applicant having been a victim of a shooting. He had also provided a telephone number, which led to another offender being charged with drugs and firearms offences and receiving a custodial sentence.

After the application of a 7% discount to his sentence for the utilitarian value of his pleas, and a further 5% for assistance, the applicant was sentenced to an aggregate sentence of 7 years and 9 months imprisonment with a non-parole period of 5 years and 3 months.

The applicant advanced four grounds of appeal:

(1)   The sentencing judge erred by failing to assess the applicant’s moral culpability for the offending;

(2)   The discount for assistance to authorities was manifestly inadequate;

(3)   Evidence which was not available at the time of sentence, but was available on appeal, demonstrated that the applicant’s conditions of custody were significantly worse than contemplated and found by the sentencing judge; and

(4) The applicant had a justifiable sense of grievance as a result of the sentence imposed upon a co-offender, Mr Saliba (in relation to Count 4 only).

The applicant required an extension of time in which to appeal, which the Crown opposed on the basis that there was no properly evidenced application for the extension and the proposed grounds of appeal had no merit.

The Court (Lonergan J, Ward P and Mitchelmore JA agreeing), extending time to file a notice of appeal, granting leave to appeal, but dismissing the appeal, held:

As to Ground 1:

1. Where an applicant’s disadvantaged background has not been shown to be related to his offending, the offender’s moral culpability is not reduced. Having found that the applicant’s background of very substantial disadvantage did not reduce his moral culpability for the offending, the sentencing judge found that his disadvantaged background was nonetheless a factor to be taken into account as part of instinctive synthesis. His Honour’s pithily expressed remarks indicated that this is what he had done: [1], [2], [34]-[38].

   Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37 considered; Perkins v R [2018] NSWCCA 62; Judge v R [2018] NSWCCA 203; R v Dungay [2020] NSWCCA 209; Nasrallah v R [2021] NSWCCA 207 applied.

As to Ground 2:

1. The assistance given by the applicant was limited. He did not give a statement or offer to give evidence against any person. Participating in a trial as the victim of an offence is not assistance in the sense meant in s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). There was nothing inherent in the discount chosen or his Honour’s reasons for it that indicated any misapplication of principle or error: [1], [2], [44].

As to Ground 3:

1. The additional material which the applicant sought to tender on appeal should not be admitted. Some of it was “new” evidence which could have been led on the sentence hearing but was not (and it had no capacity to affect re-sentencing). Other evidence, which referred to and evidenced a decline in the applicant’s mental health since sentence could be classed as “fresh” evidence, but it raised considerations which were not exceptional in the circumstances of the applicant being in custody: [1], [2], [54].

   Brierley v The Queen [2022] NSWCCA 26; Fordham v R (1997) A Crim R 359; Wright v R [2016] NSWCCA 122 considered; R v Vachalec [1981] 1 NSWLR 351; [1981] NSWCCA 26 applied.

As to Ground 4:

1. In sentencing the applicant’s co-offender, Grant DCJ analysed the sentencing remarks of Frearson DCJ with some care, specifically considering the question of parity. His Honour having considered the level of criminality and important differences in their respective subjective cases, there was no justifiable sense of grievance:[1], [2], [61]-[66].

   WM v R [2020] NSWCCA 96 considered.

JUDGMENT

1. WARD P: I agree with Lonergan J.

2. MITCHELMORE JA: I agree with Lonergan J.

3. LONERGAN J: The applicant seeks leave to appeal out of time against the sentence imposed upon him by Frearson SC DCJ sitting in the District Court at Sydney on 1 June 2018.

4. Frearson SC DCJ sentenced the applicant for four offences to which the applicant had pleaded guilty. The first was supply prohibited drug in December 2011 contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), (with a further count of drug supply taken into account on the Form 1). The maximum penalty for that offence is 15 years imprisonment.

5. The second offence in January 2012 was assault with intent to take motor vehicle contrary to s 154C(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 14 years imprisonment and carries with it a standard non-parole period of 5 years.

6. The third offence, also in January 2012, was accessory after the fact to discharge firearm with intent to cause grievous bodily harm contrary to s 350 of the Crimes Act which carries a maximum penalty of 5 years imprisonment.

7. The fourth offence was specially aggravated kidnapping on 18 January 2012 in contravention of s 86(3) of the Crimes Act which carries a maximum penalty of 25 years imprisonment.

8. The indicative sentences identified by Frearson SC DCJ were:

• Count 1: drug supply (taking into account the Form 1 supply offence): 16 months imprisonment;

• Count 2: assault with intent to take motor vehicle: 3 years and 3 months with a non-parole period of 2 years and 2 months;

• Count 3: accessory after the fact to the discharge of a firearm: 16 months;

• Count 4: specially aggravated kidnapping: 6 years and 3 months.

9. His Honour imposed an aggregate sentence of 7 years and 9 months imprisonment with a non-parole period of 5 years and 3 months. The sentence was backdated to commence on 28 January 2018 and so expires on 27 October 2025, with the non-parole period to expire on 27 April 2023.

10. The applicant initially also sought leave to appeal against the sentence imposed upon him by Adams QC ADCJ on 20 August 2020 for other offending, but that appeal was withdrawn during argument on 17 June 2022. An order will be made in Chambers formally dismissing that application for leave to appeal. It should be noted that for that other offending the applicant was sentenced to a term of imprisonment of 4 years and 3 months with a non-parole period of 2 years and 3 months which expires on 31 August 2024.

11. There are four grounds of appeal:

1. The sentencing judge erred by failing to assess the applicant’s moral culpability for the offending;

2. The discount for assistance to authorities is manifestly inadequate;

3. Evidence which was not available at the time of sentence, but is now available, demonstrates that the applicant’s conditions of custody are significantly worse than contemplated and found by the sentencing judge on sentence; and

4. The applicant has a justifiable sense of grievance as a result of the sentence imposed upon the offender Elias Saliba (in relation to Count 4 only).

