Shahbazi v The Queen
[2016] VSCA 270
•16 November 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0082
| SHAHROUZ SHAHBAZI | Applicant |
| V | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 November 2016 |
| DATE OF JUDGMENT: | 16 November 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 270 |
| JUDGMENT APPEALED FROM: | DPP (Cth) v Kazemi and Shahbazi [2016] VCC 431 (Judge Lawson) |
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CRIMINAL LAW – Appeal – Sentence – Parity – Applicant and co-offender pleaded guilty to two charges of importation of marketable quantity of border controlled drug (methylamphetamine) – Whether open to judge to impose different sentences on applicant and co-offender – Guilty pleas – Relevantly similar personal circumstances – Different roles – Applicant organising importation with contacts in Iran – Co-offender arranging safe house in Australia – Principle of parity not infringed – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Morrissey SC | Garde Wilson Lawyers |
| For the Respondent | Mr B Stevens | Solicitor for Public Prosecutions (Cth) |
KAYE JA:
McLEISH JA:
On 15 October 2015, the applicant and his co-offender Hadi Kazemi (‘Kazemi’) each pleaded guilty to two charges of importing a commercial quantity of a border controlled drug, methamphetamine, contrary to subsection 307.1(1) of the Criminal Code 1995 (Cth). On 14 April 2016, the applicant was sentenced to an aggregate term of 8 years and 6 months’ imprisonment, with a non-parole period of 5 years and 6 months on both charges. Kazemi was sentenced on the same charges to an aggregate term of 7 years’ imprisonment with a non-parole period of 4 years.[1] The applicant seeks leave to appeal on the ground that the disparity in sentences between himself and Kazemi was not reasonably open in all the circumstances.
[1]DPP (Cth) v Kazemi and Shahbazi [2016] VCC 431 (‘Reasons’).
Circumstances of the offending
The applicant and Kazemi were charged in relation to a joint enterprise to import a commercial quantity of methamphetamine into Australia in two successive consignments. The total net weight of pure methamphetamine imported in those consignments was 3.3 kilograms. The estimated wholesale value was between $820,000 and $902,000. The estimated street value is more than $4,000,000.
Charge 1 related to the period between 10 October 2014 and 19 December 2014. On 11 December 2014, a brown Pierre Cardin suitcase containing clothes and shoes arrived in Australia from Armenia. Under the lining of the suitcase were four hard plastic panels, underneath which was 2,138.7 grams of methamphetamine of 79.1 percent purity. The total net weight of the consignment was 1.69 kilograms pure methamphetamine.
Charge 2 related to the period between 10 October 2014 and 20 December 2014. On 20 December 2014, a black Pierre Cardin suitcase, containing clothes and shoes, arrived in Australia. As with the consignment that was the subject of charge 1, under the lining of the suitcase were four hard plastic panels, underneath which was 2,008 grams of methamphetamine with a purity of 80.3 percent. The net weight of the pure methamphetamine was 1.61 kilograms.
The role of Kazemi was to arrange an address in Australia to which the consignments could be delivered after their arrival. The role of the applicant was to liaise with Kazemi concerning that address, and to arrange the importation of the two consignments with contacts who he had in Iran, which included the applicant providing those contacts with the delivery address. During November and December 2014, the applicant and Kazemi had a number of conversations in which they discussed the organisation of the delivery address by Kazemi, the progress of the delivery of the consignment, and the arrival of the consignment.
The applicant and Kazemi were both arrested on 19 December 2014. After their arrest, they each participated in recorded interviews with investigating officers of the Australian Federal Police Melbourne office, in the presence of Farsi interpreters. Both the applicant and Kazemi exercised their right to speak with a legal practitioner, and generally made no comment in their interviews in relation to the allegations. The applicant and Kazemi each pleaded guilty at the earliest opportunity at the committal mention hearing.
Personal circumstances of applicant and co-accused
The personal circumstances of Kazemi and the applicant were relatively similar, so that the primary basis for the judge imposing a heavier sentence on the applicant than on Kazemi lay in the different roles played by the two co-offenders in the joint enterprise.
