Yavuz v The Queen
[2022] ACTCA 5
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Yavuz v The Queen |
Citation: | [2022] ACTCA 5 |
Hearing Date: | 11 November 2021 |
DecisionDate: | 14 February 2022 |
Before: | Elkaim ACJ, Mossop and Banks-Smith JJ |
Decision: | Appeal dismissed |
Catchwords: | APPEAL - CRIMINAL LAW - Sentence appeal - drug offences - importing border controlled drug - whether sentence manifestly excessive - parity principle - where appellant in custody during commission of offence - appeal dismissed |
Legislation Cited: | Crimes Act 1914 (Cth), s 16A Criminal Code 1995 (Cth), ss 11.2A, 307 |
Cases Cited: | Apps v The Queen [2020] ACTCA 53 Butters v The Queen [2010] NSWCCA 1 Siddiqi v The Queen (Commonwealth) [2015] NSWCCA 169 |
Parties: | Emin Oguz Yavuz ( Appellant) The Queen ( Respondent) |
Representation: | Counsel Mr A Norrie ( Appellant) Mr C O'Donnell SC with Mr T Jones ( Respondent) |
| Solicitors Sydney Criminal Law Specialists ( Appellant) Commonwealth Director of Public Prosecutions ( Respondent) | |
File Number: | ACTCA 37 of 2020 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Loukas-Karlsson J Date of Decision: 21 September 2020 Case Title: R v Yavuz (No 2) Citation: [2020] ACTSC 248 |
THE COURT:
Introduction
The appellant pleaded guilty to an offence of importing a commercial quantity of a border-controlled drug, namely 1,771 grams of pure MDMA, contrary to s 307.1(1) of the Criminal Code 1995 (Cth) and by virtue of s 11.2A of the Criminal Code.
The sentencing judge imposed a sentence of 8 years and 6 months’ imprisonment, commencing on 15 August 2018 and expiring on 14 February 2027, with a fixed non‑parole period of 5 years and 1 month, commencing on 15 August 2018 and concluding on 14 September 2023.
The maximum penalty for the offence is life imprisonment and/or 7,500 penalty units.
The appellant contended on appeal that the sentence was manifestly excessive in that it failed to adequately reflect parity principles. Parity was not raised in the notice of appeal as a specific error, but counsel for the appellant accepted during the hearing that it was the key argument, and the ground that the sentence was otherwise manifestly excessive was not pursued.
The point of reference for parity was the sentences imposed on three co-offenders, who were all sentenced by the same sentencing judge. Relevantly, the focus was on the sentence of the co-offender Peter Poulakis. Mr Poulakis was sentenced to a total sentence of 5 years and 9 months with a non-parole period of 2 years and 9 months, and was also sentenced for an additional offence: R v Poulakis [2020] ACTSC 247. It was agreed that the roles of the other co-offenders, Bilal Omari and Youssef Jabal, were less significant.
Facts on sentence
The agreed facts referred to by the sentencing judge may be summarised as follows.
The relevant consignment (referred to as consignment 2) was posted on 24 November 2017 to a fictitious person at the Australian National University (ANU) and arrived in Sydney from the United Kingdom on 30 November 2017 via air cargo. It was intercepted by the Australian Border Force on that day and was found to contain 1,771 grams of pure MDMA.
The co-offender, Mr Omari, was an employee of the ANU at the time, and the co‑offenders had agreed the consignment would be delivered to the ANU.
Between 13 November 2017 and 30 November 2017, the appellant engaged in a number of telephone conversations with the co-offenders in relation to the consignment. The discussions related to sourcing of the drug, finance for the operation and the planned collection of the consignment.
The prosecution summary of the respective roles, as included in the agreed facts, was that the appellant directed the activities of the syndicate; Mr Poulakis converted the money provided by Mr Jabal into Bitcoin and ordered the consignment on the internet from an unknown person, known as 'Sock'; Mr Omari assisted Mr Poulakis and was to be responsible for the collection of the consignment; and Mr Jabal provided the money for the enterprise.
