Kanj v R

1. [1]

   KIRK JA: I agree with Sirtes J.

2. [2]

   YEHIA J: I agree with Sirtes J.

3. [3]

   SIRTES J: Before the Court is an application by Mr Khaled Kanj for leave to appeal against a sentence imposed upon him by Noman SC DCJ (the Sentencing Judge) in the District Court at Sydney on 20 December 2024, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

4. [4]

   The Applicant pleaded guilty in the Local Court to one count of joint commission attempt to possess a commercial quantity of a border-controlled drug reasonably suspected of having been unlawfully imported, contrary to ss 11.1(1), 11.2A(1) and 307.8(1) of the Criminal Code (Cth). After applying a discount of 25% for the plea of guilty, the Sentencing Judge imposed a sentence of 7 years’ imprisonment, with a non-parole period of 4 years and 4 months. This reflects a notional head sentence of 9 years and 4 months’ imprisonment. The Applicant will first be eligible for release on parole on 7 September 2028. The total sentence will expire on 7 May 2031.

5. [5]

   There were three co-offenders. They were sentenced as follows:

   1. (1)

      Hamza Cukovic was sentenced by the Sentencing Judge on the same occasion for the same offence, for which he received, after a 25% discount, a sentence of 8 years’ imprisonment with a non-parole period of 5 years. This reflects a notional head sentence of 10 years and 8 months.

   2. (2)

      Ahmet Turan was sentenced by the Sentencing Judge on 31 March 2026 for the same offence, with the addition of an offence of attempting to pervert the course of justice contrary to s 43(1) of the Crimes Act 1914 (Cth) (the Crimes Act) on a s 16BA schedule. He received a sentence of 6 years and 6 months’ imprisonment with a non-parole period of 4 years, following a 40% discount. This reflects a notional head sentence of 10 years and 10 months.

   3. (3)

      Acuil Acuil was sentenced by Flannery SC DCJ on 29 August 2025 for the offence of aid and abet an attempt to possess the same commercial quantity of the same border-controlled drug as his co-offenders, contrary to ss 11.1(1), 11.2(1) and 307.8(1) of the Criminal Code. Following a 15% discount, he received a sentence of 3 years’ imprisonment with a direction to be released immediately upon entering an 18-month recognisance. This reflects a notional head sentence of 3 years, 6 months and 11 days.

6. [6]

   The Applicant seeks leave to appeal on the ground that he has a justifiable sense of grievance arising from the sentence imposed upon his co-offender Mr Acuil.

7. [7]

   In addition to the sentencing material tendered on the application, the Applicant also read an affidavit of his solicitor on the usual basis, to which the Court could have regard if it proceeded to resentence him.

Extension of time and leave to appeal

1. [8]

   The Applicant filed a notice of intention to apply for leave to appeal on 7 January 2025. His subsequent Notice of Appeal filed on 24 February 2026 is therefore 7 weeks out of time.

2. [9]

   The Court retains a discretion to permit an application to be brought after the expiry of the filing period: Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 3.5(5). The decision to grant such leave is informed by a consideration of the interests of justice, including the prospects of success of the proposed appeal and the explanation for the delay: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at 614 [32]–[33]; Baladjam v R [2018] NSWCCA 304; 341 FLR 162 at 179 [93] (Bathurst CJ, Hoeben CJ at CL and Fagan J agreeing). The Applicant’s solicitor explained (in CCA Form 9 annexed to the Notice of Appeal) that the delay in this case was attributable to the time needed to arrange funding for Senior Counsel, attempts to obtain the transcript from Mr Acuil’s sentencing, and the period during which the Crown considered whether to bring an appeal from Mr Acuil’s sentence.

3. [10]

   The Crown does not oppose a grant of leave to appeal. This factor, together with the relatively brief delay, the fact that the proposed appeal is at least arguable and the Applicant has been sentenced to a substantial period of imprisonment, persuades me that an extension of time and leave to appeal should be granted.

The offence

1. [11]

   The Statement of Agreed Facts tendered at the Applicant’s sentencing summarises the following conduct constituting the index offence.

2. [12]

   In May 2023, officers of the Australian Federal Police (AFP) and the Australian Border Force intercepted a white Renault van aboard a vessel which berthed in Victoria. A search of that van revealed that 39 plastic bags containing a white crystalline substance had been concealed in its rear doors. Subsequent testing confirmed that that substance contained a pure weight of 38.29 kg of ketamine, being a border-controlled drug. A GPS tracker in the van was discovered and left in place. AFP officers replaced the ketamine with an inert substance, returned the bags containing those substituted drugs to the van, and allowed the van to continue its journey aboard the vessel to New South Wales. The van was then obtained and ultimately parked by officers outside an AFP-controlled residence in North Kellyville in western Sydney.

