Parkinson v The Queen

[2021] NSWCCA 98

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Parkinson v R [2021] NSWCCA 98

Hearing dates:

17 March 2021

Date of orders:

17 May 2021

Decision date:

17 May 2021

Before:

Simpson AJA at [1]
Bellew J at [4]
Wilson J at [5]

Decision:

(1)   Leave to appeal against sentence on ground 1 refused;

(2)   Leave to appeal against sentence on ground 2 granted;

(3)   Appeal dismissed.

Catchwords:

CRIME — Appeals — Appeal against sentence — Drug offences — Supply prohibited drug — Large commercial quantity — Comparison of co-offender’s sentence — Parity — Assessment of objective seriousness

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 no 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146

Chamon v R [2020] NSWCCA 112

Lloyd v R [2017] NSWCCA 303

R v Carey (1990) 20 NSWLR 292; 50 A Crim R 163

R v Sawaya; R v Parkinson; R v Diamond [2020] NSWDC 130

Salafia v R [2015] NSWCCA 141

Tatana v R [2006] NSWCCA 398

TheQueen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Tuivaga v R [2015] NSWCCA 145

Usher v R [2016] NSWCCA 276

Texts Cited:

Oxford English Dictionary, 2nd ed (1989)

Category:

Principal judgment

Parties:

Robert Parkinson (Applicant)
Regina (Crown)

Representation:

Counsel:
G Brady SC (Applicant)
M Millward (Crown)

Solicitors:
McGirr Lawyers (Applicant)
Solicitors for Public Prosecutions (NSW) (Crown)

File Number(s):

2017/330324

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2020] NSWSC 130

Date of Decision:

17 March 2020

Before:

Judge Bennett SC

File Number(s):

2017/00291828

Judgment

1. SIMPSON AJA: I have had the advantage of reading in draft the comprehensive judgment of Wilson J with which, subject to the following minor matter, I agree.

2. The minor point of difference concerns the extract from the judgment in Salafia v R [2015] NSWCCA 141, in which her Honour characterises the assessment of objective gravity as “a discretionary process”. In my opinion it is more accurate to characterise that assessment as evaluative, rather than discretionary, although the process has much in common with the exercise of discretionary powers.

3. This slight difference does not affect my agreement with the reasoning of Wilson J.

4. BELLEW J: I agree with Wilson J.

5. WILSON J: On 21 May 2019, the day after his trial was due to commence, Robert Parkinson (the applicant) pleaded guilty to an offence of supplying a prohibited drug, being cocaine, in an amount not less than the large commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”). This offence carries a maximum penalty of life imprisonment and / or a fine set at 5,000 penalty units; a standard non-parole period (“SNPP”) of 15 years applies.

6. When he was sentenced for that offence the applicant asked the sentencing court to take into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Crimes (SP) Act”), an offence of supplying a prohibited drug contrary to s 25(1) DMT Act, an offence which, when prosecuted on indictment, carries a maximum penalty of 15 years imprisonment and/or fine set at 2000 penalty units.

7. The applicant was sentenced by his Honour Judge Bennett SC on 17 March 2020: R v Sawaya; R v Parkinson; R v Diamond [2020] NSWDC 130. Applying a reduction of 12.5% to the sentence that would otherwise have been imposed to reflect the utilitarian value of the late plea of guilty, his Honour imposed a term of imprisonment of 7 years upon the applicant, with a non-parole period (“NPP”) of 4 years and 6 months fixed. The sentence commenced on 1 November 2017 and expires on 31 October 2024. The NPP expires on 30 April 2022. The sentencing judge made a finding of special circumstances pursuant to s 44(2) of the Crimes (SP) Act in the applicant’s favour.

8. A related summary offence of possessing a prohibited drug was also before the sentencing court, on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). The applicant was convicted of that offence, but no further penalty was imposed upon him, pursuant to s 10A of the Crimes (SP) Act.

9. By Notice of Application dated 3 November 2020 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, advancing two proposed grounds:

1. “The sentencing Judge erred in the assessment of the objective seriousness.

2. A comparison of the Applicant’s sentence to those imposed upon his co-offenders gives rise to a justifiable sense of grievance”.

The Proceedings in the District Court

The Crown Case - Facts of the Offences

10. The Crown tendered an agreed statement of facts and this evidence formed the basis of the facts found by the sentencing judge in the District Court. What follows is a summary of them. The original document is, as the sentencing judge observed, “lengthy and relatively complex”.

11. In early 2017, police commenced an investigation into the supply of prohibited drugs on Sydney's Northern Beaches. During the course of the investigation, Clayton Barnes was identified as a supplier of prohibited drugs in the area. The identification of Barnes led to the identification of the applicant and his co-offenders, Mark Sawaya and Richard Diamond.

Form 1 offence - Supply prohibited drug (138.01g cocaine, 9 August 2017)

12. On 8 and 9 August 2017 text messages were exchanged between an undercover police officer (“UCO”) involved in the investigation and Barnes, arranging a time and location for a meeting, the purpose of which was the purchase by the UCO of drugs from Barnes. After a location was agreed Barnes changed it, giving as the reason his need to meet a male in Warriewood beforehand. The applicant lived at Warriewood at the time.

13. It was an agreed fact that the co-offender Sawaya visited the applicant at his home on 9 August 2017, collecting five ounces of cocaine from him, and subsequently delivering it to Barnes. This was the drug that Barnes supplied to the UCO later that same day at Avalon, at a price of $38,000.

14. On analysis the substance supplied to the UCO was cocaine, in an amount of 138.01 grams. DNA recovered from the vacuum sealed bag that contained the cocaine was found to have the same profile as that of the applicant.

