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Assam v R [2019] NSWCCA 12 (15 February 2019)

Last Updated: 15 February 2019



Court of Criminal Appeal
Supreme Court
New South Wales

Case Name:
Assam v R
Medium Neutral Citation:
Hearing Date(s):
17 October 2018
Decision Date:
15 February 2019
Before:
Bathurst CJ at [1];
Hoeben CJ at CL at [2];
Price J at [158]
Decision:
(1) Leave to appeal against sentence granted.
(2) The sentence imposed on Lyle Assam on 17 November 2017 is quashed and in lieu thereof, Assam is sentenced to imprisonment with a non-parole period of 6 years and 9 months, commencing 25 May 2016 and expiring 24 February 2023, with a balance of term of 3 years expiring 24 February 2026.
Catchwords:
CRIMINAL LAW – sentence appeal – pleas of guilty to two counts of supply a large commercial quantity of a prohibited drug – two counts of supplying a commercial quantity of a prohibited drug – two counts of supplying an indictable quantity of a prohibited drug – one count of recklessly deal with the proceeds of crime ($83,725) – use of undercover operative by police – applicant aged 27 with no previous criminal record – primary motivation greed – whether evidence supported finding by judge that applicant was a “highly trusted upper echelon participant” – whether parity principle observed – whether applicant had a legitimate sense of grievance having regard to the sentence imposed on Azhar Abdul – parity ground of appeal made out – appeal allowed – applicant re-sentenced.
Legislation Cited:
Cases Cited:
Category:
Principal judgment
Parties:
Lyle Assam – Applicant
Regina – Respondent Crown
Representation:
Counsel:
T Game SC/A Chhabra – Applicant
B Hatfield – Respondent Crown

Solicitors:
Hanna Legal – Applicant
Solicitor for Public Prosecutions – Respondent Crown
File Number(s):
2016/161105
Decision under appeal:

Court or Tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
17 November 2017
Before:
King SC DCJ
File Number(s):
2016/161105

JUDGMENT

  1. BATHURST CJ: I agree with the orders proposed by Hoeben CJ at CL and with his Honour’s reasons.
  2. HOEBEN CJ at CL:

Offences and sentence

  1. Lyle Assam (Assam), together with Azhar Abdul, Lopeti Joshua Matu and Lecx Purdie, appeared for sentence in the District Court at Gosford on 4 September and 17 November 2017 before his Honour Judge King SC. Each offender had pleaded guilty to participating to varying degrees in the supply of prohibited drugs.
  2. Assam was convicted of the following offences for which his Honour provided indicative sentences.

(a) Sequence 1: Supply large commercial quantity of a prohibited drug (1.039kg of MDMA) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMTA). The maximum penalty for this offence is imprisonment for life and/or 5000 penalty units. There is a standard non-parole period of imprisonment for 15 years. The indicative sentence was imprisonment for 5 years with a non-parole period of 3 years.

(b) Sequence 3: Supply a commercial quantity of a prohibited drug (221.1g of MDA) contrary to s 25(2) of the DMTA. The maximum penalty for this offence is imprisonment for 20 years and/or 3500 penalty units. There is a standard non-parole period of imprisonment for 10 years. The indicative sentence was imprisonment for 4 years with a non-parole period of 2 years and 6 months.

(c) Sequence 4: Supply indictable quantity of a prohibited drug (27.4g of amphetamine) contrary to s 25(2) of the DMTA. The maximum penalty for this offence is imprisonment for 15 years and/or 2000 penalty units. There is no standard non-parole period. The indicative sentence was imprisonment for 2 years.

(d) Sequence 5: Supply a large commercial quantity of a prohibited drug (2.515kg of MDMA) contrary to s 25(2) of the DMTA. The maximum penalty for this offence is imprisonment for life and/or 5000 penalty units. There is a standard non-parole period of imprisonment for 15 years. The indicative sentence was 8 years imprisonment with a non-parole period of 5 years and 6 months.

(e) Sequence 9: Supply a commercial quantity of a prohibited drug (151.95g of MDMA) contrary to s 25(2) of the DMTA. The maximum penalty for this offence is imprisonment for 20 years and/or 3500 penalty units. There is a standard non-parole period of imprisonment for 10 years. The indicative sentence was 3 years and 6 months imprisonment with a non-parole period of 2 years.

(f) Sequence 11: Supply indictable quantity of a prohibited drug (167.6g of cocaine) contrary to s 25(2) of the DMTA. The maximum penalty for this offence is imprisonment for 15 years and/or 2000 penalty units. There is no standard non-parole period. The indicative sentence was imprisonment for 3 years.

(g) Sequence 12: Recklessly deal with the proceeds of crime ($83,725) contrary to s 193B of the Crimes Act 1900 (NSW). The maximum penalty for this offence is imprisonment for 10 years. There is no standard non-parole period. The indicative sentence was imprisonment for 4 years and 6 months.

  1. In sentencing Assam for Sequence 5, his Honour was asked to take into account on a Form 1 the offence of possess a prescribed restricted substance (15ml of testosterone – Sequence 10) contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW).
  2. His Honour imposed an aggregate sentence of imprisonment for 11 years with a non-parole period of 8 years, commencing 25 May 2016 and expiring 24 May 2024, with a balance of term of 3 years expiring 24 May 2027.
  3. Assam was arrested and charged on 25 May 2016 and has remained in custody, bail refused, since that time. He pleaded guilty in the Local Court at Gosford on 24 March 2017 and was committed to the District Court at Gosford for sentence. He had no criminal antecedents and was aged 26 at the time of the offending and 27 at the time of sentencing.
  4. Assam relies upon the following three grounds of appeal:

Ground 1 ­­– It was not reasonably open for his Honour to find that Assam was “a highly trusted upper echelon participant”

Ground 2 – Assam has a legitimate sense of grievance having regard to the sentence imposed on Azhar Abdul

Ground 3 – Having found special circumstances, his Honour failed to give proper effect to the indicated departure from the “statutory ratio”

FACTUAL BACKGROUND

  1. In December 2015 NSW Police initiated Strike Force Bamberry to investigate Azhar Abdul’s supply of prohibited drugs. Police used an authorised undercover operative (UCO) to buy drugs from Abdul during this investigation. Abdul’s associates were identified as Matu and Assam.

