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Court of Criminal Appeal 13 October 2023

Elmir v R

[2023] NSWCCA 260

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE PARITY DISPARITY BETWEEN APPLICANT AND CO OFFENDER

Citation: Elmir v R [2023] NSWCCA 260
Court: Court of Criminal Appeal, New South Wales
Date: 13 October 2023
Judges: Gleeson JA, Walton J, Dhanji J (judgment by Dhanji J, with whom Gleeson JA and Walton J agreed)

Background

The applicant was convicted of conspiracy to import commercial quantities of border-controlled drugs, specifically MDMA, cocaine, and methamphetamine, between March and August 2017. The offence carried a maximum penalty of life imprisonment. The applicant's involvement centred on facilitating connections between an undercover operative and a Dutch drug syndicate, operating from Dubai, across two separate but "rolled up" conspiracies.

At sentencing in the District Court in March 2022, the applicant received a 24-year term of imprisonment (after a 25% plea discount), with a non-parole period of 14 years. The sentencing judge expressly considered parity at that time by reference to the sentence already imposed on a co-offender, Mr Ibrahim, who had been sentenced by the same judge.

After the applicant was sentenced, Mr Ibrahim successfully appealed his own sentence to the Court of Criminal Appeal: Ibrahim v R [2022] NSWCCA 161. Mr Ibrahim's indicative sentence for the offence common to both men was reduced from 22 years and 6 months to 19 years and 6 months. This created the disparity at the heart of the applicant's appeal.

  • Whether the applicant had a justifiable sense of grievance arising from the disparity between his sentence and the reduced sentence imposed on Mr Ibrahim following Mr Ibrahim's successful appeal.
  • Whether parity principles could be engaged where the disparity arose not from the original sentencing but from a co-offender's subsequent successful appeal.
  • What the appropriate resentence should be, having regard to parity, the seriousness of the offending, and other relevant sentencing factors.

Decision

The Court confirmed that a justifiable sense of grievance can arise from a sentence imposed on a co-offender after the applicant's own sentencing, including where that later sentence results from a successful appeal. This principle is established by Jones v The Queen (1993). Because Mr Ibrahim's indicative sentence for the common offence was reduced to 19 years and 6 months on appeal, the applicant's 24-year term was now materially out of step with that of his co-offender.

The Court acknowledged that Mr Ibrahim's overall sentence involved additional, more serious offences, which meant the totality principle had operated to reduce the indicative sentence for the common offence in his case. The Court was careful to assess the actual comparative effect of the sentences rather than making a purely arithmetical comparison. It also noted that the severity of a sentence is not simply a linear function of its length, drawing on R v MAK; R v MSK.

Having adopted the sentencing judge's factual findings and additionally taking into account post-sentencing events and hardship to the applicant's family (in accordance with Totaan v R), the Court concluded that a reduced sentence was warranted. The Court also observed that the seriousness of the offending placed limits on how far any reduction could go while remaining appropriate under s 16A(1) of the Crimes Act 1914 (Cth).

The Court re-sentenced the applicant to 20 years' imprisonment with a non-parole period of 12 years, both commencing from 8 August 2017.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 11 March 2022 quashed.
  • Applicant re-sentenced to 20 years' imprisonment, commencing 8 August 2017 and expiring 7 August 2037.
  • Non-parole period of 12 years set, commencing 8 August 2017 and expiring 7 August 2029.

Key Takeaways

  • A co-offender's successful sentence appeal, occurring after the applicant's own sentencing, can generate a justifiable sense of grievance sufficient to ground a parity-based appeal, even where the original sentencing judge expressly considered parity at first instance.
  • Parity analysis requires an assessment of the actual comparative effect of sentences, including the operation of totality and indicative sentences within aggregate terms, rather than a simple comparison of headline numbers.
  • Under s 16A(1) of the Crimes Act 1914 (Cth), the seriousness of an offence imposes a floor below which a sentence cannot appropriately be reduced, even in response to a valid parity complaint.
  • Post-sentencing evidence, including events occurring after the original sentence was imposed and evidence of family hardship, is a proper consideration on resentencing by the Court of Criminal Appeal, consistent with Totaan v R.
  • The Court of Criminal Appeal reduced the applicant's sentence from 24 years (non-parole period 14 years) to 20 years (non-parole period 12 years) to address the disparity created by Mr Ibrahim's successful appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code 1995 (Cth), ss 11.5(1), 307.1(1)

Cases
- Bahcekapili v R [2020] NSWCCA 296
- Betts v The Queen (2016) 258 CLR 420
- Fenech v R [2018] NSWCCA 160
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Hung v R [2023] NSWCCA 172
- Ibrahim v R [2022] NSWCCA 161
- Jones v The Queen (1993) 67 ALJR 376
- Kelly v R [2017] NSWCCA 256
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR 295
- R v Clarke [2013] NSWCCA 260
- R v Elmir [2022] NSWDC 317
- R v MAK; R v MSK (2006) 167 A Crim R 159
- R v Tisalandis [1982] 2 NSWLR 430
- Smith v The Queen [2022] NSWCCA 123
- Totaan v R (2022) 108 NSWLR 17
- Wood v R [2022] NSWCCA 84