Saleh, Kassim v The Queen

[2016] NSWCCA 317

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Saleh, Kassim v R [2016] NSWCCA 317
Hearing dates:	8 June 2016
Date of orders:	21 December 2016
Decision date:	21 December 2016
Before:	Beazley P Garling J Fagan J
Decision:	1. Leave to appeal is granted. 2. The appeal is dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – knowingly take part in supply of prohibited drug not less than the commercial quantity – methylamphetamine – parity
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v JK (District Court (NSW), Whitford DCJ, 28 November 2014, unrep) R v Saleh, Haissan [2016] NSWCCA 216
Category:	Principal judgment
Parties:	Kassim Saleh (applicant) Regina (respondent)
Representation:	Counsel: Mr Hament Danji SC (applicant) Ms Virginia Lydiard (respondent)   Solicitors: Mr John Doolan (applicant) Mr Craig Hyland, Office of the Director of Public Prosecutions (respondent)
File Number(s):	2013/288130
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: Not published Date of Decision: 09 October 2015 Before: Whitford SC DCJ File Number(s): 2013/288130

Headnote

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

The applicant pleaded guilty to one charge of knowingly taking part in the supply of a large commercial quantity of methylamphetamine (2kg) contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW). On 9 October 2015 he was sentenced by Whitford SC DCJ to a term of imprisonment of 4 years 11 months including a non-parole period of 3 years 8 months.

The applicant appealed against the severity of the sentence imposed on the ground that he had a justifiable sense of grievance as a result of the sentence imposed on his co-offender JK. JK was sentenced to 3 years imprisonment including a non-parole period of 1 year 3 months for a count under the same section of the Drug Misuse and Trafficking Act in respect of the same transaction.

Per the Court

(i) Having regard to the significant differences between the objective circumstances of the offending of the applicant and of JK, their markedly different subjective cases as well as the substantial discount which was afforded to JK but for which the applicant was not eligible, it could not be said that the applicant had a legitimate sense of grievance arising from the sentence imposed on his co-offender: [25].

Postiglione v The Queen (1997) 189 CLR 295 295; [1997] HCA 26 at 301 – 302; Green v The Queen; Quinn v The Queen (2011) 244 CLR 426; [2011] HCA 49 at [28].

Judgment

1. BEAZLEY P: I agree with Fagan J.

2. GARLING J: I agree with the orders proposed by Fagan J.

3. FAGAN J: The applicant Kassim Saleh pleaded guilty in the District Court to one count of knowingly participating in the supply of a prohibited drug, methylamphetamine, in not less than the large commercial quantity, contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW). The plea was entered on 25 May 2015, the date fixed for the applicant’s trial. He now applies for leave to appeal against the severity of the sentence imposed by his Honour Judge Whitford SC on 9 October 2015.

4. The offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The applicant’s offence concerned 2 kg of methylamphetamine, twice the threshold for a large commercial quantity which at that time was 1 kg. The learned sentencing judge imposed a term of imprisonment of 4 years 11 months including a non-parole period of 3 years 8 months. The sole ground of appeal is as follows:

“The appellant has a justifiable sense of grievance as a result of the sentences imposed on co-offenders Haissan Saleh and JK.”

5. When the Notice of Application for Leave to Appeal was filed on 11 March 2016 Haissan Saleh was subject to a sentence which had been imposed by his Honour Judge Whitford SC on 16 December 2015. He was resentenced by this Court on 10 November 2016: R v Saleh, Haissan [2016] NSWCCA 216. As a result of Haissan Saleh’s sentence having been increased by this Court the complaint of lack of parity with the penalty for that offender is not pressed. The applicant maintains his complaint of disparity with the sentence imposed upon JK. That co-offender is so referred to for the purpose of giving effect to a suppression order made by Judge Whitford on 6 November 2014 in relation to his full name and identity.

6. The applicant’s offence was committed in mid to late August 2013. Because the ground of appeal concerns parity it is necessary to consider the applicant’s offending conduct in conjunction with that of JK. JK was sentenced in the District Court, also by his Honour Judge Whitford SC, on 28 November 2014 for one count laid under the same section of the Drug Misuse and Trafficking Act. JK’s offence concerned the same transaction as that in which the applicant was involved but was particularised with respect to 7.977 kg of methylamphetamine, in circumstances to be explained below. JK was sentenced to 3 years imprisonment including a non-parole period of 1 year 3 months.

Circumstances of the offence

7. In early August 2013 a police undercover operative (“UCO”) requested Kamran Zolfonoon to supply him with multiple kilograms of methylamphetamine. Zolfonoon requested Haissan Saleh to procure the drug. Haissan Saleh in turn asked the applicant, his nephew, to assist by contacting and introducing a supplier or further intermediary. The applicant introduced Haissan Saleh to JK by providing JK’s phone number. JK was a drug user and had access to a supplier, Jay Wilson.