3. [13]

   On 29 June 2023, the co-offender Mr Cukovic began following the van which was being driven in the vicinity by AFP officers. That evening, he sent the Applicant messages via the encrypted application ‘Signal’ asking the Applicant to procure a person to access the substituted drugs in the van which had been returned to the North Kellyville residence. The Applicant agreed to do so. This was because Mr Cukovic considered that he and the Applicant should not take that risk themselves.

4. [14]

   Mr Cukovic travelled to meet the Applicant at Regents Park later that evening. In the meantime, the Applicant exchanged phone calls and text messages with the co-offender Mr Acuil. In the early hours of 30 June, Mr Acuil joined the Applicant and Mr Cukovic at Villawood. The trio split soon after.

5. [15]

   Between 1.39 am and 2.28 am that same morning, the Applicant and Mr Cukovic exchanged Signal messages to coordinate where the Applicant should take Mr Acuil for the purpose of retrieving the substituted drugs in the van. The Applicant then drove Mr Acuil to North Kellyville and dropped him off. Mr Acuil accessed the van with a key at 2.42 am and drove it to a nearby location. How he obtained the key remains unexplained. The Applicant and Mr Cukovic continued to communicate via Signal. Mr Acuil accessed the substituted drugs at 2.54 am and Mr Cukovic joined him shortly thereafter to transfer the substituted drugs into Mr Cukovic’s Ford Ranger. The Ford Ranger and the Applicant’s Toyota Hilux travelled in convoy to a carpark at Fairfield at around 4 am. There the three co-offenders moved between the vehicles and handled the substituted drugs.

6. [16]

   Several search warrants were executed on 1 July 2023. The Applicant was arrested and charged later that day.

The Applicant’s sentencing

1. [17]

   The Sentencing Judge heard submissions on the Applicant’s sentence on 12 December 2024 and reserved judgment.

2. [18]

   Her Honour passed sentence on 20 December 2024. Her Honour began by noting the maximum penalty prescribed for the offence—being life imprisonment, 7,500 penalty units, or both—and took it into account in imposing a sentence that was of a severity appropriate in the circumstances: Crimes Act s 16A(1). The Sentencing Judge proceeded to consider the following sentencing factors enumerated in s 16A(2) of the Crimes Act.

3. [19]

   The Sentencing Judge found that the Applicant was directly involved in the offence for a period of three days and was aware of the proposed offending prior to 29 June 2023. The Applicant was involved for financial gain, but he was also a drug user and not a person seeking solely to exploit the drug world for profit. Her Honour was satisfied beyond a reasonable doubt that the Applicant was to receive a “substantial payment” of at least 2 kg of ketamine for his participation in the offence.

4. [20]

   Her Honour found that the Applicant’s conduct included recruiting Mr Acuil and then arranging the meeting between him and Mr Cukovic at Villawood, discussing where to drop Mr Acuil to obtain the substituted drugs and then conveying him there, alerting Mr Cukovic to the presence of police and acting as a lookout while the substituted drugs were being accessed, and handling the substituted drugs himself at Fairfield. The Applicant was found to have played “an important role as the Sydney connection” because he was able to enlist Mr Acuil at short notice to perform a risky task. His role was “substantial”, “significant” and “necessary”, but “less directly engaged with others” than Mr Cukovic, who “was more significant to the plan” and “performed a more important role”.

5. [21]

   The drugs were not disseminated into the community because they were intercepted. However, her Honour had regard to the fact that the drug trade “is insidious and ruins the lives of those who are addicted and their families”. That trade promises “considerable illegal gains” and results in the commission of other offences.

6. [22]

   The Sentencing Judge considered that contrition had been demonstrated to some extent by the Applicant’s guilty plea. But this plea was entered in the face of a strong Crown case and was in that sense a “recognition of the inevitable”.

7. [23]

   Her Honour determined that the Applicant had demonstrated remorse in his letter to the Court, in which he took “full responsibility” and expressed deep regret. However, in the preparation of his Sentencing Assessment Report, the Applicant “attempted to assert a version of his offending inconsistent with his plea and the agreed facts” and “sought to minimise his role to that of a driver”. The Sentencing Judge found that this was an attempt to “dupe” the Court, which disentitled him from the benefit of a finding of “fulsome genuine remorse”.

8. [24]

   Her Honour found that there was no cooperation with authorities because the Applicant’s responses to police questioning were mostly untruthful.