Extension of time

12. The applicant requires an extension of time because he filed a notice of intention to appeal on 1 August 2018 but did not file his notice of appeal until October 2021. The Crown asserts that an extension of time should not be given because first, there is no properly evidenced application for extension of time and second, the proposed grounds of appeal all have no merit.

13. The affidavit of the applicant’s solicitor, Ms Fahd, sworn 13 October 2021 filed in support of the application for extension of time for leave to appeal asserted that the applicant was the subject of physical attacks in custody requiring hospitalisation and that he had received threats and had fears for the safety of his family and that these issues have distracted him “from pursing his appeal”.

14. The Crown argued that this was not an adequate explanation for the delay in proceeding with the appeal, the applicant was able to instruct lawyers for his 2020 sentence matters so there is no proper basis for an extension of time.

15. In my opinion the explanation given in Ms Fahd’s affidavit is adequate and so an extension of time should be given, and leave to appeal granted, but I would dismiss the appeal as none of the grounds of appeal has been made out for the reasons that follow.

Facts of the offending

Count 1: Drug supply - 23 December 2011

16. The following facts are extracted from the remarks on sentence commencing with Count 1:

“At about 8:20pm on Friday 23 December 2011. The police observed a particular vehicle, a grey Toyota Corolla making a left-hand turn from Canley Vale Road onto Smithfield Road at Greenfield Park heading south. The driver actually looked in the direction of police and the vehicle increased speed, excessively. There were two people in the vehicle. There was a front passenger as well as the driver and police began to do what you would think, they followed the vehicle travelling at high speeds and it then made a right-hand turn into Cherokee Street and a left-hand into Chickasaw Street and another left into [REDACTED], and upon entering [REDACTED] it became stationary outside [REDACTED] and the offender actually lives at that address.

The vehicle was parked in the way described in the facts and the police observed the two males who are mentioned in the facts standing by the driver’s door of another vehicle, a silver Honda Accord. And police positioned their vehicle as set out. The offender was seated in the driver's seat of the first vehicle and the front passenger exited the vehicle and walked towards the other vehicle. There was some nodding of the heads. The passenger then looked up and apparently saw the police and turned quickly and walked back to his vehicle. And he appeared to speak to the offender and the offender turned and looked at the police and the offender was observed to be reaching forward towards the foot well of the vehicle. It is a very long story actually. He appeared nervous and fidgety. He was speaking very quickly and the police questioned him and he became agitated. And they conducted a search.

Mr Saliba had $2,000 in his pocket. He said it was for Christmas shopping and the offender had $400 and that was also for Christmas shopping. The offender explained, "it's not my car" and he told the police he did not know who owned the vehicle. He only had it for 10 minutes. And anyway, within the glove box there was a set of scales with some white residue on top and located on the driver's side near seat was a set of keys to the vehicle. There were no keys in the actual ignition.

Under the driver's seat, police located a plastic bag containing two clear plastic bags with white powder and the offender said again, ''It's not my car, I've only had it for 10 minutes". And but his phone rang continuously every minute or so and there were a number of messages located which are set out in the facts which are indicative of some drug transactions, I must say. He was conveyed back to the Fairfield Police Station. He denied any knowledge of the drug. It turned out to be 13.9 grams of methyl amphetamine of an 80% purity.”

17. His Honour made these findings as to the objective seriousness of Count 1:

“It is contended this is a low-range offence but there are no inflexible rules about these things. When I look at what happened here, it is sometimes said that the quantity is not decisive for criminality and that is true, but it is relevant. But this presents as a blatant drug transaction being in possession for supply. There were scales in the vehicle, obviously significant deliberation and planning. The drugs just do not appear in a vehicle from nowhere. And it seems to me that it is a serious example of the type of offence it is, I do not know that I need to say any more about it, as to where it fits in the range, but it is a serious example notwithstanding the rather modest quantity of 13.9 grams.”

Count 2: Assault with intent to take motor vehicle - 10 January 2012

18. His Honour then continued with the facts relating to Count 2:

“That leads to the s 154C(2) offence, the victim being Zia Kryo. This is a matter of some complication. In 2011, the offender became associated with a group of security guards from the Roxy Hotel at Parramatta. And in the group were a number of persons, Danny Faatagi who I will refer to from now as DF, Kava Valu - I will refer to him as KV. Periti Fanolua - I am sure I have not pronounced that correctly. And Christopher Afamasaga - I will call him CA. And both DF and KV had known the offender for some years prior to that.

It was on 10 January 12 that DF, KV, PF attended the offender's home at Greenfield Park. There was a conversation there with PF and the offender indicated that he was owed money. In order to obtain the repayment of a debt he asked PF to contact a particular phone and order a delivery of 3 ounces of cannabis. The meeting with the drug supplier was to occur in Devenish Street at Greenfield Park. The offender wanted to confront the drug supplier about the debt the offender was owed.

The offender told KV that he was owed money by a group he referred to as the Assyrians. The offender told KV that he was going "to make him give me my money", referring to the drug supplier. And he discussed with KV taking the keys out of the ignition of the person's car when the car pulled up.

In the afternoon, DF drove his green Camry to Devenish Street. There, together with the offender, and the other persons, DF and KV, waited in the car. About 10 minutes later, a small Daihatsu Charade driven by the person referred to now as witness A, arrived in the street and he was, witness A was intending to sell some cannabis. And at this stage, the offender and PF and KV got out of their car and PF reached into the vehicle and took the keys out of the ignition and the offender also approached and opened the door of the car and he told witness A "get the fuck out of the car". And the driver did as he was told. "Where the fuck is the money" said the offender. The driver said, "Yeah I, I know but I, I can't do anything about it, it's not me, it's the guys above me". The offender slapped the driver and pushed him against the car. And at one point the offender took some property from the male as set out, the driver was then allowed to walk away.