DEPLOYMENT 1 – 26 February 2016

Supply large commercial quantity

3,4 – Methylenedioxymethylamphetamine (MDMA)

Abdul Sequence 15

  1. On 26 February 2016, Abdul entered the UCO’s vehicle and gave him a Blackberry device in exchange for $2,500. The device was provided to the UCO so he could communicate with Abdul’s drug syndicate about future drug supplies. (A Blackberry is a communication device with a secure email system which does not allow law enforcement authorities to intercept or monitor communications. Other features of Blackberries prevent law enforcement authorities downloading the content of the devices even after they are seized.)
  2. Abdul also supplied the UCO with 1,000 blue triangular tablets. The UCO gave Abdul $10,000 for the tablets. These tablets were later analysed and found to be MDMA. The tablets weighed 261.3 grams and had a purity of 16.5 per cent.
  3. Abdul told the UCO that when he knew that the UCO was going to become a regular client for more supplies, he would give him a better price. He said:
“But I guarantee, bro, the blue triangles. I’ve done f-----’ shitloads and everyone loves them. They’ve never had any complaints but if you do, if your boys don’t like them, bring them back and they’ll give you something else.”
  1. Abdul asked if the UCO would be requiring more than 1000 tablets in the future. He told the UCO he would use “drivers” in the future (the “drivers” were involved in the syndicate, being employed as delivery drivers). The UCO asked Abdul what quantity of tablets he had the capacity to supply to which Abdul responded that he could supply 50,000, 100,000 or “whatever”.
  2. Following the meeting, the UCO activated the Blackberry and noticed that one contact, “Smokey my supplier”, had been saved in the phone. The email address linked to this name was also saved on the phone.
  3. That night “Smokey my supplier” wrote:
“U have got a good supplier that can get anythink and the best quality word!!”.
  1. He directed the UCO to group the money in $1,000 lots with the windows on the notes all the same way for future exchanges. He also said:
“I’ll never see you again mate u will put your order in to me and my driver will see you bro I’m to flat out bro and that’s how I work bro trust me I don’t do small shit so I hope u don’t waste my time be safe ... PS rule number 1 EVER TALK ON PHONES ABOUT BISO YOU WILL COME UNSTUCK.”
  1. On 27 February 2016 “Smokey my supplier” wrote asking the UCO if he knew anyone who would want a kilogram of pure pseudoephedrine for $30,000. (Pseudoephedrine is a precursor used to manufacture methylamphetamine.) He also asked the UCO if he knew anyone who would take a kilogram of methylamphetamine.

DEPLOYMENT 2 – 4 March 2016

Supply large commercial quantity MDMA

Abdul Sequence 15; Matu Count 1

  1. On Tuesday 1 March 2016, the UCO asked for the supply of another “box” of the “triangles” on Friday afternoon. Abdul told the UCO he would supply two “boxes” (1,000 MDMA tablets per “box”) for $9,000 each, but only if the UCO was going to buy more the following week. The UCO agreed to meet Abdul’s driver on Friday afternoon.
  2. Abdul contacted the UCO again and asked if he wanted three “boxes” for $8,500 per box. The UCO said he was happy to take the two “boxes” for now. Abdul asked him if he could on-supply ounces or kilograms of MDA. The UCO indicated that he would prefer to talk about this once they had further established their working relationship.
  3. Abdul said:
“Ok bro if u can move it bro I’ll give you oz at a good price bro cracker m [MDA] too bro.”
  1. On Friday, 4 March 2016, the UCO attended the Shell Service Station at Kariong, where the exchange was to take place. Once there, he could not see the driver or contact Abdul on the Blackberry. The UCO rang Abdul on his mobile phone and Abdul said that the driver would be there in 15 to 20 minutes.
  2. About 20 minutes later, Matu drove into the service station. The UCO asked whether he should contact Matu or Abdul regarding future supplies to which Matu said:
“It’d be both, normally me but, ‘cause I’m his driver.”
  1. The UCO asked Matu whether he was in a position to talk about Abdul’s offers to supply MDA or pseudoephedrine to which Matu responded that everything would be organised between Abdul and the UCO and that he was merely the driver and did not know much about other “aspects of the trade”. Matu told the UCO that Abdul was his boss.
  2. When the UCO asked Matu what quantities of MDMA Abdul could supply, Matu replied:
“I wouldn’t even know that yet bro... This is probably my third week.”
  1. The UCO gave Matu $18,000 in exchange for 2,000 blue triangular tablets. The tablets were analysed and found to be 494.9 grams of MDMA. The tablets were packed in two packages of differing purity, being 16.5 per cent and 17 per cent.
  2. During this meeting, Matu sent messages via an encrypted Blackberry device to the UCO’s encrypted Blackberry. The messages say: “From: fitness guru” and identify the sending email address. Matu also told the UCO his mobile number.
  3. Matu left the UCO’s car and drove from Kariong to Gordon, where Abdul was waiting in his silver Ford Transit Van. Abdul entered Matu’s vehicle, holding a black coloured satchel bag. Matu drove away, returning a short time later, dropping Abdul back to his vehicle.

DEPLOYMENT 3 – 14 March 2016

Supply large commercial quantity of MDMA

Abdul Sequence 15; Matu Count 1

  1. On 8 March 2016, Abdul wrote to the UCO on the Blackberry checking he had been happy with the last supply and asking if he wanted another type of MDMA.
  2. On 9 March, Abdul messaged the UCO that he had put in an order that day. The UCO wrote back agreeing to buy another 2,000 tablets.
  3. Abdul replied:
“Can u move any think else iv got mad rack (Cocaine) high 80s? ... Mate iv got mad rack 87% best you’ll get atm bro as its so dry. Can do u a good price if your keen bro.”
  1. The UCO asked for his price and Abdul replied:
“5 packs 75ea ($7500 x 5) or otherwise min I can do is 2oz bro and there 82ea”.
  1. On the morning of 14 March 2016, the UCO messaged Abdul asking if he could purchase 1,000 MDMA tablets and two ounces of “rack” (cocaine). Abdul replied saying that each lot of 1,000 MDMA tablets would cost $9,000 and that each ounce of cocaine would cost $8,200. He told the UCO that when he built up trust, he would “look after him”. He said that he wished he had known the previous night and would have to see what was “in stock”.
  2. Abdul arranged for his driver to meet the UCO in Wahroonga and indicated the supply would cost $43,400.
  3. Abdul was ultimately unable to source the cocaine due to late notice, but said that he could deliver the cocaine the following day. This arrangement was not suitable to the UCO so they agreed that the supply would proceed as planned but 3,000 MDMA tablets only would be supplied.
  4. Later that day, the UCO waited in Wahroonga, but the delivery was late. He exchanged a number of Blackberry messages with Abdul, who told him that Matu would be the driver for the day and that Matu had to attend on him to pick up the drugs so that he could supply them to the UCO.
  5. Later the UCO messaged Abdul saying:
“I haven’t heard from ur mate.”
  1. Abdul replied:
“He’s not my mate bro he’s a driver”.
  1. Investigators followed Matu in his motor vehicle as he drove to Chatswood and met with Abdul. Matu drove back towards Wahroonga.
  2. As he was driving back, Matu messaged the UCO under the identity “Fitness Guru” to get a precise location as to where they would meet. When he arrived, Matu handed the UCO a McDonalds paper bag, which contained a number of other items of packaging, including two medium sized Glad resealable bags each containing numerous white tablets embossed “CK” and a kitchen wipe bound by elastic bands also containing white tablets embossed “CK”. The UCO gave Matu $27,000. The white coloured circular tablets embossed with “CK” were later examined and found to be 921.7 grams of MDMA. The three packages contained tablets of differing purity, the purities being 18 per cent, 20 per cent and 21 per cent.
  3. Matu returned to his own vehicle which he drove north, stopping in Gordon to meet with Abdul.
  4. On 14 March, Abdul asked the UCO if he was able to bring more customers to him. He said “The more people you bring to me the better I’ll look after you bro”.