There was some debate about the characterisation of the appellant as the person who was 'directing'. The sentencing judge relevantly said:
[10]Counsel for the offender took issue with the characterisation of the offender as 'directing' the activities. It was agreed in oral submissions that, at times, the offender took on an organisational role and engaged in 'directional type behaviour'; it was also agreed that, at times, Mr Poulakis and Mr Omari engaged in furtherance of the enterprise with little or no input from the offender. The prosecution accepted that the offender and Mr Poulakis were equivalent in their moral culpability for the offending and were both “at the top” of the joint enterprise (T 19-20).
At the time of the offence, the appellant was in the Alexander Maconochie Centre (AMC) serving a non-parole period relating to previous importation convictions: at [11]. He was sentenced on 15 October 2015 for 21 counts of importing a marketable quantity of border-controlled drugs contrary to s 307.2 of the Criminal Code and for two counts of importing a border controlled drug contrary to s 307.3 of the Criminal Code: R v Yavuz [2015] ACTSC 329. The sentencing judge in that case imposed an aggregate term of imprisonment of 5 years and 11 months, with a non-parole period of 3 years and 6 months.
The sentencing judge in the present case also referred to 'consignment 1'. The appellant was originally charged with a further count of jointly importing a marketable quantity of MDMA between 28 August 2019 and 6 December 2019. This charge related to the importation of a consignment containing 452.8 grams of MDMA that arrived in Australia from Germany on 3 November 2017. All co-offenders were involved in the importation of this consignment, in the same roles as described above. The modus operandi was similar, with the consignment addressed to a fictitious person at the ANU: at [12].
This charge was discontinued as against the appellant by way of notice filed on 5 June 2020, but the parties agreed that the conduct would be considered in sentencing the appellant for the offence relating to consignment 2: at [12]-[13].
The sentencing judge also made findings as to the appellant's role in financing the operations, concluding that Mr Jabal provided funding to the appellant, at least some of which was used to finance the importations, but that whilst the appellant participated in financing the importations, the quantum and proportion of such funding was unknown: at [14].
Objective seriousness of the appellant's offending
The sentencing judge considered the objective seriousness of the criminality, analysing both the appellant's role and the quantity and type of drug.
Her Honour made the following findings in relation to the appellant's role in the joint commission of the importation offence, at [25]:
(a)The offender was involved, with Mr Omari and Mr Poulakis, in the joint commission to import at least a commercial quantity of a prohibited drug into Australia, from about July 2017 (noting [12]-[13] regarding the course of conduct).
(b)The offender was aware of the identity and role of 'Sock', the overseas provider of the consignments.
(c)The offender was a common link between Mr Poulakis on the one hand and Mr Omari and Mr Jabal on the other hand. He facilitated communication and a degree of cooperation between them.
(d)The offender was aware of the decision to use the ANU campus as the delivery address for the consignment.
(e)The offender tasked Mr Omari with communicating to Mr Jabal that he wanted to recover $50,000 from money he had invested in a property development being undertaken at Weetangera by Platinum Constructions (the property development of which Mr Jabal was a director and shareholder).
(f)On 13 September 2017, the offender communicated directly to Mr Jabal that he wanted to recover the $50,000 investment during a visit to the AMC by Mr Jabal and Mr Poulakis.
(g)The offender's authority and influence were such that Mr Jabal immediately complied with the demand for money.
(h)The offender tasked Mr Poulakis with liaising with Mr Jabal and collecting the money from him in cash.
(i)The offender expected and received regular progress reports from Mr Poulakis about the money and whether it had been collected from Mr Jabal.
(j)The offender discussed with Mr Poulakis the purchase of Bitcoin. He expected and received regular progress reports from Mr Poulakis regarding the purchase of Bitcoin.
