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8
Court of Criminal Appeal 15 February 2019

Assam v R

[2019] NSWCCA 12

Drugs
CRIMINAL LAW SENTENCE APPEAL USE OF UNDERCOVER OPERATIVE BY POLICE PRIMARY MOTIVATION GREED WHETHER PARITY PRINCIPLE OBSERVED PARITY GROUND OF APPEAL MADE OUT

Citation: Assam v R [2019] NSWCCA 12
Court: NSW Court of Criminal Appeal
Date: 15 February 2019
Judge(s): Bathurst CJ; Hoeben CJ at CL; Price J

Background

The appellant was convicted following guilty pleas to seven offences arising from his participation in a drug supply syndicate operating on the NSW Central Coast in early 2016. The offences included two counts of supplying a large commercial quantity of MDMA, two counts of supplying a commercial quantity of prohibited drugs, two counts of supplying an indictable quantity of prohibited drugs, and one count of recklessly dealing with the proceeds of crime. The syndicate was identified through a police undercover operative operation known as Strike Force Bamberry.

The appellant was 26 at the time of the offending and had no prior criminal history. He was sentenced in the District Court at Gosford in November 2017 to an aggregate term of 11 years' imprisonment with a non-parole period of 8 years. His co-offender Azhar Abdul, who led the syndicate, received a different sentence, forming the basis of the parity challenge on appeal.

  • Whether the sentencing judge's characterisation of the appellant as a "highly trusted upper echelon participant" was reasonably open on the evidence
  • Whether the parity principle was breached, given that the sentence imposed on the appellant was disproportionate relative to the sentence imposed on co-offender Abdul
  • Whether, having found special circumstances, the sentencing judge gave proper effect to the departure from the statutory ratio between the non-parole period and the head sentence

Decision

On Ground 1, the Court of Criminal Appeal found that the sentencing judge's description of the appellant as a "highly trusted upper echelon participant" was not fully supported by the evidence. While the appellant's role clearly exceeded that of a driver, his position in the syndicate was significantly below that occupied by Abdul, who ran the operation and was actively promoting it.

On Ground 2, the Court found the parity principle had been breached. Comparing the respective roles and criminality of the appellant and Abdul, the Court was satisfied the disparity between their sentences constituted a marked and unjustified departure. The appellant therefore had a legitimate sense of grievance of the kind required to make out a parity ground. The Court applied the principle from Postiglione v The Queen that sentences for co-offenders must bear due proportion to their different circumstances and degrees of criminality.

The Court allowed the appeal and proceeded to re-sentence the appellant. It accepted the sentencing judge's factual findings without alteration. The re-sentence gave proper effect to the relative positions of the appellant and Abdul within the syndicate, while also addressing the special circumstances finding that had not been adequately reflected in the original sentence. Ground 3, concerning the statutory ratio, was folded into the re-sentencing exercise rather than determined separately.

Orders Made

  • Leave to appeal against sentence granted
  • The sentence imposed on 17 November 2017 quashed
  • Appellant re-sentenced to an aggregate term of imprisonment with a non-parole period of 6 years and 9 months, commencing 25 May 2016 and expiring 24 February 2023, with a balance of term of 3 years expiring 24 February 2026

Key Takeaways

  • A parity ground of appeal is made out where the disparity between co-offenders' sentences constitutes a marked and unjustified difference, assessed by reference to each offender's relative role and degree of criminality.
  • The Court of Criminal Appeal confirmed that a sentencing characterisation of an offender's role must be reasonably open on the evidence; describing a mid-level participant as an "upper echelon" figure without adequate evidentiary foundation constitutes error.
  • Where a finding of special circumstances is made, the sentencing court must ensure that finding is actually reflected in the ratio between the non-parole period and the head sentence, not merely noted.
  • In allowing the appeal, the Court accepted the sentencing judge's underlying factual findings in their entirety and confined its intervention to the aggregate sentence, illustrating that a parity error can exist independently of disputed facts.
  • Participation in a drug supply syndicate at a level above delivery driver but below the organiser does not automatically warrant the same characterisation as the principal offender; gradations of role must be carefully mapped to sentence outcomes.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes Act 1900 (NSW), s 193B
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16

Cases
- AB v R [2014] NSWCCA 339
- Aoun v R [2011] NSWCCA 284
- Fenech v R [2018] NSWCCA 160
- GAS v The Queen [2004] HCA 22; 217 CLR 198
- Leslie v R [2009] NSWCCA 203
- R v Mills [2005] NSWCCA 175; (2005) 154 A Crim R 40
- Wat v R [2017] NSWCCA 62
- Postiglione v The Queen (cited in reasons)