Narayan v R

[2022] NSWCCA 163

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Narayan v R [2022] NSWCCA 163

Hearing dates:

20 July 2022

Date of orders:

05 August 2022

Decision date:

05 August 2022

Before:

Beech-Jones CJ at CL at [1]; Price J at [2]; Chen J at [3]

Decision:

(1)   Extend the time for the filing of the Notice of Appeal until 22 January 2022.

(2)   Grant leave to appeal the sentence imposed by Norton SC DCJ on 27 July 2018.

(3)   Dismiss the appeal.

Catchwords:

SENTENCING — Appeal against sentence — Co-offenders — Disparity between sentences — where co-offenders sentenced by different judges — where co-offenders found guilty of different offences — whether open to applicant to impugn findings in co-offenders sentencing judgment — application dismissed

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 5

Criminal Code (Cth), ss 11.1, 307.5, 307.8, 311

Cases Cited:

Chen v R; He v R [2018] NSWCCA 95

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

Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60

Jones v The Queen (1993) 67 ALJR 376

Kadwell (a pseudonym) v R [2021] NSWCCA 42

Lewins v R [2007] NSWCCA 189

Lonsdale v R [2020] NSWCCA 267

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Martellotta v R [2021] NSWCCA 168

PG v R [2017] NSWCCA 179

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

R v Wei Pan [2005] NSWCCA 114

Rae v R v [2011] NSWCCA 211

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 65

Category:

Principal judgment

Parties:

Shalesh Narayan (Applicant)
Regina (Respondent)

Representation:

Counsel:
G D Wendler (Applicant)
D Jordan (Respondent)

Solicitors:
Monica McKenzie Solicitors (Applicant)
Director of Public Prosecutions (Cth) (Respondent)

File Number(s):

2017/37454

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

27 July 2018

Before:

Norton SC DCJ

HEADNOTE

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

On 15 November 2017, Shalesh Narayan (‘the Applicant’) pleaded guilty to one count of attempting to possess commercial quantity of border controlled drugs reasonably suspected of having been unlawfully imported contrary to ss 307.8(1) and 311(1)(g) with s 11.1(g) of the Criminal Code (Cth). The Applicant pleaded guilty and was sentenced on 27 July 2018 by Norton SC DCJ to 11 years and 6 months’ imprisonment, with a non-parole period of 7 years.

The Applicant was part of a syndicate with three others, Tony Nasser (‘Nasser’), Thumbrian Govender (‘Govender’) and Imad Al Qatrani (‘Al Qatrani’) to import substantial quantities of cocaine and methamphetamine from South Africa to Australia in December 2016. The cocaine and methamphetamine were hidden in an iron ore extractor which was shipped to Australia alongside five other pieces of large machinery. This was discovered by officers from the Australian Border Force and the Australian Federal Police who followed the movements of the equipment and ultimately arrested the members of the syndicate.

Each member of the syndicate was sentenced by separate judges. Relevantly, Al Qatrani was charged with attempting to possess commercial quantities of unlawfully imported border control drugs contrary to s 307.5(1) of the Criminal Code. He pleaded not guilty but was convicted following his trial and sentenced on 21 October 2021 by Wass SC DCJ to 15 years’ imprisonment, with a non-parole period of 9 years.

The Applicant sought leave to appeal from his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on a single ground, that the Applicant has a justifiable sense of grievance having regard to the sentence imposed upon Al Qatrani (i.e., a parity ground).

The Court held (Chen J, Beech-Jones CJ at CL and Price J agreeing), granting leave to appeal against sentence but dismissing the appeal:

1. The Applicant’s argument that Al Qatrani had a greater role in the syndicate cannot be sustained in light of Wass SC DCJ’s remarks on sentence. In those remarks, Wass SC DCJ described the Applicant and Al Qatrani’s role as “at about the same level”. It is not open to the Applicant to impugn the findings in the co-accused’s sentencing judgment. A parity ground necessarily accepts the correctness of the sentence of the co-accused including the findings on which that sentence is based. In any case, sentencing judges make findings based on the evidence before them which may differ where different judges sentence different co-offenders: [1] (Beech-Jones CJ at CL); [2] (Price J); [54]-[55] (Chen J).

Martellotta v R [2021] NSWCCA 168, applied; Rae v R [2011] NSWCCA 211, considered.

2. The disparity between the sentences of the Applicant and Al Qatrani was not unjustified even in light of the Applicant’s plea of guilty. The difference in the undiscounted sentence could be explained by Al Qatrani’s subjective factors including mental health disorders and the significant delay in having his matter brought to trial: [1] (Beech-Jones CJ at CL); [2] (Price J); [69] (Chen J).

3. Even though the Applicant and Al Qatrani were charged with different offences, the findings of each sentencing judge made clear that their degree of knowledge, and level of criminality, was very similar: [1] (Beech-Jones CJ at CL); [2] (Price J); [81]-[82] (Chen J).

