Kiraz v R

1. [1]

   BEECH-JONES CJ AT CL: I agree with R A Hulme AJ and the orders his Honour proposes.

2. [2]

   FAGAN J: I agree with the orders proposed by R A Hulme AJ and with his Honour’s reasons.

3. [3]

   R A HULME AJ: Allan Kiraz was sentenced in the District Court at Sydney by her Honour Judge Culver AM on 30 November 2021 in respect of a number of drug and prohibited weapon offences.

4. [4]

   Her Honour imposed an aggregate sentence of imprisonment for 8 years with a non-parole period of 5 years and 4 months dating from 27 May 2020.

5. [5]

   The drug supply offences were contrary to the Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) and (2), and the weapons offences were contrary to the Weapons Prohibition Act 1988 (NSW), s 7(1). There was also a proceeds of crime offence contrary to the Crimes Act 1900 (NSW), s 193C(2). Details of each offence and the indicative sentences are as follows.

6. [6]

   Mr Kiraz seeks leave to appeal against the aggregate sentence on the following grounds:

   1. (1)

      The aggregate sentence imposed is manifestly excessive.

   2. (2)

      There is a disparity in the sentence of the applicant and that imposed on the co-offender, Eren Mehmed, that gives rise to a justifiable sense of grievance on the applicant’s behalf.

The offences

1. [7]

   The agreed facts for the large commercial supply offence were that between 9 February 2020 and 22 May 2020 Mr Kiraz obtained quantities of methylamphetamine on nine occasions and gamma butyrolactone on one occasion. He negotiated the purchase by telephone, usually with Abdul Ali-Ahmed, and then obtained the drugs by attending a location or having it delivered to him.

2. [8]

   Midway through the agreed facts document it is stated:

3. [9]

   For the purpose of considering Ground 2 of the proposed appeal it is useful to have regard to the following details pertaining to each supply to Mr Kiraz.

4. [10]

   It may be inferred that Mr Ali-Ahmed was involved with others including Eren Mehmed in an enterprise of supplying drugs. The reference to the use of a “Run Phone” suggests the operation of what is sometimes referred to as a “Dial-a-Dealer” drug supply enterprise whereby orders are taken by telephone and delivery drivers supply the drug to the purchaser.

5. [11]

   It may also be inferred from the quantities involved that the applicant was a supplier of drugs to others in his own right.

6. [12]

   A search warrant was executed at Mr Kiraz’s home on 27 May 2020 where the following were found:

7. [13]

   Mr Kiraz gave evidence at the sentencing hearing of having a long-standing addiction to drugs. He managed to remain abstinent during a period of employment but returned to drugs when he lost his job during the COVID-19 pandemic. He claimed he was dealing in drugs to support his own habit and to pay back debts he had accrued as a result of it. [1]

8. [14]

   When it was suggested in cross-examination that the volume and value of drugs involved were inconsistent with that explanation, he protested that he “was always the middle person”; people would ring him asking him to get it for them and he would make “a little percentage of it and that then would be to support my habit”. [2]

9. [15]

   A little later he explained: [3]

10. [16]

    The sentencing judge said the following in the course of explaining her assessment of the objective gravity of the large commercial drug supply offence: [4]

11. [17]

    Her Honour’s finding coincided with the submission on behalf of Mr Kiraz [5] that the objective gravity of the large commercial supply offence was “just under the midrange level”.

Subjective factors

1. [18]

   The nature of the grounds of appeal and submissions in support of them do not require detailed consideration of the applicant’s background and personal circumstances unless the Court finds merit in Ground 1 or that a fundamental issue pertaining to Ground 2 is established. It will suffice to note some findings of the sentencing judge.

2. [19]

   There were controversial aspects of Mr Kiraz’s account of his background as a result of conflicting versions he had provided. Her Honour did not accept that as a child he had been the victim of domestic violence but did accept he had been sexually assaulted. She also accepted he had commenced using illicit drugs at around the age of 15. There was therefore either a link or a coincidence between the experience of sexual abuse and the immature resort to drug abuse. [6]

3. [20]

   Her Honour did not find there was a causative link but did accept there was a lessening of moral culpability for the offending as a result of a psychologist’s report of Mr Kiraz having symptoms of post-traumatic stress disorder and substance dependence disorder. She found that the emphasis upon general deterrence was reduced on account of these various factors. [7]

4. [21]

