Chamon v R

1. [1]

   R A HULME J: Mr Florian Chamon (the applicant) seeks leave to appeal against a sentence imposed in the District Court at Sydney on 19 July 2019 by his Honour Judge Norrish QC.

2. [2]

   The applicant had pleaded guilty to the following offences:

3. [3]

   The applicant asked that his guilt in respect of two further offences be taken into account in sentencing for the offence identified as sequence 6. They were offences of supplying prohibited drugs, [4] one involving the supply of 28.1g of Ketamine (Seq 2) and the other involving the supply of 17g of MDMA (Seq 7).

4. [4]

   The learned sentencing judge imposed an aggregate sentence of imprisonment for 5 years with a non-parole period of 3 years dating from 6 April 2018 (the date of the applicant’s arrest).

5. [5]

   In accordance with s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour indicated that if not imposing an aggregate sentence he would have imposed the following terms of imprisonment:

6. [6]

   The applicant seeks leave to appeal on a single ground:

Facts

1. [7]

   There was a statement of agreed facts for the sentencing of the applicant and Messrs Hannachi, Watchou and Micah from which the following is drawn.

2. [8]

   In November 2017, police commenced investigating the supply of prohibited drugs (MDMA) by a Sydney-based syndicate. The four named offenders and other persons were members of the syndicate. The other persons were Nicholas Coulaud, Kevin Yohan Jonathan Bianchi and Damien Masset. Between November 2017 and 6 April 2018 there were numerous surveillance operations targeting these men. A person named Johnathon Malla was mentioned in that context. The agreed facts also refer to a street-level supplier by the name "Medhi".

3. [9]

   An address in Crown Street, Surry Hills was being used by the offenders Hannachi, Micah and Watchou as a base for the supply of drugs. Hannachi lived in an apartment in College Street, Darlinghurst; the applicant, Coulaud and Malla lived in an apartment in Steam Mill Lane, Haymarket; and Masset and Bianchi lived in an apartment at Tamarama.

4. [10]

   A controlled operation was authorised in early December 2017 with a focus on the supply of drugs by Watchou. A particular mobile phone was intercepted and it was established that it was the “run phone” used by Watchou and others engaged in the street level supply of MDMA for Hannachi. The intercepted information identified regular shift work for each runner and supplies of a number of different prohibited drugs. Hannachi himself used the run phone on an occasion when there was a dispute about prices. Hannachi obtained prohibited drugs from Coulaud and the applicant at their home in Haymarket.

5. [11]

   After that general description of the activities of the syndicate, the agreed facts proceed to describe specific drug supply transactions. On most occasions, the drugs were supplied to a “known person”. The drugs supplied to that person were thereby seized by police, whereupon analysis confirmed the nature of the drug, its weight and its purity.

6. [12]

   The following is a summary of supply transactions that subsequently constituted charges brought against one or more of the offenders. (The supplies were to the "known person" unless otherwise indicated.)

7. [13]

   The applicant was arrested on 6 April 2018. Cash totalling $163,235.90 was found in various places in the Haymarket apartment and his car. He told police the money was his savings and was to be used to buy a coffee shop. The $163,235.90 constituted the proceeds of crime offence (Seq 3). Police also found digital scales, three boxes of vacuum seal bags and a number of mobile phones and laptops.

8. [14]

   The applicant was also charged with participating in a criminal group in the period 8 March 2018 to 6 April 2018 (Seq 5). The agreed facts were that he had been monitored on a surveillance device in the Haymarket apartment on a number of occasions receiving, handling and packaging drugs. There were also significant amounts of cash that were handled in connection with drug supply activity. The agreed facts provided the following particulars:

Sentencing of co-offenders

1. [15]

   The co-offenders all pleaded guilty and they were sentenced by Norrish QC DCJ on various dates.

2. [16]

   The applicant and Hannachi were sentenced together on 19 July 2019. There had been joint proceedings on sentence with Bianchi, Micah and Watchou but their proceedings were adjourned to later dates.

