Cutajar v R

1. [1]

   HOEBEN CJ at CL: I agree with N Adams J and the orders which she proposes.

2. [2]

   BUTTON J: I agree with N Adams J.

3. [3]

   N ADAMS J: The applicant, Frank Cutajar, seeks leave under s 5(1) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Acting Judge Madgwick on 23 June 2017. He had pleaded guilty to manufacturing not less than the large commercial quantity of methamphetamine (15.98 kilograms), contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMTA”). That offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

4. [4]

   The applicant also stood to be sentenced for possession of a prohibited firearm (a .22 calibre self-loading rifle), contrary to s 7(1) of the Firearms Act 1996 (NSW). That offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 3 years. Two further offences (possession of a magazine and a silencer) were taken into account on a Form 1 under s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”).

5. [5]

   The applicant was sentenced as follows:

   1. (1)

      Large commercial manufacture: non-parole period of 7 years to commence on 21 August 2015 and expire on 21 August 2022 with an additional term of 4 years to expire on 20 August 2026.

   2. (2)

      Possession of prohibited firearm (taking into account two further firearms matters): 12 months imprisonment to be served concurrently with the large commercial manufacture sentence.

6. [6]

   The applicant will be eligible for release on parole on 21 August 2022.

7. [7]

   The applicant relies on the sole ground of appeal that he has a justifiable sense of grievance arising from the disparity between the sentence he received for the large commercial manufacture offence when compared with the sentence imposed upon his co-offender, Mohommad Ammar.

8. [8]

   His co-offender, Mr Ammar, pleaded guilty to knowingly take part in the manufacture of not less than a large commercial quantity of a prohibited drug, namely 7.98 kilograms methylamphetamine, contrary to s 24(2) DMTA. He was sentenced on 7 December 2018 by Townsden DCJ and received a sentence of 6 years and 4 months imprisonment with a non-parole period of 4 years.

9. [9]

   The Notice of Intention to Appeal was filed on 21 May 2020 and amended on 22 May 2020. It was not until after the applicant became aware of the sentence imposed on Mr Ammar that he sought legal aid and an appeal was subsequently filed in this matter.

10. [10]

    The application to extend time for filing the notice of appeal was not opposed by the Crown.

Factual background

1. [11]

   An Agreed Statement of Facts was tendered as part of Exhibit A on the applicant’s proceedings on sentence and summarised by Acting Judge Madgwick in his Reasons (“Remarks on Sentence”) as follows.

2. [12]

   In late 2014, the applicant was the co-owner and occupier of a semi-rural property in the Badgery’s Creek area. Police commenced surveillance of the property on 21 January 2015. In early May 2015, police took some video footage of the interior of a shed on the applicant’s premises, which had a “site office” area. In it was located equipment for use in the manufacture of methylamphetamine.

3. [13]

   On 24 June 2015, police surveillance recorded the applicant, Mr Ammar and another unknown person entering the shed. Mr Ammar and the applicant were recorded discussing the product and how it should be made. The exact words used by the men, as contained in the Agreed Facts for sentence for both the applicant and Mr Ammar, were as follows:

   1. (1)

      The two men discussed the quality of the drugs manufactured. Mr Ammar said, "my mate says it tastes like perfume" and the applicant replied, "smell like perfume to you". Mr Ammar later said "it's not oily";

   2. (2)

      The applicant asked Mr Ammar, "what do you want me to do with that other shit my mate cooked?" Mr Ammar replied, "[y]eah, I’ll work it out";

   3. (3)

      Mr Ammar undertook to provide money to the applicant, “[i]f you wait till money come up from the west...I will give you some papers for it, alright?"

4. [14]

   His Honour noted the following in his Remarks on Sentence:

5. [15]

   On 3 July 2015, another conversation was recorded in which Mr Ammar asked the applicant to find out how another drug manufacturer had made a product which he regarded as a superior product. On 7 July, another conversation was recorded in which Mr Ammar discussed the sealing of two bags of methylamphetamine as well as the general manufacturing process. The Agreed Facts disclose the following conversation.

6. [16]

   On 8 July, the applicant and Mr Ammar again discussed prices. On 15 July, the applicant went into the site office area and left with a small white package of methylamphetamine. On 22 July, another conversation occurred which, according to his Honour, demonstrated that the applicant was acting as an “active storeman in relation to the drugs that were kept on the premises”.

7. [17]

   An unknown male entered the premises and asked what the applicant had. The applicant replied, “[t]hat little tub there, that’s the one” and said that something else was “the export shit”. He also said, “I sent him down to cancel the accounts...I was thinking to myself he wants ice, I fucking gave him two bags of ice...”