The offender then directed PV and KV to take the car and follow after DF's car. PF and KV did as they were asked, the car was then driven a short distance before the offender directed DF to stop. Some money and cannabis was taken from the car during the incident, I will leave that out, the group travelled back to the offender's house leaving the car where it was.

The vehicle was taken so the offender could get his debt repaid and after the group returned to the offender's premises two unknown persons of Middle Eastern appearance turned up in a silver RAV 4 and the offender and one of the males went into the bedroom, the offender's bedroom. The offender then left the house in the RAV 4 with the two unknown men and the group including the offender then returned to the location of the Charade. The vehicle's keys were returned to one of the males and those males who then left in the Charade. KV, PF, followed in the RAV in PF's car and they observed the return of the car. The offender was then driven back to his house in the RAV.

Property was taken from the driver, that was returned to the witness, the offender retained a second phone, apparently he did something with the SIMs, which is not particularly significant. The offender later said at his house he had been given half the money.

It is interesting to look at that carjacking matter and what appears that the offender enlisted the security people, and he invoked some subterfuge to seek the recovery of his debt or whatever that was for, it was some type of enforcement of the debt by his mates, and security people, and with two others he administered violence, he administered some violence himself, to collect the debt. What was executed was some type of quite elaborate plan and it is a very serious example of these types of carjacking offence, in my view. I appreciate that I cannot double count the elements, in company is an element, but there's another person also involved here in excess of the element.”

19. His Honour made these findings on objective seriousness for Count 2:

“The Crown refers to one of the relevant authorities, R v Spiker and Gibson and I have submissions from both sides as to where this matter fits in terms of gravity, but in my view it is a mid-range offence, I need to take into account all the things that happened. The motive is certainly relevant and the degree of intimidation is certainly relevant. As I said, I appreciate I do not double count any element here.”

Count 3: Accessory after the fact to discharge firearm - 10 January 2012

20. The facts regarding Count 3 were summarised by his Honour as follows:

“The next matter is the accessory after the fact matter to the discharge firearm with intent to do grievous bodily harm. That is also a complicated matter in terms of the facts, which I hesitate to embark upon, but what happened essentially was this: there was a meeting arranged between the offender and the person who owed the money, for the early hours of the morning, and the meeting was arranged to be at the Greenfield Park Tavern. Later on 10 January 2012 the offender travelled in a white Charade with distinctive writing towards that tavern. At some stage he was with the principal, Loukman Abdul-Rahman, and they were accompanied by another vehicle, namely a blue Camry, which was driven by an associate Elias Saliba and also in the vehicle was another man called Mohammed EI-Nasiry.

It was about 1:31am that the offender arrived at the BP service station next to the Greenfield Park Tavern in the Charade and shortly after, the offender went into the tavern and he left immediately after at about 1:33am. Thereafter the offender remained in the vicinity of the tavern car park expecting a meeting with some unknown males. At this time Mr Saliba and Mr EI-Nasiry went driving around in the blue Camry. They were present with the knowledge of the offender. They were there to assist the offender if anything untoward happened with some type of security. Mr EI-Nasiry was in possession of a firearm; Mr Loukman Abdul-Rahman was in possession of a .45 pistol. It was about 1:55am that the white Toyota with approximately three unknown males drove into Mimosa Street, near the tavern, at this time the blue Camry was driven by Mr Saliba, was in Greenfield Park near the Mimosa Road intersection and at this time a gunshot was fired from the Corolla and return gunshot fire came from the Camry. Thereafter there was a series of rounds fired from each vehicle. Shots were fired by an unknown male in the white Corolla, white silver Corolla. The shots from the blue Camry came from the passenger window and were fired by Mr EI-Nasiry; he was leaning out the window apparently. At least four further rounds were fired from the vicinity of the car park beside the Greenfield Park Tavern. They were fired by Loukman Abdul-Rahman. At that time the offender was in the near vicinity, the firing of the .45 pistol was directed at the Corolla, the white silver Corolla. At the time the white Corolla drove from the scene, Mr Saliba drove the blue Camry past the car park and stopped briefly and the offender and Mr Abdul-Rahman got in. Mr Saliba then drove after the Corolla.

What is alleged to have happened then is that Mr Abdul-Rahman told Saliba to chase the other car and smash it off the road. The car was followed, the other car was followed. The Corolla eventually eluded the Camry and could not be located after that apparently. Then what happened thereafter is that the offender removed his coat and EI-Nasir removed his hooded jumper and this was done, it is said to hinder the police, these items were placed in a garbage bag and subsequently placed in the boot of the Camry.

At some point prior to 3:00am the offender exited the Camry and returned to the Charade which he had been in earlier that night, and the facts go on to detail the attendance of police and their investigations. Indeed police encountered the blue Camry about 3:00am and the fact it did not stop. The facts recount what happened there. It actually had a bullet hole in it and there was some CCTV from a local service station at Bonnyrigg which showed the Daihatsu in the Bonnyrigg area about 3:15am. Sometime later about on the morning of 11 January the offender told Mr Fanolua to watch the news, and the facts are set out, and he admitted to his friends that he was present around the time of the shooting.

Now the facts go on to detail the forensic examinations, but what is perhaps more instructive is the facts include the suggested basis of liability as accessory after the fact. That appears in paragraph 51 onwards. The offender was in the vicinity at the time shots were fired and he assisted the co-offender to avoid detection in a number of ways. He assisted the principal to leave the scene by getting into the Camry with him and encouraging Mr Saliba to drive after the other vehicle and then in the Corolla he removed his distinctive jacket, the one that he was wearing at the time of the shooting. The contention is that that jacket was placed into a bag and later found in the boot, as I have already mentioned, and it was done to stop people from connecting it with the shooting and distancing both the offender and the principal from the shooting. At 3:03am, the morning the Camry was pursued by the police car and abandoned, abandoned by the principal. At 3:09am the principal contacted the offender by phone and thereafter the offender attended in the Daihatsu and that vehicle was picked up on video footage, security footage. The offender assisted the principal and another person Elias Saliba to leave the area. Later on he also shaved his head and eyebrows.”