At the time of sentence, the applicant was 27 years of age. The applicant admitted a subsequent court appearance at Melbourne Magistrates’ Court on 4 March 2015, in which he was fined $750 without conviction in respect of one charge of possessing a drug of dependence. The sentencing judge accepted counsel’s explanation that on that occasion the applicant had the drug (a human growth hormone) for personal use as part of his gym regime. The sentencing judge found that that matter was of no significance in the sentencing process.
The applicant was born in Tehran, Iran. He was a member of a well-respected family there. While in Iran, he worked as a professional wrestler. He practised his religion as a Shi’a Muslim, but he was moderate in his observance of it, and some of his conduct came to the attention of the religious police in Iran. As a result, the applicant’s family assisted him to escape from Iran. The applicant flew to Indonesia, where he caught a boat to Australia. The boat was intercepted, and the applicant was detained on Christmas Island in 2013. He was then transferred to a refugee camp in Darwin for about 46 days, at which time he was issued with a bridging visa class E. After a short stay in Adelaide, he came to work in Melbourne where he obtained some work as a painter, a concreter, and in a car wash business.
As a result of his arrest on the present matters, the applicant’s visa was cancelled on 31 December 2014. He is therefore liable to be considered for removal from Australia on completion of his term of imprisonment. The applicant’s family has received two summonses requiring the applicant to present to the Revolutionary Court in Tehran to be interrogated, and to explain why he left Iran. Evidence was presented to the sentencing judge by the prosecution that the process of removal of an unlawful non-citizen from Australia is subject to a number of provisions of the Migration Act 1958 (Cth) and other policy considerations, including that a person will not be returned to a country in which he or she is likely to face death or torture. Thus, the applicant will have the opportunity to present claims for protection. The judge accepted that, as a result of the uncertainty of the applicant’s situation, a sentence of imprisonment would be more burdensome on him.
The judge also took into account that the applicant had pleaded guilty at the earliest opportunity, that his plea had real utility, and that it indicated a willingness to facilitate justice. The judge further accepted that in the circumstances of the case the plea was attended with remorse by the applicant.
The judge accepted that the applicant was isolated in the prison system. While his English skills are reasonable, he only has two friends who have visited him. Otherwise, the applicant will continue to be isolated in custody, being separated from his family. The judge noted a report from Mr Watson-Munro, a consultant forensic psychologist, who diagnosed the applicant as having major depression with features of anxiety disorder, and some aspects of post-traumatic stress disorder.
The personal circumstances of Kazemi were relevantly similar to those of the applicant. At the time of sentence, Kazemi was 26 years of age. He also was born in Tehran, Iran. Kazemi was of Farsi Kurdish extraction, and as such he and his family had been subjected to persecution by the Iranian authorities on a regular basis, and had been denied basic human rights. He had only restricted access to education and employment. As a result, Kazemi’s upbringing was quite impoverished and he had no formal education.
Kazemi fled Iran in 2010, and he came to Australia by transiting through Indonesia. He spent 14 months on Christmas Island and then was transferred to Darwin for 12 months in a detention centre. He was granted a protection visa in April 2013. Kazemi has no family in Australia, his English is poor, and the judge accepted that he was isolated linguistically and culturally within the prison system. His time in prison had been difficult.
The sentencing judge noted that Kazemi’s visa was liable to cancellation and that he faced a risk of deportation from Australia. As a result, it was accepted that Kazemi’s time in prison would be more burdensome for him. The judge also accepted that Kazemi had entered his plea at the earliest opportunity, that the plea demonstrated a willingness to facilitate the course of justice, and that it evidenced remorse on his behalf.
The judge had reference to a report from Mr Watson-Munro in relation to Kazemi, noting that he had developed features of an adjustment disorder on his arrival in Australia due to problems with culture and language. Mr Watson-Munro diagnosed that Kazemi suffered from major depression with features of post-traumatic stress disorder. He considered that those conditions predated Kazemi’s remand. They were attributed to the traumas that he had suffered in Iran and during his periods in detention at Christmas Island and in Darwin. During his time in prison, Kazemi had experienced a re-emergence of those symptoms. The judge also noted that in the absence of treatment for his mental health problems, Kazemi had drifted into using drugs in the past, and that he was using methylamphetamine heavily (up to 1.3 grams per day) in Australia. The judge accepted that by reason of Kazemi’s mental health conditions, his time in prison would be more difficult. Her Honour also accepted that his prospects for rehabilitation are good, that he had good insight into his offending, and that he was genuinely remorseful.