8. [18]

   On 27 July 2015 and on 20 August 2015, another two conversations were recorded. In one, Mr Ammar commented that he had told a purchaser that the applicant did not want to keep working and that he might start with a new cook. There was also a conversation in some detail about the market and prices that Mr Ammar could obtain as well as the manufacturing process.

9. [19]

   The applicant also commented that he was concerned about police involvement. The following portion of this conversation was recorded in the Agreed Facts for the applicant’s sentencing, but not for Mr Ammar’s sentencing:

10. [20]

    The applicant was arrested on 21 August 2015. As his Honour noted, he made “limited admissions”. When the property was searched, over 30 packages of methylamphetamine ranging in weights between a few grams to nearly 3 kilograms were seized totalling 15.98 kilograms. 12.64 kilograms of the 15.98 kilograms of methylamphetamine seized were in crystal or powder form. There was also material which could have made approximately 500 grams more methylamphetamine.

11. [21]

    A rifle in a prohibited category was also found, as was a silencer and a detachable magazine to suit a self-loading rifle.

12. [22]

    Mr Ammar was arrested the same day. The surveillance footage identified him on the property on the following dates and for the following periods of time:

    1. (1)

       24 June 2015 for seven minutes;

    2. (2)

       3 July 2015 for 60 minutes;

    3. (3)

       6 July 2015 for 45 minutes;

    4. (4)

       8 July 2015 for 49 minutes;

    5. (5)

       20 August 2015 for 1 hour and 49 minutes.

Proceedings on sentence

1. [23]

   The applicant’s proceedings on sentence were first listed before Judge Herbert on 24 February 2017. Her Honour ordered a Pre-Sentence Report and the matter was stood over for sentence before Judge Madgwick on 23 June 2017.

2. [24]

   On behalf of the Crown the following documents was tendered on sentence: the indictment, Form 1, Agreed Facts, criminal history, custodial history and Pre-Sentence Report dated 10 April 2017. On behalf of the applicant, a report of Dr Olav Nielssen dated 29 March 2017, a report of Professor Stephen Woods dated 22 June 2017 and various medical reports from Justice Health were tendered. In addition, testimonials and statements relating to the applicant’s character and aquarium business were tendered.

3. [25]

   The applicant gave evidence at his proceedings on sentence. He outlined the family support available to him on his release from custody. He also gave evidence about his assets and capacity to pay a fine. A letter he had written was tendered and marked Exhibit 2.

4. [26]

   The applicant gave evidence of the debt that he was in at the time of his arrest. He owed about half a million dollars on the property as well as a further $25,000 to the bank. He explained that he had fallen behind on payments when he met a woman and formed his first ever personal relationship. Unfortunately, she was drug-addicted and the applicant started using drugs as well. By the time of sentence, he suffered from depression and was receiving treatment in custody for it.

5. [27]

   In cross-examination the applicant stated that he had been paid $5,000 about six or seven times for his work as a manufacturer and one time he received $20,000. He agreed that if had sold the property that he co-owned he could have got out of debt and still had about $200,000 available to him. He said that he had owned the gun before the amnesty in 1994 and had never handed it in.

6. [28]

   The applicant confirmed that, despite a lack of capability at school, he had practical skills which meant that he had worked in a variety of jobs including an electrician’s labourer, plumber’s labourer, and in Bobcat and excavation work. He had also, for a time, run an importing business for saltwater aquarium fish.

7. [29]

   He agreed that he was aware that some ice users became very violent.

8. [30]

   In re-examination, the following exchange took place between the applicant and his Honour:

Remarks on sentence

1. [31]

   After outlining the facts summarised above at [11]-[21], his Honour made some observations about the applicant’s role in the overall manufacturing process. He was satisfied that the recorded conversations indicate that the applicant was more than a mere “unskilled storeman”. In the 7 July conversation, for example, he seemed to be negotiating prices and indicating that he intended to keep manufacturing unless the “prices drop”.

2. [32]

   His Honour observed that manufacturing such a large quantity of drugs required a considerable amount of organisation, requiring funding, storage, finding an experienced cook and packaging of the finished product. He stated that there was no evidence that the applicant was involved in the overall financing of the operation. His Honour then commented:

3. [33]

   His Honour further noted that the applicant had assets available to him of not less than $200,000, which he could have liquidated and, thus, avoided engaging in criminal activity to discharge his debt. He stated:

4. [34]

   When addressing the applicant’s background, his Honour stated that, as a person with no previous convictions and from a “respectable” family, the applicant was entitled to be treated as a person of good character. He noted that, due to his relationship with a drug user, the applicant began to use drugs regularly as a relief from his anxieties (including his financial anxieties). As such, his “ordinary good sense” abandoned him and he became involved in crime.