   In relation to more general subjective matters, her Honour found his experience of custody was more onerous due to the restrictions in place because of the pandemic. She described his criminal history as “extensive and serious” which was relevant to the emphasis given to specific deterrence and prospects of rehabilitation. [8]

5. [22]

   Early pleas of guilty entitled Mr Kiraz to a 25% reduction of the individual sentences. It was also accepted that remorse and contrition had been demonstrated and added to a favourable prospect of rehabilitation, although her Honour regarded this as “guarded”. [9]

6. [23]

   Special circumstances were found because of more onerous custody due to the pandemic and the “strong need for intensive rehabilitation”. Another basis was because Mr Kiraz was “being sentenced for multiple offences”, but why that should lead to a reduction of the non-parole period of an aggregate sentence was not explained.

Ground 1 – the sentence is manifestly excessive

1. [24]

   The principles relating to a ground asserting that a sentence is manifestly excessive were summarised in Obeid v R (2018) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

2. [25]

   An appeal against an aggregate sentence is concerned with that sentence and not directly with the indicative sentences assessed by the sentencing judge. Principles concerning the appellate review of aggregate sentences were summarised in JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40] including:

3. [26]

   The extent to which the sentences for the two primary offences were to be served (notionally) concurrently or accumulatively involved an exercise of the principle of totality. Its correct application was described by Howie J in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]:

4. [27]

   The applicant’s submissions clarified that this ground of the proposed appeal was focussed upon the impact of the possession of the taser-type weapon upon the aggregate sentence ultimately imposed. This was said to be the case because of the interplay between:

5. [28]

   The submissions referred to factors that would have made the offending in respect of this offence “more objectively serious”. These were if the taser was functioning; if it was charged and ready for use; and if it was in a place where it was readily accessible. [11] While there are more serious and dangerous types of prohibited weapons, the submissions acknowledged that the possession of a taser is not “a minor example of an offence under s 7(1) of the Weapons Prohibition Act”, citing R v Irwin [2019] NSWCCA 133 at [76]. [12]

6. [29]

   It was submitted that the judge had correctly found the objective seriousness of the taser offence as follows: [13]

7. [30]

   The applicant submitted that without the “elevating” factor of the taser being found in proximity to drugs and cash, the objective seriousness of the taser possession offence would have been assessed at a level lower than “at the mid-range”.

8. [31]

   The applicant’s case in respect of this ground was encapsulated in the submission that “the degree of accumulation reflected in the aggregate sentence is excessive because there is significant overlap between the criminality that aggravates the prohibited weapon offence and the supply offending”. [14]

9. [32]

   With indicative sentences for the two offences of 6 years and 3 years and the aggregate sentencing being one of 8 years, the sentencing judge may have considered that it would be appropriate for there to be a notional period of accumulation of 2 years and of concurrency of 1 year. She did not express this in her judgment and nor was she required to. She did, however, explicitly and correctly acknowledge and apply the totality principle as is evident in the following extract from her sentencing remarks:

10. [33]

    Accordingly, the judge posed for herself the correct question and answered it in a way that is challenged by the applicant as being “unreasonable or plainly unjust”.

11. [34]

    N Adams J, with the concurrence of Bell CJ and Davies J, recently considered the application of the totality principle in the context of aggregate sentencing in GG v R [2023] NSWCCA 102 and in doing so provided pertinent passages from two recent cases which are of present relevance:

12. [35]

    Addressing the “critical question” of “whether the aggregate sentence reflects the totality of criminality involved” and not assuming the correctness of the indicative sentences, the following matters are significant:

13. [36]

    In the context of statutory prescriptions of substantial maximum penalties and standard non-parole periods, focussing upon the overall criminality of the two offences and bearing in mind the further offences to be taken into account, it cannot be said that the aggregate sentence was unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. I am satisfied that it was within the acceptable bounds of a legitimate exercise of the sentencing discretion.

14. [37]

    I accept that this ground was arguable and I would favour a grant of leave to appeal. However, the ground must be rejected.

Ground 2 – disparity between the sentence imposed upon the applicant with that imposed upon Eren Mehmed giving rise to a justifiable sense of grievance

1. [38]

   The argument in support of this ground involves a comparison of the sentence imposed upon the applicant on 30 November 2021 with the sentence imposed upon Eren Mehmed by his Honour Judge Arnott SC on 22 July 2022 for the following offences:

   1. (1)

      Knowingly take part in the supply of a large commercial quantity (728g) of methylamphetamine between 8 May 2020 and 12 May 2020.