15. The supply of this quantity of cocaine was reflected by the offence on a Form 1 document that was taken into account when sentence was imposed for the more serious offence.

Count 1: Supply not less than a large commercial quantity of a prohibited drug

16. The observations made by police of the applicant, Sawaya, and Barnes during this period had established that a silver Honda Jazz motor vehicle, registered number CTU 23E, was used by them to facilitate the supply of drugs, including as a repository in which to store the drugs. The vehicle was, for the most part, left parked and unattended on Queenscliff Road, Queenscliff.

17. During August and September 2017, the applicant and Sawaya were each observed accessing the vehicle at different times, each using a remote control device to unlock and lock the car.

18. On 24 August 2017 Sawaya was seen to get out of the car after being in it for several minutes. He returned to his own vehicle and drove away.

19. On both 26 August 2017 and 29 August 2017 Sawaya was again observed getting into the Honda Jazz, remaining there on each occasion for about four minutes, before getting out of the car and discarding a pair of black latex gloves into a nearby rubbish bin, before returning to his own vehicle.

20. On 30 August 2017 both Sawaya and the applicant used the Honda Jazz. At 1.49pm Sawaya was seen to get into the vehicle, remaining in it for four minutes, before returning to his own car and driving away. At 2.31pm, the applicant drove to Queenscliff Road and parked his car behind the Honda Jazz. He went to the Jazz and, getting into it, drove it away. He returned to Queenscliff Road in the Jazz at 4pm that day, parking and leaving it there. He got into his car and drove off.

21. At 1.42pm on 5 September 2017, Sawaya returned to the Honda Jazz, entered it, and drove it for three minutes. He then returned it to spot close to its former position on Queenscliff Road, parking it there. He stayed in the car for a further seven minutes, and then returned to his own car and drove away.

22. Less than half an hour later that day, at 2.05pm, the applicant got into the Honda Jazz and drove it from Queenscliff Road to the location of Nuco's Smash Repairs at Brookvale, a business operated by the other co-offender, Richard Diamond. The applicant remained there with the car until 3.35pm, when he drove it back to Queenscliff Road.

23. On 19 September 2017, Sawaya was observed in the vicinity of the parking place of the Honda Jazz in Queenscliff Road. Police later located a pair of black latex gloves in a garbage bin on the pavement directly in front of the vehicle, from which DNA consistent with that of Sawaya was recovered, suggesting that he had entered the vehicle briefly, before discarding the gloves he had worn, as he had done on other occasions.

24. At 2.07pm on 22 September 2017 Sawaya was seen entering the Honda Jazz, remaining in it for four minutes, and then getting out. He was carrying a black satchel. About a quarter of an hour later Sawaya went to Diamond’s smash repair business and went inside, carrying the satchel. When he left the premises two minutes later, he did not have possession of the satchel. At 4.18pm the same afternoon, the applicant went to Nuco's Smash Repairs in his own car and left four minutes later, again in his own car. Fourteen minutes later he returned, driving the Honda Jazz, parking it at 4.38pm in the driveway of Nuco's Smash Repairs, before walking into the building carrying a light-coloured bag.

25. At 4.43pm, he emerged from the building and returned to the Honda Jazz. He was carrying what appeared to be the same black satchel that Sawaya had taken to the Smash Repairs earlier that afternoon. After placing the satchel in the vehicle, the applicant returned to the building of Nuco's Smash Repairs. He remained there for an hour, during which he and Diamond loaded the Honda Jazz with an amount of cocaine.

26. At 5.51pm, the applicant drove away in the Jazz and, after stopping to fill it with petrol at a petrol station in Brookvale, drove to his home, where he left the vehicle parked for the night.

27. The following morning, 23 September 2017, the applicant left his unit carrying a bunched-up Aldi brand bag. He got into the Honda Jazz. At some time between 10.14am and 1pm that day, the applicant drove the vehicle back to Queenscliff Road and parked it there.

28. In the early hours of 25 September 2017, police executed a covert search warrant on the Honda Jazz. An Aldi brand bag was observed through the join in the rear seats but it was not possible to lift the seats and the bag could not be accessed.

29. A police officer with expertise as a panel beater was involved in the covert search of the vehicle. He observed that the rear floor area of the vehicle was smaller than in other vehicles of that make and model, and it was apparent that a “Magic Seat” function in the particular model of Honda Jazz had been deactivated. It appeared that an area of floor space had been compartmentalised with timber, with carpet of the same type as installed by the manufacturer used to conceal the modification.

30. A box of black latex disposable gloves was found in the glove box of the Jazz.

31. Later, at around 1pm that day, Sawaya was stopped by police after he had gotten out of the Honda in Queenscliff Road. He was searched and found to be in possession of two vacuum sealed Food Saver brand bags containing white powder.

32. A subsequent search of the Honda Jazz found a compartment concealed under the rear seats. This was the area of the car that could not be accessed during the execution of the covert search warrant; the hidden compartment was found only by forcing access to the area under the rear seats. Inside this hidden compartment, police located seventy clear Food Saver brand bags containing compressed white powder, stored in various branded bags, including an Aldi bag identical to the bag the applicant had been carrying when he got into the Jazz at his home address at 9.52am on 23 September 2017. Each clear Food Saver bag was found to contain cocaine. The total weight of the cocaine found in the hidden compartment, together with the contents of the two bags found in Sawaya’s personal possession, was 2,406.1 grams.

