Napoli v The Queen

[2016] NSWCCA 232

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Napoli v R [2016] NSWCCA 232
Hearing dates:	16 September 2016
Date of orders:	07 November 2016
Decision date:	07 November 2016
Before:	Leeming JA at [1] Harrison J at [2] Wilson J at [3]
Decision:	Leave to appeal refused
Catchwords:	CRIMINAL LAW - SENTENCE - conspiracy to import a commercial quantity of border controlled precursor - complaint of disproportion in the sentences imposed upon two co‑conspirators - parity principle - consideration of respective objective and subjective cases - roles of conspirators - question of whether any grievance is justified
Legislation Cited:	Criminal Appeal Act 1912 (NSW) Criminal Code 1995 (Cth)
Cases Cited:	Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 R v Millwood [2012] NSWCCA 2 Wong v The Queen (2001) 207 CLR 584 at 608; [2001] HCA 64
Category:	Principal judgment
Parties:	Bruno Napoli (Applicant) Regina
Representation:	Counsel: Mr S. Buchen with Ms. C O’Neill (Applicant) Mr L. Crowley (Commonwealth DPP)   Solicitors: GJ Goold (Applicant) Office of the Director of Public Prosecutions (Cth) (Respondent)
File Number(s):	2013/43573
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Common Law - Criminal Date of Decision: 30 January 2015 Before: Hanley SC DCJ File Number(s): 2013/43573

Judgment

1. LEEMING JA: I agree with Wilson J.

2. HARRISON J: I agree with Wilson J.

3. WILSON J: In seeking leave to appeal against the sentence imposed upon him by Judge Hanley SC in the District Court, the applicant complains that he is justifiably aggrieved by the difference in that sentence and sentences imposed upon two co-offenders, Huy Bao Van Huynh and David Harb.

4. The applicant appeared for sentence on 30 January 2015 in relation to an offence of conspiracy to import a commercial quantity of border controlled precursor, being pseudoephedrine, contrary to ss 11.5(1) and 307.11(1) of the Commonwealth Criminal Code 1995. The sentencing judge convicted the applicant and sentenced him to imprisonment for 9 years, to date from 12 February 2013 and expiring on 11 February 2022. A non-parole period (NPP) of 6 years was fixed, which expires on 11 February 2019. (Although expressed by his Honour, in error, as 11 August 2019, it was pointed out during the hearing, and acknowledged by the applicant’s counsel, that the expiry date of the non-parole period was correctly recorded on JusticeLink, and on the warrant of commitment.)

5. The maximum penalty specified for such an offence is 25 years imprisonment, and / or a fine of 5,000 penalty units.

The Facts of the Offence

6. The conspiracy for which the applicant was sentenced was one hatched between a number of individuals for the importation of large quantities of pseudoephedrine through Sydney International Airport in 2012, under the auspices of corrupt Customs officers and a corrupt baggage handler. Pseudoephedrine is a drug listed as a border controlled precursor.

7. The following account of the facts of the applicant’s crime is drawn from the findings of the sentencing judge, there being no dispute about his Honour’s conclusions in that regard.

8. Although the applicant was convicted of a single offence charged as having taken place between about 1 January 2012 and about 30 June 2012, discussions between the conspirators concerning an illegal importation began in 2010 and 2011, and it is necessary to refer to some of the earlier events to place the offence as charged in its proper context.

9. The conspirators included the applicant, Huynh and Harb, together with Christopher Cranney, Paul Valsamakis, Joseph Harb, and Adrian Lamella. Cranney, Valsamakis and Lamella were all Customs officers working at the airport in Border Security roles, with access to confidential intelligence relating to the movement of passengers and goods. David Harb was a baggage handler at the airport.

10. In 2010 Cranney, Valsamakis and Lamella had a number of conversations about bringing “gear” into Australia, exploiting their respective roles with the Air Border Security team (“ABS team”) at the airport to that end. David Harb was a friend of Lamella, and he was introduced into the conspiracy through that connection.

