Saraya v R

[2015] NSWCCA 63

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Saraya v Regina [2015] NSWCCA 63
Hearing dates:	7 October 2014
Decision date:	16 April 2015
Before:	Meagher JA; Fullerton J; Schmidt J
Decision:	Grant leave to appeal against sentence. Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentence – parity principle – whether manifestly inadequate sentences of co-offenders enliven appellate discretion to reduce appellant’s sentence – whether in exercise of that discretion Court should reduce sentence to a level which does not reflect the criminality involved
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A Criminal Appeal Act 1912 (NSW), s 6(3) Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 33
Cases Cited:	Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Jimmy v The Queen [2010] NSWCCA 60; 77 NSWLR 540 Jones v the Queen (1993) 67 ALJR 376 Josefski v R [2010] NSWCCA 41; 217 A Crim R 183 Lowe v The Queen [1984] HCA 46; 154 CLR 606 Nguyen v R [2007] NSWCCA 15 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Bellorini and R v Ruiz [2000] NSWCCA 50 R v Diamond (Court of Criminal Appeal (NSW), 18 February 1993, unrep) R v Doan [2000] NSWCCA 317; 50 NSWLR 115 R v Ismunandar and Siregar [2002] NSWCCA 477; 136 A Crim R 206 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Rexhaj (Court of Criminal Appeal (NSW), 29 February 1996, unrep) R v Chen & Others [2002] NSWCCA 174; 130 A Crim R 300 Youkhana v R [2011] NSWCCA 37
Category:	Principal judgment
Parties:	Youssaf Saraya (Applicant) Regina (Crown)
Representation:	Counsel: I. Lloyd QC (Applicant) P. Ingram SC (Crown) Solicitors: Allied Lawyers (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2011/287336
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 10 May 2013 Before: Charteris DCJ File Number(s): 2011/287336

Judgment

1. THE COURT: On 10 May 2013, the applicant, Youssaf Saraya, was sentenced in relation to six counts of supplying differing indictable quantities of cocaine between 21 February 2011 and 6 June 2011 contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (the Drug Misuse Act). An indictable quantity is specified as 5 grams. The total quantity supplied was 308 grams. The maximum penalty for each offence was 15 years imprisonment or a fine of 2,000 penalty units, or both. There was no standard non-parole period prescribed.

2. At the time those offences were committed the applicant was on parole. The applicant’s parole was revoked on his arrest on 6 September 2011, with a balance of parole of 2 years to serve from that date. The sentencing judge, Charteris DCJ, having indicated sentences in relation to each count, imposed an aggregate sentence of 5 years and 3 months imprisonment with a non-parole period of 3 years and 6 months. The sentence was ordered to commence on 1 September 2012. The aggregate sentence was backdated only partially to account for his pre-sentence custody given the revocation of his parole.

Ground of Appeal

3. The applicant seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the severity of that aggregate sentence. There is only one ground of appeal:

That the difference between the total sentence imposed on the applicant, and sentences imposed on his co-offenders, Jamel Arja, Gehad Arja and Toufic Arja, are such as to give rise to a justifiable sense of grievance on the applicant’s part and give rise to the appearance that justice has not been done.

The co-offenders’ sentences

4. The applicant’s three co-offenders (who will be referred to by their given names) were sentenced after the applicant and in respect of more serious offences. Attached to these reasons as Schedule A is a table, prepared on behalf of the applicant with minor amendments made orally, which contains a summary of the charges, sentences and differences in the subjective circumstances of the applicant and his co-offenders.

5. Jamel was the co-offender whose objective criminality was closest to, but plainly more serious than, that of the applicant. He pleaded guilty to one count of knowingly taking part in the supply of a commercial quantity (900 grams) of cocaine contrary to s 25(2) of the Drug Misuse Act. A commercial quantity of cocaine is specified at not less than 250 grams. That offending occurred between November 2010 and September 2011 and involved his knowing participation in excess of twelve separate occasions of supply. Against a maximum penalty of 20 years and a standard non-parole period of 10 years, he was sentenced to imprisonment for a period of 4 years and 6 months with a non-parole period of 2 years and 3 months.

