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Court of Criminal Appeal 17 October 2014

Hamzy v R

[2014] NSWCCA 223

Drugs
CRIMINAL LAW SENTENCE APPEAL WHETHER PRINCIPLE OF PARITY OBSERVED RELEVANCE OF PROSECUTORIAL DISCRETION GROUND OF APPEAL NOT MADE OUT.

Citation: Hamzy v R [2014] NSWCCA 223
Court: NSW Court of Criminal Appeal
Date: 17 October 2014
Judges: Hoeben CJ at CL (with Rothman J and R A Hulme J agreeing)

Background

The appellant was a member of a family-based drug supply syndicate operating between Sydney and Melbourne in mid-2008. He was the father of the syndicate's principal, who directed operations from prison using an intercepted mobile phone. The appellant's role centred on sourcing methylamphetamine from suppliers and handling the proceeds of sales.

He was convicted on two counts of supplying a commercial quantity of methylamphetamine under s 25(2) of the Drugs Misuse and Trafficking Act 1985: one count involving 372 grams and another involving 995 grams. Several further matters, including dealing in the proceeds of crime and participating in a criminal group, were taken into account on a Form 1 (a mechanism allowing additional offences to be considered at sentencing without separate conviction). The sentencing judge imposed a total sentence of eight years and six months for Count 2, with Count 1 running partially concurrently.

The appellant sought leave to appeal on two grounds: first, that the sentencing judge erred in allowing only a 30 percent combined discount for his guilty plea and assistance to authorities; and second, that he had a justifiable sense of grievance arising from the disparity between his sentence and that of a co-offender referred to as OS1.

  • Whether the sentencing judge proceeded on a false assumption that the appellant had previously received some benefit from his offer of assistance, thereby undermining the 30 percent combined discount for guilty plea and cooperation.
  • Whether the parity principle required a lesser sentence given the sentence imposed on the co-offender OS1, whose sentence had been reduced on appeal.

Decision

On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's approach to the combined 30 percent discount. The plea was entered at an early, though not the earliest, point in time, and the assistance provided to authorities was assessed as being of a low level. The sentencing judge retained a discretion as to the weight to be given to each component. The Court found no false assumption had been entertained, and the discount fell within the proper exercise of that discretion.

On the parity ground, the appellant argued that OS1 received a lesser effective sentence and that this created an unwarranted disparity. The Court noted that OS1's sentence had been reduced on appeal in part because the original sentencing had misapplied the standard non-parole period regime, following Muldrock v The Queen [2011] HCA 39. The appellant had not been sentenced under the same error and therefore could not claim the same benefit.

More fundamentally, the Court found the subjective circumstances of the two offenders were starkly different. The appellant had committed these offences while on parole for a prior conviction involving supply of a large commercial quantity of heroin, an offence of an almost identical kind. That prior history was a significant aggravating factor, engaging the principles from Veen v R (No 2) [1988] HCA 14 concerning retribution, deterrence, and protection of the community where an offender demonstrates a continuing attitude of disobedience toward the law.

The Court confirmed that the difference in subjective cases between the two co-offenders was sufficient to justify the sentencing distinction, consistent with the approach endorsed by the High Court in Green v The Queen; Quinn v The Queen [2011] HCA 49. The parity ground was not made out.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A combined discount for guilty plea and assistance to authorities is a matter of discretion for the sentencing judge; the Court of Criminal Appeal confirmed no error arises merely because a discount of 30 percent was applied where the plea was early but not the earliest, and cooperation was assessed as low-level.
  • Where a co-offender's sentence has been reduced on appeal due to a sentencing error that did not affect the appellant's sentence, the appellant cannot rely on parity to claim the same reduction.
  • Under Veen v R (No 2), a prior conviction for a serious offence of an almost identical kind, committed while on parole, is a legitimate and significant aggravating factor going to retribution, deterrence, and community protection.
  • Sufficient difference in the subjective cases of co-offenders, particularly criminal history and parole status, can justify a materially higher sentence without offending the parity principle.
  • In dismissing the appeal, the Court of Criminal Appeal reinforced that the parity principle requires a comparison of the whole of each offender's circumstances, not merely the objective features of the offending conduct.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23

Cases:
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- OS1 v R [2012] NSWCCA 102
- Wong v R [2001] HCA 64; 207 CLR 584
- R v El Hani [2004] NSWCCA 162
- R v Gallagher (1991) 23 NSWLR
- R v NP [2003] NSWCCA 195
- R v Z [2006] NSWCCA 342
- R v Borkowski [2009] NSWCCA 102
- R v Ehrlich [2012] NSWCCA 38
- Regina v Dib [2003] NSWCCA 117
- Regina v Stambolis [2006] NSWCCA 56
- Sullivan v R; Skillin v R [2008] NSWCCA 296