Citation: Ahmad v R [2019] NSWCCA 198
Court: NSW Court of Criminal Appeal
Date: 26 August 2019
Judges: Basten JA, Wright J, Wilson J (Wilson J delivering the principal judgment, with the others agreeing)
Background
The appellant pleaded guilty in the District Court to four offences arising from a drug importation and financial fraud scheme. The offences included two Commonwealth offences of attempting to possess and attempting to import a marketable quantity of a border controlled drug (cocaine), a State offence of dishonestly obtaining a financial advantage by deception, and a State summary offence of possessing a prohibited drug. A related fraud offence was taken into account at sentencing.
The sentencing judge imposed an overall sentence of seven years imprisonment, with a non-parole period of five years, commencing 9 June 2016. A co-offender, Mohammed El-Khair, was sentenced on the same day. The appellant was identified as the directing mind of the drug importation scheme, with El-Khair acting as a trusted subordinate who carried out instructions.
The appellant sought leave to appeal against his sentences on two grounds: that the six-month sentence for possessing a prohibited drug was manifestly excessive, and that the overall sentencing outcome gave rise to an unjustifiable disparity with the sentence imposed on El-Khair.
Legal Issues
- Whether the six-month custodial sentence for possessing 3.8 grams of cocaine (a summary State offence carrying a maximum of two years imprisonment) was outside the available range and therefore manifestly excessive.
- Whether sentencing statistics are a reliable guide to determining whether a particular sentence is excessive.
- Whether, applying the parity principle, the difference between the appellant's sentence and El-Khair's sentence gave rise to a legitimate sense of grievance.
Decision
Ground 1: Manifest excess for the drug possession offence
Wilson J rejected the argument that the six-month sentence for possessing cocaine was manifestly excessive. The sentencing judge had correctly identified the relevant maximum penalty and applied the statutory requirement under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that a court must not impose a sentence of imprisonment unless it is satisfied that no other penalty is appropriate.
The appellant relied on sentencing statistics to support his contention that the sentence was outside the ordinary range. Wilson J confirmed the well-established principle that sentencing statistics have limited utility: they indicate what courts have done in other cases but do not, of themselves, establish that a departure from the statistical norm is an error. The sentencing judge was entitled to impose a custodial sentence on the facts before the court, and no error in doing so was demonstrated.
Ground 2: Parity with the co-offender
The Court also dismissed the parity ground. The parity principle requires that co-offenders sentenced for the same or related offending should not receive sentences so different that one is left with a justified sense of grievance. Wilson J found that the appellant and El-Khair were not true co-offenders across all offences, and that where they did offend together, their roles were fundamentally different. The appellant held the commanding role in the drug importation enterprise, directing El-Khair who carried out instructions, including the most menial of tasks.
Wilson J noted that various factors invoked by the appellant to establish equivalence were of limited weight. A two-year age difference was not significant in these circumstances, particularly where the younger man held the dominant role. The sentencing judge had not accepted that the appellant's upbringing was meaningfully more difficult than El-Khair's. The six-month difference in overall sentences was held to reflect the real and substantial disparity in roles, and no justifiable basis for a sense of grievance was established.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- Sentencing statistics indicate what courts have historically done in comparable cases but do not establish that a departure from those figures constitutes an error; a sentence within the available range will not be set aside simply because it exceeds the statistical average.
- Under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court must be satisfied that no other penalty is appropriate before imposing imprisonment, but once that threshold is met, the imposition of a custodial term for a summary drug possession offence is not automatically excessive.
- The parity principle applies with reduced force where co-offenders did not share the same offences and where their respective roles in the criminal enterprise were materially different.
- In dismissing the parity ground, the Court of Criminal Appeal confirmed that a difference in seniority within a criminal enterprise, where one offender directed another's conduct, can justify a meaningful difference in overall sentence.
- A two-year age gap between co-offenders carries little mitigating weight in ordinary circumstances, and carries even less when the younger offender held the dominant role over the older.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 192E, 192G
- Crimes Act 1914 (Cth), s 16BA
- Criminal Code Act 1995 (Cth), ss 11.1, 307.2, 307.6
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 9, 10A, 33
- Drug Misuse and Trafficking Act 1985 (NSW), s 10
Cases
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- Dunn v R [2018] NSWCCA 108
- Green v The Queen [2011] HCA 49; 244 CLR 462
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- R v Fernando (1992) 76 A Crim R 58
- R v Henry (1999) 46 NSWLR 346
- SS v R [2016] NSWCCA 197
- Windle v R [2011] NSWCCA 277