9. [25]

   Her Honour found that personal deterrence “continues to be of significance” for the Applicant. This conclusion was informed by the following considerations:

   1. (1)

      the Applicant’s criminal history was limited and did not reflect a disregard for the law at a serious level;

   2. (2)

      he had access to pro-social networks and stable employment, which served to minimise risk;

   3. (3)

      the Applicant had a history of drug abuse but was now abstinent. That substance abuse was informed by childhood experiences which had a continuing impact and caused mental health consequences. He had participated in residential rehabilitation and continued to participate in programs to minimise the risk of relapse. There had been one relapse during participation in rehabilitation, and there was a requirement for ongoing professional assistance in this regard;

   4. (4)

      the Applicant had spent time on remand and a further period on bail which amounted to quasi-custody. That custody had a deterrent effect; and

   5. (5)

      the Sentencing Assessment Report assessed the Applicant as presenting a “low-medium” risk of reoffending. The Sentencing Judge found that he had “reasonable prospects” of not reoffending.

10. [26]

    In relation to general deterrence, the Sentencing Judge reached the following conclusion:

11. [27]

    However, the Applicant’s history of poor mental health resulted in general deterrence assuming a less significant role, and her Honour consequently applied a “modest adjustment” to achieve this.

12. [28]

    The Sentencing Judge returned to the Applicant’s moral culpability later in her remarks. Her Honour recorded a submission by the Applicant that his childhood, substance abuse, and mental health conditions enlivened the principles laid down in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (De La Rosa) and Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy). There was no explicit finding that those principles were to be applied. However, given that her Honour found that “[a]ddiction is linked to the offending” and that there would be a “modest adjustment” to the weight given to general deterrence in view of the Applicant’s history, I consider that the Sentencing Judge did apply those principles in determining the Applicant’s moral culpability.

13. [29]

    The Applicant was aged 29 when he committed the offence and 30 at the time of sentencing. He was married with two young children. He was self-employed and employed other staff. The Applicant told the author of the Sentencing Assessment Report that he was under significant financial pressure.

14. [30]

    His criminal history spanned 2014 to 2021 and included offences of drug possession, possessing ammunition, personal violence, resisting police and various driving matters. He received fines and community-based orders for that offending.

15. [31]

    The Applicant’s difficult and disadvantaged childhood was documented in the psychological report. That disadvantage was constituted by significant domestic violence inflicted upon him and his mother and siblings, as well as exposure to child sexual abuse at a very young age. This precipitated his drug use from the age of 12, starting with cannabis and escalating to more serious drugs including cocaine. This background produced negative mental health consequences. The psychologist opined that the Applicant met the criteria for oppositional defiant disorder and control disorder at the time of the offending, and his history of trauma supported a diagnosis of complex post-traumatic stress disorder. He was also exposed to confronting incidents on remand.

16. [32]

    The Sentencing Judge reiterated her finding that the Applicant had reasonable prospects of rehabilitation if he remained abstinent from drugs, avoided poor peer influences, and maintained family support.

17. [33]

    While on bail for the index offence, the Applicant completed residential rehabilitation and remained drug free. That program lasted 296 days. Her Honour allowed 100 days of that period to be taken into account as quasi-custody when determining the sentence.

18. [34]

    The Sentencing Judge also found once the Applicant was no longer in the rehabilitation program, his curfew condition was onerous and could be considered when fixing the overall sentence.

19. [35]

    Her Honour noted that a custodial sentence would have an impact on the Applicant’s family and would be especially difficult for his children. He could not work and provide financial support to his family while he spent 10 months in rehabilitation.

20. [36]

    The Sentencing Judge also considered that the Applicant was self-employed and that his business would likely be unviable while he is in custody. This would further diminish his family’s financial capacity.

21. [37]

    Her Honour imposed the sentence indicated at [4] above. That sentence was backdated by 226 days to account for the 100 days of quasi-custody and 126 days spent on remand.

Mr Acuil’s sentencing

1. [38]

   Mr Acuil initially pleaded not guilty to the offence with which he was charged. However, when arraigned on an indictment presented at the commencement of his trial, he pleaded guilty. The proceedings were stood over for submissions on sentence before Judge Flannery SC on 29 August 2025. Her Honour imposed the sentence on that date and delivered remarks ex tempore.

2. [39]

   Her Honour determined that, although the quantity of ketamine attempted to be possessed was significant, Mr Acuil’s offending was a “relatively low-level example” of that offence. This was for 12 reasons:

   1. (1)

      Mr Acuil had no knowledge or involvement in the importation of the commercial quantity of the border-controlled drug;

   2. (2)

      he had no knowledge of the van nor its contents prior to being recruited by the Applicant;

   3. (3)

      he did not know for what he had been recruited until shortly before he arrived at the North Kellyville address, and it was not until he removed the panel of the van’s rear doors that he realised that what he was doing involved drugs;