11. In 2010 Cranney, Valsamakis and Lamella had a number of conversations about getting "gear" into Australia. Each acknowledged having done so in the past, and Lamella told Valsamakis that he had a mate in the baggage handling area (Harb) who could assist with any importation by removing drugs from luggage whilst the luggage was being unloaded from aircraft.

12. There was a meeting in late December 2010 between Lamella, Cranney and some others (not including the applicant) and the possibility of importing illicit drugs was further discussed. Although Harb was not present at the meeting, he was told soon after by Lamella that there was a good chance an illegal importation would take place.

13. During the latter half of 2011, Lamella, Valsamakis, Cranney and Harb began planning in earnest for the importation of pseudoephedrine. Huynh, the applicant, and Joseph Harb were to subsequently become involved in obtaining pseudoephedrine and arranging for individuals to act as couriers. Cranney, Valsamakis and Lamella exploited their positions within Customs to reduce the risk of the importation being discovered. Steps were taken to ensure that there would be no surveillance of flights on which drugs might travel, and Harb was organised to retrieve the luggage containing the pseudoephedrine from the flight and take the luggage out of the airport.

14. Between July and December 2011, planning for an importation proceeded. The conspirators obtained mobile telephones with false subscriber details with which to communicate, and Customs rosters were coordinated to facilitate the importation. Although not charged over his role in this earlier attempt to import pseudoephedrine, the applicant was involved to the extent of arranging meetings between Lamella and Huynh, with the latter to travel to China to obtain pseudoephedrine.

15. Ultimately, a planned importation for December 2011 did not proceed, with pseudoephedrine obtained by the conspirators in Thailand left there because of increased security at Thai airports.

16. In the days following the aborted importation, the applicant and the other conspirators had discussions about potential dates and arrangements for a future importation. Rosters were considered to identify dates upon which all conspirators were at the airport, with Lamella coordinating between the conspirators located at the airport, and the applicant and Huynh, as to possible dates for importation, obtaining the drug, flights, and couriers to carry the drugs.

17. Sometime during January or February 2012 Huynh obtained pseudoephedrine in Vietnam which was to be brought into Australia on a Thai Airlines flight travelling from Vietnam to Sydney via Bangkok. The flight was due to arrive on a morning when Lamella, Valsamakis and Cranney would all be at work at the airport; Harb was on duty as a baggage handler. The payment to the airport conspirators was to be as high as $100,000.

18. On 23 February 2012 Huynh and the applicant were in contact with each other in a series of intercepted telephone calls in which they discussed ways of raising money. They and Lamella discussed arrangements to identify couriers to carry the drugs, and obtain plane tickets for them.

19. Two couriers were selected and those individuals left Sydney for Ho Ch Minh City on 3 March 2012. Their respective bags on departure from Sydney weighed 11 and 13 kilograms. The bags used by the couriers were identical and each had a green ribbon tied to the handle to facilitate identification of the bags by Harb on return to Sydney. Harb was to collect the bags and take them out of the airport.

20. A bag identical to those used by the couriers was provided by the applicant to Lamella, along with copies of pages from the passports of the couriers with the couriers’ personal details. These items were in turn shown by Lamella to Harb, to aid him in retrieving the drug-laden baggage from the return flights.

21. Harb, Lamella, and the applicant used the falsely subscribed mobile telephones to communicate about the arrangements for the luggage to be removed from the flights and delivered to the applicant. The other conspirators were to facilitate the process.

22. On 8 March 2012, the evening before the importation, Lamella told Harb that he should deliver the bags with the green ribbons to the applicant at the staff car park at Sydney International airport.

23. That same day, the two couriers checked in for return flights to Sydney, with two bags each weighing 28 kilograms. One courier was carrying about 17kg of pseudoephedrine powder in his bag and the other about 15 kilograms, a total gross weight of around 32 kilograms of pseudoephedrine powder. The couriers were to arrive in Sydney the following morning.

