Vujinovic v R

[2024] NSWCCA 10

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Vujinovic v R [2024] NSWCCA 10

Hearing dates:

27 November 2023

Date of orders:

27 November 2023

Decision date:

19 February 2024

Before:

Davies J at [1]
Button J at [2]
Weinstein J at [3]

Decision:

(1) Leave to appeal granted.

(2) Appeal allowed.

(3) Quash the sentence imposed in the District Court on 28 October 2022.

(4) In lieu, sentence the applicant to a term of imprisonment of 4 years 10 months, with a non-parole period of 3 years commencing 14 December 2020.

(5) The applicant is first eligible for parole on 13 December 2023. His head sentence will expire on 13 October 2025.

Catchwords:

CRIME – appeals – appeal against sentence – parity – disparity between sentences of co-offenders after sentencing judge found applicant’s sentence should be slightly longer than co-offender’s – whether sentencing discretion miscarried – appeal allowed – applicant resentenced

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 5

Criminal Code 1995 (Cth), ss 302.2, 311.2, 400.9

Cases Cited:

DS v R [2014] NSWCCA 267

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Hassoun v R [2023] NSWCCA 5

Jaafar v R [2022] NSWCCA 254

Lloyd v R [2017] NSWCCA 303

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Category:

Principal judgment

Parties:

Mladen Vujinovic (Applicant)
Rex (Respondent)

Representation:

Counsel:
S Howell (Applicant)
R Ranken (Respondent)

Solicitors:
Mitchell & Co Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2020/354200

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

28 October 2022

Before:

Coleman SC DCJ

File Number(s):

2020/354200

HEADNOTE

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

The applicant pleaded guilty to one count of trafficking a commercial quantity of cocaine contrary to ss 302.2(1) and 311.2 of the Criminal Code 1995 (Cth) (the Code). One count of dealing with money contrary to s 400.9(1A) of the Code was placed on a s 16BA schedule.

The applicant was knowingly involved in a joint criminal enterprise involving the importation of cocaine in packages addressed to multi-tenanted or commercial or residential addresses. The applicant’s two co-offenders were delivery drivers for logistics companies. They falsely scanned consignments as “delivered” during their delivery runs, retained possession of the consignments and later delivered them to the applicant.

On 28 October 2022, the applicant was sentenced in the District Court by Coleman SC DCJ to a sentence of 6 years imprisonment with a non-parole period of 3 years and 8 months. One co-offender was sentenced by Coleman SC DCJ at the same time as the applicant to a term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 9 months. The other was sentenced later by J Smith SC DCJ to a term of imprisonment of 4 years and 7 months with a non-parole period of 2 years and 6 months. Upon sentencing the applicant, Coleman SC DCJ remarked that the applicant would receive a slightly longer sentence than his co-offender because the differences in their roles and culpability were not such that the difference in their sentences would be significant.

The applicant appealed against his sentence on the single ground that there was a marked disparity between the sentence imposed on him and the sentences imposed on his co-offenders such as to give rise to a justifiable sense of grievance.

The Court (Davies, Button and Weinstein JJ) held, allowing the appeal and resentencing the applicant:

1. The differences between the subjective cases and individual roles of the applicant and his two co-offenders were not significant enough to produce a great difference in their sentences. The degree of disparity between the sentences imposed by the primary judge was unreasonable or irrational and indicates that the sentencing discretion miscarried: [57] per Weinstein J (Davies J agreeing at [1]; Button J agreeing at [2]).

2. On resentence, adopting the sentencing judge’s findings on parity, the applicant should receive a slightly longer sentence than his co-offenders. Taking into account the matter on the s 16BA schedule and after applying a 25% discount, the applicant is sentenced to 4 years and 10 months imprisonment with a non-parole period of 3 years: [60] and [61] per Weinstein J (Davies J agreeing at [1]; Button J agreeing at [2]).

JUDGMENT

1. DAVIES J: My reasons for joining in the orders made on 27 November 2023 are those set out in the reasons of Weinstein J. I agree with his Honour’s judgment.