(k)The offender expected and received regular updates about 'Sock's' activities and whether he had dispatched various consignments. In particular, the offender was informed immediately when consignments were dispatched.
(l)The offender discussed with Mr Poulakis and Mr Omari the collection of the first consignment from the ANU.
(m)The offender expected and received regular updates about the collection of the first consignment.
(n)The offender had sufficient influence and authority to remonstrate with Mr Poulakis and Mr Omari regarding Mr Omari's failure to collect the first consignment.
(o)The offender had sufficient authority and influence to remonstrate with Mr Poulakis about his failure to ensure 'Sock' was punctual in arranging the consignments.
(p)The offender expected and received regular updates about the status of the second consignment.
As to the quantity and type of drug, the sentencing judge said that 'the prosecution accepted that the offender was not aware of the precise quantity that was being imported', but knew it was a commercial quantity. Her Honour did not accept the prosecution's submission that the evidence tended to suggest that the appellant intended on bringing further and larger consignments into Australia and would have done so had it not been intercepted.
Subjective circumstances
As to subjective circumstances, the sentencing judge considered several matters including a psychological report and a sentenced detainee case plan.
Her Honour also referred to six references that were provided in support of the appellant, concluding that the prospects of rehabilitation, as to which much of the content of the references was directed, 'must remain guarded at this time': at [52].
The sentencing judge also took into account the fact that the importation offence was committed while the appellant was in custody, finding that it was an aggravating feature of the sentence. Further, it was 'undoubtedly a common sense inference' that the appellant's motivation for involvement in the offence was profit: at [68].
As to the appellant's antecedents, her Honour referred to the appellant's conviction on 21 counts of importing marketable quantities of a border-controlled drug in 2015 (see [12] above), and noted that in 2009 the appellant was also convicted of robbery and sentenced to a two-year good behaviour order, with attached community service conditions: at [70].
As to the appellant's guilty plea, her Honour allowed a 15 percent discount under s 16A of the Crimes Act 1914 (Cth), noting (at [83]) that the co-offenders entered pleas at broadly the same time as the offender and the pleas had similar utilitarian value: at [84]‑[85].
The appellant provided a typed letter of apology to the Court. The sentencing judge set out extracts of this letter, observing that while its contents were taken into account, she did not ascribe significant weight to the remorse because the letter was not sworn, citing Butters v The Queen [2010] NSWCCA 1 at [18].
The appellant does not challenge the manner in which the subjective features were addressed for the purpose of sentencing.
Reference to other sentences
Her Honour then set out cases said to be comparable referred to by both the appellant and the Crown, acknowledging the limitations of such reference, and citing the plurality in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] that 'considerations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent'.
Parity and submissions before the sentencing judge
The sentencing judge noted that it was accepted by the parties that Mr Poulakis and the appellant's involvement in the importation was more significant than that of Mr Omari and Mr Jabal, and accordingly her Honour focussed on a comparison between the respective positions of the appellant and Mr Poulakis.
Her Honour recorded the sentence imposed on Mr Poulakis, who also pleaded guilty to the relevant offences for which he was sentenced, at [106]:
Mr Poulakis was sentenced on 18 September 2020 for importation of a commercial quantity of MDMA and trafficking in dibutylone. He was sentenced to five years and nine months' imprisonment in respect of the importation charge, and nine months' imprisonment in respect of the trafficking charge. In relation to the importation charge, he received a non-parole period of two years and nine months. Due to the partial accumulation of the two charges, Mr Poulakis will serve a minimum of three years in custody, backdated to account for one month already spent in custody: see R v Poulakis [2020] ACTSC 247.