33. The applicant's DNA was located on three of the branded bags that had held the Food Saver bags of cocaine, being a blue "Cool bag", a black "Digital" brand bag, and a Hairhouse-Warehouse bag. DNA consistent with having originated with the co-offender Diamond was found on 24 of the clear Food Saver brand bags from the hidden compartment.

34. The hidden compartment in the Jazz that had been used to conceal the packages of cocaine had been installed sometime between 26 July 2017 and 23 September 2017. The modification was sophisticated. Police found that wiring and a switch for the hidden compartment had been traced through to the front of the vehicle. The compartment could be unlocked only by taking certain steps. To gain access to the secret area it was necessary to open the air conditioning vent; ensure that the handbrake was engaged; turn the traction control to “on”; and switch on the ignition of the car.

35. Other modifications had been made to ensure that the compartment would remain concealed and operational. The Agreed Facts state:

“The compartment and other modifications to the vehicle were extensively installed in order to conceal its existence

a.    The timber had been fibre-glassed into place to ensure it did not fall apart or fail;

b.   The actuator was mounted to perform efficiently along with the carpet to conceal the compartment

c.   The seats had been taken apart and customised to ensure the operation of the secret compartment

In the expert opinion of SC Stay the modifications were manufactured for the purpose of creating the secret compartment within the vehicle, without being readily identifiable.

The rear seat modification comprised of a number of detailed components and would have taken a person with sound knowledge in the automotive industry to manufacture.”

36. When the previous owner of the car had sold it on 26 July 2017 the car was as issued by the manufacturer, with no relevant modification made to it.

37. The Agreed Facts noted that:

“Parkinson, together with Sawaya, were working together with the intent of supplying the cocaine that was stored in the hidden compartment of [the Honda Jazz]. Parkinson was aware that there was more than one kilogram of cocaine stored in that hidden compartment.”

38. A search warrant was executed at the applicant's home in Warriewood on 25 September 2017. Police located the following:

1. A Food Saver brand vacuum sealing machine; an empty Food Saver branded box; an empty Food Saver brand heat seal bag; and a roll of unused Food Saver brand heat seal bags;

2. A bag containing a white powdery substance which was later analysed and found to be 2.2g of cocaine [the possession of which was the offence before the sentencing court on the s 166 certificate];

3. Two home-made weapons, including a taser;

4. Digital scales;

5. Two mobile phones, one of which was a Blackberry; and

6. An RF Scanner/Jammer with instructions, and an RF emitter.

39. A DNA profile consistent with that of the applicant was also found on a trace swab taken from a money counting machine found at the home of the co-offender Sawaya.

40. The applicant was arrested on 25 September 2017. He refused to be interviewed by police.

Other Evidence in the Crown Case

41. A document issued from the NSW Police Criminal Records database showed that the applicant had no prior convictions. His custodial history was unremarkable.

42. A copy of the sentencing remarks from her Honour Judge Girdham SC in sentencing Clayton Barnes on 16 November 2018 was before the sentencing judge. Barnes had entered a plea of guilty in the Local Court to the lesser charge of supplying a prohibited drug in an amount not less than the commercial quantity prescribed for cocaine. He was committed for sentence to the District Court, and ultimately sentenced by her Honour to a term of imprisonment of 3 years and 4 months (after a full discount on sentence of 25% to recognise the utilitarian value of the early plea had been applied), with a NPP of 2 years and 2 months.

43. The charge brought against Barnes reflected the six separate occasions between 16 May 2017 and 8 August 2017 on which he had sold cocaine to an undercover police officer, and another occasion in that period when he had agreed to do so. The actual supplies were for a total of 417.4 grams of cocaine for $113,900. The purity of the drug ranged between 37.5% and 79.5%. The agreement to supply was for 141.75 grams of cocaine, at a price of $38,000. The total weight of drug involved was 559.15 grams of cocaine, at a sale cost of $151,900.

44. Barnes had a limited criminal history, with convictions for driving with a mid-range prescribed concentration of alcohol, and possession of a prohibited drug. He had become involved in selling drugs for those to whom he had, as an addict with a bi-polar disorder, accrued a substantial drug debt, as a means of discharging the debt. He had strong family support, a solid background working in a family company he part-owned, and was contrite and remorseful. Prior to his arrest he had moved away from Sydney with his partner and young son, in an effort to detach himself from the drug milieu. The sentencing judge found that Barnes had been “a middle delivery driver” who received an amount of $1000 credited against his outstanding debt for each sale made.

45. A Sentencing Assessment Report (“SAR”) relating to the applicant was also before the sentencing court. The author noted that the applicant was reported to have been in a steady relationship for a period of over four years [as at February 2020] and to enjoy family support. He had previously been employed as a cleaner, and had been working whilst remanded in custody, with positive reports given by supervisors.

46. Of his offences the applicant told the author of the SAR that he was “not thinking” at the time, and became involved in the supply of drugs to both discharge his own drug debts and fund his cocaine habit. He claimed to have been abstinent from drug use since entering custody, and said that he was willing to engage in drug rehabilitation programmes. The applicant was assessed as being at “low/medium risk of reoffending”.

The Applicant’s Case

47. The applicant was born in 1988. He was 28 at the time he committed the offences, and 31 years old at the time of sentence. He did not give evidence in the sentence proceedings.

48. The applicant tendered a number of letters, of his own and from others, together with a psychological report in his case before the sentencing court.

49. In his undated handwritten letter, the applicant said that his incarceration had given him the opportunity to reflect on his conduct, of which he felt regretful and ashamed. He said that his cocaine addiction had put him on the wrong path and led him to make many poor decisions. He told the sentencing court in his letter:

“My time in custody has opened my eyes to the destruction and damage that drugs cause to people and I can now see and understand how much that drugs ruin peoples [sic] lives and it now fills me with great regret to think I had any part to do in the chain of supply of cocaine.”