DEPLOYMENT 4 – 22 March 2016

Supply commercial quantity of Cocaine

Abdul Sequence 17

Supply indictable quantity of Cocaine

Matu Count 2; Purdie Sequence 2

  1. On 17 March 2016, the UCO asked Abdul for three ounces of cocaine and one ounce of methylamphetamine. Abdul asked if he wanted “sand” methylamphetamine or “crystal” methylamphetamine. The UCO asked him to bring half an ounce of each. Abdul asked the UCO if he again wanted 3,000 MDMA tablets but the UCO said he did not want them this time. Abdul told the UCO that the methylamphetamine would be $2,500 for the first supply and “when yous grab more I can do a better price.” He expressed disappointment that the UCO had not asked for at least 1,000 MDMA tablets when he understood the agreement was for an ongoing weekly supply of MDMA. Abdul told the UCO the cocaine would be $8,000 per ounce.
  2. On 21 March 2016, Abdul contacted the UCO to say his supplier would not sell one ounce of methylamphetamine as it was too small. Abdul said that the best he could do would be five ounces or ten ounces. The UCO said he wanted to start small with two ounces first. He said that if Abdul could not supply this, then he would not purchase the methylamphetamine. Abdul agreed to supply three ounces of cocaine, but said the methylamphetamine would “have to be next time”. When the UCO asked him if he needed more notice, Abdul said:
“Would help bro 2 days min put your order in on Friday bro next time if you want it all on Tuesday.”
  1. On 22 March 2016, while the UCO was negotiating a place and time to meet with Abdul’s driver, Abdul forwarded to him a message from “Thekid13” on the Blackberry, saying it was a message from his “factory man”. The message said that the drugs were double vacuum sealed so drug dogs would not find them. “Thekid13” advised caution as the dog squad had been out during the week.
  2. At about 12.30pm on 22 March 2016, the UCO parked in the Kariong Shell Service Station. The Matu Blackberry messaged him to say that he would be late to the meeting as he was just waiting for the drugs to arrive. At 12.31pm investigators saw Matu drive to Fox Close, Kariong. At 12.49pm two males driving a Mitsubishi Mirage (registered to Lexc Purdie) drove into Fox Close, parking directly opposite Matu’s car. The passenger in Purdie’s car got out of the car and Matu sat in the passenger seat. Investigators saw that the driver of Purdie’s car was an 18 to 25 year old Caucasian male with a fair complexion, shaved head and a tattoo on the right side of his neck.
  3. After sitting in the vehicle for a short time, Matu got back into his own car and drove directly to the Kariong Shell Service Station, arriving at 12.50pm and supplying the UCO with a vacuum sealed plastic bag containing three vacuum sealed packages of white powder. He told the UCO to be careful as he had seen some police around. The UCO handed Matu $24,000 in Australian currency.
  4. When Matu did not stay as long as he normally did during exchanges, the UCO asked if he was in a hurry. Matu said “Now I’ve gotta go see him, bro you know what I mean.” He left the service station at 12.57pm. The substance supplied was later found to weigh 87.3 grams. Scientific testing revealed it was not in fact a prohibited drug.
  5. Investigators saw Matu leave the Service Station to immediately meet up with Purdie’s vehicle. They travelled in convoy for five streets. They stopped at 1.01pm where the passenger in the vehicle got out of the car, leant into Matu’s open front passenger window, then returned to Purdie’s car. Purdie’s car drove off returning to Linton Street, Stanhope Gardens.
  6. Investigators took a photograph during their surveillance of the driver of Purdie’s vehicle. The photograph does not clearly depict the driver, but it does show him to have a small tattoo below his left ear, which is a picture of a spider.

DEPLOYMENT 5 – 6 April 2016

Supply large commercial quantity of MDMA

Abdul Sequence 15; Matu Count 1

Supply commercial quantity of Cocaine

Abdul Sequence 17Supply indictable quantity of Cocaine

Matu Count 2

  1. On 24 March 2016, Abdul told the UCO he could supply the two ounces of MDA the UCO had previously sought, telling him it was “in stock”.
  2. The UCO complained that the cocaine had been terrible quality and that he would not bother buying cocaine or MDA from him further, but would continue to buy MDMA. Abdul was surprised and said that he would not use the contact who supplied the cocaine again. He offered to give the UCO samples of the other cocaine and said he was confident that his MDA would not disappoint. Abdul later indicated that other customers were saying that the cocaine was terrible and that he was going to have a meeting with the cocaine supplier to discuss it. He said he had been trying a new supplier out and that he was sorry.
  3. On 4 April, the UCO ordered 4,000 MDMA tablets from Abdul, agreeing to pay $36,000. As they were organising the meeting, Abdul messaged:
“I want my driver to see your licence tomorrow bro I just worried you’re a cop bro its been playing on my mind this hole time bro.”
  1. At about 7am on 6 April 2016, the UCO asked for a further 1,000 MDMA tablets, but Abdul was not able to supply them on such short notice. Abdul told the UCO he would replace the previous bad cocaine.
  2. At about 6pm the UCO and Matu exchanged a number of messages as they tried to locate each other to conduct the supply. Matu was using his “Fitness Guru” email identity on the Blackberry. In one of the messages, Matu said:
“Hold up I’m on that rd now? Unless u wanna do it at the servo bro big deal we doing.’”
  1. One minute later, Matu messaged the UCO to say he had seen him. (These messages and others like it show that Matu was using his own Blackberry under the name “Fitness Guru” at this time.)
  2. Matu met with the UCO and got into his vehicle before they drove around the Kariong area. While they were driving, the UCO gave Matu $36,000. Matu showed the UCO a black shoe box and said that it contained an “occa” (an ounce of cocaine). He said the UCO had not been charged for it.
  3. The UCO said:
“Because you know what happened last time? Did he explain to you?’”
  1. Matu replied:
“I don’t really get told much info ... but he said ... something happened.”
  1. The black shoe box contained some packing paper and a tied plastic freezer bag containing 28 grams of cocaine with a purity of 21 per cent. Also amongst the packaging were two plastic shopping bags, one grey and one white. Inside these bags, two plastic resealable “Multix” bags held a number of blue triangular tablets. The tablets were later analysed and found to be 1.01 kilograms of MDMA. The two packages contained tablets of differing purity, i.e. 16.5 percent and 15 per cent.
  2. After the drug exchange, the UCO was driving Matu back to his vehicle when Matu waved to the occupant of a white Jeep Wrangler. The UCO said:
“Was that Abdul there?”
  1. Matu replied:
‘Yeah, nah nah nah that’s the Boss Boss. All right brother, I’ve got to go bro.’
  1. At 6.17pm, Matu’s vehicle drove into Fox Close, Kariong, a short street that ends in a cul-de-sac. The white Jeep Wrangler also drove into Fox Close. Ten minutes later at 6.27pm, both vehicles exited Fox Close together and travelled in different directions. Matu drove towards the freeway and the Wrangler drove to Horsfield Bay.
  2. At 6.28pm, the UCO received a message on his Blackberry from “Fitness Guru” saying:
“Hey bro, its reds partner just met up with driver with the rack [cocaine] bro I dont know if red told you but I told him too let you know we seen a new guy for it and he pretty much snipped us so what I wanna do is off my own back is each time we meet or whenever I make enough to give you the three occas [ounces] so I owe you for another 2 occas I was hoping you’d be able to fix your mate up and then go from there and hopefully he’s keen to grab 3 a week again or if your happy with that occa and next time you wanna load up and grab 3 you could pay for 2 and ill fix another one then and 1 more time after that because what happened to you is not far and I am having dramas with the guy about it now.
That’s not what were like at all so we were very disappointed we just trusted this fella to much from the get go.
Any dramas let us know
We also have cheap m [MDA] if you grab 5 packs for like 2200 each
And are soon to be getting good pot.”
  1. The UCO understood the reference “Red’s partner” to mean that the person messaging was Abdul’s business partner. Abdul’s email address on the Blackberry was “red-dynamite”.