24. On 9 March 2012 Harb was working at the airport as a baggage handler; the Customs conspirators were on duty overseeing security with incoming flights. When the first courier arrived on a Thai Airways flight Lamella sent a text message to Harb telling him that everything was ready to go. After the laden baggage cars from the flight were moved into the air side baggage area, Harb located the couriers' bags, put them inside a tub, and drove to an area in the baggage hall where he knew there were no security cameras operating. Harb then sent a text message to Lamella to let him know that he had the bags.

25. The arrangement was for the applicant to take possession of the pseudoephedrine filled bags from Harb, and Harb and the applicant were in contact during the course of the morning about the transfer of the drugs. Huynh was also in telephone contact with the applicant about the collection of the drugs. Coded messages were exchanged between Lamella and the applicant about the drugs and their collection from Harb by the applicant.

26. Other members of the conspiracy used their Customs roles to monitor any risks that might arise as a consequence of surveillance by the authorities.

27. The applicant drove to the airport, using his former wife’s security access card to gain access to the staff car park at the airport. He arrived at the airport at about 8.05 that morning. He was in constant communication with Lamella about the readiness of the bags for collection from Harb.

28. The applicant met with Harb in the staff car park shortly before 9 o’clock. He took the two bags brought into Sydney by the couriers from Harb, putting them into the car he was driving. He then left the car park. Harb returned to work as a baggage handler.

29. Two days later the applicant and Lamella met to discuss arrangements for paying those involved in the importation. The Customs conspirators were unhappy with delay in receiving their money, and Lamella passed this on to the applicant, inquiring from him as to when the money would be paid.

30. On 23 March 2012 the applicant went to an address in Marrickville where Huynh was living. Soon after the applicant sent Lamella a coded text message which indicated that he had the money to pay the Customs conspirators. Lamella was at the time staying at a city hotel, and the applicant went to the hotel to see him. He gave Lamella a plastic bag with cash in it, telling Lamella that the money was the first half of the payment, with the remainder to be paid in a couple of days.

31. On 25 March 2012 Lamella divided the money he had received from the applicant, with $55,000 each to be paid to Cranney and Valsamakis, and $20,000 for Harb. The money was passed on to them, with advice that more would follow.

32. On 30 March 2012 Cranney, Valsamakis and Lamella met at a cafe in Beverly Hills and discussed the outstanding payments each were owed. They also discussed organising another importation.

33. The applicant again met with Lamella, on 2 April 2012, to pass on more money as payment to the conspirators. On this occasion he gave Lamella $90,000, being $10,000 less than the expected $100,000. Lamella subsequently gave Harb half of the money provided by the applicant, keeping the other $45,000 for himself. A day or so later Lamella went to the applicant’s home to tell him about the shortfall in the payment. The applicant went inside his house and obtained $10,000 in cash, which he then gave to Lamella.

34. Further importations took place in June 2012. The Customs conspirators monitored rosters and other information to identify possible dates and flights on which drugs could be brought into the country. Lamella met with Harb to discuss possible dates on which an importation could be managed, and passed on the information as to dates to the applicant and Huynh.

35. Ultimately, agreement was reached between the applicant and his co‑conspirators to import about 120 kilograms of pseudoephedrine split across three Thai Airlines flights arriving on the mornings of 4, 5 and 6 June 2012.

36. Huynh made inquiries about obtaining that amount of pseudoephedrine, and the applicant remained in contact with him about his inquiries, passing on the information he received to Lamella. He discussed with Lamella the amount of money that the importation was expected to produce. Lamella subsequently told Harb, Valsamakis and Cranney that each would receive between $350,000 and $380,000 for the June importations.

37. On 9 May 2012 Huynh travelled to Vietnam to obtain the pseudoephedrine. Five couriers had been recruited to travel to Vietnam and bring the drug back to Sydney in their luggage. The couriers were to leave Sydney on Thai Airways flights to Ho Chi Minh City via Bangkok, departing on 28 May 2012. The couriers were each provided with identical hard sided silver trolley suitcases with green luggage tags, money, and mobile telephones to facilitate the importation. It was arranged for the couriers to check the luggage onto the return flights in Vietnam, but leave the airport without collecting it on arrival in Sydney.