Her Honour then turned to a careful analysis of the respective objective features of offending and of the subjective features, setting out the following table (at [107]):
Appellant Mr Poulakis One count: Joint commission importation of
commercial quantity of MDMACount 1: Joint commission importation of commercial quantity of MDMA
Count 2: Trafficking in dibutyloneObjective Features of Offending Aware of the identity and role of Sock Aware of the identity and location of Sock at all relevant times A common link between Poulakis and Omari/Jabal Aware of the decision to use the ANU for the delivery address No evidence of awareness of using ANU in the planning stage, but became aware later Tasked Omari with communicating with Jabal that he wanted to recover $50,000
from his investmentTold Jabal in person that he wanted to recover this money; 'authority and influence were such that Jabal immediately complied with the demand' Tasked Poulakis with liaising with Jabal and collecting money from him in cash Tasked with collecting money from Jabal Responsible for the purchase and ordering of the consignments Expected and received regular reports from Poulakis about the money Provided regular progress reports to Yavuz about the money and whether it had been collected from Jabal Discussed with Poulakis the purchase of Bitcoin Purchased Bitcoin using the money provided by Jabal Received regular updates about Sock's activities Provided regular progress reports to Yavuz about the money and whether it had been collected by Jabal Discussed with Poulakis the purchase of Bitcoin Received regular updates about Sock's activities Provided regular progress reports to Yavuz about Sock's activities and whether he had dispatched the consignments Informed immediately when the consignments were dispatched Discussed with Poulakis and Omari the collection of the first consignment from ANU Tasked, along with Omari, with collecting the first consignment from the ANU Sufficient influence to remonstrate with Poulakis and Omari regarding Omari's failure to collect the first consignment Received regular updates about the collection of the first consignment Provided regular updates to Yavuz about the collection of the first consignment Sufficient influence and authority to remonstrate with Poulakis about his failure to ensure Sock was punctual Subscribed two telecommunications services in the name of Ms H to use as contact numbers for the consignments Received regular updates about the progress of the second consignment Provided regular updates to Yavuz about the progress of the second consignment Subjective features In custody at the time of offending History of similar offending No related offending; dated and limited record Substance use and gambling disorder Diagnosis of ADHD Good family environment; father relocated to Turkey for some time when Yavuz was a teenager; Yavuz lost his brother in 2017; left school in Year 10 but later completed Years 11 and 12 through TAFE Good upbringing, interrupted high school life, left school after Year 10 Employment success with running his own cafes Guarded prospects of rehabilitation due to circumstances of offending; significant family support Good prospects of rehabilitation and significant family/friend support network Loss of relationship and cost to business enterprise References speak of Yavuz turning to religion while in custody Evidence that Yavuz has been productive member of AMC community Motivated by financial gain (and pressure to pay gambling debts) Motivated by financial gain
Before the sentencing judge the appellant submitted that:
(a)the roles of the appellant and Mr Poulakis are broadly equivalent, although Mr Poulakis pleaded guilty to additional offences;
(b)Mr Poulakis was the driver of the enterprise and the appellant's role was objectively less; and
(c)whilst the appellant engaged in 'directional type behaviour', Mr Poulakis and Mr Omari furthered the enterprise with 'little or no' input from the appellant.
Before the sentencing judge the Crown submitted that:
(a)the appellant's culpability was similar to that of Mr Poulakis, although Mr Poulakis was to be sentenced for other offences including with respect to the first and second consignment; and
(b)the appellant's conduct was significantly aggravated in that he actively participated in the joint commission whilst serving a substantial term of imprisonment.
As to the issue of the respective roles in 'directing', her Honour concluded (at [112]) that:
I note that the agreed facts state that Mr Yavuz 'directed' the activities of the syndicate (see [9] above). The foundation of the assessment of the different roles of Mr Poulakis and the offender is the agreed facts. The objective features of the offending are noted in the table at [107]. While it is the case that there is a broad equivalence in terms of hierarchy and role as between Mr Poulakis and the offender, it is clear that Mr Yavuz had, comparatively, a somewhat greater role in 'directional type behaviour': see [10]. I have come to this conclusion, not on the basis of shorthand labels, but rather a comparison to the extent that the evidence allows of what their respective involvement was.