   4. (4)

      he became involved on the night the drugs were to be retrieved for the limited purpose of aiding and abetting Mr Cukovic’s and the Applicant’s physical possession of the drugs, and to that end met with the two men and agreed to do as they directed. He took the van from the driveway of what appeared to be a private residence and drove it to a nearby location where he accessed the substituted drugs secreted behind the rear door panels before transferring the drugs to another vehicle;

   5. (5)

      he had no control or autonomy over the drugs;

   6. (6)

      he did not know the type, weight or purity of the drugs prior to extracting them from the van;

   7. (7)

      he was reckless as to the quantity and specific type of drug, and its value;

   8. (8)

      he acted at all times at the direction of Mr Cukovic and the Applicant;

   9. (9)

      in doing so he assumed a high level of risk;

   10. (10)

       whilst without people willing to assume the risk, the importation and possession of commercial quantities of border-controlled drugs would be effectively impossible, Mr Acuil was not essential to Mr Cukovic and the Applicant’s possession of the drug they believed to be ketamine. His job could have been done by anyone;

   11. (11)

       Mr Acuil did not receive a reward, although at some stage during the commission of the offence he formed the view that he would receive something for what he had done. However, Judge Flannery accepted that he was motivated from the outset by a sense of indebtedness to the Applicant, who had been kind to him in the context of his earlier hospitalisation and the loss of his brother, and that once he understood what job he was required to do, he felt uncomfortable and wanted to go home, but was scared to say that and was too afraid to speak up; and

   12. (12)

       as the ketamine was intercepted and substituted, nobody was in fact harmed. However, her Honour considered this to be of limited significance, having regard to the harm that could have been caused to the community if the ketamine had made its way onto the streets.

3. [40]

   Mr Acuil gave evidence and tendered a letter he had written, as well as letters from his family, friends and football associates. He also tendered a report of Dr Richard Furst, psychiatrist. Her Honour considered that material and the Sentencing Assessment Report.

4. [41]

   He was 21 at the time of the offence and 23 at the time of sentencing. Judge Flannery took Mr Acuil’s youth into account given that his poor mental health impeded his cognitive and social development.

5. [42]

   He had no relevant criminal history and on that basis was entitled to leniency.

6. [43]

   Mr Acuil’s parents are Sudanese refugees who fled to Egypt. He was born there before the family migrated to Australia in 2003. His parents were strict and emotionally distant. His academic performance at school was strong and he excelled at football. Mr Acuil left school in Year 11 and studied at college or TAFE and commenced an apprenticeship as a painter when he was 18.

7. [44]

   The most significant event of Mr Acuil’s life was the suicide of his older brother, Deng, in November 2021. Deng was his best friend. Deng’s death had deleterious consequences for Mr Acuil, including:

   1. (1)

      causing him to lose interest in doing activities he previously loved, especially football;

   2. (2)

      causing anxiety and panic attacks which were intermittent at first but became more regular. Mr Acuil was prescribed Zoloft in May 2023 to deal with these consequences. He also started to consult a psychologist, Mr Alameddine, to address his trauma; and

   3. (3)

      precipitating Mr Acuil’s use of 2 g of cannabis a week towards the end of 2022 to cope with grief, depression and anxiety. This escalated to an episode in April 2023 where he overdosed on Xanax and alcohol and collapsed against a fan heater, which caused severe burns to his left leg. He was treated in an intensive care unit for six days and the burns required ongoing treatment thereafter. After he was discharged from hospital on 28 April 2023, he reported feeling very depressed and anxious and had a poor appetite. This developed to suicidal ideation in June 2023.

8. [45]

   Dr Furst concluded that Mr Acuil presented with persistent and severe depressive symptoms associated with a high level of anxiety and chronic suicidal ideation from the age of 18. These symptoms were said to be present from 2022 to 2025, including during the commission of the offence. This depressive disorder was, in part, due to a biological predisposition that was aggravated by Deng’s death and the serious burn Mr Acuil suffered in April 2023. Dr Furst concluded that the deficits in judgement which these factors produced meant that Mr Acuil probably acted on impulse on the night of the offending and then did not extract himself from the situation when the wrongfulness of his conduct became apparent. Judge Flannery accepted Dr Furst’s conclusions.

9. [46]

   It was also significant that Mr Acuil was friends with the Applicant’s younger cousin. The Applicant offered him plumbing work in early 2023 which he declined. However, the Applicant kept in touch with Mr Acuil and visited him in hospital when he was being treated for burns. This history undoubtedly informed her Honour’s conclusion that Mr Acuil committed the offence out of a sense of indebtedness to the Applicant.

10. [47]

    Her Honour found Mr Acuil to be an impressive witness and accepted that the offence was out of character. This informed a finding that his poor mental health contributed to the offending in a material way and reduced his moral culpability. Accordingly, Judge Flannery found that he was a less appropriate vehicle for general deterrence, the need for specific deterrence was reduced, and the community did not need to be protected from him. These factors also satisfied her Honour that Mr Acuil’s time in custody would be more onerous.