DEPLOYMENT 6 – 11 April 2016

Supply large commercial quantity of MDA

Abdul Sequence 21

  1. On 8 April 2016, the UCO initiated a meeting with Abdul and his “business partner” to discuss further drug supply. On 10 April 2016, Abdul told the UCO he would meet him at “Grill’d”. He told the UCO his business partner was not able to come. He said he had two ounces of “M” available and asked if the UCO would take them or just a “tester”. The UCO agreed to take a tester. On 11 April 2016, Abdul met with the UCO in Chatswood. The UCO asked Abdul how much MDMA he could supply. Abdul replied:

“Oh, really as much as you, you need, really, yeah keys [kilograms].”

  1. The UCO told Abdul about the Blackberry conversation he had on 6 April with Abdul’s business partner who was using the email address for “Fitness guru”. The UCO expressed concern that the business partner may be trying to “cut Abdul out”. Abdul said:
“Yeah, no, no, no, no, he’s sweet. He’s sweet. If he talked to you it’s sweet.”
  1. Abdul told the UCO that he was going away to Bali for two weeks. During this meeting, Abdul handed the UCO a small plastic bag containing 0.2 grams of MDA with a purity of 66 per cent.

DEPLOYMENT 7 – 4 May 2016

Supply commercial quantity of Cocaine

Abdul Sequence 17

Supply large commercial quantity of MDA

Abdul Sequence 21

Supply large commercial quantity of MDMA

Abdul Sequence 15; Assam Sequence 1

  1. On 13 April 2016, Abdul messaged the UCO asking for 2 days’ notice for any MDMA orders. He told him to “let him know” if he needed more than 5,000 tablets. He said he could get more of the last supply of cocaine.
  2. On 15 April 2016, Abdul encouraged the UCO to buy 10,000 MDMA tablets. He said he could get two different types for $8,000 per 1,000 tablets and if the UCO was to keep buying it every week or every second week, he could do a better price. He also said he liked to do 5,000 and 10,000 capsules of MDA rather than one or two ounces. On 18 April 2016, Abdul again encouraged the UCO to buy 10,000 MDMA tablets.
  3. On 28 April 2016, Abdul told the UCO that his trip (to Bali) was going well. He said that he had the MDA and better cocaine now. The UCO replied to say that he would take 4,000 MDMA tablets. He said he would take five ounces of the MDA and also some cocaine. He referred to the prior conversation where the business partner said he would repay the two ounces of cocaine that was owed and suggested that he would take three ounces of cocaine and pay for two. Abdul agreed. He told the UCO that the MDMA was really good at the moment, the tablets were white “CKs” (the stamp which is on the tablet) and everyone was loving them.
  4. On 1 May 2016, the UCO received a message from Abdul’s email ID “Smokey my supplier” saying:
“Hey bro its reds partner ill send you a bb [Blackberry] to talk to red on he’s back in aus.”
  1. The UCO wrote to Matu’s email address understanding that he was conversing with Abdul. He said:
“Your partner told me to msg this instead of your other one.”
  1. He put in a drug order with Abdul, who told him the total cost would be $64,000 ($36,000 MDMA; $11,000 MDA; $17,000 cocaine and one ounce of cocaine for free).
  2. The UCO agreed and asked “Your driver going to have a different bb?” Abdul replied: “Nah, probs this one bro.”
  3. On 2 May 2016, Abdul, still using Matu’s Blackberry, told the UCO that he would have to meet at St Ives rather than the Central Coast as his driver was away.
  4. On 3 May 2016, the UCO received a message from “Smokey my supplier” saying:
“Hey bro its azs partner I was wondering if you could do anything with goey ? We have some really good stuff at the moment ive told him to let you know but don’t know if he has.”
  1. The UCO replied:
“Hey bro. I can see if my people like it. I’m seeing az tomorrow talk to him and tell him to bring a sample bro.”
  1. “Smokey my supplier” said;
“Sweet bro I’d say he will be able to organise abit in time and he also told me you had a 10K rounders [MDMA] 10oz m [MDA] and 10oz rack [cocaine] or something coming up soon is that still happening?”
  1. The UCO told “Smokey my supplier” he would talk with “Az” (Abdul) the following day about it.
  2. About 5.45pm on 4 May 2016, Abdul used Matu’s Blackberry to tell the UCO that he would meet him in St Ives. (This location was a few hundred metres from Abdul’s residence.)
  3. About 6pm on 4 May 2016, Abdul met the UCO at that location and got into his vehicle. Abdul handed the UCO a black coloured sock which contained a kitchen paper towel and five small glad-wrapped parcels. The first three glad-wrapped parcels of powder were 84 grams of cocaine. The cocaine bags had differing purities. Two parcels had purities of 26 per cent and the third parcel’s purity was 25.5 per cent. The final two glad-wrapped objects were 139.4 grams of MDA, the parcels having purities of 66.5 per cent and 66 per cent.
  4. The UCO handed Abdul $64,000. Abdul said he was still waiting on the MDMA to be delivered, and took the correct payment for the MDA and the cocaine, returning the remaining money to the UCO.
  5. Abdul told the UCO that Matu was on holidays. Abdul said he had been holidaying in Bali with “a few of the boys, like, four of my mates ... my other partner flew over too.”
  6. The UCO told Abdul that he was finding it difficult to determine who was using which Blackberry. Abdul said he would be using Matu’s Blackberry. The UCO asked Abdul if his business partner had filled him in on the things the UCO had discussed. Abdul said:
“He told me pretty much everything. He just said that he asked you about somethin’ about when you’re gunna grab the 10. And I just told him, bro, that you got this thing going south and then you’ve got this thing up north and you’ll be getting’ a few more. And then, yeah, that’s all I’ve really told him, and he just said, well can you, like ask him if he can move pot, can he move this, you know.”
  1. The UCO asked if the person delivering the MDMA was the business partner.
  2. Abdul said:
“Nuh, It’s just my, like just a rounder [MDMA] man.”
  1. A short time later, Abdul said the tablets had arrived and left the UCO’s vehicle. He entered a white Ford Ute registered to Assam.
  2. When Abdul returned, the UCO gave him the remaining money and Abdul gave him a brown paper bag containing a take-away cardboard box with a kitchen towel inside and small triangular tablets underneath it. The tablets were later analysed and found to be 1.039kg of MDMA with a 16 per cent purity.
  3. Abdul said “Mate, you’re not setting me up, are you?” He did not allow the UCO to check what was in the bag properly and left the vehicle in a hurry.
  4. At 7.04pm, the UCO messaged Matu’s Blackberry asking if Abdul got home okay. Abdul replied at 7.09pm “You’re a cop”. At 7.10pm Abdul wrote “You trying to set me up”. At 7.17pm he wrote “I don’t trust you at all ... talk to my mate I’m done cya”.
  5. At 8.37pm, someone using the Blackberry of “Smokey my supplier” wrote “Hey brother howd things go today how was new rack [cocaine]?” At 8.47pm, the UCO replied:
“Bro. Azs paranoia is turning business into a disaster. He has disrespected me too many times ... I wont put up with that I told him I have bigger business coming in the next few weeks. If that is to happen You need to speak with to him ... Business can be good except for azs paranoia.”
  1. “Smokey my supplier” said:
“What is he saying why is he disrespecting everything went fine didn’t it ? And yous are happy coin was there we are happy. I will get someone else to come next time so there is no disrespect when you put order in let me know what it is I will sort can even bring myself if you want...The m [MDA] is gonna be better once again so will rack... with the rounders [MDMA] was a struggle to get at that price for you because everyone was out. So the next order is the one I was talking bout the other day? So what happened today but? You never told me .... Message me what happened today so I can talk to him and let him know what he’s doing wrong ok than you talk soon next time I will have different rounders for you.”