Reasons for sentence
It is evident from the foregoing, that the personal circumstances attaching to the applicant and his co-accused, Kazemi, were relevantly similar. It is apparent from her reasons that the sentencing judge imposed different sentences on each of them based on her assessment of the differences in the roles played by each of them in the importation of methamphetamine, involved in the two charges to which they each pleaded guilty. In reaching those conclusions, the judge had available the prosecution summary of facts that set out, in detail, the evidence relating to the involvement of each of the two men in the joint criminal enterprise.
In her reasons for sentence, the judge summarised the circumstances of the offending, and the personal circumstances of the applicant and his co-offender, which we have already outlined. In the section of her reasons entitled ‘Objective Gravity of Offending’, the judge rejected the submission by the prosecution that the applicant and Kazemi were ‘the principals’ in the importation. Her Honour accepted that there was no evidence that Kazemi knew how much drugs were being imported, but she did not accept that the role of Kazemi was confined to merely obtaining a safe address for delivery of the consignments. The judge considered that the evidence of the intercepted telephone calls and SMS messages between the applicant and Kazemi demonstrated that Kazemi was actively involved between 10 October and 18 December 2014, and that he took active steps to secure a safe address, and, once successful, he provided those details to the applicant. Kazemi also offered to attend the address to be present when the delivery took place.[2] The judge concluded as follows:[3]
I therefore conclude that Kazemi’s role can be characterised as akin to a mere courier but at the highest level of that sort of role. Kazemi’s was still an important role in the joint criminal enterprise. I accept his role as only marginally less serious than that of the co-accused Shahbazi, and that will be reflected in the sentence.
[2]Reasons [24].
[3]Ibid [28].
The judge then addressed the submission made on behalf of the applicant that his role was just as a ‘link’ to the people in Iran who were responsible for dispatching the drugs. The judge accepted that there was no evidence that the applicant was aware of the actual quantity of drugs contained in the two consignments, but her Honour did not accept that the applicant’s offending was at the lower end of the scale of seriousness for that type of offence.[4] The judge stated:
Shahbazi was an active participant in arranging the importation of the drugs contained within the two consignments of a commercial quantity of methamphetamine. I am satisfied that he was the intermediary who facilitated the operation and worked with the Iranian contacts to effect this importation of the two consignments into Australia. Shahbazi was an essential cog in the criminal enterprise but I am not satisfied on the evidence currently before me, that he is the principal.[5]
[4]Ibid [31].
[5]Ibid [32].
In the conclusion to her reasons, the judge stated:
Kazemi, your primary role was to organise a ‘safe’ address in Australia for the consignments to be delivered to, whilst Shahbazi, you had the contacts in Iran with whom you arranged the importation and provided those contacts the details of the delivery address.
It is my view, from the conduct relative to the importation, that Shahbazi is the primary contact for the operation in Australia and that you, Kazemi, played a lesser, though essential role in the importation.
I am not satisfied on the evidence that it can be demonstrated Shahbazi was the principal in the importation. As stated earlier, I consider his role to be somewhat lower in the hierarchy than the principal, but nonetheless, an important and essential role. Your respective roles will be reflected in the disposition to be imposed.[6]
[6]Ibid [91]–[93].
Submissions
Counsel for the applicant submitted that the culpability, prior history and personal circumstances of the applicant and Kazemi were so similar that the differentiation between them in their sentences was not reasonably open.
In particular, counsel submitted that there was no discernible difference in the legal or moral culpability of the two offenders. Counsel contended that the roles of the applicant and Kazemi were equal and co-extensive. In particular, it was contended, Kazemi organised the domestic aspect of the importation, taking steps to secure a safe address to which delivery could be made, providing the name of the addressee, and offering to be present when delivery occurred. On the other hand, it was submitted that the applicant was the ‘link’ to the dispatchers of the drugs in Iran, dealing with two persons who occupied that role, and making inquiries of them when the transportation of the consignments was in question. It was further submitted that the intercepted telephone calls placed before the judge support the proposition that the two men were ‘pari passu’ in the levels of their respective offending.