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

Judgment

1. BEECH-JONES CJ at CL: I agree with Chen J.

2. PRICE J: I agree with Chen J.

3. CHEN J: Shalesh Narayan (‘the Applicant’) was charged with one count of attempting to possess commercial quantity of border controlled drugs reasonably suspected of having been unlawfully imported, between about 5 December 2016 and 4 February 2017, contrary to ss 307.8(1) and 311(1)(g) with s 11.1(g) of the Criminal Code (Cth). On 15 November 2017, the Applicant pleaded guilty to that offence in the Central Local Court. On 27 July 2018, the Applicant was sentenced by Norton SC DCJ to a total term of imprisonment of 11 years and 6 months, with a non-parole period of 7 years.

4. The Applicant seeks leave to appeal and, if leave is granted, to appeal the sentence imposed upon him for the commission of that offence. The sole complaint of the Applicant is that there is, by reason of the sentence imposed on a co-accused – Imad Al Qatrani (‘Al Qatrani’) – an absence of parity, such that this Court should intervene and resentence the Applicant consistently with that principle.

5. The application for leave to appeal is brought out of time, and an extension of time has been sought by the Applicant. The application for that extension of time is not opposed by the Crown. In light of the fact that: (a) a notice of intention to appeal the sentence was filed on 8 August 2018; (b) the sentence was not imposed on Al Qatrani until 21 October 2021; and (c) the notice of appeal was filed promptly, on 18 January 2022, following the sentencing of Al Qatrani, that extension of time should be granted.

Background

6. The background facts may conveniently be separated into five parts. The first deals with the facts giving rise to offence, principally so far as it relates to the Applicant. The second deals with the sentencing of each co-accused – and identifies the key findings made by each sentencing judge. The third deals with the sentencing of the Applicant. The fourth deals with the sentencing of Al Qatrani – and identifies the key findings made by the sentencing judge. The fifth is a summary, in table form, of the sentences between the Applicant and Al Qatrani.

The conduct giving rise to the offence

7. The background facts that follow are drawn from the ‘Statement of Facts’ that was before Norton SC DCJ, as well as her Honour’s sentencing judgment.

8. The Applicant was part of a syndicate to import cocaine and methamphetamine – in substantial quantities – from South Africa to Australia in December 2016. The other participants in that syndicate were Tony Nasser (‘Nasser’), Thumbrian Govender (‘Govender’) and Al Qatrani.

9. On 5 December 2016, a container arrived in Melbourne by ship from Johannesburg, South Africa. Within the shipping container were six pieces of large machinery, one of which was an iron ore extractor called a magnetic separator (‘the extractor’).

10. On 15 and 16 December 2016, officers from the Australian Border Force and the Australian Federal Police examined the shipment and discovered drugs. Inside the extractor, in a cavity, were 254 blocks of compressed powder (which was cocaine) and 104 bags of a crystalline substance (which was methamphetamine). The amount of drugs found was 198.3078 kilograms of pure cocaine and 80.1728 kilograms of pure methamphetamine. The street value of the drugs was variously estimated, but consistently over $100 million.

11. Having come to the attention of law enforcement authorities, the drugs were removed from the extractor, house bricks were substituted for the drugs (in order for the extractor to have the same weight) and the extractor reassembled.

12. On 21 December 2016, the container was delivered to Safe and Sound Removalists at an address in Oakleigh South, Victoria, where the extractor was removed. On 30 December 2016, the five other pieces of machinery were packed into a different white container and, on 31 December 2016, transported by train to Sydney. That container arrived at the Chullora Rail Yard on 1 January 2017.

13. On 3 January 2017, Nasser telephoned the Applicant advising him that the container had arrived and needed to be collected. Later that day, the Applicant drove a truck to the Chullora Rail Yard, collected the white container and delivered it to an address in Riverstone Parade, Riverstone, NSW. The address in Riverstone was the business address of the Applicant’s furniture removal company.

14. The transportation of the white container was a ‘test run’: that is, to see whether there was any evidence of tampering with the contents and, thus, whether there had been interception by law enforcement authorities.

15. On 10 January 2017, the extractor was repacked at Safe and Sound Removalists into a brown container. That container was also transported to Sydney, by train, arriving at the Chullora Rail Yard on 12 January 2017.

16. On 13 January 2017, the Applicant collected the brown container and delivered it to the address in Riverstone Parade, Riverstone, NSW.

17. On 21 January 2017, the Applicant met with Al Qatrani, at the address in Riverstone and was paid $20,000 in cash.

18. On 29 January 2017, following arrangements made involving the Applicant and Al Qatrani on 21 January 2017, the Applicant, Govender and Al Qatrani attended the premises at Riverstone, NSW. Once there, the Applicant used a forklift to enter and exit the brown container – that is, the one that contained the extractor. Govender and Al Qatrani also entered the container at this time. The Applicant used the forklift to lift the lid off the machinery (i.e. the extractor) to allow Govender and Al Qatrani to access it.