DEPLOYMENT 8 – 25 May 2016

Supply commercial quantity of Cocaine

Abdul Sequence 17

Supply indictable quantity of Cocaine

Assam Sequence 11

Supply large commercial quantity of MDA

Abdul Sequence 21

Supply commercial quantity of MDA

Assam Sequence 3

Supply indictable quantity of amphetamine

Abdul Sequence 13; Assam Sequence 4

Supply large commercial quantity of MDMA

Abdul Sequence 15; Assam Sequence 5

  1. About 4.20pm on 9 May 2016, the UCO received a Blackberry message from someone using the email for “Smokey my supplier”. It said:
“Hey mate its smokes partner just seeing updates how did you go?”
  1. The UCO said:
“Hey bro. All good brother everyone is happy I should have firm numbers for u in the next few days but it will be a big order ...”
  1. “Smokey my supplier” replied:
‘Ok so u won’t need it for a few weeks what’s a big order to you bro 10s or ???
  1. On 10 May 2016 “Smokey my supplier” messaged:
“Hey mate just wanted to know. Roughly what u think u will want just so I can sort it out before my boys go away could u please let me know asap so u don’t miss out thanks.”
  1. The UCO replied:
‘Hey bro. Just locked it in. It’ll be 10 box rounders. 6oz rack and 8oz m. $??’
  1. “Smokey my supplier” wrote:
“Bill: Rounders [MDMA] 10 x 8.50 ea = 85k; M. [MDA] 8 x 2200ea = 17600; Rack [cocaine] 5 x 8ea = 40k; Total 142600 Please confirm so I process the order Thanks.”
  1. The UCO asked if there would be an extra ounce of cocaine for free. (This would be the last ounce of cocaine to repay the UCO for the three ounces which had no cocaine in them.) The person using the Blackberry in “Smokey my supplier’s” name confirmed there would be a free ounce of cocaine.
  2. On 17 May 2016, “Smokey my supplier” wrote:
“Hey bro, Did you want me to put in a oz of gas as well so u can show your boys bro? Its dynamite like the m they will love it.”
  1. The UCO agreed to buy a single ounce of “gas” (amphetamine) for $3000.
  2. On 22 May 2016, the UCO messaged “Smokey my Supplier”:
“Brother. On Wednesday I don’t mind if az is there but can u be there because he is too paranoid for me. Ill meet u at Kariong at 11am.”
  1. “Smokey my supplier” replied:
“I should be there bro I got a bit on that’s all don’t think az will be there gear is ready bro have you got paper [money] ready and counted into 1k bundles then bands around every 10k how we gonna do this drop do you have any spots?”
  1. On 25 May 2016, “Smokey my supplier” messaged:
“Bro I got called to another big job today bro so I won’t be there I’m sending the driver there make sure you have the 146600 there ready he will check it an give it to him we will catch up for a coffee in the next few days to talk about future business thanks.”
  1. Later that day, the Blackberry device in Matu’s name sent a message to the UCO saying:
“Other driver is on his way will be there at the same time everything is there don’t talk much with driver just hand him money let him know the hole 146600 is there and tell him you gotta go less the driver knows the better if he ask questions tell him to speak to me its az. He shouldn’t be asking questions if he does let me know. If you have anyu questions ask me on here thankyou.”
  1. That same day, Assam drove his Ford Falcon utility to a lookout in Kariong, where he entered the UCO’s vehicle and supplied him with 10,000 MDMA tablets, eight ounces of MDA powder, six ounces of cocaine and one of amphetamine.
  2. The UCO and other police arrested Assam while he was still in the UCO’s vehicle.
  3. The drugs supplied were analysed and later found to be:
  4. At around this time, police executed a number of simultaneous search warrants on the premises of Abdul, Assam, Matu and Purdie

Abdul’s arrest and search

Supply large commercial quantity of MDMA

Abdul Sequence 15

Supply commercial quantity of Cocaine

Abdul Sequence 17

Supply large commercial quantity of MDA

Abdul Sequence 21

Possess Testosterone

Abdul Sequence 22 (Form 1)

  1. At 11.45am on Wednesday, 25 May 2016, police searched premises at Raleigh Crescent, St Ives Chase, the home of Abdul. There they found the following items in his bedroom:
  2. Abdul was arrested and taken to Hornsby Police Station. He was interviewed by police that day but made no admissions and told them that neither of the two Blackberries he had with him were his. He told police that he worked full time for Master Quality Shades and earned about $800 a week.