38. The applicant and Lamella were in constant communication in May 2012 to discuss the organisation of the importations. The Customs conspirators made arrangements to ensure that each was rostered at the airport on the relevant dates, with steps taken to transfer Lamella to duty with the ABS Team in readiness.

39. On 28 May 2012 Huynh departed Australia for Vietnam for the purpose obtaining the pseudoephedrine to be brought in by the five couriers over 4, 5 and 6 June 2012. Huynh had trouble in Vietnam with his suppliers and additionally one courier had withdrawn from the scheme. The applicant informed Lamella of these developments in a meeting on or about 31 May 2012. Lamella in turn passed this information on to Valsamakis and Harb.

40. Later on 28 May 2012 the applicant met with Lamella, and the pair sent a text message to Huynh in Vietnam. There was an exchange of messages, with Huynh asking questions about how to pack the trolley bags, and the flights to be taken by the couriers. Huynh also referred to the difficulties in obtaining the drug, noting his confidence that the situation would be resolved. The applicant responded to Huynh’s queries with information he was given by Lamella.

41. The applicant and Lamella arranged to meet again the following day.

42. On 1 June 2012 Huynh informed the applicant and Lamella that the difficulties had been resolved and the importation could go ahead as planned.

43. On 1 and 2 June 2012 the five couriers who had been organised for the importations each purchased tickets to travel to Ho Chi Minh City, at a cost of over $21,000. The couriers left the country on 1 and 2 June 2012, checking in the silver trolley suitcases as luggage.

44. The applicant and Lamella met on 2 June 2012 to discuss the specific details of the importations, such as where the applicant would meet Harb to take possession of the suitcases containing pseudoephedrine. The applicant provided Lamella with information from the passports of the couriers so that he might pass it on to Harb.

45. On or about 3 June 2012 the applicant went with Lamella on a drive to identify the locations where the applicant would meet Harb and collect the suitcases. This information was passed on by Lamella to Harb.

46. On 4 June 2012 the first of the couriers arrived in Sydney with a quantity of pseudoephedrine. Valsamakis, Lamella and Cranney were working with border security that day, and took all steps they could to disrupt detection of the importation. Harb was working as a baggage handler, in readiness to collect the couriers’ luggage.

47. The first two couriers arrived on a 7am flight from Ho Chi Minh City via Bangkok. They had between them in the trolley bags some 34 kilograms of pseudoephedrine packed to look like food.

48. Once luggage had been taken off the plane Harb located the couriers’ bags and loaded them onto an empty baggage car, driving them to an area under the arrivals hall which was not covered by security cameras. He left the bags there and sent Lamella a text message to advise him of that. Between 7.33am and 7.38am, Lamella and the applicant exchanged a series of coded text messages, with Lamella advising the applicant that the importation had been successful.

49. After completing his legitimate duties Harb retrieved the couriers' luggage and left the airport with it, driving to the place where it was agreed he would meet the applicant. He handed the bags containing the drugs over to the applicant.

50. The applicant met with Lamella later on 4 June 2012 to discuss the importation for the following day, 5 June 2012.

51. On 5 June 2012 the conspirators were in place at the airport as on the previous day, with the Customs conspirators diverting security from the flight used by the courier expected that day, and Harb ready to collect the luggage containing the drugs.

52. At about 7 o’clock that morning the courier’s flight arrived in Sydney from Ho Chi Minh City. The luggage, containing about 18 kilograms of pseudoephedrine packed to look like food, had been checked in at the airport in Vietnam and was on board. The baggage was unloaded from the plane, and the silver trolley bag was retrieved by Harb. He hid it in an empty baggage can until he had finished unloading the plane.

53. The applicant and Lamella were in communication by means of coded text messages, with the applicant confirming that he was on his way to the prearranged delivery point to collect the drugs from Harb.