2. BUTTON J: The reasons of Weinstein J accord with my own for agreeing in the orders made on 27 November 2023.

3. WEINSTEIN J: On 27 November 2023, the Court made the following orders:-

1. Leave to appeal granted.

2. Appeal allowed.

3. Quash the sentence imposed in the District Court on 28 October 2022.

4. In lieu, sentence the applicant to a term of imprisonment of 4 years 10 months, with a non-parole period of 3 years commencing 14 December 2020.

5. The applicant is first eligible for parole on 13 December 2023. His head sentence will expire on 13 October 2025.

4. What follows are my reasons for joining in those orders.

5. Pursuant to s 5 of the Criminal Appeal Act 1912 (NSW), the applicant, Mladen Vujinovic seeks leave to appeal against the sentence imposed on him by his Honour Judge Coleman SC on 28 October 2022 for one count of trafficking a commercial quantity of a controlled substance, the substance being a controlled drug, namely 2.2613 kilograms of cocaine, contrary to ss 302.2(1) and 311.2 of the Criminal Code 1995 (Cth) (the Code). One count of dealing with money, being less than $100,000, it being reasonable to suspect that such money was the proceeds of crime, contrary to s 400.9(1A) of the Code, was placed on a s 16BA schedule and was taken into account by his Honour.

6. Trafficking a commercial quantity of a controlled substance attracts a maximum penalty of life imprisonment and/or 7500 penalty units, and the dealing with property reasonably suspected of being proceeds of crime has a maximum penalty of imprisonment for 2 years and/or 120 penalty units. After applying a 25% discount for the applicant’s early plea of guilty and taking into account the matter on the s 16BA schedule, his Honour sentenced the applicant to a term of imprisonment of 6 years commencing on 14 December 2020 and expiring on 13 December 2026. His undiscounted head sentence was 8 years. His Honour imposed a non-parole period of 3 years and 8 months, the applicant being eligible for release to parole on 13 August 2024.

7. The circumstances of the offending involved a criminal syndicate in which the applicant participated with two co-offenders, Jason Mirarchi and Christopher Tuyau. Jason Mirarchi was sentenced by Judge Coleman SC at the same time as the applicant. He pleaded guilty to one count of importing a commercial quantity of a border-controlled drug, namely 2 kilograms of cocaine, contrary to ss 307.1(1) and 311.4 of the Code and one count of dealing with money, being less than $100,000, it being reasonable to suspect that such money was the proceeds of crime, contrary to s 400.9(1A) of the Code. He was sentenced to a term of imprisonment of 4 years and 6 months after the application of a 25% discount for his plea of guilty for the importation offence. His undiscounted head sentence was 6 years. Mr Mirarchi was sentenced to a term of imprisonment of 6 months after the application of a 25% discount for his plea of guilty for the proceeds of crime offence. It was to be served concurrently with the importation offence.

8. Christopher Tuyau was sentenced later, on 14 April 2023, by his Honour J Smith SC for the offence of importing a commercial quantity of a border-controlled drug, namely 2.074.15 kilograms of cocaine, contrary to ss 11.2A(1), 307.1(1) and 311.4 of the Code. One count of dealing with money, being less than $100,000, it being reasonable to suspect that such money was the proceeds of crime, contrary to s 400.9(1A) of the Code, was placed on a s 16BA schedule and was taken into account by his Honour. Mr Tuyau received a term of imprisonment of 4 years and 7 months after the application of a 20% discount, with a non-parole period of 2 years and 6 months. His undiscounted head sentence was 5 years and 9 months.

9. I observe that the offences of trafficking a commercial quantity of a controlled substance and importing a commercial quantity of a border controlled dug attract the same maximum penalty.

10. The applicant relies on one amended ground of appeal, that there is a marked disparity between the sentence imposed on him and the sentences imposed on his co-offenders, Mr Mirarchi and Mr Tuyau, such as to give rise to a justifiable sense of grievance.

Background

11. On 14 and 15 April 2022 there was a disputed facts hearing before Judge Coleman SC, which largely concerned the quantity of cocaine trafficked by the applicant and imported by Mr Mirarchi respectively. On 24 June 2022, his Honour gave judgment, finding that the applicant had trafficked 2.2613 kilograms of cocaine and that Mr Mirarchi had imported 2 kilograms of cocaine.