11. [48]

    Mr Acuil was genuinely remorseful and demonstrated insight into the effect of his behaviour on the community. The Sentencing Assessment Report assessed him as a “low” risk of reoffending. Judge Flannery accepted that Mr Acuil had good prospects of rehabilitation and was unlikely to reoffend.

12. [49]

    Judge Flannery was alive to the application of the parity principle in sentencing Mr Acuil. Her Honour had evidently studied carefully the remarks of the Sentencing Judge in sentencing the Applicant and recounted the relevant conclusions. After considering the similarities and differences between the respective cases (including the sentence imposed on Mr Cukovic), her Honour found that:

13. [50]

    Her Honour imposed the sentence set out at [5(3)] above. That sentence followed the application of a 15% discount for the utilitarian value of the plea entered at the commencement of the trial.

14. [51]

    Mr Acuil had served 90 days on remand and 21 months on bail with strict conditions, which her Honour considered was “onerous”. Judge Flannery did not backdate the sentence but did take that history into account in fixing a sentence of 3 years’ imprisonment.

15. [52]

    Pursuant to s 20(1)(b) of the Crimes Act, her Honour directed that Mr Acuil be released immediately upon entering into a recognisance of $500 without security for 18 months, with conditions that he be of good behaviour and accept supervision by the probation service. This order was made “in the most unusual circumstances” of the case, particularly given that any further time in custody was “likely to have a detrimental effect on Mr Acuil’s health”.

Legal principles

1. [53]

   The Applicant’s proposed ground of appeal invokes the parity principle. A comprehensive summary of the operation of that principle was provided by Wright J (with whom Bell CJ and Davies J agreed) in Tasdik v R [2024] NSWCCA 195 (Tasdik) at [58]–[63], which I gratefully adopt as follows:

2. [54]

   There are three features of this application which merit further consideration.

3. [55]

   The first is that Mr Acuil was sentenced by a different judge on a subsequent occasion. The Applicant can seek leave to bring an appeal on the ground of disparity with a sentence subsequently imposed on a co-offender: Jones v The Queen (1993) 67 ALJR 376 at 377 (Brennan, Deane and McHugh JJ); Chen v R; He v R [2018] NSWCCA 95 at [42] (Johnson J, White JA and Harrison J agreeing). In such a case, the sense of injustice is said to arise from the sentenced imposed on the co-offender, rather than the Applicant’s sentence: Lewins v R [2007] NSWCCA 189; 175 A Crim R 40 at 42 [7] (Howie J, Basten JA and Grove J agreeing). However, where the co-offenders are sentenced by different judges, particular care must be taken to ensure whether the sentences “can be explained by reference to the different material before each Sentencing Judge”. An answer to that question requires the Court to “address the material before each judge and the assessment by each of that material as reflected in their respective reasons”: Martellotta v R [2021] NSWCCA 168 (Martellotta) at [58] (Adamson J, Basten JA and Walton J agreeing).

4. [56]

   The second is that the Applicant and Mr Acuil’s sentences were imposed following the application of different discounts, being 25% and 15% respectively. In this respect, it is appropriate to have regard to the starting points adopted by each judge (i.e. the notional head sentence) when determining whether the discrepancy between the final sentences imposed was the product of an unjustified disparity: Cameron v R [2017] NSWCCA 229 at [5] (Basten JA), [19] (Button J); Hadid v R; Singh v R [2025] NSWCCA 207 at [126] (Weinstein J, Ward P and Adamson JA agreeing).

5. [57]

   The third is that not only was there a discrepancy between the head sentences imposed upon each offender, but the Applicant received a non-parole period of 4 years and 4 months’ imprisonment whereas Mr Acuil was released immediately. In Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 302–303, Dawson and Gaudron JJ determined that it was in error solely to compare the head sentences imposed upon co-offenders; the head sentence is but one component of the overall sentence. The application of the parity principle requires consideration of all components of the sentence, including any non-parole period as well as the total effective period each offender will serve in custody. At 338, Kirby J explained that the appellate court’s attention is properly focused “not upon the nominal sentence but upon the actual punishment which it appears likely the prisoners in suggested comparison will undergo”. These principles are widely followed: see, eg, Rees v R [2012] NSWCCA 47 at [50(5)(i)] (Garling J, Macfarlan JA and R S Hulme J agreeing); Kelly v R [2017] NSWCCA 256 at [26] (Beech-Jones J, Basten JA and Fagan J agreeing); Tasdik at [62]; Mohr v R [2024] NSWCCA 197; 390 FLR 293 at 298 [21] (Bell CJ, Davies and Wright JJ agreeing). Judge Flannery’s decision to release Mr Acuil immediately on recognisance was discretionary. Accordingly, the discrepancy between Mr Acuil’s release and the Applicant’s sentence to full-time custody was not mandated by statute in a manner which would render the Applicant’s sense of grievance unjustified: cf. Scicluna v R [2008] NSWCCA 24; 181 A Crim R 133 at 137 [12] (Basten JA, Barr J agreeing). For those reasons, in determining whether the disparity between the co-offenders’ sentences is unjustified, the Court must have regard both to the respective head sentences as well as the disparity between the actual time in custody each offender must serve.