19. On 5 February 2017, the Applicant was arrested and, later that day, participated in a record of interview, wherein he admitted his involvement in the syndicate.

20. On 15 November 2017, the Applicant pleaded guilty to one count of attempting to possess a commercial quantity of the border controlled drugs reasonably suspected of having been unlawfully imported, contrary to ss 307.8(1) and 311.1(g) with s 11.1(1) of the Criminal Code.

Sentencing of the co-accused

21. There were four people involved – and ultimately charged – in connection with the importation of the drugs:

1. Nasser: He was charged with attempt to import commercial quantity of border controlled drugs. He pleaded guilty to this charge. By his plea, he accepted (and was found by the sentencing judge): (a) to have an extensive and important role in facilitating the importation of the drugs into Australia, and their transit within it; and (b) to stand to gain a considerable amount of money – $250,000 – for his involvement. Nasser was sentenced, in the County Court of Victoria, by O’Connell SC CCJ on 16 May 2019, to a total effective sentence of 12 years and six months’ imprisonment, with a non-parole period of 8 years and 6 months.

2. Govender: He was charged with attempt to possess commercial quantity of border controlled drugs. He pleaded not guilty but was convicted following his trial. The sentencing judge (Arnott SC DCJ) found the offender to have been “knowingly involved in the importation”. He was also found to have “played a midrange role between that of a principal and an intermediary involving an organisational post with a high level of responsibility. It was an important and significant role”. Govender was sentenced by Arnott SC DCJ on 13 November 2020 to 20 years’ imprisonment, with a non-parole period of 11 years.

3. Al Qatrani: He was charged with attempting to possess commercial quantities of unlawfully imported border controlled drugs. He pleaded not guilty but was convicted following his trial. Al Qatrani was sentenced on 21 October 2021 by Wass SC DCJ to 15 years’ imprisonment, with a non-parole period of 9 years.

4. The Applicant: He was charged with attempting to possess commercial quantity of border controlled drugs reasonably suspected of having been unlawfully imported. As has been earlier noted, the Applicant was sentenced by Norton SC DCJ on 27 July 2018 to 11 years and 6 months’ imprisonment, with a non-parole period of 7 years.

The sentencing of the Applicant

22. The sentence imposed on the Applicant by Norton SC DCJ was the result of an indicative sentence of 16 years, reduced “by slightly less than 30% for the plea”, which resulted in a total term of imprisonment of 11 years and 6 months, with a non-parole period of 7 years. For this offence, the maximum penalty is imprisonment for life or 7,500 penalty units, or both.

23. The sentence commenced on 5 February 2017 (being the date the Applicant was taken into custody). The Applicant is first eligible for release on parole on 4 February 2024.

24. In sentencing the Applicant, Norton SC DCJ relevantly made the following findings across three areas: the Applicant’s role in the importation; the Applicant’s knowledge about the presence of the drugs; and the Applicant’s position within the syndicate, when compared to his co-accused.

25. In relation to the Applicant’s role in the importation, the findings of Norton SC DCJ were:

1. The Applicant “played an important role of transporting the container and therefore the drugs from Chullora Railway Station to his own premises and storing them there” and that as he was not supervised “it is clear he was trusted by those in the syndicate to be in possession of the drugs” .

2. The Applicant “also assisted in the unloading of the machinery from the container”.

3. There was “no evidence that [the Applicant’s] role in the importation and distribution of the drugs was any wider than that”.

26. In relation to the Applicant’s knowledge about the presence of drugs in the extractor, and their quantity, the findings of Norton SC DCJ were:

1. The Applicant received $20,000 and this amount, and the contents of the various telephone conversations, “make it clear he was aware there were drugs in the container”.

2. The amount paid to the Applicant was “not so large as to allow me to find the requisite standard that the [Applicant] was aware that such [a] large quantity of drugs was involved”.

3. Although there was potential for there to be a large amount of drugs in the container, there was “no evidence…that [the Applicant] was aware of the amount of drugs involved and particularly the fact that there were 99 times the minimum commercial quantity for cocaine and 106 times the minimum commercial quantity for methamphetamine”.

27. In relation to his position within the syndicate, the findings of Norton SC DCJ were:

1. When the amount the Applicant received is compared to Nasser – who expected to receive $250,000 – this “demonstrates that although the [Applicant] played an important role in a sophisticated operation he was not a principal or even a mid-tier or mid-level participant in this sophisticated operation”.

2. The Applicant was “the person who was used to transport and store the goods whilst the others who were more involved in the system stayed in the background and minimised the risk to themselves”.

28. In relation to the findings about the respective roles of the co-accused within the syndicate, it should be noted that Norton SC DCJ made no express finding about the role of Al Qatrani in it – nor, to be clear, was her Honour required to.

The sentencing of the co-accused Al Qatrani

29. Al Qatrani was sentenced by Wass SC DCJ on 21 October 2021 to a total term of imprisonment of 15 years, with a non-parole period of 9 years. For this offence, the maximum penalty is imprisonment for life or 7,500 penalty units, or both.