54. As soon as Harb could get away from his legitimate duties he left the airport with the bag containing the drugs, sending Lamella a message to advise him that he was on his way to the meeting place. Lamella in turn sent the applicant a message, passing on that information. Harb and the applicant subsequently met, and the applicant took the drugs from Harb and drove away with them. Harb sent Lamella a text message to inform him that “it was all done" and Lamella informed Cranney and Valsamakis that the importation had been a success.

55. The importation arranged for the following day, 6 June 2012, did not go as well for the conspirators.

56. The Customs conspirators, Valsamakis, Lamella and Cranny, all commenced work expecting to facilitate the arrival of two couriers with luggage containing pseudoephedrine. Harb was on duty as baggage handler to offload the luggage. The applicant was ready to collect it from Harb.

57. However, sometime that morning Lamella and Valsamakis became aware of a Customs investigation into luggage uncollected by passengers from previous days, and a baggage handler who had been discovered removing bags from a flight. A “containment exercise” was arranged by border security officials for that morning to target the Thai Airways flight on which the couriers were to arrive in Sydney, and which was intended to identify any luggage with a similar appearance to that which had gone uncollected by passengers in previous days.

6. Perceiving the risk, Valsamakis and Lamella volunteered to locate the suspect luggage. Valsamakis and Lamella examined documentation relevant to the security operation and recognised the names of the two couriers who were to arrive that morning. Lamella immediately sent Harb a text message warning him to stay away from the Thai Airways flight. He also sent the applicant a warning about the discovery of the importation.

7. Harb disposed of the mobile phone he had been using to liaise with the other conspirators and, when the flight arrived in Sydney from Ho Chi Minh City that morning, he did not involve himself in removing luggage from it. Lamella and Valsamakis attended the baggage area, ostensibly to search the baggage carts for the suspect bags, which they had been told were two silver hard sided bags.

8. Valsamakis located the two silver suitcases. He had Lamella stand in such a way as to obscure the view of security cameras, so that he might remove and hide the airline luggage barcode stickers from the two bags. He saw, however, that one of the bags was additionally identified with a green luggage tag bearing the name of one of the couriers, and realised that the scheme had come undone.

9. He and Lamella placed the two silver trolley bags onto the conveyor belt for collection by another (uncorrupted) Customs officer, so that the bags might be shown to the couriers, who had been detained in the arrivals area.

10. Lamella and Valsamakis subsequently became aware that Customs investigators had footage of Harb removing the drug bags from the Thai Airways flight on 4 June 2014.

11. On examination, the suitcases brought into Sydney by the couriers were found to contain 28.29 kilograms of pure pseudoephedrine. One bag contained 11 packages with a total of 20.151 kilograms of powder. Subsequent forensic analysis revealed that the powder contained pseudoephedrine with a purity range of between 67.2% and 72.6%. The pure weight of pseudoephedrine was calculated to be 13.919 kilograms.

12. The second suitcase contained 13 packages to a total of 20.613 kilograms of powder. Subsequent forensic analysis revealed that the powder contained pseudoephedrine with a range of purity between 68.4% and 72%. The pure weight of pseudoephedrine in the bag was calculated to be 14.371 kilograms.

13. Evidence established that 28.29 kilograms of pure pseudoephedrine is capable of producing approximately 19.096 kilograms of high grade methylamphetamine hydrochloride. The wholesale value of that drug would be about $4,774,000, and the street level value about $15,276,800.

14. Despite the loss of the imported drugs, Valsamakis and Cranney had told Lamella that they still expected to be paid, and Lamella advised the applicant of that. The applicant responded that he had the money as he had been paid in full on the day of the first importation on 4 June 2012, but the men agreed that the applicant would "bury the money", and they would avoid meeting for a time.