21. His Honour then provided an analysis of the nature of the charged conduct and the objective seriousness of this conduct comprising Count 3:

“It is an interesting matter, indeed, because when you look at it, I have to resist the temptation to infer that the offender was actually a principal or accessory before the fact, because the facts certainly suggest that inference as a sensible and reasonable one but the offender has the advantage of pleading to the other charge of accessory after the fact charge. I am confined to looking at the matters that make him accessory after the fact. I do accept that there are relevant considerations here: the extent of his knowledge which was quite excessive, the duration of the assistance, the actual acts of assistance with a view to the offender evading justice. There is an aspect of assisting himself, but they are not mutually exclusive considerations.

The Crown points to the escalation of the dispute between the offender and the unknown person re the money. The offender was in reasonable proximity to the actual shooting and the Crown points to what he did thereafter. I have already mentioned those matters and I will not repeat them.

What strikes me about it is that the principal offence and certainly a very, very serious one, so that is a consideration. The extent of the offender's knowledge is a relevant consideration and also the general circumstances in which the offence took place is a relevant consideration because there are common denominators here all the way through in terms of the offender trying to get his money back. So again, I do think this is a mid-range offence and that is where I put it.”

Count 4: Specially aggravated kidnapping - 18 February 2012

22. His Honour found the following facts in respect of Count 4:

“That leads to the very serious charge of the specially aggravated kidnapping, the s 86 indictment Count 3 offence. Following the other events, at about 10:00am on 18 January 2012 the offender with Elias Saliba travelled in a Ford Territory into Nugent Street, at Prairiewood and there was also another man inside the car. It is said that prior to this that certain persons, as set out in the facts, were on the lookout for this dark coloured Daihatsu Charade, which was somehow believed to be connected with the offender's owed money.

Shortly before 1:00am one of the people involved Mr Fanolua thought he saw a small car, and he thought it was the one that he was seeking, and as a result, Mr Saliba drove after this little car he saw, it was a Charade which entered into Nugent Street.

After driving into Nugent Street Adrian Angileri and his passenger Agarsi Shuman were sitting in the Charade. They sat at that location and had a quiet cigarette. Mr Angileri was familiar with the area, he had friends living in that street. Mr Angileri was seated in the driver's seat and Mr Shuman was in the passenger seat. It was just a residential street; it was a circuit. There is one entrance in and out. Mr Saliba drove the Ford Territory to Nugent Street and stopped behind the other vehicle and what happened was the offender and others mistook Mr Angileri for someone he was involved in a dispute with. It was all a terrible mistake. After the Territory stopped the offender as well as Saliba and Valu exited the vehicle, and approached the complainant's vehicle. One of the offenders punched the driver's side window, damaging it. The victim attempted to move away. One of the men got into the driver's seat of the Territory and drove the vehicle in the direction of the Daihatsu driven by the victim. A short time later Mr Angileri stopped his vehicle and said, "I'm innocent" which was not unsurprising because he had nothing to do with the money. As this was said Mr Valu smashed a rear window of the Daihatsu with his foot and he went to open the driver's window and pulled Mr Angileri out of the Daihatsu through the window. Someone said, ''Put your head down". One of the offender's put a shirt or rag over Mr Angileri's head and he was then forcibly moved by two of the men Saliba and Valu into the Ford Territory. He was thrown into the rear boot area of the Ford Territory and after closing the door. The offender and co-offenders got back into their vehicle and drove away.

Mr Saliba was driving. As the offenders drove away someone told the victim, "Don't talk", and shortly after someone said, ''Don't move, don't get up or we'll bash you". The Ford Territory was driven around for about 15 minutes. After stopping the Ford Territory near the offender's home in Greenfield Park a number of people exited and went to the rear. After opening the rear boot area the victim was told to get out. After the victim got out one of the men from the car punched him to the right side of the ribs and another one punched him to the ear on the right side. After detaining the victim for a short time the offender and co-offenders realised that he had nothing to do with the money, it was all a terrible mistake.

The offender decided to release the victim and at some point they quite charitably said to him, "Do you want to go to the hospital?" He said, "No let me walk". And walk he did. The complainant walked a short distance and realised that he was on Smithfield Road then he ran and headed back to his home, and he stopped at a service station got a bottle of water and cleaned himself up. Later on he did speak to the police.

Police were alerted about 1:20am and they went to Nugent Street. They found the vehicle; the Daihatsu was empty with the windows damaged. An investigation resulted and as a result of all that happened. The victim had big scratches across the front of his neck and on the left-hand side of his neck. He suffered bruises and scratches on the right-hand side of his ribs and the right-hand side lower back, a big bruise on his left knee and bruises and cuts on his right shin. He also received cuts and grazes on the back of his right hand.”

23. His Honour assessed the objective seriousness of the conduct comprising Count 4 in these terms:

“What I note about those is that they actually exceed the threshold of actual bodily harm. I am not allowed to double count the other ones but I can take into account all that happened.

Well it turns out the offender was in company. In company and actual bodily harm are elements but he was in company with three people. There were windows smashed; the victim's head was covered, he was assaulted, forcibly removed from the vehicle, thrown in the boot of another vehicle, driven around for 15 minutes, repeatedly punched, threatened to be bashed, and then he was let go when the mistake was realised.

This is not a matter where it is necessary to exercise any refinement about the actual roles of the participants. They were all enthusiastic participants in all that went on, all that happened. In my view they are all equally responsible. The money was in fact owed to the offender on his account and he was trying to collect his debt.

Obviously, it is just part of all the things that were happening and it clearly involves much deliberation and determination and considerable organisation. It resembles like vigilante conduct that needs to be deterred one way or the other. Again, I consider it is a very serious example of that type of offence, but it is still in the mid-range, in my view.”