12. A Statement of Facts (accounting for his Honour’s findings on 24 June 2022) was tendered at the sentence hearing on 14 October 2022. A different, but not inconsistent, Statement of Agreed Facts on Sentence with respect to Mr Tuyau was tendered at the sentence hearing before Judge J Smith SC on 14 April 2023. He also had Judge Coleman SC’s sentencing remarks of 28 October 2022 before him.

13. The following facts were before both judges. In November 2020, the Australian Federal Police began investigating a criminal syndicate suspected of importing consignments of border-controlled drugs from overseas. The offences arose from each of the applicant’s, Mr Mirarchi’s and Mr Tuyau’s knowing involvement in an organised criminal activity, which related to the importation of quantities of cocaine in packages which were addressed to multi-tenanted or commercial or residential addresses in the Parramatta and Macquarie Park/Mansfield areas (which were undeliverable). The consignments consigned to Parramatta were recovered by Mr Tuyau who was a delivery driver for the logistics company FedEx. The consignments consigned to the Macquarie Park/Mansfield areas were recovered by Mr Mirarchi who was a delivery driver for the logistics company TNT.

14. Both Mr Tuyau and Mr Mirarchi falsely scanned each consignment as “delivered” during their delivery runs, retained possession of the consignments and later delivered them to others. On 20, 26 and 30 November 2020 and 8 and 10 December 2020, Mr Mirarchi delivered four consignments on each occasion to the applicant in the vicinity of an Early Learning Centre in Macquarie Park. On 30 and 9 December 2020, the applicant received four consignments on each occasion from Mr Tuyau in Gregory Place, Harris Park. On 14 December 2020, the applicant met with Mr Tuyau at that location and received a further three consignments. At that time, both the applicant and Mr Tuyau were arrested. The three consignments were found to contain 649.3 grams of cocaine with a purity of 86.8%.

15. During a search of the applicant’s car, police located $7,300 in cash, which is the subject of the offence taken into account on the s 16BA schedule. A search of the applicant’s residence located a further 1.612 kilograms of pure cocaine in heat-sealed and other plastic bags with purity levels between 78.6% and 82.5%, as well as empty packages relating to another 190 consignments.

16. Mr Mirarchi was arrested on 15 December 2020. In his courier van were three consignments containing a total of 645.5 grams of cocaine. By his guilty plea, Mr Mirarchi accepted that he imported a commercial quantity of cocaine, the commercial threshold being 2 kilograms. During a later search of Mr Mirarchi’s residence, $32,150 in cash was located, which is the subject of the proceeds of crime offence for which he was also sentenced.

17. The total amount of cocaine imported by Mr Tuyau in the joint criminal enterprise with his co-offenders was 2,074.15 grams.

18. Business records of FedEx and TNT disclosed that Mr Mirarchi had been fraudulently dealing with consignments from 12 November 2019 to 15 December 2020. Mr Mirarchi delivered 112 such consignments during that period. After being recruited by Mr Mirarchi, Mr Tuyau fraudulently dealt with consignments from 24 February 2020 and 14 December 2020. Mr Tuyau delivered 139 such consignments during that period.

Other relevant findings by Judge Coleman SC and Judge J Smith SC

19. The applicant was 52 years of age at the time of the offending and 54 years old at the time of sentence. Mr Mirarchi was 42 and 43 years of age at the time of the offending and 45 years old at the time of the sentence. Mr Tuyau was 35 years of age at the time of the offending and 38 years old at the time of the sentence.

20. The applicant was born in Croatia. In 1991, his family escaped and migrated to Slovenia as refugees. He was detained in a prison camp for several months, and moved to Australia in 1997. He worked on building sites but injured his back and neck in 2000 which prevented him from working for the next decade. He had a history of problematic drug use including cocaine and cannabis. He suffered a life-threatening heart attack in 2017. Following his heart attack, he experienced worsening depression against a background of depression and anxiety, and he increased his use of cocaine and alcohol. At the time of the offending, he was using a substantial amount of cocaine every day. He has remained drug free whilst in custody where he has participated in several short courses and maintained employment in a metal shop and then a library. He was diagnosed with a stimulant use disorder and an alcohol and gambling disorder which were in remission in the controlled environment of custody. Judge Coleman SC did not find that the applicant’s mental illness or substance addictions reduced his moral culpability but took them into account in his subjective case.