Other matters considered by the sentencing judge
The sentencing judge considered totality and referred to other considerations, which included duress (not established), gambling and drug use (not mitigatory), rehabilitation (prospects found to remain guarded) and the impact of COVID-19 and the suspension of visits (taken into account). They are not relevant to this appeal.
The appellant's submissions on appeal
As to parity, counsel submitted that although Mr Poulakis was sentenced for two offences, a matter that would tell in favour of a greater sentence for him, the countervailing aggravating factor that the appellant was in custody at the time of the offending may tend to counterbalance that difference.
More relevantly for the appellant it was submitted that the role of each of the appellant and Mr Poulakis was similar, that the Crown had conceded as much, and that her Honour therefore erred in distinguishing between the two offenders.
It was submitted for the appellant that because he was in custody, it was Mr Poulakis who in effect stepped into the shoes of the appellant and engaged in directional-type behaviour from outside the custodial setting, and drove the syndicate as the connecting factor between the various offenders. It was said the appellant's role was necessarily limited, given he was in custody.
It was also submitted that the appellant was dependent upon Mr Poulakis to carry out various tasks, referring to: Mr Poulakis obtaining money from Mr Jabal (agreed facts [16]); arranging to purchase Bitcoin for the purpose of the first and second consignments (agreed facts [7] and [16]); arranging to purchase the first consignment (agreed facts [10]); purchasing Bitcoin (agreed facts [20]); and using Bitcoin to arrange the second consignment (agreed facts [21]).
The appellant's criticism of her Honour's reasons is directed in particular to the finding at [112] (extracted in full above) that 'While it is the case that there is a broad equivalence in terms of hierarchy and role as between Mr Poulakis and the offender, it is clear that Mr Yavuz had, comparatively, a somewhat greater role in "directional type behaviour"'.
The appellant contended that this finding 'ignores the reality' that Mr Poulakis was also exercising a directional-type role, albeit outside of a custodial setting, and fails to have sufficient regard to the Crown's concession that there was a 'broad equivalence' in terms of hierarchy and role. It was submitted that the sentencing judge disregarded the concession made by the Crown.
Whilst the focus was on parity, counsel for the appellant also referred to sentencing precedents in the context of the weight of the drug involved in the appellant's offending. The cases to which counsel referred involved methylamphetamine, rather than MDMA.
In particular, counsel referred to the following cases, cases which were also recorded by the sentencing judge, and we respectfully adopt her Honour's summaries of the offences and sentences at [102] (a), (d), (f), (i) and (t) of the sentencing reasons:
Shahbazi v The Queen [2016] VSCA 270: The offender pleaded guilty to two counts of importing a border-controlled drug, namely methylamphetamine. The total quantity of methylamphetamine was 3.3 kilograms. The offender entered an early plea of guilty and had a minor criminal record. He was an intermediary who liaised with the co-offender and arranged the importations through contacts in Iran. He was an Iranian refugee and was found to be remorseful. The offender was sentenced to eight years and six months' imprisonment, with a non-parole period of five years and six months.
R v Igwebuike [2017] ACTSC 323: The offender was found guilty of importing 8.5 kilograms of methamphetamine. The offender had no prior record and played an important role in the importation. He took delivery of the drugs and was preparing to deliver them when arrested. The offender was sentenced to 10 years and 6 months of imprisonment, with a non-parole period of 6 years and 6 months.
Obiekwe v R [2018] NSWCCA 55: The offender was sentenced for the importation of 17.4 kilograms of methamphetamine following a plea of guilty. He played a central role in the importation hierarchy and engaged in significant planning for the importation. He was found to have very good prospects of rehabilitation. The offender had no prior record. He was sentenced to 12 years of imprisonment, with a non-parole period of 7 years. The offender was granted leave to appeal against the sentence, but the appeal was ultimately dismissed.