3. [17]

   Cheker Hannachi received an aggregate sentence of 6 years with a non-parole period of 3 years and 7 months based upon the following offences:

4. [18]

   The agreed facts summarised the basis of Mr Hannachi's offence of directing the activities of the criminal group. He gave directions in relation to the supplies made on 28 December 2017 and 30 January 2018 and the agreement to supply on 23 January 2018. These constituted his substantive offences identified as Sequences 3 and 5. Telephone intercepts showed that he directed the actions of street level suppliers, including Watchou, Micah and Medhi, particularly in terms of the pricing of drugs. In one call on 1 January 2018 he spoke with a customer on the "run phone" and said, "I am the boss here".

5. [19]

   Billy Micah was sentenced on 8 August 2019 as follows:

6. [20]

   Mr Micah's participation in the criminal group was constituted by his acting as a street level supplier for Hannachi and liaising with Watchou, Medhi and Hannachi for about 2 months from November 2017 to January 2018.

7. [21]

   Walter Watchou was sentenced by his Honour on 19 September 2019 as follows:

8. [22]

   The rolled up large commercial quantity supply offence for Mr Watchou involved the supply transactions of 14 December, 21 December (two), 28 December 2017, 4 January and 30 January 2018.

9. [23]

   Mr Watchou's participation in the criminal group was constituted by his involvement in the rolled up large commercial quantity supply offence and his engagement in regular street level supply of a variety of drugs. He used two phones and he regularly moved between the relevant premises in Surry Hills, Darlinghurst and Haymarket delivering and receiving drugs and cash.

Sentencing of other co-offenders

1. [24]

   The applicant only invites comparison of his sentence with those imposed upon the co-offenders Hannachi, Micah and Watchou. For the sake of completeness, the following is what occurred to the other offenders mentioned.

2. [25]

   Kevin Bianchi was sentenced by Norrish QC DCJ on 6 August 2019 to intensive correction orders for a total of 1 year and 6 months for offences of supplying drugs and dealing with the proceeds of crime. An offence of participating in a criminal group was taken into account.

3. [26]

   Jonathan Malla was sentenced in the Local Court for an offence of conceal serious indictable offence. The sentence imposed is not disclosed.

4. [27]

   Damien Masset pleaded guilty to offences of dealing with the proceeds of crime and participating in a criminal group. The Local Court sentenced him to an aggregate term of imprisonment of 12 months with a non-parole period of 7 months. On 17 January 2019, M Williams DCJ "dismissed" an appeal against the severity of the sentence but nonetheless quashed the sentence and imposed community correction orders, each of 12 months.

5. [28]

   Nicholas Coulaud was not arrested as he fled the country before police made the arrests on 6 April 2018.

Submissions

1. [29]

   In written submissions, [9] the applicant contended that a statement within the judge's sentencing remarks – "no real issue of parity arises in the strict sense" – was erroneous in principle. It was conceded at the hearing of the application, however, that this was to take the statement out of context. It is apparent from a review of the entirety of the sentencing remarks that his Honour simply meant that this was not a case of offenders being sentenced for identical offences on an identical factual basis. [10]

2. [30]

   It was submitted [11] that "marked disparity arose as between the sentence imposed upon the applicant and that imposed upon Hannachi for, inter alia, the following reasons":

3. [31]

   In relation to Mr Watchou, it was submitted [12] that a "marked disparity" arose for these reasons:

4. [32]

   In relation to Mr Micah, it was submitted [13] that a "marked disparity" arose because:

Principles

1. [33]

   It is the applicant's contention that he has a justifiable sense of grievance because of the erroneous degree of disparity between his sentence and sentences imposed upon co-offenders. In short, he argues that his sentence should have been less than that which was imposed.