21. Mr Mirarchi had an unremarkable childhood with no adverse childhood experiences. He lived with his parents until the age of 26. He had been married for more than 20 years and has two children, a daughter aged 11 and a son aged 9. His son has autism, Attention Deficit Hyperactivity Disorder and a language development disorder, and requires ongoing support. He had been employed throughout his adult life and worked as a courier driver for TNT for 17 years before his termination in January 2021 following his arrest. He had continued to work while on bail and awaiting sentence.

22. Mr Tuyau had long-term struggles with self-worth and self-esteem which worsened when his most significant relationship broke down prior to the offending. He developed drug and gambling addictions which were consuming most of his wages. He was assessed as meeting the diagnostic criteria for depression, substance use disorder, alcohol use disorder and gambling disorder. Testing indicated that at the time of the offending, Mr Tuyau was suffering from extremely severe depression and anxiety. Judge J Smith SC did not consider that Mr Tuyau’s mental conditions reduced his moral culpability.

23. With respect to the offenders’ roles in the enterprise, Judge Coleman SC found that each of the applicant and Mr Mirarchi was “knowingly involved in organised criminal activity”, with the applicant “knowingly trafficking in cocaine” and Mr Mirarchi “knowingly involved in what he knew was criminal activity and reckless as to the contents of the packages”. Although the roles played by Mr Mirarchi and Mr Tuyau were similar, Judge J Smith SC was satisfied beyond reasonable doubt that Mr Tuyau knew that what was being imported was a border controlled drug. He observed that scales and a cocaine testing kit were found in Mr Tuyau’s home, which he found was evidence of an interest and knowledge of cocaine.

24. Judge Coleman SC found that each offender participated in the criminal enterprise to make money and did not find that one offender’s financial gain was greater than the other. Judge J Smith SC found that each of the co-offenders profited by receiving cash in return for their involvement in the importation of cocaine. Neither judge found evidence of an elaborate or lavish lifestyle. Indeed, both judges found that the offenders were living simply.

25. With respect to objective seriousness, Judge Coleman SC found that Mr Mirarchi’s offending was below the midrange and towards the bottom. As for the applicant, his Honour assessed the objective seriousness at below midrange and towards the bottom, although he noted that the applicant’s involvement was more significant. This was because the applicant knew that the substance he was trafficking was cocaine, that he was the person to whom the cocaine was delivered, he had in his possession more cocaine than Mr Mirarchi and because he was in possession of the drugs to sell them.

26. Judge J Smith SC made no finding on a hypothetical scale. There was no obligation on him to do so. He found that Mr Tuyau’s offending was serious, although less serious than Mr Mirarchi, as Mr Tuyau came into an operation which was already in existence. In both Mr Mirarchi’s and Mr Tuyau’s cases, both played an important role in the enterprise in which they were persons in a position of trust, employed by a logistics company, and they both abused their positions to facilitate the delivery of cocaine on behalf of the syndicate in the period between November 2019 and December 2020 (with Mr Tuyau commencing in late February 2020). The applicant was the person responsible for collecting the cocaine from Mr Mirarchi and Mr Tuyau. He took it to his apartment for safekeeping in November and December 2020.

27. Each of the offenders was either sentenced for (Mr Mirarchi), or had taken into account, the same additional offence (the applicant and Mr Tuyau).

28. Judge Coleman SC found that the applicant and Mr Mirarchi were entitled to a 25% discount because of their early pleas. Judge J Smith SC found that Mr Tuyau was entitled to a discount of 20%. Judge Coleman SC assessed both the applicant’s and Mr Mirarchi’s prospects of rehabilitation as “relatively good.” Judge J Smith SC assessed Mr Tuyau’s prospects as good.