8. Haissan Saleh made contact with JK who in turn introduced him to the supplier, Wilson, in a face-to-face meeting on 24 or 25 August 2013. Over the following two or three days Haissan Saleh arranged a meeting between Zolfonoon (as purchaser), himself, the applicant and JK (as intermediaries) and Wilson (as supplier). This meeting took place during the evening of 27 August 2013 at the applicant’s home. JK drove Wilson to the meeting but waited in his car near the applicant’s premises whilst the meeting took place.

9. During follow up phone calls on 28 August 2013 the applicant was told by JK that 2 kg of methylamphetamine were ready for immediate supply but that any more would have to wait. The Crown has at all times accepted that it cannot prove beyond reasonable doubt that the subject matter of the applicant’s activities as intermediary was any more than the 2 kg.

10. On 28 and 29 August 2013 the applicant did not hear further from JK with respect to completing the transaction from the supply side and Haissan Saleh did not hear from Zolfonoon with respect to completing it from the buyer’s side. It transpired that after their meeting at the applicant’s home on the evening of 27 August 2013, Wilson as supplier and Zolfonoon as purchaser had decided to cut out both of the Salehs as middle men and to complete the supply between themselves, in a quantity of 8 kg.

11. In accordance with this decision, on 29 August 2013 Wilson met Zolfonoon and the UCO at a warehouse in Kingsgrove. Wilson arrived by taxi. They counted out $1.8 million in cash which the UCO tendered. When Wilson was satisfied that the purchase money was ready to be handed over in the correct sum he left the warehouse, collected the 7.977 kg of drugs and returned with them. The vehicle in which Wilson returned was a Ford which had been purchased on 26 August 2013 and was registered in the name of JK. Zolfonoon received his commission of $240,000 from the cash. Zolfonoon and Wilson were arrested as Wilson was about to leave the warehouse with his net payment of $1.56 million. JK was also arrested on 29 August 2013. The applicant was not arrested until 24 September 2013.

Gravity of the offending – applicant and JK compared

12. The applicant was aged 26 years when the offence was committed. As the learned sentencing judge found, the applicant through JK sought out a supplier, who turned out to be Wilson. He participated in the meeting at his own home on 27 August 2013 between himself, Hassain Saleh, Zolfonoon and Wilson. He also participated in other meetings and was active in locating the supplier to facilitate the transaction by which Zolfonoon would acquire multiple kilograms of methylamphetamine. His Honour was satisfied beyond reasonable doubt, from the nature and extent of the applicant’s involvement, that he expected some personal benefit from the transaction. The learned judge was also prepared to accept that part of his motivation was to assist his uncle.

13. JK was 20 years old at the date of the offence. The Remarks on Sentence (R v JK (District Court (NSW), Whitford DCJ, 28 November 2014, unrep)) in respect of JK record his Honour’s findings that the offender had commenced using cocaine at the age of 18, initially sporadically. His usage had increased in the few months prior to his arrest to approximately 5 times per week, consuming 1 to 2 g of cocaine on each occasion. He was a friend of Abbas Saleh, the younger brother of the applicant. His Honour inferred that as a result of JK’s personal drug use being known he would have been assumed by the applicant to be someone who could arrange contact with a supplier of substantial quantities of drugs.

14. His Honour found that this assumption was correct in that, through his own consumption of drugs, JK had met Wilson approximately a month before his arrest and knew that Wilson had access to and was able to supply drugs in quantities. It was accepted that JK was not to be paid anything for effecting the introduction of Wilson to the Salehs. JK had no expectation or desire that he would be paid and naively believed that he was, by making the introduction, not involved in the buying and selling of drugs but simply introducing two people, each of them known to him from different contexts, whom he was aware wanted to undertake an unlawful transaction in a large quantity of methylamphetamine. The learned judge accepted the applicant’s statement to police in his record of interview, as follows:

“They wanted to meet each other. I tried to get them to meet each other so they could sort out their thing. That’s all I tried to do … I just tried to get them to meet each other so they could sort themselves out with each other.”

15. Judge Whitford accepted that after having provided the applicant with Wilson’s phone number JK did not wish to have any further involvement. Such further steps as he took, including passing on a few phone messages and driving Wilson to the meeting with Zolfonoon and the Salehs on the evening of 27 August 2013, were undertaken reluctantly. His Honour characterised JK’s involvement as “facilitating the relevant introduction”. His further involvement thereafter, in the learned judge’s assessment, added “only marginally to the objective seriousness of this offending”. His Honour found that JK had “no role in making good the actual supply” and that he was “not relevantly in any hierarchy of supply in respect of the commercial dealing in drugs. He was outside the hierarchy of the enterprises of both the seller and purchaser. He was merely a person acquainted with each …”.