The Assam’s arrest and search

Supply commercial quantity of MDA

Assam Sequence 9

Knowingly reckless as to dealing with proceeds of crime

Assam Sequence 12

Possess Testosterone

Assam Sequence 10 (Form 1)

  1. At 11.55am on 25 May 2016, police searched premises at Tapi Glen Street, St Clair, the residence of Assam.
  2. There they found:
  3. Assam, who had been arrested earlier in the day at Kariong lookout, was interviewed by police. He told them that he had been working as an electrician for the past nine years. He admitted that he was the driver on 4 May 2016 when he delivered MDMA to Abdul for supply to the UCO at St Ives.

Sentence proceedings – Assam

  1. A considerable amount of written and oral evidence was placed before the Court in the sentence proceedings. Assam’s father gave evidence on sentence but Assam did not. Assam has never been married and has no children. He had no previous criminal history. While in custody, since his arrest on 25 May 2016, he had not breached prison regulations. He has never had, nor does he have, any mental health issues. Assam began drinking at 13, with weekend binges and commenced using cannabis at about the same time. By the age of 17 he was socialising at Kings Cross and using ecstasy while working as a disc jockey. His use increased to three or four times per week by the time he was aged 21 or 22, by which time he was also using cocaine. He commenced using anabolic steroids and growth hormones. His use of illicit substances impacted adversely on his work as an electrician, but up to the age of 24 he worked primarily for his father. He had never undertaken any alcohol or drug rehabilitation.
  2. He was born in South Africa and came to Australia when he was aged two. His parents separated when he was five or six. He has a number of half brothers and sisters, each of his parents having had further children. He lived with his mother and stepfather until he was aged twelve, before moving to live with his biological father. His schooling was uneventful and he left school in Year 11 to commence an electrical apprenticeship with his father. He has not completed all the required subjects. From the age of 17 to 24, commenced living with friends in Vaucluse. He was aged 26 at the time of the offending and 27 at the time of sentence.
  3. Assam said that he was paid in cash which he used to support his lifestyle. He used to store illicit drugs and money at his home and make deliveries. He told Dr Adams, psychiatrist, that he had accepted responsibility for his offending and saw his arrest as breaking his previous downward trajectory and cycle of abuse.
  4. His father was supportive of him, although he realised that Assam had been deceiving him as to what he was doing for a number of years. His father perceived himself as not having provided sufficient supervision or direction to him. His father regularly visited while he was in custody and was determined to provide employment for him in the electrical trade when he was released.
  5. His Honour noted that while Assam’s referees thought well of him, and had visited him in custody, and variously indicated that he had expressed remorse and acceptance of responsibility, only one or two of them were aware that he had used prohibited drugs on weekends and at parties for a number of years.
  6. When arrested, Assam admitted to being the driver on 4 May 2016, and delivering MDMA to Abdul for the supply to the UCO. The quantity then supplied to the UCO was 1.03 kilograms of MDMA, i.e. twice the threshold that qualifies as a large commercial quantity (i.e. 500 grams).
  7. In relation to Assam’s role in the drug supply syndicate, his Honour made the following findings:
“ROLE
On 4 May 2016 and 22 May 2016 the offender participated in the supply of substantial quantities of prohibited drugs by delivering them to Abdul or the UCO. On 25 May 2016, he delivered to the UCO four different prohibited drugs, MDA, MDMA, amphetamine and cocaine. The amounts delivered, being 2.515 kilograms of MDMA, are more than five times the threshold of 500 grams for a large commercial quantity. The amount of 221.1 grams of MDMA is almost twice the threshold quantity of a commercial quantity, being 125 grams. The amphetamine was 27.4 grams, which is more than five times the threshold for an indictable quantity of 5 grams. The 167.6 grams of cocaine is more than 55 times the deemable quantity of 3 grams, more than 33 times the indictable quantity ...
On 4 May 2016, Abdul indicated to the UCO that he was still waiting for the MDMA to be delivered, and when asked if the person delivering was his business partner, he replied, “Nah, it's just my, like just a rounder (MDMA) man.” The MDA supplied by Assam that day was 4000 tablets for $36,000 received from the UCO. From this it can be inferred that Assam was either Abdul’s supplier of MDMA or at least a part of the supply chain to him. Assam was so intimately involved with Abdul that he was trusted to make the delivery of the smorgasbord of drugs on 25 May 2016, and also to collect an expected payment of $146,600 from the UCO.
When Assam's premises were searched that day, located was 151.95 grams of MDA (more than 30 times the indictable quantity and more than half the range covered by the indictable quantity). In addition, Assam was recklessly dealing with the proceeds of crime, being $83,725, which was separate to the $146,600 he was expected to receive on 25 May.”
  1. His Honour had regard to the substantial number of other prohibited drugs found at Assam’s premises. His Honour noted that although Assam told Dr Adams that he was being paid for his participation in storing and delivering prohibited drugs, he did not say how much he received for that participation, whatever his role was in the drug distribution syndicate.
  2. His Honour rejected the proposition that Assam was simply a “driver”. His Honour rejected the proposition that Abdul’s final instructions to the UCO about not talking to the driver confirmed that Assam’s role was limited in that way and that he was low in the hierarchy. Instead, his Honour found:
“I do not accept that submission. The material before the Court indicates that Abdul was an aggressive empire builder with a touch of paranoia as to being detected, and ensuring that his UCO customer would be attracted to deal with him rather than anyone else. It is entirely normal in those circumstances that he would want to limit information exchanged between Assam and the UCO which might affect his trade or the price or allow being undercut, let alone for others to have full detail of how he operated his commercial venture.
Despite the instruction to the UCO as to any questions Assam might ask, it is clear from the events, quantities of drugs and money previously referred to that Assam was not some lower echelon flunky, gofer or driver, he was a highly trusted upper echelon participant and member of a very substantial drug distribution enterprise.”
  1. His Honour was prepared to accept that Assam had some remorse and contrition. Having regard to his comparative youth at the age of 27, his Honour found that there was some prospect of him not re-offending if he addressed his drug abuse problems. Nevertheless, his Honour regarded the prospects of rehabilitation as “guarded”.
  2. His Honour regarded each of the offences with which Assam was charged as being “at least within the mid-range of objective seriousness for offences of the individual nature particularly when considered in the overall context of his conduct”.
  3. Because of his early plea of guilty, his Honour allowed a discount of 25 per cent. This, of course, was applied to the indicative sentences, not to the aggregate sentence.
  4. His Honour noted that the sentence to be imposed on Assam must reflect the objective seriousness of the offending and reflect the need for general and specific deterrence. His Honour noted the requirement that the sentence meet the fundamental purpose of punishment and the protection of society. While not indicating how he had done so, his Honour stated that he had taken into account the concepts of parity and totality. At the end of the sentence judgment, his Honour made the following finding in relation to all of the offenders:
“In respect of each of the offenders, it will be apparent that I have found, particularly having regard to their respective ages and their drug problems, special circumstances as indicated by both the indicative sentences and the actual term of imprisonment imposed as an aggregate sentence. In each case I have reduced the non-parole period of the actual sentence to provide for a longer period of parole.”