Counsel submitted that the similarities in the respective roles of the applicant and Kazemi were far more substantial than any differences between them. He pointed out that each of them planned the offending together, the duration of their offending was co-extensive, and that they consulted together on terms of apparent equality. He contended that the communications between them, that are set out in the prosecution opening, reflected that they related to each other as equals in the enterprise. Counsel further noted that the roles of each of the two men were necessary to achievement of the purposes of their joint enterprise. Further, each of them expected to receive the equivalent amount, namely $10,000, from their involvement in the importations. Thus it was submitted that the seriousness of the offending of the applicant and Kazemi was not materially different.
Alternatively, it was submitted that any difference in their roles was marginal, so that the difference in the head sentences, and non-parole periods, of 18 months, was manifestly out of proportion to any difference in the roles that they each performed in the enterprise. In support of that submission, counsel for the applicant placed particular emphasis on the finding by the judge that the role of Kazemi ‘was only marginally less serious’ than that of the applicant, which, her Honour stated, would be reflected in the sentence.[7] Counsel submitted that that assessment by the judge, of the comparison between the roles of the two co-offenders, was expressed in considered language. Counsel further submitted that that assessment was not reflected at all in the differences between both the head sentences, and the non-parole periods, imposed by the judge on each of them. He submitted that it could not be maintained that the differences in the sentences imposed, on the one hand, on the applicant, and on the other hand on Kazemi, were ‘marginal’.
[7]Reasons [28].
It was further contended that there was no other basis upon which the judge could have reasonably differentiated between the applicant and Kazemi. Neither of them had any prior criminal history. The applicant’s subsequent matter was irrelevant. The personal circumstances of each of them were strikingly similar.
Finally, in the written case filed on behalf of the applicant, it was contended that it is not apparent that the sentencing judge considered the issue of parity. In particular, it was submitted, there is no reference to that principle in the sentencing remarks or the plea transcript.
In the circumstances, the applicant contended that there is a manifest disparity between the total effective sentence, and the non-parole period, imposed on him, as compared with the sentence imposed on Kazemi, so as to give rise to a justifiable sense of grievance.
In response, counsel for the respondent submitted that it is clear that the sentencing judge was conscious of, and applied, the principle of parity in sentencing. In particular, the judge took care to analyse the roles of both the applicant and Kazemi, and to compare them. It was submitted that in light of the judge’s characterisation of the respective roles of the applicant and Kazemi, and the factual findings made by the judge in that regard, it was reasonably open for the judge to differentiate between the sentences imposed on the applicant and Kazemi in the manner in which she did, notwithstanding that they had substantially similar personal, cultural and geographical circumstances.
In particular, counsel for the respondent pointed out that the applicant had a more direct level of involvement than Kazemi in organising the importations. Kazemi’s role was limited to organising the safe address for delivery of the consignments. In contrast, the applicant was in direct contact with the overseas suppliers, and he was the conduit for the delivery address information that Kazemi provided to him. In that way, the applicant was an indispensable connection between the overseas organisers and the importation of the drugs into Australia, which included being the person to whom Kazemi provided the address details. Thus, the applicant’s role straddled involvement in both the international and domestic aspects of the offending. Accordingly, counsel submitted it was reasonably open for the judge to differentiate in the sentences of each of the applicant and Kazemi in the manner in which she did.
Counsel for the respondent further submitted that it is important not to take out of context the finding by the judge, relied on by counsel for the applicant, that the role of Kazemi was ‘only marginally less serious’ than that of the applicant. In particular, counsel contended, that phrase, used by the judge, must be understood in the context of the findings by the judge as to the particular roles performed by each of Kazemi and the applicant in the joint enterprise, and of the judge’s characterisation of those roles.
Principles
The content and effect of the principle of parity in sentencing have been well established since the decision of the High Court in Lowe v The Queen.[8] The principle is based on the concept that equal justice requires that, all things being equal, like offenders should be treated in the same way, subject to the qualification that relevant differences between the culpability of those offenders, and matters personal to them, be appropriately accommodated. Sentencing error, on the basis of disparity, occurs where taking into account any differences between the involvement of the offenders in the particular offence and their relevant personal circumstances, nevertheless there is such a manifest discrepancy between the sentences passed on co-offenders, as to give rise to a justifiable sense of grievance on the part of the particular appellant and the objective bystander. The imprecise nature of sentencing in each case, and the discretionary nature of sentencing, is such that it may only be concluded that sentencing error has occurred, where the appellate court considers it was not open to the sentencing judge to differentiate in the sentences of two co-offenders in the way in which he or she did.[9]
[8](1984) 154 CLR 605, 610 (Gibbs CJ), 613–14 (Mason J), 623–4 (Dawson J); see also Postiglione v The Queen (1997) 189 CLR 295, 301–2 (Dawson and Gaudron JJ), 309 (McHugh J), 323 (Gummow J), 338 (Kirby J).
