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Court of Criminal Appeal 23 April 2025

Saab v R

[2025] NSWCCA 58

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE PARITY LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: Saab v R [2025] NSWCCA 58
Court: NSW Court of Criminal Appeal
Date: 23 April 2025
Judges: Ward P at [1]; Yehia J at [2]; Coleman J at [78]

Background

The applicant pleaded guilty in the District Court to importing a commercial quantity of a border controlled drug, specifically 235.848 kg of pure methamphetamine, contrary to s 307.1(1) of the Criminal Code (Cth). The sentencing judge also took into account a related offence of attempting to possess a commercial quantity of a border controlled drug. The applicant received a sentence of 9 years' imprisonment with a non-parole period of 6 years, reflecting a 25% discount for his early plea.

Two co-offenders were sentenced on the same day, arising from the same importation. Mr De Luca was sentenced for both a federal attempt-to-possess offence and a separate state drug supply offence, receiving an undiscounted head sentence of 9 years and 6 months for the federal offence. Mr Saliba, whose role was more limited, received an undiscounted head sentence of 8 years' imprisonment for his attempt-to-possess offence.

The applicant's undiscounted head sentence was 12 years' imprisonment. He sought leave to appeal on the sole ground that his sentence gave rise to a justifiable sense of grievance when compared with the sentences imposed on his co-offenders, particularly Mr De Luca.

  • Whether the disparity between the applicant's sentence and those imposed on his co-offenders was sufficient to engage the parity principle and warrant appellate intervention.
  • Whether the higher sentence imposed on the applicant was justified by differences in his role, subjective circumstances, and the additional matters taken into account at sentencing.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Yehia J (with Ward P and Coleman J agreeing) found that the sentencing judge had given careful attention to the parity principle and that the differences in the sentences were entirely justified.

The Court confirmed the applicable legal principle: a disparity between co-offender sentences must be "marked" to attract appellate intervention, but it need not be "gross" or "glaring." The critical inquiry is whether the similarities and dissimilarities between co-offenders justify the difference, and a mere difference in sentences does not, without more, establish an unjustified disparity.

On the facts, the applicant's role was greater than that of either co-offender, extended over a longer period, and included evidence of planning, premeditation, and concealment. Mr De Luca's role, while essential, was found to be less critical, and Mr Saliba's role was limited. These differences in objective criminality provided significant justification for the higher sentence imposed on the applicant.

Two further distinguishing factors reinforced the outcome. First, unlike his co-offenders, the applicant was subject to conditional liberty at the time of the offending, having been on bail and then an Intensive Correction Order for separate drug-related matters. The breach of that order was a factor the sentencing judge was obliged to take into account. Second, the sentencing judge had also taken into account the additional schedule offence under s 16BA, which placed upward pressure on the principal sentence. The Court was satisfied the disparity fell within the bounds of the legitimate discretionary judgments available to the sentencing judge.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a "marked" disparity between co-offender sentences is the threshold for appellate intervention under the parity principle, and that threshold does not require the disparity to be "gross" or "glaring."
  • A difference in sentences between co-offenders does not, in itself, establish a justifiable sense of grievance; the court must assess the relevant similarities and dissimilarities in each offender's role and subjective circumstances.
  • Breaching conditional liberty, such as an Intensive Correction Order, at the time of the relevant offending is a legitimate and significant distinguishing factor that can justify a higher sentence relative to co-offenders not subject to such conditions.
  • Where a sentencing court takes into account a schedule offence under s 16BA of the Crimes Act 1914 (Cth), that factor may properly place upward pressure on the sentence for the principal offence, further differentiating an offender from co-offenders for whom no such matter was considered.
  • In dismissing the appeal, the Court reinforced that parity analysis requires a qualitative assessment of each offender's individual circumstances, not merely an arithmetical comparison of sentence lengths.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 11.1, 307.1, 307.5
- Crimes Act 1914 (Cth), s 16BA
- Drug Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes Act 1900 (NSW), s 192K

Cases:
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Keen v R [2024] NSWCCA 157
- Zahed v R [2024] NSWCCA 171
- Vujinovic v R [2024] NSWCCA 10
- Mohr v R [2024] NSWCCA 197
- Hung v R [2023] NSWCCA 172
- R v RE [2023] NSWCCA 184
- Jaafar v R [2022] NSWCCA 254
- Weiss v R [2020] NSWCCA 188
- Fenech v R [2018] NSWCCA 160
- Cameron v R [2017] NSWCCA 229
- Lloyd v R [2017] NSWCCA 303
- Miles v The Queen [2017] NSWCCA 266
- DS v R [2014] NSWCCA 267
- Mammone v R [2013] NSWCCA 95