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Court of Criminal Appeal 3 December 2003

R v Hejazi

[2003] NSWCCA 383

Drugs
CRIMINAL LAW OFFENDER.

Citation: R v Hejazi [2003] NSWCCA 383
Court: NSW Court of Criminal Appeal
Date: 3 December 2003
Judge(s): Wood CJ at CL; Smart AJ

Background

The appellant was convicted in the District Court following guilty pleas to two counts of drug supply: supplying not less than the commercial quantity of methylamphetamine, and supplying not less than the large commercial quantity of methylamphetamine. Six additional drug supply offences were taken into account on a Form 1 (a procedural mechanism allowing related offences to be acknowledged at sentencing without separate convictions). The offences arose from an undercover police operation conducted in mid-2000, during which the appellant sold drugs to undercover officers and was also detected arranging further sales via telephone intercepts.

The appellant received a fixed term of four years on the first count and nine years with a non-parole period of six years on the second count, both sentences running concurrently. His co-offender, O'Brien, who had supplied the drugs to the appellant for on-sale, received a total effective sentence of six years with a non-parole period of three and a half years.

The sole ground of appeal was that the appellant's sentence was disproportionately severe compared with the sentence imposed on O'Brien, giving rise to an unjustified sentencing disparity.

  • Whether the difference in sentences between the appellant and his co-offender O'Brien was so disproportionate as to amount to a miscarriage of justice or an error in the exercise of the sentencing discretion.

Decision

The Court granted leave to appeal but dismissed the appeal. Although the sentencing judge in the District Court had proceeded on the basis that the two offenders bore equal criminality in relation to the two core counts, she identified four specific reasons to impose a heavier sentence on the appellant: his lengthy criminal history, the fact he was on a bond and on parole at the time of the offences, the additional Form 1 offences, and his later guilty plea (which attracted a 15 per cent discount compared with 25 per cent for O'Brien).

The Court of Criminal Appeal found that the differences between the two offenders went beyond those four factors. The appellant had been released from prison only three months before committing the first Form 1 offence and had been running an active commercial drug business. O'Brien, by contrast, had not been subject to conditional liberty at the time, had not been dealing drugs on a commercial scale, and had been found by his sentencing judge to have been a changed person who obtained employment while on bail. The appellant's Form 1 offences also extended to heroin and higher-purity drugs not involved in O'Brien's sentencing.

The Court concluded that the two cases did not stand on equal footing, either objectively or subjectively. The sentences imposed were well within the proper exercise of the sentencing discretion for offences that called for significant punishment, where both personal and general deterrence were of considerable importance.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing disparity between co-offenders does not automatically constitute error; the court must examine whether the difference in sentences is explained by genuine differences in objective criminality and subjective circumstances.
  • The Court of Criminal Appeal confirmed that being on parole or a bond at the time of offending, a lengthier criminal history, additional offences on a Form 1, and a later guilty plea are all legitimate bases for imposing a heavier sentence on one co-offender compared with another.
  • Where a co-offender's sentencing judge made favourable findings about that person's rehabilitation and changed character, those findings are specific to that offender and do not create a benchmark against which a differently placed offender can claim disparity.
  • In dismissing the appeal, the Court emphasised that deterrence, both personal and general, carries significant weight in commercial drug supply sentencing.
  • No error was established in the District Court's exercise of discretion merely because the sentencing judge's starting point assumed equal criminality on the two core counts; the ultimate sentence appropriately reflected the full picture of each offender's individual circumstances.

Legislation and Cases Referenced

Cases:
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 57 NSWLR 146
- House v The King (1936) 55 CLR 499
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1996) 189 CLR 295
- Regina v AEM [2002] NSWCCA 58
- Regina v Koklas [2003] NSWCCA 302
- R v Readman (1990) 47 A Crim R 181
- R v Richards [1981] 2 NSWLR 464

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37