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Court of Criminal Appeal 18 February 2022

El Masri v R

[2022] NSWCCA 27

Drugs
CRIME A PPEALS A PPEAL AGAINST SENTENCE W HETHER SENTENCE MANIFESTLY EXCESSIVE A PPEAL ALLOWED

Citation: El Masri v R [2022] NSWCCA 27
Court: NSW Court of Criminal Appeal
Date: 18 February 2022
Judges: Beech-Jones CJ at CL, Davies J, Bellew J

Background

The appellant was sentenced in the District Court in June 2020 to six years and eight months imprisonment, with a non-parole period of four years and eight months, for supplying prohibited drugs on an ongoing basis contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW). The offending involved supplying methylamphetamine to a co-participant, Brooke Streeter, on multiple occasions between 31 May 2018 and 27 June 2018, with a total of 252 grams actually supplied across seven transactions. The maximum penalty for the offence is 20 years imprisonment.

The appellant was identified during a police strike force investigation targeting drug supply in the Sutherland Shire. He was not an original target of the investigation but was identified through intercepted phone calls and surveillance. He voluntarily attended a police station upon request, was arrested, and ultimately pleaded guilty to a single count of ongoing supply in full satisfaction of the indictment shortly before a scheduled trial date.

The sentencing judge found that the appellant played a key role in sourcing drugs for Streeter to on-supply, and received a benefit from the arrangement, though she accepted he was also a drug user who partly funded his own habit through the enterprise. The appellant sought leave to appeal on three grounds.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offending
  • Whether the sentencing judge erred by failing to treat Brooke Streeter as a co-offender and apply the parity principle accordingly
  • Whether the sentence was manifestly excessive in all the circumstances, particularly given the appellant's subjective case

Decision

Ground 1: Objective seriousness. The Court of Criminal Appeal accepted that the sentencing judge's assessment of objective seriousness was reasonably open on the facts. The appellant had supplied drugs on nine separate occasions over 28 days (well exceeding the statutory minimum of three occasions), the quantity was substantial, and the purity was relatively high. The sentencing judge's conclusion that the offending fell in the mid-to-upper range was not demonstrated to be erroneous, and this ground was not upheld.

Ground 2: Parity. Streeter and other related participants were sentenced for different charges, including charges placed on a Form 1 schedule (matters taken into account at sentencing without a separate conviction). The Court acknowledged that the parity principle can apply beyond strict co-offenders. However, the Court found the sentencing judge had engaged with parity considerations and reasonably concluded that the differences between the appellant's charges, offending conduct, and subjective circumstances and those of Streeter were so significant that little assistance could be drawn from comparison. This ground also failed. Beech-Jones CJ at CL specifically endorsed that reasoning as consistent with the High Court's approach in Green v The Queen; Quinn v The Queen.

Ground 3: Manifest excess. This ground succeeded. The Court found the sentence was excessive when measured against comparable cases and sentencing statistics, which had not been placed before the sentencing judge. Davies J observed that the appellant had a strong subjective case: he had genuine remorse, reasonable rehabilitation prospects, mental health and learning difficulties that moderated his moral culpability, and had since been reclassified to a lower custodial security rating with trusted employment. On independent resentencing, Davies J assessed the offending as falling within the mid-range, applied a 5% plea discount, and found special circumstances warranting a longer parole period to support rehabilitation.

The Court noted it was unsatisfactory that comparable cases and statistics were not provided to the sentencing judge, referencing observations in Zreika v R about the responsibility of counsel to furnish such material at sentence hearings.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 18 June 2020 quashed
  • In lieu, the appellant sentenced to a non-parole period of 3 years and 8 months commencing 24 July 2018 and expiring 23 March 2022, with a balance of term of 1 year and 6 months expiring 23 September 2023

Key Takeaways

  • A sentencing judge's assessment of objective seriousness will not be disturbed on appeal merely because an alternative assessment was open; the Court of Criminal Appeal confirmed that the assessment here fell within the available range and disclosed no error.
  • The parity principle is not confined to formal co-offenders but can extend to participants in a related criminal enterprise. However, where the charges, offending conduct, and subjective circumstances of the persons being compared differ substantially, a sentencing court may properly conclude that little useful comparison can be drawn.
  • Manifest excess was established where comparable cases and sentencing statistics, provided to the appellate court but not the sentencing judge, demonstrated the sentence was out of step with sentences for similar offending.
  • Special circumstances warranting a longer parole period can be found where an offender requires an extended period of supervised release to support rehabilitation, particularly where mental health and learning difficulties are relevant factors.
  • The Court reiterated, citing Zreika v R, that the failure to place comparable cases and statistics before a sentencing judge is a matter of concern for how sentence hearings are conducted by counsel, not merely a ground of appellate complaint.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A

Cases:
- Daher v R [2018] NSWCCA 287
- Darcy v R [2019] NSWCCA 159
- Dunn v R [2018] NSWCCA 108
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Greer v R [2015] NSWCCA 312
- Mandranis [2021] NSWCCA 97
- Mulato v R [2006] NSWCCA 282
- Nguyen, Kathy v R [2015] NSWCCA 209
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Newport [2020] NSWDC 245
- R v Smiroldo [2000] NSWCCA 120; (2000) 112 A Crim R 47
- R v Wong [2018] NSWCCA 20
- Wong v The Queen (2001) 207 CLR 584
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460