Consideration of differences in the co-offenders’ cases

1. [58]

   It is necessary to compare the relevant findings made about the Applicant and Mr Acuil, respectively, to determine whether the disparity between their sentences is justified by objective criteria such as “age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise”, as well as the “qualitative and discretionary judgments” the respective judges were bound to make in drawing distinctions between co-offenders: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green) at 475 [31]–[32]. That comparison also encompasses a consideration of the material placed before the respective judges and their Honours’ assessment of that material as reflected in their reasons: Martellotta at [58].

2. [59]

   The Applicant accepts that there are four distinguishing features of Mr Acuil’s conduct (as compared with his own):

   1. (1)

      Mr Acuil’s relatively limited involvement in the commission of the offence;

   2. (2)

      the causal connection between his mental health and the offence;

   3. (3)

      his youth; and

   4. (4)

      the fact that his major depressive disorder would render his time in custody more onerous than other prisoners.

3. [60]

   The Applicant contends that, although these factors “undoubtedly entitle” Mr Acuil to a lesser sentence than the Applicant, they do not justify the “marked disparity” between the undiscounted head sentences or between the Applicant’s non-parole period and Mr Acuil’s immediate release. In support of this contention, the Applicant submits that:

   1. (1)

      while Mr Acuil’s involvement in the offence was limited to one day, the Applicant’s involvement was only for three days;

   2. (2)

      Mr Acuil must have known he was stealing from the van;

   3. (3)

      while Mr Acuil’s role was limited, it was nevertheless critical to the intended success of the criminal enterprise;

   4. (4)

      the difference in age between the Applicant and Mr Acuil was not marked;

   5. (5)

      both offenders were subject to onerous bail conditions; and

   6. (6)

      Mr Acuil was assessed as presenting a low risk of reoffending, while the Applicant was assessed as presenting a low to medium risk.

4. [61]

   The Crown’s central argument is that the disparity between the co-offenders’ sentences was justified having regard to the respective objective and subjective factors in each case.

5. [62]

   The objective seriousness of the Applicant’s offending is said to be more pronounced. This is on the basis of the findings of the Sentencing Judge recounted at [20] above, as well as the fact that he purchased a toolbox and padlock to conceal the drugs and gain exclusive physical control over them and was to receive a substantial financial reward for his participation. This is contrasted with Judge Flannery’s finding that Mr Acuil played a far less significant role in the offence.

6. [63]

   The Crown submits that the subjective features which characterised Mr Acuil’s case, and were not available to the Applicant, included:

   1. (1)

      the nexus between his mental health and reduced moral culpability;

   2. (2)

      his time in custody would be more onerous on account of his poor mental health;

   3. (3)

      his youth, compounded by the impediment of his cognitive and social development;

   4. (4)

      the absence of any relevant criminal record which entitled him to leniency; and

   5. (5)

      that he was genuinely remorseful and was assessed as presenting a low risk of reoffending.

7. [64]

   These matters, taken together, are said to supply a principled and sufficient basis for the disparity between the sentences imposed. The Crown says that this conclusion is supported by the fact that the exceptional circumstances of Mr Acuil’s case resulted in a sentence “at the most lenient end of what the sentencing range makes available for this class of offending”.

8. [65]

   At the outset, it must be recalled that the Applicant and Mr Acuil were not convicted of identical offences. While the Applicant was sentenced for his participation in a joint criminal enterprise with Mr Cukovic to attempt to possess the ketamine, Mr Acuil was sentenced for aiding and abetting that endeavour under s 11.2(1) of the Criminal Code. But there need not be a formal identity between the charges for which the co-offenders are sentenced to enliven the parity principle, because the application that principle is concerned with is equality before the law in substance rather than form: Green at 474 [30]. True it is that the maximum penalties prescribed for these offences are the same, which provides an important legislative guidepost in determining the appropriate sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at 132 [27]. However, that Mr Acuil was convicted of the offence of aiding and abetting, as opposed to as a principal in the joint criminal enterprise, reflects the less significant role he played in the offence.