29. Neither Mr Mirarchi nor Mr Tuyau had a record of prior convictions, and the applicant had none of any significance.

30. Judge Coleman SC regarded Mr Mirarchi’s expressions of remorse to two report writers to be of less weight as there was no other evidence before him as to any remorse, but found that there was sufficient evidence on which he could (and did) accept that the applicant was remorseful. However, his Honour determined that because the applicant did not give evidence, his remorse would be given less weight because it was untested. Judge J Smith SC accepted that Mr Tuyau had expressed genuine remorse for his offending.

31. Judge Coleman SC found that there would likely be a significant and detrimental effect on the children of Mr Mirarchi, particularly his son, because of his detention. In the applicant’s case, the onerous conditions of his remand period, which had included 162 days locked in his cell due to Covid-19, was a factor which his Honour took into account. Judge J Smith SC found that the hardship that would be caused to Mr Tuyau’s family would be more severe than the hardship to Mr Mirarchi’s family.

32. Both judges took into account the impact of the Covid-19 pandemic on all three offenders.

33. Judge J Smith SC considered that the subjective case of Mr Tuyau was stronger than that of Mr Mirarchi.

The sentencing of the applicant and the co-accused

34. Judge Coleman SC considered the issue of parity. With respect to the applicant’s and Mr Mirarchi’s individual roles, his Honour said the following:-

I do find that Vujinovic had a greater role and therefore is more culpable than Mirarchi. He will thus receive a slightly longer sentence. I do not think, however, that the difference in roles and culpability is such that the difference will be significant.

35. Importantly, this passage came at the end of the sentencing judgment, after his Honour had already considered what has been outlined above and just before his Honour passed sentence. At this point, Judge Coleman SC had considered the objective and subjective cases of both the applicant and Mr Mirarchi, and there was nothing left for him to do but determine the sentence in the quantitative sense. The applicant and Mr Mirarchi were then sentenced to the terms of imprisonment as noted above. The applicant’s discounted sentence was the same as Mr Mirarchi’s undiscounted sentence.

36. In his sentence of 14 April 2023, Judge J Smith SC also addressed parity. He used Mr Mirarchi as a comparator, as he was asked to do by the parties. Mr Mirarchi was dealt with on the basis that he had imported 2,074.15 grams of cocaine, which was just over the commercial quantity. His Honour noted that Mr Tuyau’s and Mr Mirarchi’s roles were similar, although he found Mr Mirarchi’s to be greater, as he was involved from an earlier stage and he had introduced Mr Tuyau to the agreement when Mr Tuyau took over for a short time during Mr Mirarchi’s annual leave in late February 2020. Mr Tuyau continued in the criminal enterprise on Mr Mirarchi’s return. His Honour also considered Mr Tuyau’s subjective case to be stronger than Mr Mirarchi’s and the impact of his imprisonment on his family to be of greater significance.

37. On the other hand, Judge J Smith SC found that Mr Tuyau was aware that what was being imported was a border-controlled substance (as opposed to a finding of recklessness on the part of Mr Mirarchi). However, his Honour was not satisfied that there was any real difference between his conclusion and that of Judge Coleman SC, and he did not consider that the relevant state of mind of each of the offenders was different for the purposes of the application of the principles of parity. Ultimately, as outlined above, Mr Tuyau received the shortest undiscounted sentence of the three offenders, although it was only slightly shorter, by 3 months, than that of Mr Mirarchi.

Submissions

Applicant’s submissions

38. Mr Howell, who appeared on behalf of the applicant, submitted that there was not proper or due proportion between the respective sentences imposed on the applicant and his co-offenders, and that despite Judge Coleman SC having addressed parity, the significant degree of disparity in the sentences imposed by him cannot be justified as a proper exercise of judicial discretion. He said that there is marked disparity between the sentences imposed on the applicant and his co-offenders which gives rise to a justifiable sense of grievance on the part of the applicant.

39. Mr Howell submitted that the weight of the cocaine the subject of the offending was comparable, and that the offenders had pleaded guilty to similar amounts of cocaine importation or trafficking which carried the same maximum penalty. Other similarities included their criminal histories, which were of no moment, and the fact that each offender was found to have good prospects of rehabilitation. Further, each offender had shown remorse, although Mr Tuyau was the only offender for which there was an unqualified finding.

