AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
11
Court of Criminal Appeal 9 December 2019

El Kheir v R

[2019] NSWCCA 288

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE PARITY APPEAL DISMISSED

Citation: El Kheir v R [2019] NSWCCA 288
Court: Court of Criminal Appeal, New South Wales
Date: 9 December 2019
Judges: Hoeben CJ at CL; Leeming JA; Lonergan J

Background

The applicant was convicted by jury of manufacturing methylamphetamine in a quantity not less than a large commercial quantity, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW), along with three counts of possessing precursor substances. He was sentenced in the District Court to 10 and a half years imprisonment with a non-parole period of 7 years.

His co-offender, who had pleaded guilty to a differently framed charge of manufacturing the same drug, had his original District Court sentence successfully appealed by the Crown as manifestly inadequate. The Court of Criminal Appeal then imposed an aggregate sentence of 12 years and 3 months with a non-parole period of 8 years, with an indicative undiscounted sentence of 14 years for the manufacturing count alone.

The sole ground of appeal was parity: the applicant argued he had a justifiable sense of grievance because his sentence was disproportionately heavier than that of his co-offender, who was found to have manufactured a larger quantity of the drug.

  • Whether the applicant had a justifiable sense of grievance arising from a marked disparity between his sentence and that of his co-offender, having regard to all relevant facts.
  • Whether the sentencing judge erred in having regard to the purity of the admixture when sentencing the applicant, given that the charges against each offender were framed on different bases.

Decision

Leeming JA (with whom Hoeben CJ at CL and Lonergan J agreed) dismissed the appeal. The Court found no justifiable sense of grievance once all the relevant factual differences between the two offenders were properly considered.

On the purity issue, the Court found no error. Section 4 of the Drug Misuse and Trafficking Act 1985 provides that references to a prohibited drug include any admixture containing any proportion of that drug. Both offenders had manufactured the same mixture from which 2.6 kg of methylamphetamine could be extracted, and it was appropriate to take purity into account when assessing the objective seriousness of the applicant's conduct.

The key to the parity analysis lay in comparing like with like. The proper comparison was between the applicant's sentence of 10 and a half years and the co-offender's indicative undiscounted sentence of 14 years, not the co-offender's discounted sentence. The co-offender received a 25% discount for his early guilty plea, his sentence incorporated Form 1 offences including supply and proceeds of crime matters, and he attracted significantly more favourable subjective findings, including contrition, remorse, and good prospects of rehabilitation.

By contrast, the applicant was on conditional liberty at the time of the offending and was found to have only moderate prospects of rehabilitation, with no comparable findings of contrition or remorse. The Court concluded that, taking all those matters into account, the requisite marked disparity was not established.

Orders Made

  • Time to file the notice of appeal extended to 31 July 2019 (to the extent necessary).
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A parity claim requires a court to compare the full circumstances of each offender, not simply the headline sentences. Discounts for early guilty pleas, Form 1 offences, and subjective factors must all be stripped back and considered individually.
  • Where a co-offender received a guilty plea discount, the appropriate comparator for a parity analysis is the undiscounted indicative sentence, not the sentence as actually imposed.
  • Under s 4 of the Drug Misuse and Trafficking Act 1985, charges may be framed by reference to an admixture rather than the pure drug content, and sentencing courts may have regard to purity when assessing objective seriousness without committing error.
  • Differing subjective circumstances, including conditional liberty at the time of offending, absence of remorse findings, and weaker rehabilitation prospects, can account for what might otherwise appear to be a disparity in sentence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a justified sense of grievance cannot be established unless all relevant similarities and differences between co-offenders are taken into account and a marked disparity remains after that exercise.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 4, 24, 24A, 33
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 33, 53A
- Firearms Act 1996 (NSW), ss 7, 7A

Cases
- R v James [2017] NSWCCA 287
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Lowe v The Queen (1984) 154 CLR 606
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Nguyen v R [2019] NSWCCA 213
- Roberts (a Pseudonym) v R [2019] NSWCCA 102
- Yacoub v R [2019] NSWCCA 47
- Lloyd v R [2017] NSWCCA 303
- Woods v R [2017] NSWCCA 5
- Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318
- Paxton v R [2011] NSWCCA 242
- Lam v R; Lam v R [2015] NSWCCA 87
- Finch v R [2016] NSWCCA 133
- Melikian v R [2008] NSWCCA 156