6. Gehad and Toufic each pleaded guilty to supplying a large commercial quantity of cocaine at a total weight of 5.89 kilograms. The maximum sentence for that offending is life imprisonment, to which a standard non-parole period of 15 years attaches. The two Form 1 offences taken into account in the sentencing of Toufic were dealing with proceeds of crime totalling $198,550 and the provision of false documents in support of a mortgage application to dishonestly obtain a home loan of $413,000. Toufic was sentenced to 6 years with a non-parole period of 3 years, and Gehad was sentenced to 7 years 2 months and 12 days with a non-parole period of 3 years 7 months and 6 days.

7. Each of the applicant’s co-offenders was sentenced by Jeffreys DCJ. Jamel was sentenced on 20 June 2013 and Gehad and Toufic on 28 February 2014.

The parity principle

8. The ground of appeal invokes the “parity” principle which is founded on the notion of equal justice. In broad terms that notion requires that “like offenders should be treated in a like manner”: per French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [28].

9. The jurisdiction of this Court under s 6(3) of the Criminal Appeal Act to quash a sentence “if it is of opinion that some other sentence, whether more or less severe is warranted in law” permits the Court, in its discretion, to reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender or co-offenders. As Gibbs CJ explained in Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610, the reason why the Court interferes is that “it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done”. See also per Mason J at 613.

10. Whether there is an unjustifiable disparity directs attention to the differences in the sentences and whether, in the mind of an objective observer, the disparity would give the appearance that equal justice has not been done. That comparison must take account of differences between the antecedents, personal circumstances of the co-offenders and any mitigating factors and the part played by each in the relevant criminal conduct, as well as the fact that those differences form the basis of qualitative and discretionary judgments made as part of the sentencing process: Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 323, 338; Green at [31], [32].

11. Whilst disparity between sentences may be an indicator of appealable error, it is the presence of unjustifiable disparity that is the ground for intervention: Lowe at 610, 613, 617, 623; Postiglione at 322; Green at [32]. Consistently with that being the position and as was the case in Lowe, the disparity may arise in respect of, and the principle apply to, the sentence imposed on the first of a number of co-offenders to be sentenced, as is the case on this application: Jones v The Queen (1993) 67 ALJR 376; R v Bellorini and R v Ruiz [2000] NSWCCA 50.

12. In Green, the majority considered, in accordance with the view expressed by Mason J in Lowe at 613 - 614, that in the exercise of the appellate discretion enlivened by unjustifiable disparity, a “sentence which would otherwise be appropriate can be reduced … to a level which, had there been no disparity, would be regarded as erroneously lenient”: [33]. At the same time it was recognised that the existence of a discretion to mitigate disparity by reducing a sentence to one which is otherwise inadequate does not amount to an obligation to do so; and would not require the reduction of a sentence to a level which could be characterised as “an affront to the proper administration of justice”: [33].

13. These observations of the majority do not squarely address whether a sentence imposed on a co-offender that is manifestly inadequate can give rise to unjustifiable disparity.

14. As is noted by Bell J in Green at [106], there is authority in this Court that the inadequacy of the sentence imposed on a co-offender may be of such a degree that any sense of grievance engendered in the offender sentenced more severely cannot be regarded as legitimate. That was also the view of Brennan J in Lowe at 617 - 618. In R v Diamond (Court of Criminal Appeal (NSW), 18 February 1993, unrep) Hunt CJ at CL said at 5 (James J agreeing):

The sentence imposed … was, as I have said, appropriate and not excessive. That imposed by the Magistrate was, as I have also said, irresponsible. The disparity between them may give rise to a sense of grievance on the part of the applicant, but it was not a justifiable one.

See also per Howie J (McClellan CJ at CL and Simpson J agreeing) in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [69] and per Howie J (James and Davies JJ agreeing) in Josefskiv R [2010] NSWCCA 41; 217 A Crim R 183 at [65].