5. [35]

   His Honour assessed the applicant’s prospects of rehabilitation as “remarkably bright”. This was due to the support from his family and the fact that he had ensured semi-skilled work on his release. His Honour also classified the applicant’s efforts in gaol as “outstanding”, as he had made efforts to see psychologists, with delays of only a few days, and had undergone remedial education courses with a degree of success. His Honour noted that the applicant had done so despite being the subject of threats which had required him to be isolated within his cell at times.

6. [36]

   As for remorse, his Honour accepted that the applicant felt shame and regret about the embarrassment to his family caused by his offending. However, his Honour did not find that the applicant had a broader sense of remorse about the effect of his offending on the community. He noted that no such finding was made in the Pre-Sentence Report or in the psychological reports tendered at sentence.

7. [37]

   Given the applicant’s age and health problems (morbid obesity), his Honour did not consider that specific deterrence should be a particularly important factor when sentencing. However, his Honour considered that the need for general deterrence was high given the “justifiable public outrage that a man of his age, not in poverty, not without social and material resources, would seek to bail himself out of money problems and also profit by engaging in drug manufacture on such a large scale over a substantial period”.

8. [38]

   His Honour then applied the discount of 25% for the applicant’s early plea and found special circumstances on account of his mental health problems.

9. [39]

   The issue of parity did not arise on the applicant’s sentence because Mr Ammar had not been sentenced at that time.

Remarks on sentence - Mr Ammar

1. [40]

   The proceedings on sentence for Mr Ammar came before Judge Townsden on 12 and 13 November 2018. There was a significant factual dispute about the specific amount of methylamphetamine that Mr Ammar was directly involved in and whether it could be proved beyond reasonable doubt that he was involved in the manufacture of the crystal methamphetamine.

2. [41]

   Oral evidence was given by Dr Daniel Coghlan, who was a forensic chemist with the New South Wales Health Pathology at the Forensic and Analytical Science Service. Documentary evidence was also tendered, including a report of Professor Hibbert dated 18 July 2018. His Honour was required to make factual findings based on that evidence.

3. [42]

   Mr Ammar was sentenced on 7 December 2018 by Judge Townsden.

4. [43]

   His Honour re-stated the facts summarised above at [11]-[21]. His Honour noted that Mr Ammar appeared remorseful “for having contributed to ruining the lives of many people in the community”. However, this was given less weight because Mr Ammar did not give oral evidence.

5. [44]

   In terms of subjective circumstances, Mr Ammar was 42 years of age at the time and had a 20 year old child. Dr Kerri Eagle had provided a report for the Court which stated that Mr Ammar had a severe stimulant use disorder in remission in a controlled environment. Judge Townsden found that there were reasonable prospects of rehabilitation given Mr Ammar’s ongoing family support, his letter to the Court, and also what was contained in the psychiatric report. He found that Mr Ammar was not a person of previous good character, having served a lengthy sentence for recklessly dealing with the proceeds of crime.

6. [45]

   When Judge Townsden addressed the question of parity with the applicant, he first considered the comparative seriousness of the applicant’s offending and that of Mr Ammar:

7. [46]

   On the basis of the evidence provided by Dr Coghlan and Professor Hibbert, his Honour could not be satisfied beyond reasonable doubt that the offender did in fact take part in the manufacture of the crystalline methylamphetamine on the applicant’s property because there was a real possibility that the manufacture of crystalline methylamphetamine occurred before he was first recorded as attending the premises. As for parity, his Honour noted that:

8. [47]

   His Honour further indicated that specific and general deterrence were relevant factors when sentencing. He found special circumstances on the basis of Mr Ammar’s guilty plea, remorse, and need for ongoing counselling.

The applicant’s submissions

1. [48]

   It was submitted that there was a disparity between the applicant's sentence and that imposed on Mr Ammar. Counsel noted that both men were sentenced under the same provision. It was acknowledged that a higher quantity of drugs was involved, but it was submitted that there was a “glaring” difference in terms of the starting point. It was submitted that this was erroneous given that both men were to be sentenced for their significant involvement in the manufacture of substantially more than a large commercial quantity of methylamphetamine.

2. [49]

   In terms of their comparative subjective cases, the applicant submitted that both offenders were of a similar age, were found to have good prospects of rehabilitation and were found to be unlikely to reoffend. Mr Ammar had the benefit of a finding that he was remorseful, but this was given reduced weight. Furthermore, Mr Ammar had a prior conviction for a serious, perhaps related, offence as he had served a prison sentence for dealing with the proceeds of crime.