15. On 27 June 2012 Lamella and the applicant exchanged coded text messages in which Lamella emphasised that Cranney and Valsamakis wanted their money as soon as possible. Lamella visited Valsamakis at his home and told him that he would meet the applicant the following day to collect the money. The following night the applicant met Lamella and handed over about $380,000 in cash, to be paid to Lamella, Valsamakis, Cranney and Harb. The money was divided so that Lamella and Valsamakis received $100,000 each, Cranney $85,000 and Harb $95,000. There were subsequently disputes amongst Harb and the corrupt Customs officers about underpayment but no further monies were paid by the applicant to the other conspirators.

16. On 18 August 2012 Harb’s brother, Joseph, was arrested and subsequently gave an induced statement implicating some of the conspirators. Lamella was arrested in December and he also gave an induced statement outlining the details of the conspiracy.

17. On 12 February 2013 Harb was arrested. He declined an interview but gave a statement to police. The applicant was also arrested that day. He refused to be interviewed.

18. Huynh was not arrested until October 2013.

The Present Application

71. The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him by Hanley SC DCJ. The ground advanced is:

“The applicant has a justifiable sense of grievance when his sentence is compared with the sentences imposed upon his co-offenders Huy Bao Van Huynh and David Harb.”

72. That ground proceeds upon an implicit acknowledgement that the sentence imposed was otherwise appropriate: Jimmy v R (2010) 77 NSWLR 540 at [251].

73. The applicant and Harb were each sentenced following upon the entry of pleas of guilty. Huynh was separately dealt with by Whitford SC DCJ on 20 November 2015, after being found guilty by a jury at trial. All were sentenced for one count of conspiracy to import a commercial quantity of a border controlled precursor.

74. The three offenders were sentenced upon a common factual basis, his Honour Judge Whitford having found the facts largely in accord with those found by Judge Hanley.

75. The sentences imposed upon each are as follows:

Applicant	Harb	Hunyh
9 years imprisonment; NPP 6 years	5 years 6 months imprisonment; NPP 3 years and 9 months	12 years imprisonment; NPP 8 years

76. The applicant and Harb each had the benefit of a discount of 25% on the sentence that would otherwise have been imposed to reflect the utilitarian value of their pleas of guilty; Huynh, having taken his trial, did not.

77. Harb was given an additional reduction in sentence to reflect the assistance that he gave to authorities, bringing the total discount applied to the sentence he would otherwise have received to 50%. Neither the applicant nor Huynh provided assistance, and thus neither was entitled to any reduction in sentence in this regard.

78. Each sentencing judge was acutely aware of the parity principle, and each had regard to both it and the sentences imposed upon co-offenders. Hanley SC DCJ could not, of course, give consideration to the sentence imposed upon Huynh, since Harb and the applicant were dealt with before sentence was imposed upon Huynh, but Whitford SC DCJ was both aware of and took into account the sentences imposed upon the applicant and Harb when determining the sentence to be imposed upon Huynh.

79. The applicant complains that the sentence imposed upon him is disproportionate to that imposed upon his fellow conspirators.

The Applicant’s Submissions

80. The applicant argues that the “starting point” of the sentences imposed upon the three offenders is indicative of disproportion, when regard is had to the differences in the respective cases. The undiscounted starting points referred to are 12 years imprisonment for the applicant and 11 years imprisonment for Harb.

81. In relation to the sentence imposed upon Huynh, the applicant asserts that Huynh’s crime was objectively more serious than his, whilst Huynh’s subjective case was markedly less positive than his own. It is contended that these differences should have resulted in a sentence for the applicant which was less than that imposed.

82. As to the sentence imposed upon Harb, whilst the applicant acknowledged that there were features in Harb’s case that would ameliorate the sentence imposed upon him, being his lower position in the hierarchy of the conspiracy, and the onerous conditions he - as an informer - would be subject to in custody, it was submitted that the applicant should have received a lesser sentence than Harb. The applicant contends that the breach of trust inherent in Harb’s participation in the conspiracy should have resulted in a higher starting point for sentence than that for him.