Other aspects of the remarks on sentence

24. It was relevantly noted that Counts 2 to 4 were committed whilst the applicant was on bail for Count 1 and this aggravated the sentence. His Honour referred to the prior criminal record comprising some driving matters in 2010, as well as a charge of destruction of property and reckless wounding and noted that it was a record which denies leniency that would otherwise be available to someone who had an unblemished record.

25. There was considerable delay in the matter and his Honour observed that the applicant had been subject to very restrictive bail conditions for approximately five years with no offending in the meantime and so his Honour noted that he would ameliorate the sentence because of those considerations.

26. His Honour noted the affidavit material referred to the family history of disadvantage and the tragedies in 1995 and 1996 when the applicant’s father and brother were killed in a fire. The applicant came to Australia with his mother in 1999. His mother is unwell and has had a stroke and needs care. The situation with the applicant’s partner and child was noted including that she was then 32 weeks pregnant. His Honour noted the applicant’s own health issues, an irregular heartbeat and depression, and the report of a psychologist, Mr Borenstein, who referred to the applicant’s belief that he is in possible danger from members of “Syrian gangs”. His Honour also noted Mr Borenstein’s opinion that the applicant has severe symptoms of depression and anxiety and stress.

27. The background of “very substantial disadvantage” was accepted, his Honour observing that whilst that background and the psychologist’s report explained to some extent the offending, it does not mitigate its gravity because there was nothing that would preclude an appreciation on the part of the applicant that what he was doing was wrong.

28. His Honour referred to the history of the plea, being a late plea made on 2 November 2017, four days after the trial for the first of the offences was due to commence. His Honour noted that the applicant had later applied to reverse his pleas, but that application was refused for reasons given by the sentencing judge. (That decision and those reasons were not the subject of challenge on this appeal).

29. His Honour dealt with the question of assistance to authorities this way:

“There is the aspect of the assistance and initially it was suggested at least that it would not require any discrete discount. The assistance, one aspect of it is set out in the statement of Paul O’Neill of 9 April 2018 and that matter is self-explanatory. A large part of that is the actual matter that the offender himself was a victim of a shooting. I have also received in a statement from Brenton Somerville in relation to other matters and he had discussions with the offender in 2012 and eventually got a number which led to the identify of a cannabis supplier and he was an associate of a gang member and that person was apparently charged with drugs and firearms offences, got two years and three months with a non-parole period of 12 months and then as a consequence of that some additional networks were discovered. These [sic] were no statement from the offender and there was no offer to give evidence against anybody. It is a question of taking that all into account.

What I am required to do is to consider the matters in s 23 which are the significance and usefulness of the assistance and the truthfulness and completeness, the nature and extent, the timeliness, any benefits to the offender and suggestion of harsher custodial conditions as a result of that, also any apprehension that is felt by the offender as a result of giving any assistance.

Mr Dennis points out that I am actually required to comply with 4(b) and state the penalty that would have otherwise been imposed and of course the ultimate constraint is that the discount cannot be reasonably proportionate [sic] to the nature and circumstances of the offence.

What I have decided to do effectively is this. I have already given a discount of 7% for the utilitarian aspect of the plea, I propose to give a combined discount of 12% for the plea and assistance and so that is effectively an extra 5% for the assistance…”

30. Reference was made to the need for deterrence because the offending comprised “lawless conduct engaged in to obtain money thought to be owed”. His Honour found that there had been no demonstration of remorse and that he could not conclude that it was unlikely that the applicant would reoffend. He determined the applicant’s prospects of rehabilitation to be “at least fair”.

The appeal

Ground 1: The sentencing judge erred by failing to assess the applicant’s moral culpability for the offending

31. The complaint made by the applicant is, in substance, that the sentencing judge did not take into account the detailed oral submissions made invoking Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) or the evidence tendered that supported that the applicant sustained multiple trauma and significant dislocation and had adjustment problems during his childhood. Given the evidence of the psychologist Mr Borenstein, there was error in the sentencing judge’s failure to give specific consideration to the question of moral culpability. It was submitted that the remarks on sentence did not make overt reference to moral culpability, nor to the principles enunciated in Bugmy and so the remarks do not show how, if at all, the applicant’s background of disadvantage and trauma was taken into account in mitigation.

32. The Crown submitted that his Honour’s remarks indicate that, consistent with principle, he did in fact make an assessment of the applicant’s moral culpability and simply declined to make a finding that his moral culpability was reduced given his Honour’s conclusion that there was no connection or link between the applicant’s disadvantaged background and mental health problems and the offending.

Resolution of Ground 1

33. In his extempore remarks on sentence his Honour referred in some detail to the history taken and the conclusions set out by Mr Borenstein in his 30 May 2018 report and went on to say this:

“The upshot is that he has had a traumatic childhood and that is partly as a consequence of what happened to his father and brother in the house fire and the subsequent kidnapping and when he came to Australia he had no friends of family. He was disadvantaged by his lack of English and the report sets out his very restrictive bail conditions. It does say that the certain testing reveals that he has no better than low average intelligence.

This report indicates that tests reveal he has severe symptoms of depressed mood and anxiety and stress. It said that his traumatic stress symptoms were aggravated and compounded when he was kidnapped. He does blame the period when his mother had the holiday. I do treat these matters as explanatory to some extent of why he finds himself here today, but I do not actually find them to be mitigatory of the gravity, because he did not have anything that would preclude an appreciation that he was doing the wrong thing in embarking on this criminal conduct that he embarked upon, or indeed the consequences. I do accept he has a background of very substantial disadvantage and a history of restrictive bail conditions.”

34. This approach is consistent with decisions of this Court holding that where an applicant’s disadvantaged background has not been shown to be related to his offending, the offender’s moral culpability is not reduced: Perkins v R [2018] NSWCCA 62 at [83] per White JA (and see the discussion at [73] to [82]); Judge v R [2018] NSWCCA 203 at [32] per White JA (with whom Bellew and Wilson JJ agreed).

