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Court of Criminal Appeal 14 July 2023

Kiraz v R

[2023] NSWCCA 177

DrugsFirearms & weapons
CRIME APPEAL AGAINST SENTENCE AGGREGATE SENTENCE NO ERROR PARITY WITH SENTENCE OF ASSERTED CO OFFENDER

Citation: [2023] NSWCCA 177
Court: NSW Court of Criminal Appeal
Date: 14 July 2023
Judges: Beech-Jones CJ at CL, Fagan J, R A Hulme AJ (judgment delivered by R A Hulme AJ)

Background

The appellant was convicted in the District Court of supplying a large commercial quantity of methylamphetamine, possessing a prohibited weapon (an anti-personnel conducted energy device, commonly known as a taser), and related offences. Additional charges, including supplying indictable quantities of methylamphetamine and gamma butyrolactone, and dealing with suspected proceeds of crime, were taken into account on a Form 1. The offending arose from the appellant's purchase of drugs on ten occasions from a "dial-a-dealer" syndicate, with the appellant then on-supplying those drugs to others.

The sentencing judge in the District Court imposed indicative sentences of 6 years for the primary drug supply offence and 3 years for the weapons offence, then applied an aggregate sentence of 8 years with a non-parole period of 5 years and 4 months. The judge acknowledged some overlap in the objective seriousness of the two offences, noting that the taser's proximity to drugs and cash elevated the seriousness of the weapons charge.

The appellant sought leave to appeal on two grounds. First, he argued the aggregate sentence was manifestly excessive because insufficient account was taken of the overlap in criminality between the offences. Second, he argued his sentence was disproportionately harsh compared to that of a man who had delivered drugs to him on one occasion and who was later sentenced for his own large commercial supply offences to an aggregate term three months shorter.

  • Whether the aggregate sentence was manifestly excessive, specifically whether the sentencing judge gave insufficient weight to the overlap in criminality between the drug supply and weapons offences when arriving at the aggregate figure.
  • Whether the parity principle applied so as to require a reduction in the appellant's sentence to address the disparity between his sentence and that imposed on the delivery person from the supplying syndicate.

Decision

On manifest excess: The Court confirmed that the central question in assessing an aggregate sentence is whether it properly reflects the totality of the offending. R A Hulme AJ, with Beech-Jones CJ at CL and Fagan J agreeing, noted that the sentencing judge had acknowledged the overlap in criminality and had moderated the aggregate accordingly. Given the unchallenged findings on objective seriousness, the applicable maximum penalties, and the further serious offences on the Form 1, the aggregate sentence fell within the acceptable range of sentencing discretion. The Court could not characterise it as manifestly excessive.

On parity: The parity principle operates to prevent a justifiable sense of grievance arising when co-offenders in the same criminal enterprise receive substantially different sentences. The Court confirmed this principle is not engaged simply because two people committed offences that intersected in some factual way. It requires that the persons being compared were participants in the same criminal enterprise.

The Court found the appellant and the delivery person were not co-offenders in that sense. The appellant was a customer of the supply syndicate; the syndicate operated independently of the appellant's own drug supply activities. Their roles intersected on only one occasion out of ten drug transactions. The parity principle therefore had no application, and this ground also failed.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle requires that the persons being compared were co-offenders involved in the same criminal enterprise. It does not extend to comparisons between a drug purchaser and the members of the supply syndicate from which that purchaser sourced drugs.
  • A buyer-supplier relationship, without shared participation in the same criminal enterprise, is insufficient to engage the parity principle, even where the two parties interacted directly on at least one occasion.
  • In dismissing the manifest excess ground, the Court applied the principle that the critical question for an aggregate sentence is whether it reflects the totality of criminality, not whether the precise accumulation of individual indicative sentences could have been calibrated differently.
  • Where a sentencing judge has expressly acknowledged an overlap in criminality between offences and moderated the aggregate accordingly, an appellate court will not intervene unless the result falls outside the bounds of legitimate sentencing discretion.
  • Using a single comparative case to assess manifest excess is rarely useful, particularly where the offences charged and subjective circumstances differ substantially between the two offenders being compared.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 193C(2) (dealing with suspected proceeds of crime)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and (2) (supply of prohibited drugs)
- Weapons Prohibition Act 1988 (NSW), s 7(1) (possession of prohibited weapon)

Cases:
- GG v R [2023] NSWCCA 102
- Burke v R [2022] NSWCCA 6
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162
- R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555
- Meager v R [2009] NSWCCA 215
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Obeid v R (2018) 96 NSWLR 155; [2017] NSWCCA 221
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- R v Irwin [2019] NSWCCA 133