50. He asserted that he had not used drugs since entering custody, and had not gotten into any trouble. He thought that his incarceration had made a better person of him, and he expressed his determination to make his family proud of him in the future.

50. In her letter, the applicant’s partner said that the applicant had been able to deal with his drug addiction in the period [of over two years] he had spent on remand, and prison had “saved his life”. Ms Byrne said that she was determined to stand by the applicant and had been heartened to see his resolve to make something of his life and contribute to the community. She said that he had expressed his shame and remorse to her for what he had done.

51. Ms Byrne’s parents also continued to be supportive of the applicant. They spoke positively of him and noted that they would offer him a home and a loving family on his release from prison.

52. The applicant’s mother told the court in her letter that she had had the sole responsibility of raising the applicant, his grandfather and a close family friend having died when the applicant was very young. The applicant experienced problems at school, including dyslexia, and changed schools on a number of occasions because of behavioural problems, or after having been expelled. When no public school would accept the applicant, Ms Parkinson moved herself and her son, then 14 years old, to her native country, England, where the applicant entered school, remaining there until just before his 17^th birthday. He subsequently worked in landscaping, holding positions at Blenheim Palace and later in a sports centre at Oxford University, working fairly continuously and travelling from time to time to Australia. It was during a period of living and working in Australia that Ms Parkinson saw a negative change in the applicant, subsequently learning of his arrest. Ms Parkinson believed that her son regretted his crimes, and was deserving of a second chance.

53. A childhood friend, Glenn Cooper, who had maintained contact with the applicant when he left Australia for England, resuming their friendship on the applicant’s return, told the sentencing court in his letter that the applicant had begun having late nights, spiralling down into excessive alcohol and then drug use. Mr Cooper and other friends sought to intervene, but their efforts were not successful. Mr Cooper continued to support the applicant and visited him regularly during the time he had spent on remand. He was convinced that the applicant was genuinely regretful of his poor decisions and actions. Mr Cooper was able to offer the applicant employment on his release.

54. A sporting acquaintance from England [who made no reference to the applicant’s impending sentence] described him as a skilled cricketer who was fair, well-mannered, and a natural athlete. In a number of what appear to be employment references, the respective UK referees all wrote of the applicant in positive terms, recommending him for any position he may have sought.

55. The final evidence tendered for the applicant was a report from a consultant psychologist, Mr Watson-Munro, dated 19 February 2020. The report, prepared for the sentence hearing at the request of the applicant’s legal representatives, described the applicant as an articulate, if depressed and anxious, young man. The applicant gave the author a history of a significant cocaine addiction, through which he had accrued a drug debt of some $20,000. He acknowledged that his heavy cocaine use had affected his decision-making and judgment.

56. Mr Watson-Munro recounted the history given to him by the applicant which was generally consistent with the information provided by Ms Parkinson in her letter. He referred to it as a history of “considerable loss during his early life”, in which the applicant had attended many schools, including a behavioural school, and experienced a disrupted education. The applicant had intended to undertake Year 10 studies through TAFE prior to his arrest.

57. The applicant told Mr Watson-Munro that he first used cannabis in primary school, with the latter suggesting that this may have been an instance of the applicant “self-medicating” to assist him to deal with an entirely absent father and other losses of loved ones, together with geographical dislocation, at an early age. The applicant continued to use cannabis into his mid-twenties, although his preferred drug was cocaine, which he used from his “late 20’s” until arrest.

58. The opinion of Mr Watson-Munro was that the applicant was “psychologically troubled” and he endorsed symptoms consistent with a Depressive Disorder. The applicant’s self-described drug use was indicative of a Substance Use Disorder. These issues impacted, in the view of the report’s author, upon the applicant’s judgment.

The Remarks on Sentence

60. His Honour Judge Bennett SC noted that the applicant, like Sawaya, had pleaded guilty on 21 May 2019, in circumstances where his trial had been due to commence on 20 May 2019. The basis of the plea, his Honour observed, was an acceptance by the applicant that the cocaine had been in his possession on 25 September 2017 for the purposes of supply, that being supported by an abundance of evidence. The utilitarian value of the plea of guilty was recognised by a 12.5% discount on the sentence that would otherwise have been imposed, rounded down to avoid adding odd days to the final outcome.

61. The sentencing judge noted the maximum penalty and SNPP for the s 25(2) DMT Act offence. He assessed the gravity of the offender’s crime (and that of Sawaya, although not Diamond) as “below mid-range [although] it is nearer to mid-range than the lower end of that scale”. The sentence to be imposed would be increased to take into account the Form 1 offence, in accordance with the principles given in Attorney General’s Application under s37 of the Crimes (SP) Act 1999 no 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146; 137 A Crim R 180.

62. Having set out the agreed facts of the applicant’s crimes, the sentencing judge noted that the applicant had no previous criminal history and the benefit of supportive family and friends. He was found to have “made progress in custody” and to have prospects for rehabilitation. Referring to the matters outlined in the correspondence from the applicant’s friends and family, his Honour observed that “it is of note that [the applicant] is so well thought of by so many people”. The sentencing judge referred to the contents of the psychological report as helpful in part but preferred the assessments of those who had long term knowledge of the applicant. His Honour concluded that the applicant was “a young man who had challenges that have stayed with him through life and yet he was able to form meaningful and positive friendships” and a strong relationship with Ms Byrne.