40. Mr Howell submitted that Judge Coleman SC found that he could not find beyond reasonable doubt that the applicant had received or dealt with any consignments prior to 20 November 2020, whereas this was not so in Mr Mirarchi’s case. He submitted that his Honour failed to grapple with the fact that, by his plea, Mr Mirarchi had accepted that he had been involved in the importation during the period of November 2019 to December 2020. Mr Howell submitted that, given the length of time of Mr Mirarchi’s offending, his moral culpability was not any less than that of the applicant.

41. With respect to Mr Tuyau, Mr Howell submitted that as Judge J Smith SC had used Mr Mirarchi as a comparator, the same comparison ought to apply between Mr Tuyau and the applicant.

42. Finally, Mr Howell submitted that there was a significant difference between the sentences of Mr Mirarchi, Mr Tuyau and the applicant which bespoke error, in circumstances where Judge Coleman SC had concluded that the difference in the sentence between the applicant and Mr Mirarchi ought to be slight. The difference between the applicant’s and Mr Mirarchi’s head sentence was 1 year and 6 months. The difference between the applicant’s and Mr Tuyau’s head sentence was 1 year and 5 months. The difference between the applicant’s and Mr Mirarchi’s non-parole periods was 11 months, and the difference between the applicant’s and Mr Tuyau’s non-parole period was 1 year and 2 months. The applicant’s head sentence and non-parole period were both 25% longer than Mr Mirarchi’s head sentence and non-parole period.

Respondent’s submissions

43. Mr Ranken, who appeared on behalf of the Crown, submitted that there are differences in the objective and subjective cases of each offender which provide a rational explanation as to the disparity between the sentences imposed on Mr Mirarchi, Mr Tuyau and the applicant.

44. Mr Ranken submitted that it was not correct to say that the applicant’s involvement was limited to, or known to be limited to, a period from 20 November 2020 only. In addition to the three consignments that were seized, police located additional quantities of cocaine at the applicant’s apartment, as well as empty packaging for 190 consignments, 61 of which were tested and showed some traces of cocaine, which indicated that the applicant had a substantial involvement in the enterprise.

45. Further, the Crown submitted that an individual who knowingly traffics cocaine is more culpable than a person who is reckless as to whether or not they are trafficking a border-controlled drug (in the case of Mr Mirarchi).

46. Mr Rankin submitted that the most significant differences between the offenders were their subjective cases and the effect of a term of imprisonment on Mr Mirarchi’s and Mr Tuyau’s families which, combined with the differences in culpability, provide a rational explanation for the difference in sentences.

47. Mr Ranken submitted that it is not sufficient for the Court to conclude that it would have been open to the sentencing judge to propose a lesser proportion between the sentences imposed: see Hamill J in Hassoun v R [2023] NSWCCA 5 at [37]. Rather, the question is whether or not the degree of disparity is unreasonable or irrational in some way so as to indicate that the sentencing discretion miscarried.

Principles

48. The principles with respect to parity are well-established and need not be repeated at length. There must not be a marked disparity between the sentences imposed on co-offenders such as to give rise to a justifiable sense of grievance or the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 609 – 610 per Gibbs CJ.

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

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.

(Citations removed)

50. In DS v R [2014] NSWCCA 267 at [39], the Court (Bathurst CJ, Fullerton and Davies JJ) described the approach to be adopted in addressing a complaint of parity:-

The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender or co-offenders, is to be assessed objectively governed by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders is disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and in an offender's subjective circumstances. There are necessarily degrees of both similarity and difference in the criminal conduct of co-offenders and in their subjective circumstances. In some cases this requires that different sentences be imposed. However, it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending that the disparity is such that appellate intervention is required. For there to be a justifiable sense of grievance, the disparity must be "gross", "marked" or "glaring" (see the discussion by Howie J in Crystal Lee England v R [2009] NSWCCA 274 at [61]-[67]).

51. In Jaafar v R [2022] NSWCCA 254, Yehia J (with whom Harrison and Fagan JJ agreed) said at [42] that:-

Merely pointing to some difference between the two subjective cases of co-offenders who commit the same crime would not of itself establish a justifiable sense of grievance. Ultimately, the question is whether the sentencing discretion miscarried, not whether this Court would have imposed a different sentence to that imposed the first instance: Moran v R [2022] NSWCCA 217 at [29].