THE APPEAL

Ground 1 ­– It was not reasonably open for his Honour to find that Assam was “a highly trusted upper echelon participant”

  1. Assam noted that he was convicted of supply offences constituting Deployment 7 Sequence 1) and Deployment 8 (Sequences 3, 4, 5 and 11). Deployment 7 involved him delivering MDMA to Abdul which Abdul then supplied to the UCO. Deployment 8 involved Assam delivering quantities of four different drugs to the UCO and that delivery was arranged by and at the direction of Abdul. Assam noted that he was also convicted of offences arising from the execution of a search warrant at his home. Those offences were deemed supply of MDA (Sequence 9) and recklessly dealing with the proceeds of crime (Sequence 12).
  2. Assam submitted that against that background of offending, it was not reasonably open to his Honour to find that he was “a highly trusted upper echelon participant” in the criminal syndicate. Assam submitted that this finding was inconsistent with his Honour’s finding that Abdul “was an aggressive empire builder” and wanted to limit the information exchanged between Assam and the UCO. Assam also relied on the statement by Abdul to the UCO that he (Assam) was not Abdul’s “business partner”.
  3. Assam submitted that there was no dispute that Abdul trusted him to the extent of allowing him to engage in Deployments 7 and 8, which involved delivering a large quantity of drugs and taking possession of a substantial sum of money. He submitted that nevertheless, Abdul’s efforts to ensure limited interaction between him and the UCO made it plain that he was not an upper echelon participant in the criminal syndicate. Assam noted that any finding adverse to him had to be made to the standard of beyond reasonable doubt.
  4. Assam submitted that the agreed facts did not suggest that there was any regular communication between Abdul and Assam, or any direct communication between him and the UCO, other than the handover of drugs on Deployment 8. Assam submitted that there was no evidence that he was involved in negotiating quantities or prices for the prohibited drugs. He submitted that he had no managerial function within the syndicate, such as giving directions, co-ordinating drivers, generating further business and distributing encrypted communication devices.
  5. Assam noted the Crown’s acceptance at first instance that he was not the business partner of Abdul.

Consideration

  1. It is trite to observe that it is for the sentencing judge to determine the facts upon which an offender is to be sentenced. This Court’s authority to intervene in fact finding is dependent upon the demonstration of error. To demonstrate error, it must be established that the finding was not open to the sentencing judge. It is not a matter of this Court substituting its own findings for those of the sentencing judge. Of course, findings adverse to the offender, over and above the elements of the offence, must be established beyond reasonable doubt.
  2. The finding sought to be impugned is that set out at [123] hereof. For the reasons which follow, I am not persuaded that his Honour erred in the finding which he made.
  3. Assam supplied 4,000 MDMA tablets on 4 May 2016 for $36,000. From that it can be inferred that he was “either Abdul’s supplier of MDMA or at least part of the supply chain to him”. Importantly, Assam was so “intimately involved with Abdul that he was trusted to make the delivery of the smorgasbord of drugs on 25 May 2016 and also to collect an expected payment of $146,600 from the UCO”.
  4. In addition to the offences falling within Deployments 7 and 8, Assam was being sentenced for having more than 30 times the indictable quantity of MDA in his possession, referable to Sequence 9. Assam was also being sentenced for recklessly dealing with $83,725, which was additional to the purchase price for the transaction on 25 May 2016. During the execution of the search warrant at his residence, police located other indicia of supply, being a Blackberry mobile phone, a note pad with names and numbers and a vacuum sealing machine with plastic film.
  5. It is clear from that undisputed evidence that the position of Assam in this drug supply enterprise was substantially above that of a driver. On one occasion at least, he was supplying pills for Abdul and had the responsibility of collecting, delivering and holding large sums of money. In that regard, the motivation behind Abdul’s warning to the UCO not to engage with him is at best ambiguous. Rather than indicating the Assam’s subordinate position, it could equally have indicated that Abdul saw Assam as something of a threat or rival within the syndicate.
  6. Given the responsibility, which he clearly had in relation to the supply of pills and for large sums of money, Assam’s position well justified his Honour’s characterisation that he was a “highly trusted upper echelon participant”. This ground of appeal has not been made out.

Ground 2 – Assam has a legitimate sense of grievance having regard to the sentence imposed on Azhar Abdul