3. [50]

   Furthermore, the applicant submitted that, if anything, he was in a subordinate position to Mr Ammar. This is because the Agreed Facts strongly supported the inference that Mr Ammar gave direction and instruction to the applicant in the manufacturing process.

4. [51]

   The applicant submitted that the narrow focus in Mr Ammar’s proceedings as to the amount of time he spent at the property distracted from the fact that there were no substantial differences between the criminality of the two men and, as such, no foundation for such different sentences.

5. [52]

   It was further submitted that, apart from the different factual findings between the applicant and Mr Ammar, the applicant’s subjective case was more favourable that Mr Ammar’s. Also, despite the longer date range on the indictment for the applicant’s offence rather than Mr Ammar’s, in evidential terms and factual terms, “the offending conduct overlapped almost entirely as regards the two offenders”.

6. [53]

   It was noted that there was significant evidence before the sentencing judges that both men were committing the offences for a significant financial gain. As for the question of remorse, it was submitted that, although there was no finding that the applicant was “genuinely remorseful in a global sense”, Judge Madgwick found that there was “some sense of remorse”, as detailed above at [36].

Crown submissions

1. [54]

   The Crown emphasised that the applicant was sentenced for manufacturing substantially more than Mr Ammar, with the applicant manufacturing 16 times the large commercial quantity and Mr Ammar manufacturing eight times the commercial quantity. Furthermore, on the available evidence, the applicant was engaged in illegal activities for a minimum of eight months and was continuously present at the property, whereas Mr Ammar's offence covered a period of two months when he was only visiting.

2. [55]

   The Crown also submitted that the applicant’s provision of the property was a significant aspect of the criminal enterprise, he was a “skilful cook” and he was the one storing the drugs. The applicant was also sentenced for an additional offence and was not found to be genuinely remorseful (unlike Mr Ammar).

Consideration

1. [56]

   The principles pertaining to what has become known as the “parity principle” in sentencing are well known. The High Court has stated them in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 and Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49. In Postiglione v The Queen Dawson and Gaudron JJ observed at 301:

2. [57]

   The disparity complained of must be “marked” (Lowe v The Queen at [3], Green v The Queen at [31]), “unjustified” (Green v The Queen at [32]) or “manifest” (Lowe v The Queen at 613) to warrant appellate intervention. The application of the parity principle does not involve a judgment about the “feelings” of the person complaining of disparity with regard to a justified sense of grievance. The test is an objective one: Postiglione v The Queen at 323 per Gummow J.

3. [58]

   There have been a significant number of decisions of this Court concerned with grounds of appeal alleging a breach of the parity principle. The principles are rarely in issue; in each case resolution of the ground involves this Court examining all of the subjective features of the applicant and that of the co-offender or co-offenders, the findings of the judge (if sentenced by the same judge) or judges (where sentenced by different judges) and determining whether the notion of “equal justice” has been violated in each case.

4. [59]

   The nub of the applicant’s argument is that he and the co-offender were equally involved in the criminal enterprise, and that, if anything, Mr Ammar’s subjective case was less compelling than his because Mr Ammar had a prior criminal conviction. Despite this, the starting point of the applicant’s head sentence (before the application of a 25% discount) was 14 years and 8 months, whereas the starting point of Mr Ammar’s sentence was just below 7 years and 6 months (before the application of a 15% discount). The question is whether the difference in the sentences imposed can be explained by the different cases they presented on sentence to Judge Madgwick (the applicant), and Judge Townsden (Mr Ammar).

5. [60]

   Turning first to the objective seriousness of the offending, Judge Madgwick described the applicant’s offences as “a very serious crime, a very serious category of offence”. On the other hand, Judge Townsden found that Mr Ammar’s offending was “well below midrange but not towards the lower range”.

6. [61]

   Both the applicant and Mr Ammar were convicted under the same provision of the DMTA, although the applicant was charged with manufacture simpliciter, whereas Mr Ammar was charged with knowingly taking part in the manufacture.

7. [62]

   The applicant was sentenced for his involvement in the manufacture of 15.98 kilograms of methylamphetamine, whereas Mr Ammar came to be sentenced for his involvement in the manufacture of 7.98 kilograms of methylamphetamine. This is a very significant difference in the factual basis upon which each stood to be sentenced.

8. [63]

   The applicant pleaded guilty to manufacturing the 15.98 kilograms methamphetamine between 21 January 2015 and 20 August 2015. Mr Ammar pleaded guilty to knowingly take part in the manufacture of half that amount between the shorter date range of 24 June and 21 August 2015.

