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Court of Criminal Appeal 14 July 2008

Ali Osman v R

[2008] NSWCCA 157

Drugs
APPEAL SENTENCE APPEAL FOR SUPPLYING DRUGS COMPARISON WITH SENTENCES FOR CO OFFENDER

Citation: Ali Osman v R [2008] NSWCCA 157
Court: NSW Court of Criminal Appeal
Date: 14 July 2008
Judge(s): McClellan CJ at CL, Hidden J, Howie J

Background

The appellant was a manager in a drug supply syndicate operating across the Bankstown and Hurstville areas of Sydney. Between October 2001 and June 2002, the syndicate supplied methylamphetamine and cannabis through a network of runners, with police intercepting thousands of phone calls during the operation. Analysis of those intercepts showed the appellant directing runners' shifts, managing deliveries, handling money, and overseeing customer satisfaction.

The appellant pleaded guilty in the District Court to four counts of ongoing supply of a prohibited drug under s 25A of the Drug Misuse and Trafficking Act 1985, with additional matters taken into account on a Form 1. Judge Nield sentenced him to a total term of 15 years imprisonment with a non-parole period of 9 years. The appellant did not seek leave to appeal until February 2008, more than two years after the sentences were imposed in September 2005.

The central complaint on appeal was parity: the appellant argued his sentence was unjust when compared to the sentence ultimately imposed on his co-offender Cheikh, who had been the subject of a successful Crown appeal.

  • Whether the total sentence of 15 years was manifestly excessive, having regard to the sentence imposed on co-offender Cheikh following a Crown appeal.
  • Whether the appellant had a justifiable grievance about parity, given that Cheikh's sentence was reduced under the double jeopardy principle applicable to Crown appeals.
  • Whether the sentencing judge properly dealt with a procedural irregularity in the Form 1, which failed to specify a single principal offence as required by ss 32 and 33 of the Crimes (Sentencing Procedure) Act 1999.
  • Whether the non-parole period was excessive, including whether the sentencing judge had impermissibly double-counted the appellant's medical condition.

Decision

The Court granted leave to appeal but dismissed the appeal on all grounds. Howie J, with whom McClellan CJ at CL and Hidden J agreed, found that the total sentence of 15 years was within the lower range available given the objective seriousness of the offending. Cheikh had been re-sentenced to the same head sentence of 15 years after the Crown appeal, but his non-parole period was two years longer than the appellant's, reflecting the appellant's medical condition as a special circumstance.

On the parity question, the Court identified several differences between the two co-offenders' circumstances. The appellant had prior drug offences, had breached bail or a bond, and would experience harsher custodial conditions due to his medical condition. Cheikh had the benefit of the double jeopardy principle, which reduced his sentence on the Crown appeal. The sentencing judge effectively treated those varying factors as cancelling out, arriving at the same head sentence for both. The Court found that if that reasoning involved any error, it was one that favoured the appellant, not one that disadvantaged him.

Regarding the Form 1 irregularity, the Court noted that the legislation requires a Form 1 to nominate a single principal offence. The sentencing judge attempted to address the drafting defect by distributing individual Form 1 matters across different counts, a method that tended to reduce rather than increase the weight given to those matters. The Court found this approach, while procedurally imperfect, did not produce an unjust outcome for the appellant.

On the non-parole period, Howie J noted a risk of double counting: the sentencing judge had treated the appellant's medical condition both as a mitigating factor in setting the head sentence and as the basis for a finding of special circumstances reducing the non-parole period. The resulting non-parole period represented 60 percent of the head sentence, a substantial reduction from the statutory ratio. Despite identifying this risk, the Court found the non-parole period was the least that could properly have been imposed, and the appellant had no legitimate grievance on this point.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle does not automatically entitle a co-offender to the benefit of a reduction made on a Crown appeal under the double jeopardy principle. That reduction applies to the offender who was re-sentenced, not to others sentenced separately.
  • Where differences in co-offenders' subjective circumstances are found to cancel each other out, equal head sentences may be appropriate even when those subjective factors pull in opposite directions.
  • Under ss 32 and 33 of the Crimes (Sentencing Procedure) Act 1999, a Form 1 must identify a single principal offence. Distributing Form 1 matters across multiple counts departs from the statutory scheme and may reduce the sentencing weight given to those additional offences.
  • A risk of double counting arises when a sentencing court uses the same factor, such as a medical condition causing harsh custodial conditions, both to mitigate the head sentence and to establish special circumstances warranting a shorter non-parole period.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a total sentence of 15 years for a managerial role in a large, sustained drug supply operation spanning seven months fell within the lower available range rather than constituting manifest excess.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33

Cases:
- R v Cheikh, R v Hoete [2004] NSWCCA 448
- R v Christie [2000] NSWCCA 354