9. [66]

   In that regard, the variance in the objective seriousness of the co-offenders’ conduct was stark. The Applicant was found to have played a substantial and necessary role in the offending. That role included recruiting Mr Acuil to bear the risk of accessing the substituted drugs (which risk he and Mr Cukovic did not want to take themselves) and acting as a lookout for police during the commission of the offence. The Applicant was motivated, at least in part, by the expectation of financial reward. By contrast, Mr Acuil was enlisted at the last minute, was not aware of the importation of the ketamine, and did not appreciate the ultimate object of the criminal enterprise until he removed the panel in the van’s rear doors. Moreover, he did not agree to participate in the offending for the purpose of financial compensation but did so out of a sense of debt and loyalty to the Applicant who had treated him well.

10. [67]

    On the material before the respective judges, there was ample basis for their Honours to make those findings.

11. [68]

    It is also worth recording that when the Sentencing Judge subsequently sentenced the co-offender Mr Turan on 31 March 2026, her Honour considered the parity principle with the benefit of Mr Acuil having been sentenced. Her Honour noted that she sentenced two co-offenders (being the Applicant and Mr Cukovic) and then remarked that “[t]he co-offender Acuil’s role is so markedly different as to not require comparison”. The Crown drew the Court’s attention to this observation at the hearing of the application. Senior Counsel for the Applicant submitted (in paraphrase) that this conclusion begged the question. He argued that the application was based on a contention that Mr Acuil’s case did require comparison with the Applicant’s, and that comparison miscarried in the imposition of Mr Acuil’s sentence, giving rise to a justifiable sense of grievance on the part of the Applicant.

12. [69]

    At the time of the offending, the Applicant was aged 29 and Mr Acuil was 21. The Sentencing Judge did not make any explicit findings about the Applicant’s age. On the other hand, Judge Flannery did consider Mr Acuil’s youth in conjunction with his poor cognitive and social development. This reduced the need for general deterrence.

13. [70]

    The Applicant did have a criminal history which included drug possession, possessing ammunition, personal violence, resisting police and driving offences. However, he received fines and community-based orders for those offences. He had never been in custody. The Sentencing Judge described the history as “limited”. At the hearing of this application, the Crown properly conceded that this history was not significant and could not on its own justify the disparity.

14. [71]

    Mr Acuil’s history consisted of two driving offences for which he received fines. Judge Flannery made a positive finding that there was no relevant criminal history and that consequently Mr Acuil was entitled to full leniency.

15. [72]

    The Sentencing Judge made findings that the Applicant’s childhood included family violence and child sexual abuse. Her Honour drew a link between this history and his substance abuse, which in turn informed his offending. As recorded at [28] above, it is apparent from a fair reading of the Sentencing Judge’s remarks that her Honour did apply De La Rosa and Bugmy in the Applicant’s favour, and accordingly made a “modest adjustment” to the weight to be given to general deterrence. Nevertheless, personal deterrence “continue[d] to be of significance”.

16. [73]

    The Applicant accepted at the hearing of the application that Mr Acuil’s subjective case in this respect was more compelling. Judge Flannery found that the death of his brother was detrimental to Mr Acuil’s health, sparked his drug use, and led to his suffering severe burns which required intensive treatment. The consequent deterioration in his mental fitness was directly related to his offending. As set out above, her Honour afforded Mr Acuil significantly leniency on this basis, finding that it reduced his moral culpability and the weight to be given to denunciation and specific and general deterrence. Crucially, this also founded Judge Flannery’s conclusion that further time in custody would have a “detrimental effect” on Mr Acuil’s mental health, and that he should accordingly be released immediately.

17. [74]

    The Applicant’s plea of guilty entitled him to a 25% discount and went some way to expressing remorse. However, the Sentencing Judge tempered this conclusion by a finding that he had sought to minimise his role in the offence and “dupe” the Court, which disentitled him from a finding of “fulsome genuine remorse”. Her Honour considered the Sentencing Assessment Report which assessed the Applicant as a “low to medium” risk of reoffending and ultimately concluded that he had “reasonable prospects” of not reoffending.

18. [75]

    Mr Acuil received the benefit of a highly favourable assessment in this regard. Although he only received a discount of 15% because of the timing of his plea, Judge Flannery accepted that he demonstrated “genuine remorse” and insight, he was “determined to rehabilitate” and accordingly had “good prospects” of rehabilitation. The Sentencing Assessment Report assessed his risk of reoffending as “low”, and her Honour found that it was “unlikely” to occur.

19. [76]

    The Applicant received a notional head sentence of 9 years and 4 months’ imprisonment prior to the application of the discount. On the other hand, Mr Acuil’s notional head sentence was 3 years, 6 months and 11 days.