63. Of the applicant’s criminality, the sentencing judge concluded that it was greater than that of Barnes and comparable to that of Sawaya. His Honour concluded that the applicant had been engaged in organised criminal activity. To the applicant’s benefit he found that the applicant’s liability was “that there was significant risk or a real chance that there was more than over 1 kilogram secreted in the hidden compartment in the Honda vehicle”. In fact, the agreed facts had specified that the applicant had actual knowledge of that fact. The applicant, together with Sawaya, were found to be “no mere drivers operating solely at the behest of others”. With respect to both Sawaya and the applicant, his Honour rejected submissions that each was a subordinate to some other unidentified person. He was:

“satisfied drawing together all of the direct evidence that is before me by way of the documents tendered that their roles were of greater significance than has been submitted, their demonstrated organisation and planning and execution of the roles extending marginally to a level that would require a finding that has aggravated the offending with access of drugs for supply and control of the funds derived”.

The Proposed Appeal

64. In his notice of grounds the applicant raises two complaints: error in the assessment of the seriousness of the crimes, and a parity error. They will be dealt with in the order given on the Notice, which is the reverse order to that in the applicant’s written submissions.

Ground 1: The sentencing judge erred in the assessment of objective seriousness

65. As noted, the sentencing judge assessed the objective seriousness of the offences committed by the applicant and Sawaya as falling "below mid-range but not toward the low end of the range" and "nearer to mid-range than the lower end of the scale". The applicant complains that, in making that assessment, his Honour referred to factual findings that were not open on the evidence. It is argued that those errors of fact led to an erroneous assessment of the gravity of the crimes. Specifically, the applicant contends that there was error in what are referred to as incorrect “findings in assessing the objective seriousness”, as follows:

1. The sentencing judge found that the cocaine involved had been imported, something of which the applicant was aware;

2. His Honour concluded that Sawaya and the applicant were engaged in their own enterprise [as opposed to being subordinates in some other person’s enterprise];

3. The applicant had “provided” Sawaya with the 138.01 grams of cocaine then sold by Barnes to the UCO;

4. The applicant controlled the funds derived from supply;

5. The applicant had access to another vehicle used by Sawaya that was modified in a way similar to the Honda Jazz.

66. The applicant complains of a failure by the sentencing judge to differentiate between Sawaya’s conduct and his own in assessing the gravity of his crime, effectively dealing with the two as what senior counsel for the applicant described at the hearing before us as “a job lot”. The fifth asserted error is an example of that asserted error.

67. Neither the individual complaints nor the overarching complaint advanced by the proposed ground 1 have any real substance in my view and this ground cannot be made good.

68. Addressing the individual complaints first, each is grounded on a misstatement or a misunderstanding of his Honour’s remarks on sentence, or by failing to give appropriate context to an impugned remark.

69. The first asserted factual error relates to a comment by the sentencing judge as to the international origins of cocaine. What his Honour said was:

“I take notice that cocaine is not a drug that emanates in this country. It is made from the dried leaves of the coca plant native to South America. This does not gainsay the possibility that it could be produced here from dried leaves from plants grown in Australia or from dried leaves brought into Australia but my experience in the criminal justice system informs me that cocaine is a product imported illicitly into this country”.

70. The context of those few sentences was a discussion of the many and varied persons and roles involved in the illegal drug trade; they related to his Honour’s consideration, citing TheQueen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [19] – [21], of the appropriateness or otherwise of giving a particular label to the individual roles played by persons involved in the drug trade, a label that may be, sometimes unhelpfully, intended to indicate a position in an hierarchy. The impugned comments, of themselves and in the context in which they were made, were not factual findings to the effect that the particular quantity of cocaine in the applicant’s possession had been imported into Australia, or that the applicant knew the particular quantity had been imported. It was not a factual finding referable to the applicant at all.

71. Strictly speaking, there was no requirement or need for his Honour to make those comments, but they had no bearing on the assessment made by him of the gravity of the principal offence, and do not demonstrate error.

72. The second asserted factual error the applicant complains was made by the sentencing judge was to conclude that the applicant and Sawaya were involved in their own enterprise. The impugned remark followed his Honour’s reference to Olbrich, and the questionable utility of adopting a label to describe an offender’s individual role. His Honour said:

“Rather than conducting themselves in the employ of another or others within an hierarchical structure there is, in my assessment, the equally probable inference available that they were engaged together in their own enterprise with a source of the product for the ultimate consumer. As with so many cases these offenders have chosen not to give evidence leaving the Court to reach findings as to their respective roles from objective facts, from what was said to police at the time of arrest and interview, or upon untested representations for the authors of various reports speaking to their subjective circumstances and their participation in this misconduct”.

73. His Honour did not, by making these comments, make a positive finding that the applicant and Sawaya were involved in their own enterprise. Echoing the concerns expressed by the plurality of the High Court in Olbrich, he was doing no more than pointing to the difficulty of ascribing a particular role in an assumed hierarchy to an offender where the evidence may be inadequate to that purpose. That is readily apparent if the extracted paragraph is read - as it should be - in the context of the whole, and particularly in the context of what followed:

“These considerations together with the physical evidence described lead me to the view that however one might see the offenders’ roles, whether as agents or employees within an hierarchical organisation, or engaged in their own business with a source of product from which they derived profit when supplied in the market, Sawaya and Parkinson were no mere drivers operating solely at the behest of others.

In either case I am satisfied drawing together all of the direct evidence that is before me by way of the documents tendered that their roles were of greater significance than has been submitted, their demonstrated organisation and planning and execution of the roles extending marginally to a level that would require a finding that has aggravated the offending with access of drugs for supply and control of the funds derived” (emphasis added).