35. This approach is also consistent with the statements of N Adams J (with whom Bell P (as he then was) and Davies J agreed) in R v Dungay [2020] NSWCCA 209 at [153]:

“Although the effects of childhood deprivation are to be given full weight in every sentencing decision, that does not mean that moral culpability must be reduced in every case. Full weight can be given to such a childhood in other ways as part of the process of instinctive synthesis.”

and consistent with what Gageler J said in Bugmy at [56]:

“… the weight to be afforded to the effects of social deprivation in an offender's youth and background is in each case for individual assessment.”

36. Having found that the applicant’s background of very substantial disadvantage did not reduce his moral culpability for the offending, the sentencing judge did not just cast aside the history of disadvantage, but rather he found that the applicant’s disadvantaged background was a factor to be taken into account as part of instinctive synthesis and his Honour’s pithily expressed remarks indicate that is what he has done.

37. As emphasised by Hamill J in Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207 at [82] (and embraced by Bell P at [26]):

“Sentencing is an instinctive and intuitive process and there is no single, correct outcome. Intermediate courts of appeal pay real deference to the role of the judge at first instance and sentencing judges are afforded a deal of flexibility in determining the appropriate punishment.”

38. No error has been shown and ground 1 should be dismissed.

Ground 2: The discount for assistance to authorities is manifestly inadequate

39. This is a complaint against the quantification of 5% as the discount for assistance to authorities applied by the sentencing judge. It is common ground that the applicant must demonstrate error of the kind identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 (“House”). The applicant contended that there was House error, because to select such a low percentage suggests a misapplication of principle of some kind.

40. It was argued that first, his Honour did not state the penalty he would otherwise have imposed as required by s 23(4)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), second, he did not adequately engage with the factors set out in s 23(2) of that Act, and third, the discount does not reflect the significance and usefulness of the information and its reliability, the prospect that the applicant would endure harsher custodial conditions as a result of providing the assistance, and the danger and risk to his family.

41. The applicant submitted that the discount should have been 20% given that the assistance was truthful, reliable and led to prosecution of a drugs and firearms offender and the dismantling of a drug network. He submitted that evidence from Detective O’Neill about assistance the applicant gave regarding the drive-by shooting at the family home in July 2016 was suspected of involving a particular notorious criminal gang, and the information the applicant gave to police in July 2012, (the phone number), was also connected to that gang, and this has created risk for himself and his family.

42. The Crown submitted that the assistance identified was limited in scope. There was in effect no assistance given (as relevantly defined) regarding the drive-by shooting in 2016. The applicant simply gave evidence about a crime of which he was the victim. With respect to the giving of a single phone number to police in 2016 and even acknowledging the effect of that assistance detailed by Detective Someville in his evidence, that too was limited. A sentence must not be reduced so it becomes disproportionate to the nature and circumstances of the offence: R v Chaaban [2006] NSWCCA 107. His Honour dealt with the issue in accordance with principle in a way that was open to him and gave a resultant reduction for assistance that was open on the evidence.

Resolution of Ground 2:

43. His Honour’s findings on assistance to authorities are set out at [29] of this judgment. The reasons for proceeding as he did are clearly stated.

44. The assistance given by the applicant was limited. He did not give a statement or offer to give evidence against any person. Participating in a trial as the victim of an offence is not assistance in the sense meant in s 23 of the Crimes (Sentencing Procedure) Act. There is nothing inherent in the 5% chosen, or in his Honour’s articulation of the reasons for it, that indicates any misapplication of principle or error.

45. This ground should be dismissed.

Ground 3: Evidence which was not available at the time of sentence, but is now available, demonstrates that the applicant’s conditions of custody are significantly worse than contemplated, and found, by the sentencing judge, on sentence

46. The applicant asserted that evidence that was not available at the time of sentence but is now available, demonstrates that the applicant’s conditions of custody are significantly worse than as contemplated and found by the sentencing judge, and that since being sentenced, he has endured exceptional hardship because of unsafe and unsatisfactory custodial conditions. He asserts that he has been assaulted in December 2018, June 2019, September 2019 and September 2020 and hospitalised on some of those occasions, has been harassed and targeted by other inmates and Corrective Services officers, and that all of this has adversely affected his mental and physical health to a significant extent.

47. The additional material sought to be tendered on appeal that had not been tendered at the sentencing proceedings before Frearson SC DCJ comprised:

1. A folder of evidence tendered in sentencing proceedings before Adams ADCJ in August 2020 for other offending (including a further report of Mr Borenstein dated 29 January 2020);

2. An affidavit of Jeannette Fahd dated 19 May 2022;

3. An affidavit of Jeannette Fahd dated 20 May 2022;

4. An affidavit of Jeannette Fahd dated 23 May 2022;

5. An affidavit of the applicant dated 20 May 2022; and

6. 2022 reports of Dr Furst, Psychiatrist, and Mr Borenstein, Psychologist.

48. The Crown opposed reception of this additional material on the basis that in the case of assertions of threats made by a person to the applicant in late 2017, early 2018, it was “new” but not “fresh” evidence, and the rest of the material arises from events that post-dated the imposition of the applicant’s sentence and so although it qualifies as “fresh” evidence, it ought not be admitted because it comprises complaints about the applicant’s conditions in custody which is the province of the executive government and not of an appeal court, (see Brierley v The Queen [2022] NSWCCA 26 at [25] citing R v Munday [1981] 2 NSWLR 177 at [178]), it is not exceptional, and is insufficient to warrant a fresh assessment of sentence.

