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Court of Criminal Appeal 22 February 2023

Aljubouri v R

[2023] NSWCCA 29

Drugs
CRIMINAL LAW A PPEALS APPEAL AGAINST SENTENCE TWO GROUNDS OF APPEAL NO ERROR ESTABLISHED LEAVE TO APPEAL GRANTED

Citation: Aljubouri v R [2023] NSWCCA 29
Court: NSW Court of Criminal Appeal
Date: 22 February 2023
Judge(s): Beech-Jones CJ at CL; Walton J; Yehia J

Background

The appellant pleaded guilty to manufacturing 5,820 grams of methylamphetamine (a large commercial quantity) between March and April 2019, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). A proceeds of crime offence under the Crimes Act 1900 (NSW) was taken into account on a Form 1. The sentencing judge in the District Court imposed a sentence of 7 years and 6 months, with a non-parole period of 4 years, applying a 25% discount for the early guilty plea.

The offending arose from a joint criminal enterprise involving the appellant and four co-offenders, each playing different roles. The appellant leased storage units used to house the waste products of manufacture, occasionally attended the manufacturing site, and was entrusted to transport a substantial sum of cash connected to the operation. All five co-offenders were sentenced by the same District Court judge.

Dissatisfied with his sentence, the appellant sought leave to appeal to the Court of Criminal Appeal. He argued that the sentencing judge had misapplied the parity principle by treating him as comparably culpable to two co-offenders (Ardus and Le) and more culpable than two others (Chan and Gao).

  • Whether the sentencing judge erred by assigning the appellant comparable culpability to co-offenders Ardus and Le, who were directly involved in the physical cooking of the drug.
  • Whether the sentencing judge erred by finding the appellant more culpable than co-offenders Chan and Gao.
  • Whether any disparity between the sentences imposed created a justifiable sense of grievance warranting appellate intervention under the parity principle.

Decision

The Court of Criminal Appeal granted leave to appeal but unanimously dismissed the appeal. Walton J delivered the principal judgment, with Beech-Jones CJ at CL and Yehia J agreeing.

On the comparison with Ardus and Le, the Court found no error. Although those co-offenders were physically involved in the cooking process, the appellant's role carried its own significance: he leased the storage units for waste products and was trusted to transport cash derived from the enterprise. The sentencing judge was entitled to view these responsibilities as placing the appellant at a comparable level of culpability to Ardus and Le.

On the comparison with Chan and Gao, the Court was similarly unpersuaded. Neither Chan nor Gao was involved in leasing the storage units, and both were less involved in the manufacturing process than Ardus and Le. Additionally, Chan's moral culpability was reduced by his mental illness. These differences justified the sentencing judge's assessment that Chan and Gao were less culpable than the appellant.

The Court found that the sentencing judge had specifically addressed and applied the parity principle, carefully balancing the qualitative and subjective factors for each offender. No marked disparity was established that would give rise to a justifiable sense of grievance, and no error in the sentencing judge's reasoning or conclusions was demonstrated.

Orders Made

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

Key Takeaways

  • No error was established in the sentencing judge's application of the parity principle, where the judge had explicitly considered the different roles and subjective circumstances of all five co-offenders sentenced for the same joint enterprise.
  • A finding of comparable culpability between co-offenders does not require identical roles: the Court confirmed that logistical responsibilities, such as leasing storage facilities and transporting proceeds, can properly be weighed against the physical acts of drug manufacture.
  • Under the parity principle as affirmed in Postiglione v The Queen (1997) 189 CLR 295 and Green v The Queen (2011) 244 CLR 462, an appellant must demonstrate a marked disparity producing a justifiable sense of grievance, and fine differences in sentencing outcomes among co-offenders will not, of themselves, satisfy that threshold.
  • Factors reducing a co-offender's moral culpability, such as mental illness, are legitimate considerations that can justify a lower sentence for that co-offender without creating a parity problem for others.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that appellate intervention in sentencing requires demonstrated error in the sentencing process, not merely disagreement with the weight given to individual factors (applying House v The King (1936) 55 CLR 499).

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 24(2)
- Crimes Act 1900 (NSW), s 193B(2)
- Criminal Appeals Act 1912 (NSW), s 5(1)(c)

Cases
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Borg v R [2019] NSWCCA 129
- Mir v The Queen [2022] NSWCCA 132