16. The learned judge’s ultimate conclusion was that JK’s offending was “at or very close to the lowest end of the range of conduct which might be caught by this very serious offence”.

Subjective circumstances of the applicant

17. The applicant had been brought up in the volatile atmosphere of a family in which the parents were in significant conflict from when he was quite young. He has seven brothers and sisters. When he was aged about 10 years his uncle, Hassain Saleh, moved into the family home and thereafter shared a bedroom with the applicant for the next 13 or 14 years. Consequently their relationship has been close.

18. The applicant completed his schooling to year 12. After attaining his Higher School Certificate he completed an apprenticeship in bricklaying. Following that he worked as an employed bricklayer for approximately 4 years and then commenced his own business. As a self-employed bricklayer he has been successful. He has employed up to nine people at times. Judge Whitford appeared to accept evidence that he was diligent and hard-working in that business and that he was a respected employer. His Honour also accepted evidence of the applicant’s sister that he provided financial support to her and her 14 month old child and also to his mother and that he helped other members of the family in many ways.

19. The criminal record of the applicant showed two relatively minor offences of possession, one in 2005 and one in 2013. Consistently with this the applicant admitted his own drug use but said that it was recreational, intermittent and not problematic. The learned sentencing judge accepted that the late plea of guilty manifested some remorse and insight on the applicant’s part. His prospects of rehabilitation were assessed as reasonable.

Subjective circumstances of JK

20. JK had “an unremarkable, but comfortable and loving, upbringing” in suburban Sydney. His parents had separated when he was 13 years old and this was followed by him commencing to associate with delinquent peers. He was an average student at school. He completed Year 10. He had excelled in practical subjects such as woodwork and metalwork. Upon leaving school he obtained tickets for forklift driving, working at heights and the like. He began permanent full-time work at 17 with a member of his extended family. Later he took up employment with a large construction company in Sydney.

21. Judge Whitford took note of his commendable employment record, his evident employability and the support of members of his extended family who would ensure that he had gainful and lawful employment upon release from prison.

22. In passing sentence on JK it was accepted that he had found his experience of custody extremely confronting and that it had motivated him strongly to turn away from the consumption of drugs and the undesirable associations to which drug taking had led him. JK had no prior convictions and was in prison, on remand from his arrest on 29 August 2013, for the first time. The learned judge assessed his prospects of rehabilitation as outstanding.

23. JK had entered a plea of guilty at the first opportunity for which he was entitled to a discount on sentence of 25%. He had provided assistance to authorities and was allowed a further discount of 15% for this, to a total of 40%. For purposes of comparison with the sentence imposed upon the applicant, who received a discount of 10% for his late plea only, this Court must take into account that JK’s sentence on the equivalent basis would have been 4 years 6 months comprising a non-parole period of 1 year 10½ months and a balance of term of 2 years 7½ months.

Comparison of the cases on sentence against the applicant and JK

24. Objectively the applicant’s offending was far more serious than that of JK. The applicant was not a mere introducer and he did not play his part reluctantly or passively as did JK. A significant illustration of the differences between the roles of the two offenders is their conduct in respect of the meeting at the applicant’s home on 27 August 2013. JK merely drove Wilson to the meeting and waited in the car. On the other hand, the applicant had convened the meeting, held it on his own property and attended throughout. In further differentiation of the cases against these two men respectively, the applicant’s subjective circumstances were far less powerful in his favour than those of JK.

25. In Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 Dawson and Gaudron JJ said at 301 – 302:

“The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.

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 question and their different degrees of criminality. The different circumstances involved in this case, namely, the fact that Savvas was the principal organiser in both conspiracies and that Postiglione rendered significant assistance to police and prosecuting authorities, clearly require that Postiglione receive a markedly lesser sentence than that imposed on Savvas.” [Footnotes omitted.]

26. In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, French CJ, Crennan and Kiefel JJ said at [28]:

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

27. The significant differences between the objective circumstances of the offending of the applicant and of JK, their markedly different subjective cases plus the substantially greater discount allowed to JK for his early plea and assistance (as opposed to a late plea and no assistance in the case of the applicant) fully explain the more severe penalty imposed upon the applicant. He could have no legitimate sense of grievance arising from comparison of the outcomes.

Orders

28. I would propose that the orders of the Court should be:

1. Leave to appeal is granted.

2. The appeal is dismissed.

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Decision last updated: 21 December 2016