74. It is apparent that the sentencing judge could not determine whether the applicant and Sawaya were agents of another, or operated on their own account. He made no finding of fact that they were independent dealers. His conclusion was that they were not couriers. There was no error in this regard.

75. The third asserted error rests upon a complaint which is entirely semantic. Referring to the evidence of surveillance conducted by police, and in that context to the offence of supplying a prohibited drug that was on the Form 1 document his Honour referred to it as an offence:

“[…] on August 9, 2017 in the supply of 138.01 grams to the undercover officer after the drugs were sourced from Parkinson who provided them to Sawaya when he went to Parkinson’s home […]”.

76. The applicant contends that it was not open to his Honour to use the word “provided”, since that word suggested that the applicant had been in possession of the cocaine supplied to the UCO, when it was possible that Sawaya had stored the cocaine at the applicant’s premises.

77. This complaint reads a world of meaning into a single word that the word cannot sustain.

78. In relation to the offence of 9 August 2017, the agreed statement of facts said:

“Sawaya visited Parkinson, who resides at [Warriewood] in order to pick up 5 ounces of cocaine so that he could deliver it to the co-accused Barnes for his arrangements [to meet] with the UCO.”

79. That document also noted that Barnes had earlier changed the location of the meeting with the UCO at which the supply was to be made because he had to meet “him”, inferentially Barnes’ supplier, at Warriewood. It also stated that DNA consistent with origin from the applicant had been recovered from the packaging of the drugs.

80. It was equally open on that evidence for the sentencing judge to conclude that the applicant held the cocaine and gave, or provided, it to Sawaya to deliver to Barnes; or, that the applicant and Sawaya jointly possessed the cocaine which was stored at the applicant’s home, and the applicant gave, or provided, it to Sawaya when Sawaya went to his home; or, that Sawaya had stored the drug with the applicant and the applicant had gotten it for, or provided it to him, when he called. If his Honour in fact intended to convey as a conclusion the first of those possibilities, it was open to him.

81. In any event, his Honour’s use of the word must be assessed in light of the applicant’s acknowledgement of his guilt of the charge of supplying 138.01 grams of cocaine on 9 August 2017. Whichever was the precise factual scenario, there is no doubt that the applicant supplied the cocaine on that day, in a joint criminal enterprise with Sawaya. It matters little whether the applicant brought the cocaine to his home and stored it there, or Sawaya did, preparatory to its supply. Both men accepted criminal liability for supplying the drug; the applicant did not advance a Carey defence (R v Carey (1990) 20 NSWLR 292; 50 A Crim R 163). There can be no error in the sentencing judge having used the word “provided” with respect to the supply of a prohibited drug. The Oxford English Dictionary, 2nd ed (1989) gives a number of meanings for the word “provide”; one of them is “to supply or furnish”.

82. Finally, there is no reason to conclude that the facts surrounding the Form 1 offence were wrongly used by his Honour in assessing the gravity of the offence on indictment to elevate its seriousness.

83. The applicant’s fourth complaint is that the sentencing judge erroneously concluded that the applicant controlled the funds derived from the illegal activity, in circumstances where Sawaya was arrested in possession of a large sum on monies. The complaint is based upon what his Honour said in the second of the two paragraphs extracted at [73] above, concerning the offenders’ “roles extending marginally to a level that would require a finding that has aggravated the offending with access of [sic – to?] drugs for supply and control of the funds derived”.

84. I do not understand his Honour by that remark to have concluded that the applicant controlled the monies that had been in his co-offender’s possession, or that he occupied a more senior role than Sawaya. Rather it was a reference to the evidence that the applicant and Sawaya, acting in concert, had access to drugs for the purposes of supply, with any funds derived from the sale of drugs received by them. There was no evidence at all that the applicant was obliged to account for monies received to any other person, and it was open to the sentencing judge to proceed on the basis he did.

85. By the final asserted error of fact the applicant contends that the sentencing judge failed to differentiate between his role and that of Sawaya, an example of which was given as his Honour’s reference to the applicant having knowledge of a second modified vehicle, a Hyundai used by Sawaya. At [306] of his remarks, his Honour said:

“However, the conduct upon which Sawaya and Parkinson were detected involved unrestricted access to the Honda motor vehicle as a warehouse for the drugs from which they were brought for supply including when provided to Barnes for an undercover officer, the use of BlackBerry devices to meet the risk of interception of their communications, counter surveillance strategies employed through the periods of surveillance undertaken, and the modification of the Honda motor vehicle and a Hyundai to provide secret compartments in which in the case of the Honda drugs were secreted and in the Hyundai motor vehicle where the money was found secreted, those items stored there until needed.”

86. This complaint generally, and in relation to the supposed error by the sentencing judge as to the applicant’s knowledge of the Hyundai, overlooks the care with which, over a very lengthy joint judgment of 317 paragraphs, the sentencing judge was at pains to delineate and distinguish the individual acts and conduct of the applicant, Sawaya, and also Diamond, in their respective involvement in the charges before the sentencing court. By [306] of that judgment, towards the concluding paragraphs of it, his Honour was doing no more than referring in summary fashion to matters already set out in a more thorough and considered way previously in the sentencing remarks. His Honour had earlier set out the evidence concerning the modifications to the Hyundai, modifications which had created a hidden compartment beneath an airbag, which was accessed by a similar complicated sequence requiring the manipulation of various controls as in the Honda Jazz, and in which a sum in excess of $49,000 was found. Sawaya faced a charge relating to his possession of that money.