2. [34]

   The principles that apply are conveniently encapsulated in the following passage in the judgment of French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30]:

3. [35]

   This Court has observed that "considerable obstacles" are placed before an applicant contending error on a parity basis where a sentencing judge is fully aware of the sentences imposed upon co-offenders and the reasons for those sentences, and provides reasons for departing from those sentences: Tatana v R [2006] NSWCCA 398 at [28] (Howie J, Sully and Latham JJ agreeing).

4. [36]

   In Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [173], this Court implicitly endorsed a proposition that it will be cautious and not overly willing to intervene where the same judge sentenced an appellant and the co-offender, recognised the importance of the parity principle and gave effect to it.

5. [37]

   In Lloyd v R [2017] NSWCCA 303, I observed (at [95]), with the agreement of Payne JA and Garling J, that a differentiation between sentences imposed upon co-offenders was a discretionary assessment by the judge who had the facts and circumstances of the offences and each offender in mind in the one sentencing exercise. That observation is apposite in the present case. I went on to say (at [96]-[97]:

Consideration

1. [38]

   It is patently obvious from the remarks on sentence for all of the co-offenders that Norrish QC DCJ was at pains to consider the comparative merits of their respective cases in order to impose sentences that were fair, reasonable and proportionate. For example, at the outset of his remarks pertaining to the applicant and Hannachi he addressed them directly and told them of the sentences they would receive. In doing so he said:

2. [39]

   Throughout the reasons subsequently delivered are many further references to comparisons between the two offenders. For example, his Honour noted that the applicant was overseas for some weeks during the overall period of the offending "whereas the matters involving Mr Hannachi commenced at an earlier time". [15] In referring to the criminal histories of the pair, he said, "The prisoner, Mr Chamon, has no prior criminal convictions. Mr Hannachi in New South Wales has a number of convictions". [16]

3. [40]

   After referring in a summary way to all of the relevant objective and subjective features of the case concerning each offender, his Honour devoted time to a discussion of their respective roles in the criminal enterprise both generally and by comparison to each other. [17] The discussion included the following:

4. [41]

   This was immediately followed by a short summary of the prominent subjective factors in each case. His Honour referred to the applicant having no previous convictions; good character; his unlikelihood of reoffending; his good prospects of rehabilitation; and his pleas of guilty. For Mr Hannachi, there was the breach of conditional liberty but he otherwise did not have a significant record of convictions; he was not of good character; and his unlikelihood of reoffending and prospects of rehabilitation were problematic, they being dependent upon whether he could avoid using drugs following his release and return to France.

5. [42]

   When his Honour later came to sentence Mr Watchou, he adhered to the same careful approach of comparing the cases of each of the co-offenders. For example, at an early stage of his remarks on sentencing Mr Watchou he said: [18]

6. [43]

   The judge described the role of Mr Watchou relative to that of Mr Hannachi in the following broad sense: [19]

7. [44]

   His Honour described Mr Watchou as being "also answerable to Chamon, who is recorded through surveillance as providing drugs to the prisoner to supply to others". [20]

8. [45]

   There can be no criticism of the judge for not considering the issue of parity as between the applicant and Mr Hannachi. His Honour did so in a most careful and earnest way. The same approach is patently evident in his remarks when sentencing Messrs Micah and Watchou.

9. [46]

   His Honour appreciated the need to sentence each of the offenders for the offences with which they had been charged. He noted the "ironic result" that Mr Watchou: [21]

10. [47]

    No direct comparisons of the specific offences for which each of the applicant and the three co-offenders were sentenced are possible because none is the same. The directing or participating in a criminal group offence is common to each offender but comparison is inapt because the applicant was the only one for which an actual sentence was imposed. In the case of each of the co-offenders, the corresponding offence was taken into account on a Form 1. (See Dunn v R [2018] NSWCCA 108 where Adamson J concluded that this rendered the parity principle inapplicable.)