15. The decision in Diamond is also cited in support of the proposition that the discretion to mitigate disparity should not be exercised to reduce an otherwise adequate sentence to a level which would be an affront to the proper administration of justice: see Green at [33] fn 96; R v Doan [2000] NSWCCA 317; 50 NSWLR 115 at [19]; R v Chen & Others [2002] NSWCCA 174; 130 A Crim R 300 at [289]; R v Ismunandar and Siregar [2002] NSWCCA 477; 136 A Crim R 206 at [23] – [26].

16. The relevant principle is stated by R A Hulme J (Beazley JA and Hidden J agreeing) in Youkhana v R [2011] NSWCCA 37 at [49]:

… the Court has a discretion and is not bound to intervene if a sentence offends the parity principle. A reason for not intervening is if the sentence imposed upon the co-offender is manifestly inadequate and intervention would "produce a sentence disproportionate to the objective and subjective criminality involved".

17. In such a case the necessity to uphold public confidence in the administration of justice continues to prevail for the reasons given by Gleeson CJ in R v Rexhaj (Court of Criminal Appeal (NSW), 29 February 1996, unrep), in the following passage which is extracted in R v Ismunandar at [38]:

The principle which underlies … [intervention for disparity] … is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice … . There are, however, other things which may also lead to an erosion of public confidence in the administration of justice, and they include the multiplication of manifest errors. That is why numerous judges have stressed the unattractiveness of responding to one wrong decision by making another wrong decision.

The circumstances of offending and sentences imposed on the co-offenders

18. In considering whether the disparity between the applicant’s sentence and those of his co-offenders gives rise to an unjustifiable sense of grievance warranting the intervention of this Court, it is necessary to review the approach taken by Jeffreys DCJ when he sentenced Jamel on 20 June 2013 and Gehad and Toufic on 28 February 2014, since it is the sentences imposed in those two separate sentencing hearings that is productive of the disparity of which the applicant complains.

19. The applicant was sentenced by Charteris DCJ on 10 May 2013. There is no explanation for why Jamel was not also sentenced by Charteris DCJ some weeks later. This Court has observed, on more than one occasion, the sound procedural sense in co-offenders being sentenced by the same sentencing judge with a view to avoiding the disparity with which this application for leave to appeal is concerned.

20. The appeal papers contained the set of agreed facts tendered by the Crown in the applicant’s sentencing proceeding. The agreed facts referred to by Jeffreys DCJ in the sentencing remarks of Gehad and Toufic, and Jamel, were not included in the materials. It is clear, however, that they were all sentenced as a result of an investigation by the Middle Eastern Organised Crime Squad in August 2010 of what was described as a “large-scale Cocaine distribution syndicate” operating in South Western Sydney. Investigators, utilising a number of electronic evidence gathering techniques and anti-surveillance techniques, identified both the syndicate and its membership in the course of the investigation. Gehad and Toufic were identified as the principals of the syndicate.

21. The applicant was sentenced on the basis that he had acquired cocaine from Gehad and Toufic, which he then on-supplied. The agreed facts tendered on the applicant’s sentence nominated each of Gehad and Toufic, or at least one of them, as people with whom he was criminally engaged in committing each of the six counts of supply. He was assigned a code name in his dealings with them, which allowed police, in lawfully intercepted telephone calls, to gather evidence of the method employed by him to obtain cocaine from the principals and of his various dealings with them.

22. In Jamel’s sentence proceedings, the activities relied on as constituting the offence of his knowingly taking part in the supply of 900 grams of cocaine related to his various activities in both actively supplying and assisting others to supply drugs on behalf of the principals of the syndicate of which he was a member, answering to Gehad in particular as the more senior. Jamel’s physical activities included assisting with packaging and weighing the cocaine to be supplied. Jeffreys DCJ also noted that Jamel and others utilised a code in their communications by telephone, including words which designated the addition of cutting agents to increase the weight of the cocaine supplied and coded words to designate differing weights to be supplied.

23. Gehad and Toufic were sentenced as principals of the syndicate. Jeffreys DCJ noted that one of the examples extracted in the agreed facts as an example of “common methods of supply” (by the syndicate) included one of the occasions upon which the applicant was supplied cocaine (for on-supply) and for which he was sentenced.