The Crown’s Submissions

83. The Crown submits that the difference in the respective cases of the three offenders provides a proper basis for the differentiation in sentence, such that the sentences are not unduly disproportionate. Whilst the Crown accepts that the applicant may feel aggrieved by his sentence, it is submitted that any grievance is not justified on an objective consideration of the sentences imposed.

84. The Crown contends that Huynh’s criminality was at substantially the same level of gravity as that of the applicant, whilst his subjective case - particularly his abusive and dysfunctional upbringing and his impaired mental health - was such as to properly mitigate sentence to a degree.

85. Finally, the Crown argues that any disparity that may exist cannot be regarded as gross or marked, and thus cannot call for appellate intervention.

Consideration

86. A complaint based upon parity cannot rely upon a simple lack of mathematical equivalence in sentence, and comparison of the numerical length of sentence should never be the sole basis for such a complaint. Attention must be given to the facts and circumstances upon which sentence was assessed, and due allowance must be made for the differing cases of individual offenders. Outcomes will be identical only where the cases are relevantly identical; where there is some relevant difference, outcomes will be different: Wong v The Queen (2001) 207 CLR 584 at 608; [2001] HCA 64 at [65].

87. As was held by the High Court in Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]:

“Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’. It finds expression in the ‘parity principle’ which requires that like offenders should be treated in a like manner. As with the norm of ‘equal justice’, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances” [footnotes omitted].

88. In the applicant’s case, there were differences in the length of sentence imposed upon him, Huynh, and Harb, but proper attention to the respective cases of each both explains and justifies the differences. A table prepared by the Crown provides a helpful summary account of the cases for each offender, and a copy of it is annexed to this judgment. Its accuracy was not disputed by the applicant.

89. In assessing the sentences to be imposed upon the applicant and Harb respectively, the sentencing judge made a careful and thorough analysis of the criminality of each, and of their respective cases. That analysis was undertaken with the parity principle firmly in mind.

90. His Honour concluded that Harb had played a lesser role in the conspiracy than had the applicant, who was higher placed in the hierarchy. The applicant does not challenge the correctness of that conclusion and, indeed, it would be difficult to do so, given that Harb had no role in the organisation of what was a highly sophisticated offence, doing no more than unloading the couriers’ bags and conveying them to the applicant, at the direction of others. The applicant, by contrast, was intricately involved with the organisation of the offence, including in the provision of bags for the couriers, the movement of the pseudoephedrine once it had left the airport, and the payment of those involved in the conspiracy. His criminality was plainly greater than that of Harb, notwithstanding the breach of trust that applied to Harb’s crime.

91. That conclusion is not affected by the fact that the charge as averred against Harb incorporated a slightly wider time frame, from 1 November 2011 to 30 June 2012, than did the charge against the applicant, because Harb’s role in the conspiracy in late 2011 was very limited, there having been no successful importation of pseudoephedrine. In addition, the amount of pure pseudoephedrine intended to be imported in late 2011 was a little over 3 kilograms, as against the 87 kilograms actually imported during the period of the applicant’s involvement.

92. Both the applicant and Harb were similarly motivated by greed. Whilst the applicant deposed that he intended to apply the profit to payment of a debt, that fact could not reduce the relevance of the financial motivation behind his participation in the conspiracy and, contrary to the applicant’s submission, the sentencing judge did not accept a submission that it did.

93. The sentencing judge was also cognisant of the differing personal circumstances of the applicant and Harb, with Harb’s subjective case being a more positive one than that of the applicant. Harb was a person of good character; the applicant was not, having a prior conviction for supplying a prohibited drug. Harb had given assistance to the authorities and, as a consequence, would experience conditions of custody that were harsher than those that applied to the applicant. Harb had spent the eighteen or so months in custody prior to sentence in conditions of solitary confinement; the applicant had not. Whilst both offenders were found to have good prospects of rehabilitation, Harb’s were more positive than those of the applicant, and his rehabilitation was already underway.