[9]Anthony v The Queen [2016] VSCA 22, [12] (Redlich and Beach JJA); Hilder v R [2011] VSCA 192, [38]–[39] (Maxwell P); R v Wolfe [2008] VSCA 284, [9]; Roujnikov v The Queen [2015] VSCA 97, [25] (Weinberg and Kyrou JJA); Gianello v The Queen [2015] VSCA 205 [29]–[32] (Beach JA).
In R v Mercieca,[10] in allowing an appeal on the ground of disparity, Winneke P (with whom Charles JA agreed) described the application of the relevant principles as follows:
In the circumstances of this appeal I want to issue this injunction. There will be few cases where an appellate court can legitimately interfere with the sentence on what are loosely called ‘parity principles’. Those principles are the product of the court’s desire to achieve equal justice which, in turn, aspires to the notion that ‘like should be treated alike - but if there are relevant differences, due allowance should be made’. However, those principles recognise that sentencing is itself an imprecise art in which judges are called upon to exercise discretions in respect of principles which are conflicting in their application and will almost inevitably produce disparity between sentences imposed, even in the case of co-offenders. Thus before an appellate court can intervene on the basis of disparity, or lack of it, the authorities recognise that that disparity, or lack of it, must be ‘marked’ or ‘manifest’ and such as to produce a legitimate and justifiable sense of grievance in the objective observer.[11]
[10][2004] VSCA 170.
[11]Ibid [17] (citations omitted); see also R v King [2006] VSCA 76, [13] (Chernov JA).
Analysis and conclusion
In the present case, it is clear that, contrary to the written case of the applicant, the sentencing judge did advert to, and seek to apply, the principle of parity. In particular, in analysing the differences in the roles of the applicant and of Kazemi, the judge expressly stated that those differences would be reflected in the sentences imposed on each of them. The basic question on this application is whether it was reasonably open to the judge to impose on the applicant and Kazemi sentences that differed in the manner determined by the judge, based on the different roles played by each of them in the joint enterprise pursuant to which the two importations were effected.
It is, of course, evident that the applicant and Kazemi each performed quite different roles in the joint enterprise. In our view, it was clearly open to the judge to conclude that the role of the applicant in the enterprise was at a higher level than that of Kazemi, with the consequence that the moral culpability of the applicant was greater than that of Kazemi.
In this application, counsel for the applicant did not take issue with the characterisation by the judge of the role performed by Kazemi. While it was an important role in the enterprise, it was fundamentally confined to securing a safe address for the consignments of methamphetamine, and to providing that address, and the name of the contact, to the applicant. In addition, Kazemi did offer to attend the address at the time at which the delivery occurred.
By contrast, the applicant was actively involved in communicating with his contacts in Iran in order to make arrangements for the importation of the two consignments into Australia. The text of the messages passing between the applicant and those contacts, and the substance of the telephone conversations that the applicant had with them, reveals that the applicant’s role was more than that of being a mere ‘link’ to the persons in Iran who were responsible for dispatching the drugs. Rather, as the judge correctly found, the applicant was an active participant in making arrangements for the importation of the drugs that were contained in the two consignments.
In addition, the applicant was also involved in liaising with Kazemi in respect of the arrangements by the latter to secure a safe address to which the consignments might be delivered. The applicant was more than a passive participant in the making of those arrangements. For example, in some of the telephone conversations, and in particular in a telephone conversation on 14 November 2014, and in a second telephone conversation on 16 November 2014, the applicant told Kazemi that he was not satisfied with the address that Kazemi was seeking to arrange.
Taking those matters into account, the sentencing judge was clearly justified, and indeed correct, in finding that Kazemi played a lesser role in the importations than the applicant. It follows that the judge was correct to conclude that the moral culpability of the applicant was greater than that of Kazemi.
