Yacoub v R

Citation: Yacoub v R [2019] NSWCCA 47
Court: Court of Criminal Appeal, NSW
Date: 15 March 2019
Judges: Gleeson JA, Harrison J, Davies J (unanimous)

Background

The appellant pleaded guilty in April 2017 to two charges of supplying a prohibited drug in quantities not less than a large commercial quantity: 780 grams of methylamphetamine and 2,190.5 grams of MDMA. Two further offences (dealing with identification information to commit fraud, and possessing cannabis) were taken into account on a Form 1, which is a mechanism that allows additional charges to be considered at sentencing without recording separate convictions.

The appellant operated as a middleman in a drug supply chain. He obtained the drugs from an upstream supplier, Christopher Agoris, then distributed them to various buyers, including an undercover police officer, across multiple transactions between late 2015 and April 2016. He was on parole at the time of the offending and had a lengthy criminal history involving drug and dishonesty matters.

In November 2017, Acting Judge Marien sentenced the appellant to an aggregate term of 12 years' imprisonment with a non-parole period of seven years, after applying a 25% discount for an early guilty plea and 15% for assistance to authorities. Some six months later, Agoris was sentenced by a different District Court judge to seven years and nine months with a non-parole period of five years for his role as the upstream supplier in the same enterprise.

Legal Issues

• Whether the sentencing judge correctly assessed the objective seriousness of both drug supply offences, particularly in relation to the purity and quantity of the drugs
• Whether the sentencing judge made erroneous findings about the appellant's motivation for the offending and his prospects of rehabilitation
• Whether the appellant was denied procedural fairness in connection with those findings
• Whether the sentence was manifestly excessive
• Whether the disparity between the appellant's sentence and that later imposed on co-offender Agoris gave the appellant a justifiable sense of grievance

Decision

The Court rejected the first two grounds, confirming that the assessment of objective seriousness in drug supply cases is not confined to purity or quantity alone. The sentencing judge had not erred in his approach to either offence.

On the procedural fairness ground, the Court found that inconsistencies existed between various reports tendered by the appellant regarding his motivation for the offending. However, the appellant was not denied an opportunity to address or clarify those inconsistencies, and the ground was not made out. The Court also declined to find that the sentence was manifestly excessive.

The appeal succeeded on the disparity ground. Agoris, as the upline supplier, was sentenced six months after the appellant by a different judge. His sentence for the MDMA supply (with two further offences on a Form 1) was significantly lower than the indicative sentence the appellant received for that same offence. The Court found that Agoris's sentence was not unduly lenient and that the resulting disparity gave the appellant a justifiable sense of grievance, which is a recognised basis for appellate intervention in sentencing.

On resentencing, the Court declined to depart from the original assessment of objective seriousness. It noted the appellant's significant criminal history, his parole status at the time of offending, and the absence of clear findings on rehabilitation as matters bearing on the sentence. The Court found special circumstances warranting an extended parole period, given that the appellant was serving his sentence in protection, confined to his cell for extended periods each day, and would require an extended period of community supervision upon release.

Orders Made

• Leave to appeal granted
• Appeal allowed
• Sentence imposed by Acting Judge Marien SC on 3 November 2017 quashed
• Appellant resentenced to an aggregate term of ten years' imprisonment commencing 7 April 2016 and expiring 6 April 2026, with a non-parole period of five years and nine months expiring 6 January 2022
• Indicative sentence on Count 1 (methylamphetamine, including Form 1 matters): five years with a non-parole period of three years
• Indicative sentence on Count 2 (MDMA): seven years with a non-parole period of four years

Key Takeaways

• Significant sentence disparity between co-offenders can ground a successful appeal, even where the co-offender was sentenced by a different judge and after the appellant's sentence was imposed, provided the co-offender's sentence was not unduly lenient.
• Assessing the objective seriousness of a drug supply offence is not limited to the purity or quantity of the drugs involved; courts consider the full circumstances of the supply conduct.
• A procedural fairness complaint about a sentencing judge's findings will not succeed where the offender had a genuine opportunity to address the relevant inconsistencies in the evidence.
• The Court of Criminal Appeal confirmed that special circumstances justifying a longer than usual parole period can arise where an offender is held in protection custody and faces particular difficulties reintegrating into the community.
• Where a co-offender is an upstream supplier yet receives a materially lower sentence, the sentencing court's task on resentencing requires careful attention to parity, without departing from an otherwise sound assessment of objective seriousness.

Legislation and Cases Referenced

Cases:
- Ali v R [2010] NSWCCA 35
- Chong v R [2017] NSWCCA 185
- Fenech v R [2018] NSWCCA 160
- Markarian v R (2005) 228 CLR 357
- Mulato v R [2006] NSWCCA 282
- Newman v R [2018] NSWCCA 208
- Ngati v R [2018] NSWCCA 32
- Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 218
- Vaiusu v R [2017] NSWCCA 71
- Wong v The Queen (2001) 207 CLR 584

Legislation: No specific legislation was cited in the metadata for this decision.