30. Al Qatrani is first eligible for release on parole on 4 February 2026.

31. In sentencing Al Qatrani, Wass SC DCJ made the following findings:

1. The offender did not plead guilty or assist law enforcement agencies.

2. In relation to Al Qatrani’s role in the importation: (a) His “role in the enterprise was to open the machinery and to unpack the illegal shipment, and to assist … Govender whilst he was in Australia, including providing transport, accommodation, a phone and some computer assistance”; and (b) there was “no evidence that the offender was to have any role in the enterprise after he opened the machinery and sorted the drugs”. Later, it was said that Al Qatrani “stood to make a significant amount of money for his small but necessary and risky role in the enterprise”.

3. In relation to Al Qatrani’s knowledge about the presence of the drugs: (a) He knew that he was “importing a prohibited drug of some kind, in at least a commercial quantity”: (b) He “knew that the prohibited drugs were in the container”; (c) he “had no knowledge about precisely what was in the container. He had to be instructed that there were three separate types of bundles and they could not be mixed. He did know, however, that it contained a substantial amount of prohibited drugs. Just when he obtained that knowledge was not clear on the evidence but I find that it was at a time when he could have withdrawn from the endeavour and chose not to”; (d) “he knew there was at least a commercial quantity of the illegal drugs in his possession”; and (e) “Where I find that the offender did not know precisely what was in the container and had no control over how much or what kind of drug was being imported, this factor whilst relevant is of lesser significance”.

4. In relation to Al Qatrani’s position within the syndicate, including when compared to the Applicant: (a) Al Qatrani “had no financial interest beyond what he was to be paid for carrying out his task and that his role whilst it was different, in some respects it was not more important than that of [the Applicant]”. Later the sentencing judge found “that [Al Qatrani’s] role was about the same level as [the Applicant]. They both agreed to do particular tasks as asked of them by others for payment of fixed sums with about the same degree of trust by others higher in the hierarchy” (AB 183.3).

Parity table

32. In the table that follows, the key sentencing findings are summarised:

Comparison	Applicant (Sentencing Judge: Norton SC DCJ)	Co-offender Al Qatrani (Sentencing Judge: Wass SC DCJ)
Sentence	Aggregate: 11 yr 6 m, NPP 7 yr	Aggregate: 15 yr, NPP 9 yr
Charges	Attempt to possess commercial quantity of border control drugs reasonably suspected of having been unlawfully imported.	Attempt to possess commercial quantity of unlawfully imported border control drugs.
Role in drug syndicate	Transported and stored the container; was unsupervised and therefore trusted. Assisted in the unloading of the iron ore extractor; he was aware there were drugs in the container; no evidence the Applicant was aware of the amount, and he was reckless as to what was in the container. The Applicant played an important role in a sophisticated operation, beneath a mid-level participant.	Role was to open the machinery and to unpack it; to assist Govender whilst he was in Australia including providing transport, accommodation, a phone and some computer assistance. No evidence that he was to have any role in the enterprise after he opened the machinery and sorted the drugs. His role “was about the same level” as the Applicant and had earlier found that he “was not a vital part of this operation”.
Objective seriousness	Objectively serious. Later: “…a very serious importation of drugs into this country”.	No express finding although did not accept the Crown’s submission “that the conduct was within the high range for conduct contemplated by the offence”.
Discount for plea	“slightly less than 30%” for guilty plea and admissions made in record of interview.	Nil: plea of not guilty entered.
Further discount	Nil	Nil
Age	44 at time of offending; 45 at the time of sentencing.	47 or 48 at time of offending; 52 at the time of sentencing.
Criminal record	Nil	Nil leniency: sentenced in 2011 for a serious sexual assault and spent nearly 5 years in custody.
Special circumstances	Nil	Nil

The principles: parity

33. The principle of parity, as Leeming JA noted in Kadwell (a pseudonym) v R [2021] NSWCCA 42 at [11] (‘Kadwell’), “derives from the fundamental norm of equal justice according to law”. Notwithstanding that the appeal is the creature of statute – s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) – the “exercise of the statutory discretion is informed by the common law norm”: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31] (French CJ, Crennan and Kiefel JJ) (‘Green’).

34. In the context of sentencing, in Lowe v The Queen (1984) 154 CLR 606 at 623; [1984] HCA 46 (‘Lowe’), Dawson J explained the parity principle in these terms:

“…justice should be even-handed and it has come to be recognised…that any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or give the appearance that justice has not been done.”

35. Earlier, in Lowe, Mason J explained (at 611) that the “avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community”. As stated in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 65 at [65] (Gaudron, Gummow and Hayne JJ), this principle “requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect”. (Emphasis in original).

