CRIME – appeals – appeal against sentence – importation of a commercial quantity of a border controlled drug – parity – “marked” disparity need not be “gross” or “glaring” – where the differences in roles and subjective cases warrant different sentences – whether the higher sentence imposed on the applicant gave rise to a justified sense of grievance – leave to appeal granted – appeal dismissed
Counsel: I Lloyd KC with T Bicanic (Applicant) P McEniery (Respondent)
Solicitors: Gregory Goold Solicitors (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):
2021/00296760
Publication restriction:
Nil
Decision under appeal
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
9 November 2023
Before:
Hunt DCJ
File Number(s):
2021/00296760
HEADNOTE
[This headnote is not to be read as part of the judgment]
Mr Raymond Saab (the applicant) sought leave to appeal against the sentence imposed on him by Hunt DCJ (the sentencing judge) on 9 November 2023 in the District Court of New South Wales.
The applicant was sentenced following a plea of guilty to an offence of import a commercial quantity of a border controlled drug, namely 235.848 kg of pure methamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth). Pursuant to s 16BA(1) of the Crimes Act 1914 (Cth), the Court also took into account an offence of attempt to possess a commercial quantity of a border controlled drug, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code, relating to the same importation.
The sentencing judge imposed a sentence of 9 years’ imprisonment, commencing on 19 October 2021 and expiring on 18 October 2030, with a non-parole period of 6 years, expiring on 18 October 2027.
The applicant’s two…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Saab v The King [2025] NSWCCA 58
Case
[2025] NSWCCA 58
Decision Date
CaseChat Overview and Summary
In the case of Saab v The King, the applicant appealed against the sentence imposed on him following his conviction for the importation of a commercial quantity of a border controlled drug. The case was heard in the High Court of Australia. The applicant argued that the sentence imposed by the lower court was excessive and did not comply with the principle of parity, which requires that similar offenders be treated in a similar manner unless there are valid reasons for a difference in treatment.
The legal issues before the court included whether a marked disparity in sentences needed to be gross or glaring and whether the differences in the roles of the offender and the co-offender, as well as the subjective circumstances of the case, warranted different sentences. The court also had to consider whether the higher sentence imposed on the applicant gave rise to a justified sense of grievance. The applicant argued that the sentence was manifestly excessive and disproportionate, and that the lower court had failed to properly consider the principle of parity.
The court held that a marked disparity in sentences did not need to be gross or glaring, and that the differences in the roles of the offender and the co-offender, as well as the subjective circumstances of the case, could warrant different sentences. The court found that the lower court had properly considered the principle of parity and had not erred in imposing a higher sentence on the applicant. The court also held that the applicant's sentence did not give rise to a justified sense of grievance. The application for special leave to appeal was granted, but the appeal was ultimately dismissed.