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Court of Criminal Appeal 1 March 2019

Arab v R

[2019] NSWCCA 39

DrugsFirearms & weapons
CRIME CRIMINAL APPEAL SENTENCE APPEAL FOUR CO OFFENDERS APPEAL REFUSED.

Citation: Arab v R [2019] NSWCCA 39
Court: NSW Court of Criminal Appeal
Date: 1 March 2019
Judge(s): Macfarlan JA; Rothman J; R A Hulme J

Background

The applicant pleaded guilty in the District Court to three offences: supply of not less than an indictable quantity of cocaine (74.04g), possession of an unregistered firearm (a Beretta shotgun), and possession of a prohibited weapon (a Taser). Each offence carried a related Form 1 matter, including knowingly dealing with the proceeds of crime. The sentencing judge imposed an aggregate sentence of 5 years and 10 months, with a non-parole period of 3 years and 4 months.

The applicant was one of four offenders sentenced in connection with a sophisticated cocaine supply syndicate operating across Sydney. The syndicate ran like a delivery business: orders came through a centralised mobile phone, drivers covered designated areas, and shifts were rostered around periods of anticipated high demand. The applicant had joined the syndicate shortly before police surveillance commenced and supplied at least 74 bags totalling approximately 66g of cocaine.

The three co-offenders each faced more serious charges. All three were convicted under the commercial quantity supply provision (rather than the indictable quantity provision that applied to the applicant), and their individual drug quantities, number of supply occasions, and proceeds of crime figures were substantially greater. Their aggregate sentences ranged from 7 years to 7 years and 6 months. The applicant sought leave to appeal on the sole ground that his sentence produced an unjustifiable sense of grievance when compared to those imposed on the co-offenders.

  • Whether the disparity between the applicant's sentence and those of his co-offenders gave rise to a justifiable sense of grievance, as required to establish a successful parity ground of appeal.
  • Whether the sentencing judge's differentiation between the applicant and his co-offenders was irrational or plainly unjust.
  • Whether an extension of time should be granted to file the appeal out of time.

Decision

The Court of Criminal Appeal confirmed the well-established parity principle: those who are relevantly equal must be treated equally, while those who are relevantly unequal must be treated differently in a way that rationally reflects those differences. The central question was not one of mathematics but whether the differential between the applicant's sentence and those of the co-offenders was irrational or gave rise to a justifiable sense of grievance.

The Court found that the applicant's offending was materially different from that of the co-offenders in several significant respects. The co-offenders were convicted of the more serious commercial quantity supply offence, whereas the applicant was convicted only of the indictable quantity offence. The co-offenders each supplied considerably greater quantities of cocaine over a greater number of occasions and were involved more deeply in the syndicate's operations. Two of the co-offenders were intercepted handling the centralised phone used to receive orders.

Rothman J concluded that the applicant had not satisfied any test warranting appellate interference with the sentence. The learned sentencing judge's differentiation rationally reflected the differences in the offences and the offenders. R A Hulme J agreed, finding the disparity was neither unreasonable nor plainly unjust.

On the procedural question, the Court accepted that the delay in filing the appeal was not the applicant's fault. Counsel was briefed in February 2018 but did not provide advice on prospects until September 2018, and the appeal was lodged within three weeks of that advice. An extension of time was therefore granted.

Orders Made

  • Time for filing the appeal extended to 21 September 2018 (the date the Notice of Appeal was lodged).
  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle requires sentencing courts to treat relevantly equal offenders equally and to differentiate between those who are relevantly unequal in a manner that rationally reflects those differences.
  • A successful parity appeal requires the applicant to establish a justifiable sense of grievance, meaning the differential in sentence must be irrational or plainly unjust, not merely significant in numerical terms.
  • Where co-offenders face more serious statutory charges, supplied substantially greater quantities of a prohibited drug, and played more central roles in the offending enterprise, a markedly lower sentence for the less culpable offender will not necessarily be inadequate.
  • Mathematical comparison of sentences between co-offenders does not determine whether a parity ground succeeds; the court's focus is on the rationality of the differentiation in light of all relevant distinctions.
  • An extension of time to appeal may be granted where delay was caused by the time taken to obtain legal advice on prospects, and was not attributable to any fault on the part of the applicant.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)
- Crimes Act 1900 (NSW), s 193B(2)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Firearms Act 1996 (NSW), s 36(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- Wong v The Queen (2001) 207 CLR 584
- Postiglione v The Queen (1997) 189 CLR 295
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Jimmy v The Queen (2010) 77 NSWLR 540
- House v The King (1936) 55 CLR 499
- Markarian v The Queen (2005) 228 CLR 357
- Kentwell v The Queen (2014) 252 CLR 601
- Fenech v R [2018] NSWCCA 160
- Grabovac v R [2018] NSWCCA 100
- R v Darwich [2018] NSWCCA 46
- Why v R [2017] NSWCCA 101