36. The test of unjustifiable disparity is an objective one; that is, assessed by objective criteria: Green at [31] (French CJ, Crennan and Kiefel JJ). What must be shown is that “a reasonable mind looking overall at what has happened would see that the applicant’s grievance is justified”: R v Wei Pan [2005] NSWCCA 114 at [34] (Johnson J, Giles JA and Hoeben J agreeing); Rae v R [2011] NSWCCA 211 at [61] (Johnson J, McClellan CJ at CL and Hidden J agreeing) (‘Rae’).

37. Some further matters should also be noted about the parity principle.

38. First, the fact that a co-offender in the same criminal enterprise has been charged with different offences does not prevent the principle applying; and nor does the fact that, in those circumstances, a co-offender has been charged differently in relation to the same offending: Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 at [201]-[203] (Campbell JA, Howie and Rothman JJ agreeing) (‘Jimmy’); Green at [30] (French CJ, Crennan and Kiefel JJ).

39. Secondly, the appeal court will not intervene where “disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each had played in the relevant criminal conduct or enterprise”: Green at [32] (French CJ, Crennan and Kiefel JJ) citing Lowe at 609 (Mason J).

40. Thirdly, the “ultimate question remains whether the appellant has made out an unjustifiable disparity between [their] sentence and that of [their] co-offender”, a question that is governed by substance rather than form: Kadwell at [13] (Leeming JA). That is because discrepancy or “disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in questions and their different degrees of criminality”: Postiglione v The Queen (1997) 189 CLR 295 at 301-302 (Dawson and Gaudron JJ); [1997] HCA 26 (‘Postiglione’).

41. If there is a “justifiable sense of grievance”, the sentence will be reduced, “notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options”: Postiglione at 301 (Dawson and Gaudron JJ).

42. Ordinarily, it is highly desirable that co-offenders should be sentenced at the same time, and by the same judge: Postiglione at 320 (Gummow J). The public interest in transparent and consistent sentencing of co-offenders is enhanced if this occurs.

43. In the circumstances of this offending, however, each member of the syndicate charged with an offence was sentenced by a different judge: the Applicant was sentenced by Norton SC DCJ on 27 July 2018 (following a plea of guilty); Nasser was sentenced, in the County Court of Victoria, by O’Connell SC CCJ on 16 May 2019 (following entry of a guilty plea); Govender was sentenced by Arnott SC DCJ on 13 November 2020 (following a trial); and Al Qatrani was sentenced by Wass SC DCJ on 21 October 2021 (following a trial).

44. Nevertheless, parity was considered as each co-accused was sentenced after the Applicant: each sentencing judge had regard to the sentence (and sentencing remarks) of each co-offender who had already been sentenced. Thus: (a) when sentencing Nasser, O’Connell SC CCJ expressly considered the sentencing of the Applicant by Norton SC DCJ; (b) when sentencing Govender, Arnott SC DCJ expressly considered the sentencing of the Applicant by Norton SC DCJ and Nasser by O’Connell SC CCJ; and (c) when sentencing Al Qatrani, Wass SC DCJ expressly considered the sentencing of Govender by Arnott SC DCJ, Nasser by O’Connell SC CCJ, and the Applicant by Norton SC DCJ.

The ground of appeal

45. The sole ground of appeal relied upon by the Applicant for having this Court intervene in the sentencing of the Applicant is:

“[t]hat the Applicant has a justifiable sense of grievance having regard to the sentence imposed upon him compared to that imposed upon his co-offender … Al Qatrani on 21 October 2021”

46. Three matters should be noted in relation to this ground. The first is that the Applicant concedes that there was no error in the sentencing of him by Norton SC DCJ – no doubt reflective of the fact that “a complaint of disparity accepts the sentence is otherwise appropriate”: Jimmy at [251] (Campbell JA, Howie and Rothman JJ agreeing). The second is that it is the sentence on Al Qatrani which is said to give “rise to a sense of injustice, not the sentence imposed upon the applicant”: Lewins v R [2007] NSWCCA 189 at [7] (Howie J, Basten JA and Grove J agreeing); Rae at [60] (Johnson J, McClellan CJ at CL and Hidden J agreeing). The third is that it “is open to the [Applicant] to advance parity grounds in this Court by reference to sentences imposed subsequently upon co-offenders”: Jones v The Queen (1993) 67 ALJR 376, 377 (Brennan, Deane and McHugh JJ); Chen v R; He v R [2018] NSWCCA 95 at [42] (Johnson J, White JA and Harrison J agreeing). That is the situation here.

47. The Applicant’s written submissions raised two matters which, it was argued, were said to be demonstrative of unjustifiable disparity and, thus, appealable error. During the hearing, a third matter was advanced which was argued to support the same outcome. Those arguments, said to warrant the Applicant receiving a lower sentence in light of the sentence imposed on Al Qatrani, were:

1. First, the role of Al Qatrani was “greater” than the Applicant’s role – in the sense of having more responsibility within the syndicate.

2. Secondly, because the Applicant pleaded guilty, whereas Al Qatrani did not.

3. Thirdly, because the Applicant and Al Qatrani were charged with, and convicted of, different offences and, consistent with that, the level of knowledge of the existence of the drugs (and the likely quantity) was different.

