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Court of Criminal Appeal 8 February 2023

Hassoun v R

[2023] NSWCCA 5

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE PARITY CRIMINAL DRUG SYNDICATE WHERE ALL OFFENDERS INVOLVED IN DAY

Citation: Hassoun v R [2023] NSWCCA 5
Court: Court of Criminal Appeal, New South Wales
Date: 8 February 2023
Judges: Mitchelmore JA (principal judgment); Davies J; Hamill J

Background

The applicant was a member of a criminal drug syndicate that operated across Sydney between June and November 2019. The syndicate ran two "call centre" telephone services through which customers ordered cocaine, with drug runners delivering small deal bags of less than one gram. The applicant's role centred on managing one of these call centres: taking orders, directing runners, and organising their working arrangements. He pleaded guilty to one count of supplying a large commercial quantity of cocaine (1.47 kilograms) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).

He was sentenced in the District Court at the same time as two co-offenders, Halloum and Chami, who faced the same charge but in relation to a larger quantity (2.63 kilograms). Halloum was sentenced to 8 years and 3 months with a non-parole period of 5 years; Chami received 7 years and 10 months with a non-parole period of 4 years and 8 months. The applicant received 7 years and 6 months with a non-parole period of 4 years and 6 months.

The applicant sought leave to appeal, arguing that his sentence was not sufficiently differentiated from those of his co-offenders given differences in their respective roles, the drug quantities involved, and Halloum's significant criminal record.

  • Whether the applicant had a justifiable sense of grievance arising from the sentences imposed on his co-offenders, applying the parity principle
  • Whether the sentencing judge erred by failing to make greater differentiation between the applicant's sentence and those of Halloum and Chami, given:
  • The co-offenders were charged in relation to a larger quantity of cocaine (2.63 kg versus 1.47 kg)
  • The co-offenders were linked to activity at the Bankstown safe houses, from which the applicant was absent
  • Halloum had a substantial criminal record involving kidnapping and robbery in company
  • The respective levels of risk involved in each offender's role may have varied over time

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Mitchelmore JA, with Davies and Hamill JJ agreeing, found that the sentencing judge had properly considered both the shared criminality of the three offenders within the syndicate and each offender's individual subjective circumstances. Nothing in the sentencing judge's reasons or the resulting sentences gave rise to a justifiable sense of grievance on the applicant's part.

On the question of drug quantity, the Court noted that all three offenders had agreed to a communal quantity for the purpose of their respective charges and that each acknowledged facilitating the syndicate's supply with respect to all cocaine handled by the enterprise. The difference in particularised quantities did not, by itself, compel a meaningfully lower sentence for the applicant.

Regarding the Bankstown safe houses, the Court accepted that no forensic evidence linked the applicant to those locations. However, the applicant was linked to the Croydon Park residence and was equally involved in directing the syndicate's day-to-day operations. The distinction in physical presence at particular locations did not require a substantially different sentencing outcome.

On Halloum's criminal record, the Court acknowledged that the sentencing judge factored this into Halloum's higher sentence. The relatively limited differentiation this produced did not demonstrate that the sentencing exercise had miscarried. As Hamill J observed, while it may have been open to impose a slightly lower sentence on the applicant, there is no single correct sentence and no single correct proportion between sentences imposed on different offenders. The applicant's role in the syndicate was not materially different from that of his co-offenders, and no error warranting intervention was established.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The parity principle does not require mathematical equivalence between co-offender sentences; a justifiable sense of grievance arises only where the disparity is such that it is properly characterised as unjust, not merely where a slightly different result might also have been open.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where co-offenders share substantially the same role in a joint criminal enterprise, sentencing courts are not obliged to make fine-grained distinctions based on peripheral factual differences in individual involvement.
  • A co-offender's more serious criminal history can be reflected through a higher sentence for that co-offender without requiring a proportionally reduced sentence for an offender with a clean record.
  • Differences in the quantity of drugs particularised in individual charges do not automatically mandate significant sentencing disparities where all offenders collectively facilitated the same enterprise and agreed to the broader communal quantity.
  • No error was established simply because the sentencing outcome fell within a range that would also have permitted a marginally lower sentence for the applicant.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 33(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A
- Firearms Act 1996 (NSW), s 65(3)

Cases
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Wong v R (2001) 207 CLR 584; [2001] HCA 64
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242
- Kuo v R [2018] NSWCCA 270
- Harris v R [2021] NSWCCA 322
- Chamon v R [2020] NSWCCA 112
- Jaafar v R [2022] NSWCCA 254
- Moran v R [2022] NSWCCA 217
- DS v R [2014] NSWCCA 267
- Ninness v R [2014] NSWCCA 288
- Huckstadt v R [2016] NSWCCA 22
- R v MacDonnell (2002) 128 A Crim R 44; [2002] NSWCCA 34