   2. (2)

      Supply of a large commercial quantity (1kg) of methylamphetamine on 20 May 2020.

2. [39]

   Information was provided to Arnott SC DCJ about a number of “related offenders” including the present applicant, although it was submitted by the Crown that this was for “context purposes” and that “parity doesn’t have much application because of the different offences that were laid … and … the quantities involved are of such a difference” and that “the dissimilarity of the charges and the bases of liability makes any meaningful comparison very difficult”. [16]

3. [40]

   The applicant contended that his aggregate sentence of 8 years was longer than the sentence of 7 years and 9 months imposed upon Mr Mehmed even though his criminality was less and he thereby held a justifiable sense of grievance. The Crown responded with arguments concerning the merits of the ground, seeking to differentiate the cases of the two offenders, submitting that “the applicant is seeking to argue for equality from a base of difference”. [17]

4. [41]

   There is a fundamental flaw in this ground: the applicant and Mr Mehmed were not co-offenders in the same criminal enterprise.

5. [42]

   There is no doubt that the parity principle is concerned with the comparison of sentences imposed upon co-offenders involved in the same criminal enterprise (even if charged with different offences arising therefrom). It has been confirmed by the High Court in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 per French CJ, Crennan and Kiefel JJ at [30] and in Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 per French CJ, Hayne, Kiefel, Bell and Keane JJ at [30]. The same was said in Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 (per Campbell JA at [136]-[137], [202] and per Howie J at [246]).

6. [43]

   The parity principle is not, however, concerned with the comparison of sentences imposed upon persons who were not co-offenders: R v Araya [2005] NSWCCA 283; (2005) 155 A Crim R 555 at [66] (Johnson J); Baladjam v R [2018] NSWCCA 304; (2018) 341 FLR 162 at [148]-[149] (Bathurst CJ).

7. [44]

   The applicant’s argument is virtually the same as that which was raised unsuccessfully by the applicant in Meager v R [2009] NSWCCA 215. Narelle Collier was a supplier of heroin to persons who contacted her by telephone. They were persons who were users of the drug and persons (namely Ms Meager and a man named Patrick McDaid) who in turn supplied to users of it. In explicitly complying with the parity principle the sentencing judge had regard to the sentence he had imposed upon Mr McDaid when sentencing Ms Meager. In applying for leave to appeal Ms Meager raised a parity argument by reference to the sentencing of Ms Collier. Latham J (Young JA and Johnson J agreeing) rejected the contention on the basis that they were not co-offenders so the parity principle had no application.

8. [45]

   Other examples of the parity principle not applying to persons who are not co-offenders include:

9. [46]

   I have earlier (at [9]-[11]) sought to describe the facts of the present applicant’s offending in a manner that makes clear that he and Mr Mehmed can in no sense be regarded as “co-offenders”; that is, offenders involved in the same criminal enterprise. The applicant was a supplier of drugs to others. He sourced drugs from Mr Ali-Ahmed and others who were engaged in a separate drug supply enterprise. The agreed facts disclose only one occasion where the applicant’s offending intersected with that of Mr Mehmed and that was on 6 April 2020 when the applicant negotiated with Mr Ali-Ahmed to purchase drugs and they were delivered to him by Mr Mehmed.

10. [47]

    The offender had no apparent interest or involvement in the drug supply enterprise being conducted by Mr Ali-Ahmed and others apart from being one of its customers and they had no interest or involvement in the drug supply enterprise being conducted by the applicant apart from being his upline supplier.

11. [48]

    There was some discussion at the hearing about whether the applicant might alternatively rely upon the sentencing of Mr Mehmed as a comparator for the assessment of the manifest excess contention raised under Ground 1. [18] It was not an approach that was advanced with any enthusiasm by the applicant’s counsel. The discussions by Johnson J in R v Araya at [65]-[72], and by Latham J in Meager v R at [10]-[12], indicate that this would not have been a useful approach in any event. It is rarely useful to assess the severity (or inadequacy) of a sentence by reference to a single comparative case and here there are so many differences, from the offences charged through to the subjective factors that make such an exercise inutile.

12. [49]

    There is no merit in this ground.

Orders

1. [50]

   I propose the following orders:

   1. (1)

      Leave to appeal against sentence granted.

   2. (2)

      Appeal dismissed.