The ‘role’ of the Applicant and Al Qatrani

48. The Applicant argued that Al Qatrani had a “far greater role and responsibilities in the syndicate” when compared to the Applicant and, in terms of the syndicate more generally, it was also argued that “Nasser was at the apex, followed by the offenders Al Qatrani, and Govender with the Applicant at the bottom” when compared to the Applicant’s role. The Applicant submitted that the sentencing of the Applicant was required to – but did not – reflect, at a minimum, the important differences in the roles that the Applicant and Al Qatrani had.

49. The Applicant’s submissions thus invite close attention to the findings of Wass SC DCJ in the sentencing of Al Qatrani and, importantly, the extent to which it is open to the Applicant to challenge (or go behind), in an appeal confined to parity, the findings in a sentencing judgment of a co-accused.

50. It is convenient to deal with this second issue first.

51. In my view, the submission of the Applicant conflicts with matters of first principle.

52. One such principle is that the sentencing judge sentences an accused on the material before them. In cases where different judges sentence different co-accused, then differences in the evidence before them may well lead to different findings about the respective responsibility of a co-accused in a criminal enterprise: Postiglione at 320 (Gummow J); Rae at [53]-[54], [56] (Johnson J, McClellan CJ at CL and Hidden J agreeing). Thus, because “sentencing does not take place on the basis of objective singular established truth, but on the basis of the evidence before the sentencing judge” factual differences the kind argued – viz., in effect, the comparative roles of the participants – do not justify this Court concluding that the sentencing was unjustifiably disparate: PG v R [2017] NSWCCA 179 at [24] (Basten JA, Button and N Adams JJ agreeing).

53. Another principle – one of limitation, applying to a parity appeal – similarly precludes acceptance of the Applicant’s submission. That principle was identified in Martellotta v R [2021] NSWCCA 168 at [58] (Adamson J, Basten JA and Walton J agreeing) in these terms:

“A parity ground does not afford an applicant an opportunity to impugn the sentencing judgment of a co-offender by alleging error in the sentencing judgment for a co-offender. A parity ground is to be resolved by reference to a comparison between the sentence imposed on the applicant and the sentence imposed on a co-offender to determine whether the applicant has a legitimate grievance.”

54. It is not difficult to understand the rationale for the limitation so expressed: a parity appeal accepts the sentence of the co-accused, and it is used as the benchmark from which to determine whether there is disparity between that sentencing outcome and the sentencing outcome of an applicant. It would be inconsistent with that rationale to permit an aggrieved co-accused in a parity appeal to, on the one hand, accept the correctness of that sentence and argue for a reduction in their sentence by comparison to it, yet on the other hand, to contend that the sentencing judgment is vitiated by significant factual error that underpins that sentencing outcome.

55. Once the true scope of a parity appeal is understood, the difficulties with the Applicant’s challenge become clear: in contending that there is a disparity between his sentence and the sentence imposed by Wass SC DCJ the Applicant is bound to accept that the sentence imposed on Al Qatrani was fixed by reference to the findings Wass SC DCJ made in relation to Al Qatrani and his role.

56. For the purposes of the Applicant’s argument, it is necessary to refer to two key findings made by Wass SC DCJ. The first relates to the actual involvement of Al Qatrani in the operation. The second is a comparative finding about the respective roles of the Applicant and Al Qatrani.

57. As to the involvement of Al Qatrani in the operation, the finding of Wass SC DCJ was that “[Al Qatrani’]’s role in the enterprise was to open the machinery and to unpack the illegal shipment, and to assist … Govender whilst he was in Australia, including providing transport, accommodation, a phone and some computer assistance”. That Al Qatrani’s involvement was confined in this way was confirmed by a further finding of Wass SC DCJ: namely, that Al Qatrani “had no financial interest beyond what he was to be paid for carrying out his task…”.

58. As to the roles of Al Qatrani and the Applicant in the operation, Wass SC DCJ found “that [Al Qatrani]’s role was at about the same level as [the Applicant]. They both agreed to do particular tasks as asked of them by others for payment of fixed sums with about the same degree of trust by others higher in the hierarchy”. Further, Wass SC DCJ found that whilst Al Qatrani’s role was different, in some respects from the Applicant’s role, “it was no more important than that of [the Applicant]”.

59. Those findings place the Applicant and Al Qatrani essentially at the same “level” within the hierarchy of the syndicate. In those circumstances, the application of the principles earlier identified foreclose any attempt by the Applicant to have this Court go behind the findings of Wass SC DCJ when using the sentence imposed by her Honour for parity purposes.

60. For these reasons, I do not accept the Applicant’s first argument.

The plea of guilty by the Applicant

61. The Applicant also argued that unjustifiable disparity was evident when regard is had to the fact that he pleaded guilty, whereas Al Qatrani did not. That is, the pre-discount sentences are disparate. This is illustrated, in the Applicant’s argument, by the fact that the Applicant’s undiscounted sentence was said to be 16 years, whereas Al Qatrani’s was 15 years.