52. I accept, as was submitted by the Crown, that the question for an appellate Court is whether the degree of disparity is unreasonable or irrational in some way so as to indicate that the sentencing discretion miscarried. In Lloyd v R [2017] NSWCCA 303, R A Hulme J (with whom Payne JA and Garling J agreed) said at [97]:-

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?

Consideration

53. Judge Coleman SC carefully considered the individual cases of both the applicant and Mr Mirarchi. He carefully compared the objective and subjective features of the offending and the offenders. Further, his Honour specifically considered parity in his remarks. Judge J Smith SC also considered parity, and appropriately used Mr Mirarchi as a comparator when sentencing Mr Tuyau.

54. All the offending was indeed comparable. The applicant was charged with a trafficking offence, whereas Mr Mirarchi and Mr Tuyau were charged with an importation offence. Both offences carry the same maximum penalty. All offenders pleaded guilty at an early stage. The quantities of drugs involved were very similar. The role of each offender was properly taken into account as the most important factor when determining objective seriousness.

55. With respect to their roles, the differences were not significant. Judge Coleman SC stated that he could not find beyond reasonable doubt that the applicant stood to gain a greater profit from the offending than Mr Mirarchi. Further, while Mr Ranken rightly submitted that precise knowledge of the substance being imported may increase culpability, the impact of this finding, in this case, does not significantly lower Mr Mirarchi’s culpability in circumstances where his offending occurred over a longer period of time and involved the repeated participation in what he knew to be a criminal enterprise. By his plea, Mr Mirarchi accepted that he had been involved in the importation of cocaine for a longer period of time than the applicant’s involvement in the trafficking. Furthermore, it was Mr Mirarchi who had recruited Mr Tuyau into the enterprise.

56. In my opinion, Judge Coleman SC correctly found that the applicant had a greater role and was more culpable than Mr Mirarchi, but only so much that he should receive a slightly longer sentence.

57. By the time his Honour made this statement, he had set out all the similarities and differences in the applicant’s and Mr Mirarchi’s subjective cases and their individual roles. Those differences were not significant enough to produce a great difference in their sentences. However, his Honour imposed a head sentence on the applicant that was two years longer than that imposed on Mr Mirarchi. By the time that the applicant’s 25% discount was taken into account, he had only reached Mr Mirarchi’s head sentence. In my opinion, this amounts to a significant difference between the sentences of the applicant and Mr Mirarchi and engenders a justifiable sense of grievance in the applicant. The same can be said about the sentence imposed on Mr Tuyau by Judge J Smith SC from the perspective of the applicant. In my view, the degree of disparity is unreasonable or irrational and indicates that Judge Coleman SC’s sentencing discretion miscarried.

58. Error is established and I would uphold this ground of appeal.

Resentence

59. Two affidavits were read on the usual basis, that of the applicant sworn on 31 October 2023 and that of Mr Ian Westrip affirmed on 30 October 2023. Nothing much turns on the content of either affidavit. The applicant has been a model prisoner during his incarceration.

60. The error which I have identified involves the imposition of a sentence that was substantially longer than that which the applicant’s co-offenders received. That aside, I adopt Judge Coleman SC’s findings on sentence, including his Honour’s remarks on parity that the applicant should receive a slightly longer sentence to account for his greater role in the syndicate.

61. Taking into account the matter on the s 16BA schedule, I would impose a sentence of imprisonment of 6 years and 6 months, which is a sentence that I consider to be slightly longer than Mr Mirarchi’s undiscounted head sentence of 6 years and Mr Tuyau’s undiscounted head sentence of 5 years and 9 months. After applying a 25% discount and some rounding down, this results in a sentence of 4 years and 10 months. I adopt a similar ratio between the head sentence and the non-parole period and set a non-parole period of 3 years. The sentence is to commence from 14 December 2020, which is the date the applicant came into custody. The applicant will be eligible for release to parole on 13 December 2023.

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Decision last updated: 19 February 2024