24. The dealings between the applicant and his co-offenders, other than Jamel, are illustrated in the following extract from the facts agreed for the applicant’s sentencing. The extract relates to the fourth offence (supply 85.2 grams or 3 ounces) committed on 19 March 2011:

Between 15:34 and 19:14 on Saturday 19th March 2011 the accused engaged in a short message conversation with Gehad ARJA requesting him to collect money and to bring one (1) stick. Gehad ARJA then contacted Toufic ARJA and as a result instructed the accused to wait. The accused asked if ‘they are the same as the last one‘ and Gehad ARJA replied; yes. Subsequently the accused increased his order to three (3) sticks stating that he has all the money now. Toufic ARJA attended at the accused’s home address at 19:14.

25. When sentencing Jamel, Jeffreys DCJ made express reference to the fact that the applicant had been sentenced by Charteris DCJ on 10 May 2013 and his obligation to consider questions of parity or proportionality for that reason. His Honour noted that the applicant was a “customer” of both Gehad and Toufic as principals (neither of whom had been sentenced at that date) and that in the applicant’s sentence proceedings, the sentencing judge was satisfied that the applicant was “able to engage the Arja brothers and run a business of purchasing drugs from them, and on-selling to others at a profit”. Jeffreys DCJ also noted that the applicant’s offending was aggravated by the fact that the first supply was committed within 22 days of his being released to parole. He also noted that he had an extensive criminal record, although not involving drug offences.

26. In his sentencing remarks, Jeffreys DCJ also noted the Crown’s submission that the application of the principle of parity in an unbroken line of authority in this Court and in the High Court encompasses the activities involved in a criminal syndicate and that the agreed facts tendered in Jamel’s sentence proceedings and in the applicant’s sentence proceeding, revealed that level of complicity. His Honour then quoted the following from the Crown’s written submissions in Jamel’s sentence proceedings:

The agreed facts in relation to Yousef Sereya [sic] refer to a large scale cocaine distribution syndicate operating in South-Western Sydney by Jihad Arja [sic] and Toufeg Arja [sic]. Those facts refer to mobile phones being issued to ‘syndicate members’. There can be no suggestion of ambiguity in those facts, very clearly Yousef Sereya [sic] is a member of the syndicate. Jihad Arja [sic] and Tufeg Arja [sic] are described as principals of the syndicate. This offender is being sentenced for assisting Jihad Arja [sic] and Toufeg Arja [sic] in the drug supply activities being conducted by the syndicate of which they were principals, and of which Sereya was a member.

27. It was the Crown’s ultimate submission in Jamel’s sentencing proceedings that the objective criminality of his offending was “significantly more serious” than that of the applicant and that even if his subjective circumstances were more favourable, a substantially longer sentence of imprisonment was warranted.

28. Jeffreys DCJ rejected the Crown’s submission. He concluded that the sentences imposed on the applicant were of “limited assistance” given that in his view, the applicant was not engaged in “the same criminal enterprise or common criminal enterprise”.

29. When sentencing Toufic and Gehad the following year in February 2014, and after restating his obligation to take account questions of parity and proportionality, Jeffreys DCJ again made findings, effectively disengaging parity considerations, at least insofar as the applicant’s sentence was concerned. He did find, however, that Jamel was “right at the bottom” of the criminal syndicate for parity purposes.

Decision

30. The applicant submits that there is an unjustifiable disparity between his sentence and that of Jamel (as well as those of Gehad and Toufic), and that the disparity enlivens this Court’s jurisdiction to re-exercise the sentencing discretion and to impose a lower sentence in order to mitigate it.

31. The Crown accepts that the parity principle applies as between the applicant and his co-offenders, and in particular Jamel, notwithstanding that each was charged with a more serious offence. In such a case, as the Crown points out, account must still be taken of any difficulties which arise in comparing sentences for different crimes: per Campbell JA in Jimmy v The Queen [2010] NSWCCA 60; 77 NSWLR 540 at [203]. See also Green at [30]. It may be said at the outset that those difficulties do not really arise in relation to Jamel’s sentence which is less than that of the applicant, notwithstanding that his criminality was clearly greater and the offence charged more serious.

