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Court of Criminal Appeal 6 October 2023

Bisasa v R

[2023] NSWCCA 251

Drugs
SENTENCING APPEAL AGAINST SENTENCE ATTEMPTED POSSESSION OF BORDER CONTROLLED DRUG APPLICANT SENTENCED BEFORE CO OFFENDER

Citation: Bisasa v R [2023] NSWCCA 251
Court: NSW Court of Criminal Appeal
Date: 6 October 2023
Judges: Basten AJA, Walton J, Sweeney J (reasons delivered by Sweeney J)

Background

The applicant pleaded guilty in the Local Court to one count of jointly attempting to possess a commercial quantity of unlawfully imported border-controlled drugs, specifically methamphetamine and MDMA, contrary to the Criminal Code Act 1995 (Cth). The offending involved a coordinated operation in November 2014 to extract roughly 2.79 tonnes of drugs from a shipping container at a Blacktown facility and transport them to a rented unit in Smithfield for repackaging. All participants were arrested at the Smithfield premises.

The applicant was sentenced by Pickering SC DCJ in the District Court in November 2019. He received a 25% discount for his early guilty plea and was sentenced to 16 years and 6 months imprisonment with a non-parole period of 11 years and 6 months. A co-offender, who was found guilty at trial of two charges covering the same two drugs, was sentenced by the same judge in March 2020. That co-offender received 16 years imprisonment with a non-parole period of 10 years.

The applicant sought leave to appeal out of time, contending that the co-offender's shorter sentence created a justifiable sense of grievance. The delay in filing was explained by the need to wait for the co-offender's trial to conclude before any meaningful comparison could be made.

  • Whether the applicant had a justifiable sense of grievance, within the meaning of the parity principle, arising from the difference between his sentence and the sentence later imposed on the co-offender.
  • Whether differences in role, subjective circumstances, and the structure of the charges adequately explained any apparent disparity between the two sentences.
  • Whether the sentencing judge had sufficiently addressed parity when sentencing both offenders.

Decision

The Court of Criminal Appeal granted leave to appeal out of time but dismissed the appeal on its merits. Sweeney J (with whom Basten AJA and Walton J agreed) found that the sentencing judge had carefully and thoroughly considered all relevant factors for both offenders, including the parity principle, and had expressly addressed it.

When sentencing the applicant first, the judge noted that the co-offender had not yet been sentenced and that he had not yet received subjective material on the co-offender's behalf. The judge's remarks at that stage were explicitly premised on the hypothetical of "if all things were equal." By the time the co-offender was sentenced, the judge had formed more definite views about the co-offender's lesser role in the enterprise and gave significant weight to three factors favouring him: a lesser degree of involvement, his youth, and the longer delay of five years before sentencing, which had adversely affected his mental health.

The applicant's role was found to be more significant than the co-offender's. The sentencing judge found that the applicant was the main conduit for instructions from those higher in the enterprise, directed the co-offender to carry out various tasks, and had the greatest insight into the operation. The co-offender's role, by contrast, was more subordinate.

The Court found it was reasonably open to the sentencing judge to differentiate between the two offenders in the manner he did. No objective basis existed for a justifiable sense of grievance, and the appeal was dismissed.

Orders Made

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

Key Takeaways

  • The parity principle does not require identical sentences for co-offenders; it requires that differences in sentences be explicable by legitimate distinctions in role, culpability, or subjective circumstances.
  • A sentencing judge who expressly addresses the parity question and identifies specific distinguishing factors between co-offenders is unlikely to have erred, even where one offender is sentenced before the other.
  • Where a judge sentences one offender before receiving full subjective material on a co-offender, conditional remarks about parity (premised on "if all things were equal") do not bind the judge to equalise sentences once that material is received and assessed.
  • In dismissing the appeal, the Court confirmed that lesser role, youth, and the mental health impact of a significantly longer pre-sentence delay were all legitimate bases for a reduced sentence for the co-offender.
  • The fact that the applicant faced one charge covering both drugs while the co-offender faced two separate charges did not, of itself, generate a justifiable sense of grievance; the sentencing judge was plainly aware of the different charging structures and expressly considered them.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 11.1, 11.2A, 307.5(1)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Chamon v R [2020] NSWCCA 112
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Lloyd v R [2017] NSWCCA 303
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46