Resolution of Ground 3

49. The principles that apply to the admission of evidence on a sentence appeal additional to that admitted initially on sentence were recently considered by this Court in Brierley v The Queen [2022] NSWCCA 26:

“[23] In order to introduce evidence of the nature described above on the application for leave to appeal, the applicant must show that his case is exceptional to the usual limits of the jurisdiction and function of this Court. The limits were stated by Street CJ in R v Vachalec [1981] 1 NSWLR 351 at 353-354, as follows:

“This Court as the Court of Criminal Appeal functioning within its well-established jurisdictional boundaries is concerned, both in appeals against conviction and appeals against sentence, primarily to ascertain whether the decision of the first instance judge was in error and, if so, in what way it should be corrected. Normally error requires the evaluation of the material placed before the first instance court. There are, however, well-established bases upon which error in the first instance proceedings can be disclosed by fresh evidence or new evidence. In addition the Court's jurisdiction is exercisable where it is shown that there has been a miscarriage of justice. But, as an Appeal Court, it is not its function, nor is it equipped, to fulfil a continuing supervisory role over the effect of imprisonment upon an individual. Such a matter involves essentially administrative considerations and remedial action involves essentially an exercise of administrative power that this Court does not possess. This Court exercises judicial power; it has no power or authority to give administrative directions regarding the treatment of prisoners. Nor has it power or authority by administrative order to change the character or concomitants of sentences or to bring about total or qualified release of persons in custody. That power and authority resides in the hands of the Executive Government. Administrative miscarriage in the working out of a sentence cannot be remedied by this Court as it has no jurisdiction to enter the administrative field. There could, of course, be cases where significant administrative miscarriage was so plainly foreseeable at the time of sentence as to justify this Court finding error in the sentencing decision of the first instance court. Such cases will be rare, and the present is not among them. […] The responsibility to provide adequate and proper medical treatment for prisoners rests squarely on the shoulders of the prison authorities.”

[24] In R v Vachalec, the medical condition of the applicant, his need for a special diet and the expectation that his condition would cause hardship during imprisonment had been taken into account by the sentencing judge. The Court therefore declined to receive, on his application for leave to appeal, evidence to the effect that the anticipated difficulties were actually being experienced. The sentence was not disturbed. Nagle CJ at CL and Lee J concurred.

[25] The central principle was reiterated by Street CJ (Moffitt P and Lee J concurring) in R v Munday [1981] 2 NSWLR 177 at 178:

“It has been made plain in this Court on many occasions that the Court is essentially charged with an appellate function involving the determination of whether a decision at first instance upon sentence was right or wrong, was excessive or inadequate, as things existed at the time when it was passed. The review of a sentence in the light of subsequent events is the proper province of the executive government and not of an appeal court.”

[26] Exceptions have been recognised in some classes of case, subject to criteria that the Court has been at pains to circumscribe. A list of established categories of exception was given by McClellan CJ at CL in Springer v R (2007) 117 A Crim R 13; [2007] NSWCCA 289 at [3]. The underlying rationale for exceptional receipt of evidence tendered to establish a circumstance that has emerged after sentence was passed was explained by Simpson J in Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [113], as follows:

“[113]   Too rigid an application of the principle clearly has potential to be the cause of injustice and has led to the development of the sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence. Where it is held that the facts or circumstances of which evidence is sought to be adduced existed at the time of sentencing, even if not known, or imperfectly understood, at that time, then, where the interests of justice have so dictated, the Court has admitted the additional evidence (sometimes properly categorised as fresh evidence) in order to correct the misunderstanding. It appears that the justification for this is that, although on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances. This proposition is sometimes traced back to the decision of the Supreme Court of South Australia in R vSmith (1987) 44 SASR 587 at 588. In all cases the power to admit the additional evidence is a discretionary one; "proper grounds" must be established as a foundation for the exercise of the discretion to admit the evidence: R v Lanham [1970] 2 NSWR 217.”

[27] In Turkmani v R (2014) 244 A Crim R 402; [2014] NSWCCA 186 at [66], Beech-Jones J identified from the cases three situations involving an offender’s medical condition in which the Court has been willing to receive evidence of events that have occurred after the passing of sentence:

“Firstly, where the offender was only diagnosed as suffering from a disease or condition after sentence but was infected or affected at the time of sentence (e.g. HIV/AIDS as in Bailey v R (1988) 35 A Crim R 458 at 462).

Secondly, where although symptoms of a particular condition may have been present, their significance was not appreciated at the time of sentencing (Iglesias v R [2006] NSWCCA 261; see Springer v R [2007] NSWCCA 289; 177 A Crim R 13 at [3] per McClellan CJ at CL).

Thirdly, where a person was sentenced on the expectation that they would receive a particular level of medical care and attention in custody but they did not (R v Keir [2004] NSWCCA 106; Springer v R).”

50. Where evidence is “new”, that is, where it was available to the defence at the time of the sentence, it will be more difficult to establish that there has been a miscarriage of justice: see Fordham v R (1997) A Crim R 359 at [377].

51. In Wright v R [2016] NSWCCA 122 this Court declined to admit “fresh” evidence relating to deteriorating health and more onerous conditions of custody experienced by an appellant since being sentenced. R A Hulme J (with whom Fagan J agreed), Basten JA providing a separate judgment also declining to admit the evidence, summarised the principles relevant to receiving “fresh” evidence at [71] to [72]:

“[71] There are limits on the ability of this Court to receive fresh or new evidence. Simpson J (as her Honour then was) provided a most detailed and useful summary of the relevant principles in Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 at [104]-[121]. It is, however, sufficient for present purposes to refer to the more succinct summary provided in the written submissions of senior counsel for the applicant:

1.   "Fresh evidence" is to be distinguished from "new evidence": fresh evidence is evidence which was not available or which could not have been obtained with reasonable diligence at the time of sentence; new evidence is evidence which was available but not used or which could have been obtained with reasonable diligence: R v Goodwin (1990) 51 A Crim R 328 at 330.

2.   Generally, neither fresh evidence nor new evidence is received on appeal, as a reflection of the principle of finality: Cornwell v R [2015] NSWCCA 269 at [39]. Fresh evidence or new evidence will only be received where a miscarriage of justice is shown: R v Fordham (1997) 98 A Crim R 359 at 377-378; or where it is in the interests of justice: Cornwell v R at [59].