32. The applicant’s case rests on the differences between his sentence and the sentences imposed on those who were senior to him in the drug supply hierarchy. Although it was submitted that Jeffreys DCJ wrongly took the view that the applicant was not involved in the same criminal enterprise as Gehad, Toufic and Jamel, no issue was taken with his Honour’s characterisation of the applicant’s role as that of a customer, on-selling much smaller quantities of drugs that he had purchased on credit. In the result, the applicant argued that relative to each of the three co-offenders, his sentence did not reflect his less significant role in the supply hierarchy as a customer of wholesale quantities for on-supply: see R v Olbrich [1999] HCA 54; 199 CLR 270 at [14], [19] – [20]. He also argued that what his counsel described as the evidence of his heavy drug use ought to have led to the conclusion that his offending was not in the same category as someone who was not using drugs but participating purely for greed: see Nguyen v R [2007] NSWCCA 15 at [46]. One difficulty, as we emphasise later, with that argument is that the sentencing judge did not accept that the respondent’s motivation was need.

30. The applicant accepted that, despite there being no Crown appeal as to the inadequacy of the sentences imposed on his co-offenders, they were on any view “unjustifiably low” and “extremely lenient”. Nevertheless, he argued that his sentence was so severe, when compared to those of the others that he had a justifiable sense of grievance, and that the extent of that disparity was not explained by his criminal record or because his offences had been committed whilst he was on parole. That grievance was said to be such that it appears that justice has not been done.

31. The applicant submitted that he could be re-sentenced to a non-parole period as low as 2 years and 6 months which would still fall within the available range and go some way to mitigating the disparity between his sentence and those imposed on the co-offenders, and in particular Jamel.

32. On the assumption that the sentences imposed on Jamel, Gehad and Toufic were considered by this Court to be “unjustifiably low”, the Crown made two submissions. First it was said that taking account of their leniency and of the other differences between the applicant and Jamel (including the applicant’s criminal history and the fact that his offences were committed in breach of parole), there is no objective basis for the applicant to have a justifiable sense of grievance notwithstanding the significant differences between the sentences.

33. Secondly, accepting that there is an unjustifiable disparity between the relevant sentences which could be mitigated by a reduction of the applicant’s sentence, the Crown submitted that the applicant’s sentence is at the bottom of the range of appropriate sentences for the criminality involved and, for that reason, this Court, in the exercise of its discretion, would not reduce the sentence any further to mitigate the manifestly inadequate sentences imposed on the co-offenders.

34. The oral argument focussed upon the question raised by the Crown’s second argument which was formulated in the course of the hearing as being “whether a reduction [of the applicant’s sentence] to address objective disparity would result in a sentence below the lowest possible sentence for the objective criminality and [the applicant’s] personal circumstances”. In other words, would this Court’s intervention to reduce the applicant’s sentence in the face of other sentences which are accepted to be inadequate necessarily “produce a sentence disproportionate to the objective and subjective criminality involved”: per R A Hulme J in Youkhana v R at [49].

35. In our view this question must be answered in the affirmative. That being so, this Court should decline to exercise any discretion arising from the application of the parity principle. Our reasons for doing so are as follows.

36. The applicant’s complaint of disparity accepts that the sentence imposed on him was otherwise appropriate. Whilst it is plain that there is a disparity between the sentences imposed on each of his co-offenders, that disparity is due principally to the fact that Jeffreys DCJ did not, when sentencing the co-offenders, approach parity considerations in a principled way, but instead determined to forge what we consider to be an entirely artificial distinction between the objective criminality in the offending of the syndicate suppliers of the cocaine and the applicant as a wholesale purchaser of the cocaine for on-supply from the syndicate. That disparity does not of itself justify this Court intervening if to do so would result in the imposition of an erroneously lenient sentence on the applicant.