11. [48]

    The particulars provided in the statement of agreed facts for the applicant's criminal group offence demonstrate that he played an important role. He was clearly above the level of a "runner" in the drug supply activities of the group. The judge referred to the applicant being absent overseas for part of the period in which the enterprise was active. However, a countervailing aspect was that he continued carrying out important tasks in relation to the distribution of drugs among the group, and the receipt and management of the cash proceeds, in the month leading up to the arrests on 6 April 2018. In that period, there were no specific acts of offending identified in relation to any of the co-offenders.

12. [49]

    The subjective cases of each offender varied as would be expected but in a broad sense, they were similar. Annexed to this judgment is a table setting out the pertinent features of each. It may be accepted, however, that the applicant's subjective case warranted a greater degree of mitigation than was available for Mr Hannachi who had the breach of conditional liberty and the problematic question of his likelihood of reoffending and prospects of rehabilitation. Chamon Subjective Comparisons (16263, docx)

13. [50]

    One feature of the sentencing of each of the applicant and the co-offenders is that they each attracted a sentencing response that was, in all of the circumstances, quite modest. Each of the applicant and Messrs Hannachi and Watchou, at varying levels, was involved in a pernicious drug distribution network over a period of some months. Substantial quantities of drugs were being disseminated for large sums of money. Each of these three offenders is fortunate to have received the leniency he did.

14. [51]

    The co-offender Micah received a significantly more lenient sentence that was to be served by way of an intensive correction order. That was for the supply of a commercial quantity with his participation in the criminal group taken into account. However, his involvement was quite limited and the judge was satisfied that he was involved in the enterprise for a matter of only a few days. Comparison with his sentence is not useful.

Conclusion

1. [52]

   Appellate courts intervene when persuaded there is a degree of disparity in sentences imposed upon co-offenders that engenders a justifiable sense of grievance. The grievance is not one that is in the mind of the offender; it arises where there is an appearance of injustice in the mind of a hypothetical objective bystander: Lowe v The Queen (1984) 154 CLR 606 at 610 (Gibbs CJ), 612 (Mason J), 623 (Dawson J); [1984] HCA 46.

2. [53]

   The degree of differentiation made by the learned judge was open to him in the exercise of his discretion. I am not persuaded that there is, on an objective assessment, any justifiable sense of grievance arising from the sentence imposed upon the applicant as compared with those imposed upon his co-offenders.

3. [54]

   Because of the factual complexity of the issue, I would grant leave to appeal. However, as a result of the analysis above, I would dismiss the appeal.

Orders

1. [55]

   I propose the following orders:

2. [56]

   HAMILL J: I have had the advantage of reading a draft of the judgment to be delivered by R A Hulme J. His Honour’s careful analysis of the evidence and circumstances of the case relieve me of the need to recount the facts in any detailed way. Apart from one observation, which I think is a matter of form rather than substance, I agree with Honour’s articulation of the legal principles involved. I have, however, reached a different conclusion as to the outcome of this appeal. This difference of opinion is based on the facts of the case, rather than any difference of opinion as to the principles to be applied. I would uphold the single ground of appeal asserting, in essence, that the lack of due proportion between the sentences imposed on the four offenders engenders in the applicant a justifiable sense of grievance. I can state my reasons quite briefly.

3. [57]

   The case presented obvious difficulties in the application of principles of equal justice. The (relevant) four offenders stood to be sentenced for offences committed in the course of the same criminal enterprise, but the roles of each of the offenders, and the charge or charges they faced, were very different. [22] Messrs Micah and Watchou each faced a single charge that carried a higher maximum penalty than any of the offences for which the applicant was sentenced. The offences committed by Messrs Micah and Watchou also carried standard non-parole periods of 10 and 15 years respectively while there was no standard non-parole period applicable to any of the applicant’s offences. However, the evidence and sentencing Judge’s unchallenged findings established that Micah and Watchou were operating at a street level, whereas the applicant had a more trusted and senior role within the criminal enterprise. Mr Hannachi admitted he directed the activities of the criminal group, and was involved in a number of supply offences including two offences of agreeing to, or taking part in, the supply of commercial quantities of MDMA. Mr Hannachi was in breach of good behaviour bonds and had previous criminal convictions. However, the proceeds of crime count for which he was sentenced involved a much smaller sum of cash ($13,230) than the count for which the applicant was sentenced ($163,235.90). Again this demonstrates the applicant’s important and trusted role in the enterprise. While the criminality overlapped, there were no common charges between the offenders and no direct comparison between their sentences is possible. These and other matters created complications in the application of the principle that there should be a “due proportion” between the sentences imposed on co-offenders “having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.” [23] Where such “practical difficulties and limitations” exist they “do not exclude the operation of the parity principle.” [24]