R (Commonwealth) v Wilson [2018] NSWDC 518: The offender was charged with, and pleaded guilty to, one count of importing a commercial quantity of a border-controlled drug, namely methamphetamine; one count of attempting to possess a commercial quantity of a border-controlled drug, namely methamphetamine; and one count of trafficking in a marketable quantity of a controlled drug, namely methamphetamine and cocaine. The importation charge related to 4.8958 kilograms of methamphetamine. The offender was a member of a criminal syndicate involved in importing and distributing drugs in Australia. He arranged for multiple consignments to be delivered to various addresses in Sydney. The offender had no known criminal history and showed some remorse. He was sentenced to eight years of imprisonment for the importation charge. This was reduced from 12 years on account of a discount for the plea of guilty and assistance provided to the Crown. The total sentence was nine years of imprisonment, with a non-parole period of six years.
R v Chung Kung Fu [2015] VCC 634: The offender was sentenced for two counts of importing a commercial quantity of methamphetamine, totalling 7.576 kilograms. The offender entered a plea of guilty, not at the earliest opportunity, but before the trial had been significantly prepared. The offender played an important and integral role in the importation. The offender was 25 years of age at the time of offending and had a prior conviction for assault in Hong Kong. The offender was sentenced to seven years' imprisonment on each count, with a head sentence of eight years and a non-parole period of five years and six months.
Counsel submitted that whilst the sentence in Shabahzi was relatively similar, the other cases all involved significantly greater quantities of drugs: in Igwebuike the amount involved was 11 times the commercial quantity prescribed under the legislation; in Obiekwe the amount was 23 times; in Wilson it was 6 times; and in Chung Kung Fu it was more than 10 times the commercial quantity.
Consideration
The parity principle was described in Apps v The Queen [2020] ACTCA 53 in the following way at [29]-[31]:
The parity principle derives from the norm of 'equal justice' which is an aspect of the rule of law: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green) per French CJ, Crennan and Kiefel JJ at [28]. Their Honours continued:
[Equal justice] requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. …
Consistency in the punishment of offences against the criminal law is 'a reflection of the notion of equal justice' and 'is a fundamental element in any rational and fair system of criminal justice'. It finds expression in the 'parity principle' which requires that like offenders should be treated in a like manner. As with the norm of 'equal justice', which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.
(Footnotes omitted)
The parity principle applies to persons charged in connection with the same criminal conduct or enterprise, regardless of whether they are charged with the same offence, although the existence of different charges may cause practical difficulties in applying the principle: Green at [30]; Lowe v The Queen (1984) 154 CLR 606 (Lowe); Postiglione v The Queen (1997) 189 CLR 295.
Where an appellant alleges an unjustified disparity between their sentence and that imposed on a co-offender, the question is whether the disparity is such as to give rise to an objectively justifiable sense of grievance, i.e. whether it gives the appearance that justice has not been done: Lowe at 610; Green at [31].
In our view it was open to her Honour to find that the appellant had a comparatively greater role in 'directional type behaviour'.
The genesis of the contention about the appellant's role in 'directing' was the agreed fact that it was Mr Poulakis and Mr Omari, directed by the appellant, who arranged to purchase consignment 1. It is true that there were concessions and findings that might be seen to qualify that agreed fact in a limited way, but her Honour took those matters into account, before concluding on the basis of a comparison of the evidence that the appellant had a 'somewhat greater role in directional type behaviour'.
Relevantly, her Honour noted at [112] the agreed fact as to the appellant directing the activities of the syndicate. Her Honour also noted that the appellant took issue with such description but had accepted through counsel at the sentencing hearing that he had engaged in 'directional type behaviour'. Her Honour was cognisant of the Crown's concession that the appellant and Mr Poulakis were 'equivalent in their moral culpability for the offending', having referred to it at [10] of the reasons (extracted above).