94. Considering all of the features relevant to the determination of the sentences imposed upon the offenders, arguably a differentiation of only a year between the starting point of sentence was generous to the applicant. The disparity is readily explained by the different cases of the applicant and Harb, and is not such that the applicant is justifiably aggrieved. There could be no basis, in any event, upon which to conclude that the difference in sentence is so marked as to warrant intervention.

95. When imposing sentence upon Huynh, the sentencing judge had available to him and considered the remarks on sentence relevant to the applicant, and noted the application of the parity principle.

96. The sentencing judge concluded that Huynh’s role was more critical than the applicant’s, but that conclusion has to be seen in the overall context of the conspiracy, with his Honour finding that the “primary conspirators” - who included the applicant and Huynh - conducted themselves on a basis of equality, albeit playing different roles.

97. That is an important consideration here, where the applicant and Huynh were both principal players in a sophisticated conspiracy. In any conspiracy, the roles played by individual conspirators will differ, but that does not necessarily lead to any material differentiation in the criminality of each member. Each had a part to play, without which the conspiracy could not proceed to achieve its aim. The applicant’s role was different to Huynh’s and, in the conclusion of Whitford SC DCJ, less critical to the conspiracy, but his criminality was not lesser because of that.

98. Huynh had a vital role in travelling overseas to obtain the pseudoephedrine to be brought into the country, but the applicant also had an important role to play in the overall organisation of the conspiracy, acting as a conduit between the airport conspirators and those who ultimately received the drug, and being responsible for payment of the conspirators. The criminality of each was very high.

99. As to the respective subjective cases, the differences between the applicant and Huynh were significant, and it would appear that the sentence imposed upon the latter was ameliorated to an extent by considerations connected with his mental illness and disadvantaged start in life.

100. Huynh, who was six years older than the applicant, had an extensive criminal history for drug related offences, and certainly more extensive than that of the applicant. Whitford SC DCJ referred to that history, placing it in a context of an abusive environment during childhood, and enduring mental illness and dysfunction. His Honour referred to the social, educational, psychological and other disadvantages in Huynh’s background, features which were all taken into account on sentence.

101. Although his Honour did not specifically refer to R v Millwood [2012] NSWCCA 2, he appears to have treated Huynh’s circumstances of disadvantage as lessening his moral responsibility for his crime, as was contemplated by this Court in that case, at [69].

102. The applicant did not have a disadvantaged background. He had grown up in a supportive environment, and enjoyed a sound education, gaining trade qualifications as a plumber, an industry in which he had consistently worked. He had a son to a former marriage and, at the time of sentence, was involved in another significant relationship. The applicant had no issues with his mental health and it would appear that the only real stressor in his life had been the debt he owed, that debt providing the motivation for his crime.

103. The debt had been incurred when the applicant was robbed of an unidentified (but likely illicit) substance he was holding for another individual. When the owner of the lost substance pressed for payment of its value, the applicant’s parents settled the debt by taking out a mortgage on their home. The applicant’s ongoing anxiety was to repay his parents. Clearly, the applicant had not struggled under the heavy disadvantage that underpinned Huynh’s crime.

104. It was open to Whitford SC DCJ to have regard to Huynh’s unfortunate personal circumstances in determining the sentence to be imposed. It was a feature of Huynh’s case which distinguished his circumstances from the applicant’s, and it provided a legitimate basis upon which to differentiate the sentences one from the other.

105. The complaint about parity must be assessed in that light.

106. Having considered all of the features of the cases of the three offenders, I do not conclude that the applicant has established that he has a legitimate or justified basis for any grievance he may feel arising from the differences in the sentence imposed upon him, and those imposed upon Harb and Huynh. Such small differences as exist are readily explained by the differing features of the respective cases.

107. There being no merit in the proposed appeal, I would not grant leave to bring the appeal.

108. The order I propose is:

1. Leave to appeal is refused.

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ANNEXURE A

R v Bruno Napoli Offender Comparison Table (269 KB, pdf)

Decision last updated: 07 November 2016