9. [64]

   Although the applicant submitted on appeal that their criminality was similar, it is to be noted that, whereas the applicant, who lived at the property, was under covert physical and electronic surveillance from as early 22 January 2015, the first sighting of Mr Ammar was not until 24 June 2015. When police were covertly at the premises on 6 May 2015 they noticed “an overwhelming odour indicative that a manufacture process of prohibited drugs had recently taken place in the shed”. This was a date prior to the involvement of Mr Ammar.

10. [65]

    Although the applicant, as the owner of the property where the drugs were manufactured, was present at all times, Mr Ammar was only observed to be at the property on five occasions for the brief periods referred to above at [45].

11. [66]

    The applicant was described as a "skilful cook" in respect of the manufacture as well as the “active storeman of the drugs”. Judge Madgwick did not accept the applicant’s version that he was merely cooking for others. Nor did he accept his evidence that he did not expect any significant return beyond what he had already been paid. His Honour found that the evidence was "inconsistent with the notion that he was but a narrowly constrained cook and passive guardian of the drugs with an absence of input into decision-making”.

12. [67]

    There was no issue taken in the proceedings before Judge Madgwick that the applicant manufactured the crystal methamphetamine. By comparison, the finding made by Judge Townsden was that Mr Ammar played a significant role in "a part of the manufacture process", as he assisted in the refinement of pseudoephedrine and in the conversion of methylamphetamine oil into methylamphetamine base. Despite this, Mr Ammar was sentenced on the basis that that "there was a real possibility that the manufacture of crystalline methylamphetamine may have occurred prior to the first occasion the offender attended the premises”.

13. [68]

    Having regard to these factors, I am unable to accept the applicant’s submission that his criminality was about the same as that of Mr Ammar. The applicant was also sentenced for an additional serious offence to do with the firearm and two Form 1 offences, whereas Mr Ammar was only being sentenced for the manufacture offence.

14. [69]

    Turning to the competing subjective cases: the applicant received a 25% discount for his early plea of guilty, whereas Mr Ammar only received a 15% discount.

15. [70]

    Both men had similar findings in relation to “special circumstances” and received similar variations to the statutory ratio: s 44(2) of the Sentencing Act. The applicant’s non-parole period was 63.64% of his overall sentence, whereas Mr Ammar’s was 63.16%. Both men were of a similar age when they carried out the offending and both were found to have good prospects of rehabilitation.

16. [71]

    The applicant was found to be motivated almost solely by the potential for financial gain. The wholesale value of the drugs was at least $1.5 million. Judge Madgwick rejected the applicant’s evidence that his reward was to be something under $40,000. On the other hand, although Judge Townsden found that Mr Ammar was motivated by financial reward, his offending was found to be also related to his substance use disorder.

17. [72]

    There were also dissimilar findings as to remorse and the need for general deterrence. Although the applicant gave evidence on sentence, Judge Madgwick was not satisfied that he had any broad sense of remorse beyond feeling shame and regret for the embarrassment caused to his family. Although Mr Ammar did not give evidence on sentence, there was evidence before Judge Townsden that he was remorseful for his role in ruining the lives of so many people who use drugs.

18. [73]

    There is no doubt that the starting point for the sentence to be imposed on the applicant was almost twice as high as that for his co-offender but it could not be said, to use the words of Gibbs CJ in Lowe v The Queen, that all things were “equal” in this matter. In particular, the facts and involvement of each offender and assessment of objective seriousness of each was, in the end, sufficiently different such as to explain the different results.

19. [74]

    The notion of “equal justice” is integral to the criminal justice system. The role of an appellate court is to ensure, as much as possible, that an offender’s sentence will not vary significantly to a co-offender solely on the basis that they were sentenced by different judges. It is regrettable that the applicant and Mr Ammar were not sentenced by the same judge. As I recently observed in Dungay v R [2020] NSWCCA 209 at [105]:

20. [75]

    It is necessary for this Court to state yet again that wherever possible the Director of Public Prosecutions should make all reasonable efforts to ensure that co-offenders are sentenced by the same judge.

21. [76]

    For the reasons I have provided, I am not satisfied that, viewed objectively, the applicant has a justifiable sense of grievance arising from the sentence imposed on his co-offender given the different factual findings made in relation to Mr Ammar‘s objective criminality. Although it is common ground that the starting point for the applicant’s sentence was significantly higher than that for Mr Ammar’s sentence, the difference is not such as to suggest that the notion of equal justice has been violated in this case.

ORDERS

1. [77]

   The orders I would propose are:

   1. (1)

      Grant an extension of time to appeal.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss appeal.