4. [58]

   I agree with R A Hulme J (at [38]) that the sentencing Judge was “at pains to consider the comparative merits of [the offenders’] respective cases in order to impose sentences that were fair, reasonable and proportionate”. I also accept that this Court will not interfere lightly with the exercise of the discretion when the sentencing Judge has taken into account earlier sentences imposed by other judges or where, as here, the co-offenders are sentenced by the same judge. [25] Even so, the ultimate question for the appellate court is whether, considered objectively and taking into account all relevant differences, there is a proper or “due proportion” between the sentences and whether that outcome leaves the applicant with a justifiable sense of grievance.

5. [59]

   R A Hulme J, by reference to his judgment in Lloyd v R [2017] NSWCCA 303 at [97], says the question, put bluntly, is whether “the differentiation made by the judge [was] one that was open to [them] in the exercise of [their] discretion?”.

6. [60]

   Similar observations have been made in a number of cases decided in the Victorian Court of Appeal. [26] In Hilder v R, Maxwell ACJ expressed the hope that “the phrase ‘justifiable sense of grievance’ will in due course disappear from the discourse in this area”. However, that phrase was again employed in Green v The Queen and has underpinned each of the significant decisions made by the High Court in this area. [27] In Anthony v R, Redlich and Beach JJA at [12] said “no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in [the] way in which he or she did”. [28]

7. [61]

   Giving effect to the approach and language of the High Court, another way of expressing this is that a sentence that creates a justifiable sense of grievance is not one that was reasonably open to the sentencing judge. I see this as a difference in form or language rather than a difference in substance. The role of an appellate court considering a ground of appeal based on parity or proportion between sentences imposed on co-offenders, and the principles to be applied, is stated clearly in the High Court decisions. [29]

8. [62]

   R A Hulme J has applied these well-established principles to the factual circumstances of the present case. His Honour concludes at [53] that there is no “justifiable sense of grievance arising from the sentence imposed upon the applicant as compared with those imposed upon his co-offenders”. It is with this conclusion that I respectfully disagree.

9. [63]

   I accept the applicant’s submission that the difference between the aggregate sentence imposed on Mr Hannachi (6 years with a non-parole period of 3 years and 7 months) and that imposed on the applicant (5 years with a non-parole period of 3 years) does not reflect the substantial differences in the cases of the two offenders. As a result, in spite of the careful endeavours of the sentencing Judge, there is a lack of due proportion between the sentences imposed on the two men. Accordingly, the applicant is left with a justifiable sense of grievance and the Court should intervene.

10. [64]

    Mr Hannachi faced sentence for two offences carrying a maximum penalty of 20 years and a standard non-parole period of 10 years, and two offences with a maximum penalty of 15 years. He was sentenced for two offences involving a commercial quantity of MDMA (141 and 335 grams respectively) and an indictable supply involving 599 tabs of LSD. One of the Form 1 matters taken into account on sentencing involved an admission that he was directing the activities of the criminal group, an offence under s 93T(4A) of the Crimes Act 1900. The equivalent charge against the applicant alleged participation in the group under s 93T(1), rather than any allegation that he was directing the activities of the group. While no comparison can be made between the sentences because Mr Hannachi’s s 93T offence was dealt with on a Form 1, the significance of the different charges is obvious in that they suggested that Mr Hannachi was operating at a higher level than the applicant.

