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Court of Criminal Appeal 24 June 2003

El Hassan v Regina

[2003] NSWCCA 252

Drugs
SEVERITY OF SENTENCE PARITY OF SENTENCES RELEVANT FACTS.

Citation: El Hassan v Regina [2003] NSWCCA 252
Court: New South Wales Court of Criminal Appeal
Date: 24 June 2003
Judges: Meagher JA, Dowd J, Barr J

Background

The applicant pleaded guilty at an early stage to attempting to obtain possession of a commercial quantity of cocaine, contrary to the Customs Act 1901. The offence arose from the importation of approximately 17.5 kilograms of pure cocaine concealed in an autoclave that arrived in Sydney from Panama in April 2000. Authorities detected the drugs, replaced them with another substance, and authorised a controlled delivery operation under the Crimes Act 1914 (Cth).

The applicant became involved in the operation from around 10 May 2000. On the evidence, he directed another person to open the crate and extract the cocaine, paid that person $5,000, and personally took possession of the bags before police intervened and arrested him. At least three other co-offenders were involved in the broader importation scheme.

In the District Court, McGuire DCJ sentenced the applicant to 15 years imprisonment with a non-parole period of 10 years. The applicant sought leave to appeal against the severity of that sentence, relying principally on parity arguments by reference to the sentences imposed on co-offenders.

  • Whether the applicant's sentence was disproportionate when compared to those of co-offenders, particularly his brother and the importer Mr Mazzitelli (the parity principle)
  • Whether drug addiction was a mitigating factor reducing the applicant's moral culpability
  • Whether the sentencing judge erred in finding there were no special circumstances warranting a different ratio between head sentence and non-parole period

Decision

The Court rejected the parity argument when comparing the applicant's sentence to that of Mr Mazzitelli (19 years and 8 months, non-parole 12 years and 4 months). Although Mr Mazzitelli had managed the importation paperwork over several months, the applicant was the person who took actual possession of the drugs and was responsible for distributing them. The Court characterised the two roles as distinct but comparably serious, and found no relevant sentencing disparity.

The more heavily argued comparison was between the applicant (15 years, non-parole 10 years) and his brother Radwin El Hassan (10 years, non-parole 6 years). The Court identified several material differences between the two: the applicant entered his guilty plea earlier, both received credit for assisting police, the brother entered the transaction at a slightly later stage, and the applicant was a drug addict while his brother was not. These differences were treated as sufficient to explain the sentencing gap.

On the drug addiction argument, the Court applied the principles from The Queen v Henry and the cases cited therein. Those authorities establish that self-induced addiction at an age of rational choice does not, of itself, constitute a mitigating factor. The Court found nothing in the applicant's circumstances to displace that general position.

Regarding the non-parole period, the Court accepted the Crown's submission that the sentencing judge's reference to "no special circumstances" was best understood as a finding that nothing beyond already-considered matters fell within the relevant provisions of the Crimes Act 1914 (Cth). Read in that way, the sentencing remarks were unexceptional and disclosed no error.

Orders Made

  • Application for leave to appeal against sentence dismissed.

Key Takeaways

  • The parity principle does not require identical sentences for co-offenders where there are meaningful differences in role: a person who took physical possession of drugs and managed their distribution occupied a materially different position from the person who arranged their importation.
  • Where co-offenders are compared for parity purposes, the timing of their guilty plea, the extent of assistance provided to police, and individual circumstances such as drug addiction are all relevant factors that may justify sentencing differences.
  • Self-induced addiction at an age of rational choice does not automatically reduce moral culpability in sentencing, as confirmed by the Court's application of principles drawn from The Queen v Henry, Douglas v The Queen, and Talbot v The Queen.
  • In dismissing the appeal, the Court of Criminal Appeal read a reference to "no special circumstances" in the sentencing remarks as a finding that no further matters beyond those already addressed existed under the relevant provisions of the Crimes Act 1914 (Cth), rather than as a legal error.
  • No single parity comparison between co-offenders in a multi-accused trial is determinative; the court must assess each co-offender's role, plea, and personal circumstances individually before concluding a sentence is out of kilter.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 23B
- Crimes Act 1914 (Cth), ss 15M, 16A(2)

Cases:
- The Queen v Henry (1999) 46 NSWLR 346
- Douglas v The Queen (1995) 56 FCR 465
- Talbot v The Queen (1992) 34 FCR 100