20. [77]

    One important difference between these sentences must be borne in mind. As described at [37] above, the Sentencing Judge backdated the Applicant’s sentence to account for the 126 days he spent on remand, as well 100 days of residential rehabilitation which was treated as quasi-custody. Judge Flannery took a different approach in sentencing Mr Acuil. Her Honour accounted for the 90 days he spent on remand and the 21 months spent on bail, subject to “onerous” conditions, in determining the overall length of the sentence, rather than determining that sentence independently of those considerations and then backdating its commencement accordingly. The effect of these differing approaches is that, had Judge Flannery imposed a sentence in the same manner as the Sentencing Judge, Mr Acuil’s head sentence would have been longer. It would have been at least 90 days longer accounting for pre-sentence custody, and given that her Honour found that 21 months of onerous bail conditions also needed to be considered, it may have been longer still. The length of this hypothetical sentence is unquantifiable. It does however mean that the disparity between the undiscounted head sentences imposed on the Applicant and Mr Acuil is not as significant as appears on its face.

21. [78]

    Following the application of the 25% discount, the Applicant was sentenced to 7 years’ imprisonment. In view of his non-parole period of 4 years and 4 months, the minimum period of time the Applicant will serve in full-time custody referable to this offence is approximately 4 years and 1 month given that 100 days of the sentence was backdated because of his residential rehabilitation.

22. [79]

    After Judge Flannery applied a discount of 15%, Mr Acuil was sentenced to imprisonment for 3 years and was immediately released on recognisance. He spent 90 days in full-time custody referable to the offence.

Determination

1. [80]

   Parity appeals require a granular focus on the factors that inform sentences of co-offenders, arising from the same set of circumstances (but not necessarily the same charges). The Applicant and the Crown vie to highlight and amplify the degree of dissimilitude (or lack thereof) between comparative sentences.

2. [81]

   To my mind the areas of dissimilarity are more significant and compelling. In relation to Mr Acuil, his role and level of involvement was incomparable to that of the Applicant. As the Crown submitted, he could be described as a “last-minute ring-in”. It is likely that, up until the point in time that he identified the substituted drugs, his conduct did not meet the physical or fault-based elements of the index offence. By the time it did, he could have fled the scene but, in consequence of his relative youth and sense of fealty to the Applicant, he did not.

3. [82]

   It may have been another matter entirely if he understood, in advance, the true nature of the endeavour. There is no evidence that he did. I interpret that Judge Flannery treated Mr Acuil as a prisoner of circumstance. The Criminal Code, however, does not recognise this as a defence. Once the physical and fault elements coalesced, Mr Acuil was exposed to the same liability as if he committed the principal offence.

4. [83]

   There is, however, scope during the sentencing phase for the objective seriousness and criminality of the aiding and abetting offence to be differentiated from the conduct of the principal offenders. The Applicant did not, as compared to Mr Acuil, unwittingly fall into his criminal conduct. The Applicant was aware of, and intended to participate in, the retrieval and supply of a very significant commercial quantity of a prohibited drug as part of a sophisticated international enterprise. He was a more deeply involved participant who not only stood to gain financially from the illicit drug trade but intentionally inveigled Mr Acuil into such activity, thereby exposing him to potentially significant criminal liability. That was not a risk which Mr Acuil had divined or invited. The observation of the Sentencing Judge, in her sentencing remarks concerning Mr Turan (at [68] above), was apposite.

5. [84]

   The age difference between the Applicant and Mr Acuil was also significant. The Applicant was at a more advanced stage of his life than Mr Acuil. He was married with young children and was running his own business. Any sentencing dispensation for the fecklessness of youth was not applicable to the Applicant, in contradistinction to Mr Acuil.

6. [85]

   The disparity between the sentences imposed on the co-offenders is largely explicable by the differences in their subjective cases. Judge Flannery considered that Mr Acuil’s was exceptional because of the effect of his brother’s suicide and the consequences which followed. Her Honour afforded him a substantial degree of leniency on this basis. The Sentencing Judge found that the Applicant also had subjective factors that reduced the weight to be given to general deterrence, but the adjustment was “modest”. The need to achieve personal deterrence was of “significance” for the Applicant, but not Mr Acuil.

7. [86]

   It can quite properly be said that there is a marked disparity between these two sentences. Equally, however, the objective seriousness of the respective criminality of the Applicant and Mr Acuil, as well as their subjective cases, were conspicuously different. I am not persuaded, in the presence of these differences, that the Applicant has established a justifiable sense of grievance. This ground fails.

Conclusion

1. [87]

   For those reasons, I would:

   1. (1)

      Grant leave under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to bring the application for leave to appeal after the expiry of the filing period.

   2. (2)

      Grant leave to appeal.

   3. (3)

      Dismiss the appeal.