37. Each of the offences to which the applicant pleaded guilty carried a maximum penalty of 15 years imprisonment or a fine of 2,000 penalty units, or both. The first was committed within three weeks of his being released on parole for an armed robbery offence for which he had been sentenced to 5 and a half years with a 3 year non-parole period that expired on 30 January 2011. In relation to that sentence, two other robbery offences were taken into account on a Form 1 and in April 2005, the applicant received an earlier custodial sentence for a firearm offence that included a non-parole period of 1 year and 1 month.

38. The more significant findings made by the sentencing judge in relation to the applicant’s subjective characteristics included that he had no significant health issues, including any mental health issues, which might have made him more vulnerable to committing the offences. In that respect the judge did not accept the applicant as a sufficiently reliable historian to justify the opinion of a psychologist, Dr Neilsson, that he had a substance abuse disorder and substance induced anxiety. As explained previously, the sentencing judge did not accept that the applicant was so chronically addicted to drugs at the time he committed the offences that it should be concluded his motivation was “need and not greed”. Finally, the judge made no finding that the applicant was remorseful or contrite and was not satisfied that he had good prospects of rehabilitation. In particular, he commented that if “the past were to be a predictor of the future one could not have any confidence [as to whether he would change his ways]”. In the end the sentencing judge considered that the only mitigating factor to be taken into account was the applicant’s plea of guilty.

39. The judge concluded that the applicant’s offending was in the lower end of the broad middle range of the offences with which s 25(1) is concerned. In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), he indicated the sentences that would have been imposed for each offence, had separate sentences been imposed instead of an aggregate sentence. Those sentences were 3 years imprisonment with a non-parole period of 2 years for the largest supply (85.2 grams), 2 years and 6 months with a non-parole period of 20 months for the 3 offences for the supply of 56.8 grams and 2 years with a non-parole period of 16 months for the remaining 2 offences for the supply of 28.4 grams.

40. The sentencing judge then addressed the totality of the criminality involved in the six offences and, despite some measure of accumulation, he also allowed a considerable degree of concurrency in the aggregate sentence of 5 years and 3 months with a non-parole period of 3 years and 6 months. That effective sentence commenced on 1 September 2012 which was 11 months into the more than 2 year balance of parole that the applicant was required to serve for the earlier robbery offences.

41. Having regard to the applicant’s prior criminal record, which deprived him of any leniency, compounded by the fact that the offences were committed less than a month after he was released on parole and to the other considerations that the sentencing judge took into account, it is our view that a lower aggregate sentence would not sufficiently take account of the objective seriousness of the applicant’s offending. For that reason, such disparity as arises from the sentences imposed on his co-offenders does not justify the exercise the discretion to reduce the applicant’s sentence.

