Citation: Application by AMZ pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 [2017] NSWSC 432
Court: Supreme Court of New South Wales
Date: 19 April 2017
Judge: R A Hulme J
Background
The applicant (identified only as AMZ, subject to a suppression order) was sentenced in December 2011 after pleading guilty to six charges involving the large-scale supply of methylamphetamine and heroin as part of an organised criminal syndicate. His role was described by the sentencing judge as that of "personal assistant to the principal": he transported cash, tested drugs, drove for the syndicate's leader, and assisted in cutting, packaging, and distributing large commercial quantities of drugs across multiple states.
The applicant received a significant discount of 55% on his sentences, reflecting his early guilty plea, remorse, and what the sentencing judge described as unusually high-level, immediate, comprehensive, and useful assistance to police. He gave evidence against the syndicate's principal and others. His overall sentence was 13 years with a non-parole period of 9 years. An appeal against that sentence was dismissed by the Court of Criminal Appeal in February 2013.
The syndicate's principal, Yazdani, was separately tried (having pleaded not guilty), convicted, and sentenced in May 2015 to an aggregate of 28 years with a non-parole period of 21 years. After Yazdani's sentence was imposed, AMZ applied to the Supreme Court under Part 7 of the Crimes (Appeal and Review) Act 2001 for an inquiry into his own sentence, arguing a justifiable sense of grievance on parity grounds.
Legal Issues
- Whether the precondition in s 79(2) of the Crimes (Appeal and Review) Act 2001 was satisfied, that is, whether it "appears" there is a "doubt or question" as to a mitigating circumstance in the applicant's case
- Whether the disparity between the applicant's sentence and Yazdani's later sentence gave rise to a justifiable sense of grievance on parity grounds
- Whether the case should be referred to the Court of Criminal Appeal for determination as an appeal against sentence
Decision
Hulme J noted that the threshold under s 79(2) is not whether a doubt or question actually exists, but whether it "appears" that one does, a distinction drawn from the Court of Appeal's analysis in Buttrose v Attorney General. A parity argument can satisfy this precondition where the sentences of co-offenders, taken together, create an apparent doubt or question about mitigating circumstances.
The applicant submitted that the starting point adopted by the sentencing judge for his sentence (29 years, before discounts) was virtually identical to that adopted for Yazdani (28 years), even though Yazdani was the principal of the syndicate, faced a greater number and more serious charges, had no mitigating circumstances, and had prior similar convictions. By contrast, AMZ played a subordinate role and provided exceptional assistance to authorities.
Hulme J accepted that this comparison gave rise to an apparent justifiable sense of grievance. The near-equivalence of starting points, despite the substantial differences in culpability, role, and subjective circumstances, was sufficient to satisfy the statutory precondition.
The Attorney General raised three counterpoints: that the discount applied to the applicant's sentences was already generous; that any further reduction might be so low as to be an affront to the administration of justice given the seriousness of the offending; and that reducing AMZ's sentence could disturb a separate parity issue with co-offender Plaisted, whose sentence had already been reduced by the Court of Criminal Appeal on the basis that AMZ's role was "very substantially greater" than his. Hulme J acknowledged these as matters for the Court of Criminal Appeal to weigh, but they did not displace the apparent doubt arising from the parity comparison with Yazdani. The case was referred accordingly.
Orders Made
- The whole of AMZ's case is referred to the Court of Criminal Appeal to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912 (NSW).
Key Takeaways
- Under s 79(2) of the Crimes (Appeal and Review) Act 2001, the statutory threshold is whether a doubt or question about sentence "appears" to exist, not whether it is definitively established. This is a relatively low bar for referral purposes.
- A parity argument based on a co-offender's later sentence can satisfy the s 79(2) precondition, even where the applicant's own sentence has already been reviewed on appeal, provided the later sentencing outcome creates an apparent sense of grievance.
- The near-equivalence of sentencing starting points between a syndicate principal (who contested charges, received no discount, and had prior convictions) and a subordinate co-offender (who pleaded guilty and provided exceptional assistance) was sufficient to raise an apparent doubt warranting referral.
- Referral to the Court of Criminal Appeal does not resolve the merits: countervailing considerations, including the risk that any further reduction might be disproportionately lenient given the gravity of the offending, and the flow-on effect on parity with other co-offenders, remained for that court to assess.
- In dismissing the earlier appeal against Plaisted's sentence, the Court of Criminal Appeal had already found that AMZ's role was "very substantially greater" than Plaisted's, illustrating how parity assessments in multi-offender cases can have cascading effects across co-offenders sentenced at different times.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 Div 3, s 79
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1900 (NSW), ss 93T, 193C
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16
Cases
- AMZ v R [2013] NSWCCA 6
- Buttrose v Attorney General of New South Wales [2015] NSWCA 221
- JM v R [2014] NSWCCA 297
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Plaisted v R [2015] NSWCCA 287
- Prelipceanu v R [2016] NSWCCA 280
- R v Clarke [2013] NSWCCA 260
- Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; 85 NSWLR 783
- Yazdani v R [2016] NSWCCA 194