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Court of Criminal Appeal 21 December 2016

Saleh, Kassim v R

[2016] NSWCCA 317

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE METHYLAMPHETAMINE PARITY

Citation: Saleh, Kassim v R [2016] NSWCCA 317
Court: NSW Court of Criminal Appeal
Date: 21 December 2016
Judges: Beazley P, Garling J, Fagan J

Background

The appellant pleaded guilty in the District Court to one count of knowingly taking part in the supply of a large commercial quantity of methylamphetamine (2 kg), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). He entered his plea on the day fixed for trial. On 9 October 2015, Judge Whitford SC sentenced him to 4 years 11 months imprisonment, with a non-parole period of 3 years 8 months.

The offence arose from a transaction in August 2013 in which the appellant played an intermediary role, connecting his uncle (another co-offender) with a drug supplier. He facilitated meetings, was present at a gathering at his own home, and was found to have expected personal benefit from the transaction.

A co-offender, referred to only as JK due to a suppression order, was sentenced for his role in the same transaction. JK received a significantly lighter sentence of 3 years imprisonment with a non-parole period of 1 year 3 months. The appellant argued his sentence was unjustifiably harsher, giving rise to a legitimate sense of grievance under the parity principle.

  • Whether the disparity between the appellant's sentence and the sentence imposed on co-offender JK gave rise to a justifiable sense of grievance, engaging the parity principle.
  • Whether the sentencing judge's assessment of the respective circumstances of the co-offenders adequately explained the difference in sentences.

Decision

The Court of Criminal Appeal, in a judgment delivered by Fagan J (with Beazley P and Garling J agreeing), found that the disparity in sentences was fully explained by the markedly different circumstances of the two offenders. The parity principle, as articulated in Postiglione v The Queen and Green v The Queen; Quinn v The Queen, does not require identical sentences but does require that differences in sentences between co-offenders be proportionate to differences in culpability and personal circumstances.

The appellant's role was substantially more serious than JK's. He actively introduced the parties, hosted a meeting at his home, participated throughout the transaction, and was found to have anticipated personal gain. JK, by contrast, was 20 years old, a drug user who naively believed he was merely introducing two acquaintances, expected and received no payment, and had a lesser degree of involvement in the overall scheme.

The subjective circumstances also differed significantly. JK entered an early plea and provided assistance to authorities, attracting a substantial discount that was unavailable to the appellant, who entered a late plea and provided no such assistance. The Court found these combined factors fully accounted for the sentencing difference. There was no legitimate basis for the appellant's sense of grievance.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle requires proportionality between sentences imposed on co-offenders, not equality. Different sentences are justified where co-offenders differ meaningfully in culpability, role, and personal circumstances.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing disparity only gives rise to a justifiable sense of grievance where it cannot be explained by relevant differences between the offenders.
  • An early guilty plea combined with assistance to authorities can attract a substantial sentencing discount that, when compared with the outcome for a co-offender who pleaded late and provided no assistance, does not of itself generate a parity complaint.
  • The appellant's more active role, expectation of personal benefit, and later plea stood in contrast to JK's passive involvement, absence of financial motive, and cooperation with authorities, making the sentence differential explicable and appropriate.
  • Where a co-offender's sentence has already been varied on appeal (as occurred here with a separate co-offender), any parity complaint founded on that earlier, lower sentence falls away.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- R v Saleh, Haissan [2016] NSWCCA 216
- R v JK (District Court (NSW), Whitford DCJ, 28 November 2014, unreported)