Conclusion

45. The orders of the Court are:

1.   Grant leave to appeal against sentence.

2.   Appeal dismissed.

**********

Schedule A

CO-OFFENDER	YOUSSEF SARAYA	Jamel ARJA	Toufic ARJA	Gehad ARJA
CHARGE	6 x Supply prohibited drug contrary to DMTA, s 25	1 x supply commercial quantity of cocaine	1 x supply large commercial quantity cocaine	1 x supply large commercial quantity cocaine
MAXIMUM PENALTY	On each 15 years imprisonment	20 years imprisonment	Life imprisonment	Life imprisonment
SNPP	N/A	10 years imprisonment	15 years imprisonment	15 years imprisonment
QUANTITY SUPPLIED	Total of 308 g (approximately 11 ounces)	Total of 900 g (approximately 31 ounces)	Total of 5.89 kg of cocaine (approximately 208 ounces)	Total of 5.89 kg of cocaine (approximately 208 ounces)
FORM 1 MATTERS	NIL	NIL	1. Deal with proceeds of crime (Max 15 years imprisonment). 2. Obtain benefit by deception (max 10 years imprisonment)	NIL
Sentencing Judge and date	Judge Charteris – 10 May 2013	Judge Jeffreys - 20 June 2013	Judge Jeffreys - 28 February 2014	Judge Jeffreys - 28 February 2014
SENTENCE	Aggregate sentence of 5 years and 3 months with NPP of 3 years 6 months	4 years and 6 months with NPP of 2 years and 3 months	6 years with NPP of 3 years.	7 years 2 months and 12 days with NPP of 3 years, 7 months and 6 days.
CO-OFFENDER	YOUSSEF SARAYA	Jamel ARJA	Toufic ARJA	Gehad ARJA
To run from	1 September 2012, ie 1 year into the more than 2 year balance of parole, in custody since 6 September 2011 – so 251 days of pre-sentence custody allowed	6 September 2011, date of arrest	6 September 2011, date of arrest	6 September 2011, date of arrest
Eligible for release	28 February 2016	5 December 2013	15 September 2014	11 April 2015
Discount	25%	25%	25%	25% + 15%
Notional starting point	7 years	6 years	8 years	9 years, 4 months
Special circumstances	Yes, because accumulating sentences, and commencement during revoked parole period	Yes, significant long-standing depression, first time in custody	Yes, first time in custody, mental health and drug issues
Ratio	67%	50%	50%	51%
Age at time of offence	26	36	30	35
CO-OFFENDER	YOUSSEF SARAYA	Jamel ARJA	Toufic ARJA	Gehad ARJA
Role	Conceded by prosecution that on a level below the Arja brothers	The offender played an active role in assisting Gehad and Toufic ARJA, had knowledge and expertise in relation to the supply business, was a helper, preparing and packaging cocaine, dealing with customers when required, and handling and storing cash, not the principal, but acted under direction of the Arjas	Beneath Gehad in the hierarchy	Principal
Previous record	Large number of juvenile matters, causing danger with a firearm, Robbery armed with dangerous weapon	Offensive language, failure to quit, malicious wounding, malicious damage, assault police, possess prohibited drug, possess ammunition, possess explosives - "substantially disregarded, but taken into account"	Only driving matter -disregarded by judge	Assault, malicious damage, stealing, etc - but ignored because of antiquity and dealt with as first offender
Conditional liberty	Recently released on parole for robbery armed with dangerous weapon, a "significant matter of aggravation”	N/A	N/A	N/A
Upbringing	Sexually abused at 10 years old, guardian role to siblings after mother left
CO-OFFENDER	YOUSSEF SARAYA	Jamel ARJA	Toufic ARJA	Gehad ARJA
General Health	On sickness benefits, heart problems, 2 strokes, high cholesterol and diabetes
Mental Health	Little by way of support for the histories given to the psych experts in the evidence, substance abuse disorder, and substance induced anxiety with psychotic symptoms. Other "possible diagnoses" of bipolar and seizure disorder rejected as the offender is not a "reliable historian".	Constant fear of early death, significant depression, and anxiety, low self esteem, and substance abuse disorder	Depressed from sexual abuse and family issues, so used drugs, schizophrenia, and 2 suicide attempts, not on schizophrenia meds at the time of the offending severe mental health issues, not a danger to society, but reduces moral culpability, and less weight to general deterrence	Depressed because of business failure, termination of partner’s pregnancy
Drug Use	I accept that he was using drugs, l do not accept that his use of drugs was as bad as he would paint in his most recent history to Dr Neilsson, I do not accept that he was a chronic drug addict compelled to engage in the offending behaviour, has overstated his use of drugs	Used drugs between age 20 & 32, but not at time of offence	Drug use since 14, connection with the offending	Drug use since 17 and heavy gambling, need to pay for gambling and drugs
CO-OFFENDER	YOUSSEF SARAYA	Jamel ARJA	Toufic ARJA	Gehad ARJA
Contrition	Remorseful and contrite, deeply regretful	Demonstrated in PG and in PSR	Demonstrated in PG and in additional affidavit to court
Prospects of rehabilitation	Not satisfied that he has good prospects of rehabilitation, but has the potential make a worthwhile life, and is young, has support, and has good qualities too	No formal finding apparent	Sweeper in jail, and completed Get Smart
Parity	Didn't arise because sentenced first, but I accept Mr Lloyd's submission that the Arja brothers are clearly above him in the cocaine supply hierarchy	Crown submitted that parity meant that Jamel had to get more but HH rejected comparison with Saraya's sentence, as of limited assistance, as they were not engaged in the same common criminal enterprise

Decision last updated: 16 April 2015