62. It is important here to note that, in relation to Al Qatrani, the sentencing judge was aware of the sentence imposed on the Applicant, and the reasons of Norton SC DCJ. In fact, as identified earlier, Wass SC DCJ specifically considered parity in relation to each co-offender. In this respect, once it is recognised that Wass SC DCJ had the sentencing remarks of Norton SC DCJ before her, there is reason to exercise caution before finding that there is a “justifiable sense of grievance”: Rae at [68] (Johnson J, McClellan CJ at CL and Hidden J agreeing); Lonsdale v R [2020] NSWCCA 267 at [44] (Hoeben CJ at CL).

63. It is also important to note that, as Mason J said in Lowe (at 612) there is “no principle of law that sentences must strictly compare” or, as Dawson J said in that same case (at 623), there is “no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them”.

64. Whilst it is correct that there is a difference between the undiscounted sentence imposed on the Applicant when compared to Al Qatrani, that difference is not material, in my view; it is simply the product of differentiation that was reasonably open in the exercise of the sentencing discretion vested in Wass SC DCJ.

65. Accepting, as I do for the purposes of determining this ground, that the objective circumstances of the offence, and the culpability of each is, in line with the finding of Wass SC DCJ, comparable, the sentencing of each co-offender thereafter turned upon subjective matters. In this respect, Wass SC DCJ identified two material factors relevant to Al Qatrani that are not relevant to the Applicant.

66. The first was that Al Qatrani was found to have suffered from psychiatric illnesses – post-traumatic stress disorder and a major depressive disorder – attributable to his military service in two wars: the Iran/Iraq war and the first Gulf War. Wass SC DCJ accepted that Al Qatrani was “suffering from it during the commission of this offence” and that his “decision to offend was to some extent compromised by his poor decision making and lack of consequential reasoning, exacerbated by his alcohol use and mental health issues….However…only to a limited degree…”.

67. The second was, as the Crown submitted, the significant delay in having the matter brought to trial, and the hardship that occasioned Al Qatrani that was occasioned by that delay. Wass SC DCJ found that the “highly unusual circumstances of this case” has meant that Al Qatrani, through no fault of his own, was in custody on remand for nearly four and a half years before he learnt the outcome of his trial: “As a result the offender was left in a state of uncertainty as to his punishment for nearly five years and it has meant that his time in custody has been more onerous than for other prisoners”.

68. It is not to the point, as the Applicant argued, that the Applicant pleaded guilty to the offence with which he was charged, but Al Qatrani did not. It need only be observed that that Applicant received a very significant discount (30%) on his indicative sentence for this plea, and the admissions he made when interviewed. The discount for the Applicant’s guilty plea is only taken into account once the indicative sentence, based on objective and subjective factors, is determined. It has no bearing in a comparison of undiscounted or indicative sentences.

69. In my view, the subjective matters for Al Qatrani, to which reference has been made, account for the difference in the undiscounted sentences for the Applicant (16 years) and Al Qatrani (15 years): that is, the difference is explicable on the basis of the synthesis of the subjective features in Al Qatrani’s case. The parity principle is only offended when there is unjustifiable discrepancy between sentencing of co-offenders. In my view, there is no discrepancy of that kind having regard to the subjective features that were found to be relevant to the sentencing of Al Qatrani.

70. For these reasons, I do not accept the Applicant’s second argument.

The differences in the offences and different levels of “knowledge” of the drugs

71. At the commencement of the hearing, the Crown drew the Court’s attention to the fact that the Applicant and Al Qatrani were charged with, and thus convicted of, different offences: the Applicant was convicted of an offence under s 307.8(1) of the Criminal Code – that is, attempt to possess commercial quantity of border controlled drugs reasonably suspected of having been unlawfully imported, whereas Al Qatrani was convicted of an offence under s 307.5(1) of the Criminal Code – that is, attempt to possess commercial quantity of unlawfully imported border controlled drugs. The Applicant relied upon this difference as a basis to argue that this justified a reduction in the Applicant’s sentence, particularly when the knowledge of the Applicant and Al Qatrani was compared.

72. In light of this submission, two related aspects of the parity principle should be noted. The first is that the application of the parity principle does not depend upon coincidence of charges against the offenders whose sentences are to be compared: Green at [30] (French CJ, Crennan and Kiefel JJ). Nevertheless, it has been recognised that whilst different charges and different offending do not deny the application of the parity principle, there can be “significant practical difficulties” in its application in that situation – particularly where there are considerable differences between the crimes charged: Jimmy at [201]-[203] (Campbell JA, Howie and Rothman JJ agreeing); Kadwell at [13] (Leeming JA). (These “practical difficulties” do not squarely arise in light of the argument the Applicant advanced – hence need not be pursued further). The second, reflecting the first, is that the parity principle fixes on considerations of substance not form: Green at [30] (French CJ, Crennan and Kiefel JJ).