3.   Evidence of events or circumstances that have arisen entirely since sentence is not received. However, evidence may be received of events or circumstances which existed at the time of sentence but which were unknown, or the significance of which was unappreciated. The rationale for reception of the evidence is that the court proceeded on an erroneous view of the facts: Khoury v R at [110]-[115].

4.   The determination to receive the evidence is discretionary. Caution must be exercised and a proper basis for admission of the evidence must be established: Khoury v R at [117].

5.   Factors relevant to the determination to receive the evidence include the circumstances of, and any explanation for, the failure to produce the evidence at first instance and the potential significance of the evidence to the outcome: Khoury v R at [121].

[72] The final point was elaborated upon earlier in the judgment of Simpson J in Khoury v R:

"[108] If evidence qualifies as fresh evidence, its admission may depend upon a further criterion - the evaluation of its capacity to have affected the outcome of the proceedings at first instance. If it is not judged to have that capacity, its admission is pointless, and, while it has to be considered in order for that evaluation to be made, the evidence may not, in the result, be acted upon: see, for example, Fordham."

52. The material set out at [47] was provisionally admitted on the appeal subject to argument. The applicant was cross-examined. His answers were largely argumentative and unresponsive however I have concluded that none of the material, including the cross-examination, should be admitted.

53. First, the material in Ms Fahd’s 19 May 2022 affidavit regarding alleged threats made to the applicant by a Corrective Services officer between November 2017 and 1 June 2018 is new evidence that could have been led on the sentence hearing but was not. It is not material that has the capacity to affect re-sentencing and so there would be no point to allowing its admission now.

54. Other evidence referring to and evidencing a decline in the mental health of the applicant since being placed in custody after sentencing by Frearson SC DCJ in June 2018 and the asserted reasons for it can be classed as fresh evidence. It is confined to incidents of violence and threats in custody and the applicant’s declining mental health in custody since June 2018. It raises the type of considerations that were the subject of comment by Street CJ in R v Vachalec (1981) 1 NSWLR 351; [1981] NSWCCA 26. It is not exceptional.

55. The proper grounds for its admission have not been established. Consequently, this ground of appeal too should be dismissed.

Ground 4: The applicant has a justifiable sense of grievance as a result of the sentence imposed upon co-offender Elias Saliba

56. The applicant complains that the disparity between the sentence imposed upon the applicant compared to that of his co-offender on Count 4, Elias Saliba, leaves the applicant with a justifiable sense of grievance.

57. Mr Saliba was convicted after trial and sentenced on 20 August 2020 by Grant DCJ to 4 years imprisonment with a non-parole period of 2 years and 6 months.

58. For the same offence, the applicant’s undiscounted sentence was 7 years and 1 month.

56. Counsel for the applicant argued that the offending was a joint criminal enterprise, there was a similar nature and extent of participation in the offending by both and the differences in subjective circumstances were not sufficient to explain the disparity in sentence.

57. The Crown responded that when the important differences between the circumstances of the applicant and Mr Saliba are considered the applicant is not left with a justifiable sense of grievance.

Resolution of Ground 4

61. This ground of appeal can be concisely dispatched. Grant DCJ was provided with the sentencing remarks of Frearson SC DCJ and clearly analysed those remarks with some care.

62. He specifically considered the question of parity between the applicant and Mr Saliba and cited relevant differences in concluding that a “disparate sentence” was required:

• The applicant committed the offence on bail in a circumstance of aggravation, and Mr Saliba did not;

• The applicant had a criminal record which warranted his Honour to say: “I think when I look at the record, it is one that denies leniency that would otherwise be available to someone who had an unblemished record”. Mr Saliba has one non-relevant prior. He is entitled to leniency;

• His Honour took into account delay in sentencing the applicant, but the delay was mainly of the making of MH and not of Mr Saliba;

• The discount for plea for the applicant was insignificant due to its lateness. 5% was the discount for assistance and 7% for the plea of guilty, resulting in a combined discount of 12%;

• The applicant was motivated by a debt owed directly to him. Mr Saliba was acting as a “misguided foot soldier”.

63. In WM v R [2020] NSWCCA 96 at [58], Bellew J, (with whom Johnson and Adamson JJ agreed), summarised the parity principle in the following terms:

“[60] Equal justice requires, so far as the law permits, that like cases be treated alike. It also requires the differential treatment of persons according to differences between them. Consistency in the punishment of offences against criminal law is a reflection of the notion of equal justice and finds its expression in the parity principle, which requires that like offenders should be treated in a like manner. The parity principle also allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability, and/or different circumstances.

[61] The parity principle also recognises that equal justice requires that as between co-offenders, there should not be a marked disparity which gives rise to one offender having a justifiable sense of grievance. It is not simply a question of the imposition of different sentences for the same offence, but a question of due proportion being structured between those sentences. That is a matter which is to be determined having regard to the different circumstances of the co-offenders, and the different degrees of criminality.”

64. Mr Saliba had a far stronger subjective case than the applicant, and Grant DCJ so found, specifically:

1. It was Mr Saliba’s first period of imprisonment, unlike the applicant;

2. Mr Saliba demonstrated remorse, unlike the applicant who demonstrated none;

3. Mr Saliba was thought to have good prospects of rehabilitation, whereas the applicant’s prospects were assessed as no better than “at least fair”;

4. Mr Saliba was a medium to low risk of re-offending whereas the sentencing judge found that “it could not be concluded that the applicant was unlikely to re-offend”;

5. There were no aggravating factors for Mr Saliba.

65. Given the differences in the level of criminality and the important differences in their respective subjective cases, there is no justifiable sense of grievance.

66. This ground of appeal should be dismissed.

Orders

67. The orders I propose are as follows:

1. To the extent necessary, extend time within which to file a notice of appeal until 13 October 2021.

2. Grant leave to appeal.

3. Dismiss the appeal.

**********

Decision last updated: 15 December 2022