11. [65]

    Mr Hannachi had a minor criminal record and was on three bonds at the time of the offences. The sentencing Judge could not find him to be a person of good character and said that assessing his prospects of rehabilitation was “problematic”.

12. [66]

    By contrast, the applicant was charged with three offences carrying maximum penalties of 15 years, 5 years and 15 years. The drug offence for which he was sentenced involved 28.3 grams of MDMA and the supply offences on the Form 1 involved 28.1 grams of ketamine and 17 grams of MDMA. Referring to the maximum penalties and quantities involved is not to reduce the comparative analysis to a mathematical one. It is simply to emphasise that the offences with which the applicant was charged, and the facts of those offences – even allowing for the large sums of money involved in the proceeds of crime and criminal group counts – were far less serious than those faced by Mr Hannachi.

13. [67]

    Subjectively, the applicant was also in a far stronger position. The applicant had no previous convictions and Judge Norrish QC found him to be a person of good character who was unlikely to re-offend.

14. [68]

    On the other hand, the very large sums of money dealt with by the applicant betrayed his level of involvement in the syndicate. Further, he was involved in the offending for a period of 3-4 months.

15. [69]

    Both the applicant and Mr Hannachi pleaded guilty in the Local Court and received a reduction (from the indicative sentences) of 25%.

16. [70]

    In the circumstances, a difference of one year between the sentences imposed on the two offenders is markedly out of proportion with the differences between the charges, the objective criminality and the personal circumstances of each offender. Similarly, the applicant is entitled to a justifiable sense of grievance arising out of the insubstantial difference (seven months) between the non-parole period that each offender is required to serve.

17. [71]

    The justifiable sense of grievance is heightened when one considers the sentences imposed on Mr Watchou (3 years and 9 months with a non-parole period of 2 years and 2 months) and Mr Micah (1 year and 10 months to be served by way of an intensive corrections order). While those offenders were operating at a lower level, each was involved in a commercial or large commercial supply offence involving hundreds of grams of MDMA.

18. [72]

    While the position each of the offenders held in the hierarchy was obviously relevant, it is critical “to bear steadily in mind the offence for which the offender [was] to be sentenced.” [30] Characterising the offender by reference to their position in the hierarchy “must not obscure the assessment of what the offender did.” [31]

19. [73]

    Achieving due proportion in the circumstances of the present case required the applicant’s sentence to be substantially less than Mr Hannachi’s sentence and somewhat higher than that imposed on Mr Watchou for his offence of supplying a large commercial quantity (586 grams) of MDMA which required three other offences to be taken into account. In reaching this conclusion, I have not disregarded the evidence of the large sums of money handled by the applicant and identified in the facts of the “criminal group” charge. At the same time, those facts suggested, by reference to the packages mentioned, that the applicant was involved in a number of drug offences with which he was not charged.

20. [74]

    As the primary Judge found, the applicant was entitled to a 25% reduction in the appropriate penalty to reflect the utilitarian value his early pleas of guilty. This discount is to be applied to the indicative sentences for each offence, as I, like his Honour, would impose an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act. For the purpose of s 53A(2)(b), I indicate (by reference to the sequence numbers in the committal documents) the sentences I would have imposed had I not intended to impose an aggregate sentence:

21. [75]

    I would find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act for the same reasons as the sentencing Judge.

22. [76]

    I would make the following orders:

    1. (1)

       Grant leave to appeal against sentence.

    2. (2)

       Allow the appeal.

    3. (3)

       Quash the sentence imposed on the applicant and in lieu thereof:

    4. (4)

       Sentence the applicant to an aggregate sentence of 4 years and 6 months commencing on 6 April 2018 and expiring on 5 October 2022 with a non-parole period of 2 years and 6 months expiring on 5 October 2020.

    5. (5)

       The applicant would be eligible for release on parole at the expiration of the non-parole period.

23. [77]

    WILSON J: I agree with the orders proposed by R A Hulme J, for the reasons given by his Honour.