However, it is apparent from her Honour's conclusion at [112] that her Honour did not come to her view on the basis of these matters alone but rather also had regard to the substance of the appellant's objective conduct, referring to the table at [107].
We do not accept the appellant's submission that her Honour disregarded the concession made by the Crown and sentenced on the basis of the initially agreed fact. Whilst her Honour found that there was 'broad equivalence' in terms of the hierarchy and role of the appellant and Mr Poulakis (at [112]), it remained open to find that there were distinctions with respect to aspects of the conduct of each of the appellant and Mr Poulakis. Those findings are not inconsistent. The characterisation of the appellant's conduct as involving a 'somewhat greater role in directional type behaviour' was open to her Honour on the evidence. Although the appellant referred to evidence that supported his submission as to the role of Mr Poulakis (see [37] above), her Honour also made a number of findings of fact that illustrated the appellant's actual involvement, including: that the appellant was aware of the identity of 'Sock'; that the appellant was a common link between the co-offenders and facilitated communication and cooperation between them; that he tasked both Mr Omari and Mr Poulakis with certain matters; that the appellant's authority and influence were such that Mr Jabal immediately complied with his demand for money; that the appellant's authority and influence were such that the appellant was able to remonstrate with Mr Poulakis about Mr Poulakis's failure to ensure 'Sock' was punctual; and that the appellant received regular progress reports and was informed immediately when the consignments were dispatched (at [25] and [107]). All such findings are consistent with a finding as to 'directional type behaviour'. The manner in which such conduct was weighed against any 'directional' conduct on the part of Mr Poulakis was an instinctive task for her Honour, and a task that was undertaken carefully and without any apparent failure to accord weight to relevant matters or other error.
More generally, we note that it was appropriate to have regard to the aggravating factor that the appellant committed the offence whilst incarcerated for similar offending. This is a significant aggravating factor, and underscores the need for personal deterrence: R v Ng [2012] WASCA 180 at [42] (offender on bail for other offences at time of offence). It is also a distinguishing factor with respect to Mr Poulakis.
It was also appropriate for the sentencing judge to take into account that the appellant's conduct formed part of a course of conduct (at [12] and [13] of the reasons), a course accepted by the appellant before the sentencing judge. It was accepted that the conduct relating to the discontinued charge for consignment 1 would be considered in sentencing the appellant with respect to consignment 2.
We have also had regard to statistics as to sentencing ranges from the Judicial Commission of New South Wales relied upon by the appellant, noting the guidance as to the assessment of other sentences provided by the plurality in R v Pham [2015] HCA 39; 256 CLR 550 at [28]. We have had regard to the sentencing cases referred to by the appellant collected at [41] above and to other cases to which the Crown referred in its written submissions, including Director of Public Prosecutions (Cth) v Englisch [2009] VSCA 71 and Siddiqi v The Queen (Commonwealth) [2015] NSWCCA 169. The appellant accepted that at least one of the cited cases (Shahbazi v The Queen [2016] VSCA 270) reflected a comparative sentence. The appellant also accepted on the appeal that statistics such as those provided and other sentencing cases do no more than provide general guidance. Further, it was accepted that having regard to those cases and those referred to by the Crown as a whole it cannot sensibly be said that the sentence was manifestly excessive. The concession was appropriate and we concur that regard to the relevant statistics and precedents does not in the circumstances of this case support a conclusion that the sentence imposed on the appellant was manifestly excessive. The sentence cannot properly be regarded as unreasonable or plainly unjust.
Conclusion
In our view there was a reasonable foundation for the difference in the comparative sentences imposed on Mr Poulakis and the appellant. The disparity in their respective sentences is explicable and does not give rise to an objectively justifiable sense of grievance. We would dismiss the appeal.
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Acting Chief Justice Elkaim, Justice Mossop and Justice Banks-Smith. Associate: Date: 14 February 2022 |
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