86. As the sentencing judge had recorded when giving the facts of the offences against Sawaya, the Hyundai was a vehicle regularly used by him; his fingerprints and DNA consistent with originating from Sawaya were found in the car and in the secret compartment, or on items in both. Of the 25 references to the Hyundai in the remarks on sentence, 24 of them are in the context of his Honour’s remarks concerning Sawaya. Those remarks make it perfectly clear that his Honour well understood that the Hyundai was a vehicle in the control of Sawaya, as was the money found inside it. The 25^th reference to that car, at [306] of the remarks on sentence, the basis upon which this complaint is made, is in the context of an overall summary of the matters recounted by his Honour in what was a joint judgment. The reference does not, on any reasonable view of it, point to a failure by the sentencing judge to distinguish between the applicant and Sawaya.

87. The sentencing judge was astute to the need to consider the role of each offender individually; hence his separate consideration of the cases against the three co-offenders before him for sentence. There was not, on the evidence, any great distinction to be drawn between Sawaya and the applicant, and no basis to conclude that one was more senior to the other. Indeed, as (different) senior counsel acting for the applicant at sentence submitted to the sentencing court, the evidence did not really allow any conclusion as to “a pure hierarchy between these three co-offenders” to be drawn.

88. On a fair reading of the remarks on sentence, there is no basis to conclude that the sentencing judge failed to make a distinction between the applicant and Sawaya that was established by the evidence. On the contrary, his Honour gave careful attention to each individual case.

89. I am not persuaded that any of the matters pointed to by the applicant as factual errors can be concluded to be such. Nor am I persuaded that his Honour was in error in his assessment of the gravity of the offending conduct. He considered all of the matters, facts and circumstances that had a bearing on the gravity of the crime, and the conclusion his Honour reached was open to him. As I have previously observed (with the agreement of Hoeben CJ at CL and Hall J), in Salafia v R [2015] NSWCCA 141, at [90]:

“Assessment of gravity by a first instance judge is a process involving the application of principle to facts established by the evidence. It is a discretionary process that relies upon a judicial officer considering all relevant features, and making what in many regards is a value judgment. The conclusion reached is a discretionary one in a process where there is no definitively “correct” answer. Opinions can reasonably differ, but the availability of other differing assessments is not a basis upon which to discern error. There will be appealable error only where there has been a failure in the proper application of principle in making the assessment.”

91. The applicant has failed to establish that there was a failure in the proper application of principle and, in my opinion, the assessment made by the sentencing judge was one which was open to him.

92. I would not grant leave to advance this ground, reliant as it is on semantic arguments, and upon aspects of the remarks on sentence taken out of context.

Ground 2: A comparison of the Applicant’s sentence to those imposed upon his co-offenders gives rise to a justifiable sense of grievance

93. The applicant’s second complaint raises a parity ground.

94. The applicant was sentenced to 7 years imprisonment with a NPP of 4 years and 6 months. Sawaya was sentenced to 7 years and 10 months imprisonment with a NPP of 5 years. Diamond was sentenced to 4 years and 6 months imprisonment with a NPP of 2 years and 6 months. The applicant contends that he has a justifiable sense of grievance due to the disparity between his sentence and that of his co-offenders and, in particular, his sentence should have been considerably less than that imposed upon Sawaya. The point of difference between him and Sawaya is, he contends, the difference in the offences before the sentencing court for each on Form 1 documents, and the “motivation” of each in offending.

95. The basis of liability for each differed somewhat: the applicant had agreed that he was aware that an amount of cocaine in excess of 1kg was stored within the hidden compartment in the Honda Jazz; Sawaya was sentenced on the basis that he was aware there was a real chance that the quantity exceeded 1kg. The differing mental states pointed to the applicant’s greater culpability than that of Sawaya. The facts revealed that Sawaya accessed the Honda Jazz in which cocaine was stored with greater frequency than did the applicant, but the applicant’s access to it arguably demonstrated a greater level of control, including having the car at his home overnight. Despite that, and in the applicant’s favour, the sentencing judge made the same assessment of the gravity of each offender’s crime as below mid-range, but nearer to mid-range than the lower end of the scale.

96. Otherwise, the differences between the cases relevant to the applicant and Sawaya were relatively confined. Each entered a late plea of guilty to a single count of supplying a prohibited drug in an amount not less than the large commercial quantity, and received a consequential reduction on sentence of 12.5%. Both offenders asked the sentencing judge to take other offences into account when sentence was imposed for the principal matter.

97. The applicant and Sawaya each faced a charge of supplying a prohibited drug referable to the 138.01 grams sold to the UCO; Sawaya additionally had three other offences on a Form 1 document. Those offences were two further counts of supplying a prohibited drug, and an offence of dealing with the proceeds of crime relating to the money found in the modified Hyundai and a small amount at his home. The sentencing judge was conscious of that difference, observing at [248] that the applicant was:

“[…] in a different position, of course, to the offender Sawaya because he has but one offence on the Form 1 to be brought to account corresponding to the offence on 9 August 2017 on the Form 1 for Sawaya. Thus his Form 1 will have a less significant impact upon the sentence for the principal offence.”

98. The subjective cases were similar. The applicant was younger by six years than Sawaya but that is not significant when neither was a young offender. Neither had relevant criminal histories: the applicant had no convictions recorded against him; Sawaya had some driving offences that his Honour regarded as of no significance. Both had support from family and friends; each had experienced some difficulties in life. Both had used drugs: the applicant having been observed by others to develop a problem with addiction; and Sawaya being a regular user of cocaine. Each was found by the sentencing judge to pose a low to medium risk of reoffending and to have prospects of rehabilitation.