73. Although each offender was charged with different offences, when considering issues of parity, unjustifiable disparity is ultimately resolved by considerations of substance. In any event, whilst differences between the elements of each offence in this case can be acknowledged, they should not be overstated: the elements of the offence were identical except in one respect: for the offence with which the Applicant was charged, the second element is: “the substance is reasonably suspected of having been unlawfully imported”: s 307.8(1)(b) of the Criminal Code; whereas, for the offence with which Al Qatrani was charged, the second element is: “the substance was unlawfully imported”: s 307.5(1)(b) of the Criminal Code. With respect to these elements, absolute liability applies: in the case of the Applicant, see s 307.8(2) of the Criminal Code; and, in the case of Al Qatrani, see s 307.5(2) of the Criminal Code.

71. Further, it should also be recognised that there is one important similarity between the offences: the penalty. Thus, for each offence, the commission exposes the offender to the same penalty – being imprisonment for life or 7,500 penalty units, or both. Thus, it is clear that Parliament intended that commission of either offence be considered to be of equal objective seriousness.

72. In order to understand the balance of Applicant’s submission, it is necessary to explain how the issue of “knowledge”, in relation to these offences, arose in the present case.

73. Section 307.5(1)(c) and s 307.8(1)(c) of the Criminal Code identify an element of each offence (relevantly) as: “the substance is a border control drug…”. The fault element for this physical element is the same for both sections – namely, recklessness. This is made clear by the inclusion of ss 307.5(3) and 307.8(3) respectively. However, s 5.4(4) of the Criminal Code provides that where recklessness is identified as a fault element for a particular physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element. Thus, although the mental element of the relevant physical element in both offences is the same, recklessness, the manner in which the Crown seeks to establish the fault element can differ: it can seek to prove it in one or other of the ways identified in s 5.4(4).

74. In this case, the Court was told that the Crown conducted the case against Al Qatrani on the basis that he had knowledge of the presence of the unlawfully imported border controlled drugs, notwithstanding that proving recklessness to the requisite standard would have sufficed. As earlier noted, the Applicant fixed on this difference to argue that the findings made by Wass SC DCJ about Al Qatrani’s knowledge of the presence of the drugs, together with the fact that the Applicant pleaded guilty to an offence where he was reckless only, justified, by application of the parity principle, a more lenient sentence being imposed upon him.

75. Generally speaking, parity requires proportionality in sentencing to reflect “differing degrees of criminality” (Postiglione at 301-302) or degrees of culpability between co-offenders. However, contrary to the Applicant’s submissions, the sentencing of the Applicant and Al Qatrani were proportional and thus achieved parity.

76. In relation to the Applicant, it was established that he was aware that there were drugs in the extractor within the brown container, and he was found to have been so aware, based on the recorded telephone conversations and the receipt of $20,000 from Al Qatrani, on 21 January 2017. That brown container, it should be remembered, was delivered to the Riverstone property by the Applicant and the Applicant assisted Govender and Al Qatrani accessing the container, on 29 January 2017, using the forklift in the manner earlier described.

77. In relation to Al Qatrani, it was established that Al Qatrani knew that there were drugs placed within the machinery in the container, and that those drugs were of an unknown, but commercial, quantity. The Crown argued that although Wass SC DCJ made no express finding about precisely when Al Qatrani acquired the knowledge about the existence of the drugs within the extractor, other findings made established that it was acquired “towards the end”. This was said to be so because Wass SC DCJ’s findings were: (a) that “[j]ust when [Al Qatrani] obtained that knowledge was not clear on the evidence”; and, (b) that when unpacking the machinery, he had to be “instructed” about the way the machinery was packed, when to unpack it and that there “were three separate types of bundles and that they could not be mixed” – all matters consistent with Al Qatrani only acquiring knowledge close to the attempt to unpack the drugs on 29 January 2017. In my view, that assessment of the findings of Wass SC DCJ should be accepted.

78. It follows, therefore, that whilst it might be argued that the Applicant only admitted to being reckless as to the presence of the drugs, the findings made by Norton SC DCJ establish that he was reckless (and was aware) for a sustained period of the criminal enterprise. On the other hand, although Al Qatrani acquired knowledge of the existence of the drugs, that knowledge was acquired later and in the context of his attempt to recover the drugs from the machinery within the brown container.

79. Those findings do not support a conclusion that there is, for the purposes of determining whether parity exists, a material difference in the culpability of each offender. They certainly do not create a basis for this Court to find absence of proportionality between the respective sentencing outcomes, or to conclude that parity has not been achieved.

80. For these reasons, I do not accept the Applicant’s third argument.

Orders

84. I propose the following orders:

1. Extend the time for the filing of the Notice of Appeal until 22 January 2022.

2. Grant leave to appeal the sentence imposed by Norton SC DCJ on 27 July 2018.

3. Dismiss the appeal.

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Decision last updated: 05 August 2022