  1. Assam submitted that the criminality and objective seriousness of the offending, as between him and Abdul, was substantially different with Abdul being the more serious offender. This, Assam submitted, was not reflected in their respective sentences.
  2. The findings of the sentencing judge were that there was no evidence of anyone more senior or in control of arrangements than Abdul. It was Abdul who acted as the “entrepreneurial spruiker” who negotiated prices, quantities and offered discounts for bulk or set weekly commitments. It was Abdul who tried to expand the enterprise by offering drugs, which had not been requested by the UCO. It was Abdul who praised the quantity of what can be supplied and its quality. It was Abdul who knew what drugs were available for sale and when they could be supplied. His Honour characterised Abdul as the “entrepreneurial force and prospective empire builder utilising the services of others to make deliveries. His role was clearly not as some subservient or junior partner”.
  3. Abdul’s plea of guilty in respect of the offence of knowingly direct the activities of a criminal group was an acknowledgement of his senior controlling role.
  4. Assam submitted that there was no material difference in his and Abdul’s subjective cases. Assam was 26 years old at the time of offending and 27 at the time of sentence whereas Abdul was aged 20-21 at the time of offending and 22 when sentenced. Assam submitted that Abdul’s relatively young age did not constitute a point of difference because there was nothing immature, impulsive, or emotional about Abdul’s offending. Assam submitted that Abdul’s behaviour was sophisticated and inherently adult-like. He conducted himself as a well-developed and capable adult.
  5. On that issue, Assam relied upon the decision of Thammavongsa v Regina [2015] NSWCCA 107 where Bellew J (Simpson and R A Hulme JJ agreeing) found that there was no causal connection between the offender’s relative youth and his offending:
“95 ... When viewed as a whole his conduct was not impulsive. His behaviour did not reflect emotional immaturity, nor did it reflect a less than fully developed capacity to control impulses ... On the contrary, the applicant’s offending was the culmination of a series of considered and deliberate decisions. It was accompanied by a statement which was inherently provocative. That statement, the applicant’s admitted anger at the time of firing the weapon, his assault of the deceased by kicking him (at a time when he was trying to regain his feet after being shot), and the statement which was made immediately following that assault, reflected an apparent desire on the part of the applicant to demonstrate his “superiority” over those in the opposing group. None of that was immature. It was adult like offending.”
  1. Assam noted that neither his nor Abdul’s moral culpability was materially impaired by a mental health condition or traumatic background. Assam had no criminal history and Abdul a limited and irrelevant criminal history. Each entered pleas of guilty to their respective charges in the Local Court and received the same discount on sentence for their guilty pleas.
  2. Assam submitted that despite those considerations, he received a sentence of imprisonment which differed only slightly from that imposed on Abdul, i.e. imprisonment for 11 years with a non-parole period of 8 years, compared to Abdul’s sentence of imprisonment for 12 years and 6 months with a non-parole period of 9 years.
  3. Assam accepted that the question of parity was complicated by differences in the number of charges and in the charges themselves. On that issue, Assam made the following submissions based on a comparison of their objective cases.
  4. Assam submitted that by contrast, he ultimately attended two drug supplies, three weeks apart, as a delivery person. Assam submitted that while his criminality was greater than that of a mere driver, given the offences arising from the search of his home, his offending, criminality and role were substantially lower than Abdul’s.
  5. Assam submitted that while the aggregate non-parole period and head sentence imposed on him were less than those imposed on Abdul, the difference between the outcomes did not reflect the greater difference in offending and their respective criminal acts. Assam submitted that the circumstance that he had a higher number of charges (having not bundled the supply of each type of drug into one offence) does not distract from the parity principle.
  6. The Crown submitted that there was sufficient disparity between the sentence imposed upon Assam and that imposed upon Abdul so as not to give rise to a parity point. The Crown submitted that while it accepted that parity as a ground of appeal may apply in cases where co-offenders are not convicted of the same offence, there were significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who had been charged with different offences. The Crown submitted that in sentencing Assam and the co-offenders at the same time, the sentencing judge made assessments of the relative objective and subjective factors for the purpose of passing sentence. The Crown submitted that what Assam was seeking to challenge under this ground was the discretionary assessment made by his Honour of those matters.
  7. The Crown submitted that his Honour was clearly mindful of the different offences faced by each of the co-offenders and the role played by each, and paid close attention to their subjective cases. The Crown submitted that his Honour recognised the distinction between the roles of Abdul and Assam, and made sufficient allowance for this differentiation in the sentences imposed.
  8. The Crown submitted that while it was proper for his Honour to decline to give Abdul much benefit on account of his youth due to the nature of his conduct, this did not translate into a positive finding for Assam, who, at 26 years, was not entitled to any leniency based on his age.

Consideration

  1. The arguments put forward by Assam under this ground of appeal are compelling. The principles regarding parity of sentencing were recently set out by R A Hulme J (with whom Beazley P and Button J agreed) in Fenech v R [2018] NSWCCA 160 at [29]- [33]:
“29 A succinct statement of the parity principle may be drawn from the joint judgment of French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28]:
“Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’ [Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 at 610 per Mason J]. It finds expression in the ‘parity principle’ which requires that like offenders should be treated in a like manner [Leeth v The Commonwealth (1992) 174 CLR 455; [1992] HCA 29 at 470 per Mason CJ, Dawson and McHugh JJ]. 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 [Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 301 per Dawson and Gaudron JJ].”
30 There has been some discussion in this Court in recent times about whether the epithets, “gross, marked or glaring” should be used in the application of the parity principle; see for example Cameron v R [2017] NSWCCA 229 at [86]- [90] (Hamill J); and Miles v R [2017] NSWCCA 266 at [9] (Leeming JA), [36]-[40] (Rothman J), and [67] (Hamill J). The better course in my respectful view is to confine discussion of the principle to the terms used in judgments of the High Court. There, the expressions, “marked disparity” or “marked and unjustified disparity” have been used in the majority judgment in Green v The Queen; Quinn v The Queen; see similarly Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 per Gibbs CJ at 610, Mason J at 611, and Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 per Dawson and Gaudron JJ at 301.
31 In Lowe v The Queen, Dawson J also used the expression, “manifestly excessive” in the following context (at 623-624):
“The view has been expressed in England that a court should not interfere unless the disparity is gross or glaring and the circumstances are ‘most exceptional’; see R v Stroud (1977) 65 Cr App R 150 at 153-154; R v Potter [1977] Crim LR 112 at 113. The decisions in this county do not appear to be quite as restrictive as this but on any view the interference with a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice: see Pecora v The Queen [1980] VicRp 47; [1980] VR 499; R v Tisalandis [1982] 2 NSWLR 430.”
32 It is well known that the description “manifestly excessive” signifies something that is “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].
33 In Postiglione v The Queen (at 302), Dawson and Gaudron JJ also spoke in terms of there being "due proportion" between sentences when regard is had to the "different circumstances of the co-offenders in question and their different degrees of criminality".
  1. When one has regard to the respective positions of Assam and Abdul and the nature of their offending, the difference in sentences does demonstrate a “marked disparity” or “marked and unjustified disparity” as discussed by R A Hulme J in Fenech v R. While it is clear that Assam ’s role was considerably above that of a driver, it is also clear that it was significantly below the position occupied by Abdul. This is confirmed when regard is had to what Abdul was doing to promote the syndicate. This ground of appeal has been made out and it will be necessary to re-sentence Assam.
  2. In view of the fact that Assam will need to be re-sentenced, it is not necessary to examine Ground 3 which will need to be taken into account as part of the re-sentencing process.

Re-sentence

  1. As between Assam and Abdul, no challenge has been made to his Honour’s factual findings and in particular the actions performed by each, such as would affect the application of the parity principle. Although there was no issue with his Honour’s fact finding, where I differ from his Honour is in giving effect to those findings when fixing the aggregate sentence. Accordingly, in the independent exercise of the sentencing discretion, I would impose an aggregate term of imprisonment with a non-parole period of 6 years and 9 months, commencing 25 May 2016 and expiring 24 February 2023, with a balance of term of 3 years expiring 24 February 2026. For the reasons given by his Honour, I find special circumstances and that will be reflected in the ratio between the non-parole period and the head sentence.
  2. I make no change to the indicative sentences proposed by his Honour.
  3. Accordingly, the orders which I propose are:
  4. PRICE J: I agree with the reasons and orders proposed by Justice Hoeben CJ at CL.

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