99. Whilst the applicant argues that his criminality was less than that of Sawaya because he was motivated by a need to feed his drug habit in circumstances where Sawaya’s motivation was greed, the evidence does not bear that contention out. Certainly the sentencing judge was not able accept that proposition without clear evidence of it. His Honour observed, at [220] – [221]:

“Substance use and antisocial peers were major factors in his offending. He said he was not thinking at the time of the offences. That is an ambiguous statement and what it precisely means I do not know in the circumstances where he was involved in such a well organised and sophisticated enterprise.

He is attributed with the proposition that he was using the rewards from this activity to pay off his own drug debt and to fund his ongoing substance use. Once again I do not have any definitive evidence upon the extent of his debt and the cost of his ongoing use of cocaine or whatever other substance.”

100. Sawaya, on the other hand, claimed that his crime occurred in the context of family tragedy and the resultant need to financially assist a family member with a rare form of cancer, in circumstances where Sawaya had lost his employment and legitimate income.

101. The sentencing judge did not find one offender’s motivation to be less culpable than that of the other, and nor was his Honour obliged to make such a finding. For my part, I do not conclude that the applicant’s assertions about his reasons for committing crime ought to have made any real difference to the sentence to be imposed upon him. He did not give evidence as to his motivations, and there was no other evidence beyond the observations of friends and loved ones as to drug use. Whilst it may be accepted that the applicant used cocaine, that does not establish on balance that the acquisition of drugs for personal use was his only motivation for the supply of a large commercial quantity of cocaine.

102. This feature of the applicant’s case is not such as to require any differentiation in the sentence imposed on the applicant when compared to that imposed upon Sawaya.

103. The applicant’s complaint of disparity relevant to the sentence imposed on Diamond has less substance, since the applicant acknowledges having played a greater role than Diamond, who was sentenced for being knowingly concerned in the supply of a prohibited drug in an amount not less than the large commercial quantity. Diamond’s role was less than that of the applicant and Sawaya, and was limited to assisting the applicant with loading a quantity of cocaine into the Honda Jazz on 22 September 2017. The sentencing judge concluded that his crime fell towards the lower end of the range of objective seriousness. Diamond was afforded a discount of 10% for his late pleas of guilty. He had no Form 1 offences and his only previous conviction for driving dangerously in 1997 was not relevant on sentence.

104. The sentencing judge accepted that Diamond was remorseful and had been rehabilitated at the time of sentence. His offending was motivated by "grave economic imperilment” caused by serious illness and injury.

105. The respective cases for and against the applicant and Diamond were different, and the sentencing judge was well placed to assess the differences, and reflect them in the sentence imposed upon each, as he was in sentencing Sawaya.

106. That is one reason for the not inconsiderable hurdle faced by the applicant in establishing this ground: he and his two co-offenders all appeared before Judge Bennett SC, and all three were sentenced by his Honour in the course of the same proceedings: Tatana v R [2006] NSWCCA 398 at [28]; Chamon v R [2020] NSWCCA 112 at [35]. In Usher v R [2016] NSWCCA 276 at [73] N Adams J (with whom Hoeben CJ at CL and Button J agreed) emphasised the importance of the fact that co-offenders were sentenced by the same judge where a parity issue is raised. Her Honour said, at [73]:

“It is of significance that the same sentencing judge sentenced both the applicant and the co-offender. This Court has stated that, where possible, that practice is desirable. When the same judge hears both matters simultaneously, “…[he or she] will be in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way:” Huckstadt v R [2016] NSWCCA 22 per Button J at [90] (with whom Johnson and Fagan JJ agreed). In Tuivaga v R [2015] NSWCCA 145, Hoeben CJ at CL (with whom RA Hulme and Wilson JJ agreed) observed at [55]-[56]:

“55   It is of significance that the same judge sentenced both the applicant and Barnes. He was fully cognisant of their moral culpability and of their subjective cases. Specifically, his Honour was fully aware of the difference in their subjective cases and he reflected that difference by a reduction of 6 months in the non-parole period of imprisonment to be served by the applicant.

56   In such circumstances, where the primary judge has recognised the importance of the parity principle and has given effect to it, this Court has said that it will be cautious and not overly willing to intervene”.”

107. What was said of the sentencing judge in Tuivaga v R [2015] NSWCCA 145, as cited by N Adams J, could equally be said of the sentencing judge in the applicant’s case. His Honour was well aware of the respective cases against the three co-offenders, and of the principle of equal justice.

108. Such difference as there was in the criminality and subjective cases relating to the applicant and Sawaya was reflected in the differing sentences imposed upon each by the sentencing judge. The different case relevant to Diamond was similarly reflected in the sentence imposed upon him. As R A Hulme J said in Lloyd v R [2017] NSWCCA 303, at [96] – [97]:

“It is a basic principle of appellate review of sentencing that "there is no single correct sentence" and "judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies": Markarian v The Queen (2005) 228 CLR 357 at 371 [27]; [2005] HCA 25 (Gleeson CJ, Gummow, Hayne and Callinan JJ). That observation may be translated to a review of the degree to which a sentencing judge has differentiated the sentences imposed upon co-offenders sentenced in the one sentencing exercise.

In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done: see Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15]; [1999] HCA 29. The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion?”

109. If that question is asked in the present matter, the answer must be yes.

110. Although I would grant leave to the applicant to advance this ground, it should be dismissed.

Conclusion

111. The orders I propose are:

1. Leave to appeal against sentence on ground 1 refused;

2. Leave to appeal against sentence on ground 2 granted;

3. Appeal dismissed.

**********

Decision last updated: 17 May 2021