The fact that the applicant and Kazemi each expected to receive the same payment for their roles did not reflect the fact that their roles were the same or equivalent, or that their moral culpability could be materially equated. In particular, it is clear that the role of the applicant assumed a greater dimension in the functioning of the enterprise than that of Kazemi. As we have mentioned, the facts demonstrate that the applicant had the sole responsibility for liaising with his counterparts in Iran to organise the importation of the consignments into Australia. In the hierarchy of the enterprise, that role, of itself, was clearly of higher moment than that undertaken by Kazemi. As such, the criminality of the applicant, in discharging that role, was of a materially higher order than that of Kazemi. Further, as noted, the applicant additionally had the responsibility for liaising with Kazemi concerning the arrangements made by the latter to secure a safe address for those consignments. Taken together, those aspects of the role of the applicant were, in our view, materially more significant than the role undertaken by Kazemi in the enterprise. In that context, the fact that the enterprise appears to have been conducted in a cooperative manner between the applicant and Kazemi, without the latter being subordinate to the applicant, does not detract from the material difference in the roles performed by each of them in the enterprise.
As we have noted, senior counsel for the applicant has placed significant emphasis on the finding by the sentencing judge that the role of Kazemi was ‘only marginally less serious’ than that of the applicant.[12] Counsel submitted that the differences in the sentences imposed on each of them were substantially greater than ‘marginal’. Counsel for the respondent accepted that the differences in the sentences could not be regarded as ‘marginal’.
[12]Reasons [28].
In reviewing reasons for sentence, it is important to exercise some caution in focusing on individual words or phrases employed by the sentencing judge, without regard to the context in which they are used. In the present case, it is necessary to view the use by the sentencing judge of the phrase, relied on by the applicant, in the context of the specific descriptions by the judge of the nature and extent of the respective roles of Kazemi and the applicant in the joint criminal enterprise. In particular, while, on the one hand, the judge characterised the role of Kazemi as akin to that of a mere courier (albeit at the highest level of that role), by contrast her Honour described the applicant as an active participant in arranging the importation of the drugs contained in the two consignments, so as to have been an ‘essential cog’ in the criminal enterprise. Her Honour found that Kazemi ‘played a lesser, though essential role in the importation’.[13] On any objective view of the facts, the culpability of the applicant, in the offending, was measurably higher than that of Kazemi. The observation of the judge, relied on by counsel for the applicant, must be understood in that particular context.
[13]Reasons [92].
In determining the seriousness of an offence involving the importation or trafficking of a prohibited substance, factors such as the role of the particular offender, the position of the offender in the drug importation (or trafficking) hierarchy, and the nature and extent of the particular offender’s involvement in that enterprise, are (among other matters) relevant.[14] On the other hand, the personal circumstances of the offender are generally attributed less weight in the determination of the appropriate sentence.[15] Thus, notwithstanding that the personal circumstances of two offenders, in a joint criminal enterprise, may be relevantly similar, the differences in the roles performed by each of those offenders in the enterprise may be such as to warrant a material discrepancy in the sentences imposed on each of them.
[14]Tyler v The Queen; R v Chalmers (2007) 173 A Crim R 458, 471–3 [78]–[89] (Simpson J, with whom Spigelman CJ and Harrison J agreed).
[15]R v Nguyen (2010) 205 A Crim R 106, 127 [72] (Johnson J, with whom MacFarlan JA and RA Hulme J agreed); Tzang v DPP (Cth) (2011) 35 VR 240, 274–5 [162] (Nettle and Neave JJA, Sifris AJA).
In our view, the differences between the roles of the applicant and Kazemi were plainly such as to justify the disparity in the head sentence, and the minimum non-parole periods, imposed by the sentencing judge in respect of each co-offender. Taking into account the circumstances of the case, we do not consider that the differences in those sentences could be considered to constitute an unjustifiable discrepancy, so as to engender a justifiable sense of grievance on the part of the applicant or an objective bystander. To the contrary, in our view, it was open to the judge to impose the different sentences on each co-offender, in view of the material difference in the roles played by each of them in the offending.
For those reasons, we reject the submission on behalf of the applicant that the disparity in sentences between the applicant and the co-accused Kazemi was not reasonably open in all the circumstances. It follows that the applicant should be refused leave to appeal against sentence.
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